A definite push towards a settlement

Like the previous post, this one is also already up on the LSC blog. But it is relevant here too.

In some kinds of mediation/negotiation, the main issue is how much one party is obliged to pay to another. One of the reasons such a mediation/negotiation can fail can be is because the party who is claiming might not agree to any offer (even if it is reasonable) by the other party if he feels even though the chances of him getting an award better than the offer are very slim, he has nothing to lose by continuing with the litigation and even with a lower award he will be able to force the costs of litigation on the other party.

If this is indeed the practice, it seems unfair on many counts. First the party against whom the claim is made is forced into a litigation even when he is willing to settle. Assuming the court awards the claimant an amount lesser than the offer made by the opposite party, the court has in fact held that the opposite party's substantive rights are more than what he is willing to settle for. However, by imposing costs on the opposite party, the court gives the claimant an undue incentive to increase the burden of pending litigation on the court.

Relating to this I would like to call the attention of the reader to rule 68 of the US Rules of Civil Procedure
It reads-

Rule 68. Offer of Judgment

(a) Making an Offer; Judgment on an Accepted Offer.

More than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.

(b) Unaccepted Offer.

An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.

(c) Offer After Liability Is Determined.

When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time—but at least 10 days— before a hearing to determine the extent of liability.

(d) Paying Costs After an Unaccepted Offer.

If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

(c) and (d) are especially important here. What such a rule does is not just set right the inequity I pointed out earlier but also gives the claimant a strong reason to agree to a reasonable offer of settlement. Someone told me that this is in practice in India too, but I couldn't find the relevant provision anywhere and can't think of any instance where I've seen this happen. Does seem indeed to be a necessary change. What say?

Gram Nyayalayas Bill, 2008

I already put this up on the LSC blog, but I guess it doesn't cause any harm if I cog from myself.

Media coverage which has been expectedly modest can be found here, here, here and here. (Why the many links? compensating for being unable to bring it to you live and as it happened, sansanati khej, sabse tez style. Maybe we can find one of the RS members and ask him how he's feeling)

This means 5067 more courts which prima facie should have been a good thing. I'm not sure if it will reduce pendency in courts significantly. This doubt I entertain as I seek to draw some kind of analogy with The Report by the Standing Committee on Personel, Public Grievances, Law and Justice on the Supreme Court (Number of Judges) Amendment Bill, 2008 which sought to increase the number of judges in the supreme court with a view to reducing pendency. (LSC made a representation to the same committee on a different issue last year, more on that later in this post and another post on that coming up). The problem of pendency in the opinion of the committee does not arise from the number of courts alone but also because of several other factors. The Gram Nyayalayas Bill, while admirable in its ambition doesn't seem to do much more than adding a bunch of courts rather than changing the way in which justice is delivered.

The courts which will be in the district headquarters or taluks will go to the villages in buses or jeeps and function there. The main concern I have with this is that this may go the way of village dispensaries which have an amazing 60% absence rate among the personnel supposed to be manning it.

Perhaps one should take heart from the statistics about Fast Track Courts which apparently reduced pendency greatly.

Union Law minister H R Bharadhwaj
"said he had sought the help of Prime Minister, Manmohan Singh to send at least 3000 judges, who will be the judicial magistrate first class (JMFC) to the courts. They will be called ‘Nyaya Adhikaris.’ “They are strictly judicial officers. They will be drawing the same salary, deriving the same powers as the first class magistrates working under the High Courts,” he said in reply to the debate." - TOI

Now I have always been of the creed who believes that this kind of system might actually be upsetting the local, informal dispute resolution systems existing in the villages. I would have voted for a system of regularizing, standardizing and empowering these systems rather than introducing a new system all together. This brings me back to some of the recommendations I had made in front of the Parliamentary committee on that day. Keep visiting this blog for more on the same.

Vikram Hegde

The great godfather of CPC contradicted?

If persons who studied CPC in NLSIU in the first trimester of the academic year 2007-2008 remember, Prof. Shankara Reddy who has been teaching the course ever since it has been invented had given us a funny example to decide what can be considered a dispute of a civil nature. The specific example he had given, if I remember right, was that a dispute as to what kind of Nama should be drawn on the forehead of the deity will not be a dispute of a civil nature. However, the Karnataka High Court seems to have admitted such a case. Though the link given here does not specify so, I have heard elsewhere that it is currently being heard on merits. Not only that, the case has already been decided by the Srirangapatna Court which has decreed in favour of the plaintiff and ordered the temple authorities to make a Nama on the forehead of the Yoganarasimhaswamy temple in the tengalai tradition as opposed to the Vadalai namam being followed by the temple in accordance with an order by the Muzrai department. Persons knowing anything about this are hereby requested to throw some light upon this.

onset of another al-qaeda and a possible way to stop it.

This post is for the "sans the law" bit of the blog. Pakistan, which has been having a major problem with Taliban (Pakistan branch) in it's North-western areas, is about to take a drastic step. They are about to give tens of thousands of arms albeit small arms to the tens of thousands of tribals in order to get them to fight the Taliban.

What circumstances can bring a country to do this? (Not that we aren't doing this - Salwa Judum, SULFA to name a couple). Large areas of Pakistan are today in the control of the Militants who Pakistan claims are foreigners. USA claims that these militants attack afghanistan from their base in Pakistan and Pakistan claims that carry out attacks in Pakistan from their bases in Afghanistan. USA bombs what it thinks are bunkers of militants in Pakistan and some in Pakistan claim that those were homes of civilian Pakistanis. The militants are also carrying out increasingly bold terrorist attacks (you've heard of this happening somewhere else too?) in other parts of Pakistan (Marriot hotel was just a big one but there are a couple of small ones every week) and have the Pakistanis spending insane amounts on security for their widower president and other VIPs.

Now it would appear that arming the tribals would actually go a long way in the war against the militants. But the problem with letting such a huge quantity of fire arms into such a volatile area and into the hands of any non-state agency is an extremely dangerous thing to do. And it is in fact very similar to the US supplying the Mujahideen arms to help them defeat the Soviets. it wouldn't surprise me one bit if a lot of these AK47s are seen in the hands of some militant outfit attacking the people who gave it to them in the first place. The US repeating their mistake seems to in support of it completely.

To add to their woes, Pakistan is steeped in a major financial crisis and on the verge of bankruptcy which combined with a major food crisis and a power supply shortage might destabilize the country.

Having been brought up in a environment where I'm constantly bombarded with stories (some from eye witnesses) of the great wars we've fought with the Pakistanis (Kargil, Bangladesh, Jo-burg Wanderers.... ) there is some inclination to beleive we should not be too concerned about the troubles that Pakistan is facing. Simple thinking would lead one to beleive that if Pakistan has no money it will mean a lot terrorists from across the border etc. etc. But no. This is not "Pakistan has no money to throw around". This is Pakistan is going to have "No money at all". The insurgency doesn't seem to be having this problem. Taliban pays its mercenaries about as much as a junior associate at a Indian law firm (hint hint). This could be dangerous for us. Though Maulana Fazlullah taking over Pakistan seems remote at this point, it is very well possible that he pushes some far right party with trigger happy leaders into power in Pakistan. And of course, in Pakistan there is more than one way to get Power. And a leader like that in control of Pakistan's nuclear warheads is something we all should lose sleep over. When we have to live with an enemy so powerful, we have to ensure that it is controlled by a level headed, responsible government, that does not disregard the safety of it's own people.

It is for India to take a bold step now and help Pakistan out of this mess. Of course, India need not give billions of dollars in aid to Pakistan as they are asking US and Saudi Arabia to do (and getting nos). We can perhaps make a staggered loan to Pakistan and guarantee part of their public debt (do sovereigns need outside guarantees for their public debts? apparently the ones in really bad shape can do with some) allowing them some breathing liquidity. The staggered debt also means that we will have some leverage to get some of our own things which we have been wanting Pakistan to do (like hold the ISI on a tight leash, fishermen in Sir Creek etc.).

And as for Pakistan and its tribal lashkars who want to fight, perhaps Pakistan army can hire them on a contract basis of some sort (Like the Short service comissions we have here) and have them fight the militants as Pakistani soldiers. This way the ammo stays in safe hands (relatively safe hands anyway) and they get their orders from a civilised government.

The India-supporting-Pakistan plan however, is never going to see the light of dayas it has too many vested interests going against it. Several political leaders on both sides of the border would stand to lose their base if Pakistan/India wasn't an enemy anymore.

Trivialising the UN System?

Two recent judicial developments have sent across signals of doubt yet again as to what the value of UN measures is. The first one is Medellin v. Texas (US Supreme Court judgment of March 25, 2008), in which the Supreme Court by a majority of 6:3 declared that the UN Charter and other treaties are not self-executory and therefore not binding, despite recognising that there are international law obligations accrued.

The case came in the following context. The appellant, Medellin and other Mexican nationals raped and murdered two girls in Texas, and were arrested for the same crime. Although the Miranda warning was given by the authorities, the Texas authorities did not comply with the requirements of Vienna Convention on Consular Relations, 1963 (of which US is a signatory), which prescribes that in the event of an arrest of a foreign national, the accused must be informed of his right to contact his consulate. The Optional Protocol provides that the disputes arising out of VCCR fall within the compulsory jurisdiction of the International Court of Justice.

Mexico brought an action against the US in the ICJ on behalf of 51 nationals placed in similar circumstances, which decided in Avena (Mexico v. US) that since the requirements of VCCR were not fulfilled, the concerned nationals were entitled to a review of sentences. The Appellate Court refused to implement the ICJ judgment. Medellin approached the US Supreme Court, which admitted the appeal. Subsequently, the US withdrew from the Optional Protocol to the VCCR. President Bush issued a memorandum in 2005 ordering States to review the sentences of the Mexican nationals, complying with the VCCR.

The US Supreme Court was now considering a) whether the Avena judgment of the ICJ was automatically executable; and b) whether the President’s memorandum is valid.

The majority opinion written by Chief Justice Roberts and the concurring by Justice Stevens ruled that Art. 94 of the UN Charter uses the words “undertakes to comply with the decision of the International Court of Justice”, which the Court held was not adequately binding, since it was lesser in its tenor than words like ‘shall’ or ‘must’, thereby holding that ICJ judgments are not binding without a Congress law. The Court also declared the President’s Memorandum void because it found him making law and thus, violating the separation of powers principle.

The dissent by Justice Breyer, who is a Democrat President-nominated judge, and more liberal than others, is powerful, and I think, pragmatically sounder. He begins with the Supremacy clause contained in Article VI, cl. 2 of the US Constitution, and on that basis regards the treaty obligation as binding on the judicial organ. Holding that the Charter’s language of ‘undertakes to comply’ is adequately self-executory, since it is unlikely that an international instrument will contain stronger language, he notes that the ICJ judgment in this case and in any case to which the US is a party is binding on all the Courts in the US. He also upholds the President’s Memorandum as he feels that it falls within the second category of the three-pronged Youngstown framework elucidated by Justice Jackson in 1952, that is an action where he has no express authority or Congressional grant, but in which he and the Congress would have concurrent authority, or in which the distribution is uncertain. This is opposed to the majority’s finding of the President’s Memorandum falling within the third category where the President takes measures incompatible with the express or implied will of the Congress.

In the second judicial development, Kadi and Al-Barakaat International Foundation v. Council and Commission (CJEC Judgment of September 3, 2008, C-402/05 P, available at http://curia.europa.eu/), a challenge was brought against the EC measures taken in compliance with the UN Security Council resolutions freezing bank accounts and imposing other restrictions on persons and organisations suspected of being involved with Al-Qaida, Usama Bin Laden and the Taliban, on the ground of violation of fundamental rights of hearing, of effective judicial remedy and of property. The CJEC upheld the challenge and found that the EC measures could not stand.

Both these judgments have resulted in a precarious situation as to the status and strength of UN measures. While in both the judgments, the respective judicial fora accept that international obligations accrue, they put the executive (in the first case) and the member-States (in the second case) in a strange situation. In Medellin v. Texas, Chief Justice Roberts went so far as to say that the option of a veto when the matter comes up before the Security Council for non-compliance under Article 94(2) of the Charter, is always available with the US. Clearly, these judgments indicate a dangerous trend, going to the root of UN actions. In Kadi, the CJEC indirectly reviewed Chapter VII Resolutions, which are non-reviewable at any rate. The Security Council has been given the widest power to maintain peace and security, and without the cooperation of its member-States, it is hardly imaginable that any such measures can succeed. Violation of fundamental rights cannot be imputed to Security Council resolutions, because the basis of the Charter is that the goal of peace overrides the goal of justice, and in some cases, if there is injustice caused, such measures are necessary to be taken to ensure peace and greater security.

Re: Dying in Degrees

Our agenda begins with this opinion which appeared in The Indian Express recently, where T.R. Andhyarujina makes out a case for the abolition of death punishment due to the time gap between the verdict and the hanging. He says that the death row phenomenon is cruel and inhuman and even if capital punishment is retained, it is legally and morally indefensible to execute a person after keeping him (he uses the current example of Afzal Guru) on death row for that long. While Andhyarujina says that Afzal Guru’s is a special case because it has become a highly political issue, I think even otherwise it is unjust to hang a person months, or at times, years after he has languished in the jail waiting for a judicial verdict to be implemented. (Case in point: Dhananjoy Chatterjee’s execution in 2004 almost 14 years after the death sentence was passed).
The delay, usually caused due to mercy petitions pending before the President/Governor, can be avoided in a manner which is this.
- That the Supreme Court entertain a compulsory review of the confirmation of the death sentence by the High Court, and the entire confirmation process till the Supreme Court be completed within 3 months. This will ensure that without prejudicing the convict’s right to move the higher Court, chances of error are eliminated as far as possible. This must imply that there must be no further right to appeal/review available to the convict.
- Next, that the power to pardon a person who has been sentenced to death should be exclusively vested in the President. Currently, the President and Governor have coterminous pardoning power in death sentence cases (Art. 72/161 of the Constitution of India). And he must grant pardon or reject the petition within one month from when it is submitted. In case he does not dispose of the petition within that one month, the death sentence should automatically be commuted to one of life. This approach finds support in Supreme Court judgments like Madhu Mehta v. Union of India (reported in AIR 1989 SC 2299) and Daya Singh v. Union of India (reported in AIR 1991 SC 1548), where the Court has commuted death sentences to life terms because of unreasonable delay caused in disposal of the mercy petition by the President.
Thus, if India must retain death penalty in the “rarest of rare” cases, it must also immediately revamp the law relating to the same to prevent a convict from undergoing long prison sentences before he is finally executed.