Friday, August 31, 2007
I've advocated in this article that the Novartis patent case be permitted to run its course and the matter decided on merits by the courts, so that we get some guidance on how "efficacy" is to be interpreted. This seems a particularly timely suggestion, now that the Drug Action Forum in Karnataka is calling for a boycott of Novartis, unless they withdraw their case!!
India’s Tryst with Intellectual Property: Towards a “Middle Path”?
'If you make the string too tight, it will break. If you make the string too loose, it will not play'.
These pearls of wisdom, communicated by a music teacher to his pupil in order to explain to him the optimal tautness of the string of a musical instrument, helped catapult the Buddha to nirvana. It led this saint to articulate the “Middle Path” — a position that urges one to avoid taking “extreme” positions. What’s the connection with intellectual property (IP), you may ask? Well, just as we have religious extremism, we’re now witnessing an increasing extremism in IP debates as well. Consider the following news headlines that screamed out at us in the wake of the Novartis patent litigation in India: ‘Patents kill…’, ‘We will defy patents to save lives”, and others in a similar vein.
These statements, reflective of a deep antipathy to patents, ignore the fact that the dispute before the court hinges on a very technical issue about whether or not a new form of a pharmaceutical substance is patentable. Section 3(d) of the Indian Patents Act, 2005, aims to prevent a phenomenon commonly referred to as “ever-greening” by requiring that, in order to patentable, new forms of existing pharmaceutical substances should demonstrate increased “efficacy”. Novartis’s patent application covering Gleevec, an anti-cancer drug, was rejected on the ground that it lacked increased “efficacy”. This prompted Novartis to appeal the rejection of its patent, which in turn prompted most of the headlines above!
Shouldn’t the case be permitted to run its course? What credibility would we have left as a country if we introduce terms such as “efficacy”, not known to any other patent regime, and then expect interested stakeholders to desist from taking up the issue before courts in the hope of gaining some clarity on how such terms are to be interpreted?
Patents are not ‘bad’ per se, as most of these statements make them out to be. Rather, as with most other things in life, they are susceptible to abuse. In this regard, it is important to strike a distinction between the grant of a patent and the regulation of its ‘use’. Assuming that the Novartis patent issues, there are plenty of built-in safeguards in India’s patent regime to ensure that the prices remain in check.
Some may point to the fact that Indians have always believed in sharing knowledge, and the institution of a ‘knowledge commons’ since time immemorial. The very notion of intellectual property is, therefore, antithetical to Indian culture. A quick look at history helps dispel this myth. Yes, there was a fair bit of sharing, but predominantly between one class of people, the Brahmins, and any leakage from this class was prohibited and sometimes even visited with severe sanctions — a very effective form of ‘trade secrecy’, one might say.
Of course, the picture is not complete without a look at the extreme views advocated on the other side of the fence — views that extol the one-sided wonders of the patent system, views, for instance, that promise a country like Eritrea rapid innovation and industrial success if only it introduced a patent regime similar to that in the US. Here again, lessons from history help qualify this highly romanticised view of patents.
Contrary to popular perception, India had a pharmaceutical product patent regime since 1911, thanks to the British and their propensity to gift colonies with laws/policies that were 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 as much 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 industrialised nations began by installing regimes that permitted some level of technological imitation. It also found that the chemical industry in India had the potential to reverse engineer drugs. It therefore recommended the abolition of product patents and the introduction of process patents for pharmaceuticals. As process patents are 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. So, is this the right time to shift to a product patent regime? Unfortunately, we don’t have the luxury of asking that question anymore, since TRIPS obligates us to do so, and we did so in 2005. But what we can do is calibrate how much protection we wish to grant to pharmaceutical inventions. Section 3(d) is in many ways an example of such calibration, and reflects India’s attempt to minimise 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 interpreting such terms evolve.
India is neither ‘developed’ nor ‘developing’. It is what I would call a ‘technologically proficient’ developing country. We’re strong in certain technology sectors and therefore need to find ways to add incentives to encourage innovation in these areas. Yet 26 per cent 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 we need to ‘innovate’ in our IP policy as well, without blindly copying norms created by the west. Perhaps the time is ripe to constitute another committee to help us determine what the optimal ‘tautness’ of our patent/innovation policy string ought to be in today’s knowledge economy.
Thursday, August 30, 2007
In two recent articles posted on India Together, Ammu Joseph discusses the salient features of the draft Broadcast Regulation Bill, while also providing a detailed critique of crucial provisions. The two articles, in the order they were published, can be accessed here and here.
Over the last month, we looked at aspects of the National Rural Employment Guarantee Act. While posts on our blog have generally focused on the positive aspects of the NREGA, here is a recent article in the EPW which highlights some worrying trends in the implementation of the Act in Orissa.
Lastly, here is a piece published once again in India Together that focuses on a governmental decision to ban migration of Indian women below the age of 30. The core argument that Rita Manchanda advances in this piece is as follows:
"The government recently imposed a ban on emigration for women under 30 going abroad to work as domestic help and caregivers. But this move will not stop women who want to migrate. Instead, it will drive them into clandestine migrant mobility regimes, putting them at greater risk to trafficking and exploitative treatment - the very concerns that have driven the ban."
The piece highlights the following statistics:
"Official decadal estimates state that 550,000 Indians migrate for work annually, of which 360,000 head to the Gulf, contributing to a migrant stock of three million there. Statistics of women migrating for work have shown a sharp increase, as evinced in figures from the major migrant producing state of Kerala. ... .... ... The earnings of 40-50,000 Indian nurses in the Gulf, 90 per cent of whom belong to Kerala, has contributed to pushing the state's per capita income from negative to 41 per cent above the national average."
Citing the work of feminist scholars Flavia Agnes and Ratna Kapur, Manchanda argues:
"Behind the ban is a patriarchal State asserting itself to 'protect' its 'helpless' and 'ignorant' young female citizens. Undeniably, the horror stories Minister for Women and Child Development Renuka Chowdhury heard in Kuwait - about confiscated passports, arbitrary changes in terms of contract, physical torture and sexual abuse - has prompted a renewed concern about the vulnerability of women migrants to exploitation. ... ... ...
Legal and administrative restrictions on migration or immigration in destination countries will only foster clandestine migration mobility regimes. Trans-national migration is integral to the global pattern of economics and trade. A UN study (2004) has noted the trend towards feminisation of international migration, with 49 per cent of all migrants being women and girls. Globalisation has fuelled the development of economic sectors with women-specific demands for cheap labour in certain sectors. Moreover, ageing populations in the developed countries are producing an expanding and sustainable demand for cheap domestic workers and care givers.The emigration ban denies women their agency, equal status as citizens and the opportunity for economic and social empowerment. Moreover, it is too blunt a protective instrument and will further drive women's migration underground."
Wednesday, August 29, 2007
Briefly as stated in the Hindu, “Pradeep Kumar of Bihar was said to have given a promise to a girl that he would marry her and had a sexual relationship with her. When he did not marry her, the girl gave a criminal complaint and he was charged with offences under Sections IPC 376 (rape) and 406 (criminal breach of trust).
He filed an application for discharge from the case on the ground that the girl had given consent for sexual relationship and hence no offence was made out. The trial court rejected his plea and the Patna High Court upheld the trial court’s order. The present appeal by Pradeep Kumar is directed against this order.”
The Court agreed with the contention of the state that section 406 has no relevance to this case since criminal breach of trust, as defined in section 405, relates only to property matters. To be convicted under section 376 (penalty for rape), the definition of rape as stated under section 375 must be met. Rape is defined therein as sexual intercourse with a woman against her will or without her consent or under certain circumstances when her consent is invalid, i.e. when granted out of fear of death or hurt, when she is of unsound mind or intoxicated or mistakes the man she consents to be her husband. The word ‘consent’ itself, as defined in section 90, declares that when granted under fear of injury or misconception of fact, it is not valid.
The woman’s statement was that the consent she granted for sexual intercourse was conditioned upon the promise of marriage. Citing previous judgments, the Court noted two points in deciding whether this could constitute misconception of fact: (1) consent given pursuant to a false representation regarding intention to marry could be considered consent given under misconception of fact (2) The ‘fact’ must have immediate relevance or the misstatement must refer to existing facts. Hence, for the consent here to be invalid, it would have to be shown that the promise to marry was false at the time it was made, not later. Thus even an unkept promise to marry with nothing more would not amount to an invalid consent but “if it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375…”.
The last sentence of the previous paragraph in particular suggests that the court seems to misunderstand the nature of the offence here. Rape refers only to the limited circumstances surrounding particular act(s) of sexual intercourse and must be distinguished from larger relationship issues such as love, marriage and trust. The court, while looking to precedents to gather the meaning of misconception of fact, appears to have ignored what section 375 itself, in defining rape, has to say on the subject. Here, the specific circumstances wherein a ‘misconception of facts’ may be construed are clearly laid down as in, for example, when the woman consents to intercourse mistaking the person to be her husband. No mention is made in this section of false or broken promises underlining the fact that consent is really about the woman’s state of mind at the time of the act and her willingness to partake in it, the reason for the same being of no relevance at all. Thus I would submit that the condition upon which the consent is granted is of no consequence and even a promise found later to have been false ab initio, contrary to what the Court says, cannot render the consent invalid.
Relationships are complex affairs and numerous things are said that are either meant in half-jest or not meant at all. Holding a person to his/her word where property transactions are involved or enforcing the obligations of a formalized relationship is understandable and violations can be prosecuted under various sections of the IPC. But it is quite different to seek to delve into the innards of an evolving courtship in the abstract where statements are colored by the emotions of the moment and meanings can be multiple, varying with the meandering and often uncertain nature of its progress. Particularly at the courting stage, fantasies are sold – much of the romantic literature of the ages is testimony to that fact; a failure to deliver the moon that was promised at the time could hardly be reason to haul someone up in court. Relationships that fail to culminate in marriage may well engender bitterness that may be strong enough to color the recollection of even previously happy events of the past. Courts hardly ought to be the refuge for every woman upset at being dumped seeking to avenge her ex-boyfriend by filing suit. Yet, the immediate consequence of this judgment will be to open the doors to such frivolity by potentially lending the circumstances of every failed premarital sexual relationship, even in the complete absence of any material indication of coercion, intoxication or misrepresentation, open to judicial examination by trial with the question of validity of consent to be determined in each case by examining evidence and witnesses for promises made and unmade, and the implications of their ‘true’ meaning and timing. Clearly, there is no better way for an overburdened judicial system to shoot itself in the foot. Hopefully, the Court will realize this sooner than later and revise its interpretation.
Tuesday, August 28, 2007
In the previous post, V. Venkatesan drew our attention to the exchange between Additional Solicitor General Vikas Singh and a Supreme Court bench hearing the 'Delhi sealing case'. In doing so, he emphasised the unusually aggressive words traded between ASG Vikas Singh and Justice Pasayat. The two people who have commented on this post so far have expressed disapproval of this incident, and appear to place more of the blame on the law officer involved.
As it turns out, the two main protagonists appear to have a history of such aggression. As this piece in the Hindu, dated April 29, 2007 points out, they had clashed earlier, in the longstanding Forest case. There, while objecting to what was perceived as unwarranted judicial interference in the making of policy decisions by the government, ASG Singh is quoted as saying:
"There is no judicial emergency provided under the Constitution to take over the functions of the Government. "
The Hindu piece further describes the ASG's exchange with the bench as follows:
"Seeking to vacate the stay [issued by the Supreme Court upon a notification of the Union Ministry of Environment and Forests], Mr. Singh literally questioned the court's role in monitoring the "forest matter" for nearly a decade.
"It is not as if only the Supreme Court can protect the forest cover," he said. He reeled out figures to show that there was no depletion of forests, thanks to the enactment of the Forest Conservation Act and not because of the court's intervention. It should not pass orders on assumptions or be guided by other factors.
The Bench replied, "We have no assumptions, nor we are guided. Many things are said these days. We are not concerned about what they say. We will see to it at the appropriate time and say what action is to be taken."
Referring to the stay on the functioning of the FAC, Mr. Singh asked on what basis the non-official members appointed to the FAC could be removed once they fulfilled the requisite qualifications.
He wondered how a stay could be granted when there was no petition challenging their appointment. The court could not assume the role of the Government when a committee was validly constituted."
More details about the case can be found in the rest of the Hindu piece. Though the description of the case is not clearly set out, the piece seems to indicate that the bench comprising Chief Justice Balakrishnan and Justices Pasayat and Kapadia took the ASG's submissions seriously and moderated the earlier order. However, this story in the Indian Express dated July 2007 suggests that ASG Singh was subsequently taken off the case as a direct result of his having adopted such an aggressive tone in the hearing.
The common judicial personage in both these exchanges is Justice Pasayat who, as we have noted earlier on this blog, has a strong claim to being the most activist judge on the present Court. It is not clear whether ASG Singh is following instructions in taking such a hard line stance against judicial interference in policy matters, though the presumption would be that he is. His strong assertions may well be a reflection of the government's view that for the reasons that V. Venkatesan has identified in his post, the Court should not press on with this issue right now. There seems to be more to this issue than meets the eye, and the coming days will probably reveal more about this issue.
On the subject of bar-bench exchanges, I am all for civility and agree that the bar bears a higher burden to ensure that the two groups treat each other with respect. One is reminded of the V. C. Mishra episode, and lawyers certainly should not get away with trying to browbeat judges. However, focusing on the two cases where ASG Singh has taken such an aggressive stance, and bearing in mind the fact that Justice Pasayat does not appear to the meekest of judges himself, I cannot help wondering about the merits of the issues advanced by ASG Singh. I leave aside for now the tone he adopted, of which I do not approve, and which may have a personal edge given his run-ins with Justice Pasayat. Yet, the two cases seem to reflect clear instances where the Court had no real, legal basis for the judicial actions it proposed to undertake. Should we also not be focusing on the substantive issues at stake in these cases?
Legal commentators have for long acknowledged that the Indian Supreme Court has adopted an extremely cavalier approach towards grounding its decisions (particularly those in PIL cases) in hard law (whether statutory, administrative or derived from precedents). In most such cases however, the Court has been given a pass since it was perceived to be acting in the larger public interest. These two cases involving ASG Singh do not, however, fit squarely within the paradigm of clearly justifiable cases where the legal basis of the Supreme Court's adventurism can be treated casually. Especially in the ongoing sealing case, there are serious questions of law involved, especially those affecting the rights of underprivileged sections of Indian society. Perhaps it is time to focus on the merits of ASG Singh's claims, beyond the tone adopted by him to espouse them.
Monday's hearing in the Supreme Court on the sealings drive and the dramatic exchanges between Justice Arijit Pasayat of the Supreme Court and the Additional Solicitor General Vikas Singh must surely be rated as the most unusual of such exchanges. The reports of these exchanges are carried in all newspapers. The Hindu's report can be read here.
The ASG has a point, as the livelihood of the ordinary people are involved in implementing the court's orders. Considering that the Campaign for judicial acccountability and reforms has alluded to plausible conflict of interests involving the presiding Judge, who issued the original sealing orders in 2006, is it not time to take a relook at the entire case, and rehear it if necessary? Just because certain arguments were not put forward or advanced by the Government earlier, the matter need not be considered as closed, making it difficult for the Bench to take a relook at it, and take corrective measures, before it is too late.
Saturday, August 25, 2007
Thursday, August 23, 2007
Mr.P.P.Rao's views (summed up in my words)
* There is a difference in the language of the Articles 15 (4), 15(5) and (16(4). Article 16(4) specifically refers to adequacy of representation of backward classes, whereas Article 15 is silent on this. Therefore, the argument that quota in educational institutions is required to ensure representation of these sections is basically flawed.
* Article 15(4) says State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and STs. The term "educationally backward class of citizens" can only refer to school education, and not education in higher educational institutions, because once you finish your school education, you are not supposed to be educationally backward, and ought to be deemed to have entered the level playing field.
* His reference to Article 21A (Right to Education) to suggest that the State has an obligation to provide education only upto the age of 14 and not in higher educational institutions was countered by the Chief Justice who pointed out that the mandate for compulsory education stems from the reality that the State may not have resources to provide education. Probably that was the reason, higher education was kept out of this mandate.
Mr. Rao's arguments are continuing.
Wednesday, August 22, 2007
But are minority Governments illegal? There is nothing in the Constitution which suggests that. The Council of Ministers, under Article 75(3) shall be collectively responsible to the House of the People. Some pundits have interpreted this responsibility to mean ‘enjoying the confidence of the House of the People’. In reality, this understanding has further narrowed to enjoying the confidence of the majority of the members of the House.
But such an understanding has no basis in reality. In 1991, India first had a minority Government led by P.V.Narasimha Rao sworn in without any hitch. The Opposition Bharatiya Janata Party then magnanimously said it would not move a no-confidence motion against the Government. The then President also did not insist on the Prime Minister seeking a confidence vote in the newly constituted Lok Sabha. The first serious no-confidence motion against the Rao Government was moved by the Opposition in 1993, two years after it was sworn-in.
The aberration with regard to asking the Prime Minister or a Chief Minister with not-so-clear majority in Lok Sabha and assembly to seek a confidence vote began, if I am right, in 1996, when Shankar Dayal Sharma asked Vajpayee to secure a confidence vote, after being sworn in. He quit after 13 days once it was clear the numbers were against him. Subsequently, Sharma’s successors followed this precedent, more or less. While Sharma simply sworn-in the leader of the single largest party as the Prime Minister, his successors were careful to first satisfy whether the Prime Minister-claimant would have enough numerical support in the Lok Sabha to secure a vote of confidence. Hence, letters of support from leaders of political parties forming the post-poll coalition claiming majority support were insisted upon by the Presidents. In the States, this precedent led to quite undesirable tendencies – parading of MLAs in Raj Bhavan and even Rashtrapati Bhavan.
In my view, the 1996 precedent set by Sharma was bad. Its flaw was in its assumption that a minority Government is per se illegal and unconstitutional. Had it been so, Narasimha Rao could not have been sworn-in as the Prime Minister. The issue is not whether a Prime Minister lacks the majority by a few seats (as in the case of Narasimha Rao) or suffers from a huge numerical disadvantage (as Manmohan would face, if Left withdraws support). Those who argue in favour of seeking a confidence vote, once the majority is disturbed, cite the 1979 precedent when Sanjeeva Reddy asked Charan Singh who toppled Morarji Desai to seek a confidence vote. Charan Singh, however, quit without facing the Lok Sabha, and continued as a caretaker Prime Minister till the conclusion of elections in 1980. But a bad precedent cannot become a binding rule.
Coming to the present situation, should Manmohan Singh quit if the Left officially withdraws support and informs the President of its decision? Manmohan Singh can do so on moral grounds, but legally and practically, his Government could survive in office even as a minority Government as Narasimha Rao did between from 1991 to 1993, when he managed a majority in Lok Sabha through political realignments.
What if the President asks Manmohan Singh to seek a vote of confidence, once the Left withdraws support? The Government could point out to the President that the precedent set earlier was incorrect, and the right course would be for the parties to move a no-confidence motion in the Lok Sabha. No-confidence motions are supported by conventions, and Lok Sabha rules, and once the Government loses a motion, it is inevitable that it resigns. No-confidence motion would require the Opposition to come under one platform and be united in dislodging the Government. If the Opposition parties do not see eye to eye, (like the Left and the BJP), then the chances are that one may not choose to support a motion, initiated by another, not even by abstension. This may lead to disagreements within the Opposition on the merits of the motion itself, or how it should be worded etc.
Therefore, there is no harm if the President satisfies herself, soon after the conclusion of elections, that a group of parties would be able to command a majority in the Lok Sabha, so that the leader of that group could be invited to form the Government. Here also, if a minority leader stakes a claim, and if there are no serious challenges to that claim by that leader’s opponents, then the President could invite that minority leader to form the Government, and not insist on seeking a confidence vote. The issue of confidence must be left to the House to decide, if necessary, through a no-confidence motion.
The practice of Prime Minister/Chief Minister seeking a confidence vote is an aberration, and must stop to lend stability to the system. This is because members of a coalition may agree to disagree on certain issues, even while letting the Government to continue in office, because of the absence of scope for forming an alternative Government, or because a fresh election could not be held so soon after the earlier one, or because there is a likelihood of a fresh election again resulting in a similar combination of parties as in the present ruling coalition.
CORRECTION: Thanks to Mr.Srinivasan for correcting a major factual error in my post. The link which he has provided in the comments section (the Lok Sabha debates in 1991), reveals that there was a confidence motion moved by Narasimha Rao and the BJP opposed it, although Narasimha Rao was under no compulsion to move it.
Tuesday, August 21, 2007
In the 60th anniversary of our Independence , naturally some of our thoughts go back to revisit partition. There is a tendency to form imaginative solutions for the communal issue that caused the partition. The last and concrete solution that tried to avert partition was the Cabinet Mission Plan of 1946. The plan suggested a three tier pyramid of provinces, groups of provinces and the Union . Both the League and the Congress accepted to work the plan. However the plan failed mainly due to Congress insistence on its own interpretation of a clause governing the option of provinces to form groups. This article discusses the course of events that led to the failure of the plan. In the end some questions that naturally arise in the discussions are addressed. Mainly it is argued that the while the Congress interpretation may have been conceptually justified, it was practically flawed and politically unwise. An attempt is made to analyze the fears behind the Congress position while pointing out the inherent advantages for the Congress position in the groups. Though I am not terribly optimistic on the Union, I argue why such a Union was a worthwhile experiment to pursue.
The article can be read here.
Friday, August 17, 2007
Here, I wish to confine myself with AGN's view that Kalam wished to take the reins of the Centre in 2004, faced with a recommendation from Vajpayee to dissolve the Lok Sabha. Kalam wanted Vajpayee to resign, and when the latter refused, citing the precedents and the law, he blinked, AGN says on the basis of an earlier article written in HT by Vir Sanghvi.
On Jan.27th 2004, the NDA/Cabinet resolved to prematurely dissolve the Lok Sabha, eight months ahead of the schedule. The President is approached with the recommendation. President Kalam wanted to know the reason for the premature dissolution. No reason was forthcoming. Instead, precedents were cited: 1970 when Indira Gandhi dissolved the Lok Sabha prematurely, despite her majority and in 1977 when she dissolved again, after extending the life of the Lok Sabha by one year.
After this, Kalam sought a specific legal opinion from the AG, Soli Sorabjee on whether he was bound by the recommendation of the Union Cabinet on dissolution. Soli himself shared this with me. I have no reason to doubt this, even though I had reason to differ from his opinion, tendered to the President.
What did Soli tell the President? Since a specific legal opinion was sought from him, Soli told Kalam that a President was bound unless the ruling party or combination has lost its majority in the Lower House.
Kalam was aware that the NDA did not lose its majority in the lower house. So, why did he want to know whether he was bound by the recommendation to dissolve the Lok Sabha? The reason was, according to the Rashtrapathi Bhavan spokesman whom I spoke to at that time, because Vajpayee sought premature dissolution. Kalam, therefore, wanted to know why he wanted to prematurely dissolve - especially when he enjoyed comfortable majority in Lok Sabha.
A Prime Minister cannot refuse to answer this question. Both in 1970 and in 1977, the Prime Minister took the nation into confidence, and explained the reasons for premature dissolution, and opting for early polls. But Vajpayee did not do so, because he had narrow party interests in mind. Neither the NDA, nor Vajpayee/BJP explain even once why they recommended premature dissolution, even though the speculation was that he wanted to cash in on the India Shining atmosphere. But a President cannot accede to narrow party considerations of a Prime Minister.
Since Vajpayee did not answer this question, Kalam wanted to know whether the Prime Minister was resigning, along with the recommendation to dissolve. If a Prime Minister did not want to continue in power till the end of his term what inference that one would draw? It was Kalam's way of saying, 'No, Prime Minister, please go back and govern for the rest of your term, as your majority is intact and there is no crisis to your government". Rather than Kalam, it was Vajpayee who blinked, and groped for an appropriate answer. The Law Minister then explained that there was no need to resign, citing the 1970 and 1977 precedents, even though both these precedents were not exactly relevant.
Kalam's asking Vajpayee about resignation was not to get rid of him, and choose his own government, but to make him reveal the reasons for his recommendation. If Vajpayee resigned with a majority on his side, then it could have clearly meant that he wanted early polls, keeping the party interests in mind. In which case, Kalam, if there were no viable alternative claimants in sight, could have asked Vajpayee to continue in caretaker capacity till the conclusion of elections.
Please remember, Vajpayee's caretaker status was important to ensure free and fair elections, as even the then CEC, Krishna Murthy deplored the fact that the Union Government was spending money on Indian shining campaign using the interregnum (10days) between the decision to prematurely dissolve theLok Sabha and the actual announcement of date for elections. But Vajpayee-Arun Jaitley duo wanted to avoid the caretaker status, and hence the argument that he need not resign. In the event, the differences apparent in the contexts of 1970, 1977 and 2004 were ignored.
In reply to Kalam, Soli cited the 1972 U.N.R.Rao ruling of the Supreme Court. In that case, the petitioner argued that with the dissolution of the Lok Sabha the Council of Ministers ceases to exist, and that the President could act on his own. The Court rejected this contention. In 2004, the issue was not that, there was no reason to suspect that Kalam wanted to act on his own, and with a possible resignation by Vajpayee, the Council of Ministers would cease to exist. Kalam only wanted to know whether he was "bound" by the advice; there were only two options: either to accept the advice, if he is bound or reject it, if he is not bound. Had he rejected the advice, it would mean Vajpayee must complete his term, and not seek premature dissolution. It would not have meant that Vajpayee must resign and pave the way for his successor.
Kalam's query to Soli could not be interpreted to mean whether he could go on a fishing expedition to bring an alternative Government to power, or himself take over the reins of administration. These are far-fetched inferences, not based on reality.
Soli also cited the Shamsher Singh judgment of the Supreme Court to show that the advice was binding on Kalam. But in that Judgment, Justice Krishna Iyer clearly said a Prime Minister who wanted premature dissolution must appeal to the nation, (appeal to the country is "necessitous") even though the President is normally bound. IN 2004, Vajpayee did not appeal to the nation explaining the reasons for premature dissolution. Therefore, Kalam was justified in asking Vajpayee whether he should resign, and asking Soli whether he was bound by the advice to dissolve. My earlier post on the same subject is here.
1. If the facts regarding Justice Sabharwal's sons benefitting from his orders on sealing were true, (he wished that they were not), then it is a serious matter, affecting the credibility of the Judiciary.
2. Silence is not an option for Justice Sabharwal; he should seek to answer the allegations, and clear his name.
3.If the facts as alleged are true, then Justice Sabharwal's directions on the sealing case must be set aside, and the case heard afresh once again. The orders stand vitiated because of the clear conflict of interests, apparent from the facts.
4. If Justice Sabharwal continues to be silent, then there is a clear duty on the part of the present Chief Justice of India to intervene, have the matter probed, and if the conflict of interests is established, then set aside Justice Sabharwal's directions in the sealing case, and post the matter again before an appropriate Bench for rehearing.
5. Only the Chief Justice has the power to allot a case before a Bench. Therefore, Justice Sabharwal's action in ordering that he would also deal with the case of commercial establishments (which was admitted by the Supreme Court in 2003, but was not posted before him) on March 17, 2005, was improper.
More than these specific reasons, what I liked in the programme, was Justice Verma's reference to the Re Pinochet case. The details of the case I downloaded from the book, The English Legal System : By Gary Slapper and David Kelly, 2004 (Routledge) (p.229.). The link is here.
For those of us, who can't get the exact page, I am giving the details here. In November 1998, the House of Lords rejected the Spanish dictator, Pinochet's claim that as the head of State at the time when the crimes were committed by him, he enjoyed diplomatic immunity. The question was whether he could be extradited to Spain from the U.K. for the crimes committed by him. The House of Lords rejected his claim by 3:2 majority. Lord Hoffmann voted with the majority, but declined to submit a reasoned judgment.
Amnesty International had been granted leave to intervene in the proceedings, and had made representation through its counsel prior to the hearing in House of Lords.
After the Pinochet decision, it was revealed that Lord Hoffmann was an unpaid director of Amnesty International Charitable Trust and that his wife also worked for Amnesty.
Pinochet's lawyers petitioned the House of Lords. In January 1999, another panel of Law Lords set aside the decision of the earlier hearing on the basis that Lord Hoffmann's involvement had invalidated the previous hearing. The decision as to whether Pinochet had immunity or not was heard by a new and differently constituted committee of Law Lords.
English legal system is famously rigorous in controlling conflicts of interest which might be seen to affect a neutral decision making process. Mere possibility of a conflict of interest is sufficient to invalidate any decision so made, even if in reality, individual concerned was completely unaffected by their own interest in coming to the decision.
Lord Hoffmann could have assumed that Pinochet's lawyers were aware of the connection. His support for a charity was so worthy in itself as to be unimpeachable, he might have thought. But Lord Hoffmann was held to be wrong on both the counts. Once it was shown that he had a relevant interest in its subject matter, he was disqualified without any investigation into whether there was a likelihood or suspicion of bias - unless he had made sufficient disclosure.
Thursday, August 16, 2007
In his article Gonsalves argues as follows:
"The Code of Criminal Procedure (Amendment) Act, 2005 has been welcomed in the national media as heralding the release of 50,000 undertrials many of whom have been languishing in jails for years without their trials even beginning. Nothing could be farther from the truth. The amendment is, in fact, a reversal of the Supreme Court decisions from 1996 onwards in the Common Cause and the Raj Deo Sharma cases."
After explaining the facts and ruling in the applicable Supreme Court cases, Gonsalves explains his central argument:
"The present criminal amendment is a reversal of the guidelines laid down in the Common Cause and the Raj Deo Sharma cases, first of all because they do not lay down any time limit for a criminal trial to end. Secondly, whereas in the earlier decision an accused was entitled to be released on bail or personal bond after being in jail for six months to a year depending upon the seriousness of the crime alleged, now that has been enhanced to half the period of possible incarceration i.e. one-and-a-half to three-and-a-half years. If under the earlier decisions of the Supreme Court undertrials were not released there is no reason for us to believe that under a more stringent regime, justice will be done.
There are over 250,000 undertrials languishing in jails even though the law presumes them innocent unless convicted. In many cases despite years going by the trials have not begun. Seven out of every ten persons in jail are in this situation. Overcrowding in jails is routine, in some jails as high as 300 percent. Inmates sleep in shifts. Possibly no country in the democratic world keeps its people behind bars in the manner India does. The overwhelming majority of those incarcerated are poor, Dalits, Adivasis and Muslims. That the system operates harshly against these sections is an understatement. It operates only against these people.
The reluctance of the State to clear the jails of the poor is more by design rather than accident. The arbitrary powers to keep a person confined without a guilty verdict is necessary for a State and its police that rules by terror. The Criminal justice system is not really interested in the determination of truth ensconced in the final verdict, rather it is a massive arbitrary system of preventive detention where the ultimate verdict is of no concern as long as the accused picked up by the police languish many years in jail prior to acquittal. Those who criticise the State for the low rate of conviction miss this point; that conviction was never the intention of the police in the first place. This accounts for the sloppy state of forensic investigation and the reliance placed on the lathi over the law."
In the rest of the piece, Gonsalves points to other provisions of the same Amendment Act which are also problematic for other reasons.
I cannot claim any expertise on the issues that Gonsalves addresses, and I hope someone more familiar with this area of law will comment upon Gonsalves' critique. Focusing on the critique is important because of the implications that Gonsalves draws attention towards. This is also important because another wide-ranging round of amendments is under consideration by Parliament, in the form of this draft Bill.
Monday, August 13, 2007
As we near Independence Day, the papers are full of retrospective pieces, and the talking heads are holding forth on what makes India tick. One institution which is now credited with playing a significant part in holding constitutional democracy together in India is the Election Commission ("EC"). The EC is an interesting institution, which has come into prominence only since the early 1990s, around the time TN Seshan was appointed the Chief Election Commissioner ("CEC"). Clearly, Seshan had much to do with its transformation into a proactive custodian of constitutional democracy in India. The Supreme Court has also had a role in this story, and has alternatively backed and rebuked Election Commissioners who have played hardball. Another regular feature of the functioning of the EC has been a tendency for the CEC to squabble with other Election Commissioners (recall the unseemly struggles between Seshan on the one hand, and MS Gill and GVG Krishnamurthy on the other).
It would seem that this cycle of events continues. Today's Hindustan Times carries a column by Pankaj Vohra which focuses on what he terms a "constitutional crisis" allegedly caused by the current CEC, N. Gopalaswamy's claim that "Article 324 (5) of the Constitution gives him the power to remove an Election Commissioner." Vohra explains the background of the controversy:
"The crisis has developed following the pending demand of the NDA for the removal of Navin Chawla as an Election Commissioner. The Supreme Court had last week allowed BJP leader Jaswant Singh to withdraw his petition against Chawla. The court had ruled that it was allowing the petitioners to withdraw the petition without expressing any opinion on the CEC’s powers vis-a-vis his fellow Election Commissioners. However, the confusion started with Gopalaswamy claiming in an affidavit that he had suo motu powers to act against his fellow Election Commissioners.
This position is also a departure from the stand taken by former CEC B.B. Tandon, apparently after he sought the best legal advice — that he did not have suo motu jurisdiction over his colleagues. Tandon had inferred this after 205 MPs had gone to the President against Chawla and a copy of the petition was handed over to him by BJP leader, V.K. Malhotra. It can be safely presumed that after going through every aspect of the matter, Tandon concluded that the CEC could not act suo motu and must wait for the President to forward such a petition and, therefore, refrain from initiating an inquiry on his own. The fall-out is that in the said matter, if the CEC entertains any petition officially, he will be reduced to a minority. Therefore, his recommendation will be a minority recommendation and not the view of the full commission. Thus, it will have no grounds to be entertained. Even in the Seshan case where the former CEC tried to humiliate his then colleagues M.S. Gill and G.V.G. Krishnamurthy repeatedly, the apex court had put Seshan in his place and had defined the powers of the other two making them equal in all respects in the conduct of the commission except administrative matters. Anybody else in Seshan’s place would have resigned after the severe strictures passed by the Supreme Court."
Vohra's analysis is substantially similar to that contained in this Hindu article which appeared in its issue dated Aug 11, 2007. The Hindu piece in turn elicited this response from CEC Gopalaswami, who clarified that he had never claimed the power to remove an Election Commissioner, but had only noted, following from the proviso to Article 324 (5), that while contemplating action against an Election Commissioner, the opinion of the CEC would have to be sought.
In his piece, Vohra makes the following persuasive point about the implications of the current controversy:
"While it is for the legal eagles to fight over the finer points of the various interpretations, the controversy is lowering the image of the Election Commission. While Chawla is being accused of being close to the Congress, Gopalaswamy’s detractors claim that he was acting in this manner because of pressure from the BJP, in whose government he was the Home Secretary under L.K. Advani. There are also allegations that Gopalaswamy’s proximity to Advani goes back to when the latter was the I&B Minister during the Janata Party rule.
However, all these charges are not doing any good to our system. One has to see how Chawla and Gopalaswamy conduct themselves while holding their august offices. It is not Gopalaswamy vs Chawla or the BJP vs the Congress. The ambiguity over the power-sharing and the role of the CEC vis-a-vis the ECs needs to be defined once and for all. It is not a case of individuals squabbling but a case where the role of functionaries appointed as per our Constitution has to be defined."While Vohra may be right in making this point, his legal analysis, like that of the Hindu correspondent to whom the CEC responded, may not be spot on. The CEC is probably right in pointing out that whatever be the provisions of the 1993 Act, the situation is still governed by the relevant provision in the Constitution. An analysis of the provisions of the Chief Election Commissioner and other Election Commissioners (Conditions of Service Act), 1991 (the full text of which is available at India Code) shows that that law is not attracted in a situation where an Election Commissioner is sought to be removed (as in the present case, involving Navin Chawla), and actually has a fairly limited scope.
Article 324, as originally drafted and as it stands today, clearly does provide that while considering action against any Election Commissioner, the CEC's view has to be taken into account. Relying only on the text of the provision, it is possible to argue that it places the CEC in a higher position than the other Election Commissioners. Indeed, this is exactly the interpretation arrived at by a two judge bench of the Supreme Court after perusing through the constitutional history of the provision in S.S. Dhanoa v. Union of India, AIR 1991 SC 1745.
Vohra relies on the ruling of the Constitution Bench of the Supreme Court in T.N. Seshan v. Union of India, (1995) 4 SCC 611, where the Supreme Court did modify the understanding of the role of the other Election Commissioners as it had been set out in the Dhanoa case. However, that ruling is better understood in the context of the bickering between Seshan and his fellow Election Commissioners, and was clearly an attempt by the Court to rein in the high-handed behaviour of Seshan. The fact remains that though interpretations of the Constitution are supposed to endure, they are coloured by the facts against which such interpretation arises.
Leaving aside the often confusing precedents of the Supreme Court, if one were to rely on the text of the Constitution, and the drafting history of the provision in the Constituent Assembly (which have been, as noted earlier, closely examined and clearly set out in Justice Sawant's erudite judgment in the Dhanoa case), it seems clear that the CEC was intended to be first among equals within the EC. To underscore this point, Justice Sawant's judgment in Dhanoa (at para 14) draws an analogy between the role of the CEC and that of the Prime Minister vis-a-vis the other members of the Cabinet.
One may well argue that constitutional history and text have to be set off against arguments of prudence, rationality, and experience. Given that the EC has been a multi-member Commission for so long now, it would be a hindrance to its functioning if the CEC is given pervasive control over the functioning of the EC and can browbeat the other Commissioners. I can see problems with this argument as well, given that we know that governments often manipulate appointments to the EC keeping in mind the future electoral prospects of their respective political parties (this may sound like a conspiracy theory, but a reading of the Dhanoa case will show that such a fear is not unfounded). Given how difficult it is to remove a CEC by initiating
impeachment provisions, governments will always be tempted to "pack" the EC by appointing pliable individuals.
Whatever be the force of the view supporting equal status between the CEC and other Election Commissioners, in order for it to be effective, it must be incorporated by virtue of a constitutional amendment. The CEC is right in noting that the constitutional provision as it stands today favours his interpretation. I do, however, agree with Vohra that this ambiguous situation may need to be resolved clearly once and for all, lest we have more such episodes in future, where the ambiguity causes a loss in stature of the institution as a whole. The way to do so is by virtue of a constitutional amendment to clarify this issue, which in turn will provide an opportunity to debate the best possible way of securing ideal conditions of work in a multi-member Commission.
Shamnad's description and analysis of the Madras High Court's two separate rulings in the case are here and here. For his take on the reactions of Novartis and the Indian government to the rulings, and the policy implications involved, see this more recent post.
Saturday, August 11, 2007
Justice Sabharwal apparently refused to talk to Tehelka to answer these allegations, which on the face of it, seem serious. The issues involved are a perception of conflict of interests, propriety, code of conduct for Judges, and investigation into the facts to substantiate/falsify the allegations made against him. It requires a willingness on the part of the Judge concerned, and the Judiciary to discuss and explain each of these allegations in a transparent manner, and not just stonewall the demands for greater transparency and accountability. Because at stake is the very image of the Higher Judiciary, its credibility as an institution and a pillar of democracy. It is also a serious test of the Judiciary's in-house mechanism to handle such allegations, with objectivity.
Thursday, August 09, 2007
The resolution of this controversy again in a bizarre manner raises questions about the effectiveness of the in-house procedure to deal with complaints against a Judge. The Bill to amend the Judges Inquiry Act is yet to be cleared by the Parliamentary Standing Committee, and there are reports that the Bill may undergo further revisions. The powers of the National Judicial Council in dealing with such matters are yet not clear, as the Bill is subjected to intense scrutiny by the Committee. One has to await the final outcome, as it is unlikely that it may become the law in the ensuing monsoon session of Parliament.
The Judge waited for 16 days to make peace with the agitating lawyers. The lawyers were touched by the Judge's gesture. They will now wait and watch, before pressing their demands to transfer the Judge, withdraw work from him, and even impeach him. The episode leaves certain questions unanswered: Could the Judge have issued such an order at the first instance? Is the CBI bound to obey such an order? Does the Chief Justice of the High Court have any role to play when dealing with such complaints? What happens to the hearing of the stay of the order issued by the Single Judge by the Division Bench?
Wednesday, August 08, 2007
The larger question is how do channels/newspapers determine what constitutes news? Is it determined by the viewership/readership? The headlines on each of the major Indian English news channels last night when the BBC was airing the flood story as the lead program was Dhoni's elevation as captain of the Twenty20 team.
A couple of days ago I was reading a statement made by a senior bureaucrat in the Ministry of Information and Broadcasting in the context of the proposed legislation giving powers of intervention to the ministry in respect of content in the media. In short, he said that the ministry did not want a whole generation of Indians growing up thinking that "page 3 information" is news. While that by itself does not justify censorship of any form, I am beginning to wonder if the Indian media is losing its way. There is no doubt that there has been a shift in the coverage and the mainstream media (at least the English media both print and electronic) are moving away from serious news coverage and focusing on entertainment. While the Times Group has been the leader heralding this shift others are not far behind. For e.g, one of the news items on the front page of the New Indian Express yesterday was of an Indian character being introduced in Archie comics! About a year ago, I attended a lecture by P. Sainath (now Magsaysay Award Winner) where he attacked the media for completely ignoring the crisis in the agrarian economy. He contrasted about how the media constantly tracked the number of millionaires in India, but completely ignored farmer suicides.
I am not sure what conclusions we can draw from this selective vision of the media-it certainly should not affect the free speech-censorship debate- but its an issue that all of us need to think about.
Monday, August 06, 2007
Many thanks to Vikram for allowing me to plug a piece that I have forthcoming in the Journal of Appellate Process and Pratice (forthcoming spring 2008). The paper is posted on, and can be downloaded off of, SSRN
(see link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003811)
The title and abstract are below. Comments are welcome and appreciated. Best, Jayanth Krishnan
Title: Scholarly Discourse, Public Perceptions, and the Cementing of Norms: The Case of the Indian Supreme Court and a Plea for Research.
For economic and nuclear reasons, India has received considerable attention over the last decade from observers in the United States. But attuned Americans are well-aware of India's rich culture and status as a shining constitutional democracy for most of its post-1947 independent history. For all that India has accomplished, however, its public has long viewed its government officials with great disdain. At the same time, a fascinating norm exists in this society which holds one institution in exceedingly high regard – the Indian Supreme Court.
In this article, I seek to examine what accounts for this counter-intuitive norm. As opposed to other state institutions, the Indian Supreme Court is perceived as uncorrupted and as an aggressive protector of individual rights. Yet as I argue, these affirmative sentiments towards the Court mainly appear within scholarly discourse. The Court's various landmark judgments over the years certainly have enabled participants in this discourse to promote its reputation. But because actual evidence is lacking, we simply do not know if this scholarly norm reflects the perceptions of the mass public. Indeed the reality is that most Indians never have any contact with the Court; interaction with the legal process is usually done at the lower court level which can be delay-ridden and expensive. Moreover, because there are legal and social sanctions that can result from criticizing the Court, it may well be that many within the general public individually reject the scholarly norm but are afraid to speak-out or believe that they are alone in their disagreement. That this social-psychological phenomenon of pluralistic ignorance, which I discuss in detail, may be occurring has important implications, including forcing us to reexamine the extent to which the Court is able – in the eyes of the Indian public – to protect and advance a substantive rights agenda.
Saturday, August 04, 2007
"The Madhava Menon committee on the draft national policy on criminal justice, in its report submitted to the home ministry today, has suggested that crimes be classified into four codes based on the gravity of the injury.
The four-fold scheme would include a social welfare offences code (SWOC) for civil crimes, correctional offences code (COC) for crimes punishable with up to three years in jail or a fine, penal code (PC) for graver offences punishable with imprisonment beyond three years and economic offences code (EOC) for select cases that fall under the Indian Penal Code and relevant economic laws.
Small marriage offences, prohibition offences, vagrancy and minor indiscipline on campuses and workplaces, for instance, can be brought under the SWOC, the committee feels.
Therefore, these cases were felt fit to be entrusted to local bodies.
Under the COC, arrest and detention may be allowed, but all the cases could be open to settlement through lok adalats, plea bargaining and other alternative means, thus avoiding prolonged trials.
Grave offences punishable with death fall under the penal code and deserve careful and quick processing under expert supervision with human rights protection guaranteed as in the Constitution, the report has said. “There has to be greater accountability from enforcement agencies in these cases as they create public alarm and insecurity.”If anyone has access to the full report, I would very much like to see it.
Thursday, August 02, 2007
"Take the RTI Act. Meant to create more transparency and accountability in governance, it has for the first time provided an opportunity to ordinary people to intervene in political and administrative decision-making. Politicians and bureaucrats have, thus far, considered it their prerogative to keep information secret. What is not widely recognised is that this mindset characterises not just secretaries and under-secretaries but those who man the lowest tier of government. For instance, in January 2003, the gram pradhans of Ambedkar villages and two MLAs (including a minister in the then Mayawati government) unanimously passed a resolution calling for the jailing of anyone demanding income-expenditure details from the Gram Panchayat Bharawan of Hardoi district, Uttar Pradesh, or for holding dharna to push for their claims. As people’s representatives, they argued, they enjoyed a privileged position and were above providing a statement of accounts for public funds.
Before the RTI Act came into force, officials would humiliate citizens who asked for information and sometimes even threatened them. In their arrogance they did not even bother to do basic book-keeping. The first statement of accounts for the Bharawan Gram Panchayat, which was given to the people by the block development officer (BDO), did not carry any entries under expenditure. When asked about it, the officer explained that that was how accounts have been kept all those years. This was confirmed by the District Rural Development Agency, where employees confessed that once funds left their office, they did not bother to follow up on any details of how they were spent — the assumption was that the funds disbursed were spent for the intended purpose. In a detail of accounts the Bharawan Block Panchayat obtained using the RTI Act, it was discovered that the desilting of a canal was shown to have been performed for more than Rs 3 lakh when no work was done at all.
The RTI Act has made a difference to this situation of complete unaccountability. Today, if an ordinary villager goes to an office with an application seeking information under the RTI Act, she would be treated with respect, offered tea and asked about her problem. Officials would promise to address her problem in a bid to convince her to withdraw her application. Although officials try their best to evade accountability, there is a realisation that they cannot continue to function like they used to. This is good news for democracy. The BDO of Behender block in Hardoi recently confessed that it is only since people have started asking for information that the office has been compelled to keep books.
The NREGA goes a step further and secures the legal right of the people of a gram sabha to conduct social audits of work being performed under the NREGA. This is the first acknowledgement by the government that it requires people’s help in tackling an imperfect system. Earlier, one could only complain if one suspected a misappropriation of funds and then it was up to the authorities to institute an inquiry. Now ordinary citizens have the right to all data pertaining to the workings of the NREGA and must receive it within 15 days of their application. They can then place the records before the villagers for physical verification. The social audits conducted at various places in the country under the NREGA have uncovered numerous discrepancies, ranging from fake names in muster rolls to the fact that facilities for workers are not provided for. Labourers are at last getting their dues in most places where the NREGA is in force."