Daily Hindu Editorials

👉The judiciary doesn’t seem to fully appreciate the economic consequences of its judgments👈 The number of legal disputes involving property, contract, labour, tax and corporate laws is bound to increase with an expanding economy. How they are adjudicated by courts not only has direct consequences for the disputants, but also shapes the behaviour of individuals and entities involved in production, commerce and banking. Judicial findings also influence decision-making of government agencies, which are major actors in a developing economy. Yet, the Indian judiciary doesn’t seem to fully appreciate the economic consequences of its judgments. 👉Case studies A case in point is a May 31, 2018 order of the Allahabad High Court — Independent Power Producers Association of India v. Union of India and Ors. The court has ruled that bankruptcy proceedings cannot be started against a power company unless the company is a wilful loan defaulter. It did not factor in the issue of viabilit...

👉The murder of Shujaat Bukhari is aimed at silencing the middle ground in J&K👈 The death of Shujaat Bukhari in a terrorist attack at close range in Srinagar has taken away a journalist who held bold and independent opinions on the conflict in Kashmir and how it should be resolved. In the choice of target and the timing of the murder, the attack sends out a chilling message: that on the eve of Id-ul-Fitr and in the closing days of the government’s Ramzan ceasefire against militants, there are forces determined to gut the emerging consensus for extending the cease-ops and preparing the ground for dialogue. Bukhari, given the credibility he had painstakingly built with reportage that conveyed the complex reality of life in the Valley, was a prominent advocate of the ceasefire and the need to extend it. Whichever terrorist group chose to kill him would have been aware of the consequences of his death. This has been a dark week in Jammu and Kashmir. Two security personnel with Buk...

👉The faulty 13-point roster can be easily corrected to ensure the constitutionally mandated quota👈 The recent notification of the University Grants Commission (UGC), in response to an Allahabad High Court judgment of April 2017, directing all the universities and colleges to implement the reservation policy by treating the department or subject as a unit rather than the university or college has received strong opposition. When the department is taken as a unit, then at least one appointment from each reserved category will be made only when a minimum of 14 appointments are made (known as the 13-point roster). However, when the university or college is taken as a unit, every reserved category gets the earmarked percentage of reservation when a minimum of 200 appointments are made (known as the 200-point roster). The advantage of the 200-point roster over the 13-point roster is that deficit in reservation in one department is compensated by other departments. 👉Delhi Universit...

👉There must be an inquiry into how allocations for organ transplants are made in Tamil Nadu👈 Transplantation of human organs is today a mature programme in many States, making it possible for people with kidney, liver, heart and lung failure to extend their lives. Heart and lung transplants are expensive and less widely available, compared with kidney and liver procedures. State governments, which have responsibility for health care provision, are expected to ensure that the organs that are altruistically donated by families of brain-dead people are given to recipients ethically, and as mandated by law. Priority for citizens enrolled in the State and national waiting lists over foreign nationals is laid down in the Transplantation of Human Organs and Tissues Rules. When the law is clear, it is extraordinary that seemingly preferential allotment of hearts and lungs has been made to foreign patients in Tamil Nadu — in 2017, foreigners accounted for 25% of heart transplants and 33% ...

👉It is unwise to suggest people-to-people contact as the way to resolve the Cauvery dispute👈 Makkal Needhi Maiam founder Kamal Haasan’s joint press interaction on June 4 with Karnataka Chief Minister H.D. Kumaraswamy has triggered a huge controversy. What did Mr. Haasan say that was so provocative? He said that the court should be the last resort for dispute resolution and that people-to-people contact should be promoted to find the way forward. Various political leaders have asked: “What is Mr. Haasan’s locus standi? Won’t it weaken Tamil Nadu’s case, particularly in a situation where there is a stiff resistance towards the formation of the Cauvery Water Management Authority (CWMA) from the Karnataka Chief Minister?” 👉Since the judgment Ever since the Supreme Court delivered its final judgment on February 16, the situation in both States has been broiling. Although the final judgment brought some initial celebration in Karnataka, it was accompanied by apprehension that co...

👉Pre-litigation mediation is an important step to improve the ease of doing business👈 Mandatory pre-litigation mediation in commercial disputes has been introduced by the recent Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018, which amends the Commercial Courts Act of 2015. This amendment is expected to alter parties’ sense of responsibility in resolving disputes. Mandatory pre-litigation mediation puts the ball in the court of the parties involved, rather than looking at external agencies like courts, and urges them to engage with and resolve disputes. 👉The meaning of mediation The Commercial Courts Act was legislated to improve the enforcement of contracts, as part of improving the ease of doing business. The law defines “commercial disputes” to include regular commercial and business contracts, construction contracts, shareholder agreements, licensing agreements, etc. The law makes changes for reduction...

👉Protecting constitutional values requires an independent judiciary. For this, three issues need attention👈 The Supreme Court, this past month, provided us with a useful reminder about its worth to our constitutional democracy. Its intervention in the imbroglio over government formation in Karnataka was flawless. The hearings conducted in the early hours of the morning may have been theatrical, but the court’s ultimate decision certainly helped avert a subversion of the Constitution. Yet, much as its decision here deserves appreciation, we must be careful not to allow any ascription of credit to veil the deeper wounds that afflict it, for a litany of problems continues to strike at the court’s independence. Three of these are especially salient. The first involves the rejection by the government of the collegium’s recommendation of K.M. Joseph, currently Chief Justice of the Uttarakhand High Court, for elevation to the Supreme Court. The second concerns the need for a syste...

👉When a child faces brutality, in or outside the family, society’s contract with its own spirit is violated👈 Judicial hearing in the Kathua rape and murder case has been shifted out of Jammu and Kashmir, where the incident occurred, to Pathankot in Punjab. This has raised the hope that justice will be served. However, it is worth examining what justice means in cases where the victim of a heinous crime is a child. After each case of rape, including the rape of small girls, the demand for justice is raised. This demand is, of course, right. In the media, one often hears and reads that the victim’s parents want justice to be served without delay. In many cases, people are known to have come out on the streets to demand police action and justice. Now that an ordinance has been issued to enable the judiciary to award the death penalty to rapists of small girls, we can expect quicker protests for demanding justice. 👉The meaning of justice In general, the idea of justice doe...

👉#MeToo without due process could subvert the goals and values of the rule of law, including equality and transformative justice👈 The legal system has failed women in India. In two recent cases, we saw even lawmakers and enforcers becoming perpetrators of sexual violence or defending the accused. The chilling details of the Kathua and Unnao cases are telling but perhaps only the tip of the iceberg. It is in this context that those who support anonymous lists such as the list of “sexual harassers in academia” have debunked the call for “due process”. They argue that due process has done too little for women who have chosen to complain against sexual harassment. There is little hope from mechanisms such as the Internal Complaints Committee established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013, which, in effect, rely on due process principles like the presumption of innocence and a standard of proof beyond reasonable do...

👉Anguish about the tussles between the executive and the judiciary is misplaced👈 In recent times, a series of stormy issues between the executive, the powers that be and the judiciary has had the common man clutching his head in despair. The shrillness in public discussions leaves him with an uncomfortably distinct impression that this is the end of the road for an independent judiciary. Such anguish, however, exposes a poor understanding of the complex web that constitutional relations between the three organs of the state — the executive, the judiciary and the legislature — inevitably are. Every developed constitutional democracy in the world has had its share of such showdowns. But at the end of the day, such tussles have only strengthened democracy and not weakened its structure as the history of constitutional governance the world over would attest. In England, in 2003, the then government announced the abolition of the office of the Lord Chancellor (who traditionall...

👉 Management practices and technology can help transform court processes 👈 The spotlight was on the Bombay High Court in early May when one of its judges sat well past midnight hearing cases before the month-long summer break kicked in. While this was a rare occasion in the court’s 156-year history, the incident highlights the systemic issues common to courts in India. Ad hoc measures such as what the judge did, though laudable and well meaning, hardly resolve these issues. Instead, they can only be addressed through a transformation of court processes. 👉Two areas of concern While there is general acceptance that the Indian judicial system suffers from case delay and the use of antiquated methods, the discourse on judicial reform remains focussed on areas such as appointments and vacancies. It is time that organisational barriers and court processes that also contribute to case delay are studied. We focus on two areas that greatly affect court efficiency: case listing prac...

👉Management practices and technology can help transform court processes👈 The spotlight was on the Bombay High Court in early May when one of its judges sat well past midnight hearing cases before the month-long summer break kicked in. While this was a rare occasion in the court’s 156-year history, the incident highlights the systemic issues common to courts in India. Ad hoc measures such as what the judge did, though laudable and well meaning, hardly resolve these issues. Instead, they can only be addressed through a transformation of court processes. 👉Two areas of concern While there is general acceptance that the Indian judicial system suffers from case delay and the use of antiquated methods, the discourse on judicial reform remains focussed on areas such as appointments and vacancies. It is time that organisational barriers and court processes that also contribute to case delay are studied. We focus on two areas that greatly affect court efficiency: case listing practi...

👉Cauvery basin States must quickly agree on an authority to apply the water-sharing award👈 Now that the Karnataka election is over, the Centre has finally mustered the courage to submit a draft scheme in the Supreme Court to implement the final decision on apportioning the Cauvery waters among the riparian States. The draft, which gives no name for the authority it proposes to create to monitor implementation of the Cauvery Tribunal’s final award, as modified by the Supreme Court, has been largely drawn from the Tribunal’s directions. It will be a two-tier structure, with an apex body charged with the power to ensure compliance with the final award, and a regulation committee that will monitor the field situation and water flow. The powers and functions of the authority are fairly comprehensive. Its powers would extend to apportionment, regulation and control of Cauvery waters, supervision of operations of reservoirs and regulation of water releases. The draft makes the authority...

👉The propriety of the Centre holding back names from the collegium’s list is in question👈 It may no longer be possible for the Union government to delay Justice K.M. Joseph’s elevation to the Supreme Court. The five-member collegium has unanimously agreed, in principle, to reiterate its recommendation to appoint the Chief Justice of the Uttarakhand High Court as a judge of the Supreme Court. When reiterated unanimously, the Centre is bound to act on the collegium resolution, going by the law laid down by the Supreme Court in the Third Judges Case of 1998. The Centre, which denies that its objection had anything to do with Justice Joseph’s decision in 2016 to quash the imposition of President’s Rule in Uttarakhand, ought not to delay his appointment once the reiteration is formally made. However, it is puzzling that the collegium didn’t send its reiteration to the Centre immediately. It has decided that his name would be part of the next set of recommendations, which would include...

👉A bill seeks to make it easier to resolve commercial disputes👈 The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill of 2018 is pending in Parliament. The Bill intends to jump-start India as a sought-out business destination in the world. Its objective is to set India at the top of the ‘Ease of Doing Business’ index of the World Bank. It aims to create a conducive regulatory environment for investors to set up and operate businesses. India recently jumped 30 positions and reached the 100th rank in terms of ‘Ease of Doing Business’ among 190 countries. The urgency is apparent, with the government also promulgating an ordinance. The Bill proposes to lower the specified value of a commercial dispute to ₹3 lakh from the present ₹1 crore so that commercial disputes of a reasonable value can be decided by commercial courts. This would bring down the time taken (at present, 1,445 days) in resolving commercial disputes of le...

👉Shifting the Kathua rape case to another State is a warranted step👈 In shifting the case of the abduction and gang rape of an eight-year-old girl in Kathua district in Jammu and Kashmir to Pathankot in the neighbouring State of Punjab, the Supreme Court has taken the first necessary step towards ensuring a fair trial. It is unfortunate that despite the horrific nature of the crime, which took place over several days in January, when the girl from the nomadic Bakherwal community went missing, some sought to see the incident along sectarian lines. Contradictions on communal and political lines came to the fore. The formation of a Hindu group in support of those arrested by the J&K Police Crime Branch, and the action of some lawyers in Kathua in heckling the police when they came to file the charge sheet, contributed to the impression that the atmosphere in the town is too vitiated for the conduct of a fair trial. In addition, sections of society, including political parties an...

👉Building such a database is not easy, does not always offer justice, and is an ethical landmine👈 Despite the spate of violent attacks against women, including rapes, in India, very few of the men implicated have been convicted. While identifying the rapist is the first step to serving justice, his identity does not guarantee due punishment or a stiff sentence for the crime. According to the National Crime Records Bureau, only about a quarter of rape cases ended in conviction in 2016. These rates are low in other countries too. The outrage over these attacks has reinforced the belief that India needs a sex offenders’ database or a DNA database of those accused and charged with rape. India has developed a draft Bill for such a DNA database and the Andhra Pradesh government even announced that it has signed up with a private agency for collecting DNA from all its citizens. 👉Concerns Based on experience in other countries, building such a database is not easy, does not ...