Post Retirement jobs for Judges - Scare on Independence of Judiciary

 

The independence of the judiciary was considered by the framers of India’s constitution to be of paramount importance chiefly because the functioning of an effective democracy required judges of the higher judiciary to remain free of any political influence. In the case of Indian democracy, this is particularly so, as the constitution vests in the country’s judges an enormous power. The Supreme Court of India and the High Court act as the final arbiters of constitutional disputes, and can overrule not merely ordinary law enacted by a legislature that enjoys popular will, but, after the Kesavananda Bharati case, also constitutional amendments, which in the courts’ view infract the “basic structure” of the constitution. The institutional integrity of the judiciary, therefore, requires the courts to enjoy the confidence of the public; society needs to see judges as bastions of justice, who will stay independent of government to uphold the people’s most fundamental rights. Article 50 of the Indian Constitution states that the state shall take steps to separate the judiciary from the executive, since the executive has nothing to do with the appointment of Supreme Court judges, its power to appoint them post retirement can cast a shadow on the integrity of the judiciary.   

An independent study conducted by Vidhi Centre for Legal Policy found that almost 70% judges of the Supreme Court get government jobs post retirement.36 % of all the appointments were also made by the central government exclusively to several bodies including tribunals, commissions, ad hoc committees and other government positions like Lokayuktas.[1] Another study reveals that chances of a judge to get post retirement job increases by 15-20% with every judgment that favours the government.[2] First law commission’s 14th report suggested that the judges of higher judiciary should not accept any government post after retirement because their conduct even after retirement are crucial to preserve the faith of people in judiciary.[3] Report stated:-

“The practice of judges looking forward to or accepting employment under the government after retirement was undesirable as it could affect the independence of the judiciary. We, therefore, recommended that a constitutional bar should be imposed on judges accepting office under the union or state governments.” But such a bar was never put in place due to absence of any such law.

The Supreme Court of India in the recent ‘master of the roaster case’ reiterated that the public confidence was the greatest asset of judiciary, the court held that- “the faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary”[4]

In the case of Madras Bar Association v. Union of India[5], where the Supreme Court declared National Tax Tribunal as unconstitutional because when the litigant becomes appointing authority it violates independence of judiciary which is also a basic feature of the Indian Constitution.   Bar Council of India has also requested the judges of Supreme Court and High Courts not to take post retirement jobs at least for two years once they retire.[6]

Arguments that favours post retirement jobs-

The valuable experience and insights that competent and honest judges acquire during their period of service cannot be wasted after retirement. Unlike abroad, a judge of the higher judiciary in India retires at a comparatively young age and is capable of many more years of productive work. However, government-sponsored post-retirement appointments will continue to raise suspicion over the judgments. Therefore, the viable option is to establish, through a statute, a commission made up of a majority of retired judges to make appointments of competent retired judges to tribunals and judicial bodies. Supreme Court can put in place a process to regulate post-retirement appointments for judges. Attorney General of India K.K. Venugopal said “so many years of worthy experience would be in vain if that were to be the order of the day; how would the tribunals and commissions function?”[7]

Arguments against the post retirement jobs-

The immediate appointments suggest that decisions regarding their post-retirement assignments were already taken by the government. Immediate post-retirement appointments of the judges create a cloud over the sanctity of their judgments, irrespective of their merits. Judges accepting jobs under the Executive certainly creates situations of conflicts of interest. It tends to undermine public faith in judicial independence. In the recent ‘master of roster case,’ the Supreme Court reiterated that public confidence was the greatest asset of the judiciary. Judiciary and executive should remain mutual watchdogs than mutual admirers.Additionally, the acceptance of post-retirement jobs leaves newly retired judges open to political criticism from the opposition, who use it as an excuse to not only cast aspersions and insinuations on the government of the day and the judges who accepted these jobs immediately on retirement, but also on the Court, the Judicial system, and the judgments and orders passed by these judges while in office. This gets exacerbated when judges take up these appointments within days of retirement, as was done recently for appointments to the National Consumer Disputes Redressal Commission and the National Green Tribunal. Issues of propriety also flare up in cases of purely political appointments, such as if judges on retirement become Governors.

Conflict of Interest

Independent judiciary is the soul of Rule of Law, and core branch of liberal democracy. Judiciary can never be fair and transparent if government can influence their judgments. The possible conflict of interest in ruling on cases against the government or government functionaries if a quid pro quo is involved has been talked about in the past. The primary fact remains that judges who seek post-retirement jobs may seek to ingratiate themselves to their future employers, in this case, the Government of India (also the largest litigant in the country). Even assuming that no such exercise is undertaken by judges, the question of appearances and perception must rule from front and centre. The practice followed by high Constitutional functionalities must not suffer from an infirmity this grave, which allows for even the distinct possibility of a judge acting in an unseemly manner.

In 2012 the then Leader of Opposition and senior BJP leader Mr. Arun Jaitley stated that- 

“Pre-retirement judgments are influenced by a desire for a post-retirement job. My suggestion is that for two years after retirement, there should be a gap (before appointment), because otherwise the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualize”[8]

Justice B. Kemal Pasha, a retired judge of Kerala High Court in his farewell speech said “When a judge is expecting a post-retirement job from the government, normally he will be in a position not to invite displeasure from the government at least in the year of retirement. There is a common complaint that such judges do not invite displeasure from the government by expecting post-retirement jobs”[9]Recently Justice Sunil Gaur of Delhi High Court who rejected application (two days prior to his retirement) of former finance minister P Chidambaram for protection from arrest in the famous INX media case was appointed as chairman of Prevention of Money Laundering Appellant Tribunal. There are two important things we need to consider, first the case was very politically influenced and second the appointment was cleared within days. There is no doubt with respect to the merit of judgment, but even a slightest perception can damage the image of judiciary and confidence of public.       

In the case of Rojer Mathew v. South Indian Bank Ltd.[10], the amicus curiae, Mr. Arvind P. Datar suggested that the “Tribunals should not be heaven for retired persons and appointment process should not result in decisions being influenced if the government itself is a litigant and appointment authority at the same time, there should be restrictions on acceptance of any employment after retirement”

Justice Krishna Iyer’s observation demonstrates how the prospect of post-retirement employment can severely damage judicial independence. He states-

“Judicial afternoons and evenings are sensitive phases, the incumbent being bothered about post-retiral prospects. The executive plays upon this weakness to bend the integrity or buy the partiality of the elderly brethren.”[11]

Position in other countries 

In USA, to prevent to conflict of interest and to maintain independence of judiciary, judges don’t retire lifelong, once they appointed they can only be removed through impeachment. In USA instead of impeaching a judge after certain age the system indirectly bribes the judge to leave office or reduce workload.When judges reach the age of 65, they become subject to the Rule of 80. Under the Rule of 80, a judgereceives a full pension—equal to his or her salary—when the judge’s age and the judge’syears of experience on the bench equal 80. For example, a 65 year old judge with 15years on the bench qualifies under the Rule of 80, as does a 70 year old judge with 10years on the bench.It is important to understand that because a judge receives full pay upon satisfying the Rule of 80, the judge has no pecuniary reason to stay in office.In UK, judges retire after 70 years of age and there is no such law which prohibits the post retirement jobs, however no judge has taken such post.

Suggestions

1.      India’s judges serve very little time as chief justices. A suggestion would be to extend the retirement age till 70 on the condition that any statutory position has to be given within the tenure of the judge.

Alternatively,lifetime tenure can be provided to judges, which would shield judges from political influence. However life time tenure has its own disadvantage as that would lead to unemployment and old age judges whose skills have eroded cannot be removed from post would be a burden on courts, it is also pertinent to note that the judges enjoy their work when their abilities are sharp.

2.      The judiciary needs a mechanism to regulate the post retirement jobs of the Judges, for example Chief Justice of India and Leader of Opposition should be consulted before appointment.

3.      Former CJI, RM Lodha suggested that the judges should not take any post after retirement for at least two years after retirement. This will prevent the conflict of interest, for this a special law can be passed by the parliament. He also suggested that the retirement age could be increased. The appointment should be done after consulting with current Chief Justice of India.

4.      If a judge wishes to opt for post retirement job, his pension should be stopped.   

Conclusion

While the framers wrote into the Constitution that judges must not “act” or “plead” before any “court” or “authority” in India, there is nothing in the Indian Constitution that prevents the government from offering and, judges from accepting, post-retirement jobs. Indian courts have read this provision very narrowly to exclude situations where judges become governors, Members of Parliament or members of tribunals and commissions of inquiry.During the last few years of retirement, when post retirement jobs become possible for the judges, independence of judges falls under stress. The immediate appointment of a judge post retirement by government creates cloud over the judgments that were pronounced by the judge, government is a major litigant and when a judge gets benefits from a litigant even after retirement it may vitiate the sanctity of judicial process irrespective of the merit of the judgments.Supreme Court in the master of roster case stated that public confidence is the greatest asset for judiciary, therefore judges should keep in mind that their conducts even post retirement are important to preserve this confidence.

Next, the Constitution should be amended to provide for a total restriction on judges of constitutional courts from accepting post-retirement government jobs. Articles 148 and 319 of the Constitution already contain such restrictions for the Comptroller and Auditor General and the Chairperson of UPSC, respectively. MC Setalvad, who headed Independent India’s first Law Commission, suggested this as early as in 1958.Alternatively, there could be a provision for a “cooling-off” period of at least three years between retirement and acceptance of post-retirement jobs to allow for appointment of retired judges to those tribunals and commissions that demand considerable judicial experience. We also need to revisit the legislations that allow retired judges to head various commission and tribunals. 

‘Justice should not only be done, but also seem to be done’ gets more profound in this context.

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[1]Shreeja Sen, “70 of last 100 retired Supreme Court judges took post retirement jobs:report” 3 December, 2016 (Available at-https://www.livemint.com/Politics/FptQJ57Ifc9oET7HDxNPNJ/70-of-last-100-retired-Supreme-Court-judges-took-post-retire.html)

[2]The Print, “The ‘Honorability index’: A look at Supreme Court judges who took post retirement jobs’”19 March, 2020 (Available at-https://theprint.in/opinion/the-honourability-index-a-look-at-supreme-court-judges-who-took-post-retirement-jobs/383450/)

[3]Law Commission Report No. 14- on Reforms of the Judicial Administration, Vol (1) 1958.

[4]Shanti Bhushan v. Supreme Court of India through its Registrar, Writ Petition No. 789/2018. 

/[5](2014) 10 SCC 1.

[6] Manu Sebastian,“Giving jobs to judges as soon as they retire helps government influence courts”, 8 July, 2018. (Available at-https://thewire.in/law/giving-jobs-to-judges-as-soon-as-they-retire-helps-government-influence-courts)

[7]Mehal Jain, “Judges should accept post retirement jobs, increase salary and retirement age of judges- AG KK Venugopal”,1 October, 2018,(Available at -https://www.livelaw.in/judges-should-accept-post-retirement-jobs-increase-salary-and-retirement-age-of-judges-ag-kk-venugopal/)

[8]YK Kalia, “Why post retirement jobs for judges is a bad idea”, 30 March 2020. (Available at-http://tehelka.com/why-post-retirement-jobs-for-judges-is-a-bad-idea/)

[9]Supra note 10.

[10]Civil Appeal No. 8588 of 2019 (Available at-https://indiankanoon.org/doc/36423291/)

[11] Arghya Sengupta, “After the judges retire: time for a fresh look at sensitive judicial afternoons and evening” 8 May, 2019. (Available at-https://vidhilegalpolicy.in/2019/05/08/after-the-judges-retire-time-for-a-fresh-look-at-sensitive-judicial-afternoons-and-evenings-the-times-of-india/)

(Vipin Sharma is a law graduate from NUSRL, Ranchi)

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Anti Defection Law and The Right to Dissent and Privacy: The Need to Settle the Law

 

"Dissent is the safety valve of democracy. If dissent is not allowed, then the pressure cooker may burst”- Justice D.Y. Chandrachud

Introduction

The Rajasthan High Court in its recent order dated 24.07.2020, in the case of Prithvi Raj Meenav. The Hon’ble Speaker, Rajasthan Legislative Assembly,[1] laid down some pertinent questions of law which may require further adjudication by the Hon’ble Supreme Court. These questions include:

i)Whether, in the facts and circumstances of the present case, Paragraph 2(1)(a) of the Tenth   Schedule of the Constitution, is violative, in particular to the basic structure of the Constitution of India including the fundamental right of freedom of expression guaranteed by Article 19(1)(a) of the Constitution of India and thus void?

ii) Whether the expression of dissatisfaction or disillusionment and the strongly worded opinions   against the party leadership can be a conduct falling within the scope of Paragraph 2(1)(a) of the   Tenth Schedule of the Constitution.

In the case of Subramaniam Swamyv. Union of India,[2] the Supreme Court has already observed that voice of dissent or disagreement has to be respected and regarded and not to be scuttled as unpalatable criticism. Emphasis has been laid on the fact that dissonant and discordant expressions are to be treated as view-points with objectivity, and such expression of views and ideas being necessary for growth of democracy are to be zealously protected. Thus, courts every now and then have laid great emphasis on the importance of dissent within a democracy.Similarly, Articles 105 and 194 of the Constitution protects the freedom of the speech of members in the Parliament and State legislatures respectively. The parliamentary privilege given to the members is so vast to the extent that in the case of P.V. Narsimha Rao v. State[3] it was categorically held that no civil or criminal proceedings can take place against a member for anything said in theHouse of Parliament or for a vote casted by them nor they are answerable to a court of law.

Freedom of Speech and Expression-Outside the House

However, a dispute may arise when a legislative member chooses to ignore the commands of his or her party leadership and tries to be the lone wolf. Now, the mandate under Para 2 of the 10th Schedule of the Constitution is too wide as it states “if he votes or abstains from voting in such house contrary to any direction” which can subsequently be a ground of defection. What may constitute these directions is nowhere listed in the Constitution and subsequently gives immense power to the party leadership.

Now, it will be pertinent to state that even our neighbourPakistan,where principles of democracy are rarely followed, has specifically enlisted what these directions are in Article 63A of its Constitution which as follows:

b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to—

(i)  election of the Prime Minister or the Chief Minister; or

(ii) a vote of confidence or a vote of no-confidence; or

(iii) a Money Bill or a Constitution (Amendment) Bill

Thus, they have managed to limit the extent to the political parties can have control over its members.

It is worth to mention that the dispute between balancing freedom of speech and expression and anti defection laws dates back to 1982, before the 10th Schedule was enacted, in the case of Mian Bashir Ahmad and etcv. State of Jammu & Kashmir and Ors,[4] whereby the petitioners challenged Section 24-G of the Jammu and Kashmir Representation of the People Act, 1957 as violative of Article 19(1) (a) and Article 19(1) (c) of the Constitution of India. The J&K High Court in this case vehemently observed that the right of dissent is essential in a democracy and any anti-defection law which does not take into account the right of conscious dissent would not only be unconstitutional but would also be unethical and have no place in a democratic set up.

Also, the Supreme Court in the landmark case of Kihoto Hollohan v. Zachillhu and Ors.,[5] was itself conscious of the fact that such law might affect and hurt even honest dissenters and conscientious objectors.

However, despite these warnings and observations, disqualification on basis of dissent has become a mayhem in recent times where every type of dissent has become a ground to petition the Speaker, who most of the times is the member of the ruling party, to disqualify the dissenter from the House.

Therefore, the question remains open to adjudication as to what actions may constitute defection and thus in this light it is important to focus on the international perspective as well.

International perspective

In the United States, one of the oldest democracies in the world, it is clearly ruled that a political party has every right to exclude a member from the party, who may have differing views, inspite his right to an opinion and dissent.[6] However, at the same time, a legislator is protected from disqualification in case he opts to oppose his political party on a particular matter. He can be excluded from a party but not the House itself.[7]

On the other hand, in UK, in considering whether actions outside the Houses and committees are also covered, the UK Supreme Court has ruled that it is necessary to consider the nature of their connection to those and whether denying the actions privilege is likely to impact adversely on the core or essential business of Parliament and that it is for the court and not for Parliament to determine the scope of Parliamentary privilege.[8]

It will also be important to mention the example of Malawi, which is a recent democracy. In the case of Registered Trustees of Public Affairs Committee vs. Attorney General and Speaker of National Assembly, the Malawi High Court observed that stretching the floor anywhere and everywhere outside the House does not just amount to an expansion of the principle of crossing the floor. It almost amounts to a complete abandonment of the original principle and to an adoption of a completely new concept. Where one has not resigned from his party, has not joined another political party, how that should amount to a crossing of the floor is beyond comprehension.Therefore, to a certain extent, a member of the house has been given freedom to dissent and still save his seat in the house. Therefore, it goes without saying that a member should be only accountable to the electorate he represents and not to anyone else.

Right to Privacy and Public Duty

It is a well-known fact by now that right to privacy is a fundamental right as envisaged in Justice

K.S. Puttuswamy v. Union of India[9]. Moreover, it was observed that it is a right which protects the inner sphere of the individual from interference from both State and Non-state actors and allows the individuals to make autonomous life choices.

However, the Delhi High Court in the recent case of Sasikala Pushpa v. Facebook India and Ors.[10], has subjected the right to privacy to a higher threshold. In this case the court observed that the electorate has a right to know of the behind curtains meetings of the plaintiff with particularly with a man belonging to a political party which the plaintiff before the public criticizes or opposes in the elections. If such meetings with member of a rival political party, which the plaintiff wants to remain hidden from the public, are not of interest to the public for the purposes of maintaining purity of administration and law making, little else would qualify as of public interest.

Therefore, this particular observation can have wide repercussions whereby anytime a member of house tries to defect and participates in meetings with opposition leaders, the same could be subjected as a public record to be sufficiently placed before his electorate and thus can be a hindrance in the secretive process of defection.

Conclusion

The courts from time to time has observed the various facets of the evils of the anti defection law on the fundamental rights of the legislator. However, the same is devoid of any conclusive adjudication as regards to the actions of a legislator outside the house as per the Indian courts are concerned. Therefore, in this context, inspite the Supreme Court refraining from adjudicating the case of the Hon’ble Speaker, Rajasthan Legislative Assembly v. Prithvi Raj Meena,[11] it still requires a detailed analysis by the Hon’ble Supreme Court to conclude this open ended question for once and all.

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^[1]Civil Writ Petition No. 7451/2020.

^[2]  (2016) 7 SCC 221.

^[3]AIR 1998 SC 2120.

^[4]  AIR 1982 J&K 26.

^[5]  AIR 1993 SC 412.

^[6] O’Brien v. Brown, 409 U.S. 1 (1972).

^[7]Barley v. Luzerne County Board of Elections, 937 F. Supp. 362 (M.D. Pa. 1995).

^[8]R v Chaytor, [2010] UKSC 52.

^[9] (2017) 10 SCC 1.

^[10] 2020 SCC Online Del 618.

[11] D.B. Civil Writ Petition No. 7451/2020

(Abhinav Agarwal is a law student from Amity Law School, Delhi)

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The Children of Shaheen Bagh- pawns or protestors?

 

Shaheen Bagh has emerged as a talking point again after seix months of its culmination early this year. The Supreme Court of India while upholding the right to protest and the importance of dissent in a demoracy also held that “protests like these [Shaheen Bagh] are not acceptable”. The Court held that protests cannot disturb public movement and occupy public places indefinitely. The decision delves into the aspects of where and how to protests. However, another equally important aspect is who should protest. The protests at ShaheenBagh witnessed participation of children and also saw the horrific death of an infant caused by the cold temperature at ShaheenBagh at night. The participation of children and infants in ShaheenBagh raises question on the relevance of their presence. By participation, the author does not mean being merely present, but rather active participation in the activities conducted by adult protestors. This is an area which has been overlooked and thus this article analyses the aspects related to protests by children and the relevance of consent and informed expression of dissent with reference to the ShaheenBagh protests.

ShaheenBagh- A Saga

ShaheenBagh, the epicentre of the Anti-CAA protests and an unknown place to many, became a household name across the nation. Shaheen Bagh witnessed protests by the common citizens and popular artists such as PrateekKuhad and SubhaMudgal. Shaheen Bagh streets were covered art and literature expressing their disapproval of the CAA-NRC. New Agencies called the display of art as ‘The Art of Resistance’ and ‘The New Wave of Protests’.  Shaheen Bagh protests were also commended by many activists for being led by women, and mothers along with their children. Activists read out the Constitution of India, recited poems and read out stories to the children. In other words, evenings in Shaheen Bagh seemed more like an art-literature fest than a protest site.

Expression- informed and free?

The Indian Constitution recognizes the right to freedom of speech and expression and right to form an association of all citizens of India under Article 19 of the Constitution. Similarly, Article 13 of the Convention on the Rights of the Child(CRC) recognizes the right of children to express their views through the media. The UNICEFhas also promoted the participation of children in political decisions. However, a perusal of the CRC and UNICEF report reveals that the expression of dissent through protests is based on an informed decision of the child.

The Indian Penal Code 1860 (IPC) under section 82 states that no act or omission of a child below the age of seven is considered a crime for lack of capacity to know the consequences of their actions. Further, as per Section 83 of IPC states that the children between seven and twelve who have not attained sufficient maturity or are incapable of realizing the consequences of their actions are exempted from any criminal liability. A similar rationale applied even in the provision relating to kidnapping.

The ability of the child to distinguish the right from wrong becomes crucial in the exercise of the right to expression. A valid argument can be made when children are participating in the protests out of their own will and informed decision, after perusing both sides of the issue. However, when a child is being exposed to only one side of the issue, the participation of the child in the protest, even if out his/her own choice, is not adequately informed. Further, undue influence of parents on their children is a common phenomenon in Indian families; making it possible that at least some children are participating in the protests due to undue influence. A mere reading of the Indian Contract Act’s section 16(2)(a) provides that when the consent is obtained by a person holding real or apparent authority or having a fiduciary relationship, the consent is not free consent.

The Supreme Court took cognizance of the matter of children participating in Shaheen Bagh protests after an infant died due to cold weather. At Shaheen Bagh children below twelve years of age were seen holding posters calling various political leaders ‘unfaithful’ and crying out ‘Inqilab zindabad’. A boy chanting revolutionary slogans against the CAA, NRC, and NPR is also available online. Children were seen painting posters and pictures; however, though patriotic were often anti-CAA.

This article is not addressing the issue of whether the protests were legal or if people should protest against CAA-NRC. The article is also not a comment on whether the actions, slogans, poems, or paintings were seditious. The article focuses on the importance of informed decision making and free consent of the children participating in the protest. At Shaheen Bagh, the children, many of whom were below seven years old, were seen chanting slogans against CAA and naturally the question arises- “How many of them know what CAA-NRC is?”. If they do not, then, are they being used as a ‘tool’ for public solidarity? And an argument that children of ages between four to twelve understand the nuances of the law to have an informed opinion is a far-fetched claim.

How are children of Shaheen Bagh different from Malala and Greta?

The participation of children in Shaheen Bagh is unlike the climate change protesters Greta Thunberg and her friends. Greta skipped school voluntarily and protested without the interference of her parents. Her parents not only did not take her to protest but also tried to dissuade her. Thus, the question arises- “Would the children have protested if their parents had not?”. If the answer is ‘no’. Then there is a possibility of lack of free consent and lack of informed decision making. Greta Thunberg and Malala Yusufzai protested irrespective of the opinion and views of their parents. Parents may be facilitators of the expression of the child, however, when the child (without free consent and informed choice) becomes the facilitator to the political goal of the parents, then the participation of the child becomes questionable both legally and morally.

Even the Supreme Court of India in S. Khushboo v. Kanniammal&Anr[i]stated that informed citizenry is a precondition to meaningful governance. Thus, the author argues that the right of expression also entails a duty to make informed expressions. A cut and dry rule to determine what constitutes an ‘informed expression’ is difficult. However, when the expression is induced by influence or without consent, it is clearly an instance of uninformed expression.

Conclusion

In a democracy where freedom of speech and expression is a guaranteed right, it becomes pertinent that the expression is informed for meaningful democracy. The Shaheen Bagh protests were projected as an epitome of expression of dissent and freedom of speech. However, the presence of children in the protests became a concern after a child died due to cold weather. Children were seen to be protesting against the CAA-NRC by raising revolutionary slogans, painting pictures, among other activities. Such a scenario raises the question of how informed is the expression of the children. Is the participation of children in the protests a result of their free consent and informed decision? Or if the children are being used as a tool for public solidarity?As a means to an end.

An observation of credible news reports shows that children are not well-informed about the law and its nuances. And a conclusion can be drawn that the children are there because of their parents. There are arguments that mothers have taken their children to the protests because they do not have babysitting arrangements. However, children were seen chanting slogans and protesting against the law, thus not merely being present with their mothers but also engaging in the protests. Children were not being just read out the constitution or taught painting but also paintings criticizing the law. The author challenges not the content per se but asks the question whether the children painting anti-CAA know what they are painting? Or children chanting inqilab zindabad know the meaning of the phrase? Unfortunately, the answer is in the negative. Nine or ten-year-old children calling political leaders ‘bewafa’ (unfaithful) might not even know to write ‘bewafa’.

The author intends this article to be the beginning of a conversation on the relevance of informed expression, and participation of children in protests. Children are the future of any nation and must be extended the opportunity to make informed choices. Their decisions, especially, significant ones such as whether to protest a law must be independent and informed. Only when the citizens vis a vis electorate are informed the democracy is meaningful.

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[i][2010] 5 SCC 600, para. 29

(Nikhil Erinjingat is a 4th year law student of Ramaiah College of Law)

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