Tuesday, March 27, 2007

Recent pieces of interest in the Economic and Political Weekly

Recent issues of the Economic and Political Weekly contain several interesting articles that are either directly or incidentally related to the law. I am not sure when EPW moved to this new format (where it stores PDF versions of articles), but the move certainly makes its pieces more reader-friendly. In this post, I seek to highlight some recent articles, starting with A.G. Noorani's review of the Ninth Schedule judgment. In a piece which provides the historical backdrop to the issues covered by the judgment, Noorani also addresses the initial analyses of the case that have come out so far in the media. Noorani takes the view that the judgment was unsurprising, and was entirely expected:

"The wonder is not that the court ruled as it did on January 11, 2007 but that the Ninth Schedule of 284 protected acts, central and state, survived as long as it did after April 27, 1973 when the court propounded the [basic structure ]doctrine. … The Ninth Schedule was, after 1973, a sitting duck awaiting the grapeshot of the judicial gun. As ever, media hype over danger to “progressive” legislation or praise or fear of “judicial activism” blurred a simple issue. … The judgment is neither an exercise of “judicial activism”, as properly understood, nor a defeat for “progressive” legislation. It is a statement of the obvious."

Noorani also continues his blunt criticism of the quality of language and reasoning in recent Supreme Court judgments (criticism he has voiced in his earlier Frontline articles):

"Over the years the quality of the Supreme Court’s judgments has suffered. With chief justice of India Y K Sabharwal it reached rock bottom. He writes of “trite knowledge” and “intellectual debates” in the constituent assembly. His judgments in this case and the case of expulsion of MPs could have been reduced by a half – if not two-thirds without any loss to posterity. Quoting Amartya Sen pointlessly helps not a bit."

The issue of February 17 contains an interesting piece by Dharam Vir focusing on how state legislatures have been failing in recent years in seeking the regularisation of excess expenditure. Dharam Vir's article contains statistics which highlight the extent of the phenomenon, and also recapitulates the view of the framers of the Constitution on this issue. The issue may seem a bit obscure, but is nevertheless a significant one, as brought out by Dharam Vir's analysis.

A more recent issue features an article by Dwijen Rangnekar analysing the substantive issues at stake in the Mashelkar Report, and also draws attention to the ongoing Novartis litigation before the Madras High Court - a case that will have substantial implications for the future developmetn of patent law in India.

The last article I focus on dates from the issue of Jan 20: authored by Ch. Sambasiva Rao, it analyses the reasons for the continued neglect of rural telephony in India, which should be a matter for concern for people concerned with IT services in general. Rao argues:

"[A]t present, there exists a huge digital divide between urban and rural areas as well as among rural areas of different states in India. Another notable feature of post-NTP growth is that mobile telephone services, which are propelling the teledensity in the country, have so far been mainly restricted to the urban areas. Lack of penetration of cellular mobile services in rural areas and nonexposure of a large percentage of rural population to the telephone services are the underlying factors of low rural teledensity. Further analysis reveals that, in order to cover thinly spread potential customers across large geographical areas, there needs to be huge investment in creating the required infrastructure. Coupled with this is the presence of a lower proportion of business and industrial units in rural areas and the perception of service providers that rural telephones are unremunerative as they are mainly used for receiving calls, resulting in low revenue per customer. Therefore, private operators, in order to maximise returns to their given resources have invested in urban areas."

As this quick survey of articles drawn from the last three months shows, the EPW offers much for lawyers to mull over, and should be an integral part of our reading lists.

4 comments:

Vivek said...

I strongly believe that we should have a publication/reporter whose sole purpose is to republish the Supreme Court decisions in a revised format. It would rewrite the opinions with much more brevity and clarity.

One interesting thing about the Ninth Schedule judgment is that it was a unanimous judgment. In the US, John Roberts is emphasizing a lot on the virture of unanimity. I was impressed that our court was able to acquire it, even if it was by default

Vivek Reddy

Vivek said...

Arun,

I just read the Noorani article. The article was quite bland and had very low analytical content. While Noorani does write some good pieces once in a while, this certainly wasn't one of them. May be I am missing something.

Vivek

Arun Thiruvengadam said...

Dear Vivek,

The reason I found the Noorani piece interesting was because of his central claim that the decision in Coelho is unsurprising, and is actually a logical outcome of the basic structure doctrine. I too would have liked deeper analysis, especially for the polemical comments he dishes out withough much elaboration. However, I think his basic claim is right, and I was quite puzzled by the over-reaction to the judgment in the immediate media reactions to the judgment.

Best,

Arun

V.Venkatesan said...

Dear Vivek, and Arun:
Well, AGN says Ninth Sched. Judgment is not surprising. I liked his comment, that it was a sitting duck, after 1973, awaiting the grapeshot of the judicial gun. Then he says: "As ever, media hype over danger to "progressive" legislation or praise or fear of "judicial activism" blurred a simple issue. But he does not elaborate what this simple issue is. Is this the "no-surprise" element in the judgment? I agree it is a statement of the obvious, but it something more than this, in the sense, it is an invitation to vested interests to challenge the validity of progressive laws included in the Ninth Schedule. In that sense, it is a setback. Before the judgment, this invitation was not explicitly available to the potential challengers, as the confusion after Waman Rao remained to be resolved.
Secondly, I was surprised by his sweeping comment: "An incongruity, introduced as a result of sheer neglect, became an obscenity created by wilful resolve". I wish he explained and justified it. But there was no elaboration of this comment in the piece.