Reforming Indian Law Schools

Readers may be interested in an important  report that emphasises the need for our law schools to become genuine research universities, and get real autonomy. Some excerpted highlights from Pai and Ranjan's summary:

Focus of legal learning: The GNLU report notes that “(l)earning is seriously impaired in an atmosphere of mistrust between the teachers and students”.

The larger focus of legal pedagogy is on conveying information rather than on discussing ideas and cultivating the ability of critical thinking.

The curriculum is not generally rigorous or engaging in substance. The NLUs often confuse ‘learning’ with quantitative aspects like the number of classroom hours and periodic exams based on rote learning.

Very little attention is paid to assessing the cognitive abilities of students. Faculty members are burdened with excessive teaching, leaving them with little time and motivation to focus on the quality of classroom discussions that can lead to firing the imagination of young minds.

Faculty research not a priority: The brazen reality is that the NLUs function as teaching shops. The ‘workload’ of the faculty fails to factor in any research component.

The GNLU report notes the current state of poverty in contestation of ideas through high quality research. However, it fails to account for the real problems which, to a large extent, can be attributed to excessive focus on teaching and lack of adequate incentives for research.

For instance, very few NLUs have a policy conducive for research through paid sabbaticals.

In order to plug the ‘research deficit’, the GNLU commission emphasises the need to build research networks with all stakeholders and undertake research for ‘policy development’, ‘law reforms’, ‘economic growth’ etc.

However, it does not provide any rational basis for making preferences towards certain kinds of research. Why would even theoretical research on any ground-breaking legal concepts be of less value?

Further, the commission’s endorsement of setting Regional Research Centres in Law, on the model of Regional Research Laboratories for science, is ill-conceived because it divorces research from teaching. Teaching and research ultimately nourish each other. Hence the university, and not ‘isolated’ research centres, should be the fertile ground for cutting-edge research.

Lack of focus on advanced learning: The NLUs are largely devoted to undergraduate teaching without necessary focus on postgraduate studies. The GNLU commission’s recommendation for a one-year diploma course involving teaching and research for new faculty members only points to how LLMs and PhDs offered by Indian universities, the NLUs included, are viewed with greater suspicion.

It vindicates the argument that the NLUs have failed to lead as institutes of higher learning and research.

The need is to focus on how to raise the bar of LLM and PhD programmes — the training grounds for producing legal academicians – instead of simply starting new programmes.

No carrots and sticks in place: The NLUs largely suffer from a complexity of mediocrity. Merit-based faculty research and teaching is not linked to any formal means of performance appraisal.

The general sentiment is that not every faculty member can live up to higher benchmarks. Very few are self-motivated to engage in good quality research.

Not many among the senior peer group can also lead by example. The non-existence of benchmarks, coupled with a sense of indifference among the faculty, has failed to raise the NLUs to higher levels of academic consciousness.

External regulatory capture: Although autonomous in many ways, the NLUs are governed through a web of external regulatory influences of the University Grants Commission and the Bar Council of India (BCI).

The dismal state of legal education in this country basically point to the latter’s inability in ensuring quality legal education.

The BCI’s recommendations, which are religiously followed by the NLUs, are not backed by adequate research or articulation. Dominated by practising lawyers, the BCI has failed to adequately and widely consult with law universities that remain largely affected by its decisions.

Working in silos: The NLUs operate as universities in isolation through their independent campuses. The very architecture of NLUs as institutions of specialised legal learning discounts the usefulness of interaction between law and other streams.

Depending on the structure of undergraduate coursework, a rigid system of ‘integrating’ inter-disciplinary subjects, thus, remains without purpose. Very little discussion has gone into how any meaningful integration may be achieved.

An Analysis of the NAC's Proposal on the Pre-Legislative Process (Part II)

In part I of this post I discussed how the NAC has a new proposal out for changing the process by which Ministries draft rules and legislation. In the last post I examined the process proposed for rules: mainly, disclosure that rules are being drafted, a requirement of reason-giving/justification for these new rules, and consultation. For rule creation, these requirements have been introduced in many jurisdictions around the world because Parliament does not have time to closely monitor all rule-making. As such, these requirements seem like a good second-best check to create effective, non-arbitrary rules and to add some legitimacy to a largely undemocratic process.

The NAC though has also proposed ministries follow the same requirements in drafting legislation as for drafting rules. What’s going on here? Rules are created by out-of-touch administrators who never have to run for office. Legislation is passed and debated by Parliament – theoretically the central citadel in the Indian democratic system. Not only is Parliament the empowered representatives of the people, but while considering legislation Parliament often solicits outside comment through standing committees.

Should this not be enough? Doesn’t this provide legislation with adequate legitimacy? Shouldn’t Parliament be in charge of demanding proper justification and reason-giving for legislation? Indeed, does draft legislation even have to be based on sound reasoning? After all, legislation – unlike rulemaking – is often the product of compromise between different political factions. A vote is enough. No reasons necessary.

The NAC’s draft recommendations state that their proposed pre-legislative process “is not an attempt to replace the legislative Parliamentary process. . . . The pre legislative process . . . aims to democratize the process of law making in the country by strengthening the involvement of the citizen in the process of drafting and enacting legislation, without undermining the role of the executive or the Legislature.”

There is some merit to this argument. Since most legislation is introduced by the government, its drafting is generally driven by the ministries. This again puts bureaucrats in charge (although presumably legislation will usually spark more political-executive oversight than rule-making). Further, once legislation is introduced into Parliament it is often difficult to make any fundamental changes. Then isn’t it better to get more voices involved earlier and require that those drafting the legislation weigh the costs and benefits (on economic efficiency, fundamental rights, the environment, etc.) of different potential frameworks for proposed legislation?

Further, as the Draft Recommendations point out, in the 15^th Lok Sabha about a third of bills were not referred to a standing committee. In 2009, only 16% of Parliamentary time was spent on legislative business. Given this seeming breakdown in the Parliamentary process isn’t it important to make sure that participation and scrutiny is frontloaded into the process?

The worry is that the pre-legislative process the NAC proposes mirrors too much what standing committees should be doing. A cynic would say that adding these steps would unnecessarily slow down the passage of legislation and may even be a thinly veiled attempt to sidestep Parliament. As mentioned in my last post, the experience with open consultation in many countries with regards to rule-making is that it is easily captured by elites (whether corporates or civil society). Instead of focusing on the pre-legislative drafting process, creating a more robust standing committee process could be a better use of time and energy.

If one does want to focus on the pre-legislative process though it might make more sense in India’s case to think about how to get more parliamentary involvement at this earlier drafting stage. MPs (from all parties) could play an important role in giving feedback in drafting. Giving MPs adequate funding for a staff, to amongst other things give comments to ministries on proposed legislation, could enable backbenchers to have an important role in the drafting process. This seems more important than ensuring members of the public can comment on draft legislation before it is tabled in Parliament.

Finally, one notable aspect of the proposed process is that it would be imposed through Executive Order. It is interesting that the NAC is not proposing these recommendations become law through an Act. Perhaps this is simply accommodating the present political moment when not much of anything is becoming an Act. Perhaps the NAC thinks it is better to first experiment with different processes before solidifying anything into legislation – i.e. this is new stuff for India, so let’s figure out best practices through experimentation. However, not putting the proposal into an Act means that even if UPA-II accepts the recommendations tomorrow, when the next government comes in they can quickly get rid of them. Even more importantly, especially if these recommendations affect the legislative drafting process, one would think one would want the legitimacy of Parliament behind the changes. Finally, an Act would presumably make more clear what type of review, if any, courts would have on whether Ministries actually followed the proscribed procedures or whether their implementation would be entirely reliant on the government of the day.

In the end, the NAC’s recommendations are a welcome step in the right direction. The NAC is still soliciting comment and hopefully their next set of recommendations and anything adopted by the government/Parliament will be more clearly justified and detailed, particularly around the pre-legislative process for legislation and explaining whether, and how, they foresee courts enforcing the new process. The NAC should also consider what types of exemptions, if any, there might be for some, or all, of the requirements they propose.

CBI autonomy and the Courts

In this article in today's Indian Express I argue that the courts are not the answer to bringing about CBI autonomy. The initiative has to come from Parliament. 

An Analysis of the NAC's Proposal on the Pre-Legislative Process (Part I)

Last week, the National Advisory Council made a little noticed recommendation concerning what they term the pre-legislative process. The name “pre-legislative process” is a bit of a misnomer in that their recommendation concerned how ministries approach not only drafting legislation, but also drafting rules, or subordinate legislation.

For both new legislation, new rules, and amendments to either the NAC recommends that an executive order be passed requiring all central ministries put into the public domain for 45 days an announcement that it will be drafting a piece of legislation or rule. This announcement would not only lay out the essential elements of the proposed legislation/rule, but give a statement of reasons justifying the proposal and detail the broad financial implications and the estimated impact on the environment, fundamental rights, and the lives of affected people. The Ministry is also required to make the eventual draft legislation public for 90 days and reach out to the public for consultation. All feedback received about the legislation/rule must be made public, as well as the Ministry’s response to the feedback.

The general thrust of the NAC’s recommendations should be welcomed and are in many ways long overdue. Essentially, the proposal would add transparency and the requirement of reason-giving and consultation to all Ministry action concerning the creation of legislation and rules.

However, it’s worth breaking down the justification for doing this for legislation and rules separately, as they are indeed separate justifications conceptually and the recommendation concerning legislation is generally considered more controversial than concerning rules.

Let’s start with rule-making to understand what is going on here. Rules are important (if anyone doubts this consider how Indian politics would be moving forward right now if there had been, let’s say, different rules created for the allocation of coal or telecom spectrum). Crores of Rupees are often at stake or the livelihoods of thousands. Yet, rules are often created under the guidance of one Minister or even just some top-level bureaucrats. All rules are technically tabled in Parliament for a vote and there is a committee in Parliament looking at such subordinate legislation, but even committee members do not have time to examine most rules in any detail and generally just make sure that the proposed rule does not violate the constitution.

Every modern democracy faces this problem. Major decisions are being made through rules, yet representatives of the people are generally not aware of them. So what to do? One response globally is to create a requirement (often through an act) that all rules have to be tabled by ministries/agencies in advance, justification given, and some degree of consultation with the public mandated. This creates a double check. Ministries are forced to publicly think through the reasons they are creating rules. For example, if a ministry decides it doesn’t want to allocate telecom through an auction it will have to explain why in advance and can’t change its reasons later if such a decision becomes contested. Secondly, the public can act as an alarm bell for Parliament, or even others in the Executive, to flag particularly poorly designed rules. Then, if necessary, Parliament can reject a poorly designed rule or perhaps the Prime Minister can step in to see that it is changed.

Countries that have mandates like the ones being proposed for the creation of rules in India usually find such reason-giving and consultation a step-forward, even if a limited solution. Those with money (and near the capital) are in the best position to track rule-making and give input. Diffuse public interests are often not represented in the rule-making process although environmental and some civil society groups have proved savvy at shaping the process as well. In an attempt to overcome these representation problems, in the United States law firms will sometimes make comments on rules with the public interest in mind as a pro bono service. In South Africa, comments are often made by government created institutions like human rights commissions that attempt to serve as a proxy for the broader public interest. Still, special interests are often in the best position to give comments. 

The second challenge countries with such mandates for consultation and reason-giving face is getting the government to follow the process. For a responsive government, not all rule making should require such long drawn-out public input.  However, in the US the government has often cited exemptions built into the Administrative Procedure Act to get around publishing rules in advance even for rule-making that is important (see this GAO report for more details about how agencies in the US did not follow the pre-publication requirement for about 35% of major rules between 2003-2010).

Reason-giving for rules – i.e. a justification and cost-benefit analysis – can seem like a pure good and step forward. Who wouldn’t want rules that hadn’t been thought through? Yet, even here the challenge is finding the balance between meaningful due diligence and the costs of such reflection. For example, what would constitute an adequate assessment of the impact of a proposed rule on fundamental rights? Is it just a bureaucrat thinking about it for a few moments at her desk and then writing down whatever she thinks? Or would it require an expensive study from an outside group that included large surveys of the impacted population? Likely, the answer is somewhere in between.

Given the blurriness of what is effective consultation and reason-giving the most difficult challenge is enforcement. In particular, what redress do parties have if they claim the government has not gone through the required process? Can they go to court? If so, by what standard will a court judge whether there has been effective consultation or reason-giving, and if the court finds it has been lacking will the judge actually strike down the rule, even if millions of people have already relied on it?

Much of administrative law is about trying to force the state to think in certain ways - taking on board multiple interests and shared values. As Jerry Mashaw has written in one of my favorite adlaw essays, administrative law is the embodiment of the enlightenment project - - the triumph of public reason over cloistered thinking, prejudice, and arbitrariness. Yet, given the messiness of what constitutes "reason" and the limited avenues of influence on the state, it structures a process that can get us only so far.

All in all, the NAC proposal on rule-making is a step in the right direction, even if there are many unanswered questions about enforcement or on the mechanics of implementation. In Part II of this post, I will discuss the more controversial proposal to have a similar process for the drafting of legislation by ministries, as well as some reflections on the proposal to push these reforms through an executive order rather than an act.

A Police Brutality Incident and Theories of Change

Nazdeek has a new video and press release out today on a police brutality incident in West Delhi that happened late last month. The Times of India also covered the events shortly after they occurred in this article. Police brutality is such a part of the normal background situation in India we often forget about the very real and individualized impact it has on people's lives. This incident in many ways wasn't particularly remarkable. It involved a woman (and two men) being beaten by the police - and so perhaps attracted more attention given the media's current focus on rape cases and gender violence in North India. It also involved a policeman biting one of the victims (yes, biting) and so there is a bizarreness factor. Otherwise, a foot was fractured. No one ended up dying. The victims were poor. The entire thing would likely not have made any news at all if it wasn't for the fact that the community was already fairly mobilized because of a previous slum demolition, so had the sense to record some of the incident and wasn't easily intimidated afterwards. They were also connected with a couple workers from NGOs outside the community that had access to wider media networks and the ability to put together a video like this and explain in clear terms to the media (and soon to the High Court) what happened.

In my experience, the number of lawyers and social workers who actually do day-in-day-out on-the-ground work that allows them to respond to individual incidents like this is very small. It takes significant time, dedication, and capacity. Yet, I personally think it is in response to specific incidents - as opposed to broader petitions or reports calling for legislative changes - that is likely to have the greatest impact in changing police behavior.  Broader structural reforms are clearly needed, but they are more likely to gain traction when police officers are punished individually for specific actions they took. Such a strategy will empower voices for broader reform both inside and outside the police. Well done investigations and prosecutions of such incidents take significant time and resources - you want to clearly detail for everyone what exactly happened, who was responsible, and not blame people who were not responsible. I think sometimes there is a cost-benefit analysis done by reform minded advocates both inside and outside the government that such a strategy is not worth it. The logic goes that there are too many similar incidents - why focus on this one, given the number of incidents it is not possible to expend a comparable amount of resources investigating each one, such investigations come at the cost of other efforts, and so why not focus on training, or simply publicizing these incidents and hoping to change the broader discourse.

Such arguments to focus on calling for reforms in the system, and not on prosecuting the individualized case have some merit (you have to focus somewhere). I'm not sure what strategy the lawyers will take in this case in the Delhi High Court, but I noticed it seems that they are asking both for the officers to be punished and for the Court to intervene to make some broader structural changes. My sense though is that the actual punishment of the responsible police officers through a fair and public process is actually more important for systemic change then calls for reform from the Court. If you are thinking about how to allocate scarce resources - and no matter how much we may hope that more resources were dedicated to this problem for the foreseeable future we have to imagine we are operating in a reform climate of deep scarcity - then two or three thorough and successful prosecutions of police officers linked to specific incidents may be more useful than two or three commissions meeting to draft recommendations on the topic or broader calls by the Court for reform. Of course, you need both types of work being done. I just think sometimes individualized prosecution is undervalued as a key to a successful reform strategy and so not enough resources are dedicated either by NGOs or the government. Successful prosecution (i.e. thoroughly gathering evidence, clearly identifying the culpable parties, and appropriate sanctioning) messages to others in the police what behavior will and will not be tolerated, while giving the ordinary police officer confidence that they will not be scapegoated and only responsible parties will be punished.  The multiplying effect of successful prosecution is spread even further if the media can be leveraged to spread the story of the prosecution more widely.

Hopefully in wealthier environments like Delhi enough resources will be available to the reform community to pursue both strategies. Yet, given the scope of the problem and the limited current capacity to address it, it's worth weighing the pros and cons of different paths forward. After all, there are only so many minutes in the day.

Vidhi Centre for Legal Policy: Call for Applications

The Vidhi Centre for Legal Policy (VCLP) (formerly Pre-Legislative Briefing Service) is an independent legal think-tank comprising legal academics from leading universities around the world and practising lawyers based in India. Its mission is to impact legislative design and policy-making in India by conducting high-quality, analytical, evidence-based research across a range of thematic legal topics. It aims to advise government on proposed legislation and its drafting, provide critical analyses of bills and rules before Parliament and state legislatures, draft bespoke reports on specific legal issues of public concern and offer independent policy guidance to the government with a view to creating sound legal and policy frameworks in India. It has worked in the legislative space in India for the last two-and-a-half years and is in the process of establishing itself as a full-time institution based in New Delhi from November 2013.

In keeping with its objectives, Vidhi is currently looking to fill two positions:

1. The Vidhi Fellow of Law and Policy (see eligibility, process and remuneration- here)

2. Vidhi Junior Research Fellow (see eligibility, process and remuneration- here)

If you're interested, do follow the instructions in the documents. In case of any queries, feel free to write to arghya.sengupta@gmail.com. In case you want to know more about Vidhi, do visit its website: www.vidhilegalpolicy.in

Bhullar and Due Process on Death Row

Earlier this month, the Supreme Court gave a disturbing judgment in Devender Pal Singh Bhullar v. NCT, Delhi, stating in essence that "terror" convicts on death row have fewer or lesser due process rights than other death row convicts, at least when it comes to deciding clemency petitions. Last week I wrote this piece titled "Bhullar, the Bogey of Human Rights, and the Death of Due Process,"  in which I critiqued the  Court's decision. Anup Surendranath's analysis of the case is available here. Vrinda Bhandari's critique is available here.        

Obituary of Justice Verma

Here is my obituary of Justice Verma in today's The Indian Express. (This is the another link). Express also carried this obituary by Soli Sorabjee and another by Seema Chishti

NLSIR Symposium: Mapping the Future of Commercial Arbitration in India

[The following announcement is posted on behalf of the National Law School of India Review]

The National Law School of India Review (NLSIR) - the flagship journal of the National Law School of India University (NLSIU), Bangalore is pleased to announce the VI^th NLSIR Symposium on “Mapping the Future of Commercial Arbitration in India” scheduled to be held on May 18 and 19, 2013 at the NLSIU campus. The last three years have witnessed dynamic shifts in the law and practice of Arbitration in India. While there have been steps in the right direction, an unwieldy system continues to weigh down practitioners. Four years after first delving into the nuances of commercial arbitration in India, the Symposium hopes to assess the development of Arbitration law over the last few years.

Confirmed speakers for the symposium include renowned legal luminaries such as Hon’ble Mr. Justice (Retd.) S U Kamdar (Former Justice, Bombay High Court), Mr. Anirudh Krishnan (Advocate, Madras High Court), Mr. Ashwin Shanker (Advocate, Bombay High Court) Mr. Aditya Sondhi (Advocate, Karnataka High Court), Mr. Ajay Thomas (Registrar, London Court of International Arbitration, India), Mr. Vivekananda N. (Head (South Asia) & Counsel, Singapore International Arbitration Centre), Mr. Nangavaram Rajah (Nani Palkhivala Arbitration Centre), Mr. Promod Nair (Partner, J Sagar Associates), Mr. Shreyas Jayasimha (Partner, AZB & Partners), amongst others.

This year, the discussions will be divided into four panels:

Session I: The Implications of BALCO on Arbitration Practice 
(Forenoon, May 18, 2013, Saturday)

Session II: Revisiting the Expansive Role of the Indian Judiciary and its Implications (Afternoon, May 18, 2013, Saturday)

Session III: Determining the Governing Law of the Arbitration Agreement – Arsanovia and Beyond
(Forenoon, May 19, 2013, Sunday)

Session IV: The Way Forward: A Call for Institutional Arbitration?
(Afternoon, May 19, 2013, Sunday)

Registration fee for those who make an advance payment/bank transfer is Rs. 500 for students and Rs. 1000 for others. All those interested are requested to register at:https://docs.google.com/forms/d/1hXthITsHurIQBClJAkZkiKWdbjkXoKJ4MFRSI0VgGfU/viewform

The registration fee for those who register at the venue is Rs. 750 for students and Rs. 1250 for others.

For more details including the concept note and future updates please visit: http://www.nlsir.in/symposium.html.

For regular updates, also see our Facebook page: http://www.facebook.com/nlsir?fref=ts.

For further information, please contact Ashwita Ambast (Chief Editor): +91-9986478265; Sahil Kher (Deputy Chief Editor): +91-9739265715 or email us at mail.nlsir@gmail.com.

A court too far

Some of our contributors and readers have put together a fascinating collection of articles based on research and analysis on various aspects of  access to Supreme Court in the latest cover story of Frontline.    (Readers can access Frontine's refurbished site here.)
Readers may suspect some inconsistency insofar as the lead article by Nick Robinson makes a strong case for the Court to hear less and less regular cases, while Prof. Mohan Gopal argues that the Court suffers from docket exclusion, rather than docket explosion.  As far as I understand it, this inconsistency is more imagined than real.  Nick Robinson wants the Court to hear less and less of cases filed by the rich and the privileged and the cases which are currently disproportionately heard by the court, category-wise, so that it can hear more of the cases, raising substantial questions of law and the Constitution.  Prof. Mohan Gopal, on the other hand, would agree with Nick that  the Court ought to hear more such cases, but would suggest that the answer to the Court's growing distance from the common man lies in democratising the access, by making it easier and affordable. My piece on the Novartis case raises the question whether the verdict could have gone in favour of Novartis, had it been heard by another Bench, pointing to the uncertainty in law that characterises the Court's current functioning. A separate article by me, which is not a part of the cover story, highlights the significance of this landmark judgment.

Prof. Mohan Gopal, for the first time, articulates his dissent over the Judicial Impact Assessment.  Though he was a member of the Task Force, set up by the Government following the Supreme Court's judgment in the Salem Advocates case, he did not sign the report, and had no intention to publicly disagree with it at that time.

The cover story is enriched by articles authored by Abhinav Chandrachud, critiquing the unwritten qualifications for membership on the court, Arghya Sengupta, examining the breakdown of precedent at the Supreme Court, and Sidharth Chauhan, exploring the court's relationship with the media.

The cover story gave me an opportunity to interview the new Solicitor General, Mohan Parasaran, and also benefit from reading Arun Thiruvengadam's excellent chapter on PIL, in the recent book edited by him along with Vikram Raghavan and Sunil Khilnani and reviewed by me elsewhere.

New Website and Report for JGLS Centre for Health Law, Ethics, and Technology

Jindal Global Law School's increasingly prominent Centre for Health Law, Ethics, and Technology (CHLET) has launched a website. Their latest report on Access to Contraceptive Services and Information in the State of Haryana can be found on the website here.  The centre focuses on empirical research in the field of health law.

There are a few centres like CHLET in Indian law schools that are currently extremely active at doing research and advocacy around specific social issues. National Law School's Centre for Child and the Law and its Centre for the Study of Social Exclusion and Inclusive Policy immediately come to mind as trailblazers in this area. Internationally, such centres have also become the norm. I believe Harvard Law School has over twenty (and its Berkman Centre on Internet and Society might be considered the leading activist group in global civil society today working on internet governance). At their most developed, these centres act like mini-NGO's embedded in the law school, resourcing their own activities and funding their own staff.  They usually begin around a faculty member's interest, but can quickly develop a life of their own (especially if they are able to bring in significant self-funded staff). The Brennan Centre at NYU over the years has seemed less and less part of NYU and more and more its own autonomous (and quite large) activist group/think tank. Nor is the development limited to law schools. Jeffrey Sachs' Earth Institute at Columbia University is perhaps the best known example of such an institution in the world.

I have sometimes wondered what the development of these centres in the last couple decades tells us about changing patterns of education (or perhaps changing patterns of funding for non-profits). At one level they are a logical extension of activism by faculty, which has a long history on many universities - just better organized and funded. These centres provide an opportunity for students to get firsthand experience in the issues involved and the centres bring in speakers and host conferences on campus. In the US some alumni have sometimes complained about centres they don't ideologically agree with, but since most of the centres are self-funded, declare themselves non-partisan, and are initiated by individual faculty members they are not easy targets. That said, they carry the name of the school and so can often attract more funding or attention for their activities as a result.

It will be interesting to see how these centres evolve in India and elsewhere. High end activism requires sophisticated knowledge. Faculty and students want to engage in real issues they care about in the world. It's no mystery that these centres are then popping up on law school campuses.  Time will tell how they end up shaping civil society and the issues they focus on.

SC Novartis judgment is pro-innovation

In this article in today's Indian Express, I argue that the recent Supreme Court judgment in the Novartis' case is very much pro-innovation, but tries to weed out marketing gimmicks from patent protection.
This blog has previously dealt with the issue here

NLSIR - Herbert Smith Freehills India Essay Competition 2013

[The following is an announcement from the National Law School of India Review (NLSIR)]

The National Law School of India Review (NLSIR) in association with Herbert Smith Freehills is pleased to announce the Herbert Smith Freehills India Essay Competition 2013. The Competition is open to undergraduate law students from NLSIU, Bangalore, NALSAR, Hyderabad, WBNUJS, Kolkata, NLU, Jodhpur, NLU, Delhi, GNLU, Gujarat, NLIU, Bhopal, NLU, Odisha, Jindal Global Law School, and School of Excellence in Law, Chennai.

The topics for this year’s Competition are:

(1) Corporate Social Responsibility in the new Companies Act: A Critical Perspective

(2) The implications of BALCO v. Kaiser Aluminium: A practitioner’s perspective

The two best essays per topic win prizes of Rs. 20,000 and Rs. 12,500 respectively along with certificates.

The winning essays will also be considered for publication in the next issue of NLSIR in accordance with the Editorial Policy of the journal.

The deadline for submission is 11.59 P.M., 29 May, 2013.

The word limit is 3000 words inclusive of footnotes but excluding the abstract and bibliography.

Joint authorship is not permitted. The entries must be accompanied by a 300 word abstract and should follow a uniform system of citation. For further details regarding the structure and evaluation criteria, please refer to the submission guidelines that have been sent to the participating colleges.

All entries are required to be submitted via e-mail as a PDF document to mail.nlsir@gmail.com.

For any further details or queries, please contact us at mail.nlsir@gmail.com.

The Paradox of the Fundamental Right to Property in the Indian Constitution

In a talk recorded in the form of a podcast on "The Paradox of the Fundamental Right to Property in the Indian Constitution", I argue that the answer to the puzzle surrounding the chequered history of the fundamental right to property in India lies in the drafting of the constitutional property clause by the Constituent Assembly, a process that occurred over a period of two and a half years and engaged the finest political and legal minds in the country. 

I go on to describe the social, political and economic conditions and the operating intellectual discourses within which the Constituent Assembly debated and drafted the fundamental right to property in the Indian Constitution and argue that it was both the lack of consensus amongst the drafters and the paradoxical nature of the constitutional property clause that were responsible for its chequered history. But because property and property law is central to the way that our economic, social and political relations are organized, in telling this story, I also try to piece together a narrative of the broader social, political and economic structure that we devised for ourselves post-independence and how that has changed with the changes that we have made to our property laws and property relations since then, including the amendments to the fundamental right to property and its subsequent abolition. 

An edited transcript of the talk is also available on mylaw.net. Previous writings on this blog on the fundamental right to property and related issues of land acquisition can be accessed here. 

New book on Nepal's constitutional journey

Constitutional Nationalism and Legal Exclusion: Equity, Identity Politics and Democracy in Nepal by Mara Malagodi

This book is a detailed case study of Nepal's post-1990 constitutional experience. It examines the complex relationship between law and politics, and emphasizes the role of cultural identity in making institutional choices relating to the framing and implementation of the Nepali Constitution. The volume also analyses the patterns of legal exclusion that resulted in the growing politicization of identity, the de-legitimization of the 1990 Constitution, and the current demand for state-restructuring based on ethnic federalism and group rights. The author, tracing the evolution of Nepal from a constitutional monarchy to a republic, analyses the drafting of the 1990 Constitution, the impact of the Maoist insurgency (1996-2006) on demands for constitutional change, the relationship between conflict and demands for recognition, and the role of Nepal's Supreme Court in the articulation of identity politics. Based on pathbreaking research, this volume would be immensely useful to scholars, teachers, and students of law, politics, and international relations.

The book is available here.

In the spring of 1990 a People’s Movement led by the underground political parties succeeded in restoring democracy to Nepal. After three decades of monarchical autocracy, the Himalayan Kingdom embarked on a delicate phase of transitional politics. A new constitution was drafted in 1990 to institutionalize the compromise between the King and the political parties. Nepal’s regime change opened a Pandora’s box of identity politics.  Demands for recognition by women, dalits, and the country’s many ethnolinguistic, regional, and religious groups featured prominently in the constitution-making debates. The 1990 Constitution, however, adopted the strategy of ‘unity in diversity’ and institutionalized ethnocultural notion of the Nepali nation revolving around historically hegemonic Parbatiya narratives: Hinduism, the Shah monarchy, and the Nepali language. The ethnocultural articulation of Nepal’s national identity in the 1990 constitutional settlement, together with its successive implementation, raised serious concerns about the legal exclusion of many segments of Nepali society. 

Adopting the approach of historical institutionalism, this volume analyses key issues in Nepali constitutional politics: constitution-making dynamics in the 1990 transition, demands for constitutional change during the Maoist insurgency (1996–2006), patterns of legal exclusion leading to a growing politicization of identity, the impact of Supreme Court–level constitutional adjudication, and current demands for State-restructuring focusing on ethnic federalism and group rights.  

A timely empirical study based on the debates of the Constitution Recommendation Commission, Nepali legal sources, and interviews with key constitutional actors conducted by the author, this volume will be invaluable for scholars, teachers, and students of law,  political science, and international relations, as well as lawyers, judges, researchers, and policymakers interested in Nepal, India, and other South Asian jurisdictions.

(Based on the flyer sent by OUP)

Diplomatic Immunity of the Italian Ambassador

Shreya Rastogi (V Year, NLU Delhi) and I co-authored an article titled 'Diplomatic immunity in peril' that appeared as the lead op-ed in The Hindu yesterday (20th March). We argue that the Supreme Court's order restraining the Italian Ambassador and the 'waiver of immunity' argument in the contempt proceedings being considered are without basis in law. The outrage at Italy's actions are undoubtedly justified but the response to it cannot be to sacrifice the commitments we have made to protect the personal safety of diplomatic agents.

Shifting the focus to the legal proceedings against the Italian Ambassador can also be seen as a convenient way out for the Government. Rather than putting pressure on the Government to take the difficult political and diplomatic decisions to address the marines issue, the focus has been successfully shifted to what the Supreme Court would do. Of course, what cannot be ignored in this entire situation is the controversy surrounding the Government of India's $750 million deal to buy helicopters from the subsidiary of Finmeccanica, Italy's largest industrial group as far as high technology is concerned.

For an opposite view on the immunity of the Italian Ambassador, please read Arghya Sengupta's article 'Lawful responses to unlawful actions' that appeared in The Hindu on 16th March.