SC reiterates the Vineet Narrain limit for impunity provision

In Swamy v Singh, the Supreme Court has reiterated that the 3 month time limit imposed on the grant of governmental sanction under section 19 of the Prevention of Corruption Act 1988 for prosecution of public servants for corruption must be strictly adhered to. This time limit was originally imposed in the Vineet Narrain case.  The Court also said:

27. We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter.  What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction.

This blog has previously commented upon prior sanction or impunity provisions here, here, here and here. Readers may know that although the special impunity clause in s 19 of the PCA applies only to corruption cases, there is a general impunity clause under s 197 of the Criminal Procedure Act, which requires prior governmental sanction for the prosecution of public servants for offences under the Indian Penal Code (for the useful background, see this PRS post). Of course, s 197 was not at issue before the SC, and there was no reason why the court should have extended the 3 month time limit to s. 197 of hte CrPC as well. However, it is unfortunate that in his concurring opinion, Justice Ganguly expressly distinguishes s. 19 of the PCA and s 197 of the CrPC by endorsing an earlier SC authority, which held:

3. The sanction contemplated in Section 197 of the Code concerns a public servant who “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code.

To be fair, Justice Ganguly is pointing out the distinction to repel a different argument offered by the government. But it can surely be used to argue that the 3 month time limit should apply only to corruption cases under section 19 of the PCA, not other crimes under the IPC. Thus, a police officer who is accused of murder in a fake encounter, for example, will continue to enjoy the impunity offered by s 197. Corruption, it seems, is the only crime worth fighting against these days.

'Autonomy' of Nuclear Regulator: The ideal and the reality

Guest Post by Prashanth Reddy

Sometime later this year, Parliament is going to have yet another debate on the degree of ‘independence’ of an Indian regulatory body. The regulator in question is the nuclear regulator that has been proposed under the Nuclear Safety Regulatory Authority of India Bill, 2011 (NSRAI). The debate on the ‘independence’ of the nuclear regulator in India has been one of several contradictions. Despite the nuclear establishment repeatedly claiming that its regulator – the Atomic Energy Regulatory Board (AERB) – was independent, Rural Development Minister Jairam Ramesh very obviously contradicted the entire establishment when he publicly called for the creation of an ‘independent’ AERB. In order to understand the differing versions of ‘independence’, it is necessary to understand the history of nuclear regulation in this country.   

At the time of its inception, soon after independence, the Indian nuclear industry was regulated mainly by ad-hoc safety committees of the Department of Atomic Energy (DAE). In 1972 the DAE passed an office order creating the institutionalized mechanism - DAE-Safety Review Committee (SRC), which would now be responsible for safety of Indian nuclear plants. In 1979 the then Secretary of the DAE ordered the DAE-SRC to review its functioning and recommend any possible changes. This Committee was headed by M.V. Meckoni, Director BARC and its final report which was submitted in February 1981 came to be known as the Meckoni Committee Report and it is this report which formed the basis of the creation of the AERB. (The report can be downloaded over here.

A fatal error in this entire exercise was the composition of the Committee itself, which is not to say that the members of the Committee were incompetent but the fact that all seven of them were serving members of the nuclear establishment and would most likely not be capable of an objective assessment of independent regulatory requirements. The final recommendations of the Committee called for an ‘autonomous’ AERB staffed by members of BARC and the ‘DAE Family’ therefore in effect creating another ‘in-house’ body. Most of these suggestions were followed by the DAE when it created the AERB through an Executive Order of the President in 1983. In the process the only useful suggestion of the Meckoni Committee, which was to create the AERB through a legislation of Parliament was ignored. The problem with Executive Orders is that they can be modified by the DAE itself, something which it demonstrated in the year 2000 when it excluded BARC, India’s principal nuclear weapons establishment, from the purview of the AERB.

The AERB created by this Presidential Order was a system mired in severe ‘conflict of interest’. As per this Order the AERB was responsible to the Atomic Energy Commission (AEC). The AEC itself was responsible for promoting the use of nuclear energy in India and is in itself headed by the Secretary of the DAE. The DAE is the department which controls BARC, India’s primary nuclear weapons establishment and more importantly, the Nuclear Power Corporation of India Ltd. (NPCIL) – the government company which operates all of India’s nuclear reactors. The AERB’s mandate was to regulate the nuclear reactors operated by the DAE but at the same time made responsible to the AEC which was headed by the Secretary of the DAE. Further, the Executive Order also stated that the DAE would control the AERB’s budget and be responsible for it before Parliament.

Any objective assessment of the above setup would lead to the logical conclusion that the AERB was anything but ‘independent’ of the DAE. Surprisingly however, the AERB in its yearly reports to the IAEA under the ‘Convention on Nuclear Safety’ (CNS) has consistently claimed that it is an ‘independent’ body.

Section 8(2) of the CNS defines independence in the following terms: Each Contracting Party shall take the appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy. In its latest Report to the IAEA, the AERB has stated the following: “The position of AERB in the government set up ensures administrative and financial independence in its functioning. Technical support is drawn from various  national laboratories as well as from other national academic and research institutions. The Central Government provides the financial resource to AERB according to its proposed budget. There has never been shortage of finance towards fulfilling its mandate and responsibilities. The statutory and legal provision of the Act & various rules framed there under and the powers conferred by the gazette notification provides AERB with the authority for its independent and effective functioning. Hence, India complies with the intent and spirit of Article 8 of the Convention.”  

Obviously, the nuclear establishment and the political establishment have differing version of ‘independence’. The question for future debate is whether India’s latest attempt to create an independent nuclear regulator is compliant with its treaty obligations under the CNS? Ideally the government should have released a white paper on the status of the AERB before it proceeded to create a new regulator. However as always we put the cart before the horse.

[ Prashant Reddy T. is an Advocate, blogger at SpicyIP and a co-founder of the Pre-Legislative Briefing Service (PLBS).] 

Guest Post by Prashant Iyengar: A tribute to the late Professor Vepa P. Sarathi

The renowned legal scholar, eminent jurist, former Law Commission member and Senior Advocate of the Supreme Court Vepa P. Sarathi passed away yesterday, four years short of his 100th birthday. There were
portents: this is after all a season in which diminutive titans have been missing centuries. To the generation of his students at NALSAR and elsewhere, this news has come as a shock. I think many of us believed audaciously that he could live forever, or at least that our adoration of him would make it so. We mourn his passing today.

Professor Sarathi was the grandsire of NALSAR and stewarded us through many difficult legal battlefields. At once, Bhisma and Sarathi, he was to us, entirely the stuff of legend. A glance at his eclectic scholarly oeuvre -  including bestselling books on statutory interpretation, property law, evidence, his authorship of law commission reports, and his semi-professional interests in literature, vedic mathematics and astronomy, all attest to his extraordinary erudition. The NALSAR university website lists him as having taught courses in the Indian Penal Code, Criminal Procedure, Transfer of Property, Evidence and the Constitution. He also taught Judicial Process and Company Law and was available for guest talks in many other courses. With him around we had the rare privilege of having eight decades of legal virtuosity at our continuous disposal.  NALSAR will be hard pressed to find five new faculty who could be the equal of one Professor Sarathi. But more than his scholarly attainments, he was also habitually a friend, guide and mentor to almost everyone who crossed his path, and was the affable grandfather-in-law (avus lex) who we all looked up to. He was simply the kindest man we knew. It is this latter avatar that we will miss the most.

In his first satire, the Roman poet Horace pauses to ask rhetorically, “Ridentem dicere verum Quid vetat?” (roughly, “What prevents me/one from speaking the truth in a playful mood/smilingly?”). I think this question quite aptly describes Professor Sarathi’s teaching style, if not his entire mien. He had a rich fund of humour - anecdotes and clever limericks, many of his own coining - which he employed to dilute the viscosity of legal discourse. As a teacher his lectures were always riveting– whether he was discussing arcane principles of
property law or lighter themes like law and literature. He had the magician’s knack of nonchalance. The rabbit of the rule against perpetuities was conjured effortlessly from his top hat of legal knowledge, and presented to us matter-of-factly. Having only recently turned law professor - of property law, at that - I am now more fully able to appreciate the wizardry required to be able to convey nuances of property dogma to a class of indifferent nineteen year olds!

More than an institutional loss, his passing will be felt as a national loss. For over four decades, his books on Property, Evidence and Statutory Interpretation have instructed thousands of law students interested in acquiring more than a mere guidebook education. Moreover, at 96 he was one of the last surviving repositories of a
legal memory that spanned, and could give firsthand accounts of four distinct eras of our legal culture - colonial, national, post-emergency and post liberalization. He could speak of law with the same facility as narrating his own family’s history. He was simultaneously museum, relic, encyclopedia, chronicler, genealogist and exponent of Anglo-Indian law. A true national treasure. 

A friend’s favourite Vepa Sarathi story is about how she once discovered him in his office at NALSAR reclining comfortably in his chair, feet resting on his table, absorbed in a Harry Potter book. This has also become my favourite image of the man. At 95, this is what I aim to be doing. To have accomplished in law even a fraction of
what he did, but also to stretch my legs on a table and read whatever it is the kids are going crazy about. To have authored dense legal commentaries and have read Cicero, but also to retain my curiosity in the fabulous. This ‘passionate curiosity’ will be one of Professor Sarathi’s enduring legacies. It is the thing he has infected us, his grateful students, with.

We will miss your gentleness, you erudition and your humor Professor Sarathi. Thank you for everything.

Guest Post by Anup Surendranath: Children Born Out of Inter Caste Marriages – Abandoning a Pure Group Assimilation Approach

The recent decision by a two judge bench of the Supreme Court (Justices Aftab Alam and Ranjana Desai) in Rameshbhai Dabhai Naika v. State of Gujarat has clarified that a person born out of an inter-caste marriage can inherit the caste/ tribe status of the mother (for the purpose of reservations) as result of an evidence-based factual determination of the disadvantages suffered. The court held that a mechanical application of the position in Hindu personal law that a child born out of an inter-caste marriage inherits the caste of the father is constitutionally invalid as far as determining beneficiaries of reservations is concerned. This judgment consolidates the Supreme Court’s departure in the mid-90s from its early discourse on such issues developed between the 50s and 70s through cases like Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram (1954), N.E Horo v. Jahan Ara Jaipal Singh (1972) and Guntur Medical College v. Mohan Rao (1976). In my view, the importance of the decision in Rameshbhai lies not so much in the fact that it reiterates the established position since the 1950s that a woman need not necessarily assume the caste/ tribe status of her husband as far as reservations are concerned, but rather in its consolidation of the position that the individual experience of disadvantage is just as relevant as group membership even for Scheduled Castes and Scheduled Tribes (admittedly restricted to contexts of non-birth based membership in the group).

In the Jasani and Jahan Ara era, when confronted with determination of caste/ tribe status arising out of inter-caste marriage and adoption cases in the context of reservations, the Supreme Court’s response was to focus on the assimilation of the person within the beneficiary group. Questions concerning acceptance by other members of the beneficiary group and nature of assimilation were central to the discussion. However, it must be noted that even during this period the emphasis was very much on an evidence-based factual determination but with a completely different focus.

The judgment of the Gujarat High Court in Rameshbhai Dabhai Naika (2010) that the action of the relevant authority in cancelling the appellant’s Scheduled Tribe certificate was valid on the ground that the appellant could only inherit his father’s caste (forward caste Kshatriya) and not his mother’s Scheduled Tribe status was rightly seen as an incorrect application of precedent. The two judges disagreed with the manner in which the decisions in Valsamma Paul v. Cochin University and Ors. (1996), Punit Rai v. Dinesh Chaudhary (2003), and Anjan Kumar v. Union of India (2006) were interpreted and held that those decisions in fact supported the position that every such case must be decided on particular facts as applicable to the individual.  Though there could be a presumption that a child born out of an inter-caste marriage inherited the caste of her/ his father, the Supreme Court was of the view that such a child could lead evidence to rebut the presumption while demonstrating that she/ he was brought up by the mother and was also accepted by the mother’s community along with those outside the community.

However, the nature of the factual determination being discussed in the Supreme Court’s judgment in Rameshbhai is significantly different from what was contemplated in Jasani and Jahan Ara. Starting with Valsamma, the Supreme Court has sought to move away from a framework that requires factual determination only along the lines of acceptance by group members and assimilation. In Valsamma, the Supreme Court explicitly holds that, for purposes of Article 16(4), recognition of the individual by the beneficiary group is irrelevant and it is the life experience of the individual that is relevant. Decided by a two judge bench, the decision was arguably not in consonance with what was decided by larger benches (three judges) in Jasani and Jahan Ara. In Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Ors. (2005), three judges of the Supreme Court over-ruled Jahan Ara to the extent that it does not take into consideration the actual background and circumstances of the person in question and relies solely on questions of group assimilation. Marriage into a beneficiary group and acceptance by the members of that group is held to be insufficient for an individual to claim benefits under Articles 15(4), 16(4) and 332.

The Supreme Court’s decision in Rameshbhai is a logical extension of the decision in Sobha. While in Sobha, the question was whether a woman from a socially dominant group could marry into a beneficiary group and claim the benefits of reservation, in Rameshbhai the court was faced with the reverse fact scenario. The individual in question wanted to inherit his mother’s Scheduled Tribe status despite her marriage to a forward caste man. The court was correct in extending the analysis in Sobha to establish the position that an examination of the individual’s circumstances can lead to her/ him inheriting the mother’s status.

Therefore, the big news from the Supreme Court’s decision in Rameshbhai is not really that an individual can inherit her/ his mother’s status in certain circumstances, but rather that the Supreme Court now seems to have established the position that, in cases of inter caste marriage, children born out of inter caste marriage and adoptions, there is an additional level of investigation to be conducted to decide the eligibility for reservations – and that additional level of investigation centres around individual deprivation and moves away from pure notions of group membership even in the case of Scheduled Castes and Scheduled Tribes.

Undoubtedly, it would have been possible to reach the same conclusion through the framework developed in Jasani and Jahan Ara but the additional individual-based investigation in the manner envisaged Valsamma onwards certainly contributes to fine tuning India’s reservation policies.    

PRS' Legislative Assistants for Members of Parliament (LAMP) Fellowship Programme

PRS Legislative Research is accepting applications for their Legislative Assistants for Members of Parliament (LAMP) Fellowship Programme. Please see below for details about the fellowship and the criteria for selection.

The Legislative Assistants for Members of Parliament (LAMP) Fellowship is an opportunity for exceptional young Indians who are seeking to widen their understanding of politics and policy-making in the country. The LAMP Fellowship is a unique initiative, designed to provide individualised research support to MPs, by training Fellows to assist them in their tasks as law-makers. The LAMP Fellowship was conceptualised by PRS Legislative Research in 2010, launched with a pilot initiative consisting of 12 LAMP Fellows. Currently, the LAMP Fellowship 2011-12 has 46 LAMP Fellows, who come from diverse academic backgrounds and are working with Members of Parliament from across political parties.

Role of a LAMP Fellow: Each Legislative Assistant is assigned to an MP, to provide quality research support for their legislative and oversight duties. The LAMP Fellow will help MPs frame Parliamentary questions, raise issues, participate in parliamentary debates and speeches and help prepare for committee meetings.

Essential Criteria: Under the LAMP Fellowship, PRS is seeking committed, highly-motivated individuals to assist MPs for their work in Parliament. Applicants must meet the following criteria:
Applicants must be no more than 25 years of age (born on or after January 01,1987)
Applicants must have at least a Bachelor’s degree in any discipline.
LAMP Fellows are required to be based in Delhi for the entire duration of the Fellowship.
Only Indian citizens can apply.
Duration: June 2012 to May 2013.

The last date for applications for the LAMP Fellowship 2012-13 is February 26, 2012.

President's "Assent" for Lokpal Bill's Introduction in Rajya Sabha

Earlier this week, the government scrambled to obtain the President's consent before the Lokpal Bill was sent to the Rajya Sabha. It was widely reported that presidential approval was necessary "because several amendments were moved in the Lok Sabha." This explanation was both odd and misleading. Nothing in the Constitution requires presidential action just because a bill is adopted by one house of parliament with a number of amendments.

Rather, as some newspapers later reported, the President's involvement was necessary because the Lokpal's expenditure will be charged to the Consolidated Fund of India. Article 117 (3) of the Constitution requires the President to sign-off when a bill includes such a provision. Yet, contrary to the news reports, the President did not "assent" to the Lokpal Bill before it went to the Rajya Sabha. Presidential "assent" is only granted after a bill has been duly adopted (or deemed to have been adopted) by both houses. Rather, the President had only "recommended" that the Rajya Sabha consider the Lokpal Bill as passed by the Lok Sabha.

The Article 117 (3) requirement applies when either house of parliament (not just the Rajya Sabha) considers a bill involving Consolidated Fund expenditure. Accordingly, a Presidential recommendation had already been obtained when the government introduced the Lokpal Bill in the Lok Sabha earlier this month. Due to Article 117 (3)'s wording, a separate recommendation was necessary before the Bill could be sent to the Rajya Sabha.

Interestingly, the President's communication to the Lok Sabha also cited Article 117 (1), which requires prior presidential recommendation for "Money Bills." These bills are defined in Article 110 to include those involving expenditures charged to the Consolidation Fund. The reference to Article 117 (1) was omitted from the presidential recommendation to the Rajya Sabha ostensibly because, as a Money Bill, the Lokpal Bill could only be introduced in the Lok Sabha.

The Case for Universal and Integrated Health Care in India

In an Op Ed published yesterday in the New Indian Express, I describe the current crisis of health service delivery in India. I argue that while we certainly need to increase health spending in India, more importantly, we need to reflect upon the failures of health policy over the last 60 years that have resulted in the current crisis. I analyse three chief failures of health policy in India and argue why we need to move toward provision of universal health care within an integrated health care system. I also make some suggestions as to initial steps in this direction.

Some excerpts from the article are as follows:

India’s health care system is in crisis. Health indicators are dismal. One quarter of the world’s total maternal deaths every year occur in India. 47 per cent of all children in India are underweight. This is more than the number for the entire continent of Africa. India’s health system failures are usually attributed to the chronically low levels of health spending. In most countries of the world, government spending on health care constitutes a significant proportion of total health spending partly because health care constitutes a “public good” and also because health spending enables poverty reduction and greater social equity.

Despite increases in spending in recent years, total yearly health spending in India as a percentage of GDP is approximately 4.5 per cent, thereby contributing to India’s rank of 153 out of 193 countries with respect to total expenditure on health per capita. However, government expenditure on health is only a quarter of total health spending with the bulk of the expenditure being private expenditure. The impact of this spending inequality has severe consequences in a country where 42 per cent of the population lives below the international poverty line of $1.25 per day and an even greater proportion of the population relies on public health facilities.

Today, there is recognition that the government must increase health spending in India. The stated goal of the National Rural Health Mission launched in 2005 was to increase health expenditure from 0.9 per cent of GDP to 2-3 per cent of GDP in the next 5 years. However, despite increases in government health spending, this target has not been met so far.
While India’s neglect of health spending is significant, India’s health policy failures are graver because they mean that whatever little is spent on health is not used effectively to ensure better health service delivery. Within India’s federal constitutional framework, state governments possess primary responsibility for public health and sanitation, including both the funding, programmatic and structural development of health care systems, hospitals and dispensaries. Yet the central government significantly influences health policy through its “Five Year Plans” and centrally sponsored schemes.

India’s health policy since independence has been marked by three chief failures that have contributed to the current health care crisis. First, there has been an absence of a political commitment to realise universal health care. Second, the shift in budgetary and policy priorities toward the creation of vertical disease eradication programmes and family planning during the 1960s and 1970s, which gained even greater impetus during the emergency, have resulted in a decline of institutional health capacity and prevented the creation of an integrated health infrastructure in India. Third, where piecemeal disease eradication programmes as opposed to universal health care programmes have in fact been implemented, they have proved to be both ill conceived and cost ineffective.

..........
The need of the hour is a serious rethink of health policy in favour of establishing a universal and integrated health care system. Toward this end, government health spending must in fact be increased to 2-3 per cent of GDP. The NUHM must be launched as soon as possible and integrated with NRHM. Both the NUHM and NRHM must become a permanent feature of our Five-Year Plans and not dependent on the budgetary priorities of future governments. However, serious, transparency, accountability and bureaucratic failures plague health service delivery in India, particularly in the poorest states. Continuous monitoring and audit of health schemes is imperative for India’s health care system. PDS, ICDS and the mid day meal schemes should be integrated with the NRHM and NUHM.

The Op Ed can be accessed at the following link:

Dealing with Forced Marriages

Pakistan joins the UK in taking the question of forced (not merely 'arranged') marriages seriously. However, unlike the UK which has a civil regime in place to protect people in danger of being forceably married (under the Forced Marriage Civil Protection Act 2007), Pakistan has preferred a criminalisation approach. The Prevention of Anti-Women Practices (Criminal Law Amendment) Act 2011 amends the Penal Code to add s 498B, which criminalises forced marriages. It also amends s 310A, which provides for punishment of anyone who compels a female into marriage in order to settle a civil dispute or criminal liability.

The women's movement in India has been surprisingly soft-spoken on the issue, while the queer rights movement in India has begun articulating its demand to deal with forced marriages. A sophisticated civil society debate on the extent of the problem and how best to deal with it is still to emerge. While there has been some movement towards the legal recognition of live-in relationships, I am not aware of any evidence that the Indian state even considers forced marriages a serious issue.

Advocates-on-Record: Name on Rent

Guest Post by Prashant Narang*

The Advocates on Record (AoR) exam results came out recently and only 71 advocates out of around 400 test takers could get through the June 2011 examination. The system is now under challenge in the Delhi High Court in Balraj Singh Malik Vs. Supreme Court of India through its Registrar General WP(C) 8327/2011.

Unlike the Senior Advocate system, AOR selection is neither an ambiguous process nor based on any subjective satisfaction of the Court, but rather is pegged to an objective written exam that aims to create a dedicated SC ‘Bar’ well-versed with the Apex Court rules and procedures. In SCBA v. B.D. Kaushik reported in 2011(11)SCALE72, the Court has explained the SC rules in the context of AoRs:

8. … [A]n advocate-on-record to be the only person to "act" as well as to "plead" before this Court. The other two categories of persons, namely, "senior advocate" and "non- AoR" can only plead, but cannot act on behalf of the client. Their appearances/pleadings in a case before this Court cannot be without an AoR and without his instructions. …[A]n AoR shall, on his filing a memorandum of appearance on behalf of a party accompanied by a vakalatnama duly executed by the party, is entitled to act as well as to plead for the party in the matter and to conduct and to prosecute before the Court all proceedings that may be taken in respect of the said matter. Clause (b) of Rule 6 mentions that no advocate other than an AoR shall be entitled to file an appearance or act for a party in the court. Rule 10 of the Rules provides that no advocate other than an AoR shall appear and plead in any matter unless he is instructed by an AoR, …

Now, non-AoRs do appear and plead in the Supreme Court, although supposedly with an AoR and under his instructions. If the Apex court is marginally different from the High Court in certain procedural aspects such as filing Special Leave Petition, trial courts are nowhere near to the High Courts on this fictional similarity index. Needless to mention, advocates are allowed to file, plead and appear in all other courts and tribunals without passing any special exam.

The SC rules mandate ex-ante ‘instruction’ by the AoR to non-AoR advocates probably to ensure quality of arguments and adequate preparation. The penalty for not actually doing so could be the discretionary imposition of costs on a lawyer for under-preparation or wasting the Court’s time. But imposing a penalty for inadequate preparation does not require AORs. By way of imposing costs, the court can inculcate discipline and raise standards of the court proceedings with or without AoRs.

The other issues with the AoR rule mandating instruction are enforcement and the perverse incentives it creates. Not only does the Court find it difficult to check whether the AoR actually gave instructions before the proceedings, every AoR will find it lucrative to maximize his earnings by way of letting out his name on rent to the maximum number of advocates. This is evident from the Court’s observations in Poonam v. Sumeet Talwar [WPC 86/2000; decided on 22 Mar, 2010]:

19. In Vijay Dhanji Chaudhary Vs. Suhas Jayant Natawadkar (2010) 1 SCC 166, this Court has taken note of the ongoing rampant unethical practice by some of the Advocates-on-Record, duly enrolled under the provisions of the Supreme Court Rules, 1966, as many special leave petitions are being filed by them being merely as name- lenders, without having, or taking any responsibility for the case. As a result of prevalence of such a practice, in such cases, the Advocates-on-Record do not appear when matters are listed before the Court, nor do they take any interest or responsibility for processing or conducting the case. They also play no role in preparation of the petitions, nor ensure that requirements of Rules 12 are fulfilled and defects are cured. If role of an Advocate-on-Record is merely to lend his name for filing cases without being responsible for conduct of a case, the very purpose of having the system of Advocates-on-Record would get defeated.

The usual intuitive response to this problem would be to mandate the presence of an AoR during the hearing. However, the number of AoRs is very limited, and so the case proceedings may have to be adjourned resulting in further delays in the already clogged system. Secondly, it would increase the costs charged by AoRs thereby further raising the cost of justice to the litigant as their input hours would increase. Please note that contingent fees are not allowed in our jurisdiction and lawyers charge ‘per appearance fee’. This would mean double the appearance charges and double the size of the hole in the pocket of the poor litigant.

Another solution that might immediately come to the reader’s mind is to think of a magic number that balances the demand and supply of AoRs. This would be ironic as there is no cap on the supply of lawyers. Moreover, once such a cap is put, the elite club of AoRs would have all the incentives to lobby to minimize its number and maximize their earnings.

Currently the AoR system creates an unnecessary cost of an intermediary who charges hefty prices for letting another lawyer file and plead on his behalf, but hardly adding any value to the process overall. The burden lies on the proponents or supporters of the AoR system to show: a) how the value added by an AoR justifies the costs charged by him and the costs incurred by the system in sustaining this class of lawyers; and b) how this system is more efficient than imposing costs or other kinds of penalties during proceedings to ensure quality. Otherwise, it is difficult to defend this system from the argument that it merely creates a rent seeking class that extracts rent by letting out its name and adding no value to the system.

(* The author is final year LL.M. student at Jindal Global Law School, Sonepat, India.)

Interesting Conflicts and the Basis for Bias: The Right Peg?

Two important IP developments in the recent past have thrown up interesting issues around the standards for judicial recusal and for determining conflict of interest.

Novartis Patent Dispute and Judicial Recusal

1. Justice Dalveer Bhandari recused himself from a controversial patent dispute involving Novartis' famed anti cancer drug, Glivec; a dispute that has dogged Indian courts for several years now. The allegation was that since he attended a conference organised by patent owners (Novartis was one amongst the many patent owners that formed part of the association organising the conference to which the judge was invited), there was a genuine apprehension of bias. It would appear that under rules pertaining to travel abroad by judges, he would first have had to take permission from the Chief Justice and that his trip would necessarily have to be paid for by the Government of India.

Justice Ruma Pal mentions this rule in her hard hitting Tarkunde memorial speech:

"At present no judge, whether of the Supreme Court or the High Courts can accept any invitation from any foreign person or organization or indeed even visit a foreign country out of his/her personal funds, unless an application is made to the State and Central Governments with the approval of the Chief Justice two months ahead of the date of departure and the application is vetted by different Ministries and ultimately allowed or disallowed by an executive order which may or may not be received before the date fixed for leaving!"

One might therefore infer that Justice Bhandari attended the conference only after getting the necessary government and CJI clearances. And that his trip was paid for by the government. Further, it bears noting that the judge did not speak on the Novartis case at the conference but made a general speech on intellectual property rights and asked that IP regimes be strengthened. Some months later, he refused to admit Roche's challenge in a big ticket patent case (and Roche was also a member of the very same association that organised the impugned conference). The key question is: given these facts, was there a genuine apprehension of bias? Or ought we to have strict rules preventing judges from attending such conferences? Where ought we to peg the standards in this regard? I reflect on this issue in two posts on SpicyIP here and here.

Sibal, Copyright Bill and Conflict

2. More recently, allegations of non declaration of a conflict of interest were levelled against HRD Minister, Kapil Sibal who sought to introduce the copyright amendment bill in Parliament. The claim was that since his son (Amit Sibal, a rising lawyer) appears for T series (a major sound recording company) in several cases, he ought to have declared this "interest" prior to moving the bill. The relevant rule (Rule 294(1)) in the Parliament’s Ethics Committee Report states as below:

“whenever a Member has a personal or specific pecuniary interest, direct or indirect, in a matter being considered by the Council or a Committee thereof, he shall declare the nature of such interest notwithstanding any registration of his interests in the Register, and shall not participate in any debate taking place in the Council or its Committees before making such a declaration.”

It must be noted that this rule appears less potent than our rules informing judicial recusal. An apprehension of bias leveled against a judge invariably means that the judge cannot adjudicate upon that case. However, a declaration of "interest" within our Parliamentary framework is simply nothing more than a mere "declaration". It does not prevent the person concerned from participating in the concerned Parliamentary debate (provided he/she makes such declaration before participating).

The following issues arise for consideration:

1. Firstly, does the fact that Amit Sibal (Minister Sibal's son) represent T series pose a personal or a pecuniary interest, direct or indirect? What if Amit Sibal had only acted once for T series? What if Mr Sibal had himself acted for T series during his career (and I recall he did appear for T series in a Supreme court case dealing with "version" recordings). Given that Mr Sibal was and continues to remain an illustrious lawyer, isn't it possible that he may have acted at one point or other for a whole range of clients with some kind of an "interest" in the present copyright bill?

Does this mean that he has to declare an "interest" in all such cases? And given that his son is a rising star in the litigation firmament, does he have to declare an interest in all cases where his son acts for some client with a copyright interest (given the pervasive nature of copyright today, is there any corporate entity that does not have a "stake" in copyright law today?)

The second issue is: even assuming that there is an indirect interest here, does this pose a serious apprehension of bias (or potential for corrupt practices)? The question may not be relevant to the issue of whether or not this is an "indirect" interest, but I deal with this nevertheless to study the nexus between "interest" and apprehensions of bias or the potential for corrupt practices.

T Series and the Copyright Bill

If one were to simply examine the text of the copyright amendment bill, one finds that not all provisions favour T series. In fact, some provisions are heavily loaded against it. The Bollywood mandatory royalty provisions are a glaring example of this, where T series cannot enjoy all music revenues by itself (even assuming it has contractually taken over all rights of underlying music composers and lyricists), but must necessarily share all its revenues with them, each time the work is exploited outside of the regular cinematographic medium.

On the other hand, the amendment to section 52 (1) (j) (dealing with version recordings) clearly favours T series.

Section 52(1) (j) provides that anyone is free to reproduce their own version of a copyrighted song after two years of the song being on the market, provided royalties (currently, it is 5% of sales) are paid to the owner of copyright in the song (music and lyrics). The most recent copyright amendment bill (whose fate is expected to be decided this winter in Parliament) contains an amendment to this provision. Surprisingly, this amendment has received very little attention thus far. In fact, it is not even clear as to how the proposed amendment came about and at whose behest and one may need to file an RTI application to locate its genesis.

While section 52 (1) (j) provides that a cover version can be made anytime after the expiry of two years after the first recording is made (by a music major such as T series), the amendment seeks to extend this moratorium to 5 years: in other words, sound recording companies such as T series benefit immensely, since there are no cover versions for the first 5 years after their commercial release.

Given this mixed bag, where one set of amendments favours T series and the other goes against them, can one argue that there is still a genuine apprehension of bias? Or ought we to desist from asking this question and simply follow the "declaration" rule to its letter?

And lastly, what happens now? Assuming the rules are interpreted rather liberally (with "indirect" interest being read widely), does this mean that the bill can only be discussed in the absence of Mr Sibal, the prime mover of the Bill? Or does he only have to stay away from discussions involving provisions that impact T series (one might argue that almost all amended provisions will impact T series one way or the other).

Whatever the outcome, one can be sure that these thorny conflict issues will continue to accost us with increasing rapidity in the years to come. The time is therefore ripe for for an intense discussion and debate around these norms, the standards that they must be pegged at, their overall purpose and how best to enforce them.

In the meantime, for those interested, the PRS website has some excellent resources/discussion on conflict of interest rules and the Indian Parliament. And LAOT has had some excellent discussion around the rules relating to judical recusal in the past.

Bollywood Plagiarism: Some Thoughts

That Bollywood is often "inspired" by many a storyline of Hollywood or that its music composers routinely "borrow" tunes from across the world, without attribution to the original composer, is a well known fact.

I list some of my favourite "lifts" below:

1. The raunchy "Munni Badnam Hui" was copied from a 1992 Pakistani number. Umar Sherif, the original composer says he was more surprised than angry when he came to know of the copy. However, Lalit-ji refuses to acknowledge the copying, making this one painful badnaami that no Zandu balm can cure.

2. "Teri Meri Prem Kahani", from the latest Salman hit (Bodyguard), is a clear copy of a 15th century Romanian carol, made famous by an angelic rendition by Cleopatra Stratan, when she was all of 6 years old! The music producer, Himesh "nasal" Reshamiyya insists that there is no copying and that this is an original "raag" based melody.

3. Tamally Maak from Egyptian composer Sherif Tag and performed by Amar Diab, a leading Arabic rockstar. This was transformed by the inimitable copy cat, Anu Malik to a murderous "Kaho Na Kaho".

4. Pehli Nazar Mein (from the movie "Race") copied from a wonderful Korean song.

My all time favourite however is the Lambada tune made famous by the French band, Kaoma. This appears to have its origins in a Bolivian number and underwent several adaptations before it found its way into the creative consciousness of Jennifer Lopez who used it to hit the dance floor with a certain pit bull. And here again, Bollywood was not far behind: Bappi Lahiri cashed in on this famous tune in a 1990's Bollywood blockbuster, Ghayal starring Sunny Deol and Meenakshi Seshadri.

For those of you interested in uncovering more lifts, try the fabulous itwofs, a resource created with painstaking effort and diligence.

For the most part, such borrowings (particularly in the music sphere) have not been subject to any legal sanction under India's copyright norms. However, in a recent decision, the makers of the Malayalam movie, Urumi were restrained from exhibiting the movie (and performing the song in languages other than Malayalam) owing to the fact that one of the key songs in the movie copied the soulful tune of a Canadian celtic singer.

This order may perhaps signal the end of an era of unabashed copying by Pritam, Anu Mallik and the like. However, while such "borrowings" may technically amount to an infringement under India's copyright laws, we need to ask whether or not we ought to encourage such borrowings. I personally lean in favour of creating some legal space for them, subject to attribution and the payment of royalty in appropriate cases.

In a recent post at SpicyIP, I outline some tentative proposals in this regard:

1. Firstly, music composers ought to be provided an opportunity to check their tunes against previous similar sounding versions. In other words, we need a smart tech savvy person with an interest in music to come up with a product that enables such cross checks. Any such product will certainly not starve for want of a market. For not all copies are conscious copies, and conscientious composers may find themselves at the receiving end, simply because they have no idea that their tune is an unconscious copy or adaptation of something they heard earlier! Perhaps there already exists such a product that I am not aware of?

2. Secondly, my own view is that, irrespective of whether or not the copyright in a tune has expired, every borrowing be acknowledged and attributed. The challenge is to convert this to a specific legal obligation with definite bounds susceptible to easy enforcement. I am reminded of the patents regime, where every patent application has to necessarily disclose prior art that it draws from. Ought we to have a similar obligation to disclose musical borrowings (and make copyright protection contingent upon such disclosure)? Would this be feasible?

3. Thirdly, every composer be free to borrow or lift any copyrighted tune, provided royalties are paid to the original copyright owner. In short, we institute a compulsory licensing scheme! It bears noting that we already have such a scheme for straightforward copies, which go by the name of "version recordings". A scheme that made T series what it is today.

Section 52(1) (j) provides that anyone is free to reproduce their own version of a copyrighted song (by making it afresh with a new set of performers) after two years of the song being on the market, provided royalties (currently, it is 5% of sales) are paid to the owner of copyright in the song (music and lyrics).

I find it a bit paradoxical that when straightforward copying is encouraged under such a "version recording" scheme, adaptations (which involve more work) are not. This can be rectified with a simple stroke of the legislative pen. However would such a compulsory licensing scheme be desirable?

Should we encourage such copying, particularly where there is some creative adaptation. I find that many a time, it takes a copy to appreciate how much better the original version was. And more importantly, but for such copycats, one may never have discovered the original artist in question. Thanks to Deepak Dev, I found Loreena McKennitt, and have not stopped listening to her ever since. Lastly, as is the case with Urumi's "Aaro Nee Aaro", copies are capable of evoking a very different imagery than the original. One may perhaps argue that raw pieces of art or music often have little meaning outside of the cultural context in which they situate themselves.

Nuclear Liability in India - Continuing Saga

In this interesting recent piece, Arghya Sengupta revisits the vexed issue of nuclear liability law, specifically Rule 24 of the newly notified Civil Liability for Nuclear Damage Rules, 2011. This rule, dealing with the right of recourse, i.e. the right of the operator of a nuclear establishment to claim damages from nuclear suppliers in the event of an accident being caused by the fault of the supplier, apparently attempts to substantially limit the fairly wide provisions on recourse contained in the parent statute. Sengupta argues that it is flawed both in principle and policy.

India's Unknown Crime Rate

I was going through India's Crime Statistics for 2010, which can be found at the National Crime Records Bureau here (just click on Crime in India 2010 in the left column). I found that the records seemed to tell more about the failure to report most crimes in India rather than what the actual crime rate in India is. According to the government's statistics the highest reported crime rate is in Kerala, followed closely by Pondicherry. This should immediately strike one as odd because one does not usually think of Kerala or Pondicherry as the most crime-ridden parts of India.

Indeed, the National Crime Records Bureau seems to back this up, in part, thereby betraying the weakness of police reporting in most states in India. When one looks at the murder rate, Kerala is actually the second safest state or union territory in India. Only in Lakshadweep are you less likely to be killed, and that is because there were no reported murders in Lakshadweep last year.

Murders are far more likely to be reported than other crimes, especially in states with weak governance. In fact, few murders will ever not be reported. Therefore, it is probably safer to use the murder rate as a proxy for the actual crime rate when there is such weak reporting of crime, either because victims do not come forward or the police do not record their complaints when they do.

The following Chart uses the government's 2010 crime records to compare reported crime rates vs. reported murder rates (per 100,000 persons) and then rank the states from worst to best in crime rates and murder rates. The results are fairly striking

	Crime Rate	Murder Rate	Cr Rank	M Rank
AP	215.7	3	13	16
ARUNACHAL	197.5	6.1	16	1
ASSAM	199.1	3.9	15	8
BIHAR	131.1	3.5	26	9
CHHATTISGARH	224	4.3	11	5
GOA	188.9	2	19	27
GUJARAT	200.1	1.8	14	31
HARYANA	240.4	4.1	9	7
HIMACHAL	195.1	2	17	29
J&K	173.8	1.6	20	33
JHARKHAND	125.7	5.5	27	2
KARNATAKA	242	3.1	8	15
KERALA	424.1	1	1	34
MP	297.2	3.4	4	11
MAHARASHTRA	189.2	2.5	18	22
MANIPUR	100.5	3.4	29	10
MEGHALAYA	96	5.1	30	3
MIZORAM	215.7	4.8	12	4
NAGALAND	47.1	2	35	28
ORISSA	138.3	3.2	23	13
PUNJAB	134.4	3.3	24	12
RAJASTHAN	242.8	2.1	7	25
SIKKIM	90.5	2.8	32	18
TAMIL NADU	274.5	2.8	6	19
TRIPURA	160.8	4.1	21	6
U. PRADESH	87.5	2.2	33	23
UTTARAKHAND	94.1	1.8	31	32
WEST BENGAL	143.7	2.7	22	20
ANDAMANS	226.9	2.1	10	26
CHANDIGARH	299.8	1.9	3	30
D&N	133.6	2.1	25	24
DAMAN	101.5	2.5	28	21
DELHI	279.8	3.1	5	14
LAKSHADWEEP	58.3	0	34	35
PUDUCHERRY	352.3	3	2	17

Kerala ranks 1st for crime rate, but 34th for murders; Puducherry 2nd for crime rate, but 17th for murders; Chandigarh 3rd for crimes, but 30th for murders, etc. In fact, the only place that seems to rank as one of the top ten worst places for both murders and crime overall is Haryana - this is likely because although it's more developed and reports more crimes, it also might actually just have a high crime rate.

Overall, the impression you get from government statistics though is that as development goes up the murder rate goes down, but the crime rate goes up. It's likely most of this is a reporting problem and better developed states report all crimes - both murder and otherwise - fairly well, while poorer states only report murders consistently.

That said, there is another theory worth considering, which is that the government's statistics are correct, or largely correct, and do reflect the actual situation on the ground. Perhaps, wealthier states just have more opportunities for things to be stolen or fraud perpetrated, etc., but have better solved the murder problem. Therefore, their crime rates are higher, even if you are less likely to be murdered there. Perhaps . . .