Saturday, September 29, 2007

Doing Business: Where Does India Stand?

Earlier this week, the World Bank and its investment arm, the International Finance Corporation, published the Doing Business Report 2008 that ranks 178 countries in the world, providing an objective measure of business regulations and their enforcement across those countries. This year, India ranks 120 out of 178 countries, which is 12 notches above its previous year’s ranking of 132. The Report also summarises India’s position (here) on the basis of various parameters. However, there is no cause for celebration as India ranks far below several other emerging economies in providing a legal and regulatory framework that facilitates business and commerce.

As for the good news, the report throws positive light on India’s improvement on two counts, viz. (i) reduction in the number of days taken for export – from 27 days to 18 days (improving India’s ranking on the parameter of cross-border trading from 142 to 79); and (ii) access to credit (where India’s ranking improved from a ranking of 62 to 36). On all other parameters, India’s rankings have either remained the same or deteriorated from the previous year.

One aspect that is worthy of note is India’s high performance in the area of protecting investors, where India is ranked at 33 (previous ranking of 32). This is thanks to a robust company law regime coupled with a widely-expanding corporate governance and disclosure regime that has been put in place by the Securities and Exchange Board of India (SEBI) over the last few years.

On a Chindia comparison (which is becoming increasingly inevitable these days!), India has fared marginally better than China in moving up 12 notches from the previous year compared to China’s climb of 9 notches. But, on absolute terms, China is ranked at 83 compared to India’s 120. India’s performance among other emerging economies is generally lackluster, though it is somewhat comparable with the two other BRIC economies, Brazil (at 122) and Russia (at 106).

Reports such as this offer impetus for introspection. The Government itself cites the Doing Business Report while contemplating economic reforms in various sectors. Once again, we need to revisit some of the issues that are responsible for India’s current ranking in the world economy.

First, there are the regulatory hurdles. Several aspects of doing business in India require multiple procedures to be complied with. There are multiple agencies involved in administering different regulations. Often, there is duplication involved – firms are required to file the same information (or variants of the same information) with different authorities who often act at cross-purposes. What is required therefore is proper streamlining of procedures for carrying on business in India – reduction in the number of procedures as well as number of authorities involved. Further, there is a need for proper coordination among authorities.

Second comes bureaucratic delays. Applications for approvals or licences take inordinately long due to delays in decision-making by the governmental authorities. This frustrates businesses and causes valuable time and opportunity losses. There is a dire need for cutting down time frames for governmental decision-making.

Third is the lack of transparency is decision-making. Often, little or no reasons are provided for delays or rejections in the governmental approval and licensing system. Such opacity is also the cause for corruption at several echelons of the governmental machinery, that in and of itself is another cause for obstructing ease of business activity in India.

Fourth is problems with enforcement. Although India does have robust substantive laws in various spheres (that have withstood the test of time – Contract Act being one example) there is much left to be desired in the enforcement of these laws. The primary problem is in lack of capacity within the judicial system to absorb enforcement tasks and perform them satisfactorily. The court systems are overburdened with so many pressing issues and are unable to cope with the caseload. It is disheartening to note India ranks at 177 for contract enforcement (only above Timor-Leste) and it takes 1,420 days on an average for a successful party to recover on a contract suit.

It is therefore obvious that the continuing reforms need to address all these issues in a timely manner.

Thursday, September 27, 2007

Mandal II: Solicitor General & Justice Pasayat disagree

Today's hearing was marked by a sharp exchange of views between Justice Pasayat and SG. Justice Pasayat asked why spend on higher education, when elementary education needs funds, as Article 21 A is a fundamental requirement.

The SG disagreed with the Judge saying social empowerment under Article 15(4) is equally important and there is no need to prioritise. Article 21A can't be served at the expense of A.15(4), the SG explained. "We have to serve both the Articles simultaneously", the SG said. The SG pointed out that Justice Pasayat's premise is wrong.

To this, Justice Pasayat retorted: "Will you construct second floor first, and then ground floor? Your effort for higher education will require less effort, if Article 21A is met. " Justice Raveendran supported Justice Pasayat on this issue saying money spent on foundation is not visible, unlike the money spent on higher education. Justice Pasayat agreed that the Sarva Siksha Abhiyan is a sincere effort, but it is apparently not sufficient. He hinted that the money being spent on building the requisite infrastructure for higher education, to increase the seats to cater to the OBC quota may well be spent on primary education.

The SG concluded his arguments in the afternoon. Mr.Parasaran will begin his submissions on October 3.

Mandal II: Solicitor General's robust submission continues

September 26 was Solicitor General's second day of submission before the Constitution Bench in Mandal II case. Mr.Vahanvati, to borrow the words of Mr.P.S.Krishnan, Advisor to the Minister for Education, effectively delivered the message to the Bench that it was fallacious to suggest that the Government is pursuing OBC reservations as part of vote-bank politics. Mr.Krishnan said: "At last the Government of India is fighting back. In no other case earlier in recent times, the Government of India has fought back with so much commitment, understanding and sensitivity."

Mr.Krishnan should know better than anyone else. Mr.Krishnan came in for special mention by the SG during his submissions today, for the effort he put in to dig up facts relating to inclusion of various backward castes by the National Commission for Backward Classes. Mr.Krishnan had earlier served as the Member Secretary of the NCBC. The Bench took notice of Mr.Krishnan's presence in the Court, while the CJI expressed his dismay that he quit the NCBC long back, thus suggesting that whatever be his contribution, it cannot now come to the aid of the NCBC.

That apart, today's hearing was notable for the number of witticisms lightening the mood in the Court. It all started with the SG remarking that there were communities which refused to be labelled as OBCs. Justice Dalveer Bhandari called it 'Pride vs. Pragmatism', thus suggesting that those who wanted to be labelled as OBCs, swallowed their pride, in view of the economic benefits that reservation brought.

Justice Raveendran asked what was the explanation for the fact that many castes were included mechanically, without application of mind. He agreed that where there was opposition to an inclusion, the NCBC would have applied its mind, and given a good decision. But in most cases, the opposition to inclusion was not there. Hence, inclusion was done in a routine and cursory way. The SG, however, claimed that in all such cases, there was proper application of mind. There were 200 such communities which were included. They were backward for centuries, but not included earlier, because between the State Lists and the Central Lists there were differences.

Taking out such castes at random, for illustration, the SG said he was simply amazed by the rich diversity of Indian society. "It is fascinating" he said. The choice of castes by the SG for illustration, however, drew a lighter remark from Justice Raveendran who said he was perhaps choosing only those States from where the members of the Bench hailed! (except perhaps Justice Bhandari who felt left out!) A community which survived on sooth-saying as a calling, (a caste which grew bull trained to sooth-saying through gestures), folk entertainers, fortune tellers, professional mourners or even those castes centered around sycophancy as a traditional calling. Justice Pasayat remarked this is one calling (sycophancy) which many in the country would share, and would even be ranked as No.1 in the world!

The SG suggested that the Indra Sawhney Bench had upheld the current OBC lists. Under Paragraph 72 of the Judgment, it said caste can be the beginning. Once it is identified it can be included, it becomes includable in the SCBC list. Thus caste was the basis for inclusion in 14 States in 1993. There is no harm if the Centre uses the same basis for inclusion in the remaining states after that. There were 1432 castes in the State Lists; 2430 under the Mandal List; under the Common List, there were 1350. It is incorrect to say that subsequent inclusions were made whimsically, arbitrarily, and without any application of mind and for extraneous reasons, because in September 1993,a caste was identified as a backward class on the basis of traditional occupation. Caste was a starting point; all subsequent revisions followed the same basis. If traditional occupations, and hereditary callings were relevant for 14 States, extension of the same to other States cannot be condemned. To be precise, 297 new castes were included after 1993 under the Central List on the same principle.

Other significant points made by the SG are :

1. Exclusion of Creamy Layer under Article 16(4) was justified because posts were limited. Under Article 15(5), however, the seats were not limited, but increased under the impugned Act; hence, it was not necessary to exclude the creamy layer. The Notification -yet to be issued under the impugned Act - will not exclude the creamy layer. It is for the Supreme Court to decide whether the Government is right.

2. Balaji case represents old thinking insofar as Article 15(4) was read as Proviso and an exception to Article 15(1) and A.29(2). State of Kerala v. Thomas marks the new thinking: the Constitutional mandate to remove inequality flows from Article 14, 15 and 16. Article 29(2) is irrelevant.

3. Doctrines of strict scrutiny, narrow tailoring, suspect legislation do not apply to India, as our society, unlike America, is not race-based. Caste is not race.

4. Sarva Siksha Abhiyan has shown dramatic results (a claim disputed by Justice Pasayat), and Mr.P.P.Rao's claim that Article 21 A is a dead letter is unacceptable.

Mr.Vahanvati will continue his arguments on September 27.

Tuesday, September 25, 2007

Contempt of Court: Arundhati Roy case revisited

The Delhi Mid-Day case has focussed our attention on the Contempt of Courts Act, and the threat to freedom of speech and expression. In 2001-02, I had closely observed how the Supreme Court circumvented the Act to punish Arundhati Roy, even though in terms of Court's own reasoning, the grounds for doing so did not exist. In the light of the Mid-Day case which revealed the Court's refusal to examine the contemners' plea of truth as a defence, I studied the Arundhati Roy case again to compare it with the present case. Both are suo motu cases, with the petitioners failing to secure the consent of the Attorney General or the Solicitor General as required by the Act, but succeeding to convince the Court to issue notice to the alleged contemners.

The Supreme Court issued notices to Arundhati Roy, Medha Patkar and Prashant Bhushan for criminal contempt following a dharna organised by the Narmada Bachao Andolan outside the Supreme Court on December 13, 2000. The bench comprising Justices Ruma Pal and G.B. Pattanaik, which heard the case, concluded that the petition did not contain allegations that the participants in the dharna had picketed the gates of the court and prevented lawyers or litigants from entering or leaving the court premises. Such allegations, if made and substantiated, could have constituted criminal contempt under sub-sections 2 (c)(ii) and (iii) of the Act. The bench also agreed that procedurally, the petition was deeply flawed and should not have come up before the court for this reason.
But all this did not stop the Supreme Court from issuing a fresh notice of criminal contempt on Arundhati Roy for the three paragraphs in her affidavit.

In response, Arundhati Roy filed an affidavit denying that she had attributed any improper motive to any particular Judge and refuting the allegation that she had "scandalised" the authority of the judiciary. The notice was issued on the basis of a misreading of her first affidavit, she said. She had also stated that she could not be persuaded to change her impressions about the Court because the Court had neither ordered an inquiry into the functioning of the Registry to find out how a grossly defective petition against her was admitted, nor taken action against the petitioners for filing a false case.

In their judgment, Justices Pattanaik and Sethi said that they had no option but to convict her because she had committed the offence of criminal contempt of the Court by "scandalising its authority with mala fide intentions" and, further, had not shown "any repentance or remorse." Instead, they said, she had persistently and consistently tried to justify her action which, prima facie, was contemptuous of the Court. The Judges did not address her grievance about the Court's failure to order an inquiry into the role of the Registry and to take action against the petitioners.

In explaining why they had no option but to convict Arundhati Roy, the Judges expansively cited two factors on top of the lack of remorse on her part that explained why she had "landed herself in the dock of the court." The first factor was that she "drifted away from the path on which she was traversing by contributing to the Art and Literature." The second factor was that she had "resorted to all legal tactics and pretences" (sic) to frustrate the present proceedings against her. Even a critic of Arundhati Roy would find it difficult to believe how these factors had any bearing on her conviction for criminal contempt of court.

It is a generally accepted practice in legal circles that one cannot use the court's proceedings to criticise the court. But the Court issues notice to an alleged contemner with a view to providing an opportunity to the person to explain why action should not be taken against the person for an action that is prima facie contemptuous of the court. If the alleged contemner uses this opportunity to defend himself or herself - as Arundhati Roy has done through her first and second affidavits - the person cannot be held guilty for not showing any sense of remorse or for consistently choosing to justify his or her action. The very objective of the practice of issuing notice, as an instrument to ensure due process of justice, will be defeated if the Court were to suggest that the alleged contemner has no option but to apologise to the Court on receipt of a notice for contempt.

Did Arundhati Roy make critical remarks about the Court with mala fide intentions? The bench concluded she did. However, to sustain this conclusion, the bench failed to provide any substantiation of the charge. Instead, it hurled a patently unfounded allegation against her: "She wanted to become a champion to the cause of the writers by asserting that persons like her can allege anything they desire and accuse any person or institution without any circumspection, limitation or restraint."

Arundhati Roy's affidavit did not contain any such assertion. Nor did her comments elsewhere. But the bench went on to find that her attitude showed "her persistent and consistent attempt to malign the institution of the judiciary found to be the most important pillar in the Indian democratic set-up." Citing a proposition in law that the law punishes an archer no matter whether his arrow hits or misses the target, the Court concluded: "The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society."

The distinction between making an allegation against a particular Judge/Court and the Judiciary in general has always been blurred by the Court. In the A.Roy case, the Bench which issued notice to her said she had attributed motives to a particular Court in her affidavit of harrassing her. In the Judgment, however the Pattanaik-Sethi Bench held that she was guilty of contempt, as her affidavit had defamed the entire Judiciary. The question raised by her was if she had indeed attributed motives to a particular Court, then that Court should recuse itself from deciding on her case. The judgment circumvented this argument by suggesting that her action scandalised the Judiciary in general.

Mandal II Case: Government begins arguments

The Solicitor General, G.E.Vahanvati began his arguments today, giving an outline of his submissions and that of his colleagues. He identified 11 issues, and suggested that Mr.Parasaran would be answering the contentions of Mr.K.K.Venugopal, while Mr.Gopal Subramanium would answer those of Mr.P.P.Rao.

The major thrust of Mr.Vahanvati's submissions this morning was the contention that Articles 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1), but are emphatic statements of equality, as implicit in Articles 15(1) and 16(1). Both 15(4) and 16(4) begin with the expression, "Nothing in this Article...shall prevent the State". His suggestion was that this very expression is indicative of the emphatic character of this clause.

He also contended that the American doctrines of strict scrutiny and compelling necessity cannot apply to India.

He argued that caste can be the basis to identify class, as many backward castes are centered around certain backward occupations.

He was critical of the argument that many castes have been added to the list of OBCs as part of vote-bank politics, and suggested his compilation clearly shows that every inclusion and rejection of demand for inclusion, is based on objective grounds. As examples, he cited the case of inclusion of only Jats of Rajasthan (excluding two districts) by the NCBC and the Lingayats of Karnataka.

Inequality is easy, but equality is difficult. Equality involves surviving against the current.

I intend to go through Mr.Vahanvati's written submissions, so as to apprecitate his submissions better with the relevant case law.

Friday, September 21, 2007

Contempt & Sentence: How Judges Outsmart Journalists

In the Mid-Day case, the Delhi High Court sentenced three senior journalists and a publisher of Mid-Day to four months imprisonment, after having found them guilty of contempt of court, following their expose of former Chief Justice Y.K. Sabharwal's alleged misconduct while in office. This morning, Manoj Mitta (go to Times City, `Truth about hole in contempt law' p.2) suggested in The Times of India that there is a loophole in the latest amendment to Contempt of Courts Act, which provided for truth as a defence. His reading was that the proviso enabling truth as a defence was added to Section 13 of the Act, which deals with sentencing of the contemner. Hence, he suggested that at the time of arguments over sentencing, the Court would have no option but to grant the plea of truth as a defence, even though the same Court might have denied this plea while hearing the plea of the defence opposing the contempt charge against the accused.

Manoj Mitta noted: This is probably the first time the new Section 13 will be tested in a contempt case against journalists. But as ill-luck would have it, the occasion for testing it did not arise today.

As the arguments in the Delhi High Court before the Division Bench headed by Justice R.S.Sodhi revealed, the proviso to Section 13 was invoked by the defence counsel, Rohit Kumar. He also referred to the stay of their conviction by the Supreme Court, and in view of the stay, he pleaded that the Bench should not impose a sentence, but only consider imposing a fine. The Bench however, found these arguments irrelevant to the question of sentencing, as the contemners were not ready to apologise. The Bench, therefore, considered imposing the maximum sentence of six months imprisonment, on the contemners, in accordance with the Act. The Bench finally imposed four months imprisonment on the contemners, but released them on bail, as directed by the Supreme court which granted stay of conviction.

Manoj's interpretation of Section 13 and the proviso added to it in 2006 to enable truth as a defence was quite valid. One expected that both the Bench and the defence counsel would read his story before the proceedings began in the High Court. Yet, the interpretation did not make any impact on the proceedings. Why? Because the Bench was smarter. While holding the contemners as guilty of contempt, the Bench did not think the proviso to Section 13 was relevant, even though it was raised by Shanti Bhushan. In their brief order too, the Bench took note of his argument that truth is a defence, but ignored it, because it took a broader view of the contempt charge.

The Bench suggested that the contemners were guilty of contempt of the court, because Justice Sabharwal's brother Judges who sat with him in the sealings case must have been scandalised by the allegations against Justice Sabharwal. For these brother Judges, the truth of the allegations against Justice Sabharwal did not matter. Therefore, the Bench did not feel the need to consider the plea of truth as a defence.

While sentencing the contemners again, the plea of truth as a defence would have been relevant had Justice Sabharwal constituted a Single Judge Bench in the sealings case, and had not retired. In that context, truth of the allegations could have been tested. The Bench implicitly accepted the defence argument that contempt of Courts Act cannot be invoked, if the allegations were against retired Judges. Still the Mid-Day journalists were proceeded against because at stake was the honour of the brother Judges, who sat with Justice Sabharwal. The Bench alleged that the message being sent by the allegations was that the brother Judges connived at these allegations against Justice Sabharwal. As the allegations levelled by the Mid-day journalists were not against the brother Judges who are still in office, the question of granting the journalists' plea for truth as a defence did not arise at all.

So, what is the lesson from the Delhi Mid-Day case?

No allegation of corruption can be levelled against any Supreme Court Judge, because no Judge sits singly,(except perhaps during vacations) and it is always possible to circumvent the provision for truth as defence by claiming that the brother Judge/s against whom motives were not attributed were scandalised by the allegations.
UPDATE(I have made certain factual corrections, subsequent to my post yesterday.) Looking at the coverage of the issue in today's papers and on television, it appears that the suo motu use of the Contempt of Courts Act against the journalists by the Delhi High Court has backfired. Today, the issue no longer appears to be whether Justice Sabharwal is clean or not. The issue is the question of the freedom of media and the effectiveness of the amendment of the Contempt of Courts Act to provide for truth as defence. In a sense, the amendment has been effectively tested, even if the Court refused to consider the case against the Judges in the light of the amendment.

Wednesday, September 19, 2007

The Retail Debate Widens

Previous posts on this blog (here) discussed the issue of foreign direct investment (FDI) in retail trade. More recently, though, the debate has progressed beyond FDI. The issue has morphed itself into one of organised retail versus unorganised retail. This is evident from the fact that over the last couple of months, organised domestic retailers have been shown the door by some State Governments, prominent among them being Uttar Pradesh, West Bengal and Kerala after protests by the local unorganised players in the industry in the form of mom and pop kirana stores. Curiously enough, some of these State Governments had themselves invited the organized players in the first place to set up operations in their states.

From a legal, regulatory and policy-making perspective, this has important implications. While the FDI debate was largely being driven at the Centre, the domestic organized versus unorganized sector debate has shifted to the states. The State Governments possess licensing powers under the respective Shops and Establishments Acts to allow organized retailers to operate in their state, subject of course to checks and balances in terms of judicial review. The inevitable result of this phenomenon would be fragmented policy making and knee-jerk reactions by states. This would impede uniform policy making on what is becoming an important issue – retailization, which is affecting all emerging economies including India.

Today’s Business Standard carries an editorial that advocates the need for a proper policy intervention on this issue. It says:

“Any policy intervention has to take into account several factors. For one, any change of technology or scale will inevitably result in market shifts, which in turn could yield to downside effects like job losses, whether it is in retailing or in powerlooms replacing handlooms. The policy response in each case has to be to ensure that there are as few difficulties in absorbing the displaced in other parts of the economy - this implies facilities for re-training as well as ensuring that other parts of the economy grow well. Tax breaks for enterprises employing more labour (instead of for those employing more capital) and more labour flexibility for textile/garment firms wanting to expand operations come to mind immediately as some logical policy options. Any social cost-benefit analysis must also include the benefits reaped by millions of customers across the country through lower retail prices as well the benefits to farmers once the substantial wastages in the distribution chain get reduced. The policy responses being planned — a cess on large retailers, or restricting them to the outskirts of cities — are not very desirable because the government is then weighing in against efficiency. While it may be legitimate to try and ensure that small shopkeepers will not get affected, it also means that consumers will pay higher prices and that farmers will not benefit from lowered wastages in the supply chain.”

From this, it appears that what is required is a proper policy study on the impact of organized retail trade in the economy, by way of a cost-benefit analysis. It is only on the basis of the findings of such a study that the Government can frame a clear and coherent policy on organized retail. This would avoid the flip-flop approach on this issue as we have been witnessing over the last few months.

Tuesday, September 18, 2007

Dr.Rajeev Dhavan before the Constitution Bench

Today, Dr.Rajeev Dhavan, counsel for one of the petitioners in the Mandal II case, argued before the Constitution Bench. I am summing up his views here:

1.He began saying that there have been three major disagreements between the Executive and the Judiciary. During the Nehru era, it was the question of land reforms and compensation. Then arose the issue of Parliament's sovereignty, which was resolved in the Keshavanand Bharati case. The third disagreement is on what equality means.

2.Affirmative Action (AA) comprises a mandatory dispensation as well as a discretionary dispensation. The reservation in Parliament and State assemblies for SC, ST and Anglo Indians (for Parliament) is the mandatory dispensation, whereas quota is a discretionary dispensation. While SCs and STs are under Super Classification, OBCs are not so classified. What was intended to be discretionary in Constitutional dispensation has upstaged everything else.

3. AA is a response to group rights. Quota aims at equality of results in relation to individuals, whereas AA aims at equality of capacities. Emphasis on quota leads to neglect of capacities, and the vast population is seen as a liability rather than a huge resource.

4. Where a legislature depends on facts to enact a law, judiciary can lift the veil, to see whether those facts are correct.

5. Reservation does not necessarily mean quota (He did not elaborate this point)

6, There are three differences between Art.16(4) and 15(4): 15(4)(and cl.5) does not use the expression reservation, whereas 16(4) uses reservation. Criteria in 16(4) is wider than that is found under 15(4). 15(4) wider than 16(4) in terms of its benefits; that several schemes of positive action can be implemented under 15(4) in addition to reservations. Therefore, the width of 15(4) must be borne in mind.

7. AA or quota is not a fundamental right. Construction of AA in Art.15 and 16 requires an elaborate review by the Government based on a strict scrutiny of Constitutional provisions in choosing the option on the basis of compelling necessity. As non-obstante clauses, Art.15 (4) and 16 (4) can't make inroads into Art.14.

8. Quotas are the last option, and not a convenient short cut to lure vote banks.

9.Champakam Dorairajan is still a good law, not yet overruled. Article 29(2) and Art.15 must be read together unless they are specifically excluded. While Art.15(4) excludes Art.29(2), the impugned Article 15(5) does not exclude Art.29(2). At this point, Justice Pasayat told Rajeev Dhavan that Champakam decision meant that Article 29(2) must be read subject to Art.15(4).

10. There is total absence of criteria to identify the backward classes. While there have been periodic revisions of SC/ST lists, no similar revision took place for OBC lists. The court should lift the veil to see where is the 27 per cent OBCs.

11. Inamdar has been brazenly overruled by the Government.

Discussion on contempt law

Yesterday, there was an interesting discussion on the CNBC on the Contempt of Courts Act. The participants were Prashant Bhushan, former Judge of the Supreme Court of India, P.B.Sawant and senior advocate Soli Sorabjee. Karan Thapar moderated the discussion, in his inimitable style, without specifically discussing the merits of the Delhi High Court order in the Mid-Day case, as the same has been appealed against in the Supreme Court, and therefore, becomes sub-judice.

All participants agreed that truth is a valid defence to the charge of contempt, after the amendment of the Act. Therefore, the Court which issues notice of contempt to the alleged contemner, should inquire into the veracity of the allegations made by the accused against the Judge, before holding the accused guilty of contempt. If the Court does not hold such an inquiry, then the order holding the accused guilty is not a valid order, and has to be held illegal.

Should the veracity of the allegations against the Judge fail to satisfy the Court, then the Court would be free to hold the accused guilty of contempt. Here, there were differences among the participants. Sorabjee suggested that it has to be a truthful allegation capable of being established. Karan Thapar suggested that the Delhi High Court order seems to have adopted a wider interpretation holding that any allegation, whether true or not, would tarnish the image of the Judiciary, and therefore, could result in contempt. Sorabjee disapproved of such an interpretation saying if the system is so infirm, then you need to cover up to maintain it.

Karan Thapar then referred to the article written by Justice Krishna Iyer in the Times of India recently. (The link is in one of my previous posts). He asked the participants to respond to Justice Krishna Iyer's suggestion that Justice Sabharwal should show ethical and moral response, and face an inquiry himself to clear the air. Justice Sawant felt that the moral initiative rests with the present CJI to hold an inquiry, and that Justice Sabharwal too has the moral initiative to invite such an inquiry. Justice Sawant felt that we should give some time to the present CJI and Justice Sabharwal to make up their minds. Sorabjee, however, disapproved of the ethical obligation, saying such a mechanism is not contemplated in the Constitution. "Have a proper mechanism; silence is not an option", he said.

There is one important aspect on which each of the three had different views: Prashant Bhushan supported the American doctrine of clear and present danger to replace the current provision on scandalising the Judiciary. Justice Sawant, however, wanted the Court to examine the intention of the alleged contemner; did he want to scandalise the Judiciary or not? Sorabjee was against importing the American doctrine, and was categorical that if you can't prove allegation, then you are guilty of contempt.

But it was odd that Karan Thapar ended the programme, expressing the optimism that the Judges Inquiry (Amendment) Bill, recently vetted by the Parliamentary Standing Committee would perhaps be an answer to the dilemma on contempt. Neither the Bill nor the report has anything to say though on initiating a complaint against a retired Judge. The Bill and the report are here and here. My article on the report is also here.

A comment on the Delhi High Court's order in the contempt case

Mr.K.Parameshwar, one of our regular readers, has written the following on the Delhi High Court's order holding journalists of the Mid-Day guilty of contempt in connection with the story which the newspaper carried on the Justice Sabharwal issue. The order is here. Mr.Parameshwar's comment follows:

I thought there were crucial issues raised by this judgment. One, of course is raised by Mr. Bhushan that, how can allegations about a retired Chief Justice amount to contempt of court since he no longer occupies an office. More importantly, as pointed out by Mr. Bhushan, the publications werent against the Court but questioned the propriety of a judge presiding over a matter in which his sons had material interests. Both of which I thought were valid arguments.
We must keep in mind that the initiation of contempt of court action is an institutional remedy. One, that should be used only when the image of the institution is tarnished. Say, if there was a call to boycott courts alleging corruption and bias, or say openly abusing the Court etc. How then would we differentiate between personal and institutional allegations? I think the case at hand is an excellent example of the former. The attempt of the newspaper was not to tarnish the image of the judiciary but to bring into a light a case of impropriety. Such an act does not tarnish the image of the judiciary, but if acted upon will defintely enhance the image of the judiciary. It is orders like the one passed by the Delhi HC here, that might actually put the judiciary in bad light.
The contempt of court remedy is akin to the basic structure doctrine. Only judicious, responsive and responsible use can legetimise it in a democratic polity. The apt remedy that Justice Sabharwal should have pursued was one under defamation law, as it happens with the judges in the United States. Instead, the Court chose to take up the institutional remedy within a system where judicial accountability is turning out to be a myth. Such a decision might have adverse impact on the public perception of an ever increasing judicial power, thanks to the judicial interference in matters ranging from forest conservation to airline management. I believe that if the judiciary wants to increase the breadth of its reach it must exhibit a considerable depth of accountability which it has falied to do.

Secondly, the judgment has also raised the issue of whether truth is defence to contempt of court. The Delhi HC definelty does seem to have been bothered by this issue as is reflected in the judgment.

Monday, September 17, 2007

Stings and Public Purpose: some random thoughts

The ‘sting’ debate: Where and how to draw the lakshman rekha? We all agree that stings must have a larger “public interest” to serve. In the Uma Khurana affair, if the facts as alleged in the original telecast were true, then the public interest was clearly there. It was only when the facts were found to have been distorted by the sting operators, it became obvious that the public interest was a cover to carry out a private operation by the reporter. Therefore, both the means and the ends must matter in any sting. The means must be clearly vetted both by an in-house media and an external media agency or ombudsman to rule out the kind of lack of ethics that we witnessed in the Uma Khurana affair.

Having said that, let me clarify that my attitude to stings – its legality, morality etc. – differs from case to case, and to some extent, has been evolving.

On the TEHELKA expose in 2001, I clearly believed that there was a larger public purpose of exposing corruption in high places, and therefore, the use of hidden camera by the reporter was justified, even though the ethics of the use of call girls for the purpose was debatable. Corruption in defence deals would compromise the security of the nation, and therefore, the public interest was crystal clear. Tehelka, more or less, passed both the means and the ends test. The Defence Ministry, at least, sought to make the process of defence procurements transparent, even though it cannot be said that it is still above board.

On the cash-for-query scam involving 11 MPs, I felt that the issue had bordered on entrapment. The “public interest”, this expose served, was debatable. Members of public do not want to raise questions in Parliament through MPs. If the purpose was to show to the voters how their MPs behaved in Parliament, was the purpose served? The same MPs are free to contest elections, and even get elected. If the purpose was to warn MPs, that they could face expulsion if they posed questions for cash, then again, this was wrong, because sting journalist could not have assumed that Parliament would act swiftly to expel these MPs.

Did the sting instill a confidence in voters that their MPs would henceforth not take cash to pose questions? They may still do so, and take extra precautions to avoid being trapped by sting operators. It certainly satisfied the viewer interest, as people were told that evidence was now available that their MPs were corrupt. It would have certainly strengthened the general atmosphere of cynicism against the political class.

While the subsequent act of expulsion of these MPs by Parliament might have sent a message that the sting had served a purpose, the expulsion left in its wake a debate about whether it was a right remedy to a disease. Here, some MPs were shown the door for receiving money for posing fictitious questions (even though they believed it to be a genuine one). No private party stood to benefit by the act of posing the question by the concerned MP. Parliament was not prepared to examine the process of putting questions by an MP, to carry out systemic reforms, to minimize scope for similar misconduct. Expulsion was a symbolic response, albeit influenced by growing cynicism against the political class. (On the merits of expulsion, see my article here)

It is debatable whether acceptance of consideration by an MP for tabling a question would constitute an offence, inviting penal action under the law - as even the ad hoc committee constituted in 1951- against H.G.Mudgal M.P. who had received money by cheque for genuine professional work - had not concluded so.

However, two of the committee members - Vaidya and Shah - held that if any monetary consideration was accepted by any member even for professional services in connection with matters coming up before Parliament for disposal, then it would not be in accordance with the conception of the standards of conduct to be expected of MPs. In the Mudgal case, there was just a remote suggestion that the money was paid to him by a business association in expectation that he would raise questions in Parliament which would be of interest to it. The committee did not even find a quid-pro-quo, but still Parliament expelled him, because Jawaharlal Nehru took an uncompromising stand on the issue. The link to my article on this precedent is here.

On the actor Shakthi Kapoor sting, shown by India TV, the larger public interest seemed to override objections on invasion of privacy, but bulk of the media considered it otherwise. The link to my article is here.

The Supreme Court has said as early as 1964, in Kharak Singh and others v. State of Uttar Pradesh, that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. In 1975, in Govind v. State of Madhya Pradesh, the Supreme Court expounded the law on this subject thus: "Privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior."

In the United Kingdom, the Calcutt Committee on Privacy and Related Matters (1990) opined that the revelations about the private life of a public figure are justified only to protect the health or safety of the public; or to expose crime or seriously anti-social conduct; or if his private life adversely affects his public duties or is so hypocritical that the public is likely to be seriously misled.

Trapping someone accepting a bribe is not an offence. IPC clearly makes an exception in this regard, to facilitate police investigations into corruption cases. But this right to trap someone accepting a bribe is not available to others who are not responsible for law enforcement.

To evade the stigma of entrapment, it is important for the journalist to show that the accused was predisposed to commit the offence. In the cash for query scam, the accused MPs apparently knew that they were being given cash for posing questions. The word “predisposition” would mean that the accused was inclined beforehand to commit the offence.
Under S.161 IPC, police officers laying a trap can make an honest attempt to secure really independent and respectable witnesses so that the trap may inspire confidence in the mind of the Court. They should treat the notes with phenolphthalein powder so that the Court does not have to depend only on oral testimony which is not always foolproof.

Under this section, an offence is born when the officer demands a bribe. The police simply try to collect evidence to bring the offender to book.

The trap witnesses (the decoy, or spy)being naturally interested in the success of the case are in the nature of partisan witnesses and in an appropriate case the Court may refuse to convict the accused unless their testimony is corroborated by other evidence.

You may notice that a reporter who uses a sting is not exactly similar to the policeman who uses a trap. A policeman uses a trap only when there is a reasonable suspicion that the official demands a bribe. A reporter who uses a sting very often indulges in a fishing expedition. In the cash-for-query scam, there were two MPs, who firmly rejected the offers of the reporters, and their names have not come into the public domain. The fact that there were two such MPs clearly shows, that the journalists chose their targets at random, or with ulterior motives, rather than on the basis of some reasonable suspicion that they do demand bribes to put questions.

However, it needs to be asked why journalists are not interested in doing a sting as any underdog just to report on their suffering? A sting as a vagabond, as a beggar, as a sex-worker or as a slum-dweller could reveal a lot about the struggle for existence of these unfortunate people.

Legal and Constitutional Dimensions of Sting Operations

I am picking up on Arun's usual thoughtful piece about the legality of sting operations. Perhaps, I have missed much of the literature, but I have yet to see a good substantive discussion of the legal and constitutional dimensions of the problem (based on statutory provisions and caselaw), and I think our blog should fill that void. For instance, there is a clear issue of whether sting operations constitute illegal entrapment under Indian criminal law. But, on the other hand, there is the strong free-speech dimension that would trump ordinary statutory prohibitions. For instance, is there a New York Times v. Sullivan-type exemption when a sting operation involves a public figure? Can newspapers claim a firmer basis to indulge in sting operations than broadcasting media based on their traditionally stronger protections under Article 19 (1) (a)?

I recently had the opportunity to discuss this issue with Sevanti Ninan, India's leading media commentator. Sevanti noted that there is a provision under the Prenatal Diagnotic Techniques (Amendment) Act of 1994 was the only statutory provision that allows sting operations. I found she has elaborated upon these views in this article. We clearly need more research on this issue.

Saturday, September 15, 2007

Taking affidavits seriously: Was the furore over Ramar Sethu affidavit justified?

The Union of India has been compelled to withdraw its counter-affidavits filed in the Ramar Sethu case, following the uproar over certain paragraphs of the counter-affidavit filed by the Archaeological Survey of India, questioning the factual basis of the characters and events in Ramayana. But was the uproar justified at all?

Is the affidavit a true indicator of the Government’s intention?

In the Ashoka Kumar Thakur case, currently being heard by the Constitution Bench, the Pasayat-Panta Bench had earlier gone into this question, while examining whether the case had to be referred to a Constitution Bench. Harish Salve, a counsel for the petitioners, had submitted that in the counter affidavit filed by the UOI it had been specifically stated that, there was no question of law much less of substantial nature involved, and the issues raised were covered by various decisions of this Court, more particularly, Indra Sawhney v. UOI. If that be so, Salve argued, there was no substance in the present stand of the Solicitor General that substantial questions of law were involved. Salve, thus, suggested that the cases can be decided on the pleadings made and the acceptability of stands.

Countering Salve, K.Parasaran and Ram Jethmalani, counsel for the respondents had argued that the stand taken in the counter affidavit could not be determinative.

In paragraph 5 of the judgment delivered by the P-P Bench on May 17, 2007, the Supreme Court referred to its decision in Sanjeev Coke Manufacturing Co. V. M/s Bharat Coking Coal Ltd. (1983 (1) SCC 147). The issue in that case was whether the Executive Government spoke for Parliament. It was held that no Act of Parliament might be struck down because of the understanding or misunderstanding of parliamentary intention by the executive Government or because their spokesmen did not bring out relevant circumstances but indulge in empty and self-defeating affidavits. Validity of legislation was not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find.

The P-P Bench then went on to justify the reference to the Constitution Bench of this case, irrespective of what the UOI’s counter-affidavits said. It is possible to suggest that Sanjeev Coke case involved the question of determining legislative intention. Yet, the P-P Bench used this to decide whether the UOI’s counter-affidavits in the Mandal II matter must be relied upon to determine whether the case merited reference to the Constitution Bench.

In the light of the P-P Bench’s reasoning, should the counter-affidavits in Ramar Sethu case be interpreted the way much of the media and the political class chose to interpret? If what the ASG claimed in his submissions before the Court, before withdrawing the controversial affidavits is true, then the conclusion is inescapable that both the Court and the Government had succumbed to the political compulsions, rather than let the Court’s stand on the affidavits prevail over the misguided politico-religious sentiments being exploited outside the Court. The ASG, in his submissions, clearly explained that the affidavits did not intend to touch upon the freedom/articles of faith or belief of any section. If the Government was so convinced, then why succumb to the political compulsions, rather than explain the position of law?

Friday, September 14, 2007

Sardesai and Noorani on regulating media sting operations

Yesterday's HT features an editorial by Rajdeep Sardesai on this issue. Taking a somewhat different stance than other establishment figures in the media (see this previous post for details and links), Sardesai accepts that it is indeed upto the media to take primary responsibility. Here are extracts from his piece:

"Let’s be honest: the sting has become a legitimate weapon in a journalist’s armoury, the hidden camera and its sophisticated variants are now part of the media landscape. Every channel, large or small, has used the hidden camera, often to devastating effect. Let’s also be clear: every sting involves an element of deception. Then, whether you are posing as a defence dealer or an NGO, (or, as in the Khurana case, a schoolgirl), the sting necessarily involves luring someone through false pretence: as a result, the lines between an exposé and entrapment can often be very thin.

In the United States, the law and professional news organisations have stepped in to define the limits of the hidden camera. Take for example CNN’s policy guidelines on this. It clearly states, “The information or evidence to be gathered by a hidden camera should significantly contribute to a story that is of substantial value to society or of vital public interest.” Second, the expectation of illegal behaviour or wrongdoing should be strong (i.e. no fishing expedition). Third, before using a hidden camera a journalist must first try and exhaust alternatives for obtaining the interview or information. Fourth, hidden-camera shoots must have the prior approval of the senior news management. In some instances, permission of the federal authorities may also be required before the shoot. Moreover, simply because it is ‘good television’ is not a good reason to use the hidden camera. Bottomline: a hidden camera can be an important tool for solid, investigative journalism, but must be subject to well-laid out rules and procedures.

India is different. We have no law that governs sting operations, no internal guidelines in most news organisations, and an unclear right to privacy. At the same time, we are a notoriously opaque society, with an history of corruption and non-accountability. In such a system, a blanket ban on sting operations, as was hinted at by a Supreme Court judge, is no solution.

... ... ... The question is who will decide what is in the ‘public interest’: the government (as it wishes to do in the Broadcast Bill), the viewers (who continue to have a Jekyll-and-Hyde approach to the blurred images), the courts (who see themselves as custodians of morality) or the editors (who are well paid to ensure standards)? In the final analysis, notions of public interest must necessarily be subjective, exercised on a daily basis in a 24x7 news wheel by those who are responsible for channel content.

... .... ... Perhaps, the latest controversy provides news practitioners with a final opportunity to evolve a much-needed industry code of conduct before the government steps in. Self-regulation is only part of the answer: how would self-regulation ensure a uniform adherence to standards in an industry where everyone, from political fixers to real estate sharks, believe they can bring out a news channel? Unless there is an industry-prescribed broadcasting code of conduct with strict penal provisions for non-observance, news journalism is in danger of hurtling down a slippery slope of normlessness, with a resultant loss of credibility."

In a separate column, which was apparently published before the Khurana episode, A.G. Noorani argues that any move to ban sting operations altogether would be unconstitutional:

"In recent months, many people have attacked sting operations. They are called subterfuges or misrepresentations in legal parlance. Before any minister goes about drafting a law to suppress it or a judge decides to censure it, some reflection is required. For, the sting is protected by the Constitution. The fundamental right to freedom of speech and expression, guaranteed by Article 19(1)(a) includes, as the Supreme Court has held, press freedom and all that is necessary to ensure it; for example freedom of circulation. It also includes the right to know, the court has repeatedly ruled citing US and UK cases. The US Supreme Court has ruled that it includes a “right to gather information” and, further, that “without some protection for seeking out the news, freedom of the press could be eviscerated.” The press enjoys a preferential right to attend courts to report trials. “In a sense this validates the media claim of functioning as surrogates for the public.” That is the test. Article 19 (2) permits on the right only “reasonable restrictions” by law only on specified grounds. A blanket ban would be unconstitutional. No Indian court would ignore the formidable material in support of the sting. No Information and Broadcasting minister should either. As far back as 1885, W.T. Stead made news for the Pall Mall Gazette when he exposed prostitution by buying a 12-year-old girl. It led to a change in the law. No judge would send him to prison today as one did then."

After surveying attempts at regulating such operations in the U.S. and U.K., Noorani offers the following prescription:

"It is vain to expect any help from the Press Council. Leading figures in the media, print and electronic, should themselves draw up a code of conduct as a yardstick by which the public could judge their conduct. They might well set up a voluntary Court of Honour to monitor observance of their code."

Ethics of Narco-Analysis: Lecture in New Delhi

The People's Union for Democratic Rights, Delhi is organising a lecture on Narco-analysis as a form of torture, and Democratic Rights'. It will be delivered by Dr.Amar Jesani, Centre for Studies in Ethics and Rights, Mumbai and editor of the Indian Journal of Medical Ethics.

The invitation to the lecture says the use of sodium pentothal and other truth serums is gaining ground in India, and (mis)used in police investigations. It violates Article 20(3) of the Constitution.

The lecture will be followed by a discussion.

Date: September 15, 2007, Saturday.
Time: 4 p.m.
Venue: Indian Law Institute,(Opp.Supreme Court gates at Bhagwan Das Road, New Delhi)

Thursday, September 13, 2007

Justice Krishna Iyer on Sabharwal issue

Today's Times of India has carried Justice Krishna Iyer's article on the allegations against Justice Sabharwal. He calls for an impartial inquiry. "Such a body has to be set up by the CJI himself", he says.

But with no precedent to rely on, and with the in-house procedure offering no scope to initiate an inquiry against a retired Judge, CJI's hands are clearly tied on the matter.

It would have been better if Justice Iyer dealt with Justice Sabharwal's article in the TOI defending himself. Justice Iyer refers to it in passing, but must have dealt with the specific grounds which Justice Sabharwal cites in his defence.

LIVE BLOGGING FROM SUPREME COURT ON MANDAL II

Mr.K.K.Venugopal continued his submissions this morning on behalf of the Resident Doctors' Association.
I am summing up his views here:

1. Article 15(5) and Article 15(4) are inconsistent with each other. Article 15(5) bars the application of the provision to minority educational institutions, whereas Article 15(4) has no such exclusion. Before Article 15(5) was inserted last year, reservations were made under Art.15(4). So, the question is does A.15(5) override A.15(4)? The Minority Educational Institutions (MEI) will be free to admit 100 per cent students without yielding even one per cent of SC/ST/SEBCs. THIS WILL BE A SIGNIFICANT DEPARTURE FROM WHAT EXISTED EARLIER.

2.On the issue of inconsistency between Cl.4 and 5 of A.15, three Judges seemed to agree: They are Justices Pasayat, CJI,and C.K.Thakker. Justice Raveendran, however, raised the issue whether two enabling clauses can contradict each other, as Art.15(4) and (5) are enabling clauses. Even if there is conflict, it can be reconciled was his view. Enabling provision does not bar the application of the Article to MEI was his view. Mr.Venugopal replied to him that in the process of making the law, restrictions would come into force.

3.Since the Government would not have passed this Constitution Amendment inserting 15(5) if its intention was not to confine it to non-minority students, it is necessary to strike down the whole law, rather than sever it from this aspect, so that the question of inconsistency can be resolved.

4. Parliament's intention was to include the creamy layer among the beneficiaries. That is why the impugned law is silent on creamy layer. Mr.Venugopal referred to the Parliament debate on the issue, highlighting how the Hindi version of the Bill specifically excluded creamy layer, whereas the English version chose to observe silence, thus including the creamy layer. The Parliamentary Affairs Minister then replied that the English version will prevail. According to Mr.Venugopal, if the law is silent, then the Court cannot say creamy layer ought to be read as excluded from scope of the Bill. Hence, the entire law needs to be struck down.

5. Justice Thakker asked since the paramount intention of the law makers is "advancement" of the backward classes, it goes without saying that the creamy layer ought to be excluded, as the real backward classes would be left out. Justice Pasayat seemed to agree with what he said.

The Hindu's reports are here and here for those interested in reading what was argued before the Bench on September 11 and 12.

The power of the Executive to enter into agreements and treaties: Bucking the conventional wisdom?

Today's Hindu features a column which reproduces a press statement issued by three retired judges (Justices Krishna Iyer, PB Sawant and H. Suresh). This statement provides a stimulating analysis of the power of the Indian executive to enter into agreements and treaties. Though framed against the context of the current debate over the 123 agreement, their argument has important ramifications for the power of the executive to engage in foreign affairs and diplomacy in general. Those who witnessed the debate over the Dunkel Draft in the 90s will recall that Justice Krishna Iyer had made similar arguments at that time. What is interesting about this stance is that it runs contrary to the position adopted by noted scholars of international law such as Professor V.S. Mani and Dr. P.C. Rao. This conventional account suggests that, following the British practice, the Executive has wide powers to engage in matters relating to foreign affairs.

I hope to analyse this issue in greater detail in the near future. For now, I draw attention to the arguments set out in the piece so that others who have had a chance to study the broader issue can assess and react to the arguments. The link to the full piece is included in the first line of this post, while the relevant constitutional analysis is extracted below:

"1. The Executive has no power to enter into any agreement, either with a foreign government or a foreign organisation, which is binding on the nation. The agreement will be binding only when it is ratified by Parliament. There is no provision in the Constitution which gives such authority to the Executive. We have a written Constitution and, therefore, we must have a written provision in the Constitution which gives such authority to the Executive.

2. Articles 73 and 253 and Entries 6, 13 & 14 in the Union List of the Constitution refer to the powers of the Executive. Article 73, among other things, states that, “----the executive power of the Union shall extend (a) to the matters with respect to which Parliament has powers to make laws, and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement.” This means that the matters on which Parliament has no powers to make laws are also matters on which the Union Government cannot exercise its executive power. It also means, conversely, that the Union Government cannot exercise its executive powers beyond the legislative powers of the Union. Both these propositions have an underlying assumption that, before the Union Government exercises its executive power, there is a law enacted by Parliament on the subject concerned. Some argue that the provisions of Article 73(1)(a) give power to the Executive to act on subjects within the jurisdiction of Parliament, even if Parliament does not make a law on those subjects. This is both a distortion and a perversion of the said provision and a subversion of Parliament’s supreme control over the Executive. If this interpretation is accepted then the Union Executive can act on all subjects on which Parliament has to make law, without there being any law made by Parliament. You can thus do away with Parliament and Parliament’s duties to make laws. We will then have a lawless government. Democracy presumes there should be a rule of law and all Executive actions will be supported by law and that there shall be no arbitrary action by any authority, including the Union Executive. It may also be necessary in that connection to remember that it is for this very reason that when Parliament is not in session and, therefore, unable to enact a law, the power is given to the President to issue an ordinance (which is a law), so that the Executive may act according to its provisions. These ordinances are to be placed before Parliament within six weeks of its reassembly, and if Parliament approves they become law. The Constitution-makers were, therefore, clear in their mind that the Executive cannot act without the authority of law and it has no power independent of law made by Parliament.

3. Article 253, which is relevant in the context of the present Indo-U.S. nuclear deal, is very specific on the subject. It says, “Notwithstanding anything in the foregoing provisions of this chapter, Parliament has power to make any law ----- for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

This Article gives specifically the power to Parliament to make laws on treaties, etc., with other governments or even on decisions made in international conferences, etc. This makes it clear that even the treaties, etc., entered into with other countries or decisions made at international conferences have to be translated into laws and read with the provisions already discussed above, before they are acted upon by the Executive.

4. The Union List Entry 6 makes “Atomic energy and mineral resources necessary for its production” a subject matter of legislation of Parliament. Similarly, Entry 13 which reads, “--- participation in international conferences, associations and other bodies and implementing of decisions made there at” and Entry 14 which reads, “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries” make them also subject matters of legislation by Parliament.

5. All these provisions make it abundantly clear that the present Indo-U.S. nuclear deal cannot be implemented by the Union Government unless it is translated into a law enacted by Parliament. Any action, therefore, taken by the Union Government to implement the said deal without the authority of Parliament is unconstitutional, because it amounts to the usurpation of power of Parliament by the Union Executive. It is also undemocratic because the Union Executive will be acting arbitrarily, trampling both the rule of law and also the wishes of the people of India. It will be nothing short of an arbitrary rule by the Executive, leading to an unconstitutional government in the country, because what is arbitrary is also unconstitutional."

Tuesday, September 11, 2007

Sex, Lies and Rape Continued: A Response

Several comments were made to the post “Does consensual sex based on false promise amount to rape?”. Recently, a detailed critique was posted by Ms. Sunanda Bharti (see comment section of the previous post). I welcome her and others to the discussion and request that she (and other readers) not take offense to my comments below if they appear a bit testy. I believe most of the points she has raised have been addressed in that blog and in other comments but nevertheless set forth here, at the risk of repetition, a specific response to her contentions.

Ms. Bharti says that the IPC does not define consent in very clear terms. This lack of definition of consent in ‘clear terms’ in section 90 is more than made up by the provisions of section 375: those are clear, concerned specifically with rape and must, applying the rules of interpretation, prevail over the general definition of consent in section 90. In regard to misconception of fact in a fully conscious state of mind and in the absence of fear, the only instance stated therein that constitutes rape is when the woman gives consent to a man wrongly believing him to be her husband.

Next, it is asked what is wrong with an enlarged interpretation if it is to fill up a ‘lacuna’ in the IPC. The problem here is that filling up ‘lacunae’ in the law is the job of the legislature, not the courts. These ‘lacunae’ are not necessarily inadvertent legislative omissions. They can equally well be by design, deliberately excluded because the legislature and society by implication does not consider those actions to constitute crime. If one concedes these arguments, there is no difference between what the law says and what it ought to say, judges are not really bound to follow firm rules of statutory interpretation but are free to get creative and give new meanings that promote their own notions of ‘justice’ in any case. Words would then mean little, enactments are easily whittled down of substance, societal preferences would hold little sanctity, citizens’ recourse to authority would have uncertain outcome and what we call ‘justice’, reduced to a product of the sensibilities of the presiding judge: in short, the rule of men, not law. Such a view is not only dangerous but can cut both ways – if it can be used to promote women’s rights, it can be equally well used to restrict them another day. Sure as highlighted, the vicissitudes of legislative passage are well-known but that indecisiveness of society is the price to pay for protection from tyranny. Being a democracy, one must accept that the wheels of change roll slowly, persuaded by the soft power of reason flowing from the opinion-maker’s pen rather than the heavy hand bringing down the gavel.

It is said that every possible scenario cannot be taken into account by the legislature. There are two answers to that. The first is that rule of law means equal justice under law for all, not justice tailored on a case-by-case basis; one does not have to take every scenario into account. All that is required of the legislature and the superior courts is for certain principles to be laid down which lower courts can apply uniformly and consistently to every situation to determine the outcome. As Cardozo puts it, “The recognition of [judicial] power and duty to shape the law in conformity with the customary morality, is something far removed from the destruction of all rules and the substitution of the individual sense of justice, the arbitrium boni viri. That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law”. The other part of the answer is that that is precisely why we have a legislature to update laws all the time rather than a one-time event like the convening of a constituent assembly which could simply produce a document and be disbanded for good when its work was done. The end of law is the promotion of justice no doubt and bridging the gap between those two is a continuous exercise which is what the legislature is supposed to do. To put it in a nutshell, these are the classic arguments advanced in favor of judicial activism and must therefore bear with the standard criticisms that the approach is vulnerable to.

Ms. Bharti argues that no ‘meeting of minds’ exists, hence no valid consent. This definition of consent does not change the question we are grappling with, i.e., what is the scope of the ‘meeting of minds’ that we are concerned about for the purpose of this provision? Related to the same point, she reiterates her notion of rape that it need not involve physical violence at all. And so, the definition of rape also includes consensual sex performed as a pleasure activity but transformed into a defiled one post facto because of a false promise. These arguments have been discussed in detail in the previous post (and comments therein), so my comments here are really redundant. Rape, in this view, requires no real experience of actual trauma, only the recollection of one. A perfectly pleasurable sexual escapade, soured by later events, can instantly transmogrify into a painful, horrific and worse, criminal act of rape! Agreed that minus the promise of marriage, the woman probably would not have consented to sex but the same thing would however be equally true if he had promised her something other than marriage – suppose he had said he would get her a car but failed to deliver or said he belonged to her caste but was really from another or that he would treat her like a queen. In being less than upfront about his caste, maybe he was thinking all along, “I have duped her into believing that I am from her caste but maybe when she gets to know me better, I can reveal the truth and she will be more willing to see the irrelevance of it”. But this would be clearly impermissible under this newly minted feminist jurisprudence – consensual pre-/extramarital sexual relationships between perfectly willing, single adults would have legal implications. The dating game would now have to adhere to the straightforward rules of old-fashioned commerce: the sex-seeker must reveal all his intentions and ‘business’ offers upfront through a declaration of truth and nothing but the truth in exchange for the sex-giver acceding to his demand in good faith, to be followed by consummation at which point, the binding nature of the former’s obligations are established. Weaving fantasy would have to be forbidden, words would have to be weighed carefully and promises spelt out would have to be kept or else, god forbid, a break-up ensues and a bitter one at that, it is payback time in court! Rape would thus be a convenient weapon of vengeance for the betrayed, the jilted and even the otherwise broken-hearted. This expanded definition, achieved through judicial sleight of hand is built on a legal foundation of quicksand, is nebulous at best, seeks to criminalize an unacceptably broad range of personal conduct through the back door and thereby casts an icy pall over a large domain of individual liberty in a free society, all done under the politically correct guise of protecting the weak and disempowered. Needless to add, I reject it categorically.

It is argued that a woman expects not sympathy but that the accused be punished. Meeting individual expectations is not the role of the criminal justice system; rather, meeting society’s expectation of justice is and the two may not coincide. A final point made is that the woman did suffer injustice, so the petition is not frivolous. Perhaps she did but no prima facie case is made out for rape, and my contention is only that this particular charge and the like are frivolous. Yes, not all of us are born with a silver spoon or manage to get into Harvard or IIT; many have had failed relationships, had their trust betrayed by friends, had colleagues spike their promotions and so forth – life is not fair but not all the injustices of life are necessarily criminal offenses or even otherwise actionable by the state. That is why people talk of ‘learning through the experiences of life’, their reference being to caveat emptor, the one rule that applies to life as much as to commerce and must govern our actions at least where we are on our own.

Monday, September 10, 2007

The Kundu Controversy: Research Ethics and Regulation

Divya Gandhi's op-ed in The Hindu last week brought to wider public focus the on-going controversy regarding manipulation in a research paper that has roiled the Indian scientific community for some time now. As pointed out therein, much has been written on it across the blogosphere and in letters to Current Science, an Indian scientific journal run in association with the Indian Academy of Sciences.


Two papers were published in the reputed Journal of Biological Chemistry (JBC) by a doctoral student Hema Rangaswami with her adviser, Gopal C. Kundu from the National Center for Cell Science (NCCS), Pune, the first in 2004 and the second in 2005. The journal, upon receipt of an anonymous e-mail sent allegedly by a former student of Kundu charging that some figures in the second paper were not from new experiments but actually plagiarized from their own previous publication, investigated the complaint and subsequently withdrew the second paper informing the authors that it contained "data that was reproduced without citation and with different labeling", an ethical violation that constituted 'deliberate misrepresentation'. The Society for Scientific Values (SSV), an organization of current and former scientists that claims the upholding of ethics in science as its primary mission and has played a key role in this issue, adds several additional details that have been quoted by other news portals as well: that soon after receipt of the allegations, an internal committee in the institute held the authors guilty and sought withdrawal of the papers and secondly, that Kundu himself, wrote to the journal initially suggesting withdrawal but later sent a second letter alleging that his previous communication was done under duress and insisting that he stood by his publication and it not be rescinded. Kundu's protestations led the Director to ask for an external committee which was then constituted by the Department of Biotechnology (DBT) and comprised of seven members headed by the former Director of the Indian Institute of Science (IISc), G. Padmanabhan. This committee concluded in a brief report (posted on the SSV website), after examining evidence presented by Ms. Rangaswami, that the allegations had no basis and that the e-mails had been sent with the 'malicious intent to spoil the reputation of NCCS'. These conclusions being contrary to the findings of the JBC and the SSV's own analyses (which have both refused to modify their own positions), the DBT demanded a second report from the committee which then compiled a more detailed one running to 118 pages upholding its previous findings. Gandhi's article states that the DBT plans to submit it to a three-member committee for another review.


Before going into the specifics, for those unfamiliar with the field, a few technical details of the science itself are in order. Protein analyses in laboratories are often done by 'blotting', a process that can be used to separate different proteins as well as to identify them individually based on their properties when they appear on the 'blot' as 'bands'. This protein profile on the blot is captured on X-ray film and constitutes the actual evidence used for analysis, also known as 'raw data'. For the purpose of publication, the film itself is photographed and the picture so obtained, edited using digital image processing software to improve clarity. Photo editing is now-a-days universally employed - few pictures that get published are un-edited and the extent of editing depends on technical factors such as visibility of the 'bands', background exposure of the film, etc. At some point, however, a line is crossed and editing can actually start to affect the evidence sought to be presented or in other words, misrepresent it. This is what journal editors are concerned about. JBC, in an editorial shortly after this incident, highlighted this problem even pointing out several types of fraud including the one alleged here that had been detected.


The full picture is not available as neither the report of the JBC's internal investigation nor the detailed report of the Padmanabhan committee appear to have been made public. Conflicting conclusions coupled with this lack of transparency appear to have fueled this controversy. Rahul Siddharthan writing in Current Science showed two blots from the two papers (which do appear identical) and suggested that it is quite implausible for two separate experiments to ever yield such identical pictures. Padmanabhan, in his response in the same issue, presented un-edited pictures of the original X-ray films handed over to the committee and pointed out the differences between the two (which are equally obvious to me). The question then, as Mr. Siddharthan raised, is whether the pictures in the paper were actually taken from the X-ray films purported to represent the original data. Padmanabhan dismissed this query stating simply that he considers such fraud improbable for no conceivable motive exists for such elaborate deception and also argues that many laboratories, running such blots routinely using the same apparatus over and over again, could quite possibly end up with pictures that appear very similar to the naked eye. Veracity of the 'raw data' has also been challenged. Apparently, the internal committee that originally looked into the matter was told that laboratory notes, which are expected to be meticulously maintained as a routine matter, were not available and yet, 'raw data' was provided by Ms. Rangaswami after her arrival. This has led to doubts whether the original data submitted to the Padmanabhan committee was indeed genuine. Padmanabhan on the other hand, blamed the internal committee for not being "a little more mature, giving adequate time and opportunity to all concerned to defend with adequate proof."


The reason for disparate conclusions appears to be the different methods and evidence being examined by different bodies. The first step to resolve this must be to make public all the details of the various investigations done so far. I agree with SSV that truth must ideally be determined from the published evidence itself. Even if the authors' data and conclusions are all fully substantiated and evidence of falsification of 'raw data' does not exist, no journal, being concerned foremost with its own reputation, can be expected to condone or overlook the practice or even to take a lenient view of the matter in light of other mitigating facts. Whether the committee has actually followed this modus operandi is unclear at this time but Padmanabhan's arguments made in his letter to Current Science based on motivation and likelihood are beside the point. However, he might well be right when he says that the truth of the allegation cannot be unequivocally determined from the figures alone. Pictures of protein blots are extensively potrayed in the literature and a determination of plagiarism or photo-fraud beyond reasonable doubt might well be impossible to show with the investigative methods available currently. That raises a significant point: what is the standard of evidence that must be demanded in deciding the issue? Should institutional committees set their own standard or simply take the cue from journal editorial boards? As a general rule, withdrawal of a publication is a serious blot on a scientist's integrity and usually ends up with expulsion from the institution. It also spells the end of his/her academic career as few others are willing to hire the person and journals will be wary of accepting his/her submissions again. Institutions are expected to act promptly and follow through with such action to safeguard their own reputation. An article in Nature on this matter posted a picture of NCCS and the caption below read, "Reputation on the line?" Such pressures usually compel them to play it safe and force the person out raising the difficult question whether institutional disciplinary boards enjoy much leeway in laying down their own rules. Seen from that perspective, the Padmanabhan committee's decision to stand up for its belief and defend the scientist is laudable but I wonder how much good that can do in the long term for either the institute or the scientists themselves.


This case must prompt editorial boards to ask how best to check such a practice. Demanding submission of all relevant original data might be a start. Calls for a formal mechanism to handle allegations of malpractice have arisen. The multitude of committees and the differences in their approaches and outcomes in this case does underline the need for a proper set of regulations governing the manner of any inquiry. N. Raghuram of the SSV talks about a national body analogous to the Office of Research Integrity in the US which lays down requirements for institutional policies and procedures and is empowered to penalize institutions that refuse to act with cuts in funding. It might also not be a bad idea to initially allow the various national institutes to set up their own procedures to deal with such issues and for a national body to be empowered only to review their actions. Comparitive assessments of their experiences might allow a better understanding of the problems and potential solutions inherent in each of them thereby allowing a more uniform and comprehensive system to evolve with time.

Update: Gopal Kundu responded today in The Hindu to the article by Divya Gandhi. He reiterates the evidence and reasons behind his exoneration by the Padmanabhan committee and also indicates that he has republished the same data in a different journal recently (Thanks to Mr. Zubaid who pointed out a significant error in this update which previously ascribed the republication to a different group; it now stands corrected).

Saturday, September 08, 2007

The Khurana case and predictable views of the media establishment on regulation

Today's papers are full of editorials and op-eds on the Uma Khurana case. As Barkha Dutt fairly concedes in her column:

"The timing could not have been worse. On a day when television journalists were all set to wrestle the government to the ground over its imperious and inane Broadcasting Bill, along comes our own moment of ignominy and shame."

Both the Indian Express and the Hindustan Times have editorials where, quite predictably, the actions of the TV channel are criticised, but the Broadcast Bill is also condemned. Their solution: self regulation by the media. This is also the response that Barkha Dutt proposes:

"Before the government uses the exception to thrust its own set of motivated rules on us, let us in the industry admit that we need a code of conduct that we can all agree upon, and one that we draft ourselves. (Thanks, but no thanks, is what we need to tell the I&B Ministry).

It’s something I have long argued in favour of on these pages. We must be ready for the scrutiny we subject others to. Because when the reporter becomes the story, the news takes a backseat."

Dutt's closing sentences make the appropriate noises, but notice that she seems to rule out anyone but the media being involved in such regulation.

The only print column I have been able to locate so far that goes beyond this limited claim is a column in the Express by Amrita Shah, who is identified, rather tellingly, as a "commentator on media and society." This is her proposed response:

"A workable solution would need the active involvement of consumers of the media, for it is they who can arrest falling standards by choosing what to patronise. In a market-driven environment it will have to be the responsibility of the media and citizens both to create a society where the rule of law is less casually flouted."

I am surprised by the media's seeming blindness to the glaringly obvious problem with such arguments. Of late, the media has been trying to highlight problems within among other institutions, the judiciary, arguing that self-regulation is not a workable or defensible mechanism for the many woes that afflict that and other institutions in India. Yet, when it comes to setting its own house in order (and one didn't need the Khurana case to point to the dire need for this), the people who constitute the media establishment can only offer defensive explanations, talk of this being an 'exception', and propose the blandest of solutions: self-regulation.

One does not have to choose between the alternatives of the Broadcast Bill and self-regulation by the media: both appear unacceptable. It is upto the media to come up with more credible alternatives, if it wants to drum popular support against measures such as the Broadcast Bill. That some kind of regulation is in order is clear: as Amrita Shah points out, this is not an exception, and there are several such instances which have happened in the recent past. If the media doesn't budge, then measures such as the Broadcast Bill may be supported even by those who currently oppose it.

Wednesday, September 05, 2007

Making Sense of the Subprime Crisis: Implications for India

An oft-repeated adage in the financial markets goes, “when America sneezes, the rest of the world catches a cold”. This element of financial contagion stands out starkly in the US subprime crisis that has affected markets worldwide, and as a result hogged financial media limelight for over two months now.

A simple and reader-friendly explanation of what the crisis is all about is contained in an article titled The ABC of CDOs and the Subprime Crisis by Vinod Kothari and Rochak Agarwal that appeared in the Business Standard a few weeks ago. In a nutshell, the crisis emanated with several banks and institutions in the US lending to borrowers whose creditworthiness was suspect (a.k.a subprime borrowers). The loans were provided against mortgages of their homes. It now appears that these institutions were lax in their lending processes - primarily because it was believed that growing housing prices would leave them with valuable collateral for their loans, and hence they would always be protected against default. These banks and institutions obtained funding for providing these loans by securitizing the mortgages and repackaging them into synthetic derivative securities called CDOs (collateralised debt obligations) that were sold to investors worldwide. Banks, financial institutions, investors such as hedge funds, private equity funds and even pension funds were left holding these securities. These securities indirectly assumed the risk on the mortgages.

Contrary to the expectations of the financiers, the US housing markets began declining in early 2007, and the subprime borrowers started defaulting on their loans en masse. The pinch was felt not by the banks and institutions that had lent the loans in the first place, but by the investors who had purchased securities such as CDOs whose risks and returns were correlated to the mortgages. Therefore, what started as a localized problem in certain US states (and even neighboourhoods) spread steadfastly around the world as it was found that the CDOs were held by investors across America, Europe, Asia and Australia – just to name a few, two hedge funds floated by Bear Stearns (that have now filed for bankruptcy), Basis Capital (an Australian hedge fund that has folded up as a result), banks in the UK, Germany, France, Singapore and China, and several other investors whose identities and losses may not yet be known. This event has caused a major credit crunch in the financial markets and a crash in all major stock markets resulting in billions of dollars in losses to investors.

What are the implications for India? At first sight, it appears from media reports that none of the Indian banks or financial institutions has taken an exposure through investment in securities relatable to the US subprime markets. However, tangential impact there has been indeed. Foreign investors who had exposures to the US subprime markets have had to liquidate their positions in emerging markets like India to stave off crises overseas. This has led to volatility in the Indian stock markets.

There are lessons to be learned from this episode (that does not seem quite over yet as many pundits predict that the current crisis – or as much as is known of it - is just the tip of the iceberg). Although the Indian financial markets have steered clear of the crisis, there is no room for complacency. Increasing integration of the global markets and crises such as the US subprime markets are indication of the fact that problems emerging in one part of the world can strike the other corners too. Further, with growing sophistication of market players in the use of complex instruments such as CDOs and other derivatives, there is enhanced investor and market risk. Therefore, Indian regulators, primarily the Reserve Bank of India (RBI) and the Securities and Exchange Board of India (SEBI) need to work on adopting a clear policy stance towards dealing with such financial crises well before they strike so that the Indian markets and investors are protected from market contagion.

Originalism to the rescue: The institutional design of the Election Commission

Given the political uncertainty caused by the 'debate' over the 123 agreement, the seemingly abstract debate about the constitutional status of Election Commissioners (other than the Chief Election Commissioner) has gained new importance in view of the possibility of a mid-term poll.

R.C. Iyer, a former Chief Electoral Officer of Maharashtra, has an excellent column in today's Indian Express which sets out the background context and history of this issue succinctly, and argues for political consensus and Parliamentary initiative on the process by which an Election Commissioner can be removed. In his piece, Iyer also criticises the stand taken by Arun Jetley in an Express op-ed published on Aug 21, 2007. For further background information on this issue, see this earlier post on our blog.

The purpose of this post is to highlight the debate in the Constituent Assembly on this issue, as both Jetley and Iyer seem to indicate that the framers did not adequately provide for the existing situation. Here is how Jetley frames the issue:

"Article 324 gives administrative primacy to the CEC. The EC can consist of a CEC and such other election commissioners as may be provided from time to time. There is, however, one fundamental flaw in the Constitution. The Constitution does not provide the qualifications for appointment of an election commissioner or CEC. It merely provides that the appointment shall be made by the president, on the aid and advice of the council of ministers. Members of the EC are thus to be appointed by the political executive."

As I seek to demonstrate, the framers did debate this specific issue, but came to a solution that they thought was the right one, and which in fact guided practice from 1950 to 1989. The situation since 1989 may require us to make changes to the scheme of the Election Commission, but that does not necessarily point to a flaw in the Constitution.

The drafting history of current Article 324 is concisely covered in Justice Sawant's judgment in the Dhanoa case (SS Dhanoa v. Union of India, AIR 1991 SC 1745). The background details of this case are provided in Iyer's column, as well as in the previous blog post on this issue. I extract the relevant portions of the judgment which set out the debate in the Constituent Assembly (from paras 11 and 12 of the judgment):

"In the Draft Constitution, the present Article 324 was numbered as Article 289. It appears from Dr. Ambedkar's introductory comments on the Article (Constituent Assembly Debates, Vol. VIII p. 905) that the Drafting Committee appointed on the Fundamen tal Rights had made a report that the independence of the elections and the avoidance of any interference by the executive in the elections to the legislature should be regarded as a Fundamental Right and provided for, in the Chapter dealing with Fundamental Rights.

When the matter came up before the House, it was decided to treat it as of fundamental importance but to provide for it in some other part of the Constitution and not in the chapter dealing with Fundamental Rights. The House had affirmed without any kind of dissent that in the interests of purity and freedom of elections, the Commission should be free from any kind of interference from the executive of the day. Article 289 (now Article 324) was designed to carry out that part of the decision of the House. Explaining the provisions of Clause (2) of the Article, Dr. Ambedkar stated that there were two alternatives before the Drafting Committee, viz., either to have a permanent body consisting of 4 or 5 members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil.

The Drafting Committee had steered a middle course. What the Committee proposed by the said clause was to have permanently in office one man called the Chief Election Commissioner so that the skeleton machinery would always be available. This was felt sufficient, taking into consideration all exigencies. At the same time, it was felt that when the elections come up, the President may add to the machinery by appointing other members of the Commission.

Commenting upon Clause (4) of the then Article 289 (now Clause (5) of Article 324), Dr. Ambedkar stated as follows:

So far as Clause (4) is concerned, we have left the matter to the President to determine the conditions of service and the tenure of office of the members of the Election Commission, subject to one or two conditions, that the Chief Election Commissioner shall not be liable to be removed except in the same manner as a Judge of the Supreme Court. If the object of this House is that all matters relating to Elections should be outside the control of the Executive Government of the day, it is absolutely necessary that the new machinery which we are setting up, namely, the Election Commission should be irremovable by the executive by a mere fiat. We have, therefore, given the Chief Election Commissioner the same status so far as removability is concerned as we have given to the Judges of the Supreme Court. We, of course do not propose to give the same status to the other members of the Commission. We have left the matter to the President as to the circumstances under which he would deem fit to remove any other member of the Election Commission, subject to one condition that the Chief Election Commissioner must recommend that the removal is just and proper.(Emphasis supplied)

Prof. Shibban Lal Saksena wanted, among other things, the appointment of the Chief Election Commissioner as well as of the Election Commissioners to be confirmed by two-third majority in a joint session of both Houses of Parliament. He also wanted both the Chief Election Commissioner and the Election Commissioners to be removed by the same process, viz., in like manner and on the like grounds as a Judge of the Supreme Court, and non-variation of the service conditions of the Election Commissioners to their disadvantage as was provided for in the service conditions of the Chief Election Commissioner. This amendment was supported, among others, by Pandit Hriday Nath Kunjru. The amendments were not accepted by the House, and the distinction between the Chief Election Commissioner and the Election Commissioners with regard to the security of the service conditions and the procedure of their removal was maintained as was proposed."

It bears emphasis that Professor Shibban Lal Saxena had sought to incorporate the precise change that is now being demanded by several commentators (that Election Commissioners have the same status and removal conditions as the CEC). The reason this was rejected was more because the framers had an alternative conception of the Election Commission: they believed that the institution should have one permanent head and that others could be appointed as and when conditions so merited.

Note also that the Election Commission seems to have performed adequately for nearly four decades in that form. Indeed, when the first two Election Commissioners were appointed, there was controversy over whether the workload justified such an increase. Moreover, the first two people appointed to the post of Election Commissioners did not, through their acts, add weight to the need for such posts.

Here is what the Supreme Court concluded on the facts presented in the Dhanoa case (at para 17):

"The experience of the short period during which the petitioner and the other Election Commissioners were in the Commission ... shows that were it not for the restraint and sagacity shown by the Chief Election Commissioner, the work of the Commission would have come to a standstill and the Commission would have been rendered inactive.

... ... ...In the view that we have taken, namely, that there was no need for the posts of the Election Commissioners at the time the appointments were made and that in the absence of a clear definition of their role in the Commission, particularly, vis-a-vis the Chief Election Commissioner, the appointments were an oddity, the abolition of the posts far from striking at the independence of the Commission paved the way for its smooth and effective functioning."

At para 21, the Court addressed the issue that is at the heart of the current controversy:

"There is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be. It ill-conforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is not to come to a naught."

Jetley's argument that there is a flaw in the constitutional scheme with respect to the Election Commission betrays an ignorance of the way the framers conceived of the institution.

The Dhanoa case also reminds us that a multi-member Election Commission is not necessarily a stronger and more efficient protector of democratic values. Those who are contemplating changes to the existing set-up (or those who recommend such changes) ought to be aware of the actual reasons and motivating logic for the status quo.