Are Indian Court Judgments Copyrightable?

In a very interesting copyright case, the Supreme Court of India recently ruled that there can be no copyright in the raw text of court judgments/decisions. Well, we don't exactly need a court to tell us this, as section 52 (1) (q) of the Copyright Act makes this crystal clear. (Incidentally, Vikram posed this very query to me just a few days back).

The real issue before the court was: how much of work ought one to do to on such "raw" judgments to make them copyrightable? Will mere copy-editing (the mere correction of clerical errors or syntax) in the judgment suffice?

The facts of Eastern Book Company & Ors vs D.B. Modak & Anr (Civil Appeal No. 6472 of 2004) are as below:

Eastern Book Company (EBC) is a leading publisher of law reports/journals in India. One such publication is a law report titled “Supreme Court Cases” (“SCC”), containing all Supreme Court judgments. Raw judgments are copy-edited by a team of assistant staff and various inputs are put in the judgments and orders to make them user friendly. These include an addition of cross-references, standardization or formatting of the text, paragraph numbering, verification and by putting other inputs.

EBC also prepares the headnotes comprising of two portions, the short note consisting of catch/lead words written in bold; and the long note, which is comprised of a brief discussion of the facts and the relevant extracts from the judgments and orders of the Court. EBC argues that the preparation of the headnotes and putting the various inputs in the raw text of the judgments and orders received from the Supreme Court Registry require considerable amount of skill, labour and expertise and a lot of effort and expenditure.

Therefore, "SCC" constitutes an `original literary work’ of the appellants in which copyright subsists under Section 13 of the Copyright Act, 1957 and EBC alone has the exclusive right to make printed as well as electronic copies of the same under Section 14 of the Act. EBC alleges that two defendants (Spectrum Business Support Ltd and Regent Data Tech Pvt Ltd) market software packages that infringe EBC's copyright in SCC. Sprectrum markets “Grand Jurix” (published on CD-ROMs) and Regent Data Tech Pvt. Ltd markets “The Laws” (again on CD-ROMs).

As per EBC, all the modules in the defendants’ software packages have been lifted verbatim from the SCC. In particular, EBC alleged that the defendants' have copied EBC's sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments as published in SCC, along with and including the style and formatting, the copy-editing paragraph numbers, footnote numbers, cross-references, etc. Interestingly, the court adopted the "minimal degree of creativity" as the threshold for copyright protection.

Deploying such a standard, the court held that mere copy editing would not suffice, as this involved mere labour and nothing else. However, since there is some creativity involved in the making of headnotes, such headnotes would qualify for copyright protection. (Incidentally, Mr Surendra Malik, the owner of EBC writes the headnotes himself! I had the great pleasure of studying with his son, Sumeet Malik in law school. Sumeet joined his dad at the EBC, after a stint at the Franklin Pearce Law Center [FPLC], a school reputed for its IP program. Sumeet was the one who alerted me to this judgment).

Unsurprisingly, the judgment of the court rambles on for 100 odd pages, with the court religiously reproducing arguments of counsel and the various case law that they cite. The real crux of the decision is only about 4 pages!! This seems to have become a way of life for our judiciary, with none of them paying any heed to the great bard who pleaded that "brevity was the soul of wit".

I want to highlight one inconsistency in the court's judgment. The Court appears to endorse a standard enunciated in a recent Canadian Supreme Court case (CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada). This case strikes a "middle path" between the two extreme doctrines enunciated by courts (in the US and elsewhere) to explain as to when a work can be considered "original" enough to merit copyright protection. At one extreme lies the "sweat of the brow" approach to originality, which the Canadian court held as too low a standard.

Such a standard (which entitles anyone expending "labour" and "capital" to claim copyright protection) shifts the balance of copyright protection too far in favour of the owner, and fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works. At the other extreme, we have the "creativity" standard, which implies that something must be novel or non-obvious - concepts more properly associated with patent law than copyright law. The court therefore adopted a "middle path" approach by enunciating an "excercise of skill and judgment" standard.

In essence, the court held that to claim copyright in a compilation, the author must produce a material with "exercise of his skill and judgment" which may not be creativity in the sense that it is not novel or non-obvious, but at the same time it is not the product of merely labour and capital. The Indian Supreme Court endorses the above standard of the Canadian Supreme Court (that the appropriate standard is neither one of "sweat of the brow" nor of "creativity") and holds that: "Creative works by definition are original and are protected by copyright, but creativity is not required in order to render a work original. The original work should be the product of an exercise of skill and judgment and it is a workable yet fair standard".

Yet, a few paragraphs later, the Indian Supreme Court notes:

“novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity.”!!

Under such a standard, the court held that mere copy-editing (clerical corrections, syntax etc) wouldn't qualify as they did not involve "creativity", but skill expended in writing head-notes, footnotes and editorial notes would qualify. The Supreme Court therefore “restrained the respondents from copying head notes, footnotes and editorial notes appearing in their law journals.”

The Harbhajan verdict: Why Level 2.8 charge against him fails to carry conviction

I had suggested in my last post that the speculation that Harbhajan Singh might be imposed only fine in lieu of match-ban by the Appeals Commisioner Justice John Hansen was wrong because for a level 3.3. offence -which Singh was found to have committed by the Adjudicator, Mike Procter - the penalty is only match-ban and not fine. I also suggested that it was possible to substitute harsh penalty with a lighter one, if it pertains to the same class of offences, by reducing the finding of severity or seriousness, but it is not possible to substitute one serious offence with another minor offence, so as to mitigate the penalty.

Well, I have been proved wrong, because, I did not anticipate that Justice Hansen would be confronted with a statement of agreed facts, and an admission from Symonds himself that he did not consider Singh's offence as a level 3.3. offence.

Having said that, I must add that I am not comfortable with Justice Hansen's reasoning.

His finding that the allegation of Level 3.3. offence against Singh fails because of the reasons he cited is persuasive.

However, his finding that Singh committed Level 2.8 offence on the basis of his own confession that he used offensive language against Symonds appears to be on a weaker foundation.

Let's for instance, accept that Singh used teri ma ki. The words are offensive in India, and would have been found offensive to any reasonable and ordinary person in India. But in Australia? Symonds and other Australian players, as Justice Hansen himself found out, did not understand the language at all, though Symonds admitted the words could have been probably used by Singh. Justice Hansen recognises the cultural differences that characterised this exchange between Singh and Symonds, but he was perhaps reluctant to take these cultural differences to their logical conclusion. In Paragraph 51, he says offensive language is to be gauged by its effect on a reasonable or ordinary person, that is, not in terms of the intentions of the user of offensive language, in this case, Singh. How does Justice Hansen treat the reasonable or ordinary person in India and Australia alike, overlooking the cultural and linguistic differences, which could result in different levels of comprehension of an expression?

In Paragraph 56, Justice Hansen accepted the claim of the Counsel for Cricket Austrialia that Symonds took Singh's language to be offensive and seriously insulting, but did not consider it falling under Level 3.3. Justice Hansen failed to ask the Counsel, Mr.Ward, how he could have found the language offensive, when he did not understand the meaning of teri ma ki.

Thus by Justice Hansen's own reasoning, applying the balance of probability standard - rather than the standard of beyond reasonable doubt - the level 2.8 charge against Singh must have also been found to be not proved. After all, the Australian side found the language offensive because it felt it was racial. Once it was found that it was not racial, then the basis for it being called offensive also disappears.

To be precise, the level 2.8 charge was Justice Hansen's inference, and not born out of an allegation from Australian players, thus raising the question whether his judgment met the ends of justice.

UPDATE: PLEA BARGAINING THROUGH THE BACK DOOR?: I maintain that Justice Hansen's reasoning in finding Singh guilty under Level 2.8 is flawed. But I don't condone BCCI's desperation to remove the racial slur. ICC Conduct Rule 5.6 clearly says Plea Bargaining is not permitted. However, by confessing to have uttered the offensive word, (which he has not done so before Procter) has not Harbhajan Singh plea bargained, and invited a lesser kind of penalty from Justice Hansen? Rule 5.6 clearly circumscribes the powers of the Adjudicator. Justice Hansen,as Appeals Commissioner, however, appears to have expanded his discretionary powers inexplicably, and allowed plea bargaining by Harbhajan Singh, without actually calling it so. Obviously, the ICC Conduct Rules need clarity and fine-tuning.

The Organ Trade Debate on IBNLive

In light of the ongoing illegal kidney trade scandal, CNN-IBNLive had a debate on the question of organ trade. Some interesting points were made by the anchor in support of legalizing it including the right to life of the recipient. Several of the panelists held a contrary view.

Reading the transcript, I was intrigued by some of the Q&As between the anchor Sagarika Ghose and Colin Gonsalves. Here are some excerpts:

“Ghose: But what about surrogate mothers? They usually rent out wombs for money.

Gonsalves: That is not donation of an organ. In the case of surrogate mothers, the organ is taken out and transplanted in someone else's body. The hospitals are registered both for removal and transplantation simultaneously. On the contrary, there is seven years of imprisonment for sale of organs in this country.

…Why couldn’t a person dying of kidney failure go to the open market and purchase it?

To which Gonsalves replied saying that if someone needs an organ and his friends and family are not willing to step forward then it is too bad for him.

Ghose: But don’t people buy blood?

Gonsalves: Blood donation is not like taking a part of your body away. It does not affect you that severely.”

There are two questions here. (1) Does an egg, sperm or blood constitute an organ? The definition under the Transplantation of Human Organs Act, 1994 states: “"human organ" means any part of a human body consisting of a structured arrangement of tissues which, if wholly re- moved, cannot be replicated by the body”. Egg, sperm and blood could not be termed ‘structured arrangement of tissues’, so he is right that they would not constitute organs. However, with regard to blood, its status has nothing to do with severity.

(2) Does the time gap between removal from the donor and transplantation affect the legality of the procedure? The relevant provision is cited below:

"Punishment for commercial dealings in human organs: Whoever (a) makes or receives any payment for the supply of, or for an offer to supply, any human organ; (b) seeks to find a person willing to supply for payment any human organ; (c) offers to supply any human organ for payment; (d) initiates or negotiates any arrangement involving the making of any payment for the supply of, or for an offer to supply, any human organ:, (e) takes part in the management or control of a body of persons, whether a society, firm or company, whose activities consist of or include the initiation or negotiation of any arrangement referred to in clause (d); or (f) Publishes or distributes or causes to be published or distributed any advertisement,-- (a) inviting persons to supply for payment of any human organ; (b) offering to supply any human organ for payment; or (c) indicating that the advertiser is willing to initiate or negotiate any arrangement referred to in clause (d), shall be punishable..."

Though he is right that organs are not stored except for very short periods owing to technical reasons, there is nothing here to suggest that the sale would become legal if only the entire procedure were to be executed in one go.

The moral arguments against it were that the thought of people selling their organs is quite repugnant and if allowed to do so, only the poor would be selling their organs for money. The first is a matter of sentiment (imagine donors hawking their kidneys on eBay!) but the second is debatable. Are those selling them for money going to suffer more than those donating it currently for altruistic motives? If not, how is the ban going to help the poor? Ghose did not however ask these questions.

Today’s HT has an op-ed by Lalita Panicker on the same issue. She notes a number of details of this sordid affair but strangely ends up berating the government for not raising healthcare spending. Huh? I am still trying to figure out what the connection is.

Digitising Legal Scholarship - II

A couple of weeks ago, I wrote a post on the sorry state of digital archives of legal scholarship in India. Since then, I have had many responses on archives and searches that do exist at the moment, and several initiatives being taken in this direction. This post is to summarize these responses and acknowledge these initiatives.

Shamnaad has already introduced Sushant in a previous post. Sushant has made Supreme Court cases searchable in a user-friendly fashion that should put some of the subscription sites to shame. Indian Kanoon, his search engine promises to include High Court decisions, Constituent Assembly Debates, Law Commission Reports and journal articles in its database very soon.

The other person I want to introduce is Devranjan, a third year student at National Law School, Bangalore. Along with some other students, he has founded the 'Open Book Society'. Their purpose is to digitize and make searchable archives of important Indian Journals. They have already managed to do this for the Central India Law Quarterly and the National Law School of India Review. They need prior permission from journals to digitize them. As I understand it, they put in all the effort into doing so themselves - the Journals just have to agree. This is a fantastic initiative and deserves all praise and help. This is the message he asked me to pass on:

'Would u be able to help the society in any way for instance
raising money, getting journals, or just giving us
better visibility?'

If anyone wants to get in touch with Devranjan, please let me know and I will put you in touch with him.

Here is the list of freely available articles, indices and search options that I found out in the last two weeks. Only some of this is really good quality, but hopefully the other established journals like the Journal of Indian Law Institute, Indian Journal of International Law, the journal section of Supreme Court Cases, Cochin University Law Review, Indian Bar Review and other journals published by various law schools will learn from the Central India Law Quarterly and let Devranjan's team digitize their archives.

Freely accessible online articles:
Central India Law Quarterly
National Law School of India Review
Indian Journal of International Law (only table of contents is archived)
Scholasticus - Journal of National Law University (only table of contents is archived)
National Law Institute University WebJournal
The Practical Lawyer
Lawyers' Collective Magazine (only current issue is online - I could not locate the archives)
Combat Law
Manupatra Articles
IndLaw Articles
Legal Services India Articles

Free search engines:
Indian Kanoon
NLSIU Journal Index

Please let me know if I have missed out anything and I will
update these lists.

The reach of the Indian State and Legal System in Rural India: Findings of an MIDS study

Today’s Hindu features an article by two academics from the Madras Institute of Development Studies (MIDS) which reports the findings of an interesting study conducted by the institute. The question the researchers were concerned with was the reach of the Indian state in rural India, and their report focused on the role of panchayats in three states (West Bengal, Tamil Nadu and Karnataka). Although the empirical and research basis for the study seems thin (a fact that the authors draw attention to at the outset), its conclusions suggest that the importance of panchayats may be growing owing to a number of factors. The study uses techniques of ethnography, and the short overview of its methods, contents and conclusions provided in the article make for interesting – and intriguing – reading. (The full paper, if available, should make for even more interesting reading, but the website of the MIDS does not seem to provide links to the listed working papers). The authors make a compelling argument that the issue is crying out for far more elaborate study and analysis.

Although Panchayati Raj was institutionalised by the 73^rd Constitutional Amendment more than fifteen years ago, legal scholars have not focused upon this issue, especially in more recent years. As the article suggests, observers of - and participants in - India’s political and legal system may be ignoring panchayati raj institutions at their own peril.

'Pith and Substance' in the Characterisation of Statutes: A Comparative Study

Professor Tony Blackshield, Professor Emeritus at Macquarie University, will deliver a lecture on the above subject at a seminar being organised by the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi, on February 1 at its Conference Room. An abstract on the seminar, prepared by the Centre, reads as follows:
A federal system involves a distribution of legislative powers, so that different legislatures have power to enact statutes on different subjects. Hence statutes are often challenged on the ground that they relate to a subject on which the enacting legislature has no power to make laws. For the purpose of resolving such questions under the Canadian Constitution, the nineteenth-century Privy Council introduced the metaphor of "pith and substance" – thus giving expression to an essentialist idea that every statute has one uniquely "real" or "true" character. Modern (or postmodern) federal systems take a much more flexible view of such questions. The High Court of Australia has achieved flexibility by rejecting the metaphor of "pith and substance". The Supreme Court of India has achieved the same flexibility by retaining the metaphor, but reinterpreting it in a distinctive way.

Republic Day Awards: Why Balaji Raghavan needs to be reconsidered

This year's R-Day awards, as usual, have become controversial. If the non-award of Bharat Ratna was preceded by open lobbying by almost all sections of political spectrum, not all the names of the awardees in other categories suggest a rational selection process.

Justice Rajinder Sachar claimed he turned down the honour on the principle that the government should not be giving away such awards. "Governments in general should govern and not be involved in giving awards", he has said. He felt that the awards had value if they were conferred either by peer organisations or by the public but not by the government as it unnecessarily became controversial. He also added that the awards are against the principles of equality and democracy. He also equated refusing the award with keeping public life free from corruption. (As Justice Sachar's name does not figure in the list of this year's awardees, I presume the Government must have dropped his name, after his refusal).

In the light of Justice Sachar's refusal, I decided to revisit the Balaji Raghavan verdict of the Supreme Court's Constitution Bench, to understand how the Court addressed concerns similar to those raised by Justice Sachar.

Let me take Justice Sachar's arguments against the awards, as reported by Asian Age (27th Jan.) and examine how Balaji Raghavan addressed them.

1.Giving awards is alien to the principal function of the Government, that is, to govern.

Balaji Raghavan did not address this issue at all, as the petitioner apparently did not raise it.

2. Awards by Government leads to controversies:

In Balaji Raghavan, the Court held as follows: "It has been contended before us that over the years, the purpose for which these awards were instituted has been diluted and they are granted liberally to persons who are undeserving of them. The perversion of the system was the motivating factor behind the Bill introduced in Parliament by Acharya Kripalani to abolish these decorations. It is to be remembered that Acharya Kripalani was the Chairman of the Sub-Committee on Fundamental Rights where the present Article 18(1) was originally formulated. He was, therefore, fully aware of the exact import of Article 18(1). It is significant that in the debates in Parliament, the thrust of his attack was on the misuse of these decorations. However, it is axiomatic that the misuse of a concept does not change its inherent nature."

The Court then went on to suggest a mechanism (a high-level committee appointed by the PM in consultation with the President to suggest names, which should have the approval of the PM and the President (as per Justice Kuldip Singh's concurrent opinion) to prevent misuse of these awards. Thus essentially, the Government will have a dominant say in the selection of awardees. The Court-proposed mechanism does not seem to be a fool-proof method to avoid controversies of the kind we are witnessing. Do all awardees invite respect rather than suspicion? It is difficult to say yes.

3. Awards are against the principle of equality and democracy:

In Balaji Raghavan, the Court held: "The National Awards are not violative of the principles of equality as guaranteed by the provisions of the Constitution. The theory of equality does not mandate that merit should not be recognized. Article 51A of the Constitution speaks of the fundamental duties of every citizen of India. In this context, we may refer to the various clauses of Article 51A and specifically clause (j) which exhorts every citizen "to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement." It is, therefore, necessary that there should be a system of awards and decorations to recognise excellence in the performance of these duties. (My view: This part is hardly convincing. It is not clear why the Court felt that the Government, by virtue of Article 51A must recognise excellence and achievement)

The Court added: "Hereditary titles of nobility conflict with the principle of equality insofar as they create a separate, identifiable class of people who are distinct from the rest of society and have access to special privileges. Titles that are not hereditary but carry suffixes or prefixes have the same effect, though the degree may be lesser. While other Constitutions also prohibit the conferment of titles of nobility, ours may perhaps be unique in requiring that awards conferred by the State are not to be used as suffixes or prefixes. This difference is borne out of the peculiar problems that these titles had created in pre-independent India and the earnest desire of the framers to prevent the repetition of these circumstances in Free, Independent India."

(My view: It is agreed that awards are not used as titles, and as suffixes or prefixes. But how does this restriction matter if the awardees do make use of them in their professional or personal lives for personal advancement or in claiming special privileges as most of them very often do)

4. Awards are inconsistent with freeing public life from corruption.

As the Government influences the selection process, it cannot be denied that there is a quid pro quo between some of the awardees, and the Government. But the Court did not address this issue at all in the judgment.

Worse, many of the suggestions of the Court in that judgment have not been followed at all by the Government. The Court wanted the number of awards to be restricted to 50 (J.Kuldip Singh). This year's awards number 119. The Government had amended the norms after the Judgment, as in its view, there are far too many people to be recognised for their excellence.

More important, the Court had suggested that an important anomaly be removed. "The criteria for awarding these decorations are not very clear. The Bharat Ratna is to be awarded for exceptional service towards the advancement of art, literature and science, whereas the Padma Vibhushan is to be awarded for exceptional and distinguished service. Bharat Ratna is for exceptional service and Padma Vibhushan is for exceptional and distinguished service. Exceptional and distinguished service must be given the number one decoration and not number two. So, there is a patent fallacy in this type of criteria which has been laid down." One does not know to date whether this anomaly has been removed.

It is not clear why the Government has not made the criteria for selection of awardees transparent, even if there are strong reasons not to divulge the names of persons in the high-level committee to suggest the proposed awardees. Following Balaji Raghavan judgment, a committee was appointed to recommend suitable criteria and procedure. It is only following this committee's report, the present system has been put in place. It is important that this committee's report is in the public domain, as it is not in the Home Ministry's website. Simply providing the list of awardees makes no sense: the Government ought to mention on its website, why each awardee deserved selection.

Supreme Court Admissions (to be heard or simply read)

In my last post, I questioned the wisdom of certain filing rules (or non-rules) regarding page limits and annexure requirements at the Supreme Court. I think the lack of better defined rules on these two issues weakens arguments and ultimately the decisions rendered. I got some push back in comments, but I still feel the same way about these filing rules (although certainly not steadfastly so). In the same spirit, I’d like to get people’s thoughts on the utility of Monday-Friday days (i.e. admission days) at the Supreme Court. My current feeling about this is that although this tradition has some value, it is limited and comes at great cost, and reforms should be taken to either move away from it entirely or at least refine these days to more closely tailor them to their perceived benefits.

I know of no other highest court in the world that has the same practice of the Indian Supreme Court of allowing oral argument for every matter that is placed before it for admission. This doesn’t mean it shouldn’t be done, but I think this fact should immediately draw scrutiny to the practice (which constitutes about 2/5ths of the Supreme Court’s courtroom time). Also, speaking with Supreme Court lawyers I know there is some questioning, frustration, and occasional expression of embarrassment about the tradition amongst some of those who practice there.

On a typical Monday or Friday one courtroom of the Supreme Court may go through a hundred admission matters. My understanding is that most of these cases have been heard in the lower courts and are being appealed, although some are being filed before the Supreme Court as a court of first instance (which is the case for many PILs for example).

The scene that then unfolds on these days is quite dramatic to any outsider of the Indian legal system. This is my take: Lawyers line up in the court to make their admission argument. The senior justice will begin to listen to the argument and then usually cut them off very quickly. Generally they will do so saying that they have no argument. The lawyer will ask their lordship (almost always using this word at this critical juncture) to give more consideration to their case. Justices will then often criticize (even berate) the lawyer for bringing the case and wasting the Court’s time – the case is then dismissed after a couple more failed attempts by the lawyer to change the Court’s mind. Alternatively, if it is a good case there is a bit of discussion and then the case is relatively quickly placed on the Court’s calendar – in some instances this discussion might drag on for some while if facts or points of law are unclear. In the third instance, the Court will sometimes initially seem to quickly dismiss the case, but the lawyer will succeed in drawing the justice to some fact they missed or misunderstood and successfully get the case placed on the Court’s regular calendar. This is the relatively rare case, but it does happen with some frequency. This is a bit reductionist, but I think gets to the basics of what is going on during admission days.

My question is whether this oral argument admissions tradition is a better use of the Court’s time than having an all-written admission procedure like other highest courts do?
To begin to answer this question we have to ask, why does this practice exist? One explanation is that is comes down to distrust. First, there is an implicit distrust of the lower courts. The Supreme Court can’t feel confident that the High Courts have aired the matter thoroughly and so another oral argument at admissions is necessary to double-check. This probably wouldn’t be necessary if not for another type of distrust. That is the fear that lawyers haven’t properly put forward their argument in their filings. If the justices can’t be sure that the filings clearly and concisely articulate the argument than they need to give the lawyers a chance to redeem themselves at the hearing. Finally, I think there is some implicit distrust by the justices of their own system of venting these filings before argument. Justices generally read these admissions matters the night before. Some have clerks write notes on them that they then go through. However, with dozens of cases each admissions day justices don’t have enough time to go over each case as carefully as they might like and the clerkship system is so new and underdeveloped here (some justices don’t have them, while the others have only one) there is a fear that they have missed something. Therefore, it makes sense to give the lawyers another chance to argue it out. Of course, if the justices didn’t have to go to court on Monday and Friday they could sit in the office only reading these filings and some of these time constraint fears might disappear.

Another argument for oral argument for admissions is the idea that everyone should be able to come to the Supreme Court and be heard by a justice (not just read, but actually heard). It is a populist impulse that has done much to create the Court’s image as the people’s Court. It also serves to create a certain transparency for the Court. If the Court dismisses what seems like a valid case there is some pressure to give at least a verbal reason why, where if the procedure was entirely written it would arguably be easier to do so without comment or with more cryptic language. Admissions day therefore confers a certain type of legitimacy on the Court, and a populist one at that. However, it is unclear to me how much ending this practice would really hurt this legitimacy. Many petitions are dismissed with what amounts to no or little reason oral or otherwise, most Indians probably don’t even know the Court has this oral practice, everyone could still get to have their case heard (not just read) at the High Court level, and the Court has famously taken letters from those writing it for help as petitions (thereby suggesting that the most downtrodden who need the Court’s help would still be given as fair a hearing by the Court if the process was written and that many of the poorest in the country can’t make it to the Supreme Court anyway and can only write in). Further, I think some petitions are unfairly admitted on admissions days simply because they are argued by a prestigious lawyer. Some senior lawyers have gained such a reputation that it becomes difficult for justices (who are often younger than these seniors and less famous) to dismiss their cases no matter their merit. It would be easier to do so in an all-written proceeding where the rest of the legal community is not so physically gazing in as spectators.

Finally, I have heard some argue that the practice of oral argument for admissions is practiced only because of the Supreme Court Bar. There are a lot of lawyers at the Supreme Court and they gain many billable hours (and some prestige in they eyes of the client) by appearing at the Supreme Court for admission matters. Indeed, for some lawyers this comprises the bulk of their courtroom time as they actually end up arguing very few cases on regular hearing days. If Monday-Friday days were abolished it would adversely affect the political economy of the bar and few justices want to be in the position of upsetting these lawyers. This argument could certainly have some merit, but I don’t know the ins and outs of the bar well enough to say much about it.

It strikes me that a lot of the justices’ time is wasted on admissions days (indeed, most of it - and we are talking 2/5ths of their in-court time). With the backlog of cases before the Court it seems that there needs to be serious thinking about whether it’s worth their time vis a vis other ways they could be spending it – this is a question of what is best for the system for the delivery of justice. Perhaps, this doesn’t have to be an all or nothing choice though. The Supreme Court categorizes its cases into a variety of different types on its computer system (property, civil service, PIL, etc.) I think it would be worth a study to find out from which categories of cases it most often dismisses and which it most often accepts (if possible it would be great to find out which types of cases the Court most often changes its mind on in oral argument – this is hard to gather objectively, but a more subjective survey of justices could probably lend some light on the issue). If it turns out the Court dismisses the vast majority of property matters (and is rarely swayed by oral arguments) perhaps it’s smart to only have written admissions for appeals involving property matters. Alternatively, perhaps for PILs, especially if they are being heard for the first time, there should be oral arguments for admissions. This is just one idea about how to find potential middle ground to both improve efficiency and reduce the distorting effect of well-known lawyers in admission matters, but keep some of the benefits admissions days offer. I’m sure others have more developed thoughts about how to streamline the process if not get rid of it altogether, or alternatively more solid defences of the current system than my generalizations. Would love to hear them.

Are Youth Bulges the Root Cause of Terrorism?

Arundhati Roy has a new article published in Outlook (it says it is an excerpt of her lecture). This one is not only longer than her previous write-up ‘Scandal in the Palace’ (which was debated on this blog) but extends much further as she launches into one long and uninterrupted rant against much of modern society and civilization. Even though her moral opprobrium (which I naturally share) of state-sponsored/ abetted genocide is justified whether it is the one orchestrated against Armenians by the Ottoman empire or against Muslims in Gujarat, and her pacifist view that all wars and armed interventions are driven by an atavistic human desire to commit mass murder is a noteworthy sentiment, she takes the analogy much further. In her characteristically acerbic style, she vents against all symbols, indeed the very idea of progress. No one is spared - in her worldview, middle-class materialism and a cultivated indifference to larger socio-political concerns are apparently signs albeit early ones of a predilection for (future) genocide, the SC has partaken in ecocide which is again a prelude to genocide and SEZs are a present-day version of the Nazi notion of lebensraum (‘living space’, i.e., displacing ‘more primitive/defeated peoples’ to make way for the superior German race). Amidst all the vituperative rhetoric, I was unsure where her peregrination was headed until the very end – apparently, she concludes by defending naxalism (?!) which, in case she failed to notice, is only a recipe for more armed conflict and according to her own perspective, genocide! The shock value of her remarks perhaps owes more to the fact that we do not have that many well-educated liberals in India penning English commentaries (at least in the mainstream media) extolling old-fashioned nihilism (the trendy, up and coming nihilists prefer to conduct their discourses on seedy websites and their lingua franca is often south asian vernaculars or Arabic).

That aside, the purpose of this post is not so much to respond to her fulminations but to elaborate on another article by Gunner Heinsohn that came out a couple of months ago regarding the impact of the ‘youth bulge’ on genocide (I only mention Roy because her talk of genocide reminded me of this). Heinsohn is a professor of comparative genocide at the Raphael-Lemkin Institute, University of Bremen. To begin with, the term ‘youth bulge’ as defined by Goldstone (who works in the field) stands for an unusually high proportion of 15-24 year old youths (Heinsohn extends it up to 29) relative to the total adult population. He says that ‘Most major revolutions—the English evolution of the seventeenth century, the French revolution of the eighteenth century and most twentieth-century revolutions in developing countries—have occurred where exceptionally large youth bulges were present’. The reason? ‘Rapid growth of youth can undermine existing political coalitions, creating instability. Large youth cohorts are often drawn to new ideas and heterodox religions, challenging older forms of authority. In addition, because most young people have fewer responsibilities for families and careers, they are relatively easily mobilized for social or political conflicts.’ None of this is really news – our own political leaders are quite familiar with this idea which is why, on internal security matters, they often hold forth on topics like ‘bringing the disaffected youth back to the national fold’, youth employment schemes, etc. Heinsohn not only cites other related reasons for this phenomenon but takes the argument further. Caldwell summarizes his basic arguments succinctly:

“In Mr Heinsohn's view, when 15 to 29-year-olds make up more than 30 per cent of the population, violence tends to happen; when large percentages are under 15, violence is often imminent. The "causes" in the name of which that violence is committed can be immaterial. There are 67 countries in the world with such "youth bulges" now and 60 of them are undergoing some kind of civil war or mass killing.

The problem, rather, is that in a youth-bulge society there are not enough positions to provide all these young men with prestige and standing. Envy against older, inheriting brothers is unleashed. So is ambition. Military heroism presents itself as a time-honored way for a second or third son to wrest a position of respectability from an otherwise indifferent society. Societies with a glut of young men become temperamentally different from "singleton societies" such as Europe's, where the prospect of sending an only child to war is almost unthinkable.”

He applies this model to various conflict-ridden countries across the world such as Iraq, Israel/Palestine, Sudan, Pakistan/Afghanistan etc. (click here and here for links through Wikipedia to documents he has authored). Thus, according to him, Palestinian violence is not explained by the Israeli occupation, poverty or humiliation but by the rapid growth of its population (which of course fits neatly with the neoconservative worldview and I suspect, is the reason why his article figured in that magazine); civil war that began in the mid-‘70s and raged through the ‘80s in El Salvador was not driven by poverty or hunger - in fact, the conflict was preceded by a 27% increase in per capita income – but because of the youth bulge; the internecine bloodletting in Iraq is the result of an uninterrupted chain of youth bulges since 1950 and is being run by ‘superfluous’ males who are no longer involved in war or organized genocide… and so on. He scoffs at the notion that poverty and radical Islamic rhetoric are to blame for Pakistan’s current predicament:

“Pakistan’s growing wave of internal terror that led Pervez Musharraf to assume dictatorial powers on November 3 is commonly blamed on the country's poverty. Such an assessment, however, is not supported by the facts. Between 1979 and 2007, per capita income in Pakistan jumped from 600 PPP-$ to 2,600. Other observers blame Pakistan's domestic chaos on religious leaders preaching hatred. But why would Pakistanis respond to radical rhetoric at a time when prosperity is improving their quality of life? However, prosperity itself may stoke the fires of civil conflict when it is accompanied by a "youth bulge"…”. His explanation of the cause:

“General Musharraf was born in 1943. In his cohort of 60 to 64 year olds, Pakistan has just 1.6 million men. However, in the prime fighting age cohort of 20 to 24 there are 8.6 million potential warriors who are followed by 10.7 million boys aged 0 to 4. This rapid upsurge, which I call demographic armament, translates into every 1,000 pensioners being followed by 5,400 men of military age, who in turn will one day be replaced by 6,700 boys. The United States, by comparison, is in demographic neutrality. Every 1,000 older American men are succeeded by 1,570 young men, who will in turn be succeeded by 1,540 boys. The United Kingdom is in demographic decline: 1,000, to 1,186, to 970. My native country Germany provides an example for demographic capitulation. It goes from 1,000 via 1,150 to 820.”

And his prediction for the future of the region: “Pakistan's bloodletting will not be ending soon. A burgeoning population of young men shares the Taliban's dream of a nuclear-armed Islam, with a united Afghanistan and Pakistan as its core territory and led by a new Caliphate. Although the fertility rate among Pakistani women has declined from close to six in 2000 to an average of four children each in 2007, their sisters in Afghanistan are still having close to seven. That is why in the Hindu Kush every 1,000 pensioners are followed by 5,570 men of best military age and 11,130 boys aged 0 to 4. This means the troubles in Pakistan and Afghanistan will be with us for at least 20 more years.“ European pacifism as a policy, in his view, is a direct result of the millions of individual decisions in those countries to not have children. This also explains the marked reluctance of NATO member-nations in Europe to contribute more troops or to take more active part in combat operations in Afghanistan as has been reported recently.

Thus, he says that religion is only a pretext to ‘cloak bloodshed in respectability and honor’. “The cruelties of terrorism are not caused by pious books, or by those who might abuse those books. They are caused by people who do not want to appear as common killers. They are the ones who feel the urge to dust off the sacred texts. Therefore, the rage of young Islamic males cannot be assuaged with explanations of the “actual” or “really intended” contents of the archaic volumes. The unceasing flood of articles about the evil influence of radical Islamic teachers simply reverses cause and effect. Where at first there are no suitable masses, even agitators of genius achieve practically nothing. And even where it can be shown that Islamic schools manage without terrorism in their curriculum, this does not prevent their graduates from fighting for a new Caliphate.” And quoting an example of Spanish conquistadores from medieval history (which I will not repeat here for reason of space), he suggests that political compromise or even capitulation will not be enough to satiate this urge for violent adventure.

The concept is attractive and has created quite a buzz. Yet, it has also been criticized as supporting an ethically questionable hands-off policy to deal with on-going conflicts. He however seems to suggest that that is not what he means, only that no workable political approach has emerged so far.

Is his claim true for India as well? Being such a heterogeneous subcontinent with a number of historical and localized conflicts, surely the truth of his propositions could be tested here. Henrik Urdal who has written upon this question in relation to conflicts across the world has also conducted one such study in India. His report, based on a compilation of conflict-related data from across the country, concludes that 'youth bulges increase the risk of armed conflict, particularly in states with large male compared to female populations'. He finds the same result to be true for other forms of violent political events. He does not however look into this feature in troubled spots individually which, given their own unique situations and characteristics, may throw more light upon this question. Surprisingly, I could find no studies of that nature. Nevertheless, looking at the census data of some of the conflict-ridden states gives us some idea about the issue (Heinsohn uses fertility rates which are not readily available for the early decades; population growth rates ought to work as a reasonable proxy):

	Decadal Population Growth Rate
State	1961-71	1971-81	1981-91	1991-2001
Jammu & Kashmir	15.62	45.46	28.91	30.46
Punjab	21.70	23.81	20.88	19.76
Nagaland	39.84	50.00	56.20	64.43
Assam	34.95	23.36	22.74	20.30
Mizoram	24.81	48.49	39.76	29.32

Applying a 15-20 year lag between the peak of the insurgent movement and the zenith of the annual population growth rate curve provides interesting insight.

Jammu and Kashmir: The J&K population growth rate probably peaked in the early-to-mid ‘70s, so the impact of the youth bulge would be expected to be most intensely felt in the late ‘80s to early ‘90s which is exactly around the period when violence was at its height; its subsequent decline could also be attributed to the fall in growth rate. It has however not ended despite a considerable decline in the growth rate, a fact that may be attributed to the high absolute rate (despite the decline) as well as other factors such as external infiltration.

Punjab: A similar profile is seen here. The growth rate probably peaked by 1971 and the effects of the bulge would be expected by the mid-‘80s which again matches the timing of the violent aftermath of Operation Blue Star (in light of this, is Blue Star which is routinely blamed for the escalation the paramount cause of it after all?). The falling growth rate may have been instrumental in its demise by the early ‘90s.

Nagaland: The stubborn persistence of this conflict through the decades could also be attributed to incessant series of youth bulges through the decades. The trend, if this theory is true, indicates that no resolution must be expected in the near future which may lend support to the Center’s continuing ceasefire with the dominant I.Muviah faction.

Assam: In case of Assam however, the growth rate was in inexorable decline through the ‘70s which ought to have translated into a peaceful ‘90s which was not the case – there was considerable violence through the early ‘90s and ULFA, though no longer as potent, continued to retain enough potential for mayhem even through the first decade of the 21^st century.

Mizoram: This case is more problematic. The population curve must have peaked in the early ‘70s, a fact that would have favored the greatest likelihood of violent conflict in the mid-80s which, contrary to that expectation, was precisely when the Mizo accord was signed (1986) bringing the whole saga of militancy to an end. In a sense, the accord represented the Center’s capitulation by acceding to a long-standing demand for statehood; yet if this analysis and Heinsohn’s theory were correct, violence being an end in itself, the prospect of such an accord ought to have met with outrage, rejection and the voicing of other maximalist demands to frustrate it failing which rebellious youth would have derided it as a ‘sell-out’ and continued their ‘resistance’. Reality was however otherwise and the theory clearly cannot account for it.

In summary, it appears that youth bulge is an important factor in sustaining violent conflicts and preventing the restoration of political stability. However, such problems are multidimensional and it is only one (albeit an important one) amongst several factors. Heinsohn’s idea of it as the nidus upon which all else coalesces to create the storm may therefore not be quite accurate. For the same reason, political efforts can play an effective role though they may not succeed in every instance.

Stock Market Turmoil and the Role of Regulation

Riding the downward tide of the global capital markets, Indian stock prices too tumbled 1,408 points on Monday, January 21, 2008 making investors poorer by $155 billion in a single day. The rout continued on Tuesday as well, before the markets partially recovered towards the end of the week. Reports indicate that investors have lost Rs. 18.05 trillion in 7 days; many of them saw their life-savings being wiped-out while some went bankrupt. The Gujarat police despatched a posse of policemen to secure Ahmedabad’s largest lake – yes, there is a connection – due to the fear of suicides by distraught investors and brokers.

Reasons

Several reasons have been proffered for the Indian stock market crash. First is the fear of a recession in the United States (US) sparked by the subprime crisis, which is expected to have an impact on the global markets. The Economist reports (in the general context of the global crash):

“For some, this merely represents a case of stockmarkets catching up with reality. It is now a year since the subprime crisis first emerged. In that time central banks have cut interest rates, investment banks have announced big write-offs and various rescue packages have been suggested. But the end of the crisis is not yet in sight. Indeed, another leg of the debt crisis may be under way, if problems of monoline debt-insurers (an obscure but important bunch who guarantee the timely repayment of bond principal and interest when the issuer defaults) are not contained. If the American economy is not now in recession, it is close enough not to make a practical difference to sentiment.

For much of past year equity investors knew those salient facts but chose instead to take comfort from three more bullish factors. First was that the Federal Reserve would rescue both the markets and the economy, as it has done so often before. Second, even if the American economy faltered, the rest of the world (particularly Asia) could take up the burden of producing global growth. Third, given the global picture, corporate profits could stay high.

All three assumptions are now coming under question. … An indication of the change in sentiment came when America's administration announced plans for a fiscal stimulus on Friday. In good times, that would have kick-started a market rally; in the current mood, the package was seen as a sign of desperation.”

The second reason attributed to the Indian stock market’s decline is massive divestment of Indian stocks by hedge funds and foreign institutional investors (FIIs) either to cash in on the previous bull run in the Indian markets or as a result of reallocation of their investment portfolios arising out of the battering they may have taken due to the US subprime crisis and the lack of liquidity. The global movement of capital in and out of countries (including India) may have caused stocks to turn volatile.

The third is tight domestic liquidity position caused by investors blocking their money in large IPO applications such as that of Reliance Power and Emaar MGF.

The fourth is several chinks exposed in the financial markets’ infrastructure. Just to list a few (and these may not be the only ones), stock exchanges required brokers to pay additional margin money amid declining markets, but brokers were unable to do so as payments from their clients were still awaited as cheques take at least 2 days to clear for the brokers to obtain money from their clients. It has been argued that there is a mismatch between the financial market system and the banking system in terms of timing. Some have gone even further and argued that the margin system enforced by SEBI and stock exchanges is itself questionable (see this column by Surjit Bhalla in the Business Standard).

Last, but not the least, is the omnipresent spectre that pervades any stock market crash – the idea of “irrational exuberance” (a phrase said to have been coined by the former chairman of the US Federal Reserve, Alan Greenspan) on the part of investors and overvaluation of stocks which results in a correction of the markets at some point in time. Some see this as the correction of the markets bringing them down to their real levels.

The Debate

Speaking for myself, it may still be early days before blame can be pinpointed on any single person or institutions or groups of them for either triggering off the present crisis or failing to take adequate steps to prevent or mitigate such a crisis. This may require an in-depth study of the turn of events. Unlike certain previous stock market crises (which have been termed “scams”, and appropriately so), there yet appear to be no allegations of shenanigans in any of the market players. Readers will recollect that the 1992 scam was largely attributed to the (mis)conduct of the late Harshad Mehta, while the 2001 scam to broker Ketan Parikh. Those scams did propel the Government to set up Joint Parliamentary Committees (JPC) to investigate the actions of various parties involved in stock market transactions. I am yet to come across either any such allegations of deviousness or any calls for such a JPC in this case.

This episode nevertheless has assumed political proportions. The Government, speaking through the Finance Minister has reiterated that the fundamentals of the Indian economy are strong, and that the market fall is attributable to continuing uncertainties in the global economy. Unsurprisingly, the BJP and the CPI have refused to buy the Government’s argument. The BJP has not only demanded intervention by SEBI, but has also blamed the Finance Ministry and SEBI for allowing overvalued IPOs, not restraining over-speculation and not improving the faulty settlement mechanism. Not to be left behind, the CPI alleges ‘malpractices’ in the stock markets that led to the crash (without further substantiation) and has called for an increase in the securities transaction tax.

All this begs the question: would the existence of a better regulatory system governing markets have prevented the turmoil? Should the financial market regulators (the Finance Ministry, SEBI and RBI) have taken measures to prevent the occurrence of such a crisis? Does this episode demonstrate the need for tighter governmental regulation on financial markets?

Role of Regulation

Since events are still unfolding and we do not have intricate details of acts by market players, and further there is no evidence of egregiousness or fraud, this analysis will necessarily have to be limited to the reasons for the crash as set out earlier in the post. The reasons can be categorized into three types: (i) external shocks (US recession, subprime crisis and sell-down by hedge funds and FIIs), (ii) internal system failures (illiquidity due to large IPOs and failure of markets’ infrastructure), and (iii) irrational exuberance of investors (overvaluation of stocks).

1. External Shocks

This seems the most plausible reason for the crash on the Indian markets. Not only does the crash come in the wake of the subprime crisis and fears of a US recession, it correlates directly with the decline in markets all over the world; it is not as if this was a phenomenon isolated to India. To blame Indian regulators for this would not hold water. It is nothing but the result of globalization and free flow of capital across the world. That naturally leads me to my next point. One important lesson that the Indian financial regulators can learn from this, though, is that “decoupling” of emerging economies (like India and China) from those of the developed economies (like the US and Western European nations) is a myth. Events that occur in one part of the world are bound to have a serious impact in other parts of the world. It seems to me that the turmoil of last week takes a further step in silencing the proponents of the “decoupling” theory. It is important that the Indian financial regulators recognize this while tailoring their policies for the financial markets.

Let us look at the menu of options available to the policy makers. A safe option would be to revert to the protectionist policies that were followed before India embarked on its new economic policy in 1991. While that would effectively insulate India from global volatility, this is not something one would advocate because we are not only far ahead down the path of economic liberalisation but any such stance would lead to India’s economic isolation. The other option would be to let the market control events (and correct itself) and hence impose minimal governmental regulation. But, to embrace dogmatic capitalism and a laissez-faire approach would be counterproductive. The path that the Indian regulators have adopted is somewhat of a midway approach of progressive liberalisation and de-regulation.

India still does have several restrictions on foreign investment, both on the strategic side and the portfolio side. On the portfolio side, which is what the stock markets are largely concerned with, SEBI has prescribed regulations for foreign institutional investors (FIIs) that require FIIs to register with SEBI and also imposes various curbs on their conduct. More recently, SEBI has placed severe restrictions on investments by hedge funds and required them to “come through the front door” (a statement attributable to the SEBI Chairman, Mr. M. Damodaran) rather than investing through the opaque participatory note (PN) structure that they hitherto used. Despite resistance from market players as being a harsh move and the consequent mini-market-crash in October 2007, SEBI did not relent under pressure and persisted with the rule, which became final on October 25, 2007. India is one of the few nations that tightly regulate hedge funds, in as much as this move is constantly pounded with criticism from the western media as indirect strengthening of capital controls on the Indian economy. The reader might well ask: why then was there a sell down in last week’s turmoil purportedly by hedge funds and FIIs that SEBI could not prevent? Perhaps the answer lies in the fact that the revised regulations on hedge funds are not only new, but also have inbuilt time periods (e.g. an 18-month period) for parts of it to come into effect.

While regulators or regulations cannot prevent external shocks altogether, measures can be taken to mitigate its impact.

2. Internal System Failures

While the external shocks seem primarily responsible for causing the markets to tumble, the downfall may have exacerbated by internal system failures. These include settlement-related issues, margin requirements, circuit breakers and other technical matters involved in stock trading and stock exchange operations. This does give rise to the need for introspection – perhaps it is this precise area where regulatory reforms will play a significant role to prevent recurrences. SEBI needs to investigate further to identify the systemic failures in the financial markets and make suitable modifications and corrections to the system with the assistance of financial market experts.

3. Irrational Exuberance

Investors pump money into the stock markets in the expectation that the price of their stock will go up and provide (sometimes quick) returns. But, often stocks are overvalued and investors enter the markets during a boom and then suffer losses when there is a subsequent downfall. The criticism is that investors make investment decisions without regard to the underlying fundamentals of either the company in which they invest or the economy itself. What role can regulation play here, and is there always a failure of regulation when markets go on a downward spiral and cause losses to investors?

At the outset, I find it hard to sympathize with the position that the government should be blamed for all the adverse outcomes (and consequent ill-fortunes) of its citizens’ financial choices. Financial markets are risky indeed, and it is not everyone who plays in that market that can absorb or handle the risk involved. Is it right to ask the government to adopt a paternalistic attitude and protect all investors against such risks? If not, to what extent can investors rely on the government for protection?

There are two types of investors. One consists of the institutional investors, such as FIIs, hedge funds, banks, insurance companies and so on, or individual investors such as high-net worth individuals, who possess a certain level of sophistication – their funds are managed by qualified and experienced investment managers. Such sophisticated investors may require less regulatory protection as they are well aware of the risks of the stock market; they are also well funded and capitalized to absorb shocks.

It is the second type of investors, the men and women on the street (referred to as retail investors) that do not possess knowledge and sophistication when it comes to investment matters, who beseech governmental protection. They often invest their life-savings that sometimes turn into dust, as many of them experienced during last week’s meltdown. While law and regulation cannot hand-hold such investors and protect them from their irrationalities, it can certain equip them and provide them with enough information and knowledge that can help them make rational choices. Regulators lay down disclosure norms that require companies to publish all investment risks in their offer documents.

In the Indian context, the SEBI (Disclosure and Investor Protection) Guidelines, 2000 that have been strengthened over the years, impose strict disclosure norms on companies issuing capital to investors. However, this is applicable only when companies make public offerings (an initial public offering (IPO) or a follow-on public offering (FPO)) or qualified institutional placements (QIP) of shares to investors; these are typically known as primary market transactions. But, once the shares of the company are already traded on the stock exchange, the obligations of companies to make disclosure are much less severe. Hence, a person who buys shares of a listed company on the stock exchange in a secondary market transaction has far less information compared to a person who purchases shares in a public offering. This causes many retail secondary market investors to acquire shares in overvalued stocks during a boom without having understood the fundamentals of the company and the economy. This disparity between disclosures in primary market transactions and secondary market transactions may require correction by SEBI.

Another area to protect individual investors is through investor education. Though SEBI and the Ministry of Company Affairs have initiated several programmes to this end (here is SEBI’s Investor Awareness site) they do not appear to have gathered enough steam. This is an area where regulators can play a far greater role in minimizing the damage caused to investors in case of market turmoil.

Suggestions have been made (by the CPI General Secretary, A. P. Bardhan in particular) that the securities transaction tax (STT) must be heavily hiked from its current rate of 0.1%. It is not clear if this is mere rhetoric or how this proposal will help, as it will still be the individual investors (in addition to the other investors of course) who will have to bear the burden of the additional outgo.

In sum, the recent market turmoil has exposed the need for further regulatory action to safeguard investors in the Indian markets as we have seen above, but it is my belief that commentators are overplaying the scenario and taking it too far by attributing the crisis to regulatory failure. The crises would have occurred anyway, but its blow could have been softened with better regulation.

The ShockGen Effect

On a slightly different note, but still remaining within the confines of financial market regulation, a single trader named Jerome Kerviel belonging to Societe Generale (SocGen) was reported last Thursday to have caused the bank a loss of over €5 billion in the largest ever fraud in the investment banking history. He is said to have far exceed his sanctioned trading limits, manipulated computer records and created elaborate fictitious hedging limits to cover up his scheme, and still managed to remain undetected for almost 10 days despite high levels of compliance controls. Query: will any number of regulators or any amount of regulation have prevented this crisis?

Refugee Protection and Indian Law

Tarunabh's recent post, below, makes for very interesting reading especially, on Republic Day. I very much appreciated his analysis. I was not aware that the Andhra Pradesh High Court has held that non-refoulement (an impossibly difficult term to pronounce correctly in Indian English) is part of Article 21. And I think that the Supreme Court's decision in the Arunachal Pradesh case is a fascinating one. That case deserves a lot more serious attention than it has received in critical constitutional examination. Inspired by Tarunabh's post, I would like to pose the following issues for my blog colleagues and co-authors to further consider.

1. It is most unfortunate, in my personal view, that India did not sign the 1951 Refugee Convention. Accession to that convention in the 1950s would have been a strong signal to our fledgling republic's commitment to human rights and human dignity. It is a bit hard to understand why India, having adopted a constitution that was directly influenced by Western constitutional traditions and ideas of human rights, would reject the Refugee Convention a year later. I'd welcome pointers on historical research about our refusal to sign the agreement.

2. Even though India is not a formal party to the 1951 Convention, it is bound by those principles of the convention that constitute customary international law. I recall that several writers and authors of international refugee law have argued that non-refoulement is one such principle. However, I am curious to know whether this argument has been made in any court given that our Supreme Court has previously invoked provisions of international conventions to which India had appended express reservations (the CEDAW Case).

3. Again speaking personally, I wonder whether one could argue that, once a foreigner or refugee is entitled to the same basic protection of constitutional rights and freedoms that a citizen enjoys, that foreigner or refugee cannot be subject to greater restrictions on those rights and freedoms than the restrictions that apply to citizens.

Taslima Nasreen and India's treatment of refugees

So, Taslima Nasreen's visa has been generously extended for six more months. I will try to present certain legal issues that her stay in India present.

Although one can go further back in history, let us begin with the Foreigners Act, 1946, whose preamble provides 'for the exercise by the Central Government of certain powers in respect of the entry of foreigners into India, their presence therein and their departure therefrom'. The Act effectively provides the Central Government with complete discretion in its dealings with all foreigners. This has largely been the basis of the legal framework for the treatment of foreigners in independent India - the only exception is that now foreigners in India are also entitled to certain fundamental rights that are not expressly restricted to citizens. For example, the Supreme Court famously ruled in National Human Rights Commission v. Arunachal Pradesh (1996) 1 SCC 742 that '... the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise ……The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics.'

As such, Indian law does not clearly recognise a sub-category of 'refugees' within 'foreigners'. In many other countries, the treatment of foreigners is still largely a political decision, but the status of refugees has been judicialised by granting them rights. The Refugee Convention 1951 (read with its Protocol 1967) defines a refugee as someone who 'owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion' is outside his/her country of nationality and cannot return. Although the fact has not been adjudicated upon by any court, it is fair to suggest that Taslima Nasreen was persecuted in Bangladesh for her political opinions that forced her to leave the country (it is not necessary to show that the persecution was done by the State itself). As such, she can avail the rights of a refugee outlined in the Convention in any of the member-states. One of the most basic of these rights is the right to non-refoulment in Article 33 of the Convention, that forbids the expulsion or return of a refugee to a State where his/her life or freedom will be endangered on account of her race, political opinion etc.

India, unfortunately, never signed the Convention and is not a member-state. India's refusal to join the Convention was a protest against its narrow understanding of a 'refugee' and its Euro-centric nature (which did not address the problem of the post-partition refugees that India was still dealing with in 1951). This does not mean that India has refused to accept refugees and provide them with protection. Thousands of Tibetan refugees and Bangladeshi refugees during the 1971 war were allowed to stay in the country. Even without having signed the Convention, India allows the UNHCR to decide upon the 'refugee' status for certain classes of applicants.

The main difference in India, it seems, is that the decision to accord any rights to refugees, or even allowing the UNHCR to function with a limited mandate in India, is a political rather than a legal one (just like any other foreigners). While this appears to be the practice of the Indian state, the Gujarat High Court did hold in Ktaer Abbas Habib Al Qutaifi v. Union of India (1999 Cri L J 919) that the the principle of non-refoulement is encompassed in Article 21 of the Constitution, so long as the presence of the refugee is not prejudicial to the law and order and security of India.

One wonders what the reaction of the Supreme Court will be in a case of violation of basic rights of refugees (say, if the hypothetical decision to expel a refugee like Taslima Nasreen is challenged because it violates the principle of non-refoulment). The patchy picture that emerges from the equally patchy description of law and practice above makes it difficult to hazard a guess. Of course, even if the Gujarat High Court judgment is endorsed by the Supreme Court, given the qualification of 'law and order' and how easily a 'law and order' problem can be manufactured in India, its utility in Taslima's case is doubtful. (If the Supreme Court has already ruled on this aspect, it has missed my attention - please enlighten.)

Perhaps, the best way forward, as the NHRC suggests, is that a comprehensive national law ought to be devised, keeping in view the decisions of the Supreme Court as well as international instruments on the subject. (Annual Report 2000-01, para 4.24 - available in the archives section of its website).

Till then, Taslima must rely on political generosity of the government of the day rather than legal rights.

Speculation on the outcome of India's appeal against Mike Procter's verdict on Harbhajan Singh

Today's Times of India has carried a news item speculating the possible outcome of India's appeal against Mike Procter's verdict on Harbhajan Singh. The report says Indian legal eagles are trying hard to reduce the penalty from match-ban to one of fine. The report smacks of ignorance of the ICC Conduct Rules.

For a level 3.3 offence which Harbhajan has been found guilty of, no fines can be imposed as penalty. It can only be match-ban. Had it been a Level 4 offence, the penalty could have been so reduced as it would have been applicable to a Level 3 offence. If fines are to be imposed rather than match-ban, then the Level of offence should have been either 1 or 2, which cannot apply to Harbhajan Singh at all.

Secondly, the ICC conduct rules do not allow Plea Bargaining. Therefore, it is surprising that the so-called legal eagles are in fact suggesting that fines could be imposed on the Player in lieu of the match-ban. Are they not suggesting that even imposition of fines would make the Player guilty of the offence under Level 3.3? The intense criticism in the media following Procter's decision was not against the intensity of the punishment, but against the finding of guilt itself.

Our Blog's Landmark Day & A Few Thoughts

Today, our blog has recorded a landmark number of visits by our readers -796 on the previous day (see the hit counter on the left). Whether it is a transcient phenomenon, one doesn't know. But there is no doubt that this is a moment, I think, all of us would be proud of. The credit undoubtedly goes to Vikram, Arun and others who had the foresight in 2005 to think of this medium as the most convenient and useful tool to exchange ideas, and record our views. Over the last two years, it has emerged as the best inter-disciplinary blog on Indian affairs, not just restricted to legal issues, with all its jargon. It is a collective effort to explore the legal and related dimensions of contemporary issues in a reader-friendly manner. No wonder, many non-legal general blogs have acknowledged our contributions during the past few months. As we celebrate this occasion, we immensely thank our readers who have chosen to visit this blog again and again, looking for that extra value addition to public discourse, which is lacking in the mainstream media. That is also a big challenge to all of us, to make the blog much more active than what it has been so far, keeping its dignity and focus intact.

Novartis Patent Case: Paper dealing with Constitutional Law Issues

Along with Prashant Reddy (who blogs me with me at SpicyIP), I just finished a paper analysing the Madras High Court judgment in the Novartis case. We focus in particular on the TRIPS compatibility and "constitutionality" of section 3(d) in this paper. I'm copying the abstract below. If you need to access a copy of the article, please click here. Once the page opens, scroll down and click the "download the document from SSRN" button. This is still a very rough draft --so we would love your comments. Any inputs will be gratefully acknowledged in the paper.

Anyway, here is the abstract of the paper dealing with section 3(d) and TRIPS/international law/constitutionality:

Title: Section 3(d) of India's Patent Act: Crude, Yet Constitutional

Abstract:

"Indian patent law recently landed itself in the eye of a TRIPS storm on account of the rejection of a patent application covering Novartis' famed anticancer drug, Glivec. The rejection stemmed, inter-alia from a unique section in the Indian patent regime (section 3(d)) that prohibits the patenting of new forms of existing pharmaceutical substances that do not demonstrate significantly enhanced efficacy.

Not only did Novartis appeal the patent office decision, but in a rather controversial move, it challenged the TRIPS compatibility and constitutionality of section 3(d). The Madras High Court ruled that section 3(d) was constitutional. More importantly, it also stated that it did not have jurisdiction to rule on the TRIPS issue. As one can appreciate, this does not conclusively settle the TRIPS issue, but only shifts the jurisdictional venue. It is therefore an opportune moment to examine section 3(d), the Madras High Court decision and TRIPS compliance issues.

The paper will argue that section 3(d) is compatible with TRIPS. It will also argue that although the Madras High Court got its conclusions right, it's reasoning leaves much to be desired. It relied on an antiquated and wrong notion of contract law to rule that it had no jurisdiction to rule on a WTO-TRIPS issue. In order to defend the constitutionality of section 3(d), it relies on propositions that are mutually contradictory and sometimes wrong.

This is deplorable, given the fine repertoire of constitutional law jurisprudence that India is home to and which the court might have dipped into. The court also reveals a fascination for citing foreign case law, even when some of these judgments issued more than a century back and are sometimes at loggerheads with what the Supremes have ruled in this country.

On a broader note, this paper will demonstrate that constitutionality notwithstanding, section 3(d) remains a poorly drafted section. Therefore, the government needs to take urgent steps to iron out the creases in section 3(d)."

A critical analysis of recent anti-conversion legislation: Focus on the SAHRDC

Before getting to the substance of this post, I want to join Vikram and V. Venkatesan in welcoming our new contributors. The success of this blog depends on regular contributors and commentators (and a healthy debate among them), and its great to see the heightened activity on the blog at the start of the new year. Let us hope that this trend continues. Though this continues to be a hectic time at work for me, I am inspired by the recent enthusiasm exhibited on the blog, and this post is the result. I hope other contributors (some of whom have remained silent for what seems like an eternity) will be similarly inspired.

An area that I follow closely in my own research is that of secularism, especially the evolving model of secularism in India in the aftermath of the rise of the BJP as a national party, as exhibited in legal developments. In recent years, several states (especially those where the BJP is in power, but even those ruled by non-BJP parties) have experimented with laws on issues that have either a direct or incidental impact on religion. We have already seen how the anti-cow slaughter laws passed by BJP governments have resulted in a drastic revision of some basic elements of the Indian legal model of secularism (I refer here to the over-ruling of the Mohd. Qureshi case by a seven-judge Constitution Bench headed by Chief Justice Lahoti, which was briefly adverted to in this previous post).

One such trend is the recent enactment of anti-conversion laws by several states. As is somewhat typical in our country, much of what passes for legal discussion and debate remains focused on the output of the Supreme Court (a charge that most contributors to this blog, myself included, are equally guilty of). Fortunately, there are at least some organisations that focus on these legislative changes, which could have momentous consequences.

A recent issue of the EPW carries an excellent article by the South Asia Human Rights Documentation Centre (SAHRDC), which focuses on several such anti-conversion laws. The article lists out the germane provisions in a law that was recently passed by the legislative assembly in Himachal Pradesh, which in turn is similar to laws passed in Orissa, Gujarat, Chattisgarh, Madhya Pradesh, Rajasthan and Arunachal Pradesh. It then analyses these laws against the backdrop of applicable constitutional provisions (including an analysis of debates in the Constituent Assembly), Supreme Court precedents, and the relevant international law. The article concludes as follows:

It is clear that the anti-conversion legislations [sic], as they stand, pose serious challenges to both the intrinsic structure of Indian society and the international perception of the country’s legal system. It is difficult to escape the conclusion that these legislations [sic] are primarily motivated by a religious ideology and will detrimentally impact religious minorities. Should the courts acquiesce in this emasculation of tolerance and secularism amid an increasing number of such laws passed by different state governments, Indian democracy and its founding principles of equality and tolerance will be seriously weakened.

The issue in general, and the specific arguments raised by SAHRDC, deserve closer scrutiny and analysis.

The institutional author of the piece, SAHRDC, is an interesting NGO, with a long track record of publications on issues of human rights in the South Asian region. Though the website of SAHRDC is parsimonious in providing details about the organizational structure and people involved, it does provide links to publications that bear the promise of containing rich information on a wide variety of topics.

Document: Text of Mike Procter's decision imposing 3 Test-Match ban on Harbhajan Singh

The three-match ban on Harbhajan Singh by Match Referree Mike Procter, invited intense scrutiny and criticism in the media, without I understand, access to the full text of Procter's decision. The ICC's website does not have it. None of the newspapers which had carried critical comments on it extensively, bothered to publish it in full. I thank Mr.Anil Divan, Senior Advocate, Supreme Court, who examined the decision in detail, in his article and later agreed to fax me a copy of Procter's full statement. With Justice John Hansen, New Zealand's Cricket's representative on the ICC Code of Conduct Commission set to hear India's appeal against Procter's decision at Adelaide on Jan.29 and 30, it is time we know how exactly Procter reached his conclusion, and what were Anil Divan's objections against it. Anil Divan's article is here. The full text of Procter's statement is here.

Launch of Indian Kanoon-Online Resource for Indian Court Decisions

A vibrant computer science student at the Univ of Michigan, Sushant, recently launched "Indian Kanoon", a fabulous online resource for Indian judgments. This valuable research tool will go a long way towards ensuring better access to the court's judgments by the general public and more robust public participation.

Indian Kanoon breaks law documents into smallest possible clause and by integrating law/statutes with court judgments. A tight integration of court judgments with laws and with themselves allows automatic determination of the most relevant clauses and court judgments.

Indian Kanoon sources data from indiacode.nic.in and all supreme court judgments from judis.nic.in, and crawls these sites for updates. I reproduce extracts of this service from the "about us" page.

"India prides herself as the largest democracy in the world. There are three broad pillars of Indian democracy: the legislatures who make laws, the executives who enforce laws and the judiciary that interprets laws. The laws regulate a number of activities like criminal offense, civil cases, taxation, trade, social welfare, education and labor rights.

Even when laws empower citizens in a large number of ways, a significant fraction of the population is completely ignorant of their rights and privileges. As a result, common people are afraid of going to police and rarely go to court to seek justice. People continue to live under fear of unknown laws and a corrupt police.

A number of attempts have been made to bring the knowledge of law to the common people. The Government of India took active efforts to present all laws along with their amendments at indiacode.nic.in and all court judgments at judis.nic.in. Similar efforts have been taken up by other privately owned websites like vakilno1.com and laws4india.com

While it is commendable to make law documents available to common people, it is still quite difficult for common people to easily find the required information. The first problem is that acts are very large and in most scenarios just a few section of laws are applicable. Finding most applicable sections from hundreds of pages of law documents is too daunting for common people. Secondly, laws are often vague and one needs to see how they have been interpreted by the judicial courts. Currently, the laws and judgments are separately maintained and to find judgments that interpret certain law clauses is difficult.

In order to remove the above two structural problems, Indian Kanoon is started. It achieves them by breaking law documents into smallest possible clause and by integrating law/statutes with court judgments. A tight integration of court judgments with laws and with themselves allows automatic determination of the most relevant clauses and court judgments. Hope Indian Kanoon helps you in your search for Indian laws and their interpretations."

Well done Sushant!! We need more people like you.

India's New Capitalists

Guest Blogger: Harish Damodaran

Harish Damodaran is a journalist who has worked for more than 16 years as a reporter and editorial analyst with the Press Trust of India and The Hindu Business Line. Currently Senior Assistant Editor at The Hindu Business Line, Damodaran has specialized in agri-business and commodities coverage -- a job which, besides involving tracking of price movements and harvest sizes of grains, oilseeds, pulses, sugar and dairy products, has given him ample opportunities to travel, observe, study and learn from people and things on the ground. Insights from field-level reportage over a sustained period have, in turn, helped in complementing his wider interest in macroeconomic policy, business and development issues, and also provide a more nuanced understanding of Indian society, history and politics. Damodaran is a recipient of the World Food Day Award-2000 from the UN Food & Agricultural Organization and the Indian Association for the Advancement of Science, given in recognition of his work as a farm reporter.

In December 2004, Damodaran was conferred a book-writing fellowship from the New India Foundation, Bangalore. The result was India’s New Capitalists: Caste, Business and Industry in a Modern Nation-State, which is being published by Permanent Black and Palgrave Macmillan. Written in a lucid style combining analytical rigor with journalistic flair, the 340-page book is slated for release in early 2008.

About the Book
Business in India has traditionally been the preserve of certain Bania communities clubbed under the Vaishya order of the classical Hindu chaturvarna (four-order) social hierarchy. So deep is this association that the term ‘Bania’ has over generations acquired a generic connotation, used interchangeably to refer to the village moneylender-cum-grocer, general merchant, produce financier or large factory owner.

This near-synonymous identification of business with the Bania and vice versa has, however, undergone significant dilution since the early part of the 20th century, which saw the entry of a number of businessmen from the ranks of the Brahmins, Khatris and similar castes with predominantly scribal or administrative background. The post-Independence period has witnessed a further widening of the social base of Indian capital to include various agrarian and allied service castes such as the Kammas, Naidus, Reddys, Rajus, Gounders, Nadars, Ezhavas, Patidars, Marathas and Ramgarhias. As a result, entrepreneurship is today no longer the exclusive bastion of the old mercantile groups: whether Banias, Jains and Marwaris or Sindhis, Lohanas, Bhatias, Parsis, Nattukottai Chettiars, Kutchi Memons, Khojas and Bohras. Capital’s social profile has expanded considerably beyond the Bania-plus complex to incorporate a wide spectrum of communities.

But this ‘inclusive capitalism’ has not followed a uniform pattern across India, being more a feature of the southern and western states. This contrasts with the North, which has not demonstrated a similar churning of the socio-business landscape. Moreover, even within the progressive regions, capital’s ‘democratization’ has not fully permeated to the lowest rung of the social ladder. For instance, country is yet to produce a single Dalit industrialist of note, even while competitive electoral politics and the institution of a welfare state after Independence has thrown up scores of high-ranking leaders, bureaucrats and judges from the erstwhile ‘untouchable’ castes.

India’s New Capitalists traces the modern-day evolution of business communities in India and, for the first time, systematically documents the rise of new entrepreneurial groups with no established pedigree of trading or banking. The book also contains 15 individual case studies that embellish the general findings.

Supreme Court filing rules (or lack thereof)

As a relative new-comer to the Indian legal system, I would be curious to get people’s thoughts on the Supreme Court’s filing rules (or lack of them). There are a lot of directions this conversation could go, but the two non-rules that I have had the most frustration with are page limits for filings and the annexure requirements (or norms) for citation. Figuring out new rules, or at least new norms, around these two issues I feel would save huge amounts of work and ultimately result in stronger decisions.

First, there seems to be no page limit for filings to the Supreme Court. Added to this difficulty, many lawyers unfortunately seem to think that a longer argument is a better one. This means the Court routinely gets clogged with briefs that are hundreds of pages long (in big cases, multiple briefs of this size). It becomes almost impossible for any justice to read these briefs as thoroughly as they should. Further, I personally think the arguments become weaker with such length. Lawyers perhaps feel with all this space there is no need to find the concise language and on-point facts to make the case as strongly as they should. This unfortunate tendency is additionally supported I think by the strong Indian oral tradition in which many lawyers seem to believe they can save any weaknesses or undeveloped parts of their filing in oral argument (although examining the pros and cons of the current oral argument arrangement in the Supreme Court is another blog entry entirely). I feel all this leads to more bad legal drafting than there should be if a page cap was given to lawyers for their briefs, which just means there are worse inputs for the ultimate judgment.

I understand that the Court’s lax filing rulings are in place in part to make it more accessible to the average Indian. However, most Indians aren’t writing very long briefs (or briefs at all, even if they do send a letter sometimes that becomes a brief). Further, exceptions could, of course, be made to any page limit rule (or norm) to accommodate those who are not trained lawyers.

Second, the annexure norms for filing seem ill-suited for their task and I think weaken many lawyer’s filings. The norm (it may be a rule) as far as I can tell is that any citation that is not to the Constitution, a Supreme Court case, or some equally commonly used document by the Court must be annexed (often in full, although sometimes annexures are just of extracts). As a result, a big case requires a dedicated staff simply to carry it to court and make photocopies for all concerned. Mounds of paper are wasted and shuffled. Most of the annexures will never be read (or certainly not in their entirety). Some annexures do deserve to be placed in full before the Court (for example, a report on which a PIL is based), but often law review articles and sections of books of questionable relevance make up a considerable part of the mound of papers that surrounds any justice while he or she is on the bench. With the advent of the internet and the increasing use of clerks it seems unproductive to continue this practice which I believe was created because it use to be much more difficult for the Court to access secondary sources itself. It seems it would be helpful to spell out in some specificity what should and should not be annexed and create a new norm where most sources wouldn’t need to be. If anything this measure would be more pro-people as I have talked to lawyers who work with the poor that complain about the high cost of photocopying (in both money and time) and have said they have not cited some articles because they were not necessary to the case (although helpful) and they didn’t want to have to annex them.

These are just initial impressions after being here a year or two. I would be curious to hear if people think I am way off on all this or can shed light on why changes like these have not occurred.

Jallikattu & Ramar Setu: understanding Supreme Court's confusion

The Supreme Court's reversal of its own order refusing to vacate the stay on the holding of the traditional village sport in Tamil Nadu, Jallikattu has caused quite a consternation. (Animal Welfare Board vs. A.Nagaraja) A sample of readers reactions as carried in The Hindu is here, here and here. The three Judge Bench first refused to vacate the stay on the ground that the sport is barbaric, and later when pointed out by the Tamil Nadu Government, that the sport is part of religious festival of Pongal, the Bench relented, on certain conditions, to rule out cruelty to the bulls, and injuries to participants and spectators. The SC's refusal to vacate the stay was greeted by The Hindu, but criticised by Mail Today.

The Supreme Court also orally expressed its surprise that Tamil Nadu Government invoked the religious ground. The Court, according to reports, alluded (as mentioned in The Times of India) that the State opined in the Ramar Setu case, following its ideology of rationalism, that the religious feelings did not matter in the construction of the Sethusamudram project. The Bench said it did not agree with all the reasons cited by the State for lifting the stay. But the Supreme Court's lack of explanation for reversing its own decision is astounding. Does the Supreme Court signal that religious ground is sufficient enough a reason for review of its decisions? The implications are ominous, even if the vacation of the stay is only for this year, till the Supreme Court hears the appeal against the Madras High Court's verdict permitting Jallikattu.

There is an inescapable feeling that the Supreme Court came under pressure to review its decision not to vacate the stay, faced with the prospect of defiance of its order by a determined local population in Madurai district. True, people's sentiments rooted in culture and tradition were involved, and would have been hurt, if the SC refused to vacate its stay. But religion? Did the TN Government confuse religion with the local culture and tradition? Does the SC suggest that while religious sentiments cannot be hurt by a Court-inspired ban on a rural sport, similar immunity cannot be bestowed on local culture and tradition, ableit followed by a small minority of villagers in Madurai?

It may be worthwhile to read the Madras High Court's Division Bench's judgment in the case of K.Muniasamy Thevar vs. Deputy Superintendent of Police (MANU TN/8256/2007) delivered by Justices Dharma Rao Elipe and P.P.S.Janarthana Raja on March 9, 2007.

The case had its origin when the appellant felt aggrieved by the interference by the police in the holding of the traditional sports events, such as jallikattu, manjuvirattu, Rekla Race (bullock cart race)and sought an end to such interference. The Single Judge, Justice R.Banumathi, not only rejected his petition, but went beyond the scope of the petition, by imposing a ban on all the three village sports events, including Jallikattu, assuming that there was cruelty to the animals. (MANU/TN/9319/2006). The appeal was heard by the Division Bench. The Animal Welfare Board impleaded as a party.

The Additional Advocate General appearing for the State, told the Division Bench that not only the Hindus, but also persons belonging to other religious faiths take part in these sports-events, which indirectly promote religious harmony in the State. He appealed to the Bench to consider the religious, cultural rights involved, giving due respect to the feelings, sentiment and religious practices of the people. The sport events are part and parcel of Tamil Culture and religion, he said. Here, you may notice that the Tamil Nadu Government used Tamil Culture and religion almost synonymously, that is, religion ought to be understood in the cultural sense, and not in the sense of organised religion - a phenomenon of contemporary times. The petitioner in the Sethusamudram case, Subramanian Swamy has already drawn the Court's attention to the Tamil Nadu Government's plea in the Jallikattu case.

Therefore, for the Supreme Court to read in the Tamil Nadu Government's claim that religious sentiments would be hurt if the stay was not vacated, something similar to the claim of those opposing the Sethusamudram Project would be a distortion of Tamil Nadu Government's intent and its declaration before the Madras High Court Division Bench. True, the Tamil Nadu Government may not have had the opportunity to explain its stand better, as it was thrust with the responsibility of vacating the stay to avoid a law and order problem, but should the SC ignore the Madras High Court's judgment, before refusing to vacate the stay, and later doing so, by seemingly imposing some conditions? The Madras High Court judgment, in fact, lays down similar conditions. But these conditions could not be tried, because of the SC's stay.

The Madras High Court did not even consider the "religious sentiment" as the core issue in this case, despite the clarification of the AAG. The core issue, according to it, was only with reference to the "treatment of the animals" during the said events, and whether such treatment would amount to "cruelty" within the meaning of S.11 of the Prevention of Cruelty to the Animals Act, 1960. The Bench had noted in its judgment: "It is more or the less the exhibition of the performance of a trained bull by its owner before the villagers. The exhibition of performance of trained animals is permitted under Chapter V of the Act, of course, subject to certain restrictions mentioned therein."

The Bench further noted: "There can be no second opinion of the fact that the said sport-events are part and parcel of the Tamil village culture and are closely wedded to the life-style of the villagers. The imagination or visualisation of the harvest season of villages in the State of Tamil Nadu would be imcomplete without "Jallikattu", "Manjuvirattu", "Reklarace", etc. When our traditional and cultural life-style of India, more particularly the life-style of the villagers, is being rabbidly effaced by the influence of the Western culture, it is imperative that our village traditional and cultural events are preserved and maintained."

To conclude, the SC's refusal to vacate the stay on Jan.11 was flawed. Its insufficient explanation for vacating it on Jan.15 is even more flawed than the previous one.

Beyond marriage?

Is the Supreme court finally willing to look at the substance of a relationship, beyond the satisfaction of formal requirements? In a judgment delivered yesterday, the Court seems to have held that a long term live-in relationship couple will be treated as married for the purposes of legitimacy of their child. The news report seems to suggest that this position was arrived at only through a strong presumption of marriage in case of proven long cohabitation, rather than accepting that they are different categories that need to be treated similarly.

Given the politically volatile nature of family laws, the courts has generally been cautious in applying modern constitutional principles to these laws (particularly the infamous State of Bombay v. Narasu Appa Mali, 1952 Bombay High Court, where it was held that personal laws do not qualify as 'law' within Article 13 and therefore dont need to be tested for fundamental rights violations - a judgment still waiting to be overruled.) Of course, there have been a few exceptions, and this case seems to be one of them.

On the substantive issue of treating cohabitation with marriage, there is a tension between the need to protect the financially vulnerable party in the relationship and the need to respect the parties' choice to not formalise their relationship and accrue the incident rights and obligations (to the extent that such decisions are actually a result of 'choice'). The Law Commission of the UK came out with a report last year, recommending certain marriage like rights for long-term cohabitees, while responding to this debate.

Of course, the very legitimate-illegitimate child distinction (whether born in marriage, long-term relationship or after a one-night-stand) itself is susceptible to an Article 14/21 challenge for the simple reason that it punishes a child for no fault of hers in a matter she had no say whatsoever.

Update - On reading the actual judgment in Tulsa v. Durghatiya, I have a more sober reaction. No argument regarding the rights of cohabitees was made or considered. The Court only reiterated a well-established principle of a strong but rebuttable evidentiary presumption of marriage for long-cohabiting couples. So much for sensational media headlines!

Reply to Talha's comment - I don't think that common law marriage is recognised by Indian law (or UK law, for that matter). Perhaps other jurisdictions recognize it. The entire need for the UK Law Commission to recommend rights for cohabitees was premised on the fact that there is no concept of common-law marriage in English law. To quote from para 1.26 of its Report,
"The [Consultation Paper] examined the case for reform of the law as it applies to cohabitants on their separation. It started by making clear what the law does not do and drawing attention to the popular misconception about the legal status of cohabitants, centred on what is known as the “common law marriage myth”. This myth perpetuates the mistaken belief that the law of England and Wales recognises cohabitants as “common law spouses” once they have lived together for some period of time."

SC Judgment on Patient's Informed Consent

Today’s Hindu carried a news item about a SC decision delivered by a three-judge bench on the need for a patient’s informed consent before the doctor embarks on a surgical procedure. The report, quoting from the opinion, said that not only is it imperative but the consent so obtained is limited to the procedure planned:

““the doctor should disclose the nature and procedure of the treatment and its purpose, benefits and effect; alternatives if any available; an outline of the substantial risks; and adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment.” The Bench made it clear that consent given only for a diagnostic procedure could not be considered as consent for therapeutic treatment. “Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defense in an action in tort for negligence or assault and battery.”

This view is unexceptionable. In this case, the doctor began by conducting a diagnostic laparoscopy but followed it up immediately thereafter, having obtained additional consent only from the patient’s mother (as the patient was still unconscious), with a second and more elaborate treatment procedure (‘laparotomy’) that resulted in removal of the patient’s uterus and ovaries (hysterectomy and bilateral salpingo-oophorectomy). [The patient, upset over this fact, refused to pay upon discharge. The doctor sued for recovery of charges and got a favorable ruling from the National Consumers' Commission. The patient appealed in the SC]. The consent form signed by the patient at the very beginning stated that the patient had been informed that the treatment to be undertaken is ‘diagnostic and therapeutic laparoscopy. Laparotomy may be needed’. The outcome of the case turned on the definition of ‘laparotomy’ – the word simply refers to opening the abdomen; so, in this instance, did it also imply consent to remove organs from the patient’s abdomen after it had been opened (as the doctor argued)? The court’s answer was in the negative and it emphasized that if that was indeed the case, the consent form ought to have read “"diagnostic and operative laparoscopy. Laparotomy, hysterectomy and bilateral salpingo-oopherectomy, if needed."

The analysis ought to have ended at this point. Strangely, the court added soon after: “The words "Laparotomy may be needed" in the consent form dated 10.5.1995 can only refer to therapeutic procedures which are conservative in nature (as for example removal of chocolate cyst and fulguration of endometric areas, as stated by respondent herself as a choice of treatment), and not radical surgery involving removal of important organs.” This only raises more issues than it solves. One may well ask how ‘laparotomy’ can also mean ‘laparotomy, cystectomy (removal of cyst) and fulguration’ but not ‘laparotomy, hysterectomy and bilateral salpingo-oophorectomy’. Even if one answers that this is a matter of degree (a limited or ‘conservative’ procedure being acceptable without a separate heading), it may only serve to ignite more controversy over what constitutes a ‘conservative’ as opposed to a ‘radical’ procedure, questions that are not easily settled. Furthermore, even in the specific context of this patient’s diagnosis, a ‘conservative’ surgical option did not really exist (as the expert witness testified), so the more ‘liberal’ reading of ‘laparotomy’ as the court suggests does not make much sense.

This is however a relatively minor point. The importance of the decision lies really in the court’s recognition of obtaining a proper and informed consent and reasonably limiting the scope of intervention to what is permissible therein. Future cases may well arise on the scope of information that ought to be revealed, the distinction between a substantial and an insubstantial risk, and exceptional instances where the benefits of revelation may be outweighed by the potential harm to the patient.

Digitising legal scholarship

Is anyone aware of any searchable online database of Indian law journals? I searched for the websites of Journal of Indian Law Institute and Indian Bar Review (well, the former had more like a webpage than a website, and a google search on the latter shows up Bar Council of India Rules for the first hit!). I looked up the journal pages of prominent law schools (those that had one) - no academic content whatsoever. Even subscription research websites like Manupatra do not have anything more than primary legal material. The only useful, but limited, research tool is OPAC - a freely available searchable index of most Indian legal journals created by the National Law School Library.

As a student at NLS about 4 years ago, I made feeble attempts to get the law school journals freely available on its website. In any case, the journals did not generate revenue and putting them up online could only increase readership, besides making useful contribution to scholarship. Nothing came of it.

Then Lawrence (of the Liang fame) came up with Lex Libre - its webpage describes it as "An Open Archive of Student projects/articles/ working papers contributed to the public domain". With eight papers on the site, most of which were put up at its inception, I don't think it went very far (although I continue to get publication requests for my embarrassingly half-baked undergraduate research papers put up there - the need for accessible legal research is clearly desperate).

At least with respect to published articles, law-schools should take the initiative to put up past issues of their journals online. Surely Manupatra or IndLaw also have enough business incentive to take this up - searchable subscription databases would perhaps be better than absolutely nothing that exists at the moment.

Some of this stuff must be good ... only if someone could get to read it. Any thoughts (if some databases actually exist and I have ranted in vain, please enlighten anyway)?

Introducing Nick Robinson

I am very pleased to introduce Nick Robinson as our newest member of Law and Other Things. Nick works at the Human Rights Law Network in New Delhi, where he focuses on issues of water governance and human rights. Before joining the Law Network, Nick clerked with the Chief Justice of India, V.N. Sabharwal, on the Supreme Court. He graduated from Yale Law School in 2006 and holds a BA in political science from the University of Chicago.

And India goes to . . . Obama; and the United States goes to . . . Sonia

I've been helping here in Delhi to put on America’s first online global primary in which Democrats abroad will vote in a block, like their own state (Americans will be able to vote online in the primary if they register by the end of the month – see www.votefromabroad.org – or be able to vote at a polling booth the Dems will have in Ploof in Lodhi Market in Delhi).

This new U.S. primary system has gotten me thinking a lot about representation issues of citizens living abroad. I wrote an op-ed last month for the International Herald Tribune (see http://www.iht.com/articles/2007/12/20/opinion/edrobinson.php) that briefly outlines some of the reasons why I see this new global primary as part of a broader globalization of the electoral process in the U.S. (and why this is a good thing). If nothing else, it will be fascinating to see who Americans abroad will vote for: India goes to Obama, Argentina to Clinton, China to Kucinich. . . .

A good friend was commenting to me that Americans abroad should not just get their own convention delegates for the Democratic primary, but also be able to elect their own representatives and get two Senators. After all, in the last ten years I have voted in 4 states (and will soon globally) – just because a population is rather transient doesn't mean it shouldn't get representation. And those of us living abroad (whether American or Indian) are often united more by this fact than what specific state we come from in our respective country.

You might see where I am going with this now. India, of course, has a very large NRI and PIO population. The PIOs get a lot of benefits (on visas, buying land, etc.) but can't vote. The NRI's can, and although I haven't seen the numbers I suspect that their participation is very very low.

So, should this NRI community or NRI/PIO community get their own representation in Indian Parliament? What purpose would that serve? I actually think India should think about adopting this model and it's not just that I often tend to want to rewrite what we consider our default bounded political communities.

There are the more obvious reasons about why this should happen – Indians abroad are a valuable part of the Indian nation-state (sending home remittances, building up skills and intellectual capital that will return if they do, providing a network for Indian business globally, etc.) and they have special concerns that need to be represented and might not be adequately so under the current system (taxation on remittances, labor abuse in UAE, etc.).

There's another potential benefit though to this that might be controversial and I'm not willing to stand by, but I think is worth throwing out for conversation's sake. That is that having special representatives for Indians abroad might inspire young educated Indians abroad to engage in the political process, which could eventually have very positive cascading political effects back in India.

While in India, I've been struck by the cynicism towards mainstream political engagement of students at top Indian law schools and by young dedicated lawyers in general. While in the US many students at any given top law school are taking off this year to campaign for presidential candidates, in my experience it is a very rare student who would take time off from NALSAR or NLS to go campaign if Parliamentary elections are held this year. I most often hear the reason for this is that the whole political process is corrupt so why bother. There is also a deeper group shunning of all political engagement amongst the professional class in India than I have found in other countries (a smart highly accomplished Indian friend recently told me he thought he would lose half his friends the next day if he said he was going to run for office) – there seems to be an after-effect of Gandhi in this to me, but I could be wrong.

In other countries (even with corruption) idealistic candidates run that engage young educated people. They almost always lose, but in the process they change the course of debate and act as a way for young people to become part of the political process. They inspire and a new political space is created.

My guess is that if Indians abroad got their own elected representatives in Parliament this would provide a better platform for more idealistic candidates to run. I don't know if he or she would win (I suspect they wouldn't – most Indians abroad aren't college students), but I do think they might draw more young people into politics (the internet biases towards this group and would be a natural organizing platform for Indians abroad) – this would help develop a group of young Indians engaged in their country's political process (even if from afar) which could pay large dividends when/if they return. It might even spur a new regional (albeit global) party that could later get bite on the national stage.

Of course, all this would require a change to the Constitution (and there might be a far-fetched BSD question about maintaining the integrity of India's borders), but given the comparative constitutional barriers in the U.S. and India it is more likely India would be first to change its representative model beyond the boundaries of its territorial control. Something perhaps worth considering.

Nano and Public Transport in India: An interview

I am glad to introduce Anumita Roychowdhury, Associate Director,Research and Advocacy,Centre for Science and Environment, New Delhi, who has done a useful study on the impact of low-cost small cars in India in October 2007. Here, she gives her responses to my questions in the context of Tata's Nano getting a huge reception in India. Her article on the issue has been published in Down To Earth dated October 15 2007.

Q: What are your objections against Nano?

A: It is very important to position the debate on small cars very carefully. If we are only comparing cars then small cars are more fuel efficient and space efficient than the bigger cars and SUVs. These certainly give us the advantage of greater fuel savings compared to bigger cars. From that persepctive small cars should be preferred to bigger cars in India.

But we are looking at cars -- all cars -- big or small -- cheap or expensive -- from the persepctive of mobility and sustainability. Are cars the best way to move people in our cities? Can our cities deal with the congestion and pollution impacts of the explosive car numbers. It is not an issue of peoples’ right to own cars. But it is about people’s right to sustainable mobility. Should we build our cities for the car owning minority or the commuting majority? It is very clear from all data that we have seen -- cars can never meet the mobility requirements of the urban majority even if the car ownership expands phenomenally.

There will never be enough space for all to move in cars in our cities. Car numbers are already booming in India even without the Nano cars. Cities like Delhi and Bangalore are registering 1000 vehicles per day. The nano car and more cars like that in future will only accelerate the process. You have seen the state of congestion and pollution in Kolkata where according to its city development plan 61 per cent fo the households still do not own cars. And the city has no scope of expanding its road space.

Small cars can be more fuel-efficient, but their sheer numbers will undercut the fuel savings possible from the energy savings possible from public transport.

If any city thinks it is possible to meet air quality standards and congestion free roads by pursuing car centric growth will be proven terribly wrong like any other city in the West. Look at Delhi which is most privileged to have more than 20 per cent of its land area under road network. And yet with only a quarter of its households owning cars the city roads are already choked. The land area needed to keep the cars parked in Delhi is nearly 10 per cent which is close to the total green area in Delhi.

There is no further space left to build more roads or provide parking. The city will now have to rise vertically up to build flyovers or multi storied car parks but even that will not help. The personal vehicles in Delhi already use up nearly 80 per cent of the road space but meet only 20 per cent of the commuting demand in the city. But buses that occupy just 3 per cent of the road space meet more than 60 per cent of the travel demand. But the city governments are not looking at the ways to improve the public transport infrastructure to provide comfortable transport for the majority.

Cars already enjoy enormous hidden subsidy in India. Public policy does not aim to recover the full cost of owning and using a car. For instance, the cost of using urban space for parking and using roads, pollution and health damages are not reflected in the taxes and road pricing. At the same time the car industry is constantly minimising its tax contributions and externalising the true costs of its products. A 2004 World Bank study shows that buses on a per passenger basis use one tenth of the road space of that of private cars but the total tax burden per vehicle kilometer is 2.3 times higher for public transport buses than cars in Indian cities. If the cost of investments in the multilevel car parks is fully reflected in the parking charges then car owners will have to pay Rs 30-40 per hour. But car owners pay only 10 rupees.

The only way cities can prevent clogging of their roads is to scale up efficient public transport and put in force effective tax policies that make car usage very expensive. But public policies have not moved adequately on this. If public policy fails to counter the problem of cheap motorization, air pollution, congestion and public health impacts can be very serious.

It is very ironical that when the automobile industry is claiming that it can produce Euro IV compliant cars, there is no public policy to implement Euro IV standards across India. And the cheap cars are expected to explode in smaller cities and towns that are scaling the pollution peak in India. Most of the metro cities do not even feature among the ten most polluted cities in the country. Smaller cities do.

Q: Have you tried to draw the Supreme Court's attention to this looming crisis in the ongoing M.C.Mehta case against vehicle pollution (W.P.(c) No.13029 of 1985?

A. We had drawn the attention of the Supreme Court through a statement of concern to the problem of motorisation -- explosive increase in vehicle numbers and how that was negating the air pollution gains from a range of first generation reforms. We had demanded directons for improvement in public transport and policies to restrain car usage. That did lead to court rulings related to public transport projects and parking policies etc in Delhi. We did not file any affidavit objecting to the introduction of the small cars.

Q: The news reports on Nano claim that Tata's small car meets the emission standards, especially the Euro IV. Do you agree?

A: Our auto industry can meet Euro IV standards -- in fact all those who are exporting to Europe are meeting Euro IV standards in the European market. But unfortunately, there is no public policy today in India to introduce Euro IV standards across India. So even if our industry produces Euro IV compliant cars, our cities cannot benefit from it -- especially the smaller cities that will begin to motorise rapidly now.

UPDATE: Sunita Narain's article on March 27, 2009 can be read here.

Article on Surrogacy in India

There is a freely available article by Raghav Sharma from National Law University, Jodhpur written quite recently (July, 2007) on the question of surrogacy with particular reference to India. Apart from a review of US laws and the cases mentioned in the last post on surrogacy, he also provides an overview of the British and Canadian (very briefly) statutes and a list (in table form) of the arguments from both sides of this issue. He has detailed the laws and past SC judgments that are likely to have a bearing upon this question in India and recommends several measures to regulate the practice. His perspective and suggestions, though debatable, are interesting. Altogether, a worthwhile read. Check it out.

Prof.Marc Galanter's lectures in Delhi

Prof.Marc Galanter, who is presently in New Delhi, has a busy schedule of lectures and academic interactions in the next two weeks. The following are some details, shared by one of his hosts.

On 16th Jan. at 5 pm Professor Galanter will adress the issue of "everyday justice in India" at the School of Arts and Aesthetics, Jawaharlal Nehru University. His talk will be chaired by Justice S Muralidhar, Delhi High Court. This lecture has been organised by the Centre for the Study of Law and Governance, JNU.

On 17th Jan., Professor Galanter will interact with students at the Centre for the Study of Law and Governance at 2:30 pm.

On 18th Jan, Professor Galanter will address students at the Law Faculty Delhi University on the issues that surround lok adalats at 5pm.

On 21st Jan, Professor Galanter will engage in an informal discussion on a range of issues that address law and society scholarship in India at the Centre for Policy Research at 5pm.

On 22nd Jan, Professor Galanter willl address the Delhi High Court on Access to Justice at 2:30 pm.

Commercial Surrogacy II: An Overview of Laws in the US and France

Mr. Venkatesan put forth several interesting questions in response to a previous post on commercial surrogacy (see comment). There is a vast body of literature on surrogacy with a variety of views and concerns in play. This post is therefore not intended to be comprehensive and only attempts to address briefly the issues he raised.

French Court Decisions:

It was mentioned in the NYT blog that the practice has been outlawed in France owing to a decision by a French court. There are actually two pertinent decisions of France’s highest court, the Cour de Cassation, and were based on two grounds: (1) it involves the sale of items that cannot be transacted commercially and therefore violates the doctrine of ordre public (which is somewhat similar to the English doctrine of public policy) (2) the purpose of the law of adoption is to provide a home for homeless children; a surrogacy arrangement which adopted a similar procedure amounted to an abuse of the law as it was a contractual arrangement to create a homeless child to take advantage of the provisions intended for genuinely homeless babies. The doctrine of fraude à la loi (which arises when a person, without openly violating the law, makes specific arrangements in order to evade it) therefore applies rendering the agreement null and void in French law. I quote this from a freely available article by Christopher Forsyth which provides a detailed account of these cases.

Laws on Commercial Surrogacy in the United States:

The blog report mentioned that there is no uniformity of laws in the US and there is a great deal of variation among states. As for the current state of laws, I quote from a review published last summer:

“Arkansas and Texas have drafted legislation to clarify the parental rights of the parents and to negate parental rights of the surrogate in order to minimize possible conflicts over determination of parentage or transference of parental rights. Arkansas defines legal parentage based on each party's intent at the time of the gestational contract. Absent evidence to show the contract is voidable, the law assumes each party intended the outcome of the contract: payment for gestation in exchange for parental rights following the birth. Texas focuses on transference of parental rights following birth rather than an assumption based on intent and outlines the process for voluntary relinquishment of parental rights. The statute specifies each detail of the process, from the time period when parental rights must be transferred, to witnesses, and verification, which binds both the surrogate and parents. The presence of effective parentage declarations combined with the absence of statues that limit the contractual validity has created an attractive jurisdiction for commercial gestational surrogacy contracts.

Both Kentucky and Indiana declare commercial surrogacy contracts void. In these states, commercial surrogacy contracts are defined as null, without legal significance. Indiana explicitly outlines the definition of a surrogacy agreement as one which induces the surrogate "to relinquish care, custody and control over the child." Indiana further outlines that enforcing the terms of the surrogacy contract is against public policy, alluding to societal undesirability of enforcing processes that fulfill the surrogacy contract through any means, such as pre-birth payment for relinquishment. Defining the parties involved in surrogacy, Kentucky declares that no "person, agency, institution, or intermediary shall be party to a [commercial surrogacy] contract or agreement," indicating a legislative desire to prevent professional facilitation of such agreements as a business enterprise.

Nebraska law declares commercial surrogacy contracts void and creates a further distinction by declaring them also unenforceable. Besides the legal nullity of the contract, this addition indicates the unwillingness on the part of the legislature to force the courts to adjudicate or even recognize the parties' intentions. Yet the statute does not provide further detailed legislative history or reasoning to address the practical application of the statute specifically for the state of Nebraska.

Louisiana, Michigan, New York, and Washington have deemed commercial surrogacy contracts void, unenforceable, and against public policy, specifically providing a rationale for rejecting the legal validity or enforcement of such contracts. Despite these additional distinctions, neither Louisiana nor Nebraska complements these declarations with any penalty, which perhaps detracts from their potential potency. While the legislatures may have intended the legal nullity and unenforceability as a self-regulating measure against contract execution, the self-proclaimed success of agencies in these jurisdictions suggests otherwise.

Several states attempt to prohibit commercial surrogacy arrangements and outline penalties aimed at dissuading involved parties. Perhaps the most extreme example of a state's desire to regulate and prohibit commercial surrogacy is Michigan. The latter provides separate penalties for participating parties of the contract, classifying such action as a misdemeanor, punishable by a fine of not more than $10,000, not more than one year in prison, or both. Addressing the party who "induces, arranges, procures, or otherwise assists" the parties into the surrogacy contract, Michigan classifies these actions as a felony punishable by a fine of not more than $50,000, imprisonment for not more than five years, or both. New York imposes a civil penalty for the parties to the contract, outlining a fine of $500 or less. The state also imposes civil consequence for the party who "induces, arranges or assists," outlining a fine of $ 10,000 or less, forfeiture of the compensation and, if a repeat offender, guilty of a felony. Washington similarly provides a punishment for the "person, organization or agency" party to the contract or its formation with penalty of a gross misdemeanor.

Clearly, classification of participation in commercial surrogacy contracts as criminal conduct, as with Michigan, suggests that legislators in some states have felt morally responsible for preventing the creation or execution of these transactions. The disparity between categorizing commercial surrogacy as criminal in one state to adamant legal enforcement in others allows the agencies operating across state lines to utilize the law of the most supportive jurisdictions, and in this way circumvent the federal government's regulation of interstate commerce.”

Important Court Decisions on Commercial Surrogacy in the United States:

The New Jersey Supreme Court issued a seminal decision regarding surrogacy contracts (In re Baby, 537 A 2d., 1227, N.J., 1988) where it found the payment of money to a surrogate mother ‘illegal, perhaps criminal, and potentially degrading to women’ (click here for a detailed excerpt from the opinion). The Court noted inter alia that surrogacy is really a ‘private placement adoption for money’ and surrogacy contracts involving money violated laws prohibiting the use of money in connection with adoptions. It also suggested that the surrogate mother is being exploited because she ‘never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby's birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary. Her interests are of little concern to those who controlled this transaction… it is clear to us that it is unlikely that surrogate mothers will be as proportionately numerous among those women in the top 20 percent income bracket as among those in the bottom 20 percent.’

In Johnson v. Calvert , the California Supreme Court took the opposite view holding that surrogacy differed in crucial ways from adoption which therefore did not apply; it also rejected the argument about exploitation of poor women saying, ”Although common sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment.”

Interests of the Child:

Mr. Venkatesan asks what would happen, in the case of surrogacy, to the child’s interest to remain with his/her biological mother. I would not use the word ‘biological’ because its connotation is unclear – often the egg is donated by one woman (the ‘genetic’ mother) and the pregnancy carried through by another (the ‘gestational’ mother/surrogate). Some jurisdictions (Virginia for example) recognize the gestational mother as having parental rights whereas others (California, ICMR guidelines in India for example) confer this right to the genetic mother. It is certainly possible to argue this ethical question both ways. Other concerns regarding the impact of surrogacy on children as and when they grow up have also been voiced (the legal argument is therefore about not this particular right but the ‘best interests of the child’). The only answer I can provide is that studies till date have not shown any evidence of adverse psychological impact of surrogacy on children up to adolescence (longer term studies have not been conducted). No adverse effect has been noted on gestational surrogates either. On the contrary, there is some reason to believe that those who obtained their children through surrogacy are more doting and make better parents (click here for a BBC news report reporting the findings of one such study).

The other question is whether the gestational surrogate can give up the child voluntarily following delivery. That is part of the deal; indeed, a significant fraction of litigation in the US can be traced to the lack of legislative guidance on this point. Studies indicate that in general, such surrogate mothers are only rarely troubled by the prospect of giving up the child. In India, the ICMR guidelines seek to avoid this problem by declaring that gestational surrogates ‘must relinquish in writing all parental rights concerning the offspring’ (3.5.5).

The ABC news item mentioned in the previous post stated that ‘commercial surrogacy has been legal in India since 2002’ though no new law has been enacted pertaining specifically to this topic. I think the reference was to the ICMR guidelines which were put up for public debate at that time.

CEC's article & a few comments

The Chief Election Commissioner, N.Gopalaswami has written an article on Election management and absentee electors in The Hindu today. He provides sufficient explanation for holding two-phase poll in the recently concluded Gujarat assembly elections. One did not know that the problem of ADS (Absentee, Duplicate, and Shifted) voters has been a major problem confronting the Commission. The CEC has admitted that in the U.P. assembly elections held last year, some District Election Officers deleted absentee electors' names without going through the mandatory drill of issuing notices, waiting for replies etc. Similar allegation was levelled against the Commission by the CPI(M) at the time of the West Bengal assembly elections. But at that time, the EC chose not to reply to the CPI(M)' s allegations carried in the party's detailed Note after the elections. Therefore, the CEC's attempt to put the record straight at least in the case of Gujarat and U.P. will be very much appreciated. My last post on the CPM's note is here.

The CEC also makes a passing observation that the Electors' Photo Identity Card has not been a success in real terms, because the electors do not take due care of them, while shifting, and also because it is not mandatory, as in lieu of EPIC, other proofs of identity are accepted. He, therefore, makes a valid case for multi-purpose identity cards for every citizen. Although the CEC did not deal with this issue, the question of making the exercise of franchise compulsory for every citizen needs to be seriously considered and debated, if only to eradicate the problem of ADS or bogus voting. The right not to exercise franchise cannot be claimed as part of fundamental right, and there is a need to legally test this proposition.

While I welcome the CEC's article throwing light on an issue which has remained a problem within the corridors of Nirvachan Sadan, I would strongly urge the CEC and his illustrious colleagues to revive the practice of publishing annual narrative reports - a tradition, which was discontinued for lack of (I assume) interest within the EC. For those interested in knowing more about this tradition, and its contribution, I would suggest my article which has been published in the Journal of Constitutional and Parliamentary Studies, in 2006. As the Journal is not online, I am giving here the link to the unpublished version of the same article.

EC's decision on Narendra Modi has seeds of his likely disqualification

Narendra Modi’s emphatic return to power in Gujarat assembly elections led observers to interpret the various factors that led to his party’s victory. It was suggested that it was Moditva with its three ingredients of Hindutva, Gujarati asmita and development that led to such an overwhelming victory. All the post-election interpretations offered in the media, however, failed to explain how Moditva (with its USP being communal agenda) could succeed – or be allowed to succeed – in an election which is seemingly free and fair. Some observers have pointed out (I am tired of providing links, as there are too many of them) that communal agenda alone could not have given Modi this impressive scale of victory.

I would mostly agree with this analysis, and I also do not believe that Modi’s remarks on Sohrabuddin, or Sonia Gandhi’s ‘merchants of death’ speech tilted the scales suddenly during the campaign. Having said that, however, I feel proud of our R.P.Act, which has stringent provisions, to punish those who might have even attempted to communally polarize the electorate on the eve of an election, even if such an attempt did not ultimately succeed.

Therefore, from the viewpoint of our electoral law, the debate on whether Modi succeeded in communal polarization or not is not relevant. The relevant question is whether he attempted to do so, when he made that Sohrabuddin speech. That he referred to terrorism and not to Sohrabuddin as a Muslim is a ready explanation in his defence. However, having taken a different stand before the Supreme Court that he was not a terrorist, and that his killing was a fake encounter, Modi’s reference to Sohrabuddin must be considered as a plain and simple rabble rousing. Is this permissible under the law? What are the consequences?

The Election Commission found him guilty of violating the very first guideline in the Model Code of Conduct which says:
No party or candidate shall include any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.

The Commission told Modi in its decision: "It can hardly be gainsaid that some of the impugned utterances in your speech under reference had the effect of aggravating the existing differences to create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The amount of controversy and national debate which those utterances created all over the country and which even attracted the attention of the Apex Court of the country bear ample testimony to the above fact of aggravating the existing differences between the main communities inhabiting the State of Gujarat. ...The justification provided for the above referred utterances as reaction/counterblast to certain propaganda, as alleged by you, to have been carried out against you can also hardly be accepted....The Commission, after careful consideration of all aspects, has come to the conclusion that in the instant case, the Model Code of Conduct, has been violated.”

The E.C. perhaps thought (it did not say so explicitly) that Paragraph 16A of the Symbols Order, which empowers it to suspend or withdraw recognition of the parties for violation of the Code, is too drastic a punishment for Modi.

If the E.C.’s finding on Modi’s violation of Model Code is correct, Section 123 (3A) of RPA can be easily invoked against Modi, even though the filing of an election petition is the prerogative of a losing candidate or an aggrieved elector. The expression of “feelings of hatred” is common to both the Model Code of Conduct, and the RPA, even though the latter is more elaborate. (the promotion of , or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, etc.) Similar expression is also found in S.153-A of IPC. (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. The word ‘hatred’ or ‘ill-will’ is found in S.153A (a).)

The objective of both S.123 (3A) of RPA and S.153-A of IPC is to curb any tendency to resort to divisive means to achieve success at the polls on the ground of religion, or narrow communal or linguistic affiliations. One could understand if E.C. pleads that it cannot invoke RPA against Modi, as it lacks competence. But S.153-A of IPC? In many previous instances of model code violation by other candidates, the E.C. felt free to seek registration of FIRs because the accused had prima facie committed offences under IPC sections also. In Modi’s case, the question why E.C. did not deem it necessary to do so, despite its clear finding, is indeed troubling.

In the Ramesh Yeshwant Prabhoo case,(1996 1 SCC 130)the Supreme Court not only upheld the validity of S.123(3A) holding it to be a reasonable restriction in the interest of `decency’ within the meaning of Article 19(2). It held in that case both Bal Thackeray and Ramesh Yeshwant Prabhoo (candidate) guilty under S.123(3A) of RPA. The E.C. later disqualified both Thackeray and Prabhoo from voting and contesting for six years.

The aggrieved voters or the losing candidates in Modi’s constituency, therefore, have an opportunity given on a platter by the E.C. through its finding on the Code violation, to challenge his election, and seek his disqualification later by the E.C.if the Courts found Modi guilty of corrupt practice. As the E.C. is the competent body to disqualify following the Court verdict,(its recommendations are binding on the President who disqualifies) its findings on code violation carry weight, and should not be dismissed as routine decisions.

Outsourcing Wombs - Commercial Surrogacy in India

There is an interesting blog on commercial surrogacy in India in the NYT by Judith Warner. It is best to read the whole piece but here some excerpts:

“…the money [Indian surrogate mothers] were earning for their services — $6,000 to $10,000 – might have been a pittance compared to what surrogates in the United States might earn, but it was still, for their families, the equivalent of 10 to 15 years of normal income.

…Because what’s going on in India – where surrogacy is estimated now to be a $445-million-a-year business — feels like a step toward the kind of insane dehumanization that filled the dystopic fantasies of Aldous Huxley’s “Brave New World” and Margaret Atwood’s “Handmaid’s Tale.” (One “medical tourism” website, PlanetHospital.com, refers to the Indian surrogate mother as a mere “host.”) Images of pregnant women lying in rows, or sitting lined up, belly after belly, for medical exams look like industrial outsourcing pushed to a nightmarish extreme.

…Unlike in France, where commercial surrogacy is banned, or in Italy, where almost every form of assisted reproduction is now illegal, laws in the United States are highly ambivalent on this most drastic use of reproductive technology. Commercial surrogacy is legal in some states, illegal in others and regulated differently everywhere, and little that’s clear and conclusive about where a birth mother’s rights to a baby end and where the fee-paying mother’s rights begin.

…But our rules of decency seem to differ when the women in question are living in abject poverty, half a world away. Then, selling one’s body for money is not degrading but empowering. And the transaction is not outsourcing of the basest nature – not modern-day wet-nursing taken to the nth degree – but a good deal for everyone concerned. “There’s nothing wrong in this,” Priyanka Sharma, another surrogate, concluded the Marketplace segment. “We give them a baby and they give us much-needed money. It’s good for them and for us.”

In its perverse way, surrogacy does seem to bring a measure of empowerment to the poor Indian women who take part in it. Dr. Nayna Patel, the director of a popular clinic that draws dozens of poor rural women as surrogates every year, houses them and provides them with constant monitoring and medical care, told Marie Claire magazine last summer that she takes steps to ensure that each woman who contracts with her as a surrogate keeps control of her money afterwards. “If she wants to buy a house, we’ll hold her money for her until she’s ready. Or if she wants to put it in an account for her children, we’ll go with her to the bank to set up the account in her name,” she said.

Maybe when greater steps are taken toward improving international adoption procedures, maybe when more substantive steps are taken to improve the health, status and education of women world-wide, it’ll be easier to say with a clear conscience that what feels like callous exploitation really is just that.”

She quotes two additional online sources: a report by ABC news and another from marieclaire.com. The ABC report says that the practice has been legal in India since 2002. The report also raises the twin concerns of growing third world baby farms more out of convenience than necessity and compromises on safety to cut costs in a relatively unregulated marketplace:

“...if commercial surrogacy keeps growing, some fear it could change from a medical necessity for infertile women to a convenience for the rich. "You can picture the wealthy couples of the West deciding that pregnancy is just not worth the trouble anymore and the whole industry will be farmed out," said Lantos.

Or, [Dr. Lantos from Center for Practical Bioethics, Kansas City] said, competition among clinics could lead to compromised safety measures and "the clinic across the street offers it for 20 percent less and one in Bangladesh undercuts that and pretty soon conditions get bad." The industry is not regulated by the government. Health officials have issued nonbinding ethical guidelines and called for legislation to protect the surrogates and the children.”

The report also says that reliable numbers regarding the extent of the practice are hard to come by though doctors work with surrogates in every major city. For this reason, I am not sure how far the eye-popping number of $445 million, quoted in the Marie Claire report without reference, is reliable.

Opposing editorial analyses of the scrapping of SEZs in Goa

As we await further developments on the Goa Government’s decision to scrap SEZs in the state, two prominent dailies have issued contrasting editorials. Yesterday, the Hindu’s editorial team weighed in, speaking out in favour of the Goa government’s stance. The Hindu editorial views the decision as responding to the public protests in the state against SEZs, and advises the Central Government to “respect this democratic outcome and help the State government speedily resolve all remaining issues, especially the question of how land already allotted to private parties in the three notified SEZs will be recovered.”

In making its case, the Hindu editorial focuses on the following points:

A coastal State with an area of 3,700 square kilometres and a population of about 1.4 million, Goa has always been extremely sensitive to the impact of unrestrained economic development. The upsurge of public activism against the setting up of Special Economic Zones, which eventually forced the State government to announce the scrapping of all 15 such projects, is an impressive case in point. Early last year, a similar agitation coerced the government into calling for a re vision of the Goa Regional Plan 2011, a controversial document that opened up large swathes of land, including green belts and coastal stretches, for construction. The broad-based agitation against SEZs has demonstrated the power of popular protest in the State. Those opposed to the projects had questioned the propriety of the government acquiring large tracts of land and then selling them to promoters at low prices. There were also suspicions that some of the SEZs were real estate speculative plays, fronts for the entry of big construction companies.

The Express editorial, which is featured in today's issue, draws attention to the overall policy implications for SEZs in general, and urges the Central government to “stand firm in rejecting the decision” of the Goa Government. Here are the details it relies upon:

Of the 15 proposed SEZs three have already been notified by the Centre after the state government earlier recommended them. The other 12 SEZs too have been recommended by the state government but remain to be notified. However, the land has been formally allotted in the case of all the SEZs. In the case of SEZs already notified construction is under way and investments worth Rs 500 crore are in the pipeline. Equipment has already been imported at zero duty by one of the SEZs being set up by a well-known pharmaceutical company. The company also has other non-SEZ operations in Goa where the bulk of the people employed are locals. The Centre will have to decide whether it wants to generate more employment or let rent seekers have their way.

Addressing the legal issues involved, the Express editorial avers:

Legally, the state government just cannot cancel SEZs which have already been notified and where work has started. The courts may not allow that. However, since land use is a state subject, the Goa government will try to cancel the SEZs which have not been notified. Technically they can do so. It is here that the Centre must stand firm. Technical arguments will not help restore the credibility of the UPA if it gives in to pressure from the Goa Chief Minister Digambar Kamat.

The Express editorial ends by making a pitch for the “integrity of the process” of national policy-making:

The country has gone through a fairly robust debate on the feasibility of SEZs. Several modifications to policy have been made in the area of land acquisition. Even within the UPA it is now accepted by all that SEZs are indeed desirable to drive development. It is of paramount importance that India moves large sections of its population from low-yielding agriculture to industry within a democratic framework. That is precisely what the SEZ policy seeks to do. The UPA must do everything to maintain the integrity of this process.

In my view, these contrasting editorials do a decent job of representing the diverse policy issues involved. One can, however, quibble with particular arguments made by each editorial. The Hindu may be emphasizing ‘people power’ to the detriment of other factors, such as the problems involved when governments go back on policy decisions, thereby adversely affecting investors who have acted on such undertakings. The Hindu also ignores the messy political calculations involved, and its act of commending the current leaders, who were party to all the overruled decisions, seems a bit much. The Express editorial, on the other hand, makes the mistake of overemphasizing the “integrity” of the policy debate over SEZs. In particular, its claim that “the country has gone through a fairly robust debate” over SEZs seems particularly misplaced. When exactly did such a debate take place? Were all stakeholders party to such a debate, and how do we know that all the legal and policy implications were discussed?

These problems aside, the editorials do set up the policy dilemmas involved in debating SEZs reasonably well. Together, they point to the many challenges involved in crafting a balanced policy towards SEZs.

Update, 2 pm: In the comments section, Dilip provides links to two papers by Aradhna Aggarwal which provide very useful background context, facts and statistics, and analysis. I am providing links to those documents in the text of this post: those interested getting a deeper understanding of this issue will benefit from reading these two pieces. This is a shorter EPW piece, while this is a longer working paper under the institutional aegis of ICRIER.

SEZ Troubles ... Again

On Monday, the government of Goa decided to scrap all SEZ projects in the state, as reported in the Hindu. Today’s Hindustan Times has an editorial which provides more details:

The decision was taken after a panel, set up to study the viability of the SEZs, observed that these tax-free havens were not “right” for Goa’s development. It added that the proposed SEZs would not match the talent skills in Goa, would further burden the existing infrastructure and will not create any employment. Goa has three notified SEZs — a pharma hub and two other Information Technology (IT) and IT-enabled services (ITeS) ones. The state had also sought permission to set up seven more SEZs, and allotted over 1,500 acres of land through the Goa Industrial Development Corporation. The proposal came under fire after villagers alleged misappropriations in land sale to real estate majors.

The opposition is on three main issues: displacement from prime agricultural lands, access to water resources and large-scale migration from other states. Migration, the protestors believe, will upset the state’s harmony and create law and order problems — not to mention, put pressure on available resources. The other major reason, and this is common to anti-SEZ protests across the country, is the perceived role of the State in acquiring lands on behalf of industry. The State is seen as colluding with industry in ‘grabbing’ arable land and, thus, the livelihood of people. Considering that there is no data of the employment generated by SEZs with their thrust on IT, ITeS sectors, which are not labour intensive, such fears are understandable. While the people are losing land, the industry is perceived to be in a win-win situation with the tax breaks provided

Here is the HT editorial team’s prescription:

The SEZs will only become attractive if the approach is inclusive. They will be attractive if the compensation is commensurate. Gujarat has shown how the process can be carried out effectively. But first, the State needs to be seen as a protector, not as an aggressor. The scramble among Chief Ministers for rosy figures will not take us anywhere, because figures seldom tell the true story. For the sake of the reputation of SEZs — not to mention the well-being of people — the State must understand this.

For previous blog entries detailing SEZ troubles in other parts of India, click here, here and here.

Update, Jan 03: In the comments section, Umakanth notes that the Central Government has taken issue with the Goa government's decision to scrap all SEZ projects, and suggests that this has now become a Federalism dispute, which may end up in court. As this news-item from today's issue of the Indian Express details, the Central Government seems to concede that the Goa Government does have authority to cancel pending projects, but disputes the state government's ability to cancel the three projects that have already been notified by the Centre. The article also notes the political complications involved, since Goa is currently ruled by a Congress government, and the current Chief Minister was intimately involved with the previous government's decisions to approve the SEZ projects.

Given all these factors, unless a private party that is adversely affected by the decision to scrap the SEZs takes this to court, my own view is that this is likely to be settled behind closed doors, among the powers-that-be in the state and central Congress circles. Umakanth's point is, however, valid for other SEZ projects, where the state governments involved are ruled by non-Congress parties. Observers of the Indian polity have long foretold the coming battles over our unwieldy Federal system, which was created to cater to the situation existing in India in the 1940s. Perhaps that battle will be joined over the issue of SEZs.

The Assassination's Aftermath: A Round-up of Speculative Comments

B.Raman has a column on the assassination of Benazir Bhutto in Outlook wherein he names the suspects:

“Two versions have been circulating. Both attribute her assassination to Al Qaeda, but claim that Al Qaeda did not carry out the assassination directly, but through its Pakistani trojan horses. One version names the trojan horse as the anti-Shia Lashkar-e-Jhangvi (LEJ) while the other names it as the followers of Baitullah Mehsud of South Waziristan.”

He goes on to cite several reasons to doubt the latter claim of al-Qaeda acting through the LEJ. Referring to the released transcript of a conversation allegedly involving Baitullah Mehsud, he feels there is some reason to suspect it:

“Col. Cheema further claimed that the investigators had also established that the same group was also responsible for the October 18 attempt to kill [Benazir] at Karachi. For more than two months, they could not make a break-through in the investigation into the October 18 attempt. How suddenly they made a break-through after her assassination at Rawalpindi?”

He also argues that the ‘the loyalists of the late Zia-ul-Haq in the Armed Forces and in the Punjab Government and in the community of retired army and intelligence officers were also equally determined to prevent her from becoming the Prime Minister.’ He goes on to list a variety of questions that remain to be answered. In a column the previous day, he also listed several pieces of evidence suggesting al-Qaeda infiltration of the Pakistani armed forces and the intelligence establishment.

A report in the Washington Post detailing American negotiations with Musharraf and Benazir indicates (what was previously known but perhaps more authoritatively) how the Bush administration’s plan was to create only a façade of democratic governance with her in the PM’s seat as its face. Bob Novak’s column today recalls his conversation with Benazir and chronicles how the messages from Washington may have affected events in Pakistan leading eventually to her death. More disturbingly, Novak thinks that the message could be interpreted as Washington’s willingness to acquiesce in a rigged election. Here is what he says:

“In early December, a former Pakistani government official supporting Bhutto visited a senior U.S. government official to renew Bhutto's security requests. He got a brush-off, a mind-set reflected Dec. 6 at a Senate Foreign Relations Committee hearing.

Richard Boucher, assistant secretary of state for South and Central Asian affairs, was asked to respond to fears by nonpartisan American observers of a rigged election. His reply: "I do think they can have a good election. They can have a credible election. They can have a transparent and a fair election. It's not going to be a perfect election." Boucher's words echoed through corridors of power in Islamabad. The Americans' not demanding perfection signaled that they would settle for less. Without Benazir Bhutto around, it is apt to be a lot less.

A more sinister fallout of a free hand from Washington for Pakistan might be Bhutto's murder. Neither her shooting on Thursday nor the attempt on her life Oct. 18 bore the trademarks of al-Qaeda. After the carnage, government trucks used streams of water to clean up the blood and, in the process, destroyed forensic evidence. If not too late, would an offer and acceptance of investigation by the FBI be in order?”

Meanwhile, speculation continues to mount about a botched investigation and a government effort aimed at a cover-up. The Pakistani government has responded to calls for an international investigation by announcing its willingness to accept expert help from other countries though not a full-fledged international investigation (by the UN a la Rafik Hariri in Lebanon). The Guardian has a FAQ item for those wanting to learn about the current status of facts, allegations and theories.