Monday, July 30, 2007
The Single Judge's order is patently illegal because of the following facts:
A. It calls Tahar Singh a lunatic, but does not issue notice to his guardian.
B. It directs the CBI to take him into custody and subject him to examination at a mental asylum at Agra with sophisticated equipments ;
C.The CBI plunges into action, and implements the illegal order of the Judge, without even informing the Chief Justice of the High Court;
D. Before directing the CBI to take Tahar Singh into custody, on the basis of a pending complaint to the police by his estranged wife, the Judge did not even find out from the police why action was not taken on the complaint - the fact that police delayed action because compromise was being tried by the couple was ignored by the Judge. The fact that Tahar Singh's wife is no longer keen on her complaint, filed a month earlier, against her husband, fails to convince the Judge that his order is disproportionate to the alleged offence.
E. The Judge assumed that Tahar Singh must be a lunatic - not even a doctor's certificate is insisted - and sends him to a mental asylum in Agra (of all the places! not even Chandigarh or Delhi). Tahar Singh's children and friends testify that he is not a lunatic. Tahar Singh convinces the media of his normal state of mind - all to no effect.
F. Instead of recalling this patently illegal order suo motu, the Chief Justice of the High Court waits for the agitating lawyers to plead for constitution of a Division Bench, and the Division Bench so constituted stays the Single Judge's order, and asks the petitioners/lawyers not to discuss the issue in public.
The Senior Standing Counsel for Chandigarh Administration, Mr.Anupam Gupta is asked to resign, following his participation in the lawyers' agitation against Justice Uma Nath Singh. Mr.Anupam Gupta, who faces a contempt notice against him issued by the Chief Justice in another matter, (in which the Chandigarh Administration defended Gupta's prerogative to make submissions on its behalf), quit under pressure, even though he denies any conflict of interest.
As lawyers continue to boycott Justice Uma Nath Singh's court, seeking his transfer and impeachment for his bizarre order, the reverberations of this stormy episode in Chandigarh are yet to be heard in New Delhi. As Parliament is yet to finalise the Bill on the powers and functions of the yet-to-be-formed National Judicial Council (the Bill is before the Standing Committee), it appears the first case to be decided by the NJC may well be that of Justice Uma Nath Singh.
Friday, July 27, 2007
Intellectual Property Rights: Making Them Work For Us
Posted by Amer
"This is a somewhat dated issue, but I recently came across this wonderfully well document example by Abul Kalam Azad of how the WTO can work for developing countries like Bangladesh. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is a by-product of the WTO’s Uruguay Round that many developing countries felt was something that they had little use for.
The utility of this treaty however was fully realized by none other than our own Miles, when Anu Malik (aka the Captain Morgan of Bollywood’s music industry) tried to swipe “Phiriye Dao Amar Prem” for the Bollywood film Murder. Although it took them a while to work through the due process, Miles was eventually able to get some copyright-style justice: “As compensation for the ‘injury’ caused to the business interests of the petitioners, 50 million rupees were demanded from Anu Malik, Mahesh Bhat, Saregama India Ltd and RPG Global Music; in addition, ‘total reimbursement’ for the expenditure incurred in filing the case also was demanded.
A court order was also sought for appointing a receiver or special officer to seize the entire lot of soundtrack software from Saregama’s Dum Dum studio. Besides this, the band’s lawyers demanded that the respondents ‘should be directed to disclose upon oath details of cassettes and CDs distributed by them to various vendors and retails’.” - (Rock ‘n Roll in Bangladesh: Protecting Intellectual Property Rights in Music, Abul Kalam Azad) This just goes to show that when properly informed, countries like ours really can make the most of otherwise obtuse treaties."
The "comments" to the post are particularly illuminating--and in the same way as some of the thought provoking comments on Law and Other Things, are, in fact, better than the main post itself.
I reproduce one such comment by Mahmud Farooque and my response which attempts to highlight how the debate has played out in India:
Mahmud Farooque Says: July 22nd, 2007 at 3:55 am
"Amer, good choice for a topic.
Perhaps we ought to look at IP policy within the context of the specific industry and country in question. Strong IP does not necessarily lead to innovation. I prefer to interpret innovation a bit broadly and at the level of the firm: gaining the ability to develop a new product design or to master a new process. Once a firm can do that with respect to itself, then it can extend it to its cohorts, to the industry, the nation, etc. In other words, one has to learn to innovate first.
I don’t think a strong IP policy is always very helpful, particularly where the industry is just getting started, because innovation can happen through imitation as well. This is how first Japan, then the other South East Asian countries, and now India and China have successfully closed the technology gap between them and the industrialized countries.
Even within a given industry and country, to foster innovation, I think it pays better to use a more nuanced and pragmatic approach. If you look at the initial growth stages of the Indian Pharmaceutical sector, for the domestic market, they allowed IP protection for process, not for product. This in turn allowed local companies to make any drugs as long as they could develop it using a different method of production. Lack of IP protection in India’s case actually allowed tremendous process innovation to occur which ultimately gave its companies the ability to enter and then dominate the global generic drug market. Once they mastered the process side of things, Indian drug makers began investing more on product R&D, which is now allowing them to play with the big boys in the global markets.
Interestingly, only after its companies started to gain the ability to design their own drug molecules, did India sign the WTO agreement, which forces it to offer IP protection for pharmaceutical products as well.
I believe the Bangladeshi firms are trying to follow the same strategy because TRIPs gives an IP holiday for LDCs in the Pharma sector until 2016. So even at the WTO level, there is the recognition that a strong IP is not necessarily good policy for all countries and all industrial segments at all times."
Shamnad Basheer Says: July 23rd, 2007 at 5:35 am
"I’m inclined to wholeheartedly agree with the nuanced comments of Mohd Farooque. Innovation in many cases is likely to be preceded by imitation (after all, babies learn by copying!!)–and countries need to provide for regimes that provide some scope for imitation at the early stages. Historically, almost all countries imitated before they invented–including the US, Germany (product patents in pharma only in 1967), Switzerland (product patents in pharma only in 1977), Japan (’87) etc.
TRIPS and other international IP instruments are to be strategically used by countries and standards of protection calibrated according to thier local needs. There’s no point being hostile to TRIPS now–as most countries have signed it and are bound by it. The best you can do is to exploit “flexibilities” inherent in this international instrument and calibrate protection according to local needs.
I extract parts of a note that I am current authoring for a mainstream media publication.
“Contrary to popular perception, India did have a pharmaceutical product patent regime since 1911—thanks to the British and their propensity to gift colonies with law/policies that looked similar to theirs. And yet, this gift did not help create any indigenous pharmaceutical industry in India—not very surprising, given that most countries need to imitate first before inventing and strong IP regimes stand in the way of permitting such “imitation”. This colonial regime also resulted in extremely high drug prices—a US Committee investigating drug prices the world over found that in 1961, Meprobamate, an anti-anxiety pill cost more than twice the price in India, as it did in the US!
Independent India was therefore keen on breaking away from its colonial past and putting in place a regime that reflected “national” interest. A committee headed by a sagacious judge, Rajagopala Ayyangar undertook a quick survey of patent regimes the world over and found that most industrialized nations began by installing regimes that permitted some level of technological imitation. It also found that the chemical industry in India was reasonably strong and had the potential to reverse engineer drugs.
It therefore recommended the abolishment of product patents and the introduction of process patents for pharmaceuticals. As process patents are considerably weaker than product patents, the idea was that such patents would not prevent the domestic industry from reverse engineering existing drugs and manufacturing generic versions via alternative processes. The success of the Indian generic industry today is testimony to the far sightedness of Ayyangar’s policy. India has imitated for more than 30 years now—and quite successfully too. Its expertise at reverse engineering and finding alternative processes are more than amply illustrated by Eli Lilly’s attempt to prevent generics from introducing competing version of its anti-infective Cefaclor by patenting 56 different processes—and yet, within no time, Ranbaxy found the 57th process! The question now is: is this the right time to transition to a product patent regime? Unfortunately, India doesn’t have the luxury of asking that question anymore, since India already did so in 2005, pursuant to a TRIPS obligation. But what India can do is calibrate how much protection it wishes to grant to pharmaceutical inventions.
Section 3(d), is in many ways, an example of such calibration—and reflects India’s attempt at minimizing the impact of product patents by granting it to only those substances that are truly “inventive”. However, it uses terms such as “efficacy” that haven’t been defined. And this is why it is critical that we let the Novartis case run its course so that standards for helping interpret terms such as “efficacy” evolve. After all, Ranbaxy and Dr Reddy’s, two of our largest pharmaceutical company also file applications claiming “incremental inventions”. What we cannot afford at this stage is for our policy debates to get hijacked by emotional rhetoric and patent dogma.
India is neither “developed” nor “developing”—at least in the strict sense of the term—it is what I would prefer to call, a “technologically proficient” developing country. We’re strong in certain technology sectors and therefore need to find ways to incentivise innovation in these areas and yet, at the same time, 26% of our people live below poverty line and we are “developing” to that extent. The age old IP rules that were premised on this neat distinction between developed versus developing countries don’t fit us anymore. This calls for “new” norms—and in fact, our 2005 Act does manage to establish some new norms in parallel imports, compulsory licensing and in the patenting of biological material and traditional knowledge. In short, we need to “innovate” in our IP policy as well, without blindly copying norms created by the West.
We also need to understand that innovation is not about intellectual property alone, but is dependent on a host of other factors such as levels of skill/education, infrastructure etc. We need to therefore build a comprehensive framework for encouraging innovation. Perhaps the time is ripe to constitute another "Ayyangar" like committee to help us determine what the optimal "tautness" of our patent/innovation policy string ought to be in today’s “knowledge economy”.
Mr.Srinivasan subsequently wrote to me asking whether the Court can at all examine the advice tendered to the President, in view of the explicit bar in the Constitution. Let me explain. The Supreme Court said in the Rameshwar Prasad case as follows:
The plain reading of Article 74(2) stating that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court, may seem to convey that the Court is debarred from inquiring into such advice but Bommai has held that Article 74(2) is not a bar against scrutiny of the material on the basis of which the President has issued the proclamation under Article 356.
Justice Sawant, in Para 86 of Bommai states that :
"Although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The Courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice. The Courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. Hence when the Courts undertake an enquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. "
It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds, the court would have the jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied.
In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from material is certainly open to judicial review.
In the Bihar case, Kalam reached the conclusion solely on the basis of the Governor's reports, as advised by the Council of Ministers, and not on the basis of "otherwise" as required by Article 356(1).
How did the Supreme Court conclude that the dissolution based on the Governor's reports was unconstitutional?
Paragraph 158 of Rameshwar Prasad: "The Governor cannot assume to himself aforesaid judicial power and based on that assumption come to the conclusion that there would be violation of Tenth Schedule and use it as a reason for recommending dissolution of assembly.
We have already referred to the Governor report dated 21st May, 2005, inter alia, stating that 17 - 18 MLAs belonging to LJP party are moving towards JDU which would mean JDU may be in a position to stake claim to form the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government.
At that stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of 'assumption', or 'perception' as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party - an area wholly prohibited in so far as the functions, duties and obligations of the Governor are concerned. It was thus a wholly unconstitutional act."
Now, my question is this : The Supreme Court reached this conclusion, after elaborately hearing the parties for a number of days, and after examining the facts of the case (as even Bommai was not an exact precedent), in all its details. It required a five-Judge Constitution Bench to analyse the finer Constitutional issues involved to reach the conclusion that it did. During the hearing of the case, the Supreme Court repeatedly said this was a virgin case. But is it fair to expect Kalam to arrive at the same conclusion or even assumption, on his own or after consultation with legal experts (which legal expert's advice he must lean on? The AG will of course echo the Government's view)? If he honestly believed that the Governor was keen to prevent the violation of 10th Schedule, could he be faulted?
Rameshwar Prasad was perhaps the first case when the SC held that the Governor has no role in judging the likely violation or otherwise of 10th Schedule. The Supreme Court also found that mere assumptions that there might be horse-trading if X or Y was allowed to achieve majority strength cannot be the basis for a Governor's decision. Logically it is sound, but can anyone move beyond assumptions in such cases, and provide hard proof of allurements? If the President/Council of Ministers felt hard proof was not possible, and it would be better to prevent allurements being offered (which was very likely), rather than seek legal remedies later, could they be faulted?
Wednesday, July 25, 2007
What Mehta mentions in passing gets a specific reference in Swapan Das Gupta's article. Both obviously refer to his infamous assent, given while he was in Moscow, to the dissolution of Bihar assembly in 2005, which invited Supreme Court's strictures against the Governor, Buta Singh, because of which the latter had to quit office. Kalam, at that time, had described the Supreme Court judgment holding the dissolution as unconstitutional as a learning process. But what was his own defence of the assent?
Rashtrapati Bhavan spokesperson whom I had the privilege of talking to while writing on his first-ever use of Article 111 to return the Office of Profit Bill to Parliament for reconsideration, had this to say:
Kalam was just about to go to sleep, (at 2 a.m.) when he was shown the communication from New Delhi seeking his signature on the decision to dissolve the Bihar assembly. Did he have any option, but to sign? There were only two options: one is to give his assent. The second one is to return it to the Cabinet for reconsideration. There is no third option to the President. He could not have delayed it, or asked New Delhi to wait till he returned home.
If he has to return it for reconsideration, then he has to cite specific grounds why the Union Cabinet's advice has to be reconsidered. The proviso to Article 74, inserted by 44th Amendment in 1978, says:
"Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."
The word "reconsider" implies that there ought to be some grounds for reconsideration, some reasons, which according to the President, are weighty enough, to take this extraordinary step of reconsideration. Therefore, the words "generally or otherwise", if you apply the principle of ejusdem generis, are not vacuous words. The President who wishes the Union Council of Ministers to reconsider its advice must necessarily cite the relevant grounds or reasons for doing so, and not just for the sake of it, ask the Council of Ministers to do so.
Given this understanding, was there any reason or ground for asking the Council of Ministers to do so? The Governor, having waited for nearly six months for the political process to realign, had run out of patience, and given a report advising President's rule. Was there any ground to doubt at that time, that his report was born out of malice? There was no representation to Kalam pointing to the political situation. No one staked any claim to the Governor seeking a chance to form a Government and prove the majority. The realignment which was purportedly taking place had not yet taken shape, and things were in a flux. Had there been one definite step - of even staking a claim then there was reason to hold that the advice could have been returned for reconsideration. Only a few newspaper reports had appeared pointing to Nitish Kumar's chances of forming a Government, with splinter groups from other parties. There was no clarity in the situation. Could Kalam have returned the advice asking the Union Cabinet to "await" this, what then appeared as a never ending political drama? Can waiting for political impasse to be resolved by itself be construed as "reconsideration" in the light of a few newspaper reports?
Swapan Das Gupta writes:
The first, and relatively unpublicised occasion was his demand that the Vajpayee government resign after dissolving Parliament in 2004 and be substituted with a non-partisan caretaker regime. This was a gesture of improvisation that may have been grounded in the principle of fairness but it lacked constitutional sanction. It was a piece of adventurism that Kalam wisely didn’t persist with. (Swapan Das Gupta is factually wrong here, as I have explained in my previous post)
The second occasion was when he accepted Governor Buta Singh’s report on the constitutional breakdown in Bihar after the first 2006 Assembly election in Bihar. Kalam was probably misled by Prime Minister Manmohan Singh’s personal plea of immediacy and hurriedly signed the proclamation in Moscow. Subsequently, the Supreme Court declared the move illegal, although it refrained from being critical of Rashtrapati Bhavan. A humiliated Kalam vowed to be doubly cautious in future and to never accept the government’s advice without an independent application of mind. He learnt from his mistakes.
It is for the history to judge whether, given the circumstances, Kalam was correct on these two occasions.
Tuesday, July 24, 2007
"THE National Rural Employment Guarantee Act (NREGA) has been a subject of lively debate in the past two years or so. Unfortunately, the factual basis of this debate has been, so far, rather thin. This has made it possible for extremist positions to flourish without being put to the test of careful evidence. While the Act is regularly pilloried in the corporate-sponsored media as an "expensive gravy train" (as a former Chief Economic Adviser described it), the government gets away with extravagant claims of success.Fortunately, the scope for informed analysis is rapidly growing as reports are beginning to pour in from various parts of the country. "
The rest of the piece consists of fairly close analysis of the statistics available on the NREGA website maintained by the Ministry of Rural Development. The authors note that the website and the data it provides have problematic aspects, but parse it nevertheless to come to interesting conclusions about the relative progress achieved in different states. Some of these would appear to go against conventional wisdom, such as the following bit:
"Is NREGA doing better in States ruled by particular political parties? No obvious pattern emerges in this respect. Nevertheless there is a hint that, if any national political party is taking the NREGA seriously, it is the Bharatiya Janata Party (BJP). Indeed, among the major States, the four best performers in terms of employment generation under NREGA are Rajasthan, Assam, Madhya Pradesh and Chhattisgarh, all of which, except Assam, had BJP governments in 2006-07. As it happens, Assembly elections are due relatively soon in Chhattisgarh, Madhya Pradesh and Rajasthan. One wonders whether active implementation of the NREGA in these States is part of a deliberate electoral strategy of the BJP. It would be a cruel irony if the BJP were to reap the political benefits of a programme initially championed by the Congress and the Left parties."
This is how the authors conclude:
"It would be naive to think that the long history of fraud in public works programmes has already come to an end. But recent experience shows that it is possible to remove mass corruption from NREGA. This calls for strict implementation of the transparency safeguards, as well as firm action whenever corruption is exposed. In these simple steps lies the future of the Act, and of all those for whom it is a new ray of hope."
Monday, July 23, 2007
PRS Legislative Research : An excellent resource on the Indian Parliament's legislative output and functioning
Looking back at my own legal education in India, I have to accept that a focus on judicial decisions, particularly those of the Indian Supreme Court, was the predominant feature of much of the curriculum. There were no courses on Legislative Drafting (though my batch was fortunate enough to have one offered as an optional course, even as, reflecting the perceived practical utility of such a course, there were few takers for the course). Most of us were briefly exposed to the stages of enactment of a Bill when we dealt with the constitutional provisions in this respect, but this was done very cursorily, and I suspect that most law students do not have a good understanding of exactly what happens in the process by which a Bill becomes a duly enacted statute. The mandatory course on Statutory Interpretation that I studied focused more on the perspective of practicing lawyers and judges who have to interpret enacted statutes. A cursory glance at the present curriculum adopted at NLS, Bangalore and NALSAR, Hyderabad indicates that not much has changed since the mid-1990s in this respect.
This is indeed unfortunate, because, as all of us are aware, legislative activity accounts for some of the most important developments in our legal system. Academics who focus on India's legal system have long pointed to the large number of obsolete laws on our statutory rolls. Attention has also been drawn towards the fact that even recent statutes have problems embedded in the language in which they are drafted, as well as their inherent structure. Yet, this has not been accompanied by rigorous thinking (and teaching) about the kind of changes we should be incorporating in our drafting methods. The one Indian legal academic that I am aware of who focused on these questions extensively in his writings is P.M. Bakshi (at least some of his scholarship is available in the pages of the Journal of the Indian Law Institute).
In some respects, this is a malaise which affects many countries which adopted the common law system. Fellow graduate students from civil law jurisdictions would often point out to me that their legal education focused extensively upon legislative activity, and that several of them underwent extensive training in legislative drafting. Academics from civil law jurisdictions also tend to focus upon legislative reform, and legislative developments quite extensively and naturally. In some other common law systems, however, the situation is not as bad as in India, and law schools in particular have made efforts to focus on the issues highlighted here.
Reverting to the situation in India, research and teaching focusing on legislation is hampered by the fact that we do not have the tools to conduct proper research or develop teaching modules around the issue. For those interested in this isssue, some hope is now at hand. I recently came across the excellent website of the PRS Legislative Research team. Here, from their website, is some information about the team and their mission:
What we do:
The Post Session Summary is a synopsis of all the legislative business that has been transacted in a Parliament session. The Pre-Session Alert is a summary of the legislative business that is likely to be transacted in the forthcoming session of Parliament. One page Bill Summary is a unique offering from
The website of PRS has different sections which provide links to the full text of the following:
|Bills Pending in Parliament|
For many of the specific entries, PRS provides short and helpful 'Legislative Briefs' which allow readers to get a quick sense of the proposed law. The archives date back to 2004, allowing researchers and students to study some of the most significant laws passed in recent years. In a section called "Vital Stats", the website provides interesting analysis of statistical data, which enables readers to monitor the activity of Parliament and get a sense of, for instance, the attendance record of MPs. The main page of the website also has a useful section which tracks news stories related to laws and disputes about laws, broadly defined. As of today, the website features legislative briefs about important bills such as the Competition Amendment Bill and the Microfinance Bill.
Some members of the Core team of PRS have been reaching out to mainstream publications to air their research findings. Indeed, reports by MR Madhavan and Priya Parker (on the Maintenance of Parents Bill, 2007) that appeared in newspapers and online magazines have been featured on our blog as well. Clearly, the members of PRS are seeking to highlight these issues and cause national opinion to focus upon the often pressing issues that they work upon.
I for one will be revisiting this website often to get a sense of important policy changes that are being proposed in Parliament. I suspect the site will be very useful to law students, scholars and practitioners in general.
Sunday, July 22, 2007
"Would someone care to comment on the Kafkaesque treatment of the Indian doctor in Australia! It might seem a bit early to comment; but I doubt if anybody would be forced to eat their words for criticizing the Aussie government in using an apparently innocent man to stoke up hysteria and panic before an election.
Personally, I think Indian anti-terror laws are a bit more sophisticated and evolved than those in the US, UK or Australia. It’s been a steep learning curve from the days of TADA and besides we don’t really have the element of cultural barrier in dealing with these things."
Let me quote from this article in today's Indian Express by Soli Sorabjee, who as a former law officer of the Centre at the very highest levels must have had first hand experience with several such laws, and can be considered a good authority on the subject:
"Mohd Haneef, a suspected terrorist, was granted consular access to the Indian High Commission in Australia, was allowed to speak to his wife, had the services of a competent Australian lawyer who successfully got him bail which is exceptional in Australia in case of a terrorism-related offence. If an Australian were detained in India on suspicion of terrorist activity it is doubtful whether he would have received these facilities and services. In these circumstances it was inappropriate for our foreign ministry to summon the Australian High Commissioner and lecture him about providing facilities for Haneef under Australian law. As rightly observed by the Australian High Commissioner the issue is not of racism. The problem is of terrorism which has for long afflicted our country."
For a more detailed analysis of just how "sophisticated and evolved" our anti-terror laws are (and have historically been), see the document linked in this post.
Saturday, July 21, 2007
The latest attempt is the Broadcasting Services Regulation Bill, 2007. The Bill envisages the Broadcasting Regulatory Authority of India (BRAI) and a Public Service Broadcasting Council. It has three purported goals:
1. Competition provisions which will prevent monopolies in the broadcast media (section 12)
2. Public service requirements imposed on all broadcasters (section 13)
3. Putting in place a pre-censorship mechanism in place through a Content Code (s. 4).
While the first two objectives are laudable (though their efficacy remains to be examined), the final point is of concern. Similar provisions in the previous Bills became their sticking points as well. The power to frame and notify the Content Code is delegated to the government. It has also been vested with some draconian emergency powers (sections 5 & 6).
Another issue of concern is the scope of the Bill - while the Convergence Bill clearly covered internet and mobile broadcasting, there is some ambiguity in the definitions in this Bill (section 2 (d), (e) & (f)). Given that it requires all broadcasters to obtain prior license, one wonders whether this will apply to everyone who posts on You Tube. A cursory reading of section 3 which, inter alia, prohibits any person from broadcasting any program seems to suggest that it would. Clarity on this front would be useful.
The Bill, in seeking to control a very powerful sector of the media, is obviously very important. Any comments would be enlightening.
Friday, July 20, 2007
The AIADMK chief J.Jayalalithaa has rightly revised her stand on abstention by allowing her party MPs and MLAs to vote, even while abstaining herself, blaming the E.C. for not taking a clear stand. In the comments section to the previous post, both Dilip and Srinivasan argue for freedom for parties to peacefully propagate abstention. There is one convincing reason why such a freedom cannot be conceded. I draw your attention to the link relating to ECI's norms for registration of political parties. The link is here.
One of the requirements for registration says:A neatly typed/printed copy of the memorandum/rules and regulations/Constitution of the Party containing a specific provision as required under sub-section (5) of Section 29A of the Representation of the People Act, 1951 in the exact terms, which reads "---------------(name of the party) shall bear true faith and allegiance to the constitution of India as by law established, and to the principles of socialism, secularism and democracy (italics mine) and would uphold the sovereignty, unity and integrity of India". The above mandatory provision must be included in the text of party constitution/rules and regulations/memorandum itself as one of the Articles/clauses.
What are the principles of democracy? Democracy, according to the dictionary meaning, is a country in which the people choose their government by voting for it. How can anyone interpret it to mean it also includes not choosing a government by not voting for it? Voting indisputably is an essential principle of democracy. Individual voters may have the freedom not to vote, because of various reasons, but they ought to be primarily personal. Even a decision not to vote because the voter is dissatisfied with all the available candidates must be entirely a personal one, based on her perception and judgment of what the parties offer or don't offer; this decision cannot be dictated or appealed to by any party, because once the parties try to persuade the voter not to vote, they would lose the rationale for registration.
The EC has certainly misread its own norms for registration of parties. I am glad Jayalalithaa understood the wisdom and the correct legal position of not deciding on behalf of her MLAs/MPs even belatedly and allowed them to vote, even if she had abstained. There is a strong ground for seeking deregistration of political parties which requested non-voting by its Members.
One can ask what about socialism and secularism? Are not parties guilty of going against the principles of these concepts as well at times? Well, my answer is that the violation of these principles is subtle, and difficult to establish sometimes. Even if the violation is blatant, there is always scope for a different interpretation. One would agree that the word socialism was inserted in the Preamble of the Constitution under circumstances which are arguably not relevant today. But democracy? It is so fundamental to the Election Commission's own rationale. There can be no two opinions on what it means and signifies.
Thursday, July 19, 2007
In a separate article published in yesterday's issue, Antony focuses on some PIL cases decided by the Supreme Court in the first few days after it reopened following the summer vacation break:
|"The first week after the summer recess showed how varied and bizarre are the subjects dealt with by the court in [recent] PILs.|
|On the first day itself, the court delivered the judgement in a case, General Insurance Council vs State of Andhra Pradesh. It was in the nature of a PIL, as it sought a direction to the state governments to implement Section 158(6) of the Motor Vehicles Act. If this is taken as a precedent, petitions could flood the courts seeking the enforcement of the various provisions of hundreds of Acts. We are the most over-legislated country with a record for ignoring laws after they are passed by the legislature.|
|The General Insurance Council stated before the court that Section 158(6) cast an obligation on police officers to forward reports about death or bodily injuries sustained in road accidents to the claims tribunal and the concerned insurance company immediately. However, this is not done in practice. As a result, 1.5 million such cases are pending before various courts. Since such reports are not forwarded within a reasonable time, investigation and verification of claims become difficult. It becomes easier to fabricate evidence, make exaggerated claims and commit fraud. Insurance companies suffer on account of the higher claims and cost on account of the delay in the adjudication of claim petitions.|
|It is difficult not to sympathise with the insurance companies. But what can the courts do in such instances of total abdication of responsibility by the executive authorities? Observing that there was no justifiable reason as to why the legal requirements are not followed, the court passed the following directions: “All the state governments shall instruct, if not already done, all concerned police officers about the need to comply with the requirement of Section 158(6). Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case of non-compliance, appropriate action shall be taken against erring officials.” Such directions are superfluous as the law is already there and the court orders help little to improve the current mindset. They will go the same way as the judgements banning smoking, littering and spitting in public and prescribing norms to improve the chaotic public transport system in the national capital.|
|Another judgement of the same genre, PUCL vs Union of India, asked the state governments to make operational 2.72 lakh anganwadis funded by the central government. It would seem that the governments need orders from the Supreme Court to do their duty.|
|The Supreme Court then delivered another judgement in what it called ‘private interest litigation’. In this case, National Council for Civil Liberties vs Union of India, it was alleged that Narmada dam activist Medha Patkar was motivated by foreign funds and her financial sources should be investigated by the CBI. The court stated that the petition was filed to discredit and diffuse her agitation for rehabilitation of the displaced persons from the dam site before submergence of their habitat. She appeared to be genuinely concerned with the issues. The judgement also said that the petition, without any evidentiary support, was filed out of a grudge harboured by one V K Saxena against Medha Patkar.|
|Then there is a maverick bunch of petitioners who are trouping to the courts with frivolous prayers. The count for the past week was more than 20. Their prayers included the following: India should be renamed Hindustan; the Arabian Sea should be called Sindhu Sagar; the national anthem Jana Gana Mana should be replaced by the one offered by the petitioner (and partly sung before the Chief Justice); the Prime Minister should be summoned to the court to respond to these requests; and so on.|
|When the PIL movement was conceived in the late seventies, it was meant to help those who could not approach the courts because of illiteracy, backwardness or inability caused by detention or social conditions. Prisoners, women in distress and children in bondage were some of the genuine beneficiaries. However, now even passengers angry at the delayed departure of planes or congestion charges dash to the courts with PILs. There is a department in the Supreme Court which receives hundreds of such complaints. They vet these petitions before placing them before the court. The hearings of the past week show that the PILs need tighter regulation in the back office."|
Antony's column echoes arguments and concerns raised even by those who have in the past been sympathetic to, and ardent promoters of, PIL, including Prashant Bhushan and former Chief Justice Verma. The Supreme Court has for over two decades highlighted the need for regulating PIL carefully to ensure that it remains wedded to legitimate purposes. Antony's concluding comment is bluntly critical of the PIL division of the Supreme Court's Registry which vets PIL petitions.
I am not sure, however, if the remedy for the problem he presents is simply requiring Registry officials within the PIL unit to be more stringent. That would vest a great amount of discretion in registry officials, which would, in the absence of clear guidelines as to how that discretion is to be exercised, lead to other, equally serious problems. Part of the reason why PIL has had such a multi-faceted character and unpredictable trajectory is because efforts to rein in or guide the direction of PIL have not met with much success, whether they were initiated by individual judges within the Supreme Court or by people within government who were unhappy with particular trends in PIL cases. Some of us may consider that to be a good thing in general, but these cases do point to the need for some kind of intervention by Judges of the Supreme Court (and not registry officials) to lay out broad guidelines on the limits of PIL petitions that can be entertained.
Update, 3.30 pm: I've added links to the full text of the judgments in the Bisht case, which are available on JUDIS, for those who might want to read the case.
Wednesday, July 18, 2007
THE Election Commission has issued a clarification regarding the BJP's demand to declare the United National Progressive Alliance (The Third Front)'s decision to abstain from the Presidential elections. The clarification is entirely unconvincing and inconsistent. First it says, political parties cannot issue any direction or whip to their members to vote in a particular manner or not to vote at the election leaving them with no choice, as that would tantamount to the offence of undue influence within the meaning of section 171C of the IPC.
This point is well taken, and the E.C. has for the first time taken a formal decision in this regard, which is welcome. In 1997, the E.C. had declined to endorse the Election Commissioner, G.V.G.Krishnamurthy's personal opposition to the issue of whip as being unconstitutional, even though political parties had broadly accepted his appeal.
Having said that, the E.C.'s press note says those electors defying such a directive from the party, to give effect to their free will at the election will not come within the ambit of disqualification under the 10th Schedule to the Constitution.
The point is that the parties comprising the Third Front could threaten expulsion of the defiant Members from their parties for the defiance, even if they don't suffer disqualification from the House. Forget expulsion, there can be other forms of retribution against a defiant elector, who is willing to risk party indiscipline. Unlike cross-voting (which is impossible to detect due to secret ballot) , it is easier to detect those Members who don't abstain from voting. In a party like AIADMK, which is part of the third front, the prospect of retribution for defiance can make the Member succumb to undue influence, rather than follow his free will.
The E.C. in my view, has misconstrued the scope of Section 171A (b) of IPC by equating voters who have the right to abstain with parties' freedom to request or appeal to abstain. In our democracy, the parties internally don't appeal or request their Members. They just decide, and the decision is binding on all Members of the parties. Hence the cover of 171A(b) cannot be made available to the political parties or a grouping of political parties to decide on behalf of the electors to abstain from voting. Just imagine what would happen, if all political parties decide to abstain. It would defeat the very objective of the election to choose a President in time to fill the likely vacancy in Rashtrapati Bhavan. Can all political parties have similar freedom to request their Members to abstain from voting? Needless to say, such an interpretation would make no sense at all.
Monday, July 16, 2007
The July issue of the excellent India Together has an article by Priya Narayan Parker which provides more detailed analysis of the provisions of the Bill. Parker also looks at an existing statute on the issue enacted by the Himachal Pradesh legislature in 2001. In addition, she provides snapshot views of how other countries have sought to address the issue of elder care.
Saturday, July 14, 2007
"The Constitution (103rd Amendment) Bill, 2004 to grant constitutional status to the National Commission for Minorities envisages a change in the way minorities are specified. The Cabinet has reportedly approved a proposal (May 2007) to define minorities State-wise in line with several Supreme Court judgments, most notably that in T.M.A. Pai. For the purpose of this legislation, minority will be specified as such in relation to a particular State/Union Territory by a presidential notification issued after consultation with the State Government; this will be in addition to the five minorities (Muslims, Christians, Sikhs, Buddhists, and Parsis) referred to in the NCM Act, 1992. The new approach is not consistent with the understanding developed in the Constituent Assembly on the protection of minorities and the constitutional compact between the State and minority groups.
Although the Constitution does not define a minority or provide details relating to the geographical and numerical specification of the concept, it is clear that the constitutional scheme envisages this to be determined at the national level. Periodic judicial interventions and categorisation has had major repercussions. Over the years, judicial pronouncements have sought to give a restricted meaning to minority rights by limiting them to education and defining minorities at the State level in terms of protection under Article 30 which provides religious minorities the right to set up educational institutions of their choice. The legitimation of a restrictive conception of minority rights can also be noticed, in this context, in the Central Government’s proposal to adopt a State-specific notion of minorities.... ... ... At the heart of the current controversy is confusion about which groups qualify as minorities and regarding the nature of the unit of determination under this rubric. However, internationally, some agreement exists. Commonly cited characteristics that make groups distinctive and expose them to discrimination include religion, language, culture, and gender. There is also a unanimous opinion that the term ‘minority’ refers to a power relationship. In this, the size of a group may bear some relation to the degree of power it wields, but presumably because other factors are also involved in the equation, the relationship of group size is not all that significant.
Contrary to this widely accepted perception of minorities, the Government’s new proposal for State-specific minorities is driven by a statistical or numerical approach. The size of the group is not what should concern our policy-makers or those committed to eradication of inequity, prejudice, and discrimination. This is because numbers per se merely quantify and describe the proportion of a group in a population; they do not tell us anything about whether a particular minority group is powerful or powerless, advantaged or disadvantaged, represented or under-represented. A more meaningful conception of minority status would include sections of people who, on account of their non-dominant position in the country as a whole (not a specific State), and because of their religion, language, caste or gender, are targets of discrimination and therefore deserving of special consideration. The statistical approach disregards the crucial qualitative condition of vulnerability and disadvantage.... ... ... In the circumstances, defining and confining the category ‘minority’ to States is not the best way forward; it would be far more helpful to recognise the comprehensive character of minority rights, in consonance with the demands of substantive equality, to include them by revisiting the concept of affirmative action. This would be in step with the slew of policies and measures currently under consideration to address the economic, social, and educational deprivation that minorities experience."
Friday, July 13, 2007
For those interested in some more details about the issue, here is the Wikipedia entry on the NREGA; here is the link to the official website of the Union Ministry of Rural Development which provides details about the implementation of the NREGA; and here is a set of basic FAQs compiled by rediff.com.
Thursday, July 12, 2007
Here are extracts from the essay, though it should really be read in its entirety:
"Until the 1990s the Naxalites were a marginal presence in Indian politics. But in that decade they began working more closely with the tribal communities of the Indian heartland. About 80 million Indians are officially recognized as "tribal"; of these, some 15 million live in the northeast, in regions untouched by Hindu influence. It is among the 65 million tribals of the heartland that the Maoists have found a most receptive audience.
... ... This twin marginalization [of tribals], economic and political, has opened a space for the Maoists to work in. Their most impressive gains have been in tribal districts, where they have shrewdly stoked discontent with the state to win people to their side. They have organized tribals to demand better wages from the forest department, killed or beaten up policemen alleged to have intimidated tribals and run law courts and irrigation schemes of their own.
... ... ...How many Maoists are there in India? Estimates vary widely. There are perhaps 10,000 to 20,000 full-time guerrillas, each armed with an AK-47, most of them conversant with the use of grenades, many with landmines, a few with rocket launchers. They maintain links with guerrilla movements in other parts of South Asia, exchanging information and technology with the Liberation Tigers of Tamil Eelam and, at least before their recent conversion, the Nepali Maoists.
The Indian Maoists got a huge shot in the arm with the merger, in 2004, of two major factions. One, the People's War Group, was active in Andhra Pradesh; the other, the Maoist Co-ordination Committee, in Bihar. Both dissolved themselves into the new Communist Party of India (Maoist). Since the merger the party has spread rapidly, with former PWG cadres moving north into the tribal heartland from Andhra, and erstwhile MCC cadres coming south from Bihar.
My guess is that about forty districts, spread across ten states and containing perhaps 80 million Indians, live in a liminal zone where the Indian state exercises uncertain control by day and no control by night. Some of these districts are in the northeast, where the nighttime rulers are the Naga, Assamese and Manipuri rebels. The other districts are in the peninsula, where Naxalites have dug deep roots among low castes and tribals grievously shortchanged by the democratic system.
Wednesday, July 11, 2007
Tuesday, July 10, 2007
The question that was the bone of contention was whether the Indian revenue authorities can only tax the captive Indian entity for the fees that it receives from the MNC parent or whether the MNC parent (that is outside India) can itself be taxed by the Indian authorities to the extent of the income it has derived internationally from operations attributable to the captive Indian entity.
This was the subject matter of litigation before the Authority for Advance Ruling (AAR) in the Morgan Stanley Case. In February 2006, the AAR ruled that even if the captive Indian BPO operation was treated as a “permanent establishment” of the MNC, only the income received by the Indian entity from the MNC parent would be taxed in India. It also held that the MNC parent itself would not be liable to be taxed in India to the extent of profits attributable to the Indian operations so long as the Indian entity was remunerated by the MNC parent on an arm’s length basis.
With the AAR ruling being in favour of the assessee, it was naturally the subject-matter of an appeal preferred by the revenue before the Supreme Court. As reported in the Economic Times, the Supreme Court yesterday upheld the decision of the AAR and ruled in favour of the assessee.
The gist of the ruling is as follows:
(a) it is first necessary to determine whether the Indian captive BPO is a “permanent establishment” of the MNC parent. If not, then the MNC’s profits are not taxable in India;
(b) if the Indian captive BPO is determined to be a “permanent establishment”, then the MNC parent’s income (attributable to the Indian operations) will be taxable in India only if its remuneration of the captive Indian BPO is not on an arm’s length basis.
The logic of the Supreme Court decision seems to be to ensure that there is no tax leakage through outsourcing. In other words, if the transaction between the MNC parent and the Indian captive BPO is on an arm’s length basis, then the Indian entity receives sufficient revenue on which it pays taxes in India. However, if the services of the Indian entity are undervalued (and not on an arm’s length basis) resulting in less revenue to the Indian entity, that would in turn result in less taxes being paid in India and hence revenue leakage.
It is therefore important for all captive BPO entities to have proper transfer pricing arrangements with their MNC parents such that the transactions are conducted on an arm’s length basis.
It is believed that this ruling from the Supreme Court will put to rest the ambiguity that existed in the interpretation of the Income Tax Act and various circulars issued by the Central Board of Direct Taxes (CBDT). See also, SC ruling clears the air on captive BPO taxation.
I did not find all of his claims entirely convincing. For example, he claims that in caste, as against class, mobility of any kind, either horizontal or vertical does not exist. This is true if he is talking at the individual level – a person cannot change his caste label; but caste hierarchies as a whole are not static explains M.N.Srinivas in his book ‘Caste in Modern India’. Also, sociologists generally believe that vertical mobility is higher for women of any caste than men. Another point the author makes is that while some castes may have a traditional or hereditary occupation, they are basically not economic groups but are usually based on religious and mythical traditions. The original chaturvarna system has religious as much as occupational significance no doubt but is it true that all the several thousand castes and sub-castes have religious and mythical basis? I doubt that.
Monday, July 09, 2007
The basic facts at the heart of the debate are set out in a punchy HT editorial authored by Barkha Dutt, an alumna of St. Stephen's:
"Under a new officer on special duty (Valson Thampu, my old teacher), the college has increased the overall Christian quota to 40 per cent, of which 25 per cent will be kept aside only for Dalit Christians. A certificate from a church will determine who is a Dalit Christian, and all such applicants will be measured against a cut-off of 60 per cent marks, irrespective of which subject they want to study (students competing in the general category for a seat at St Stephen’s usually need anything upwards of an 85 per cent score.) If you add the seats reserved for Scheduled Castes and Scheduled Tribes and those kept aside for the sports quota, only four out of every 10 seats will now remain genuinely competitive. Christian students and SC/ST candidates already apply at a cut-off that is 15 per cent lower than that for the general category."
Other alumni of St. Stephen's have protested against the new policy. (Ramachandra Guha's spirited response is available on Outlook, but viewing it requires a free subscription: a brief discussion of his views is available at this post on Nanopolitan's blog). Vir Sanghvi, while weighing in on the issue (and clarifying that he is not an alumnus of the college), called for a national debate over the issue. His editorial also examines some of the reasons behind the furore over the issue, focusing on the high status enjoyed by St. Stephen's college among educational institutions in India.
The current Principal of St. Stephen's has responded to these criticisms in a series of op-ed articles. Here is a link to his op-ed in the Times of India, dated June 29, 2007. A few days later, he wrote this op-ed in the HT. And this is his editorial in today's issue of the Hindu.
While others have focused on the prudential and normative basis of the policy, I hope we will be able to discuss the legal arguments for and against the policy. In her passionately argued piece, Barkha Dutt alludes to the fact that the college may have a sound legal basis for its new policy, but disputes its soundness on other grounds:
"St Stephen’s College is legally within its rights as a minority institution to bring in these new quotas (despite the fact that 95 per cent of its expenses are met by the University Grants Commission). But the college that taught us all to never accept inherited wisdom must now turn its innate questioning spirit to itself. It must answer why it has chosen to self-destruct and walk down a path that will kill the very liberalism that has defined it for decades."
Focusing on the Principal's latest response in today's Hindu, he too raises both normative and legal arguments to back the new policy. Among other policy-based arguments, he focuses on what he sees as the basic problem with higher education in the country today:
"The foremost tragedy in this country is not illiteracy. It is a system of education — from the primary level to higher and professional education — that perpetuates the status quo, aggravates social cleavages, obstructs national integration, and shuts the door on the hopes and aspirations of the poor. A veneer of legitimacy is cast over this systemic injustice with the label of ‘merit.’ Merit, as an American billionaire said some years ago, often implies little more than the accident of being “conceived in the right womb.” The time has come for us to make a distinction between ‘individual merit’ and the merit of a society. A meritorious society is one in which the hidden merit of all its members is enabled and expressed fully. Seen in this light, we are an ‘anti-merit society.’ Our very notion of merit militates against merit in the social sense. It is high time we shifted from a hierarchic to a democratic and socially pro-active idea of merit, the sort of merit that would have found favour with the Father of the Nation."
He then provides the legal basis for the new policy:
"What holds the field in the domain of minority rights today is the 2002 judgment of the Supreme Court of India’s 11-judge bench in T.M.A Pai Foundation & Ors. vs. the State of Karnataka and Ors. This judgment holds: “ ;To effectuate Article 30(1), minority educational institutions, while giving preference to students of that community, may admit students of non-minorities up to 50% . . .” It is thus obvious that admission from all other communities and categories to a minority educational institution should not exceed 50 per cent. This is so because, as the Supreme Court acknowledges, admissions have a shaping influence on the character of an institution. A minority institution loses its minority character when the minority community becomes a minority in that institution. Article 30(1) is meant, primarily, to enable religious and linguistic minorities to meet their educational needs.
According to the Guidelines for Admission 2007-2008, 40 per cent of the seats in St. Stephen’s are set apart for Christian applicants and an equal percentage for non-minority applicants. Both admissions are done strictly on the basis of inter se merit. Of the remaining 20 per cent of seats, 5 per cent is meant for sports admissions and the remaining 15 per cent accommodates social justice (SC/ST students). It is out of the 40 per cent seats for Christian applicants that 25 per cent (or 10 per cent of the total seats) is set apart for Dalit Christians. The admission of Christians from socially degraded backgrounds, or Christian Dalits, does not therefore affect the interest of non-minorities in any way."Convinced of the legal soundness of his position, Principal Thampu expresses concerns that that by itself may not be enough to ensure that the new policy is allowed to be implemented:
" .... I am a law-abiding citizen, first and foremost. The dilemma I face is whether or not I am free to obey the law of the land within the matrix of prestige in education. Respect for the rule of law is, sadly, not a strong point in our society yet. Not infrequently, people showcase their clout by defying the law. The verdicts of the Supreme Court have the effect of ‘law declared.’ They are binding on citizens, regulatory authorities, and governments. As a law-abiding citizen of India, I am bound by the pronouncement of the Supreme Court of India to which I have to give effect, whether or not it humours certain lobbies.
It will be frightfully embarrassing if teachers and other self-styled custodians of excellence in education cry wolf against implementing the law of the land. Nobody has said yet that the Admission Guidelines for 2007-2008 fall foul of law. It is only assumed tacitly that the prestige of St. Stephen’s exempts it from the pronouncements of the Supreme Court regarding the rights and responsibilities vis-À-vis minority rights. That is dangerous and unacceptable.
The proposed national debate should not mistake a tree for the forest. It should not be about a few seats this way or that in St. Stephen’s. It should be about the mythology of higher education in this country and the operative socio-political consensus that conspiratorially excludes the vast majority of young men and women from the fruits of national development and material progress. Only 7 per cent of India’s children in the corresponding age group can, as of now, afford the luxury of higher education of any sort. The discourse on 9 per cent GDP growth needs to be humanised and humbled with the corollary as to who is benefiting from it and what needs to be done, via education, to ensure that economic development is coupled with distributive justice and human dignity. “A system that enables,” wrote President Lyndon Baines Johnson in the 1960s, “a man born of a poor peasant as I was some sixty years ago to become the President of the U.S. is the system that deserves to be ranked among the best philosophies of the world.”"Those who have followed the complicated trajectory of the rights of minority educational institutions will be aware that St. Stephen's College was earlier involved in litigation that resulted in an important judgment delivered by the Supreme Court in 1992. There are thus any number of reasons why legal scholars and experts must focus on this current debate, which has the potential to lead to a rethinking of the existing law on the issue. This issue, like the ruling of the Madras High Court discussed by Dilip in the previous post, will require a close study of the TMA Pai ruling (2002) and may involve an analysis of the Inamdar case (2005). For a quick primer on what these cases held, I provide links to V. Venkatesan's reports on the cases, taken from the archives of Frontline. See this concise summary of the Pai case (which also includes a brief discussion of the St. Stephen's ruling). And, click here for the report on the Inamdar case.
Saturday, July 07, 2007
“ In this Act, unless the context otherwise requires:-
(c)"Government seats" mean-
(iii) 65% of seats in each branch in non-minority unaided professional educational institutions and 50% of the seats in each branch in minority unaided professional educational institutions, in accordance with the consensus arrived at between such professional educational institutions and the Government;
 Admission in unaided professional educational institutions
(1) Notwithstanding anything contained in any relevant law or any rules, regulations or by laws made there under, admission to seats, excluding the seats referred to in item (iii) of clause (c) of Section 2 in all unaided professional educational institutions shall be made by the consortium of unaided professional educational institutions approved by the Government or by any authority authorized by the Government, on the basis of the marks obtained by a student in the relevant subjects in the qualifying examination.
 Normalization of marks:
(4) The appropriate authority and the consortium of unaided professional educational institution shall prepare the rank lists for admission of students to the seats referred to in section 3 and section 4, respectively and allot students through centralized counseling.”
A brief background of events as relevant to the discussion below, as stated in the judgment itself, is as follows: “… a consensus was arrived at between the Government and the petitioner Consortium in the matter of admissions for the year 2006-2007. In view of the said consensus, an affidavit was filed before this Court whereby and whereunder the petitioner Consortium agreed for seat-sharing between the Government and the private self-financing institutions for the academic year 2006-2007. It was further agreed that in respect of non-minority colleges, 65% of the seats in their institutions could be filled by the Government while the remaining 35% could be filled by the respective colleges. It was also agreed that as for minority colleges, 50% of the seats could be filled by the Government while the remaining 50% could be filled by the respective Colleges and 15% of the seats within the Management quota was permitted to be filled up with non-resident Indians (NRIs). The admissions were agreed to be made based on the marks obtained in the Common Entrance Test conducted by the petitioner Consortium taken along with the marks scored in the qualifying examinations. The State Government also filed an affidavit consenting to follow the practice which was adopted for the previous academic year in the matter of admission of students by private colleges and making it clear that they do not insist that the self-financing colleges should follow the single window system. These agreements were taken on record and in terms of the settlement arrived at between the parties, the writ petitions were disposed of by this Court…The state has now enacted the Act to provide for admissions to professional degree courses such as engineering, medicine, dental, agriculture, etc. on the basis of marks scored in the qualifying examinations vide its judgment reported in 2006 (3) MLJ 648…
In the academic year 2006-2007, the private self-financing Engineering Colleges, both minority as well as non-minority, had agreed to share the seats with the Government only for the academic year 2006-2007 and accordingly, filled up the seats in terms of the consensus arrived at and this being the scenario, the State has now enacted the Act (passed by the Assembly in December 2006) to provide for admissions to professional degree courses such as engineering, medicine, dental, agriculture, etc. on the basis of marks scored in the qualifying examinations.”
The principal challenge was on the ground of the equity principle (which essentially stands for the notion that power possessed must equal responsibility shouldered, viz. since government makes no contribution to unaided colleges, it ought not to have a say in their administration) enunciated in Inamdar. The petitions here accordingly claimed inter alia that as per the judgment in that case, the Government, under either Art. 19(1)(g) or Art. 30(1), has no right either to appropriate any quota of seats or to compel the unaided professional institutions to give up a share of the available seats to the candidates chosen by the State as mentioned in section 2c(iii), or to prescribe the method of admission as in 4(1) requiring them to be made on the basis of marks in the qualifying examination, or to direct them to admit students through a centralized counseling system as stated in 5(4). Another important ground was contract violation, i.e. that the so-called consensus was limited to 2006-2007, and several provisions of the Act were never agreed to by the Consortium and represent a unilateral re-writing of it.
The court, in rejecting arguments against the first two provisions (2c(iii) and 4(1)), quoted portions of the Pai Foundation and Inamdar judgments in support of its position that the test of constitutionality of the impugned legislation is whether it is the outcome of a consensual arrangement between the private colleges and the state.
Para 68 from Pai Foundation states:
"It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counseling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges."
Para 126 from Inamdar ‘clarifying’ the above mentioned paragraph of the Pai Foundation reads:
". . .reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in para 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of the weaker and poorer sections of the society."
Again, para 128 of Inamdar reiterated thus:
"We make it clear that the observations in Pai Foundation in para 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State." Hence, the learned judge concluded, “… it was held that fixation of percentage of quota is to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State…”
The court, also noting that the previously filed affidavits did not mention any limitation of the consensual arrangement to 2006-2007 and that the seat distribution pattern being very similar to what has been in vogue for nearly twenty years could not be termed a rewriting of the contract, concluded that “section 2(c)(iii) of the Act is not, in any way, in infringement of the constitutional rights guaranteed under Article 19(1)(g) or 30(1) of the Constitution and it is also not in violation of the rulings of the Supreme Court in Pai Foundation case and Inamdar case”.
The court, while dismissing other technical objections (not mentioned here) to section 4(1), without detailed elaboration, simply stated that “admissions to seats other than the seats mentioned in Section 2(c)(iii) are made by the consortium and approved by the Government or any authority authorized by the Government and this power of the State to allot seats to admission made by the consortium in respective Colleges is in conformity with the decision of the Pai Foundation case which is reiterated in Inamdar case and is also not in violation of Article 30 of the Constitution. In that view of the matter, this Court holds that there is no infringement of rights of the minorities or the non-minorities in admitting students in accordance with the provision of Section 4(1) which is unambiguous…”
In regard to section 5(4), the court quoted para 138 of the Pai Foundation judgment:
"It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on a transparent basis..."
Also, para 136 from the Inamdar opinion maintained thus:
“Holding of such common entrance test followed by centralized counseling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen." It followed from this, the learned judge held, that section 5(4) was in accordance with the rulings of the Supreme Court and therefore not unconstitutional.
In summary, the court seems to have relied upon two grounds primarily for its decision: (1) that the Act represented a consensus between the colleges and the state and the petitioner Consortium’s grievances and claims notwithstanding, the ‘consensus’ represented the absence of coercion and hence, violation of the equity principle did not come into play (2) aspects of the impugned provisions, even if not part of the contractual arrangement, are nevertheless consistent with past rulings of the Supreme Court.
A few questions are relevant here. (1) Since when does the constitutionality of a statute depend on ‘consensus’? Are legislatures bound by such ‘consensual’ determinations in which they may not have much of a say? Finally, as a consequence of this, can constitutional principles be overridden by the State’s contractual obligations to private parties? By the same argument, if the union government were to claim in court, in the defense of an impugned legislation, that the statute was actually the outcome of a broad consensus amongst political parties and/or various lobbyists, would that suffice to meet the test of constitutionality? (2) The other question is the fate of this equity principle itself, so widely hailed in the press at the time Inamdar was decided. By allowing virtually the entire admission process to be choreographed and monitored by the government at every stage, the judgment while clearly not being the last word, in effect, seems to have given this principle a near-fatal blow if not a burial.
In fairness, the court did quote the key paragraph 125 from Inamdar which expounded this principle:
“. . . neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill which was approved by Pai Foundation, is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.”
As can be seen from the above paragraph, the principle is not so categorically stated but qualified by the need for the procedure to be ‘fair, transparent, non-exploitative and based on merit’ – the key question of who decides and how whether those criteria are met without violating institutional autonomy is left unaddressed (this begs the very question to be answered). To be sure, Pai Foundation did not cite any such principle and the bench in Inamdar which was only ‘interpreting’ it, while stating thus, tried its best to explain away the contradictions that it created with the examples cited in the former opinion. If J. Dhanapalan’s view also holds up in the Supreme Court, it would at least indicate one thing, namely, that the equity principle is at the most a default position which the state is free to overturn by appropriate legislation. That being the case, the belief that this is really a constitutional principle and integral to the basic structure is unlikely to hold water; on this basis alone, it would appear, at least the first part of Art. 15(5) (excluding the minority exception), currently under challenge, should hold up in court.