A Police Officer in an Assistant Public Prosecutor’s Clothing

I came across a strange provision in the Code of Criminal Procedure, 1973. Part of Section 25, which concerns the appointment of Assistant Public Prosecutors (APPs), reads as follows:

…(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case: Provided that a police officer shall not be so appointed—

(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or

(b) if he is below the rank of Inspector.

Yes, the appointment of a police official as an APP is an exception rather than the rule and yes, an officer involved in a case is not eligible to be a prosecutor as well. Even then, it seems stretching the bounds of propriety to have a provision such as this.

So many questions come to mind about this provision. How is it consistent with the principle of separation of powers? Can it be said with a high degree of certainty that an individual will not be conflicted between her loyalty to the police force to which she belongs and the responsibility she has been entrusted with as an APP? Is there such a lack of qualified advocates who can be appointed as APPs that this provision needs to exist? How often has this been utilised over the years?

On the last question, it would be a relief to know if, like several legal provisions, this one is seldom applied in practice. But even if it is never used, we need to take a long hard look at the continued existence of such language in the statute.

Let’s Elect Chief Justices?

The other day I was engaging in a favourite pastime of lawyers (and more recently, everyone else): complaining about the judiciary. In the discussion, my colleague and I bemoaned the way in which Chief Justices were selected. Whether it is for the High Courts and Supreme Court, the tenure of a Chief Justice is a lottery of fate dependent on three factors – the date on which judges are appointed, their ages and the age of the incumbent Chief Justice. Consequently, the tenure of a Chief Justice can vary from a few months to over a year. Which lead me to a thought – what if Chief Justices only served a fixed tenure of maybe one or two years? And why stop there? What if they were also elected by their peers and not merely appointed on the basis of age. Here are the immediate advantages:

  1. Master of the Roster
    As a judge, a Chief Justice is merely the first among equals, but the post of Chief Justice also confers extraordinary administrative powers. He gets to decide which cases get heard by which bench of judges – a decision that can swing the outcome of the case depending on the predilections of each judge. This power has been controversially employed recently and led to a public face-off between the senior most judges of the Supreme Court. Having judges elect their superior could not only help select a better candidate, but more importantly provide at least some mechanism of accountability. The added bonus is that it would give the Chief Justice a sense of legitimacy that would ward against public press conferences by his juniors.
  2. Merit
    Age is to judges, what height is to footballers. Classical convention holds that the more you have the better, but Lionel Messi and the last decade of the Spanish football team shows that it is not a necessary precursor to success. This is only compounded when you factor in that the primary role of a Chief Justice is to be an administrator – something which very few judges have expertise in (whether experientially or through formal qualification). Allowing judges to elect Chief Justices would thus better ensure that a more suitable candidate is found. I should clarify that the proposal is for the election of Chief Justices from a pool of judges already sworn in. The appointment of judges to the court itself would remain untouched.
  3. Continuity
    The advantage of a fixed tenure is that it guarantees an opportunity to affect change. If they are only going to be in office for a couple of months a Chief Justice won’t try to do much. This can have a significant impact on the functioning of the court – the Chief Justice gets to determine the priorities of the court through his role as the chief administrator. Guaranteeing a minimum time to do work would allow Chief Justices to do the meaningful work of adapting the court in a period where the world is going through mass transition.

These are just a few of my initial thoughts. The idea requires a lot more consideration before it can be described as reasonable; an examination of the political economies it could create is an obvious starting point. Another would be its legality or constitutionality, but given that there is a general consensus that the process of judicial appointments is in need of reform (which would require constitutional amendments) it shouldn’t be too hard for this tweak to piggyback on those efforts.

US Congress should bring in legislation on Taiwan Issue!

The naming issue of Taiwan is heating up between the US and Chinese governments as the deadline approaches in China for airline companies to comply. The Chinese government has asked airlines to remove any reference to Taiwan as an independent country and address it as Taiwan, China. Many international airline companies have already made the change, and US-based airline carriers are the only major holdouts, as they seek clarity from the US government. The US government has already called it ‘Orwellian nonsense’ and is in consultation with its allies such as Australia and UK on the issue.

The solution for this is for the US Congress to bring in legislation on the issue, and debar the US-based airlines from changing the name by law. This issue has blown up way beyond China’s regular diktats against private companies, and should be challenged by the United States and its allies.

Not only that, the US Congress should force by law, the Chinese airline carriers to list Taiwan as a separate country on their international websites in a tit for tat measure.

Obviously, there will be economic consequences for US airlines for not toeing the Chinese diktats, but by bringing in US laws on the naming issue, Chinese airlines will also suffer. Furthermore, if Chinese airlines do cave into the naming of Taiwan as a separate country on their US and international websites, it will be tacit acceptance of the status quo by the Chinese government since most of them are state-owned enterprises!

This kind of retaliatory measure will hopefully put some sense into China to steer clear of the naming issue in future.

 

Wanted – A Solicitor General for India

I found out today that India has not had a Solicitor General for the past seven months. The last Solicitor General, Ranjit Kumar, resigned from the post in October of last year.

The Solicitor General is the second highest ranking legal advisor to the government, only below the Attorney General. While the post of a Solicitor General is not a constitutional one like that of the Attorney General, a person appointed to it still performs a very important role. It is necessary for the government to be well-represented so that the strictest legal scrutiny and defence is made possible for its own policies. At present, the Additional Solicitor Generals are bearing the responsibility of representing the government in important cases. This status quo is not ideal.

Such dithering over an appointment to the role does not reflect well on the Appointments Committee of the Cabinet (AAC), the body responsible for filling the vacancy. One can only hope that an appointment to this important position is made sooner rather than later.

Categories Law

Flower Power, at 50

The first rock musical, HAIR, opened on Broadway in 1968.


It captured the spirit of Hippiedom with the exuberance of protest, inspired lyrics, and the shock value of a nude scene. It ran on Broadway for 4 years, in London for 5, and was adapted into a film by celebrated movie director Milos Forman. A generous cousin gifted me the double album set of the soundtrack, and its songs deeply informed my teenage years.

Ten days ago, I got to see a traveling production of Hair in Munich, and I had this strange sense of traveling into the past to look at the present.

Hair was a protest against the Vietnam war, and the draft; a plea for love, peace, and clean air.
 
It was a paean to the solidarity of youth, to the joys of sex – of all kinds, and free love.

It was a celebration of drugs.

 
And, yes, to the freedom to wear your hair long.
 
In the context of the late 60s, the demands that Hair made of society were truly fringe. And yet, its appeal, which was quite unprecedented, could be seen as a pointer to how widely change was sought.
 
5 decades later, so much of that change has been wrought, particularly in the US.
 
Though wars may still rage across the world, annual deaths have trended vastly down since the late 60s, and Max Roser has an amazing set of graphs (https://goo.gl/images/ZtP9wY) to show the changes. And draft, a central theme in Hair, was removed in 1973.
 
‘Free’ Love, meaning sex outside of marriage, barely merits mention today; same-sex intercourse, and marriage, have wide-spread acceptance, and increasingly, legal sanction. In June 2016, President Obama dedicated the Stonewall Monument in Greenwich Village, Manhattan, to honor the LGBT rights movement. In November of that year, Kate Brown became the United States’ first openly LGBT person elected Governor.

During World War II, smog in Los Angeles was so bad that people suspected a Japanese chemical attack. But the US Congress enacted the Clean Air Act in 1970, and progress has been rapid. California is still vulnerable to forest fires and thermal inversion, but air pollution in the US is not a major public health hazard. Meanwhile, 14 of the world’s most polluted cities are in India.

And drugs? 64 % of American citizens support the legalisation of marijuana. In 29 states, you can smoke it for ‘medical use’. And legal annual marijuana sales crossed 10 billion dollars in 2017.

Long hair? Man-buns is now a thing.

I don’t want to make too much of a point of this, but I was really struck by how the performing arts can anticipate change, and, perhaps, just perhaps, influence it.

Free Speech Then and Now

The right to freedom of speech and expression under the Indian Constitution is not an absolute right. A cursory look at Article 19 (2) reveals there are no less than eight broad restrictions that can be imposed on a citizen’s right to free speech and expression. It states that a law will continue to be valid

…in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

I revisited this article recently after encountering a fascinating passage in the Law Commission Report on hate speech. This passage notes the wording of one of the very first versions of this provision, which said that the right would be subject to the following proviso (this proviso was, in fact, dropped when the freedom clause was introduced during the Constituent Assembly debates):

Provision may be made by law to make the publication or utterance of seditious, obscene, blasphemous, slanderous, libellous or defamatory matter actionable or punishable.

Here are a few thoughts I had on this:

One, we seem to have more restrictions on this right at present than were originally proposed. The Constituent Assembly debates and a few subsequent cases and amendments hold the key to understanding the circumstances behind such expansion. It would be fascinating to further study this evolution.

Two, it is encouraging to see that obscenity and blasphemy did not make the final cut. But this is tempered by the existence of decency and morality in the article as it exists today. We could do with thicker skins in this country.

Three, should defamation have a place as a reasonable restriction, particularly when recourse in the form of civil damages is available? The continued existence of criminal defamation in the rule books points towards the shortcoming of this status quo.

What Came First – The Tech or the Reg?

John Frank Weaver, in a 2014 blog post on Slate, argues that it is best to bring in laws to regulate future technology. His reasoning is that when technology begins to unravel, it does so at an exponential speed, making it almost impossible to regulate once this event happens. Instead, Weaver proposes that regulations should already be in place before a new technology is developed, so that it always stays ahead and wary of these speedy developments.

Precautionary as this approach might be, it is more likely to wreak a whole lot of havoc instead. It is undesirable to pass laws before the subject matter to which it would apply even comes into existence. In doing so, we might end up doing more harm than good, creating more obstacles than enabling the prevailing ones being solved organically.

Regulating technology minutely from the get go is inefficient and ineffective. Firstly, it is very difficult to say exactly which direction tech is going to proceed in. We do not know where the next big innovation, next “disruption” is going to come from. By creating a regulation well before it is time to do so, we might end up passing a law which either becomes redundant in the face of unexpected technology or worse, ends up creating a mess of an ecosystem which would have flourished otherwise.

Also, laws are enduring and it takes a lot more time and effort to undo them later. So, it would make sense to regulate things at the margin – beginning with technology that is already existing today, or an innovation on the horizon which poses concerns that are easy to imagine and to solve. For instance, it is easier to regulate a technology concern such as data protection in digital advertising than, say, artificial superintelligence.

The “regulating at the margins” approach is more desirable also because it is bound to contain useful stipulations. It also allows companies, regulators and individuals to adapt themselves to the new legal framework and to rectify their concerns quicker and more effectively.

This has the added benefit of being an innovation-friendly environment – stepping in when needed, but otherwise giving technology a defined, safe space through which it can progress.

 

 

Namaaz, public spaces, and religion

Over the last couple of weeks, the practice of namaaz in the open spaces of Gurugram, Delhi’s southern neighbor, has become a deeply contentious affair. Hindu vigilante squads heckled and intimidated the worshippers till they dispersed.

When civil rights groups brought the matter to the Haryana government, Chief Minister Manohar Lal Khattar was quoted by NDTV as having said, “it wasn’t right to pray in open spaces.”

“If there is shortage of places for offering namaz, it should be done in personal spaces, inside homes,” Mr Khattar added.

I agree with Mr. Khattar. Religion is a private affair, and should have no demand on public spaces. I hope he holds to this view during the kawariya season this year.

Every July, millions of observant Hindus spill onto the streets of north India, ferrying water from the Ganga, at Hardwar, and at Garh Mukteswar, to their homes in Uttar Pradesh, Rajasthan, and Haryana. Recent estimates put the number of water carriers, called ‘kawariyas’, at 32 million. Governments of the northern states, including Delhi, through which many of the busiest routes pass, make extensive arrangements for the welfare and security of these pilgrims.

Roads – sometimes entire highways – are blocked, schools are closed, law and order becomes sensitive, and meat shops are shut down for fear of offending religious sentiments.

Here are some news clippings of the impact that the kawariya season has on public spaces and private lives every year:

“We found that the entire Delhi-Hardwar highway was closed to non-pilgrimage traffic. Our bikes went so fast it felt we were going to take off! On the way, there were places for us to rest and eat – all free!

Business Standard, August 10, 2013

“The Ghaziabad administration on Monday declared a seven-day holiday for all educational institutes located along NH-58 for the ongoing kanwar yatra. Schools, colleges, and management and engineering institutes along the highway will remain closed till August 1. It’s the first time such an order has been issued in UP for kanwar yatra. “The order is applicable to all types of educational institutes,” district magistrate Nidhi Kesarwani told TOI.”

Times of India, July 26, 2016

“Huge force would be deployed along NH-58 for people’s security and also to maintain the traffic. A large number of policemen in civil clothes will also be among the Kawariyas.” Inspector General, Police, Meerut range, Uttar Pradesh.

India Today, July 31, 2015

Besides this, all meat shops on the Kanwar Yatra route in the Ghaziabad district have been ordered to remain closed. All eateries on the route have also been instructed not to display non-vegetarian dishes till Maha Shivratri celebrations on July 21.

Financial Express, July 10, 2017

The Kennedy-Klobuchar Bill – Updates from a Post-Zuckerberg Congress

(This post is part 1/n of what’s happening in the US Congress post the Zuckerberg testimony.)

If (like me) you spent hours watching Zuckerberg testify before the US Congress, then you’d remember how several legislators promised Facebook they would be tabling bills to regulate social media.

Well, it’s just over two weeks after Zuck’s testimony, and the first such bill is already tabled before the Senate. Sponsored by Democrat Senator Klobuchar and Republican Senator Kennedy, the Social Media Privacy Protection and Consumer Rights Bill, 2018 centers around important principles of user consent and compulsory breach notification.

The bill stresses on drafting the terms and conditions in simple English so that users know exactly what data the website wants to collect, store and process. It also puts the ball back in the user’s court by allowing her to delete her social media data once she becomes aware of a breach.

Well-intentioned as it is, it looks like the Kennedy-Klobuchar bill retains a “Take It or Leave It” binary. It proposes solid user protection and rights, but most of them are squarely based on the power of the data collector to provide only two polar options to the user – to opt-in to its terms, or to opt-out of the platform completely.

If you’ve been so bored that you’ve read your favourite app’s terms and conditions, you will know that several of them today are a binary.

These are called “Take it or Leave It” clauses – so, if a user does not agree to a particular clause her only option is often to not sign up on the platform at all. While this provides simple, easy to understand options to the user, it is also a problem because it may make the user accept terms she is unhappy with. This is why, one of the suggestions data privacy advocates make is that companies collecting data devise smarter, non-binary ways in which the user is assured while still making their platform available to users.

Simplifying these terms and conditions, while still allowing the user multiple options other than to “Take It or Leave It”, as well as being a fast moving service provider at the same time is bound to incredibly tough for the social media company. The good news is, there are some effective ways to do that. However, as the Kennedy-Klobuchar bill rests on the correctness of this approach, its impact is automatically limited.

That said, the Kennedy-Klobuchar bill is an otherwise significant proposal. It looks out for the user by making the data collectors responsible for communicating terms and conditions in a simple manner.

The nerd in me is super excited to do a clause-by-clause breakdown of the bill, but until then, here are some neat summaries of what it talks about:

Senate privacy bill gives Facebook what it asked for.

Senators introduce bipartisan internet privacy bill.

No sermons, no carrots, only sticks

The Reserve Bank of India on April 6th prohibited banks from:

dealing in Virtual Currencies or from providing services for facilitating any person or entity in dealing with or settling Virtual Currencies.

This is not strictly a ban on people from mining bitcoins or possessing them. Perhaps, it’s not even possible for RBI to enforce that ban given the decentralised nature of cryptocurrencies. Nevertheless, prohibiting banks from dealing with any cryptocurrency is symptomatic of how quickly governments resort to blunt policy instruments in India.

Carrots, Sticks, and Sermons has a wonderful classification of policy instruments. It argues that any government primarily has three policy instruments available to it: information (moral suasion, transfer of knowledge, communication of reasoned argument, advice, and persuasion etc), economic instruments (grants, subsidies, charges, fees etc), and regulation (absolute bans, prohibition with exemptions, obligation to notify etc).

Now, which of these three policy instruments should governments choose? The book has this to say:

All other things being equal, in most cultures at least, the use of coercive power is more alienating to those subject to it than is the use of economic power, and the use of economic power is more alienating than the use of information and exhortation. Or, to put it the other way around, exhortation and information tend to generate more commitment than economic instruments, and economic instruments more than regulatory instruments.

The book says that even politically, it is rewarding if these three instruments are applied in a sequence:

politicians have a strong tendency to respond to policy issues (any issue) by moving successively from the least coercive governing instrument to the most coercive. The idea is that over time a policy problem is tackled in three different ways: first by the provision of information such as uttering a broad statement of intent, subsequently by the application of selective incentives, and lastly by the establishment of regulations accompanied by the threat of sanction. The underlying notion is that in solving social problems the authorities employ instruments of increasing strength in successive stages.

But is this order followed in India?

It would take a thorough study to investigate this. But if the regularity of prohibitions is taken as an indicator, it appears that even if this order is adhered to, the predilection in Indian policymakers is to pick the coercive option fairly quickly. And this says a lot about India. It can be taken as a proxy for how liberal political philosophy is stillborn in India. A liberal society would default to a minimal constraint principle – cause as less trouble to the populace as possible. Policy instruments are ends in themselves as they determine the style of policymaking in a polity. So, a high number of bans and prohibitions indicates that at the margin, greater government control is the default in India. Seen through this lens, the RBI note does not surprise.