Rights are only effective if linked to incentive compatible remedies under a bond of law. In other words, it must be in the interest of the obligation holder to supply the remedy otherwise the obligation holder will find some way to evade or avoid that responsibility. Human rights guaranteed by the Government are only effective if the Government has the necessary resources to supply the remedy. If it doesn't have the resources, the remedy will be rationed or its provision will be purely cosmetic.
Former CJI Chandrachud, speaking at King's College, never once mentions the question of the resources available for the provision of remedies- more particularly the 'remedies without rights' which the Indian Bench has been so keen on. What Chandr Chooth does talk about is modish Left-Liberal ideas like 'intersectionality'-
intersectional discrimination, where many factors including gender, caste and disability play a role in the commission of heinous offence on say, a visually challenged woman belonging to the Scheduled Caste. In Patan Jamal Vali v. State of Andhra Pradesh , the Court stressed that the factors causing intersectional discrimination must be assessed while determining the sentence of a convict.
There was no need. The victim belonged to a Scheduled Caste and thus the Prevention of Atrocities Act of 1989 applied. This just meant that he got more concurrent life sentences. The victim was also blind and so an additional concurrent sentence could be imposed. There was no need to drag in 'intersectionality' because Indian law had already differentiated between crimes against Scheduled Castes and Tribes. The rapist was a poor coolie and nobody cared what happened to him. The question before the court was whether PoA was applicable even if the offender neither knew nor cared about the caste of the victim. It was decided that it was applicable though the Court left open the question of whether prosecution under the Act 'can be sustained as long as caste identity is one of the grounds for the occurrence of the offence'. If the Court had said that Dalit on Dalit crime (for offenses carrying a jail term of ten years or more) came under the Act by reason of difference in gender or disability, then 'intersectionality' would arise. But such was not the case.
These factors do not operate in isolation and are deeply imbedded in our society.
What is embedded in Indian society is poverty. The 1989 Act made provision for Special Courts. Only one third of Districts have any such thing. Moreover, pendency has been rising and convictions have been falling. Instead the PoA act is used as a tool of harassment.
The only possible way of creating a more inclusive society is to
grow the economy by raising general purpose productivity such that people have more opportunities to earn.
recognize these causes of discrimination through our judicial work and even in our every day lives.
There is no need for any such recognition because those causes are blindingly obvious. What is needed is better functioning courts. But this means more resources must be made available. That means tax revenue has to rise which in turn entails raising Total factor productivity. If Courts are used to harass people and criminalize employers and entrepreneurs, then productivity will stagnate. Courts will become ineffective. They will be disintermediated as people turn to local gangsters to deal out rough justice.
The struggles of the LGBTQ community have found a voice in the courts.
The court enjoys virtue signalling. But nobody had been prosecuted under anti-sodomy laws since 1920. Just as it makes no difference to a prisoner if he is serving one or two or even one hundred concurrent life sentences, so too, homosexuals gained nothing by the Bench's grandstanding on this issue.
The members of the LGBTQ community have lived, thrived, endured and loved through the beginning of time. In the face of stigma and prejudice, many have been forced to live their lives closeted from the “straight” society.
This remains the case if the local people will apply Sharia law to them if they come out of the closet.
In turn, they have created their own communities, found liberation in solidarity as they together resisted the heteronormative order and have crafted their own language of “being” when the labels that the society gave them fell short of the diversity that they had to offer to the world.
Mere verbiage. The fact is, the Hindus don't seem to have greatly cared about this issue and even Muslims tended to be tolerant of Homosexuality. This is an artificial problem. It pretends that draconian punishments and persecution of a sort which existed in some Protestant countries also prevailed in India.
LGBTQ liberation movements are gaining momentum today in India and have achieved certain legal milestones that I will be discussing today. 14. The first significant case that advanced the rights of the LGBTQ community was National Legal Services Authority v. Union of India & Others .
The 'hijras' are politically important and have gained legal recognition even in Pakistan and Bangladesh.
The judgment of the Court detailed the deep cultural, societal and religious recognition given to transgender persons in India. It recognised the different kinds of communities of transgender persons in India and the suffering they had witnessed. In recounting the discrimination faced by transgender persons, the Court held that non-recognition of the true identity of transgender persons led to exacerbation of the social stigma they faced.
Hijras are a nuisance but nobody wants to get on the wrong side of them. Their true identity is well known which is why there is a social stigma against them. Still, you have to pay them off if they turn up at your doorstep because a son has been born to you. It is vitally important that the Bench recognizes the intersectionality of the cultural imperialism of the Neo-Liberalism of the Patriarchy by usurping more and more power so as to create yet more ways of harassing wealth creators and employment generators. On the other hand, kidnapping and castrating boys and giving them female hormones so they can money as prostitutes is a very noble and enlightened practice. If only Chandrachooth's daddy had permitted this to happen to his son, we would all be very happy.
This made them vulnerable to exploitation, and hindered their access to public places, employment opportunities and placed a bar on their freedom of expression.
Very true. Most hijras want to get jobs with INFOSYS. As kids they actively sought out kidnappers who would cut their dicks off and turn them into prostitutes.
Such a life without dignity struck at the heart of the fundamental rights guaranteed under the Indian Constitution.
Getting kidnapped and having your dick cut off is a fundamental right.
In my opinion in Navtej Johar, I invoked the principle of indirect discrimination to argue that although Section 377 is neutrally worded,
you aren't allowed to sodomize either males or females
its effect and operation infringes the fundamental rights of the members of the LGBTQ community.
especially those who were kidnapped and who had their dicks cut off.
The Bench's zeal to appear politically correct has led to absurd outcomes
In recent years, the Indian Supreme Court’s jurisprudence has also advanced in the field of disability law. At the legislative level, efforts had already been made to ensure that persons with disability are not subjected to discrimination with the introduction of the Rights of Persons with Disabilities Act. In Vikas Kumar v. UPSC , the Indian Supreme Court held that an individual suffering from writer’s cramp is entitled to the provision of a scribe for appearing in Civil Services Examination. The court held that denial of the scribe on the basis that the petitioner did not have a benchmark disability of 40 per cent or more violated the provisions of the Rights of Persons with Disabilities Act since every person with a disability is entitled to reasonable accommodation.
Vikas Kumar did not have a disability. A guy with 'writer's cramp' is not going to be a good civil servant. It is a different matter that a Nation may want blind people or those with cerebral palsy to become civil servants. They may have lived experience of disability and thus may be able to contribute to discussion of how productivity for disabled people can be raised. What the Bench has done is make it easier for people like Puja Khedkar- the daughter of an IAS officer- to unfairly claim various concessions meant for the genuinely disabled so as to get into the Civil Service. It was her high handed behaviour as an IAS officer which got her into trouble. Now the top Court is having its time wasted on this case as the prosecution seeks to deny her appeal for anticipatory bail. This is typical of the Indian Bench. They make a crazy decision as a result of which there will be more and more appeals coming before them.
The Court recognized that the principle of reasonable accommodation
for the disabled, not for people who have 'writer's cramp' or 'exam nerves' or something of that sort.
is at the heart of the values of substantive equality and human dignity recognized by the Constitution. Writing the judgement, I emphasized that, “[w]hen competent persons with disabilities are unable to realize their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved. In their blooming and blossoming, we all bloom and blossom.”
But this dude was no more disabled than Puja Khedkar. Still, it is undeniable that everybody is so fucking disabled that there is a fundamental duty to ensure they get Government jobs.
In Ravindra Kumar Dhariwal v. Union of India
a crazy drug-addict who kept threatening to shoot people
, the Indian Supreme Court addressed workplace discrimination against persons with mental health conditions. In that case, a central reserve police force officer was diagnosed with OCD and secondary major depression and was found to be having 40-70% mental disability.
He sometimes said he was mentally ill and sometimes said he wasn't. Different Psychiatrists may have come to different conclusion
In a judgement authored by me, the Supreme Court held that initiation of disciplinary proceedings against him was indirectly discriminatory because persons with mental disability are at a disproportionate disadvantage of being subjected to such proceedings in comparison to their able-bodied counterparts.
Actually, Chandrachud's reasoning was more subtle- ' The respondent (i.e. the Government agency) holds a privilege under the 2002 notification to not comply with the principles of non-discrimination and reasonable accommodation provided under Section 47 of the PwD Act.
In other words, you can fire a guy who beats up a fellow officer and threatens to start shooting.
However, for a privilege to accrue in terms of Section 6 of the GCA, mere expectation or hope is not sufficient. Rather, the privilege-holder must have done an act to avail of the right. The privilege provided by the 2002 notification would accrue only when one of the punishments provided under Section 47 has been imposed. However, in the instant case, the disciplinary proceedings were challenged even before the punishment stage could be reached. Therefore, the privilege available to the respondent under the 2002 notification was not accrued in terms of Section 6 of the GCA.
In other words, Chandrachooth is saying the Government Agency was dilatory. It had slept on its rights. Was this actually the case? Arguably disciplinary proceedings are themselves a punishment and have always been regarded as such. True, complete exoneration would have the effect of completely cancelling out the punitive aspect of such proceedings. But such was not the case in this instance.
We held that while all para military personnel may be subject to disciplinary proceedings on charges of misconduct, the appellant was more vulnerable to engage in behavior that could be classified as misconduct because of his mental disability.
This is typical of Chandrachooth's reasoning. Whether a person is or is not disabled is a matter of fact not law. Moreover, a person receiving treatment for a mental disorder is either not fit to work- in which case he must not come to work- or else is not more liable to misconduct than other officers, though his efficiency may be impaired. In this case, there was grave misconduct even after the officer started receiving medical care.
Chandrachooth lays aside the facts of the case and assumes what has not been proved- in this case that people receiving medical treatment for mental illness are more likely to misconduct themselves if they come to work. In other words, he chooses his own facts and interprets the law just as he pleases. But such judgments are unsafe. The effect of this judgment would be to create a defence for any Government employee accused of any type of crime. They could say 'had I been disabled, I'd have committed the crime because of my disability- e.g. I'd have stolen that money because I had a delusion that it was actually my money. The Court must follow Chandrachooth in deeming me to have been disabled at that time and thus acquit me of misconduct because crazy peeps are bound to misconduct themselves.'
As a relief, we directed that the officer to be reasonably accommodated and be given a suitable post.
I suppose this would have happened anyway. There was a feeling that he had gone crazy while on active service in the insurgency infected North East.
Conclusion . All of these instances and more show the path that the Indian Supreme Court has taken to protect human rights and civil liberties for different sections of the society in a democracy.
It has done nothing save 'virtue signal' and, in Chandrachooth's case, make modish reference to 'intersectionality' and 'cultural imperialism'.
The role of courts in a democracy is informed by the civil and political structure, the social fabric, and the customs and traditions of society.
Either Courts promote total factor productivity or they get disintermediated. In India, the higher Courts are clogged up with suits pertaining to Government departments or employees of the Government. But, if the Government goes off a fiscal cliff, there will be no money to provide Court mandated remedies.
Very often however, the Supreme Court, is thought of as the first line of defence or the one stop solution to resolve complicated issues of policy and society.
Governments like kicking the can down the road into the Courts so as to delay matters. But delay is not defence. It is merely delay.
The use of the court as the first line of defence to solve complicated social issues is a reflection of the waning power of discourse and consensus building.
Neither had any power whatsoever. Fine words butter no parsnips. There may be a consensus that rich people should give us lots of money and also come and wipe our bums for us. But rich people will do no such thing. Most have acquired foreign passports and have offshored their assets.
If we allow our local laws, institutions and practices to be co-opted by the forces of racism, casteism and discrimination,
e.g. persecuting Hindus for their religious and social practices but not interfering with Muslims in any way
all our social problems will have to be taken out of deliberative fora and placed before the court.
The Court is a deliberative fora. But its deliberations are meaningless if there is no incentive to provide the remedies they mandate.
Our ever-expanding list of rights risks trivialising the essential core of rights without really advancing the important social issues that we have reconceptualised as rights.
The thing is a nuisance. Curb it by all means.
The growing litigious trend in the country is indicative of the lack of patience in the political discourse.
No. It is a way to get cheap publicity.
This results in a slippery slope where courts are regarded as the only organ of the State for realization of rights-
No. It is the only organ where self-important nutters can pose and posture.
obviating the need for continuous engagement with the legislature and the executive.
Ambanis and Adanis know how to do that type of engagement. Self-important nutters go to Court.
It is true that the Supreme Court of India must protect the fundamental rights of persons and perform its constitutional duty.
It has never been able to do so. In Pakistan and Bangladesh, the Bench has been cut down to size. It may not happen in India because everybody already ignores the Bench.
However, it cannot and must not transcend its role by deciding issues requiring the involvement of elected representatives.
In other words, Judges mustn't get too big for their boots. In Bangladesh, the Chief Justice was threatened by the students and so he resigned.
That would not only be a deviation from its constitutional role but would not serve a democratic society, which at its core, must resolve issues through public deliberation, discourse and the engagement of citizens with their representatives and the Constitution.
No. Public deliberation does not matter. What matters is imitating what successful countries have done. This means making a bonfire of all sorts of paternalistic labour and land and other such laws.
Refining our rights rhetoric to include participative processes and as well as substantive outcomes is one step towards recognising the complementary roles the political and legal spheres of the Constitution play in protecting our human rights.
No. Looking at substantive outcomes causes us to despair of both the Bench and the Legislature.
The fulfillment of the ideals of our Constitution and the protections guaranteed under it cannot only be achieved by exercising our role as citizens once every five years. There must be a continuous engagement with all the pillars of democracy.
No. There must be an increase in general purpose productivity. The compliance and regulatory burden on enterprises must be reduced so total factor productivity can go up. Talking and engaging and building consensus does no good whatsoever.
The Law is a service industry just like the software or BPO industry. But productivity has risen a great deal in the latter two industries. It has fallen or stagnated in the Legal profession. The total Indian legal market is about 1.3 billion dollars a year- about 0.1 percent of the global market. Tiny Singapore has a legal market of about 2.4 billion. Indeed it exports about 0.9 billion! By contrast the software industry is about 255 billion dollars. There was a time when smart kids wanted to be lawyers. By the time Chandrachooth got to Harvard, this was no longer the case. Smart kids wanted to be software engineers. Technology has made Indian lives better. The Law has made Indian lives worse. That is why its footprint is shrinking and it is increasingly being disintermediated.
Chandrachooth may be an aberration. He returned to India from Harvard with a head stuffed full of nonsense. He forgets that India generates about 8 dollars per man-hour of work. America generates over 80. Bridging that gap is what turns notional 'rights' into realities.
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