An Independent Judicial Enquiry is needed: Parakala Prabhakar

 

India Supreme Court on Reservations in Promotions

 

BCCI monopoly and judicial review

Suhrith Parthasarathy in The Hindu

By controlling competitive cricket in India, with minimal regulation, the Board of Control for Cricket in India has enabled itself to encroach upon constitutionally guaranteed civil liberties

The Supreme Court of India, in holding that the Board of Control for Cricket (BCCI) in India is bound by the rigours of public law, in a landmark judgment on January 22, may well have helped steer cricket administration in the country into a new age of greater accountability. In recent years, the BCCI has suffered an enormous loss of credibility. Its management has been riddled with several cases of egregious conflicts of interest. And the Indian Premier League, organised under the Board’s aegis, has become renowned for its wanton excesses. As a result, any trust that was reposed in the Board by the public has over the last decade been completely obliterated. Viewed intuitively, the Supreme Court’s intervention certainly seemed necessary to restore “institutional integrity” to the management of cricket. Counter-arguments, however, abound. In spite of the BCCI’s quite palpable maladministration, many appear to see the court’s verdict, which seeks to imbue in the Board a more onerous public responsibility, as an improper exercise of powers of judicial review. Although these arguments can appear pedantic, they also carry particular jurisprudential weight. Critics say, as the BCCI argued for itself, the Board is merely an exclusive society governed purely by a set of by-laws, which are in the nature of a private contract between an elite set of members. According to the BCCI, it owes an obligation only to those members that subscribe to its by-laws; and even these obligations are restricted by the nature of the responsibility imposed therein.

Outside statutory control

In the case of other private societies, such a contention would typically be valid, as most such entities generally derive their authority solely from contract. But concentrating only on the source of a body’s power can lead to gross distortions. This is especially so in the case of the BCCI, which operates in a nebulous space outside statutory and constitutional control, but nonetheless wields enormous monopolistic power. In completely controlling competitive cricket in India, with nearly no regulation whatsoever, the Board has appropriated unto itself a unique ability to make substantial encroachments into civil liberties guaranteed by the Constitution. It can certainly affect, for instance, free of all checks and balances, the rights of Indian citizens to participate in games of cricket, with a view to ultimately securing employment as a cricketer.

Public bodies in India are generally held accountable through a process known as judicial review. Originally, under English Common Law, principles of which have been substantially adopted by Indian laws, the Crown possessed a discretionary power to issue “prerogative writs.” These were extraordinary orders directing the behaviour of different wings of the government, including inferior courts and public authorities. Through this power, which was subsequently transferred to the judiciary, the courts sought to impose a high standard of transparency, reasonableness and proportionality in action on public authorities.

In India, the Supreme Court and the different State high courts have been vested with a similar power to issue writs through Articles 32 and 226 of the Constitution. Article 32 grants a person the liberty to approach the Supreme Court directly when his or her fundamental right has been violated. Ordinarily, this relief is available only against the “State” (defined in Article 12 to include “the government and Parliament of India, the government and the legislature of each of the States, and all local and other authorities within the territory of India or under the control of the Government of India.”) Article 226 affords a wider relief. It allows a person to approach a high court seeking a writ against any person or authority for any purpose.

Each of these articles has been the subject of substantial debate by the Supreme Court. In the case of Article 12, the court has held that it is only those bodies that are created by a statute, which enjoy their own lawmaking powers, and are pervasively dominated — financially, functionally, and administratively — by the government that can be described as a “State.” Practically, what this has meant is that private bodies, even if they were capable of invading fundamental rights, through acutely entrenched processes of discrimination, would not be held accountable for such violations. Even Article 226, which grants the high courts the authority to issue writs, has been circumscribed to include within its jurisdiction only those authorities that perform overwhelmingly public functions. But even these bodies would not be bound by many of the fundamental rights— such as the right to equality — but would be governed only by other constitutional and statutory rights specifically guaranteed against them, and the more general common law principles of reasonableness and fairness in administrative action.

Inroads into fundamental rights

The question of whether the BCCI is “State” for the purposes of Article 12 was already conclusively determined in 2005 by the Supreme Court in a case initiated by Zee Telefilms Ltd. Here, a five-judge bench found that the BCCI was not an instrumentality of the State, and was therefore not subject to most of the fundamental rights guaranteed by the Constitution. This also meant that petitioners aggrieved by a decision of the Board could usually not approach the Supreme Court directly for relief. What the ruling ignored however is the fact that some private authorities, such as the BCCI, which exercise public functions independent of governmental regulation, could use their monopolistic position to make critical inroads into fundamental rights, particularly by curbing access to livelihood or to a public resource that citizens are ordinarily entitled to use. The danger in such an approach was, in fact, recognised as far back as in 1787 by Lord Chief Justice Hale in his treatise, De Portibus Malis, where he wrote that when private property is “affected with a public interest, it ceases to be juris privationly.”

Therefore, in the recent litigation initiated by the Cricket Association of Bihar, the Supreme Court, although bound by its earlier decision in Zee Telefilms, is correct in holding that the BCCI is amenable to judicial review under Article 226. It now becomes incumbent upon the Board to act with a sense of fairness and equity, and to ensure that it does not abuse its dominant position.

Some fear that this decision of the Supreme Court would open up the floodgates, bringing a number of societies and other such private associations within the courts’ powers of judicial review. But, as the English barrister Michael Beloff once wrote, “It is an argument, which intellectually has little to commend it… For it is often the case that once the courts have shown the willingness to intervene, the standards of the bodies at risk of their intervention tend to improve.”

Common law has historically imposed a duty on those exercising powers of monopoly — whether self-arrogated or through governmental intervention — to act fairly and reasonably. Our courts must now extend this rationale to hold not only the BCCI accountable, but also other such private associations, which in exercise of monopolistic powers, impinge upon the citizenry’s most basic civil liberties.

Why the SC’s 377 verdict is actually a boon for the gay community

Jai Anant Dehadrai in the Times of India

Section 377 of the Indian Penal Code that criminalises homosexual behaviour is an archaic and cruel remnant of our colonial past, which ought to have been struck off from the penal-code decades ago. There are no two views about this.

But the question is, struck off by whom? Let us step back and assess the facts.

The Supreme Court’s verdict has left the LGBT community agitated and deeply hurt. Their expectation was that the Court would uphold the Delhi High Court’s verdict, which held Section 377 to be unconstitutional. To their dismay, this unfortunately did not happen.

The community has waged a painfully long battle against the extreme prejudice and cruelty they face in our society. Quite admirably, this fight for respect and equal rights has always been peaceful and dignified – never marred by the mindless violence that accompanies most ‘protests’ in India. No lives were lost. No buses were burnt. No riots were reported. Even post the verdict, the community assembled peacefully at Jantar Mantar, wearing black clothes as a mark of their disappointment.

In the immediate aftermath of the judgment, social activists and civil-rights lawyers have come out in unison criticising the Supreme Court. They are of the view that this verdict has stunted their efforts to bring equal rights for the Gay community. Some have even gone on to say that this decision, in one sweeping stroke, “has taken back the fight 100 years.” Senior lawyers, who shall not be named here, have also openly questioned why the Court “missed a crucial opportunity for reforming a societal prejudice.”

But the underlying message in Justice Singhvi’s 25 page judgment appears to have been lost in the din of voices competing to denounce the verdict. Some have termed it medieval and even immoral. But absolutely no one has challenged its legality. It is absolutely crucial that we uncover this subtle truth that we’re all missing.

For a truly lasting and meaningful change, the gay and lesbian community must realise that their means must justify the righteous end they seek. Had the Supreme Court struck down the offending Section of law and played to the galleries, the victory would merely have been a pyrrhic one. The community would have lost the ethical high-ground in their quest for respect and equality.

Here is why.

Simply put, the judiciary has no business to enter into the realm of law-making or policy formulation. It is only because our elected parliamentarians have been so busy doing everything else apart from their jobs, that the Supreme Court is forced to interfere and protect the common citizen. This sad trend has become so pervasive, that now we’ve come to expect it as the norm. This is absolutely unconstitutional and against everything Ambedkar – the original champion of civil liberties, stood for and fought for. Justice Singhvi’s judgment is a loud wake-up call for the entire country – reminding us that elected representatives sitting in Parliament on tax-payers money are tasked with the responsibility and authority to make or amend laws. Relying on the Supreme Court to decide these legislative and policy matters is akin to us giving a free pass to our politicians who would rather shirk their responsibilities than take hard decisions. 

The Supreme Court via this judgment has correctly shifted the spotlight onto our legislators and their shameful lethargy to evolve our legal systems. IPC 377 must certainly go – but it is the Union Executive which must rise to the occasion and effectuate this change. It is indeed shocking to hear national politicians like Rahul Gandhi  criticise the Court’s order – when it is in fact the job of his government to take the initiative and scrap the law. I am surprised that we’ve blinded ourselves to this obvious political hypocrisy.

We, as Indians ought to be grateful for a judge like Justice Singhvi, who displayed staunch moral courage in the face of contrarian public sentiment to do the right thing. His reasoning does not comment on the merits of the case – which is clear as day that the law ought to be changed by legislators. The judgment of the Delhi High Court completely ignored the doctrine of separation of powers between the organs of government, which frowns upon unnecessary judicial activism by over-eager judges.

Parliament must take into account the genuine grievances of the LGBT community and not only repeal this draconic penal provision but also put into place a policy framework to protect the rights and dignity of this crucial component of our society. 

Like Gandhiji said, ‘the means must justify the ends.’

Politicians who demand inquiries should be taken out and shot

From Stephen Lawrence to Bloody Sunday, an inquiry serves as the establishment's get out of jail free card

• 
• • Simon Jenkins
  • The Guardian, Tuesday 25 June 2013 20.30 BST

Neville Lawrence, Stephen Lawrence's father, at a press conference responding to the publication in 1999 of the report of the Macpherson inquiry into the Stephen Lawrence killing. 'The call for yet another inquiry into the Stephen ­Lawrence murder – by some counts the 17th – must make it the most interrogated death in history.' Photograph: Sean Smith for the Guardian

There should be a public inquiry. Indeed there should be a judicial inquiry, a veritable "judge-led" inquiry. Into what? That does not matter. An inquiry has become the cure-all for any political argument. Whether the subject is a dud police force, a dud hospital, a dud quango or a dud war, only a judicial inquiry will atone for wrongdoing and do penance for public sins.

An inquiry defers blame. It throws the ball into the long grass and kicks the can down the road. This week's call for yet another inquiry into the Stephen Lawrence murder – by some counts the 17th – must make it the most interrogated death in history. As withBloody Sunday and Hillsborough, a British scandal is measured not in deaths but in juridical longevity.

Politicians who demand inquiries should be taken out and shot. In almost every failure in a public service – run by or regulated by ministers – we know perfectly well what happened and who was in charge. Guilt should lie at the top, or at some recognised cut-off point. An inquiry merely replaces the straight, sure arrow of accountability with the crooked line of pseudo justice. It is the establishment's get out of jail free card.

For a minister to set up an inquiry – or his opponent to call for one – is like a bankrupt board of directors calling in consultants. The hope is that it may soften the line of blame, fog the argument, postpone the day of reckoning. A minister declares, "I have asked the distinguished Lord Justice So-and-So to leave no stone unturned." By the time he does, the minister prays he may have moved on. The furniture of blame will have rearranged itself.

Almost all public inquiries are nowadays political. In 1998 Tony Blair, eager to push forward his Ulster peace process, set up yet another inquiry into Bloody Sunday. The Saville inquiry became a scandal of judicial extravagance and delay (into which, of course, there was no inquiry). In 2009 Gordon Brown wished to take the heat out of the Iraq war before an election. He set up the Chilcot inquiry, now so dormant it can be of use only to scholars of latter-day Blairism. Two years later David Cameron, under attack for his links to News Corporation, sought a judge known to be eager for higher office and chose Lord Justice Leveson to investigate press ethics. From the resulting shambles Cameron escaped scot free.

In the Victoria Climbié inquiry of 2001, thunderbolts of damnation were hurled on to the heads of hapless social workers. Trials and inquiries cursed officials, police, councillors and local managers. Lord Laming's subsequent report came up with 108 recommendations, so many as to allow responsibility to disperse like seeds from a dandelion. When a minister says "we are all to blame", he means no one is.

The recent bevy of inquiries into the Staffordshire and Cumbrian hospital scandals has shone a mesmerising light on modern quangocracy. Highly paid officials with ill-defined jobs that are nothing to do with health argue over who said what, when and to whom. The row cannot save a single patient, while the resources diverted must jeopardise thousands. The salaries and fees roll on.

Government by retrospective inquiry is not government at all. It is a first rough stab at history. Its strangest feature is the deference shown to lawyers and legal process. All professions have their biases and the law is no exception. The sanctity of court process, important in trying a criminal case, is hardly relevant to the politicised context of a modern public inquiry. Judges, for good reason, do not speak the language of politics. As we can see from their hysteria over legal aid, they certainly have no comprehension of budgetary priorities.

Those attending the 2003 Hutton inquiry into the death of David Kelly found it an eerily legalised process. It led to a whitewash so unconvincing it had to be repeated, in effect, a year later by Lord Butler. The Leveson inquiry was likewise conducted as if it were a trial of the press for the mass murder of celebrity reputations. No attention was paid to the ethics of the electronic media, let alone to those of lawyers who were equally assiduous users of hacking services. The reality is that inquiries set up to get politicians off a hook usually do so by finding some other individual or group to hang on that same hook.

De Tocqueville remarked that the intrusion of lawyers into every corner of government meant that "scarcely any political question … is not resolved into a judicial question". A lawyer is to a modern politician what a priest was to a medieval one – someone on hand to help in a scrape, to dispense indulgence for wickedness.

If political accountability were truly a matter for judicial determination, parliament could pass laws and go home, leaving judges to decide on their efficacy. Everything could be rolled into one ongoing, everlasting public inquiry, to which every political upset could be referred for trial and execution. Parliament could be removed to the royal courts of justice with the lord chief justice as Mr Speaker.

We know what this would be like. We can see it today following the centralisation of town and country planning by Cameron's eccentric commissar, Eric Pickles. Local plans and decisions based on them have been superseded by Pickles's targets and instructions to his planning inspectors. This plays so fast and loose with local discretion that any planning application is worth taking to appeal. Planning is no longer a local function but determined ad hoc by Whitehall inspectors, followed by public inquiries and potential judicial review. It is not planning but financial combat.

As a result, planning is set to join immigration in the soaring total of judicial reviews. What was once a relatively smooth mechanism for deciding what sort of building should occur and where has become a judicial free-for-all (or rather costly-for-all). Expediting government through legal process is a contradiction in terms.

Democracy cannot work without a clear line between a decision and someone who can be held responsible. That means clear when the decision is taken, not clear to subsequent inquiry. Big centralised organisations such as the NHS stretch that line to breaking point. Public inquiries validate that breakage. They are a menace. Lawyers should stick to the law. Elected politicians who screw up should come clean and resign.

How many inquiries do we need?

By Andrew Gilligan in The Telegraph

8:50PM BST 21 Jul 2011

After the past three extraordinary weeks, do you know how many inquiries have now been spawned by the hacking scandal? The answer – unless I have missed some – is 13. As well as the Leveson inquiry, in two separate parts, there are: two criminal inquiries, Elveden and Weeting; two parliamentary inquiries, one now concluded, by the home affairs and media select committees; inquiries by the Independent Police Complaints Commission and the Inspectorate of Constabulary; a probe by the former parliamentary watchdog Elizabeth Filkin into relationships between the police and the media; an inquiry by the Met’s directorate of professional standards; a News International internal inquiry; a Press Complaints Commission review; and, finally, my own personal favourite: an inquiry into how the Commons security authorities can best interdict future supplies of shaving foam. All British scandals tumble eventually into farce. What a tribute to the information age that this one is toying with it already.

On top of all this, there is talk of further action by the Metropolitan Police Authority, the London Assembly, the Serious Fraud Office and HM Revenue and Customs. And that is without the inquiries likely to begin in America. Soon, I predict, there will be more people investigating the News of the World than actually worked for it, and the only official bodies not scrutinising the despicable crimes of the rogue Murdoch regime will be the Drinking Water Inspectorate and the Care Council for Wales.

Yet as the scandal begins to cede the top slot on the news, I sense that more and more people are asking: has
this gone too far? Four days ago, as John Yates, the Met’s assistant commissioner, was forced to resign, even the crime correspondent of the Guardian, the paper whose admirable journalism and persistence opened the Augean stable doors, called the affair a “mad witch-hunt of a story” which had claimed “another decent copper”.

The danger of this extraordinary brood of inquiries is twofold. First, they crash against each other like dodgems in a rink. Witnesses are already refusing to answer questions because it might prejudice their case before other inquiries. Second, they will leave nobody in power or in the police with time to do their actual jobs – jobs that concern more important matters than phone hacking. John Yates ran Britain’s counter-terrorism effort, which has now been decapitated. Let us cross our fingers that no terror attack occurs while his successor is still learning the ropes.

Mr Yates, by his own admission, didn’t look carefully enough at the Guardian’s new allegations of hacking. But he did have the country to protect from al-Qaeda at the time. And as I watched him being attacked by that well-known pillar of virtue, Keith Vaz MP, as an “unconvincing” witness to Mr Vaz’s home affairs committee, I thought: I would rather have 50 John Yateses than one Keith Vaz.

Older readers may remember that while John Yates has been found guilty of nothing, Mr Vaz is the man who received one of the longest Commons suspensions on record – for actively obstructing, not just neglecting, an official investigation. On the day that Sir Paul Stephenson, Yates’s boss, resigned as Met commissioner after taking free stays at the Champneys health spa from a friend, Stephen Purdew, Mr Vaz appeared on television to praise Sir Paul for “accepting responsibility”. Mr Vaz neglected to mention that he, too, is a personal friend of Mr Purdew’s, attended his wedding, endorsed one of his other spas and has himself stayed at Champneys.

Throughout the crisis, too, a certain Alastair Campbell has been touring the television studios in his exciting new role as an apostle of truth and enemy of Rupert Murdoch. Mr Campbell has provided much amusement for politicians and journalists – but has the poor man not even an atom of self-awareness?

Last week, almost entirely unnoticed amid the Dresden-like firestorm, there emerged perhaps the most significant evidence yet about an earlier phase of Mr Campbell’s career. The Chilcot inquiry into the Iraq war published the testimony of a senior MI6 officer that “there were from the outset concerns” in the intelligence service about “the extent to which the intelligence could support some of the judgments that were being made” in Tony Blair’s famous WMD dossier. Note those words: from the outset.

What that shows us is not just that our worst fears over the dossier were correct. It also shows just how misplaced may be our hopes in the current slew of hacking inquiries. Over Iraq, there were a mere five inquiries – none, interestingly, operating under oath, though the hacking inquiry will. Clearly, the lies and misjudgments that caused the deaths of 150,000 people are not quite as serious a matter as journalists intercepting voicemails.

But the striking fact is that despite all those inquiries, last week’s potentially conclusive piece of evidence has only just come out – nine years after the dossier was published. We hoped that earlier inquiries would yield the truth about Iraq and punish those responsible. Broadly, they did not. They did reveal a great deal of valuable information but in their own findings, the inquiries glossed over that evidence, and held back from the conclusions it warranted.

Nor is that in any way unusual. Of course, some much-anticipated judicial inquiries do achieve what is widely accepted as justice. But many others have been, by consensus unsatisfactory – Lord Devlin’s 1950s inquiry into British massacres of the Mau Mau; Lord Denning on Profumo; Widgery into Bloody Sunday; Scott on arms-to-Iraq; and Hutton.

Still others, while less controversial at the time, have proved damaging: the last big inquiry into the police, Lord Macpherson’s into the death of Stephen Lawrence, wielded too broad a brush, painting the entire Met as institutionally racist. The destabilising effect of Macpherson’s judgment on force morale, and therefore on crime, was considerable. And inquiries can cost enormous amounts of money. The second inquiry into Bloody Sunday, by Lord Saville, lasted 12½ years and cost almost £200 million.

Inquiries do, of course, go down paths that can be deeply uncomfortable for everyone, government included. But broadly, each of these inquiries found more or less what the governments who set them up wanted them to find – that no one was wrongly killed on Bloody Sunday, that the Iraq intelligence had not been misrepresented, that the Met was insufficiently progressive and needed a kicking.

The various Iraq inquiries were additionally used by the Blair government, and its supporters, as ways of attacking its enemies. As a witness in them myself, and watching the grilling of my source, David Kelly, I developed a particularly low opinion of the partisan hectoring of the foreign affairs committee, under its Labour loyalist chairman Donald Anderson (a worthy predecessor of Keith Vaz).

It is quite clear what the Government wants this inquiry to find. Though press, police and politicians are almost equally at fault, Lord Leveson’s remit is simply to “inquire into the culture, practices, and ethics of the press”. Leveson has also been asked to investigate the “relationships between national newspapers and politicians”. But several anti-hacking campaigners and the lawyer for Milly Dowler’s family protest that there is no mention of officials and special advisers such as Andy Coulson and Alastair Campbell.

Leveson’s first task is to “make recommendations for a new, more effective policy and regulatory regime” on the press: in other words, how they should be forced to behave. As far as the police and politicians are concerned, however, he will only make recommendations for their “future conduct” – how they should merely be asked to behave.

Yet hacking was not a failure of press regulation. There already is a rather strong regulation against hacking people’s telephones – the law. And no future press regulator, however strong, could possibly have the power to kick down doors at newspapers, seize emails and question journalists under caution. Those are police powers – powers which the police had, but refused to exercise.

Over virtually every issue that judges have inquired into, it was the media that got more of the facts, more quickly, than any Lord Justice. Now, however, with regulation coming and the likes of Keith Vaz in the driving seat, getting the facts will be harder. Not for nothing is the phrase “judge-led inquiry” one of the scariest in the language.