A Sympathetic Justice Delivery System Part 3

In any Justice Delivery System the State is required to have a legal framework within which, the Judge shall have to work. One without the other would be meaningless and impossible. In almost all countries the judicial proceedings have become adversarial and though in very few branches they might be inquisitorial, simply reading the text of law cannot render justice. There has to be an authority duly appointed by the State, who while presiding over the proceedings, would collect true facts from the rival contentions and then apply the law with a view to come out with a verdict. This authority has been designated as a Judge.


The Institution operating for more than a thousand years, it is said, had acquired a recognised authoritative status among the Sovereign and the subjects during the early Roman times. According to the legal history in ancient Europe the law dates back as far as 3000 B. C. On a gaze at the past, the ancient Muslim historians claim that major legal systems had developed ages back with the well-recognised Islamic Law and Jurisprudence. The Aylesbury County Hall is said to be the oldest Court in England established in the year 1740.


In India, the JDS in its present form, owes its existence right from the Colonial Rule beginning with East India Company and the Crown Courts, a period during which Local Courts, the Courts of Appeal, Sudder Dewany Adawlats, the Supreme Courts at Calcutta, Bombay and Madras and then the Chartered High Courts at these Provinces came to be established, requiring the involvement of the persons well acquainted with law, to administer justice, while sitting in the chair of the Judge.


Every Judge duly appointed exercises ‘Judicial Powers’, the term being explained by Chief Justice Griffith in the matter of Huddart, Parker and Co. v. Moorehead [(1909) 8 CLR 330] which came to be approved by the Privy Council, in Shell Co. of Australia v. Federal Commissioner of Taxation (1936 All ER. Rep 671) requires a reference for appreciating the concept of the Judicial Power.


Chief Justice Griffith has said,

“Judicial Power means the power which every sovereign authority must, of necessarily have to decide controversies between its subjects or between it and its subjects, whether the rights relate to life, liberty or property. The exercise of this power, does not begin until some tribunal which has the power to give a binding and authoritative decision, (whether subject to appeal or not) is called upon to take action.”


“A Judge exercises Judicial Power not only when he is deciding suits between parties, but also when he exercises, ‘Judicial discretionary powers, which are properly appurtenant to the office of the Judge’, as held in Attorney General of Gambia v. N’jie [(1961) 2 All ER 504 PC] and Montfort Senior Secondary School v. Vijay Kumar [(2005) 7 SCC 472].


It is in the exercise of the Judicial Powers that a Judge has to work and write a judgment, which is the statement given by him, of the grounds of a decree or Order. As said in Balraj Taneja v. Sunil Madan [(1999) 8 SCC 396]:

“The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. But that has to be done by a Judge.”


Encyclopedia Law Dictionary puts this concept as:-

I        A Judge ought always to have equity before his eyes.

II       The Judge ought to decide according to the allegations and proofs, and lastly;

III     A Judge should have two salts – the salt of wisdom, lest he be insipid and the salt of conscience, lest he be devilish.


These are the expectations, born out of the juristic thinking and the traditional practice of the present day judiciary, of which a Judge is a face. He must be capable to work in a manner that would produce as a result, something if not everything, in the direction of the meeting with these expectations. A legal framework with all possible infrastructural facilities, would not serve any useful purpose in absence of a competent judiciary, having not only magisterial but sympathetic approach. This can best be understood from the words of Austin Blacstone, who writes a dictum, “The effect of the Laws depends upon the persons who address it upon the Addressed”


But this alone is not sufficient. A Judge is both expected and required to have certain other qualities also. Firstly, he shall have to be ‘an ethical persona’, a term that demands a person to be moral, humane, respectable, honest, decent and noble. Ethics prescribes and emphasises upon the Basic Principles of right action as it happens to be a Science of Morals. Sir Thomas Holland in his thesis ‘The Elements of Jurisprudence’ (13th Edition, Page 27), while distinguishing ethics from Nomology, propounds, “Ethics is the science mainly of duties, while nomology looks rather to the definition and preservation of rights.”


Ethics always travels with the virtue of knowledge. Without the adequate knowledge of the branch of the law in which he acts, a Judge would hardly be able to perform his duties demanded by his position. Rendering justice without adequate knowledge is always equated with a sailor on the high seas without a compass. Adequate knowledge on the part of a Judge, in the present day has become a sine qua non.


The Supreme Court of India has endorsed this essential in various pronouncements:


Justice K. Ramaswami in the State of Karnataka v. Appa Balu Ingle [(1995) Supp. (4) SCC 469] speaking for the Bench has said;

“Judiciary acts as the bastion of the freedom and of the rights of the people.”


Justice Pandian in The Supreme Court Advocates-on-Record v. Union of India [(1993) 4 SCC 441] expresses the views of the Bench thus;

“The judiciary under our Constitutional scheme has to take up a positive and creative function in securing Socio-economic Justice to the people.”


Justice Radhakrishnan in Micro Hotel (P) Ltd. v. Hotel Torrento Ltd. [(2012) 10 SCC 290] while describing the nature of the function of a Judge, has said;

“A Judge has to reason out truth from falsehood, good from evil, which enables him to deduce references from facts or propositions.”


The heavy responsibility lying on the shoulders of a Judge, anxiously noticed by the Supreme Court cannot be discharged, unless a Judge knows the law.


Equally important is the independence of the Judiciary collectively, and of a Judge individually. A number of forces are nowadays busy to encroach upon the virtuous space being held by a Judge. Politics, socio-economic persuasions expressed widely and loudly, the divergence resting on the basis of caste, creed, class and religion, do try to intervene in the judicial process. A Judge’s own thinking, his attraction towards his personal belief, likes and dislikes, bias and obsessions, his own desire to be known as either a populist or a strict judicial persona, a keen urge to make progress in his career and the resulting consequences do try to occupy the space in his thinking and verdicts. A Judge who is not independent and allows himself to be haunted by these forces would not be able to understand the feelings of others and to adopt a sympathetic approach towards them.


A Judge must be mindful of the fact that the litigants come to the Courts as a last resort as they know that the Courts, especially in India, are flooded with cases . Procrastination and costs are the two powerful deterrents obstructing their path to justice. They, therefore, must be treated with compassion and sympathy. Every care shall have to be taken to avoid unnecessary adjournments, which practice costs very dearly to them. The daily boards should be ‘adjusted’ as early as possible, to save the time of the litigants and to give more time to the Judge to hear the matters listed before him.


A sympathetic Judge must be a firm believer and practitioner of the principles of the Natural Justice. The Rules of Natural Justice are always present in the judicial conscience, but what is really required is their use and employment in the discharge of the day-to-day functions of a Judge.          He should not forget that the area to be occupied by these principles are    not something like a leased premises, which always remains static but        is both liable and free to expand its occupancy as per the demand of          the changing society. Wade & Forsyth in ‘Administrative Law’ (5th Ed. Page 470) have noticed that, “It has now achieved something like the    status of a fundamental right” under the Constitutions and Precedents, which are well-known in various countries, including India where the Supreme Court has ordained and reiterated in the cases of Maneka Gandhi v. Union of India [AIR 1978 SC 594], Hussain Ara Khatoon v. State of Bihar [AIR 179 SC 1369] and in Sheela Barse v. Union of India [AIR 1986 SC 1773] that the right to speedy trial is a Fundamental Right implicit in Article 21 of the Constitution. Looking to this importance of Natural Justice, a Judge would definitely be in search of a cautionary phrase, under which he should work. The Supreme Court of India in D. K. Yadav v. J.M.A. Industries Ltd. [(1993) 3 SCC 259] provides this by saying that, “In arriving at a decision the procedure adopted must be just, fair and reasonable.” In a rather terse language the Supreme Court of India in A. K. Kraipak v. Union of India [(1969) 2 SCC 262] has ruled that, “Any order passed in violation of the principles of natural justice is a nullity.” A Judge who forgets this basic understanding would not be able to be a learned Judge and later on a sympathetic Judge.


Natural Justice demands a fair trial which cannot be initiated without the notice to the other side, who must know that a judicial process has been initiated against him, and that the non-appearance by him personally or through his agent, would be to his own peril. A Judge should, as a first lesson, understand that there exists a principle called Audi Alteram Partem, meaning that, ‘hear the other side and hear both sides’, as no person could be condemned unheard. Banker v. Evans [(1850) 16 QB 102], affirmed in a plethora of decisions, lays down the Rule falling within the procedural law that, “No proposition is more clearly established than that, ‘a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the charge against him unless indeed the legislature has expressly or impliedly given an authority to act without that necessary preliminary’.” Thus a pre-decisional notice is a must in any judicial proceedings. Lord Hewart of Bury, the Lord Chief Justice of England writes in his renowned work ‘The New Despotism’, “Essential to the proper administration of justice, every party should have an opportunity of being heard so that he may put forward his own views and support them by argument and answer the views put forward by his opponent.”


But the rule of audi alteram partem, along with other rules, falling within the scope of Natural Justice have been subjected to two prominent exceptions namely, (1) Statutory or Constitutional; and (2) Urgency or Public Interest. A Statute can create an exception by providing a specific exclusion which shall have to be done by the use of clear, unambiguous and express language, leaving no doubt that it is meant for creating and in fact, creates the exception. The exclusion can be read in the Statute by necessary implication also. The Constitution can provide it by a specific exclusion clause. Article 311 of the Constitution of India, happens to be a classic example of the adoption of this methodology. This Article pertains to the dismissal, removal or reduction in rank etc. of the persons employed in civil capacities under the Union or the State. Article 311(2) mandates that such actions cannot be taken without an inquiry which should follow the notice of the charges and a reasonable opportunity of being heard. But the second Proviso to Article 311(2) enlists three situations wherein the non-application of the above said formalities has been provided for.


The presence of urgency of the matter or Public Interest permits the      non-observance of the Principles of Natural Justice especially at the         pre-decisional legal formalities, empowering the Courts to issue ad-interim ex parte Orders which could be ratified, rectified or recalled upon a bi-party hearing.


Fair hearing, which follows the due service of the notice to each of the parties, demands several observances. The parties should be given, as a matter of course, a reasonable opportunity of filing the pleadings, and in case of any party praying for the adjournment the same should be decided on merits. Keeping in mind the consistent trend of the Supreme Court of India, of allowing the amendment in the pleadings at any stage, subject to certain qualifications, a Judge should not be averse to the granting of the prayer for amendment, while remaining within the prescribed qualifications. The production of documentary evidence is a right of the litigants, not only at the initial but at other stages also, as the proceedings hardly rest with the pleadings and always call for the documents, which would substantiate the case of the litigant. Sometimes it becomes essential to call for the documents, especially from the Government records for the very same purpose. Here also the summoning of the witnesses becomes inevitable.


This would fall within the procedural law and the Judge who is sympathetic is required to act in a positive manner, conducive to real justice.


Next step for a Judge is to hear the case. This would include recording of the oral and documentary evidence and hearing the arguments of the lawyers, representing the parties. A sympathetic Judge would record the oral evidence in a manner befitting to his office. This should be done without unnecessary haste and utilising the words spoken by the witness, without any violence to the letter and spirit of the testimony. He has to appreciate the facts like caste and class of the witnesses, and their socio-economic and educational and cultural standards, with a view to avoid any misunderstanding or            mis-recording of the evidence.


The same qualities and the precautions are required to be taken, while hearing the arguments. A sympathetic Judge shall have to allow the lawyers to put forward their case. Asking questions for the better or complete understanding is always welcome, but that should not result in unnecessary interceptions or a war of words or wits. Traditionally the Judge, hearing the arguments in a civil case, takes detailed notes and keeps the same along with the Record and Proceedings, but in criminal trials the notes are required to be exhibited. A High Court or a Supreme Court Judge writes the minutes, affording the party feeling that a particular contention has not been dealt with in the Judgment, to move for speaking to the minutes.


Writing of a Judgment covering all the contentions and recording the findings on all the issues in clear and unambiguous words, often said to be ‘an art of writing judgment’ is a quality, which requires to be imbibed by a Judge to the extent that it becomes his habit.


A Judge is a human being and is entitled to have his own personal thinking, belief and opinions, but this very liberty, casts upon him a parallel obligation to be away from them, while discharging his judicial functions. This requirement sometimes is found lacking and speaks eloquently in the Judgment. Related to this obligation is his duty to be away from bias, hatred, or ill will towards any of the parties, as they are the hidden enemies which annihilate justice itself.


The same principles would apply while a Judge is called upon to utilise his discretion in granting orders at various stages. The discretion is required to be utilised in many cases, when only one party who has initiated the proceedings is before the Court. In case of urgency, the Judge is required to issue Ad-interim or Interim Orders, with a view to maintain the status quo. This is a juncture where the Judge is required to utilise his discretion in such a way as not to cause any harm, legal or pecuniary to either of the two sides but especially the persons who are not before the Court and would come only after the due service of the notice. During the entire proceedings, occasions would arise when the Judge would require to act on the basis of his discretion, though there could be two sets of advancement or propagation of arguments.


A Judge, who claims to be a part of a sympathetic JDS, while using his discretion at a pre-notice stage, has to weigh the pros and cons of the matter and has to be careful to notice where the balance of convenience lies, and who would suffer if no order were to be passed. He has to question himself whether it would be just to order the maintenance of the status quo or would it be just to shake that equilibrium and pass orders which would be helpful to the parties at that stage, and could be reviewed, ratified or lifted after the first hearing or further hearings in the matter.

Discretion in law always means that it is a judicial discretion. This discretion should not be allowed to go a little bit away from the cardinal principles of its exercise, which require it to be Judicial and in no circumstances arbitrary, capricious, whimsical or fanciful. Justice Wadhwa while speaking for the Bench in MI Builders (P) Ltd. v. Radheshyam Sahu [(1999) 6 SCC 464] has said that the judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. Justice K. Jagannatha Shetty in Lichhamadevi v. State of Rajasthan [(1988) 4 SCC 456] has observed that the judicial discretion should not be allowed to be swayed away by emotions and imaginations. Justice Dua in Akalu Ahir v. Ramdeo Ram [(1973) 2 SCC 583] speaks of the nature of the judicial discretion. He has said that, “Judicial discretion as has often been said means a discretion which is informed by tradition, methodised by analogy and disciplined by system.”


The newly added provision, Section 88 of the (Indian) Code of Civil Procedure, empowers the Court upon appearing to it, that in a given case there exist the elements of a settlement, to formulate the terms of a settlement, and after obtaining the views of the parties, to refer the matter for arbitration, conciliation, judicial settlement or mediation.


A Judge would find a significant scope to persuade the parties to adopt one of these courses by taking sympathetic and compassionate approach.


A Judge, much more a sympathetic Judge would make all endeavours to see that the cases before him are heard expeditiously, overriding all delays which could arrest the vice of procrastination.




While performing his judicial functions, a Judge should remember that as said by Cicero in ‘Roman Law’, “Law is the highest reason implanted in nature which commands those things which ought to be done and prohibits the reverse.”


This part could be concluded by quoting Coke and Socrates.

Coke has said that a Judgment given by an improper Judge is of no moment (10 Coke 76b).

Socrates has counselled Judges to “hear courteously, answer wisely, consider soberly and decide impartially.”

It appears that none of them was far away from defining the concept of a Sympathetic JDS.

A Sympathetic Justice Delivery System – Part 2

The Law 

In any justice delivery system, law acquires prominent significance. It is especially so in a system which is or aspires to be sympathetic. Ultimately it is the law which is to be complimented as the Courts and Judges address the law to the addressed.

Lawmakers and thinkers in different time-space, including Manu in India were tempted to imagine a society without laws and their implementers, which was a Utopian thinking, a fact which probably must have been recognised later on. A society without laws and their implementers could be imagined only in a society which is just and honest, and its members are conscious of the rights and welfare of others, rather than their own, which would diminish the scope of acrimony and disputes.

Hammurabi is said to be the earliest lawgiver, whose Code dates back to 1754, discovered by the archeologists only in 1901. Hammurabi has dealt with various branches of law like trade and commerce; master-servant relationship; family relationship, and the connected issues like marriage and divorce, and offences like theft and slender, and the slavery rules.

Manu is considered to be an early lawgiver of India, but his field of work was restricted to the personal laws of Hindus. Moreover, his righteousness also has been inquired into by making a reference to the works of Mr. Colebrook and Mr. Ellis. It is also noticed that his writings demonstrate a mix of the Rules of Law and Precepts. The Lords in Govindayya v Doraisami and others [(1887) 11 M.5FB] have pointed out the diversity and conflict of views in the works of Mr. Colebrook and Sir Thomas Strange, based upon the writings of Manu and other contemporary scholars.

Warren Hastings, with a view to provide a reference book for the English Judges administering Indian laws, got a compilation called Gentoo Laws translated from Persian to English.

With a view to appreciate the importance of law, one would like to read some of the Jurists, with a view to ascertain what the term law really means, one would be in search of an accepted definition of it. One should not get frustrated, because of the famous skeptical expression of Thurman Arnold, saying, “Obviously law can never be defined” which is corroborated by many. Lord Lloyd is of the same view when he writes, “Since much juristic ink has flowed in an endeavour to provide a universally acceptable definition of law but with little sign of attaining that objective.” Pollock has also concurred with such thinking by saying, “The greater a lawyer’s opportunities for knowledge have been and more time he has given to the study of legal principles, the greater will be his hesitation in the face of a simple question, “What is law?””

However, there are others, like Kant, Hegel, Austin and Salmond who have devised their own thinking to define the term. Kant has expressed himself by saying, “The sum total of the conditions, under which the personal wishes of one man can be combined with the personal views of another man, in accordance with the general law of freedom.” Hegel’s definition is simpler, when he says, “Law is the abstract expression of the general will existing in and for himself.” According to Austin, “Law is the aggregate of rules set by men as politically superior or sovereign, to man, as politically subject.”

According to Salmond, “Law may be defined as the body of the principles recognised and adopted by the State in the administration of justice.” Concentrating upon the Civil Laws, he says, “Civil Law is the law of the State or of the land, the laws of the lawmakers and the law of Courts.”

These four approaches towards the understanding of the term ‘law’ have more or less come to be acceptable in Jurisprudence.

The laws made by the independent countries stand on a different pedestal as compared with those of the countries ruled by a foreign sovereign or their de facto agents. When a country makes laws for its own citizens the predominant consideration is to give them good governance, which many a times lacks in the laws made by a foreign sovereign for his ‘subjects or natives’. Of course these laws are framed according to the needs of the government, but one finds classic examples where laws are framed for safeguarding the interest of the ruler, at the detriment and peril of the governed. This distinction is notoriously apparent in the laws enacted under the colonial rule in India. Some of the laws made by them are beneficial to the citizens, yet some others outweigh the benefits.

Some of the most beneficial Regulations or Enactments were The Sati Regulation Act, 1892; Act No. VII of 1870 (for the Prevention of the Murder of Female Infants); and The Champaran Agrarian Act, 1918.

The Sati Act, promulgated by Lord William Bentinck, with the support of Raja Ram Mohan Roy and the Christian missionaries, notably the three known as ‘Serampore Trio’ under Clause II, declares the practice of ‘Suttee’ or of burning or burying alive the widows of Hindus, illegal and punishable by the Criminal Courts. The Prevention of the Murder of Female Infanticide Act enabled the local governments to make and notify the Rules, which would prevent the performing of Sati. The Champaran Act, which was an outcome of the satyagraha led by Mahatma Gandhi, put an end to the widely prevalent practice of setting apart by the tenant, his land or any portion thereof, for the cultivation of Indigo, popularly known as “Teen Kathia” system recognised by the proclamations, deep rooted practice and usages. The situation was worse if not the same for the cultivation of Poppy and manufacture and export of Opium, all of which were regulated by the Opium Acts of 1857 and 1876, which came to be repealed by The Narcotic Drugs and Psychotropic Substances Act, 1985.

Other notable beneficial enactments were:

  • Act No. XX which removed all legal obstacles to the marriage of Hindu widows.
  • The Societies Registration Act of 1860, meant for the improving of the legal conditions of the societies established for the promotion of literature, science and the fine arts.
  • The Religious Endowments Act, 1863, which enabled the government to divest itself from the management of the endowments; and
  • The Hindu Inheritance (Removal of Disabilities) Act, 1928, which practically repealed the Scholastic Hindu Law relating to the exclusion of certain classes of heirs from inheritance on the ground of their personal disabilities. This exclusion, anyhow, was maintained for the persons suffering from lunacy or idiocy.

But the list and impact of the Regulations and Enactments, leaning heavily towards the establishment and against the people, are not small.

  • The Apprentice Act, 1850, ‘meant for better enabling of the children to learn trades and crafts’, provided for cruel punishments like solitary confinement, whipping and keeping the apprentice on bread and water for their ill behaviour.
  • The Act No. XXVI of 1870, ‘meant for amending the law relating to Prisons’, was utilised to reign terror over the prisoners by legalising the punishments like solitary confinement, corporal punishment of stripes of ratan not exceeding thirty, and confinement in irons for any term not exceeding six months.

This reading of the two sets of Enactments and Regulations would suffice to justify a clear distinction between the selfish legislative and administrative actions, and the beneficial enactments and orders which could bring social and economic benefits to the people of India.

Having studied these two sets of the legislative activity during the Colonial rule, it would now be apposite to study this activity by the Indian Legislature, after independence.

Article 13 of the Constitution of India read as a whole shows that it is both, retrospective and prospective in operation, as Article 13(1) declares all pre-constitution laws, insofar as they are inconsistent with the provisions, which guarantee the fundamental rights, shall to that extent be void. Article 13(2) mandates that the State shall not make any law, which takes away or abridges the rights conferred by Part III of the Constitution, and any law made in contravention of the Clause to that extent, shall be void.

But these principles suffered a jolt by Article 13(4) inserted by The Twenty-fourth Amendment Act, 1971, saying that nothing in the Article shall apply to any amendment of the Constitution, meaning thereby that the constitutional amendments shall not be circumscribed by the provisions under Article 13(1) and 13(2). After Golaknath (AIR 1967 SC 1634) the Legislature came out with The Forty-second Amendment, which inserted Clauses (4) and (5) in Article 368 mandating that no amendment (including the provisions of Part III) made under Article 368, shall be called in question in any Court on any ground, and that there shall be no limitation whatsoever on the constitutional power of Parliament to amend, by way of addition, variation or repeal the provisions of the Constitution under Article 368. But this amendment came to be subsequently struck down as being ultra vires, in the case of Minerva Mills Limited v. Union of India [AIR 1980 SC 1769].

In the post independence era, the Legislature was busy enacting new laws, amending the existing and sometimes codifying the scattered Rules of Law.

The Legislature, in consonance with the thinking of the Nehruvian and Indira Gandhi era, came out with laws protecting the less privileged section of the society. The policy in respect of the Agrarian Reforms inspired the States to enact tenancy laws to end the absentee landlordism and transferring the status of tenant to that of the owner, on paying a small amount to be paid in twelve yearly installments. The transfer of agricultural land to a non-agriculturist came to be banned. Looking to the smallholdings of land in the country, the States have brought in the laws for prevention of fragmentation and for consolidation of the holdings. The urban and the agricultural lands ceiling laws put a limit on the holdings, and surplus lands came to be made available to the landless. Unfortunately, years thereafter the urban land ceiling legislation came to be repealed.

The zamindari system also came to be abolished by the State Acts. Some of the States when required came out with Agricultural Debtors Relief Acts, safeguarding the interest of the debtors.

Under their laws, the States prepared and put in action the housing schemes. The State laws for the Industrial Development brought in the state level corporations, for establishing industrial estates, providing the unemployed masses with the opportunity to work and earn.

The codification of the Personal Laws with necessary amendments ameliorated the condition of women. This is more evident in the personal laws of Hindus. The Hindu Marriage Act, 1955, as amended in 1976 prohibits polygamy and polyandry; recognises monogamous marriage as the only valid marriage; declares the marriage with a person having a living spouse void; permits inter-caste marriages; enlists the grounds of divorce available to each of the spouses along with further grounds available only to the wife; and recognises the right of either of the spouses to move the Court for Restitution of Conjugal Rights, Judicial Separation and Divorce.

The Hindu Succession Act, 1956, makes the daughter of a coparcener governed by Mitakshara, a coparcener in her own right by birth, having the same rights in the coparcenery property, as if she is a son. Moreover, the concept of limited estate of Hindu widows has been given a complete go-by and she has been made an absolute owner. At the time of partition, in a Joint Hindu Family the coparcenery property is to be so divided, as to allot to a daughter, the same share as is allotable to a son. Under the Hindu Minority and Guardianship Act, 1956, though the mother is a second preferential natural guardian, the custody of the minor below the age of five years is ordinarily to be with the mother. The Hindu Adoptions and Maintenance Act, 1956, confer upon the Hindu female a right to adopt a child, either male or female.

Recognising that sustainable development is impossible without a well working eco system, the Legislature has come out with the Environment Protection Act, 1956, and the Air and Water Pollution Prevention Acts and the Rules framed there under, for the sustainable development to be made and maintained in the country.

The Consumer Protection Act (as amended by the Amendment Acts of 1991, 1993 and 2002) and the Rules framed there under, provide for the speedy and simple redressal of the grievances regarding the goods or services, by establishing a three tier judicial system, i.e. the Forums at the District, the State and the Central level. The Protection of the Human Rights Act, 1993, provides for the National and State Commissions and Courts for protecting the rights of the citizens related to life, liberty, equality and dignity, as guaranteed by the Constitution or embodied in the International Covenants.

The Union Government was not unmindful of the fact that, though under the British rule the Trade Union’s Act, 1926, the Workmen’s Compensation Act, 1923, and the Bombay Industrial Relations Act, 1946 were enacted; certain aspects in the field of labour laws were required to be taken care of. This thinking had resulted into the enactment of The Minimum Wages Act, 1948, providing for the fixing of minimum rates of wages in certain employments.

The Institutions of Provident Fund, Pension Fund and the Deposit Linked Insurance Fund for factories and other establishments came to be brought in, under the Employees Provident Funds Act of 1952. The Maternity Benefit Act, 1961, and the Rules framed there under, regulate the employment of women in certain establishments for certain periods, before and after the childbirth and provide the maternity and certain other benefits. The Contract Labour (Regulation and Abolition) Act, 1970, and the Rules framed there under, provide for the abolition of such a practice in certain circumstances.

The Arbitration and Conciliation Act of 1996, as amended by the Act No. 3 of 2016, should be seen as a classic example of the response to the expectation of General Assembly of the United Nations, to have the Arbitration Laws in all the countries in consonance with the model law prescribed by UNCITRAL, which would serve the purpose of speedy resolution of commercial disputes in India as the Alternate Dispute Resolution mechanism.

The global increase in the generation and use of nuclear energy and the acquisition of nuclear weaponry had required India to be a part of the Global Civil Nuclear Damage Compensation Regime, which goal could not be achieved because of the non-ratification of the CTBT and NPT; and of not being the signatory to the Paris and Vienna Conventions of 1960 and 1963 respectively. But the 1997 Convention on Supplementary Compensation for Nuclear Damage opened the doors of the global regime for India. This Convention has said that the countries, which are not the ratifying parties or signatories to these Treaties and Conventions, would be able to be a part of the Global Regime, provided they enact their own laws as per the annex of the 1997 Convention. It was in these circumstances that India has enacted the Civil Liability for Nuclear Damage Act of 2002, and has become the part of the Global Regime.

The Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, (which takes the place of the Act of 1894) and the Rules framed there under, is a milestone in acquisition legislation of India. The Act concentrates not only upon the compensation payable to the land owners but grants the collateral benefits of rehabilitation and resettlement of the displaced, over and above the minimum compensation, which is to be ascertained upon the relevant factors including the market value. The concept of obtaining the consent for acquisition of eighty per cent of the land owners and the compulsory social impact study, are the new features of the Act. Again, the acquisition could be for the use of the Union or State Governments and only for the enlisted public purposes. Most importantly there is a provision that the acquisition made earlier would lapse, if the land has not been put to the use for five years and the compensation has not been paid to the land owners.

The laws are made by the Legislature and not by the Courts, but yet we have seen the scope of the advancement of the Judge-made law. Vishaka & Others v State of Rajasthan [(1997) 6 SCC 241] provides the first incident in which the Supreme Court gives complete guidelines in the matters related to sexual harassment of women at work places. It has been said by the Supreme Court, that the guidelines would prevail till the Legislature passes the law in this respect. Later on the Legislature has enacted the Act of 2013 which would supersede the guidelines.

The Supreme Court pronouncement in Shayara Bano v Union of India [2017 (9) SCALE 178] under the majority view has held, that the Instant Triple Talaq is violative of Article 13(1) of the Constitution of India. It also lays down that the Muslim (Shariat) Application Act, 1937, which permits the Instant Triple Talaq is void and unconstitutional.

The Naz Foundation Trust had filed a Writ Petition in the Delhi High Court challenging the constitutional validity of Section 377 IPC, which penalises unlawful sexual acts against the order of nature. The High Court had recognised the plea of the petitioner. The Judgment came to be overturned by the Supreme Court in case of Suresh Kumar Koushal v Naz Foundation [(2014) 1 SCC 1]. But once again the Supreme Court in the case of Navtej Singh Tomar v Union of India [(2018) 1 SCC 791] has taken a different view saying that Section 377 IPC is violative of the rights of the citizens under Article 21 of the Constitution. This decision of the Supreme Court is said to be a step forward in the social life of the citizens, and is in consonance with the well-recognised global view.

The High Court of Delhi in case of Aruna Shanbaug was not prepared to accept the right of a human being to die, having the recourse of active or passive Euthanasia. This decision of the High Court came to be reversed by the Supreme Court in Common Cause v Union of India [(2014) 5 SCC 338].

This appreciation of the Laws framed under the Colonial rule and by the Legislature of independent India, manifests clearly, that some of the laws made during the Colonial rule were indeed selfish yet some others were clearly beneficial to the citizens of the country. These laws can be said to be sympathetic laws which takes into consideration the public good and the welfare of the society.

Such sympathetic laws would indeed be helpful in establishing a sympathetic justice delivery system, as they provide a room for the courts to interpret such laws and to accord the benefits there under, of course looking to the facts and circumstances of the case, a phenomena alien to the non-sympathetic laws.

This understanding of the good and the bad of the laws would justify the say that law is a basic constituent of a sympathetic justice delivery system. This part could be concluded with a wish, that the areas in which sympathetic laws are required to be enacted, are identified, and the requisite legislation is put in place.


Justice S. D. Dave

A Sympathetic Justice Delivery System- Part 1


The State

This series of essays is an effort to understand and appreciate the concept of a Sympathetic Justice Delivery System (JDS).

The JDS of any democratic country ought to constitute five components:, the State; the Law; the Judges; the Lawyers and the Litigants, working in their own fields, discharging the duties cast upon them, each different from the other whilst ultimately creating a cohesive machinery capable of dispensing justice. Each must function in tandem and with regard and respect for the other in order to ensure cohesion and continuity.

None of the five components can be undervalued or bypassed with a lesser understanding of it. Whenever they have been found acting in such an exclusive culture, their actions are found to be coupled with the disjunction of the institution of which they are a part.

In this four-part series, the focus will first be upon the State as a component of the JDS. The preference for purposes of study must first be allocated to the State for a variety of reasons. A democratic Country following the Doctrine of Separation of Powers in spirit, without saying so, is an important limb saddled with multiple obligations in a number of fields. It is within the responsibilities of the State to retain its integrity and sovereignty in the midst of competing claims being made by other powers and to provide its people with a stable and self supporting governance and ultimately to secure for them, a living and progressive society, less and less amenable to conflicts and insecurities. The State has to strive for better life living for the citizens and to secure the socioeconomic development of the country. Furthermore it is the State that provides support, help and administrative assistance to the other components. These are some of the justifiable reasons for dealing with the State as a component, before others. A final aspect on the matter of prioritizing the discussion on the State is with regard to the role of the State as the ultimate protector of the rights of the rights of the people and the maintainer of peace and equality in the society. All the prosecutions are in the name of the State and at the same time, the State is always under a statutory obligation to provide for the legal assistance to the persons being prosecuted by the State itself, before the Courts of Law.

Formation of the Three Institutions

Aristotle (384 – 322 B.C.) in ‘The Politics’ describes the three organs as the Elements. They are Deliberative, the Official and the Judicial. Thomas Hobbs (1588 – 1697) appears to be propounding the very same theory, though not in clear and easily appreciable words, in his three works ‘The Elements of Law’ (1640); ‘Decive’ (1642); and ‘Levithan’ (1651) where there is a Sovereign, and the Public Ministers meant for general as well as special administration, but some Ministers while in their Seats of Justice, representing the Sovereign, would decide the controversies of Facts or Law by their Judgments. John Locke (1632 – 1704) speaks of two powers, only the Executive and the Legislature. Charles Montesquieu (1689 – 1756), not agreeing with any of the three, propounds the theory of fear, where societies under the fear of inter se wars would recognise an Institution called ‘Government’, with a later development of the Doctrine of Division of Powers, the State being the main component. Jean-Jacques Rousseau (1712 – 1778) advances the theory of ‘The Social Pact’, where the societies under the fear of war, would bind themselves by certain Rules to be legislated and interpreted by ‘The Tribunate’. All this thinking has resulted into the formation of the three Institutions, the Executive; the Legislature; and the Judiciary.

A Sympathetic JDS

A Sympathetic JDS is a sine qua non for any democratic country, which believes honestly and sincerely, in upholding the Rule of Law as envisaged in its Constitution and in granting all its citizens the rights and liberties enshrined in it, without fear or favour, prejudice or bias. This objective cannot be achieved, in absence of an easy Access to Justice, which ultimately could result into a socio-economic structure of the society. But again such an access is of no avail, if all the components of the JDS are not sympathetic to each other, especially to the litigants.

The term ‘Sympathy’, having its roots in Greek and Latin, a combination of two words ‘Sun’ (with) and ‘Pathos’ (feelings), means the understanding of the feelings of others. A sympathetic approach cannot be cultivated unless a person or a group thereof, understands the feelings of the other components.

Understanding of the feelings of others with whom they are connected, whether in the family, in the society or in any institution where one is working, enjoys a place of priority because the society lives on with the basic principle – “Live and let others live”.

History has witnessed destruction of civilizations resulting from non-understanding of the feelings of others. On the other hand, understanding and respecting of the feelings of the fellow men have been helpful in creating a peace loving polity, where despite the differences, the people have been able to coexist without acrimony and to make all the possible efforts to achieve progress in different directions.

This understanding of the feelings of others is a much-needed environment for the creation of the Sympathetic JDS.

Before a JDS can successfully claim to be sympathetic, its five components, the State; the Law; the Judges; the Lawyers; and the Litigants, each having a each having a sympathetic understanding of the other, in fact, acts with this wisdom.

Role of the State

The State, as the first component, performs more than one role. It is up to it, to establish a sound JDS not only by creating the whole order, including sufficient number of Courts with the infrastructural facilities and the appointments of the Judges to man them, who appreciate and construe the laws and make them enforceable by their verdicts, remaining within the limits as prescribed by the Constitution, which, though not expressly indicating the adherence to the Doctrine of Separation of Powers, leans heavily towards it. This would be the first step towards the establishment of a sympathetic JDS.

Enactment of Laws is not as simple as it appears to be. It is the lawmakers that make the Laws, but the political which sets the machinery in motion, and to do so effectively, the State must for doing so the State must be aware of the needs of the changing society, especially when the Indian Constitution guarantees Equality before Law and Equal Protection of under Articles 14 and 15. Equal Protection implies the right to claim and achieve equal treatment, while situated in similar circumstances. The questions would be; how can you provide equal treatment to the un-equals? And would it survive the judicial scrutiny? These questions stand duly answered by the Supreme Court in Case of Reserve Bank of India v. Peerless General Finance and Insurance Company Ltd. [(1996) 1 SCC 642] by laying down that the treatment which appears to be leaning towards the un-equals is not liable to be struck down as discriminatory unless there is a simultaneous absence of a rational relation to the object intended to achieve by the law.

The other related question arises out of the same thought process. Would it be open for the State; i.e. the Executive and the Legislature; to recognise a classification and to work accordingly? The Supreme Court in Budhan Chaudhary v. State of Bihar [(1955) (1) SCR 1045] has said that what Article 14 prohibits is class legislation, and not a reasonable classification for the purpose of legislation.

Article 13(1) and 13(2) of the Indian Constitution, mandate that the pre-Constitution Laws would be void to the extent to which they are inconsistent with the Fundamental Rights, and that the prospective legislation should not be such as either taking away totally or abrogating them in part. The State should be aware of the fact that these constitutional essentials are required to be observed while initiating the law making process, which would ultimately help in building a sympathetic JDS.

The State, as a keeper of law, is the authority to prosecute the offenders. This requires honest and sincere investigation by the authorised agencies, the ultimate aim being to penalise the guilty and to safeguard the sufferers. Here is the scope for the State to be sympathetic to both the components so as to avoid, not only injustice but unnecessary delay and hardships also, which are conspicuous at every stage. Connected therewith is the duty of the State to establish and maintain the prisons which would allow the prisoners to live with human dignity and seize the opportunities for their reformation so that, when free they can live the life of responsible citizens. The same applies equally to the duties of the State to run Remand Homes and Shelter Houses. The Probation Officers also should be discharging their duties sympathetically. All this would be a step forward.

There are yet other avenues open for the State, to be sympathetic to the litigants. The State, as said by Sir Thomas Holland (Holland on Jurisprudence. 13th Edition by Universal Law Publishing Company Limited. Pages 387, 388 and 389) is a great Juristic Person having many Quasi Rights against individuals and Quasi Duties in their favour, and irrespective of the Doctrine of Eminent Domain, is a great landed proprietor having a right of servitude over the estates of the individuals, and subject to that, has to act for the benefit of such estates. Hence the State is supposed to be sympathetic to the Subjects, by not assisting the nonservitude causes.

The State is one of the biggest litigants and is entitled under Section 80 of the Code of Civil Procedure (of India), to a two months notice before instituting the suit, granting an opportunity to amend the State action. The State can also be a consenting party for the settlement of disputes outside the Courts, as contemplated under Section 89 of the Code. Thus, the State by rendering just and bona fide services in time and by adhering to their statutory powers and duties can minimise litigations in the over-flooded courts, and the costs of litigation to the litigants and the State as well.



A Case of The Trial

A review of Sadakat Kadri’s The Trial which looks at the history of the criminal trial from the days of Socrates to the trial of OJ Simpson.




“Each time a defendant comes to court and contests his or her guilt, a process unfolds that reiterates precepts that are central to the self-image of modern democracy.”

The law is reason, free from passion. Or so said Aristotle. The crux of Sadakat Kadri’s The Trial attempts to prove the opposite. Kadri’s ambitious book looks at the western criminal trial from the days of Socrates to the more recent trial of OJ Simpson. It traces the contours of law, and finds the interdependence of reason with passion, juxtaposing one with the other. Each chapter navigates a particular era, rummages through its social fabric and seeks to explain the evolution of the law. The book is divided into eight thematic and chronological chapters. Kadri explicates notions of fairness and justice, emotions and passions and correlates each to the society and its norms.

While modern criminal trials in western societies are considered secular, founded on reason, their existence has been shaped by religion and superstitions. Kadri tries to poke into these aspects in the first chapter, which looks at the conflict between the need to ‘punish’ and the fear of mistakes. The idea of the law “descending directly from the gods”, and hence the onus of its adjudication on them, is tacitly explored. Kadri uses the story of Oresteia, by Aeschylus – “The oldest courtroom drama” to reflect on the tension between the two ideas of justice that were at odds with one another. The first, assumptions that people were at fault only if they had done evil deliberately. The second, that some deeds demanded punishment, regardless of the perpetrators intention, if the rage of the gods was to be forestalled. Kadri then goes through the trials of the Greek and Roman eras, describing their rationale in detail. He mentions practices such as ordeal (drowning, freezing), combat, compurgation (proving innocence by making gathered crowds swear it) to carve out the idea of justice.

The chapters on The Inquisition (or orthodoxy revisited), The Witch Trial, and the Trials of Animals, Corpses and Things (even against weevils that threatened vineyards, and the “defunct decedents” who died before they could be called for their cases, but were tried after their death) are downright fascinating. They challenge every modern notion of rationality, and portray the banalities that societies across the world considered fair and legal at some point in their history.

The subsequent chapters delve into modern times, starting with the Moscow Show Trials. The chapter on the “War Crimes Trial” – rips the visage of idealism and justice with respect to international law, from the Nuremberg Trials onward. What Kadri calls a “shameful little secret of international criminal law” is the fact that “Nuremberg was conceived in Moscow and came into being despite the wishes of the western allies rather than because of them.” Kadri explains how the western Allied leaders “resolved to reiterate Churchill’s earlier proposals for extrajudicial killings. Stalin would be asked to approve a loss of “50–100… world outlaws” who were to be “executed summarily on capture and without recourse to the method of trial, conviction and judicial sentence”.

The last chapter dedicated to the Jury Trial looks at the modern Jury system and the role and significance of evidence. Kadri details how the Jury system has become a part of every country that saw the shadow of the British Empire, barring a few. He talks about it being a venerated system of justice in the US and UK. Kadri argues that jury trials outline perpetrators as ‘bad’, so as to define what is good. That in exposing criminals to a community denunciation, it reestablishes to the citizens that they are law abiding, morally sound characters in contrast to the immoral defendants being persecuted. Through multiple cases and their absurd resolutions, Kadri then goes on to note how juries are fallible. The most disputed questions at a criminal trial are the credibility of the witnesses, the reasoning behind the beliefs and doubts, and whether such issues demand “social legitimacy” rather than “fiendish cleverness”. He concludes that jurors may not be oracles, but their diversity allows their potential failings to cancel each other out. The “prejudices and stupidities of like-minded professionals are less likely to – and those of one judge never can.”

The Trial is not an easy read. It is encyclopedic and at times hard to digest, given the magnitude of information that has been condensed within its pages. While Kadri notes that the book is specifically on the jury system of criminal trials, it does not adequately address why countries such as India, Singapore and Malaysia do not follow this system. Nor does he assess the deficiencies of other systems in comparison to the Jury system. Though it is thematic, it often digresses from case to case, making too many points at once. However, Kadri’s writing, his analysis peppered with fascinating examples, and passionate interjections absolve most of its flaws and keep the pace. Like his other book Heaven on Earth – a legal history of the Sharia laws across the Muslim world – The Trial attempts to analyse multiple themes and ideas, and then contextualise their relevance through time.

Kadri’s views of the criminal trial often make the reader introspect on the nature of justice. How is justice defined and what does it mean to each stakeholder – the society, the defendant and the victim? Assessing this is not simple. It means understanding the norm, beliefs, identity and geographies of the lands where it was served. It also means understanding that law and order that seek to be evidential and rational, are products of evolving sentiments and emotions, and it is these which eventually frame notions of justice and fairness. Kadri is often pessimistic and cynical of the criminal trial. He reveals its rot and decay, its fallacies, inconsistencies and the blatant misconstruction of the ideas of justice. He looks at the problems with evidence, and the manipulation of arguments that distort the empiricism of the jury.

However, his conclusion is not pessimistic. Like its namesake by Kafka, the book delves into the surreal aspects of a judicial system. Each chapter is punctuated with quotes from Kafka’s novel that reaffirm the absurdity of a system perceived to be an ideal. But the case Kadri does make in his cynical view of the trial is that it is the best of all the alternatives, and that the current form of the judicial system in Western nations has evolved into this state of imperfect perfection, after centuries of trials, errors and realisations. He says that the crucial question remains whether there exists an alternative that can command equal respect and more confidence.

He concludes that each time a defendant comes to court and contests his or her guilt, a process unfolds that reiterates precepts that are central to the self-image of modern democracy. The criminal trial portrays “a state that is sufficiently self controlled to precent public officials from unilaterally deciding anyone’s fate, and humble enough to trust its citizens to watch the law in action – even, sometimes, to do justice themselves”. Kadri affirms that the criminal trial literally enacts the meaning of human dignity –“showing a civilization that treats its most despicable enemies with respect – presuming them innocent, confronting them as equals, and giving them a champion to argue their cause”.

Trials then are more than just idealised or flawed spectacles. They stand as testimonies to the idea that despite human inconsistency and irrationality, the best form of reasoned and well-argued deliberations should always triumph over any instinctive and savage desire for punishment or retribution.

( This post was originally published on No Man’s Land)

Critical unlearning: Making the journey from school to university


Ever since February 9, news on the media and social media has been dominated by JNU. The fallout of an event organised by 8 students to protest the ‘judicial killing’ of a ‘terrorist’ has been spectacular. Taxpayers are angry that their money is going towards breeding the next generation’s terrorists, while social media trolls are calling for a shut down of the entire university. The purpose of this piece is not to engage in a political polemic on the events that happened in JNU, but rather is an attempt to explain the context of the education provided there, its impact on research and finally  the importance of a university in inculcating a spirit of inquiry and thinking. Before that, this piece highlights the importance of university education by differentiating it from school education.

Over the last four years, in my capacity as a teacher of History and Political Science, I have always encouraged my students to express their thoughts and beliefs, no matter how controversial or uncomfortable they may be to me or their peers. I have had students asking why certain religious groups commit acts of terror, or why do we need to talk about caste now that untouchability has been made illegal by the constitution. The importance of this lies in the fact that views have contexts and pasts and if one is to engage with contradictory views and start a dialogue it becomes important not just to listen but to understand the other and not to resort to mud-slinging. It would be very easy to isolate, demonise and exclude those students who harbour these views. However, this is where the problem arises. As a teacher, immense responsibility is placed on how to handle such delicate situations. Only by giving these students the space to express these views can one even begin a discussion to help them see the limitations of their argument, which has perhaps been drawn from incomplete or biased information.

I have learnt that it is vitally important that ‘impressionable’ kids get exposed to uncomfortable truths at an early age, to spare them the shock of hearing it in their foreign universities, where they might be fearful of having to tackle this ‘radical’ new learning without guidance. As such, events are dissected and examined through various prisms. While learning about our national movement, important aspects such as gender, caste and labour are incorporated and students are then made to look at some of the limitations that many nationalist leaders had. None of this is designed to instill disrespect or disloyalty, but only meant to show how hero-worship and one interpretation is not healthy in the long run.

The unfortunate part however is that our school education system caters to rote learning and memorisation, thus criminally depriving students and teachers of the joy of understanding the essence of the liberal arts. Moreover, the school culture in our country places emphasis on discipline, conformity and standardized learning, which, while it may ensure admission into a prestigious university, does not train students for the journey that happens in the university.


With regards to the space of a university, unlike a school, this is a place where defying authority and rules is essential. The education in the university is testament to this, as board curricula, and individual textbooks give way to closer peer to peer interaction through tutorial discussions and reading lists prescribed by professors in their courses. Events in post 1947 India, often regarded as controversial and complex and therefore shamefully ignored in our school curriculum, become an essential part of classroom discussion. It is here that realities of the nation are brought out- the ‘integration of the states’, the question of languages, regional identities and caste conflicts and so on. Here, readings hitherto unknown to the student must be read if they are to excel both in their exams and tutorials. For example, Mein Kampf was an essential read in a paper on ‘Right-Wing Movements in Europe’, for it brought into the open an individual’s carefully constructed vision for the nation. The writings of Ramaswamy Naicker which is filled with vitriol against Brahminism, Hinduism and the Congress party, were necessary reading in order to bring about the contradictory nature of the mainstream nationalist movement, which tends to ignore caste in public debate. Readings of B.R. Ambedkar on questions of caste include scathing attacks on Hinduism, as well as refutations of ‘Mahatmas’. An event such as the French Revolution, so easily understood as the event which ushered in the era of Democracy, Liberty, Equality and Fraternity was called a ‘Myth’ by the historian Alfred Cobbane. Reading the Constituent Assembly debates, particularly on language brought out the tension that was prevalent in the country at the time, and shattered a pre-existing myth that Hindi was spoken by a majority of the population. Understanding the Anti-Hindi agitation and the practical usage of English went a long way in mitigating those previously held ‘truths’.


At first glance, the student has a right to be aggrieved, as his or her education in school has imbibed a sense of patriotism, loyalty and support for the country. Reading the intellectual genius (and in many cases violence) of the above mentioned individuals can be harmful if not approached the correct way. This is where pedagogy at JNU becomes important to understand. Professors are mindful that students come from different backgrounds and as a result the objective is not to instruct through a political prism, but rather through a critical unlearning of the past, to freshen the mind, and finally to instill a sense of questioning. The student does not become disloyal or dare I say anti-national, but is only increasing his or her potential for research and understanding, both important tools in the job market and academia. The notion of questioning goes a long way in shaping the student’s individual thoughts which are then expressed either through speech or writing.


In-between school and one’s job lies the experience of a university. At the extreme ends, specific tasks are required to be fulfilled, often ending up in mundane routines which do not give scope to the student to play with ideas and decipher right from wrong. In the university, there is no ‘right’ or ‘wrong’. This is a place where Gandhi battles with Ambedkar on the question of Caste, Adam Smith and Karl Marx engage on economics, Nehru and Bose discuss nationalism, Periyar questions India, while Savarkar and Jinnah provide their own inputs on the two nation theory. It is in this context that we must view the university. The education here is not the accumulation of facts but rather the exposure to uncomfortable truths which every student of the social sciences must be exposed to. Tutorial discussions make the students go beyond their comfort zones in order to defend their views and findings, and reach conclusions not on emotion or sentiment but analysis and reason.


Interactions with people from different regions and identities provides students the opportunities to learn about not just their peers but also their own unique histories. While a student from Delhi or Mumbai might not accept  the idea of ‘azaadi’ for states from the union, a young Kashmiri student’s perspective on the reality of the state or a Manipuri’s tales of the state atrocities in his or her state goes a long way in eliminating certain myths and stereotypes one harbours from the days of the school. Here, information is not provided through the biases of politics nor through the sensationalist media, but through actual written and oral histories. If thinking differently is to be seen as a threat then the university as a concept must be destroyed.

The university is the ground for the formation of political opinion. It is the environment where a student’s beliefs and thoughts are first nurtured and then expressed.There is one other aspect of the university that must be addressed. While the above section has discussed this from an academic perspective, extra curricular activities also go a long way in ensuring a holistic development of the student. As a personal example, I would use the example of college debating societies. These societies or clubs give students the opportunity to engage in constructive argument and dialogue with their peers (for financial rewards in many cases). The methods associated with research once again are drastically different from schools. In the case of schools, a simple cut-copy-paste from the most accurate google search on a topic, followed by memorization and flowery language would seal the deal. In the university, students are discouraged from using technology and rely on the strengths of their logical and critical thinking, as well as contributions from their teammates, which go a long way in developing other skills such as argument construction from scratch and teamwork, other important skills for the future.

Moreover, choosing sides in debates is not subject to a person’s pre-disposed political affiliations or views on issues. Rather, students sometimes are forced to argue on the side of issues which they may have been uncomfortable with during their schooling. On a personal level, I have argued on the side of topics which I may personally disagree with, such as the support for a two state solution to the Israeli-Palestinian conflict, or the deployment of the armed forces in Naxal affected areas in central India. The point here is not to change one’s beliefs, but only to engage and understand where the other viewpoint stems from. This has two consequences. First, the existing viewpoint one cherishes gets strengthened, as only after engaging with its adversary can the student go further into depths of his or her side and strengthen his or her position on the issue. Second, in an environment where students are constantly challenged, readings, which are sometimes difficult to grasp owing to their own political leanings are slowly absorbed by the mind, through previous experiences of debating and arguing in a civil matter, respectful of both sides. The essence of debating in the university as such, encourages students to think about hitherto taboo issues such as – homosexuality, prostitution, the conduct of the armed forces in conflict zones, among many others in order to instill not cynicism with their own views, but a welcome engagement with others, again an essential tool to take away from the system.
This piece has tried to place the university as a bridge between school and the environment of the work place. While the limitations of both have been highlighted above, it is imperative to understand, that students, once they become workers in various fields will follow definite routines, patterns and structures, and will thus become cogs to an eventual end, which might or not have personal satisfaction. Thus only the space afforded by the university allows for conflict, for disagreement, for engagement, for intellectual competition, for radicalism, and finally for a student to fully develop a frame of thinking which goes beyond the limited confines of prescribed textbooks or work routines. If we as a society continue to view the university as merely an extension of school education, divorced from politics, questioning and challenging authority, we are headed for a future devoid of independent thinking, and choice, which are the hallmarks of any progressive society. To save our society, we must save the university.  

We are Rohith, Kanhaiya and Umar. We are JNU


Over the past few days, we have been trying to untangle the different concerns that have governed the public discourse on Jawaharlal Nehru University. These have ranged from concerns around basic liberties, university autonomy, and the right environment for scholarship and academic discussions, to concerns regarding the targeting of students based on their identities, disciplining of democratic spaces, suppressing and criminalizing dissent, a breakdown of public institutions like the police and courts to ensure the rule of law in the capital city, the kangaroo courts of the media, and the maligning of one of the best educational institutions of the country. Each of these concerns appeal to different concepts, and they seem so tangled with each other that a coherent assessment of each question in a short article might be a tough task. However, at a time when our public discourse has grown so tangled over a few slogans given out in a University, the best one can do is dive into the tangle and make sense of it by asking questions that worry us the most.

When did the word Azaadi become a term that people should not use?

JNU, is one of the beating hearts of social science scholarship (besides having excellent schools in other disciplines as well) in India. It is a place where persons from across classes, castes, regions and genders, can assertively make arguments that matter to them. These arguments are often driven by their own experiences, or the experiences of those they are in solidarity with. Most importantly, it is a place where scholarship and knowledge are held as the highest virtues that form the basis of its deliberation.

Why is such a University a place where Hum kya chaahtey.. Azaadi! (What do we want? Freedom!)  become a slogan that is celebrated by a few students? This is not a slogan that was popularly raised on campus earlier. However, at the last meeting I attended inside the JNU campus (before it became a den for Dilli Police and media vans), on 31st January 2016- Rohith Vemula’s birthday, this slogan was given after a range of slogans in the name of Birsa, Phule and Ambedkar. It surprised me initially. Hum kya chaahtey.. Azaadi.., was a slogan generally given in meetings of solidarity with the right to self-determination of the people of Kashmir, a cause that many in JNU have been sensitive to, even if some have not wholeheartedly supported it with as much fervor as other causes. And here it was, being sung during a meeting against a systematic and protracted act of institutional humiliation extended to a Dalit student, driving him to his death. The slogan was followed by several others, which in the JNU fashion, expanded on the previous slogan: Manusmriti se azaadi, brahmanvaad se azaadi..! (Freedom from Manusmriti! Freedom from Brahmanism!). I joined these slogans with some enthusiasm. The words just appealed to me for their simplicity, and the clear plea it made to those present to throw off institutions like caste which made someone feel that his birth ‘was a fatal accident’. The slogans of the Kashmiri people for azaadi from repeated conflict and curfew, to have a democratic say in the laws that govern them – especially AFSPA, and for the dignity to conceptualize one’s own way of life, had also appealed to the students of JNU.

The students of JNU were not merely giving out a slogan for liberty for themselves, but for the Dalit students who had been suspended from their hostels and classes in the University of Hyderabad. There are many who, over the past few weeks have asked, why the students from JNU had to carry out marches in solidarity with Rohith Vemula. To these questions, many of us would reply saying that we do not see showing solidarity with Dalit students, nor building a feeling of fraternity among the student community over it, as a waste of time, or a process devoid of study and scholarship. We see it as the process of building the background conditions of care, trust and respect for rights, all necessary for public reason to develop in a free and democratic society.

What happens to the public reason of a free and democratic society, when it denies background principles of care, trust, and respect for rights, in political and academic life to people in its capital city?

After studying for many years in JNU, I have come to understand a democratic culture as one that works best with the background conditions of care, trust, and respect for rights. It works when public political culture is constantly assessed and reworked as it interacts with diverse and dissenting views. In JNU, in particular, it works through scholarly discussions in classrooms and seminars, late evening deliberations over chai or a solidarity march, through plays that are interactively enacted with the audience at the different meeting points of JNU, reading parchas over dinner, endless debates in each other’s rooms, and attending General Body Meetings on campus regularly. The JNU culture is not a myth- it is a culture that trusts each other before questioning each other, which cares for the answers that the other person has to give, which respects that others have different opinions. Most importantly, it is a culture which prides itself in how secure it is in the foundational values that guide these opinions – equality, justice and freedom. This is a culture which confidently says Hum apna adhikaar maanghte hain, Nahin kisi se bheek maanghte hain. (We demand our rights, we do not have to beg anyone for them.)

Over the past one week, questions have been raised over the credibility of the University simply because its students are doing exactly this – asserting their rights in their own way. Third rate news anchors have gained coverage for patronizingly telling the students of JNU to “stop doing politics” and “start studying”, the capacity of JNU students to do their duties before they ask for their rights has become a raging issue on social media. A PhD student, who among other things referred to Afzal Guru’s death as a judicial killing, is being branded by the media of being associated with terrorist organizations. Police reports are being filed against students for holding meetings over when and how Mahishasur is the good guy instead of Durga, and for inviting SAR Geelani to talk on campus. The JNU Students Union President, no small post to hold when you are part of the academic community, has been arrested, and repeatedly mauled outside court rooms, for supposed seditious activity of which there is no proof. The university and its activities have been maligned because some unidentified persons gave out some questionable slogans, supposedly on campus.

What happens to a society where scholarship becomes victim to disciplining by the Government and the majority backing it?

The campaign to malign JNU seems to stem from an idea that universities and students are arenas where thoughts are disciplined, rather than given the dignity to grow on their own. If education in such institutions is being subsidized by the Government, then the ‘consumers’ of this subsidized education must be obedient to the dictates of the majority backing the Government thinking. If they question what the Government does, or how the state apparatus functions, then they should be taught a lesson for employing the ‘privilege’ the majority gives them of talking, by questioning the majority itself. Many of us are aware that this maligning is not extended to JNU alone – it was extended to Rohith, it is regularly extended to the people of Kashmir and North East India, to Muslim citizens who have been detained without any substantive charges against them, to Dalit and Tribal communities who simply want to assert their democratic voice guaranteed to them by law.

JNU seems to have become a test case for a Government that wants to practice suppressive disciplinary methods against those who want to voice their claim as part of the sovereign people of this democracy. Unfortunately for the Government, JNU has a long history of questioning suppression in an informed manner. Our slogans have imbibed this questioning too: Dum hai kitna daman main terey, dekh liya hai, dekhenge (We have seen how much strength your suppression has had in the past. We will see how much strength it has now too!)[i]. This test case will not be validated.

The students of JNU are not consumers of taxpayers money alone. We are producers of research, and based on this research we have stood in solidarity with various movements of the marginalized in this country. We question how the law can be made more sensible to the people of this country. We don’t just use the writings of Marx and Lenin, but are also inspired by the writings of Ambedkar and Periyar, Gandhi and Azad, Ramabai and Bordoloi in doing so. This doesn’t amount to a waste of taxpayers money. It is what taxpayers money is supposed to do: enable the citizenry to think of how their state should be, and what their state should do.

When did it become a wrong thing to say that we want liberty and equality to be the governing principles of our constitutional democracy?

We don’t think that the state should send in the might of its police, led by an inarticulate and deeply imprudent BS Bassi, to interrogate students on the validity of treating Afzal Guru as a martyr, or supporting the claims of the people of Kashmir on their right to self-determination. This is a conversation to be had in a democratic and scholarly space that our university embodies. If there were slogans given for the “Bharat ki barbaadi” then, given that there was no incitement to imminent violence after these calls, there can be no charges of sedition against whoever gave these slogans either. Unlike the Bhakts of ‘BharatMata’, JNU doesn’t expect its Students Union president to admonish fellow students like their mothers would. It expects students, as self-authenticating members of the student body, to responsibly justify to the student body why they felt the need to make these slogans, especially against the criticisms that were immediately posed to them. The Students of JNU certainly do not expect a complete breakdown of the institutional apparatus of the police and courts to take place in the capital of India, they do not expect their Professors and fellow students to get mauled and beaten up by lawyers who still roam free in the name of nationalism.

If we, as a democracy, are to continuously engage with the question of how to extend the principles of social cooperation to all citizens with equal respect, then suppressing those voicing concerns of the marginalized is certainly not the way to go about it. The students of JNU are simply asking if the majority wishes to acknowledge the legitimate claims of the minority. If it does, it cannot put conditions, tested by media trials and preemptive detentions, on these voices. The students of JNU also ask these questions publicly, by engaging with different moral doctrines, and not by throwing up imageries of a Mother India.

Like some of the best universities in the world, the students of JNU dream of a society with ideals that can freely and equally give its citizens unbounded possibilities. These are not unreasonable demands to make of a constitutional democracy. They are the demands of those who want liberty and equality to be the governing principles of our social and political lives.



[i] This is not a completely satisfactory translation of the original slogan in Hindi.

Cyber Feminism: How technology is being used to fight violence against women

Screen Shot 2016-02-07 at 08.58.13Technology has brought violence against women to a whole new level. Privately taken  nude pictures are no longer limited to a single copy in possession of the individual but are now on smartphones and one angry ex-boyfriend is all it takes to ruin a girl’s reputation online. As we are all aware, no matter the reason someone decides to publicly humiliate a woman, she gets more scrutiny than empathy once her reputation is on the line. With the advent of the internet, things have only gotten worse.

In March 2015, we had the chance to see the “patient zero” of slut shaming speak up. Monica Lewinsky demanded to tell her own story on a TED talk in Vancouver. For 20 minutes, she narrated 17 years of public humiliation. She said her case was the first one to break online instead of on  traditional media. She continues to deal with violence online up to this day.


Old problems, new tools. Soon enough, we all discovered the devastating power of technology and how it has become so easy to hate. For women in general, violence took on one more avatar in slut shaming. It looked like more of the same: women as a target for how they look, for taking nude pictures, for having sex or even just because they exist.


But that same technology is now being used to fight all of that and more. Feminist groups and organizations are developing a variety of forms to combat violence and restore women’s confidence.


In the very recent past feminist groups were restricted by technology. They hardly made headlines with their actions, aside from demonstrations, but they produced vast material in the form of magazines, pamphlets and academic work. Slowly, traditional feminist organizations migrated to online media and started to create a space for their voices to be heard through websites. The internet made it possible for all to have access to information and to slowly start to get a sense of the amount of work put into the cause.


With social media a new feminism is rising, one that challenges slut shaming. This generation of girls took charge on blogs, Twitter and vlogs on YouTube. Discussion groups on Facebook are especially effective to organize protests, create new content or even just to help a girl defend herself against any kind of misogynistic attack.


The power of social media is so strong that it is changing the way women’s magazines are written, children’s toys are designed by bringing to light the different forms of sexism hidden in the mundane.


One specific cause that the new wave of feminism on social media addresses is street harassment. Not long ago – about two years ago – it was considered just some annoying part of women’s lives; you go out, you get catcalled and that is what it is. But after a nasty comment, one girl went on her social media page and complained about it. Another girl followed. Another five girls followed. And about 45 girls “liked” it. Suddenly something that had been socially accepted, even celebrated for so long was finally shown to be another face of violence.


In order to show the world how much street harassment can ruin our days a few groups took on new technology to expose this problem. Using Google maps, they asked women to pin places where they were harassed and tell their stories. The campaigns were national, but similar in different parts of the globe. In Egypt, the HarassMap showed not just catcalling stories, but also situations of gang-abuse and women being assaulted during the Arab Spring demonstrations. A campaign in Brazil called Chega de Fiu Fiu (Enough of Whistling) conducted empirical research to prove that women actually do not like to be catcalled. They also created their own map. Hollaback, a global initiative based in the USA, has their own maps of testimonials as well as an app, so women can pin an incident of harassment at the same time it occurs. A similar app was also adopted by a project in South Africa called Blow the Whistle.


Another Brazilian initiative called PLP 2.0 took it a step further and connected their app to the police. Aimed at domestic violence, this app follows specific cases and works as a panic button if a woman is attacked. It is still restricted to one city but is slowly increasing the area it covers.


There are countless such projects around the world that use technology to amplify their work. Several times we might see different groups working on similar ideas, not knowing that someone, in a different part of the globe, has a solution they haven’t thought off yet. Feminist activists needs a global database.


In order to document feminist projects and connect similar ones, I created FemMap , a collaborative website that gathers information about projects focused on gender equality. It works both as a database and as a communication channel. As the platform gets more collaborators, it becomes a significant source of information about what type of projects are being done and the best practices for each idea. Through FemMap, groups can avoid redundancies in their work and help other organizations in whatever capacity they can- material, coding or simply better ideas to make it happen. We are using technology to break country and culture barriers.


It’s important to know how to benefit from technology and make it available to all. By working together, feminist groups are able to learn from mistakes made by others. Achieving gender equality is a long and bumpy road, so it’s always good to know we can get help.


Between solidarity and rejection – Harshening of the asylum law in Germany


“We don’t need clothes or money. We need a new political and legal system. I think that should be in focus,” said Adam Bahar. Living in exile in Berlin, Germany, he was at a debate in November 2015 called “Solidarity or Charity?” about the meaning of a new “welcome culture” in the country. Bahar wanted to go further. As a political activist from Sudan, he is part of the movement from Oranienplatz – a square in the capital Berlin, where refugees from all over Germany united and lived from 2012 to 2014, challenging the German law’s obligation of not leaving the area where a refugee is registered.


After fighting against this law, ensuring its partial withdrawal, and seeing its return last year, the movement now argues against new harsher measures for refugees, after almost 1.1 million asylum seekers arrived into Germany in 2015. However, the Oranienplatz movement, which once got a lot of attention with a camp occupying a central square in Berlin, is not the focus of the media anymore.


In 2015, German newspapers, TVs and citizens concentrated on the journey and the reception of new refugees, and on the debates on solidarity. That shifted, though, with the massive sexual assaults (including two rapes) during New Year’s Eve in the city of Cologne, where there are accounts of one thousand men involved. Victims declared that the offenders seemed to have North African origin.


The crimes fostered proposals of changes in the law, now also in the focus of international media. But most of the reforms in Germany’s asylum law have been already discussed – and some approved – since last year, while the focus of the media was on the “open doors” for refugees and the solidarity shown by the country and its leader, Angela Merkel, who has won accolades including “personality of the year” by Time magazine for her firmness and humanity.


By then Germany had already approved a law restricting some of the rights of refugees, and prepared what is internally referred as Asylpacket II, which had been planned since the beginning of November. But events such as the terrorist’s attacks in Paris in November  and the sexual offences in Cologne have given them support and fostered a greater toughening of  the German asylum law.


List of ‘safe countries’ is extended, and expulsion of their citizens will be easier

The law that came into force on October 24th 2015 refers to the process of asylum. In less than a month it was discussed and voted by the two legislative houses, despite the resistance from the main asylum associations in the country. The list of the so-called “safe countries of origin” (the premise being that there is no need for leaving and seeking asylum) was enlarged, including Kosovo, Albania and Montenegro. Asylum seekers who come from those countries have to live in an emergency shelter until their request is analysed. Also according to the new law asylum seekers from “non-safe countries” can stay up to six months in emergency shelters and not three months anymore. That means the period of time they can’t work is also extended.


In early November, the federal government proposed further modifications to the right of asylum, giving origin to Asylpacket II. Both terrorists’ attacks in Paris and sexual offences in Cologne postponed an agreement among the government’s coalition parties and resulted in harsher measures being proposed. After weeks of debates and divergences, they have agreed on the proposals last Thursday, and will now send a draft law to Parliament.


The newest one, not foreseen two months ago, is the inclusion of Morocco, Algeria and Tunisia – the countries where many of the suspects of sexual assaults in Cologne come from – in the list of “safe countries”. If Asypacket II is approved, asylum seekers from “safe countries” and the ones with no identity documents will be kept in special centres of reception. The whole legal procedure involving them will take only one week, and in three weeks they can be expelled. Besides that, there won’t be a medical justification for non-expulsion anymore and it will be done at anytime, without fixing a date.


The main point of controversy inside the government’s coalition was decided against the refugees: people who receive “subsidiary protection” from the government (they don’t have the right to asylum, but are tolerated for humanitarian reasons) will have the right to family reunification only after two years in the country. The whole package is contested by NGOs such as The Council for Refugees in Germany and ProAsyl, which declared last Friday “it is a frontal attack against the right of asylum” and explained its objection to each of the changes.


Shifts in German public opinion


After activist Adam Bahar defended a new political and legal system changes in the law actually came into focus but surely in a different direction from the one expected by refugees’ movements such as the one from Oranienplatz. Solidarity is still the defining characteristic of German civil society towards refugees. In general, though, internal media and public discussions are not concentrating so much on the suffering of migrants anymore but on how the country is going to integrate so many people from cultures where, for example, different attitudes to women are in place. In this process, sets of rights are put against each other in simplifying ways – “refugees’ rights” versus “women’s rights”, for example.


The crimes in Cologne have highlighted feelings of rejection and fear of what is considered by many European citizens as homogeneous traces of whole cultures/nations. Last week, it came to light that known nightclubs in the city of Freiburg are forbidding the entrance of asylum seekers. Not far from there, in Villingen-Schwenningen, there was an attack last Thursday against a refugee shelter with a hand grenade, which didn’t explode. The crimes in Cologne have not only fostered waves of right-wing demonstrations and burnings of refugees’ shelters, but also provoked a change in public opinion, or at least were the final straw in the process. And there lays the support for changes in the law.


The idea of an acceleration of the legal process combined with a more rigorous control of asylum seekers is now seen as an adequate response to a moment of “crisis” and “urgency”. During the Economic Forum in Davos this month, German President Gauck pointed the possibility of a limitation of the number of accepted refugees, a measure many times publicly rejected by Angela Merkel. And inside CDU the possibility of a new name for running in 2017’s elections is even beginning to be considered, as the Chancellor, seen by many Germans as being too open to refugees, is losing popularity.


Germany is far from approving a law such as Denmark did last week, which allows police to confiscate cash and valuables worth more than 10,000 kroner (almost 1,5000 dollars) from asylum seekers. In spite of that, the risk is that a new set of rules will be approved in Germany in face of critical events, and not after a debate regarding refugees’ rights and how countries can create a new legal system that actually deals with contemporary transnationality.

An Introduction to the UN Climate Conference: What Exactly is Happening in Paris?

Governments of the world have been negotiating on climate change for at least as long as I have been alive. This year is the 21st Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC), which aims to conclude a new globally applicable agreement on climate change, under the existing convention.

Geopolitical dynamics dominate the talks. A foundation of the UNFCCC agreement is the concept of “common but differentiated responsibility and respective capabilities”, which is the idea that countries should contribute, in terms of emissions cuts and finance, in a way that is proportionate to both their responsibility for the problem, and their capacity to help fix it. Although these words sound deceptively simple, the debate over what, precisely, they mean has spanned twenty years.

How did we get here?

At the core of the equity issue is that those countries which have contributed least to the problem are most often the ones that will be most affected by it, yet have the least capacity to adapt. The way climate change will affect those living in the slums of Mumbai or working on subsistence farms in Nicaragua vastly differs from how it will impact those living in suburban England or Norway, yet it is the latter countries who have contributed more, per capita, to the problem and have benefited from burning fossil fuels like coal, oil and gas.

The Kyoto Protocol, the precursor to the agreement currently being negotiated, was founded on a division of countries into “Annex I” (developed) and “Non Annex I” (developing), meaning that only developed countries had to take binding emissions cuts. There will be no such stark dichotomy in the new agreement, which countries have already agreed must be ‘applicable to all’.

Last Saturday, the draft negotiating text was finalised. This text is much improved from the beginning of the conference, with more streamlined language and a lot fewer square brackets (which signify that the text within them is still disputed). But there are still crucial arguments yet to be resolved. Now, at the start of the second week of negotiations, government Ministers have arrived to sort out the trickiest negotiating issues.

The key issues here in Paris

  1. Keeping every country above water

Way back in Cancun in 2010, COP16 agreed to the goal of keeping global average temperature increase below 2 degrees Celsius. This is the internationally agreed “safe limit” or “defense line”, meaning that to avoid the most dangerous impacts of climate change we must stay within 2 degrees.

However, the problem with a 2 degree goal is that many countries, communities and indigenous peoples are already experiencing the adverse effects of climate change, and even a 2 degree increase will cause existential threats. For instance, small island states like the Marshall Islands, Tuvalu and Kiribati would be underwater in a 2 degree world. As a result, there is a large campaign here to move the long term goal from 2 degrees to 1.5 degrees.

One of the most interesting developments so far at COP is that many countries – at last count numbering over one hundred – have come out in support of including a reference to a 1.5 degree goal in the agreement. This will be one of the most interesting things to track over the next few days.

But we still see that there are several options for the long term goal in the draft agreement.

  1. Raising ambition

A crucial issue here in Paris is that so far countries’ Intended Nationally Determined Contributions have only added up to enough emissions reductions to lead to 2.7 degrees of average global warming. This is still far above where we need to be to stay below even the 2 degree target, let alone 1.5. How can the agreement get countries to reduce their emissions to the level required?

The Paris Ambition Mechanism, affectionately known as PAM, is the touted answer to this problem. What it will contain, however, is still up for discussion.

  1. Climate finance, technology transfer and capacity building

Many developing countries argue that to reduce their greenhouse gas emissions, and adapt to the effects of climate change, finance is required from developed countries. Similarly, it is argued that technology transfer is necessary to help developing countries develop in a low carbon way without being trapped in poverty; it would be immensely unfair if stopping greenhouse gas emissions meant that developing countries were locked into their situations forever.

Developed countries have already agreed to provide US$100 billion worth in finance by 2020, but a key issue in Paris is how this goal will be achieved. Likewise, post-2020 finance – whether and how finance should be scaled up – is proving to be a crucial issue.

Access and participation

But it’s often hard to know what exactly is going on inside those rooms. Civil society observers at the UNFCCC, of which I am one, are not allowed in to many negotiating sessions. Sometimes there is a broadcast from inside meetings, but sometimes not. Sometimes we rely on informal google docs written from inside the meetings just to keep track. Civil society access is a crucial barrier to reaching an effective and equitable agreement, as many developing countries rely on civil society to assist their under-resourced government teams.

Intergenerational equity

Youth participation in this agreement is particularly crucial. The bulk of historical carbon emissions have been caused by generations past, and in particular our parents’ and grandparents’ generations. In addition, people who are not yet born have no say in decisions that affect them.

The youth constituency here in Paris campaigns on including intergenerational equity in the agreement text. This is the idea that there should be equity between generations; present generations should leave a world comparable to the one we grew up in, to afford future generations the same rights and opportunities their ancestors had. But the UNFCCC has now been negotiating for, literally, our whole lives, and we have consistently failed to see adequate climate action. Youth representation at the UNFCCC must be more than token, if we are to effectively address the climate crisis.

The Role of Information and Communication Technologies (ICTs) in China’s Judicial Transparency Reform – A non-comprehensive discourse analysis of official documents

Academic and civil society organizations globally have had broad consensus on how to define and measure transparency in the judicial system. It is such a comprehensive issue that there is a whole checklist of key recommendations for judicial transparency ranging from providing public access to judicial proceedings to civil society monitoring of the administration and operation of the courts1. While in China, official discourse on judicial transparency seems to have exclusively emphasized information disclosure as a norm, this article examines the perceived role of ICTs in promoting judicial transparency in China.

Setting the Background

Transparency is identified as a priority in two of China’s most important reform directives – the Decision of the Third2 and Fourth3 Plenary Session of the 18th Communist Party Central Committee (CPCC). In both decisions, transparency is phrased not as “tou ming” (literal translation of transparency) but as “gong kai” (“openness”). Linguistically, whereas “tou ming” contains a more comprehensive meaning and emphasizes the status of being “transparent”; “gong kai” has a narrower meaning of “openness” and focuses on the action of “disclosing” or “revealing”. This has set the tone for the transparency reform – one of the seven key reform areas of the Supreme People’s Court (SPC)’s current Judicial Reform Five Year Plan (2014-2018). Transparency in the judiciary is cross cutting through all aspects of the judicial system, covering issues such as the selection of judges, the justification of decisions, financial disclosure statements and access to the courts by citizens4. China’s Judicial Reform Plan does touch upon issues such as improving its judges’ selection system. Yet it is not framed as transparency but as an issue of trial power. It is interesting, therefore, to see how transparency is understood by the reformers in China, in terms of what is included or excluded compared to global norms, and the reasons for such decisions.

This post does not intend to “measure” how transparent China’s judicial system is; rather, it will provide a glimpse of how and why transparency is defined in a particular way by analyzing three official documents from SPC on judicial transparency – Certain Opinions on Building Three Platforms of Judicial Transparency and Provisions of Publicizing People’s Courts’ Verdicts on the Internet (hereinafter referred to as “Three Platforms”), the Fourth Five Year Plan (2014-2018) (hereinafter referred to as “4th Five-year Plan”), and the White Paper on Judicial Transparency of Chinese Courts (hereinafter referred to as “White Paper”).

Discourse Analysis

“Transparency = ICTs”

The 4th Five-Year Plan of SPC, setting the direction of judicial reform for the next five years, covered seven areas with 65 articles, including a specific Chapter dedicated to “transparency”, calling for building “mechanisms for an open, dynamic, transparent, and convenient sunshine judiciary”5:

“To establish the trial-centered system with Chinese characteristics, it is necessary to rely on modern information technology […] By the end of 2015, establish three [online] platforms that are systematic, complete, and convenient [to disclose information]. ”(4th Five-year Plan, Chapter 5)

Transparency here is narrowly defined as information disclosure and even more interestingly there is an exclusive linkage between information disclosure and the use of ICTs. The “three platforms” here refer to online platforms (e.g. official websites, SMS systems, social media, online broadcasting systems, etc.) to disclose three major types of information: 1) trial process, 2) judgments, verdicts and reconciliation statements, and 3) enforcement information. In November 2013, SPC issued Certain Opinions on Building Three Platforms of Judicial Transparency and Provisions of Publicizing People’s Courts’ Verdicts on the Internet to guide the establishment of the three platforms. The very existence of an official Opinions explicitly issued for the online platforms is a manifestation of the importance attached to ICTs by the judiciary to promote transparency.

Emphasis on ICTs is also evident in the official documents specifically dedicated to transparency. In the White Paper on Judicial Transparency of Chinese Courts, the SPC comprehensively reviewed the achievements of the three platforms and praised their creation as key measures in the new round of reform. “Previously, information was disclosed in a sporadic way by local courts. Building national platforms to disseminate information in a uniform way has improved the practice,”6 said He Xiaorong, who was in charge of drafting the white paper, at the press conference. In the Studies of Judicial Transparency edited by the SPC Judicial Reform Office, 10 out of the 15 selected case studies on international judicial transparency practice are related to the use of ICTs7.

“ICTs is a reason of transparency, not a result”

Normally in China, policy change derives from the leadership of the Party and the influence of other factors is incomparable. But the “information age” may be an exception:

“In the new century and new stage, facing new requirements in the work of the Party and the State, new expectations of the masses and new challenges in the era of information, the deepening of judicial transparency has become more important and urgent.” (White Paper, pp.27)

All these new trends together prompted the courts to be more transparent. In other words, transparency was not traditionally a necessity; it is only made inevitable by the new conditions. It is also rather a “choice” made by the authorities than basic rights of the people:

“Establishing three major platforms for judicial openness is an important strategic measure in the people’s courts adjustment to an information age, and in satisfying the public’s new expectations for judicial openness.” (Three Platforms)

In a transparency-as-rights regime, the right to public information is considered a “fundamental right that the State must enforce and guarantee” 8, which means it is the judiciary’s obligation, not just a “strategic measure”, to not only disclose the information but also ensure the effective enforcement of this right. China clearly has a different mindset.

“The more ICTs the more transparent”

The passion for ICTs goes beyond websites. Anything that can represent “information era” is considered a driver for transparency reform, even when it is only remotely relevant:

“With the rapid development of big data, cloud computing and new media, the speed, models and patterns of information dissemination change greatly, and the masses’ demands for judicial information vary, and under the new situation, the promotion of judicial transparency is facing an unprecedented opportunity and great challenges.” (White Paper, pp.28)

There also seems to be a belief that all ICTs are intrinsically good therefore the more e-channels the better, without a thorough understanding of what medium works best for what communication purpose and how much resources and efforts are implied by each of them:

“The people’s courts at all levels shall make full use of modern information technologies to constantly expand the channels and ways for the public to obtain judicial information by building websites on administrative affairs of courts and 12368 litigation service platform , and making public Weibo and WeChat IDs, mobile news client and president’s email, so as to explore the three-dimensional, one-stop, comprehensive and interactive judicial transparency services to build up a more transparent and open judicial environment.” (White Paper, pp.31)

The limitation of ICTs as a tool and as merely a single aspect for the reform is rarely reflected in the official discourse, not to mention the potential risk of ICT-related issues such as privacy, cyber security and so on.

Why ICTs?

Besides the influence of the on-going global obsession for technology, China’s top judiciary has its own reasons to prioritize ICTs in its reforms.

ICTs is a relatively safe entry-point for sensitive reforms. Creating a space for flexible interpretation by different stakeholders at their convenience is the premise of any intervention in political affairs in China, even within the government. ICTs is such a space: it appears formalistic but has the transformative potential for bigger changes.

It is easier to control, monitor and evaluate. ICT-based reforms by definition have more access to comprehensive data, which makes more sophisticated M&E possible. Furthermore, ICTs can provide as much convenience for the users as for the suppliers. Whoever controls the medium also controls the message, which is a position that the government would like to be at.

It has tangible results. “Justice is not to be done, but to be seen done.” This is one of the most popular quotes in the official documents to justify openness and information disclosure. As an output, a website or a mobile APP is far more visible than “enhanced transparency” or “strengthened capacity”.

Infrastructure comes first. The entire modernization of China is marked by the philosophy of materials over spirits, infrastructure as a premise for substance. By the same logic, when the judiciary decides to be more transparent, the first thing is to strengthen its material basis.


From a non-comprehensive reading of the official documents, it is not difficult to get a sense of the salience of the ICT-focus in China’s efforts to promote transparency in the judicial system. Such seemingly disproportionate representation is deeply rooted in China’s political culture that values risk aversion, information manipulation and publicity. But this is not to discredit the progress that it symbolizes to even consider transparency as a priority for the country’s next five-year judicial reform plan. ICTs could well be an incremental and cautious stimulus to further progressive changes.

(The views expressed in the article are personal)


1 See “Enhancing Judicial Transparency,” Transparency International Policy Position #01/2007, 2008, http://www.transparency.org; “Access to Justice and Legal Information” in Judicial Transparency Checklist, note 15, supra; “Good Practices, Initiatives, and Experiences in Combating Corruption and Promoting Judicial Transparency” in A Guide to Rapid Assessment and Policymaking for the Control of Corruption in Latin American Justice Systems, Due ProcessFoundation, 2007, http://www.dplf.org.

2 “promoting open trial and open prosecution, recording and retaining the entire court hearing and trial material; improving rational explanation of legal documents, and encouraging the court to publicize verdicts in force”

3 promoting a “sunshine judiciary” with more open trials, prosecution, police and prison work, including the timely publication of legal decisions and related documents

4 Access to Information and Transparency in the Judiciary, World Bank, 2010: “the Global Integrity report specifically examines the level of access to information and transparency of the Judicial Branch, using variables such as the selection of judges, the justification of decisions, financial disclosure statements and access to the courts by citizens.”

5 4th Five-year Plan, chapter 5建立中国特色社会主义审判权力运行体系,必须依托现 代信息技术,构建开放、动态、透明、便民的阳光司法机制,增进公众对司法的了 解、信赖和监督。到2015年底,形成体系完备、信息齐全、使用便捷的人民法院审 判流程公开、裁判文书公开和执行信息公开三大平台,建立覆盖全面、系统科学、 便民利民的司法为民机制

6 “China issues white paper on judicial transparency”, Supreme People’s Court, 12 March 2015, http://en.chinacourt.org/public/detail.php?id=4952

7 《司法公开理论问题》

8 Access to Information and Transparency in the Judiciary, World Bank, 2010, pp.43