Monday, June 30, 2008

Freedom of Press v. Social Justice

The recent arrest of the Andhra Jyothi editor and the reporters has justifiably raised concerns about the freedom of press. Commentators have already termed it as a tussle between social justice and freedom of press. This arrest raises a larger question – whether criminalizing speech and expression is the appropriate way of protecting the rights of the under-privileged sections of the society. The validity of Andhra Jyothi arrests can be sustained only if it is in accordance with the law under which the arrests have been made and more importantly the Constitution which guarantees the freedom of speech and expression.

Let me outline the brief facts before I analyze the legal and the constitutional position. The arrest of the journalists was based on a complaint lodged by Madiga Reservation Porata Samithi (MRPS) leader Manda Krishna Madiga. He had alleged that the action of Andhra Jyothi staffers in beating up an effigy symbolising him with footwear attracted the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This alleged incident took place during a rally taken out by the Andhra Jyothi employees in protest against the attack on their office by MRPS activists. Earlier, the MRPS activists allegedly raided the daily’s office, protesting against a report describing some unnamed leaders belonging to the backward classes as ‘saleable commodities.’
The arrests have been made under section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which penalizes anyone (other than a member of Scheduled Castes and Scheduled Tribes) who “intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view”. The action of the State Government in arresting the Andhra Jyothi editor and reporters is illegal and unconstitutional for four reasons.

First, the State Government cannot invoke the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act merely because a member of the Scheduled Caste and Scheduled Tribe is insulted or humiliated. It can only be invoked when a member of Scheduled Caste or Scheduled Tribe has been insulted or humiliated only on account of he being a member of Scheduled Caste or Scheduled Tribe. If he is insulted or humiliated for any other reason, then this Act is inapplicable. This is the settled legal position and any other contrary view would imply that members of Scheduled Castes are immune from all criticism and insult, even if it is justifiable. To illustrate, if the effigy of Chief Minister Mayawati (who is a member of Scheduled Caste) is burnt in protest against some action taken by her or speech given by her, the provisions of this Act cannot be invoked because she is not being insulted on account of her being a member of Scheduled Caste. In the present case, the effigy of Krishna Madiga was being burnt not on account of he being a member of Scheduled Caste, but rather in protest against attack on the newspaper offices by the organization headed by Krishna Madiga. The State Government’s action goes against the purpose of the Act.

Second, section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act under which the arrests have been made can only be invoked when the member of the Scheduled Caste is insulted or humiliated within full public view. The provision requires the presence of a member of scheduled caste when the alleged insult or humiliation happens. The Kerala, Rajasthan and the Madhya Pradesh High Courts have already held that the Act cannot be invoked if the member of Scheduled Caste or Scheduled Tribe is absent when the alleged insult or humiliation happens. On the undisputed facts, Mr. Krishna Madiga was absent at the place when the protest happened. The arrest is thus illegal and goes against the clear provisions of the Act.

Third, the arrest also violates the constitutional right of expression guaranteed under Article 19(1)(a) of the Constitution of India. The Supreme Court in a series of decisions from right from 1950 has recognized freedom of press to be implicit in the constitutional guarantee of free speech and expression. (See Brij Bhushan v. State of Delhi, AIR 1950 SC 129) While “public interest” is a justifiable ground for restricting other rights granted under Article 19 like the right to practice any profession, trade or business, our constitution makers consciously omitted “public interest” as a ground for restricting free speech. The Supreme Court in a landmark case in Sakal Papers (1962) ruled that it is not open for the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people.

Andhra Jyothi as a newspaper has a constitutional right to express its viewpoint – right or wrong – on the character of public personalities. And when it is physically attacked for expressing that viewpoint, the employees of Andhra Jyothi have a constitutional right to protest. The Andhra Jyothi employees were doing precisely that. Instead of taking effective action against those people who attacked the constitutional right of free speech, the State Government invoked the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and applied it in a manner inconsistent with the right of free speech and expression.

Fourth, the larger concern with the action of the State Government is that it creates a “chilling effect” on the exercise of constitutional right of free speech and expression. Anyone (including the media) who wants to criticize or comment on an action or statement made by a member of a Scheduled Caste or Scheduled Tribe will think twice about doing so, even if it has nothing to do with the caste of that person. The Government is under an obligation to create an enabling atmosphere where people can express its opinions without any fear or threat from the government or from any private organization, however powerful that organization might be. By arresting the editor and reporters of the Andhra Jyothi, the government has created a disabling atmosphere for exercising the right of free speech and expression.

Sunday, June 29, 2008

INDIA REVISITED



This week, my choice of the book for the blog is India Revisited: conversations on contemporary India (OUP, 2008)written by Ramin Jahanbegloo, an Iranian scholar who suffered imprisonment in his country. The author converses with 27 leading Indian personalities –social scientists, journalists, activists, artists, and sportspersons – to gain an understanding of contemporary Indian society. According to the author, something more than economic wealth, political power, and technological ambition is needed to combat corruption, poverty, and inequality in India.

Presented in an informal conversational style, the book appears to offer lessons to aspiring authors, with book-ideas on modern India. Here, I will mention some of the author’s interviewees, and the subjects (each interviewee also deals with a specific subject) with which some of us are interested.

The author is conscious of the limitations of this kind of book. He admits that India is too complex to be understood in a narrow frame of one or two conversations. Yet, does the book capture the spirit of India as it promises? In the introduction, the author says India is distancing itself from Gandhi’s principles. He also says that Indians have paid a high price for the survival of democracy in India. Although the author may not agree, some would say that distancing from Gandhian principles itself has been part of this high price. Had not we distanced themselves from Gandhian principles (at least some of them, which are out of tune with the modern ethos), it is difficult to imagine whether we would have survived as a democracy.

The author’s interviews with Soli Sorabji ( Indian Constitution: Strengths and weaknesses), T.N.Madan (Critiquing secularism), D.L.Sheth (caste in Modern India), T.R.Andhyarujina (Role of Parsis in Modern India), Mushirul Hasan (challenges to Islam in India), Nivedita Menon (the woman question), Vandana Shiva (fighting indiscriminate globalization) Sonal Mansingh (Indian classical dance as a Genre), Mrinal Sen (Filming India), Prabhash Joshi (Cricket as an Indian Game) are some samples from this book, though I feel all the 27 interviews need to be read with equal interest and curiosity. This interview with the author also profiles him.

Saturday, June 28, 2008

New Bill to Regulate Surrogacy

I thank Mr. Venkatesan for drawing my attention to the article on surrogacy by Amrita Pande and the editorial in Mail Today. The government is apparently planning to bring in new legislation to regulate commercial surrogacy. The Telegraph which says it has a copy of the bill provides some details.

The draft — a copy is with The Telegraph — binds commissioning parents to bear all medical expenses, including insurance, of the surrogate mother while she is carrying the child in her womb.

The draft also says the surrogate mother may “receive monetary compensation from the couple or individual, as the case may be”, but “shall relinquish all parental rights over the child” once it is handed over to the commissioning parents.

…The draft law — called the Assisted Reproductive Technology (Regulation) Bill, 2008 — says the child’s birth certificate shall bear the names of his or her genetic parents.

It says that a woman has to be between 21 and 45 to be a surrogate and free of diseases. No woman, the draft adds, will be allowed to act as a surrogate more than three times, while records of all surrogacy agreements will have to be maintained at the ICMR.

The draft law also envisages a regulatory mechanism comprising a registration authority for ART clinics, with state and central advisory boards over it.

Groundreport reports:

The law would decide the status of the child born through the surrogacy arrangement in the event of custody battles between the commissioning parents and the surrogate mother, Renuka Choudhary said on 25th June.

All this is very similar to the existing guidelines of the ICMR. The latter’s shortcomings which, if this Telegraph report is correct, not surprisingly, persist in the draft bill as well. I would however wait for its contents to be made public before critiquing it.

Pande is right that a law is required to regulate commercial surrogacy particularly to avoid conflict with pre-existing laws (for example, as Raghav Sharma points out, the money paid to the surrogate mother is potentially in violation of sec. 17 of the Hindu Adoptions and Maintenance Act (1956) which bars payment or other reward in consideration of the adoption of any person). Her concern about the final form that such a law might take is perhaps justified though the Health Minister has indicated quite clearly that its primary purpose will be to protect gestational mothers from possible exploitation.

In the last paragraph, she argues that we do not have the luxury of diverting resources towards new reproductive technologies like surrogacy because our women lack basic health care amenities. Yes, but how would a prohibition of surrogacy change any of this? That very question also needs to be asked when she talks about poor women being ‘advised’ to undergo sterilization while richer women are ‘advised’ on ways to conceive their own child. As Richard Posner puts it, ‘How will infertile low-income couples be helped by a law that forbids upper-income couples to hire lower-income surrogates?...It is very difficult to see how people who can’t afford to pay for surrogate arrangements are helped by a law that forbids those who can afford to pay to enter into enforceable contracts of surrogacy.’ (J. Contem. Health & Pub. Policy 22, 1989). The ICMR report , aware of this issue of equitability, also recommends that ‘The setting up of ART clinics in the public sector, which do not exist as of now, must be explored’ (Chapter 7). Whether the bill will make any provision for this remains to be seen.

The Mail Today editorial recommends abrogation of the practice and a return to altruistic surrogacy on the ground that commercialization tends to exploit poorer women. Apart from the same question (vide supra) raised here as well, there are other aspects to be considered. Are the women who provide this service not merely poor but so desperate that they have no other avenues for livelihood and therefore no real choice in the matter at all? Or are they knowingly forgoing less remunerative careers simply because they value the money more than the physical/psychological burden of bearing someone else’s child? Secondly, women who are healthier (and presumably better off by implication) have a competitive advantage over others and are more likely to find ‘employment’ – couples seeking a surrogate prefer their child to be carried by a healthy and well-fed mother – those who are too poor to afford two square meals a day are also likely to be undernourished and therefore less successful in this profession (see this piece in NYT for example; Posner and others have also made this point). The monetary compensation will also ensure better health and livelihood of the gestating mother. A pertinent observation by the California Supreme Court in Johnson v. Calvert may therefore be noted: “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.” The question therefore is not whether this practice is exploitative in the absolute but more so than available alternatives. The editorial does not dwell on this issue in sufficient depth to answer these points.

The subject certainly needs more debate and publication of the draft bill should facilitate that. Those interested to learn more may read the previous posts upon this issue here and here.

Friday, June 27, 2008

How MPs discharge their duties

Rarely, Members of Parliament are evaluated for their work as Members of Parliament. This is not surprising, as MPs, first and foremost, are party men and women, and their role and contribution to the making of laws are given only secondary importance. No wonder, most MPs, disappointed with the limited opportunities (given by their parties) to speak and take part in the debates in Parliament, use extra parliamentary means to attract the attention of the media. Indeed, there is a need for a scholarly work (may be PRS can underake this task) on the number of private Members' Bills introduced in Parliament, their subjects, and the time spent on the debates on these Bills. These thoughts came to me as I read two absorbing obituaries on G.M.Banatwala. They are here and here.

Occasional Digest of Law and Other Things

The following are links to some important articles on subjects which are of interest to us and on which some of us may be interested in sharing our reflections. (I have relaxed the standards of inclusion in this digest, by adding secondary literature also, in view of paucity of primary material on every subject)

1. Judicial Impact Assessment by N.R.Madhava Menon, member of the Committee on JIA which submitted its report to the Government recently.

2. In a first of its kind, a Brazil AIDS group opposes drug patent in India.

3. Rajeev Dhavan on the case against Ashis Nandy.

4. T.R.Andhyarujina on why Afzal Guru, convict in the Parliament attack case must be freed.

5. Amrita Pande on the absence of law regulating surrogacy in India

6. News report on why the Government's move to allow foreign magazines into India is bad.

7.C.V.Madhukar on the current nature of participation by women MLAs across the country.

Wednesday, June 25, 2008

Tamil Nadu's progressive step

This edit in the latest EPW complements Tamil Nadu for being the first State to recognise the rights of the transgender, treating it as a third category. A recent order by the Education Department of the State, according to the edit, enables the transgender to choose any institution they like, men's, women's, or co-educational. Earlier, members of transgender were treated as men, and they had to suffer considerable harassment because of this. Tamil Nadu has also taken a number of steps for the welfare of the transgender, clearly setting a model for the other States.

Tuesday, June 24, 2008

The Right to Recall

Voters in Chhattishgarh have recently exercised their 'right to recall' elected representatives. Although the general reception of the idea, strongly advocated by Lok Sabha Speaker Somnath Chatterjee, has been welcoming, this article advises caution.

The manner in which this worked in Chhattisgarh is described in the story linked above thus:
'The Chhattisgarh recall ballot papers have only two symbols — both chairs with one occupied and another empty. The electorate will vote on the empty chair if they want to recall the elected representative or exercise their franchise on the occupied chair if they want the person to remain in office.'

I don't understand how this fits in with our First Past the Post (FPP) system? Rarely, if ever, does the winning candidate get a majority of votes cast. In our multi-party elections, the winner's average votes tend to be between 25 and 40%. How, then, can we expect that the same person will have the confidence of more than 50% of the electorate on a recall ballot? Of course, popularity changes while in office. But surely, the entry criterion cannot be less demanding than the one required to stay on the job? Or have I missed something in the manner of original elections to local bodies in Chhattisgarh?

Of course, one may say that in the original election, there are several opponents, and therefore vote-share tends to be less than majority; while in the recall vote, the only options are to let them continue in office or recall. This works on certain assumptions - let us assume that in the original poll, there were three candidates - A, B and C. A won the poll by getting 36% of the total votes cast, while B and C got 33% and 31% respectively. How do we predict voter behaviour in this original poll in the hypothetical case that C wasn't in the fray. There are no run-off elections in the FPP system, and it is entirely possible that most of the people who voted for C would have wanted B as their second alternative. Demanding of A to demonstrate a simple majority later without modifying the FPP system is strange.

Monday, June 23, 2008

Understanding Seervai


H.M.Seervai: Doyen of Indian Constitutional Law – An Australian Appreciation by Justice Michael Kirby (Universal Law Publishing Co., New Delhi, 2008), is a fitting tribute to Seervai. This book reproduces the Seervai Centenary Memorial Lecture delivered by Justice Kirby in January 2007.

In his foreword to the book, T.R.Andhyarujina says had Seervai met Justice Kirby in his lifetime, they would have become intellectual companions. TRA draws attention to Justice Kirby’s questioning Seervai’s testamentary prohibition on posthumous editions of his work. Kirby urges that a new edition should be produced to keep Seervai’s legacy alive not only in India, but in other constitutional democracies where Indian judicial authority is increasingly being cited.

Asking what does one see today, in the 21st century, 10 years after his death (he died on the Republic Day in 1996 – what a coincidence!), on looking into Seervai’s Constitutional Law, Kirby answers the following:

First, there is the uniquely opinionative character of the text. This is deliberate, not accidental. Second, Seevai’s prose is sharp to the point of administering a personal sting. Third, Seervai tackles controversy that others might have been inclined to allow to pass. His discussion of attempted impeachment of Justice V.Ramaswami, a Judge of the Supreme Court, in his fourth edition is cited as an instance. Fourth, he was greatly influenced by traditions of the law in the India in which he grew up. Fifth, Seervai repeatedly demonstrated his love of history, and respect for it, as the necessary setting for constitutional elaboration. Sixth, Seervai reflects a narrower view than would often now be held concerning the importation of political, economic and social concepts into the task of constitutional interpretation.

Kirby recalls several instances of Supreme Court Judgments holding Seervai’s work in the highest esteem, and citing his work as an authoritative source of legal principle and analysis.

Kirby says: “No author, even one so great as Seervai, has the right to speak beyond the grave and to forbid a new edition to a work so important, basic and instrumental in the life of Indian democracy.” The book includes an introduction to “evoking H.M.Seervai” by H.M.Seervai’s wife, Feroza H.Seervai, and a tribute by TRA himself.

The link to Kirby's original speech on Seervai is here.

Sunday, June 22, 2008

Research Paper: Achieving India’s Growth Potential

Just as the Indian economy reels from its double-digit inflation to the tune of approximately 11%, Goldman Sachs, the leading investment bank, has issued its latest research paper titled Ten Things for India to Achieve its 2050 Potential. This is part of a series of papers published over the last few years by Goldman Sachs covering the BRIC economies of Brazil, Russia, India and China.

The paper builds on Goldman Sachs’ Growth Environment Scores (GES), in which India scores below the other three nations. Further, it ranks 110 out of 181 countries, and for 7 of the 13 components India scores below the developing country average. The current report contains some prescriptions for India to achieve its potential by 2050, noting that “[h]aving the potential and actually achieving it are two different things”. This effectively boils down the lack of proper implementation of reforms that slow down economic progress.

The following are the key recommendations extracted from the paper:

“We highlight ten key areas where reform is needed. In all likelihood, they are
not the only ten, but we consider them to be the most crucial:

1. Improve governance. Without better governance, delivery systems and effective implementation, India will find it difficult to educate its citizens, build its infrastructure, increase agricultural productivity and ensure that the fruits of economic growth are well established.

2. Raise educational achievement. Among more micro factors, raising India’s educational achievement is a major requirement to help achieve the nation’s potential. According to our basic indicators, a vast number of India’s young people receive no (or only the most basic) education. A major effort to boost basic education is needed. A number of initiatives, such as a continued expansion of Pratham and the introduction of Teach First, for example, should be pursued.

3. Increase quality and quantity of universities. At the other end of the spectrum, India should also have a more defined plan to raise the number and the quality of top universities.

4. Control inflation. Although India has not suffered particularly from dramatic inflation, it is currently experiencing a rise in inflation similar to that seen in a number of emerging economies. We think a formal adoption of Inflation Targeting would be a very sensible move to help India persuade its huge population of the (permanent) benefits of price stability.

5. Introduce a credible fiscal policy. We also believe that India should introduce a more credible medium-term plan for fiscal policy. Targeting low and stable inflation is not easy if fiscal policy is poorly maintained. We think it would be helpful to develop some ‘rules’ for spending over cycles.

6. Liberalise financial markets. To improve further the macro variables within the GES framework, we believe further liberalisation of Indian financial markets is necessary.

7. Increase trade with neighbours. In terms of international trade, India continues to be much less ‘open’ than many of its other large emerging nation colleagues, especially China. Given the significant number of nations with large populations on its borders, we would recommend that India target a major increase in trade with China, Pakistan and Bangladesh.

8. Increase agricultural productivity. Agriculture, especially in these times of rising prices, should be a great opportunity for India. Better specific and defined plans for increasing productivity in agriculture are essential, and could allow India to benefit from the BRIC-related global thirst for better quality food.

9. Improve infrastructure. Focus on infrastructure in India is legendary, and tales of woe abound. Improvements are taking place, as any foreign business visitor will be aware, but the need for more is paramount. Without such improvement, development will be limited.

10. Improve Environmental Quality. The final area where greater reforms are needed is the environment. Achieving greater energy efficiencies and boosting the cleanliness of energy and water usage would increase the likelihood of a sustainable stronger growth path for India.

Perhaps not all these ‘action areas’ can be addressed at the same time, but we believe that, in coming years, progress will have to be made in all of them if India is to achieve its very exciting growth potential.
While the research report does well to identify key concerns relating to growth and the areas to be addressed, it does pose some fundamental issues at a macro level. One of the criticisms that may be levelled against the report is that it does not present any new findings or prescriptions, and all of those contained in the report are well-known and debated (with perhaps little concrete action being taken). But, this critique is more to do with the form and less with the substance of the matters covered.

More fundamental is the approach towards some of the solutions to the problems. Here, one finds that most prescriptions turn towards market-based models of economic policy and liberalisation—for instance the recommendations for removal of capital controls, for liberalisation of the financial markets and so on. It is important to note, however, that all of those solutions may not directly apply in the Indian scenario. There is a need to contextualise the prescriptions for reforms so that they appropriately fit into the Indian macroeconomic framework as well as with its past experience. Some of the ideas (and materials) that support this thinking are as follows:

(a) Commentators have argued that some level of restrictions and governmental regulation on economic and financial activity may be necessary in the context of developing economies. Joseph Stiglitz is a leading proponent of this view, as he strenuously makes his arguments in his book “Globalization and Its Discontents”.

(b) Similarly, as far as India is concerned, arguments have been made that it is India’s partially restrictive policies that have helped weather the recent global credit crisis or even the Asian financial crisis that swept the region over a decade ago (see this column by T. N. Ninan in the Business Standard).

(c) It is also useful in this context to review Dr. Shankar Acharya’s critique of the Draft Report of the High Level Committee on Financial Sector Reforms headed by Dr. Raghuram Rajan, where the point has been made about the need for taking into accounting the realities in India while examining the nature of reforms.

Saturday, June 21, 2008

Life and Liberty under RTI

The survivors of the Bhopal gas tragedy have been agitating for justice for several days in New Delhi after walking all the way from Bhopal to press their demands. Some of them are in jail, for staging an impromptu demonstration in front of the Prime Minister's residence. In this article in Tehelka, Nityanand Jayaram, an activist himself, writes how the PMO and the Chief Information Commissioner, responded to an RTI application filed by one of the survivors seeking information about the water contamination in and around the factory site, abandoned by the Union Carbide Corporation in Bhopal, following the 1984 disaster. The applicant's plea that it involved the question of life and liberty of her family, and therefore, the authorities are bound under the RTI Act to respond within two working days failed to convince the authorities, apparently without stating any reason.

Friday, June 20, 2008

The significance of the "Long March" in Pakistan

Today's Indian Express has a column providing analysis of recent events in Pakistan, focusing on the lawyers' "Long March" held on June 10 in Islamabad.

It is refreshing to see a renewed focus in the Indian media on these significant developments in Pakistan, which have the potential of altering the balance of power between the important social actors in that nation and are also crucial for the entrenchment of democracy. The global media in general seems to have lost interest in covering events in Pakistan closely after the February 2008 elections when parliamentary democracy was restored, seemingly bringing to an end Musharraf's declaration of emergency rule in November 2007. That declaration of emergency was declared to be "the strangest ever" by TR Andhyarujina, because it explicitly set out "judicial activism" as a reason for the imposition of emergency.

The current set of events are significant because they are designed towards restoring to the judiciary in Pakistan the judges and powers that Musharraf sought to take away in November 2007. The unique aspects of the November 2007 situation in Pakistan (and the prominent role of lawyers in the unfolding of those events) are underlined in this detailed piece in the New York Times Magazine which provides useful background information on the legal and constitutional history of Pakistan, and the crucial role played by legal and judicial elites in seeking to preserve democratic traditions. This excellent piece also serves as a detailed profile of one of the leading figures in recent events in Pakistan, Aitzaz Ahsan, who came into prominence as the lawyer for Chief Justice Chaudhry.

Another take on these recent events is provided by Anil Kalhan, who has closely followed events in Pakistan over the past year. Like the NYT Magazine piece above, Kalhan too focuses on the role of the US in these events, drawing attention to the complex geopolitical calculations that are involved. Those interested in democracy in South Asia should continue to keep a close tab on this issue.

Tuesday, June 17, 2008

NREGA: Activism, Accountability and the Challenge

Corruption in the implementation of the NREGA has been talked about time and again. At the same time, it has been observed by some writers that instances of corruption alone cannot be the ground to measure the success or otherwise of the NREGA. This a reasonable view to take, as it has to be seen whether the implementation of the Act could create appropriate mechanism to ensure accountability at various levels. The recent episode of the murder of the NREGA activist, Lalit Mehta in Jharkhand and the attempt to cover-up and divert the real issues behind the murder by responsible officers in the State will surely disappoint those of us who have been optimistic that the gains of NREGA would outweigh the perceived setbacks.

Here, we publish the following statement signed by some prominent activists, engaged in the evaluation of the implementation of NREGA.

Palamau Report: Enquiry or Cover-up?

We are shocked by the recent report prepared by the Deputy Commissioner (DC) and Superintendent of Police (SP) of Palamau, commenting on Lalit Mehta's murder as well as on the survey of NREGA conducted there in May 2008 by the G.B. Pant Social Science Institute, Allahabad. This report is a deliberate attempt to divert attention from the real issues, which effectively protects those responsible for corruption and violence in the area.

The report shows that the police have made no serious enquiries into Lalit Mehta's murder. It does not provide any credible clue to this murder, but raises a number of mischievous conjectures using selective evidence. For instance, the report refers to interviews with Lalit Mehta's brother and his sons, without mentioning that the sons are one and three years old, respectively. Meanwhile, evidence from extensive interviews with Lalit's wife, Ashrita, is ignored. Further, the report is full of factual mistakes. Even the date of the murder is incorrect: Lalit Mehta was murdered on 14 May, not on 15 May as stated in the report.

Instead of presenting a serious analysis of the circumstances of the murder, the report makes absurd insinuations, such as Jean Drèze's possible involvement in the murder, or the allegation that he and his team manufactured evidence of fraud in NREGA works. Equally ridiculous is the unsubstantiated claim of the possible role of an old family dispute about Lalit Mehta's inter-religious marriage being the cause for the murder.

The report also makes insidious allegations about the survey team, Vikas Sahyog Kendra, and Lalit Mehta's family. For instance, the report presents a ludicrous picture of the social audit activities conducted by the survey team, and even accuses the team of using devious means to collect testimonies. No one familiar with the team's work (which was conducted in a transparent manner in full view of the public and the media) can take this seriously. Casting unwarranted aspersions on people like Jean Drèze, who is a member of the Central Employment Guarantee Council (and therefore mandated to monitor and investigate NREGA implementation anywhere in the country), and on students from Delhi University and other reputed universities, is in fact an attempt to snuff out any independent monitoring of government expenditure.

The report reinforces earlier suspicions that there is an entrenched and deep rooted nexus of corruption and violence surrounding NREGA in Palamau, with powerful connections. Otherwise, why would the district's seniormost officers go to such length to undermine a forthright examination of the use of NREGA funds in this area?

We demand that the report of the DC and SP Palamau be rejected by the Central Government as well as by the State Government, and that a CBI enquiry into Lalit Mehta's murder and the corruption in NREGA works in Palamau District be initiated immediately.

[Signed by Aruna Roy, Bunker Roy, Arundhati Roy, Prabhash Joshi, Harsh Mander, Kiran Shaheen, Nikhil Dey, and Shanker Singh.]

The article written by Aruna Roy and Nikhil Dey in Indian Express can be read here. Readers are welcome to read our earlier posts on NREGA here, here, here, and here.

Monday, June 16, 2008

Rule of Law: A commendable judgment

In an interesting article, titled Arms and Men, Soli J.Sorabjee drew our attention to a judgment by a Division Bench of the High Court in the U.K. stopping executive leniency as reflected in its decision to halt investigations into a bribery scandal, under pressure from a foreign Government. According to him, the judgment is a commendable vindication of the rule of law by courageous English judges, Lord Justice Moses and Justice Sullivan, who were not one bit influenced by the horrific consequences painted by the government if the investigations were continued. The judgment is a testimony to their judicial commitment that “the rule of law is nothing if it fails to constrain overweening power.”

He concluded: "In the celebrated judgment of our Supreme Court in Keshavanand Bharati, the rule of law has been declared to be an essential feature of the Constitution and part of its basic structure. However, if the bench comprised timorous judicial souls overborne by the executive’s strident assertions of danger to security and national interests, the rule of law becomes an empty high-sounding slogan. The rule of law in practice derives its vitality from the approach of brave judicial sentinels unafraid to enforce the rule of law and its principles against the high and the mighty, including the government of the day. The UK judgment is certainly worthy of emulation in countries whose legal systems adhere to the rule of law and who pride themselves on an independent judiciary."

The link to the Moses-Sullivan judgment is here.

This Day That Age

To have our own version of This Day That Age, I searched June 16, 2000 (that is the earliest year available with The Hindu online edition) to read the opinion piece it carried on that day. What I found was an interesting piece by Rajeev Dhavan on the Law Commission headed by Jeevan Reddy, just on the heels of its report on the Prevention of Terrorism Bill. Dwelling on Justice Reddy's free speech jurisprudence, when he was on the Supreme Court, Rajeev Dhavan regretted his volte-face as the head of the Law Commission.

Sunday, June 15, 2008

Dwindling number of Parsis

The National Minorities Commission 's Report on the dwindling number of Parsis in India provides very useful statistical evidence to show that there is a problem. What is disturbing is its prescription for remedying the problem.

The Report clearly shows that there is a consistent fall in birth rate over the last seven years amongst the Parsis. An instinctive reaction is one of concern, but I wonder what is the root cause of our concern?

The question becomes important because one of the reasons identified by the Report for the falling birth rates is 'out-marriages' - mapping the liberal-conservative debate within the Parsi community over whether to recognise children born out of 'mixed' marriages. And hence the question's importance - should our concern be preservation of Parsi cultural heritage (which is not necessarily threatened by recognising children of mixed marriages as Parsis) or preservation of the purity of blood and gene pool of an ethnic group. The conservative 'argue that they have a religious duty to preserve what onepriest called their “genetic distinctness”. “If the trend (i.e. outmarriages) continues, you won’t be able to recognize a Parsi.”'

The Report recognises this as the root of the debate, but more importantly, appears to take a stand in favour of the conservative position:

'What the liberals don’t understand is that even if we take in children with Parsi mothers and non-Parsi fathers, it does not solve their concern about declining Parsi numbers. We may increase the religion but not the community and until now both the ethnic and religious
identity has been seen as part of an indistinguished whole identity.'

The stand is reiterated in this news-report and in its final recommendation:

'The above study will be worth its value, if Parsi Community Leaders get together to resolve the problems enumerated which cause the birth rate to slow down, namely, Late and non-marriages, Fertility decline, Emigration, Out-marriages and Separation--divorces.

All these causes are well known and some steps are taken to reverse the trend, but not enough is done, as seen from the Project Report. The important factor is the confidence and consciousness among Parsi Youth to be aroused, to remain bonded together. The Parsis have all the resources at their command and also endowed abilities to rise above the situation. What is lacking, is the zeal of entrepreneurship, early employment and strengthened family ties to live together and lead the Zoroastrian way of life knitted in good thoughts, good words and good deeds, in this materialistic and glamorous world. Youth and parental counselling are absolutely essential (in the myriad opportunities and teeming millions around) to keep their goals well defined and strive to live up to the expectations of ancestral goodwill and heritage of which, they are the
proud beneficiaries.'

I have three problems with this report - first, clearly the 'problem ' exists because many Parsi individuals are taking an autonomous decision whether and whom to marry. Any progressive society should welcome the institutionalisation of choice on the question of choosing one's life partner rather than see it as a negative trend. Inter-faith and inter-caste marriages have in fact been seen as the solution to many of India's problems, with Dr. Ambedkar among its strong proponents.

Secondly, there seems to be a gender dimension to this issue. The Report appears to suggest that only a marriage between a Parsi woman and a non-Parsi man is an 'out' or 'mixed' marriage. I am not entirely sure if this also applies to a Parsi man marrying a non-Parsi woman, but this qutoe from the Report suggests that the prohibition is not gender-neutral:

'Liberals further want that children of Parsi mothers and non-Parsi fathers also to be included within the fold which is however vehemently opposed by the conservatives who see it as an act of conversion.'

If this interpretation is true, the genetic purity argument cuts even less ice - how is a child of mixed marriage with a Parsi man genetically 'pure', but not one whose mother alone is Parsi?

Finally, as an institution of the state, the role of NCM in giving this advice is even more precarious. As a general rule, the state should keep out of the business of telling consending adults whether, when and whom to marry. As the old saying goes, 'jab miyan bibi raazi, to kya karega kaazi'?

Persecuting through legal means


The following statement has been released by a group of academics and activists to condemn the harassment of political psychologist, Ashis Nandy, for his article and to demand the withdrawal of spurious charges levied against him.

"We write to protest in the strongest possible terms against the charges of criminal offence levied against Ashis Nandy, a political psychologist, sociologist and an internationally renowned public intellectual of the highest caliber. This is the latest case of harassment of intellectuals, journalists, artists, and public figures by antidemocratic forces that claim to speak on behalf of Hindu values sometimes and patriotism at other times, especially in Gujarat, but who have little understanding of either. What is pernicious in this case is that the charge of criminal offence against Nandy levied under Section 153 (A) and (B) for his newspaper article “Blame the Middle Classes” , was brought by the head of the Gujarat Branch of the National Council of Civil Liberties. The State Government of Gujarat by giving its permission for filing the case has shown its own complicity in the case.

"It seems part of the strategy of the most intolerant sections of Indian society today to make a cynical use the language of civil liberties to achieve ends that are the opposite of what the aspirations to civil liberties and the struggles over them represent. The harassment of well-known intellectuals and artists hides we fear, the daily intimidation being faced by members of minorities and especially the Muslims in Gujarat. We demand that all the charges against Professor Nandy be immediately dropped. We understand that there is a great deal of anxiety in Gujarat today about its lost honour. It might help to remind ourselves that this honour or “asmita” will not be gained by acts of violence and intimidation but by recovering or discovering the humanity of each other. Gujarat can and will regain its own destiny by remembering the politics of nonviolence, as one of its sons by the name of Mohandas Karamchand Gandhi once taught the nation and the world."

IN an earlier post on what it means to be a liberal Indian, this blog had the occasion to discuss this issue threadbare, especially Section 153-A and 153-B. Readers are welcome to revisit that debate here.. This article by Nandy in Little Magazine on Gujarat helps the reader get an insight into Nandy's thinking on the subject. The list of signatories to the statement is here. The editor of the Times of India, Gautam Adhikari has replied to the critics of Nandy's article in this column. Nandy's interview to Outlook can be read here.

Saturday, June 14, 2008

Money Power in Elections

The former Chief Election Commissioner, T.S.Krishna Murthy once succinctly summed up the crisis of Indian democracy in terms of two Weapons of Mass Destruction (WMDs): money power and muscle power. Media reports on these two have only contributed to strengthen the prevailing myths, rather than unravel them. Writing about money power of a candidate or a political party is not easy for a journalist. One needs facts, and corroboration to establish that a candidate or a party used money power to distort or attempt to distort the outcome of an election. Doubtless, it is an offence under the Indian Penal Code and a violation of the Model Code of Conduct for political parties and the candidates. Such cases need to be exposed, and the E.C. has a responsibility to prevent and punish such violations.

While law in this regard should take its own course, my interest here is in understanding whether money power was ever useful in distorting the outcome of an election. A study conducted by the Centre for the Study of Developing Societies (CSDS) in 24 constituencies spread across 17 States and Union Territories during the 1999 Lok Sabha elections found that almost all 122 candidates monitored by it had exceeded the expenditure ceilings imposed by the law (currently it is Rs.14 lakhs in a Lok Sabha election). The study found that money mattered to gain an entry into the electoral fray, and to remain visibly in the race, but you can’t hope to buy the votes and win elections. In other words, it is not true that the more you spend, the more likely you are to succeed.

So, money power appears to be bad not because it results in distortion of an electoral outcome, but because it keeps off those with little money from securing party tickets, and contesting meaningfully. As money is required for campaign, the parties cannot be faulted for giving nominations to candidates, who can fund their as well as party’s campaign.

As the unrealistic expenditure ceilings imposed by the statute are meaningless, there is little merit in saying that candidates are guilty of flouting the ceiling. It also makes little sense to argue that the system is unfair to those candidates who have limited resources to secure a party ticket, contest and win an election.

The other aspect is to understand how a candidate or a party funds a campaign, that is, the sources of such funding; and how and why these sources fund, whether they expect a quid pro quo from the system. These are larger issues which no journalist had bothered to touch because of limitations of ensuring the confidentiality. The recent decision of the Central Information Commission appears to have brought about a change in this, by requiring political parties too to respond to applications for revealing the sources of their funding. An RTI applicant recently succeeded in getting such information, but it is yet to result in a serious follow-up.

This article in Frontline brings out instances of parties/candidates using money power in the recently concluded Karnataka assembly elections. It quotes the BSP leader, P.G.R.Sindhia as saying that hisparty spent a lot of money in 20 to 30 seats, whereas in almost 150 seats, the party had trouble even reaching the ECI-stipulated limit of Rs.12 lakh. Does it mean the party spent more than the limit in those 20-30 seats? If so, it can well be taken as an admission, and the ECI should take action against the party and the candidates, under the RPA, besides registering cases under the IPC.

The Frontline article refrains from being specific, but is still an important contribution to the study of elections. “Money apparently decided the fortunes of quite a few seats”, says the author. If both the major parties spend equal amount of money, as the CSDS study had shown, can it decide the fortune of one or the other party? In fact, as the CSDS study shows, the party which spends more may well lose the elections, due to other factors.

As the article shows, parties overspend (above the ECI’s ceiling) in order to woo the voters. Wooing voters cannot be a wrong objective as it is implicit in the expenditure ceiling. The only limitation appears to be that if the ceiling is crossed, then it becomes an offence under the law, even though the objective of wooing the voters continues to be the objective. The author quotes a newly elected legislator as admitting that the prospective candidate had to spend on liquor, saris, jewellery, electronic goods, cell phones, biryani and on bringing bogus voters and even buying scooters and motorcycles.

This box quotes a newly elected legislator explaining the modus operandi of distributing money, liquor, pamphlets and other inducements. The same story claims that many families in urban slums received around Rs.3,000 for four votes, and targeted voters were given coupons to exchange them for liquor and white goods, and that the candidates resorted to dropping of a bundle of cash through the window at night.

What is at stake here is the journalist’s right to maintain confidentiality of his sources with regard to these disclosures, which are serious admissions by themselves, and the E.C. and the police ought to investigate them. Is the journalist bound to reveal his sources and the facts to the E.C. and the police? Section 39 Cr.P.C. which requires every person, aware of the commission of any offence punishable under any of the specified sections of the IPC, to give such information to the Magistrate or the police officer, in the absence of any reasonable excuse, does not exempt a media person. But Section 39 does not include any of the electoral offences specified in IPC, under Section 171, which would have been attracted in this case.

But Section 202 IPC specifies that whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. The journalist can claim that the Section 202 IPC only seeks to punish those who refuse to give “any” information relating to the offence, whereas the published story gives many clues to an investigating officer to further investigate, and even approach the journalist concerned seeking further specific information relating to the offence. The journalist is not bound to reveal his sources and the specific information in his story, but will be certainly bound to share the information with the police and the investigating agencies, if sought for.

Thursday, June 12, 2008

SLAPPs

Strategic Lawsuits against Public Participation is a well researched and analysed concept in the US. Sunita Narrain discusses its use against activists in India in this article which raises several other important issues:
'the pesticide industry through its associations has filed countless cases against activists and scientists, but with an important difference. These cases derive from what is known in the us as slapp —acronym for ‘strategic lawsuits against public participation’. These are ‘different’ because the corporation (or its front organisation or lawyer) uses it not to get justice, but to threaten, intimidate and gag. The cases are filed not against institutions that can defend their interests but carefully target individuals and, in particular, professionals who refuse to prostitute their science to suit industry. The companies who file slapp cases rarely win in court, but make the defendants spend a huge amount of time and money running to the courts to fight the case. This harassment discourages others from petitioning government on public issues. Industry’s business is served.'

Rajeev Dhavan also discusses SLAPPs in this article. I have written about multiple litigation merely as a tool for harrassment on this blog and elsewhere in the context of artistic freedom - but the basic idea is the same. The cases are filed not to secure any result, but use the process as punishment.

Tuesday, June 10, 2008

Nepal’s new Constitution: Lessons from India

Media analyses of the historic change taking place in Nepal have focused attention on the fall of the kingdom, the rise of the Republic, and the lessons for India from the Maoists’ success in joining the political mainstream. As Nepal’s Constituent Assembly gets down to frame its new Constitution, the Indian experience in working its Constitution is bound to cast its shadow on the contours of Nepal’s Constitution.

It is in this context, I found Abhishek Singhvi’s article in Indian Journal of Public Administration (Vol.LIII, No.4, October-December 2007) very insightful. It would have been better if Singhvi, a columnist himself, chose this subject for one of his columns, in order to reach out to wider readership. But probably he thought he would do justice to the subject in a professional journal, which is yet to have an online presence.

The article titled ‘Federalism’, begins with an elaborate discussion of key aspects of Indian experience with federalism. In the second part, he deals with ‘Lessons for Nepal’. To quote him, “While making a threshold voluntary disclaimer regarding expertise on Nepalese affairs, the author suggests that, at least as an outsider, it appears that adapted Indian federalism, minus its several drawbacks and vitiating elements, may be a valuable starting point for future models of Nepalese federalism.”

Here, I will sum up some of the interesting ideas put forward by him in the article:

• If Nepal chooses to adopt the broad scheme of legislative power by adopting three lists similar to the Indian scheme, it may choose, unlike India, to place residual powers of legislation in the state list (in Nepal, it would be the proposed autonomous regions based on different factors like ethnicity, geography, language etc.) and not in the Parliamentary list, subject to the fact that residuary legislative power in regard to taxation alone may be put in the Parliamentary list. This recommendation of the Sarkaria Commission, not implemented in India, would be a desirable change to put greater federal momentum under the new constitutional scheme.

• Secondly, an intergovernmental council or other similar consultative mechanism must not only be created for regular meetings of federal and constituent units, but unlike India, its meetings should be legally mandated at intervals of not more than two months each and its recommendations should be made binding, unless reasons in writing are recorded by the central government for not acting upon the recommendation within a time bound schedule. Such reasons in writing must additionally receive affirmative parliamentary approval at least by resolution.

• Article 256 of the Indian Constitution, empowering the Central Governemnt to “entrust either conditionally or unconditionally” to a state government (subject to the latter’s consent) any function “in relation to any matter to which the executive power of the Union extends” is a salutary provision. Nepal could consider including similar counterparts but should use it much more liberally than India has done.

• Whether Nepal chooses the model of having states at the regional level or autonomous councils at a more decentralized level or both, the question may well arise as to whether any central government representative or emissary is at all required for the governance of the regional or sub regional unit. The need for a Governor would be a debatable issue. Even an emergency intrusive power akin to President’s rule under Article 356 would not justify the creation of a permanent post akin to that of the Governor, as a Central government representative can be dispatched to the individual unit for such intervention. “I would therefore incline to the omission of such a post altogether”, says Singhvi. It is virtually impossible to police and implement the subjectivity inherent in the appointment of governor, he says.

• A potential All Nepal Service should prevent the monopolization of the best within the All Nepal Service by the Central Government as has unfortunately happened in India.

• The Inter State River Water Dispute Tribunal award, should ipso facto and ipso jure be given the same force and sanction as a decree of the apex court to make it binding.

Sunday, June 08, 2008

Indian Supreme Court on an "Intellectual Property" Roll

As temperatures continue to soar in New Delhi, the Supreme Court of India hands down three IP decisions—all in the month of May.

All three decisions were penned by Justice Sinha, one of the finer Supreme Court judges on the bench today. Constitutional law aficionados will remember his landmark judgment in a sex discrimination case, Anuj Garg v. Hotel Association of India. Commenting on this case, which pushed the frontiers of “equality” jurisprudence in India, Tarunabh Khaitan writes in an article (to be published): “The judgment, if it becomes an established precedent, has the potential to transform constitutional jurisprudence in India on a scale comparable to Kesavananda Bharati, Royappa and Maneka Gandhi”.

My special thanks to V. Venkatesan for pointing me to these decisions.

These decisions add to the repertoire of Indian trademark and copyright jurisprudence in significant ways. Below is a summary of the key issues raised in these cases.

1. Khoday Khoday India Limited vs The Scotch Whisky Association and others (Civil Appeal 4179 of 2008: decided on May 27, 2008)
In this case, the issue was whether or not the trademark "Peter Scot" ought to be deleted from the Register of Trademarks (under section 46 of the Trademarks Act, which provides for rectification of the register).

The brief facts, available in this Times of India report are:

“Khoday India Ltd (KIL) started producing 'Peter Scot' whisky in 1968 and got the trademark registered in 1974. After 13 years, the Scotch Whisky Distillers Association (SWDA), an industry body of distillers, blenders and exporters of Scotch whisky, moved the Assistant Registrar Trademarks for cancellation of the registered trademark 'Peter Scot' on the ground of its deceptive similarity to a foreign mark (Scotch whisky).”

The Supreme Court (Justice Sinha and Justice LS Panta) held in favour of KIL's right to continue being the registered proprietor of the "Peter Scot" mark. One of the factors that influenced the court to hold the way it did was the delay/acquiescence on the part of SWA i.e. although SWA had knowledge about registration of the 'Peter Scot' trademark as early as September 1974, it waited for more than 12 years to move the Registrar for deletion of the said mark. The judge held that “We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that action of the respondents is barred under the principles of acquiescence and/ or waiver. "

I was amused to find this Mint report provocatively titled “Whisky win could be offset by potential losses in rice and tea”. The report then goes on to state:

“India can have its whisky, and drink it too, but it risks losing out in the global rice and tea market. A ruling by the Supreme Court on Tuesday ended the almost two-decades-long challenge by an association of Scotch whisky makers to Khoday India Ltd’s right to have a non-Scotch whisky brand called Peter Scot because of the similarity between the words “Scot” and “Scotch”.

But the ruling could result in global retaliation and affect Indian products such as basmati rice and Assam tea, say analysts. That’s because the Supreme Court ruled in favour of Khoday despite the geographical indication (GI) status enjoyed by Scotch. Unlike a trademark—a unique and distinctive sign to identify a product or service—a GI is a sign used on goods that have a specific place of origin and possess qualities or reputation that are due to that origin.”

I couldn’t stop laughing at this doomsday prediction. It appears that this reporter hadn’t read the judgment. Else she would have found out that this case turned more on the traditional law of “passing off”, and much less on the new law of Geographical Indications (the Indian Geographical Indications of Goods Act was passed in 1999, but came into force only in 2003).

In fact, she might have also uncovered that the “Scotch Whisky” wasn't even registered as a geographical indication (GI) in India. In fact, I am given to understand that no application for registration has been filed as yet in India! And yet, she presciently notes that India will face retaliation!

The only possible connection with GI law is the fact that the Indian GI Act specifically preserves the rights of existing trademark owners i.e. Section 26 of the Act protects trade marks which had been acquired through use in good faith prior to the coming into force of the GI Act or the date of filing of the GI application in question.

Luckily, her report goes on to quote one sensible source, Neel Mason, managing partner, Mason and Associates, a firm that specializes in intellectual property rights law who cautions that: “…every case is decided on specific facts. Issues of pricing, delay and nature of the labels or products are different and need to be seen on a case-to-case basis."

As Neel rightly states, one has to look specifically to the facts of this case. And if one did so, one would find that it was “delay” and consequent acquiescence/waiver that caused Justice Sinha to decide the way he did. And not any deep disrespect for this fine brand from Scotland--a brand that perhaps his Lordship indulges in occasionally.

In other words, the principle endorsed by Justice Sinha is that if you delay enforcing your rights, you run the risk of an assumption that you have either waived your rights or that you have acquiesced in the infringement. This principle is applied by most other sensible legal systems that I know of. Expecting some sort of foreign “retaliation” for adhering to such a well-established legal principle is amusing, to say the least.

2. M/s Entertainment Network (India) Ltd. Vs M/s Super Cassette Industries Ltd (Civil Appeal NO. 5114 of 2005, May 16, 2008).

This case involved challenging issues pertaining to the “scope” of compulsory licensing (CL) of sound recordings under Indian law. The case had its origins in complaints filed by several radio operators under Section 31 (1) (b) of the Copyright Act, 1957, before the Copyright Board praying for a compulsory license in relation to the “sound recordings” held by Phonographic Performance Ltd (PPL) as they were unable to negotiate a rate with PPL. PPL is one of the two collecting societies in India (the other is IPRS: Indian Performing Rights Society, which is mainly a collecting society for underlying works in sound recordings).

While PPL argued that a compulsory license could issue only if the ”work” had never been made available to the public earlier, the radio stations argued for an almost automatic CL ground i.e. it was to be granted upon request and the only point for consideration was a determination of “reasonable royalty”.

Justice Sinha (again sitting with Justice LS Panta) held in favour of the latter interpretation. A second issue pertained to whether the Act (section 31 (2)) restricted CL applications to only one party or whether multiple parties could apply. Here again, although a literal reading of the section made clear that there could only be one such applicant, Jusice Sinha adopted a “purposive” approach and held in favour of multiple applicants. He noted in particular that:

“Sub-section (2) of Section 31 would lead to an anomalous position if it is read literally. It would defeat the purport and object of the Act. It has, therefore, to be read down. Purposive construction therefore may be resorted to.”

Based on his interpretation of section 31 permitting an almost automatic compulsory license (subject to reasonable royalty) and multiple licensees, he refers the case back to the copyright board for determining "appropriate" royalties.

What is interesting in this case is that Justice Sinha equates an intellectual property right to a “property right” (under Article 300A of the Constitution of India) and even to a human right!
He states that:

“An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human rights have starte gaining a multifaceted approach. Property rights vis-`-vis individuals are also incorporated within the `multiversity' of human rights.

However, he later goes on to suggest that such rights can be overridden for greater public good:
“…when a right to property creates a monopoly to which public must have access, withholding the same from public may amount to unfairtrade practice. In our constitutional Scheme…, monopoly is not encouraged. Knowledge must be allowed to be disseminated. An artistic work if made public should be made available subject of course to reasonable terms and grant of reasonable compensation to the public at large.”

The judge also makes very interesting statements regarding the applicability of international conventions in interpreting domestic issues (an issue that came up in the famous Novartis patent litigation in India, where it was alleged that section 3(d) contravened TRIPS).

Unfortunately, Justice Sinha falls prey to the verbal diarrhoea syndrome exhibited by many Indian judges (the most flamboyant of whom was Justice Krishna Iyer). In his 178 page judgment, the key part really begins only at page 138 or so.

For a more detailed analysis of this case, see this post at SpicyIP by Kruttika Vijay. Also, for a concise view of this ruling from an industry perspective, see here.

3. Kabushiki Kaisha Toshiba vs TOSIBA Appliances Co. & Ors: Civil Appeal No 3639 of 2008 (decided May 16, 2008)

The third Supreme Court decision to be handed down this month is a very complicated trademark case involving the famous mark “Toshiba”. Like the Scotch whisky case mentioned earlier, this one also involved an application (by an Indian entity, Tosiba Appliances Co) to rectify the register of trademarks under section 46. The key ground was that the mark “Toshiba” was never “used” in India (in relation to some goods such as washing machines and spin dryers) and that the proprietor of this mark indulged in “trademark trafficking”.

The court (Justice Sinha sitting with LS Panta) seemed to suggest that a mere use of the mark in relation to servicing centers (which serviced washing machines imported from abroad) could amount to “use”. And that a person such as Tosiba Appliances who never engaged with washing machines and dryers was not a “person aggrieved” under section 46 and did not have “locus standi” to challenge the mark.

Shwetasree Majumder, one of the counsels in this litigation quips: the court was attempting to prevent the challenger (Tosiba Appliances) from playing “dog in the manger”. Tosiba Appliances, the Indian company that challenged the mark was neither dealing with washing machines and spin dryers itself. Nor did it want the Japanese Corporation, Kabushiki Kaisha Toshiba, the proprietor of the mark to avail of it in relation to these goods!

For a more detailed analysis of this case, see this post at SpicyIP by Mrinalini Kochupillai.

The first 2 decisions commented upon above appear to be adverse to the rights owner---the first decision does not protect a world famous “Scotch Whisky” mark and the second one carves out very broad compulsory licensing norms in the context of copyright law, even at the cost of explicitly overriding the express terms of statute. The third one however supports the rights of a foreign trademark owner, even when the “use” is not really substantial or direct.

While these judgments may not be path-breaking in terms of pushing the frontiers of IP jurisprudence (barring perhaps the copyright judgment), they are nonetheless very significant contributions to the area from the apex court. In any case, for IP aficionados, three SC decisions in a single month is certainly an occasion to toast to!

Saturday, June 07, 2008

Niyamgiri and Ramar Setu: A study in contrast

Ashish Kothari of Kalpavriksh has written an interesting article in Tehelka exposing the Supreme Court's double standards in the cases of Niyamgiri and Ramar Setu. The author begins with this pointed intro: "ONE MIGHT BE a bridge long held to be a part of Hindu beliefs.(Ramar Setu/Sethusamudram project) Another, a forest that has for centuries been part of the active spiritual beliefs of an ancient tribe (Niyamgiri in Kalahandi, Orissa). Yet, when called upon to pass judgement on “development” projects that threaten both, the judges of the Supreme Court signalled that while they considered the first to be important, the latter was expendable."

The author writes: "This tract of dense forests and grasslands (Niyamgiri) has a number of streams and provide sustenance to millions of people. It is also home to the Dongriya Kondh (classified a “primitive tribe”) who consider Niyamgiri a sacred hill, crucial to their culture and their well-being. For them, Niyamgiri is equivalent to a church, temple, or mosque. Except that it is a fully functioning ecosystem." The Supreme Court has permitted Sterilite Industries India Limited, a subsidiary of Vedanta Aluminia Limited, to mine bauxite in Niyamgiri, overruling environmental objections and the tribals' right to their sacred forests.

The author observes: "A physical land formation in the sea is given so much importance that the judges question the construction of what the government considers a project of national importance. A sacred forest, threatened by the greed of a private company, however, has no such relevance. Clearly, a dominant religion backed by powerful groups and individuals is able to move the highest court of the land, but an ancient tribal faith gets no such consideration." The author is equally critical of Sethusamudram project on environmental grounds, which he claims, were unjustifiably ignored by the Supreme Court.

The Shoukat case: Counsel attacks the Bench

In a hard-hitting article in Tehelka, the counsel for Shoukat Hussain Guru, Shanti Bhushan has attacked the two Judge Bench which delivered the judgment in the Shoukat case as not worthy of being "great Judges" who, according to him, admit mistakes and correct them. The propriety of the counsel making a public attack on the Bench after losing a case may be debatable, but the article deserves a close read for the issues it raises. Striking is the similarity which Bhushan seeks to establish between this case and the ADM Jabalpur case. Secondly, Bhushan points out that no argument was made by the public prosecutor during the protracted hearing in the SC that even if no charge of conspiracy was proved against Shaukat — and he had to be acquitted of all the 12 charges against him — he could still be convicted for an offence under Section 123 IPC with which he had not been charged.

Bhushan wrote: "I have no doubt that if the point had been raised by the public prosecutor, during the hearing or even if the judges had raised it, the bench of Justices Reddy and Naolekar, would not have convicted and sentenced Shaukat under Section 123 IPC after seeing the judgement in Shamsaheb Multani case."

Bhushan's article is noteworthy for the subtle point which he makes that Section 123 IPC cannot be a minor offence (as declared by the Supreme Court) because the burden of proving his innocence is on the accused. Clearly, the relevance and validity of Section 222 Cr.P.C., as it now stands, should be debated. There is indeed a case for amending this Section, to avoid miscarriage of justice. (My earlier posts on this can be read through this link)