Thursday, October 30, 2008
The LCI's Report on compulsory registration of marriages and divorces recommends enactment of a law by Parliament to ensure uniformity. But I wondered why the Supreme Court while issuing directions to the Centre and the States in this regard in the case of Seema vs. Ashwani Kumar wanted the statute to be submitted to it for scrutiny. An example of judicial overreach?
Wednesday, October 29, 2008
The principle of eminent domain has come in for criticism on the ground that it ignores harsh realities. Here is an article which is critical of the Land Acquisition Act, 1894. The author says: "In the past, arguments against the Land Acquisition Act were shot down on the basis that in a developing socialist economy such critique was detrimental to the “welfare” state’s right to ownership of resources vis-à-vis “individual property rights”. This hypocrisy stands completely exposed now, with the State openly championing an economic policy that empowers corporate profit at the cost of its own subaltern people, at times forcefully acquiring land from them in the name of greater national interest, in return for often meagre cash compensation."
At the other extreme, there have been suggestions that the doctrine of eminent domain can be borrowed by private developers of land. Here is one such article by a senior journalist, who himself cites an academic paper suggesting the same. In a recent judgment (Sooraram Pratap Reddy), the Supreme Court has held on September 5 that the State's judgment on what constitutes public purpose under eminent domain cannot be subjected to judicial review. (See para 153 and 167 of the full judgment here.) This article in Mint argues for land swap as an alternative to eminent domain. Clearly, the issue is far from settled.
Monday, October 27, 2008
The Court and the Constitution of India: Summits and Shallows by O.Chinnappa Reddy, OUP, 2008, Rs.795, pp.337.
At last, a truly insider's account of the Supreme Court? I have not yet read the book,(having got it only last week) but that is no reason why I should not share parts of the foreword to this book by Upendra Baxi.
He writes: "What is new here, I suggest fully, is the appeal that suggests that even those claiming the arrogance of expert knowledges about Indian constitutionalism may still find here plentiful moments for recovering their residual constitutional humility(italics, Prof. Baxi's)....This is a contemplative work, inviting judges and lawpersons to stand back from the pulls and pressures of their everyday work, and further inviting them to the tasks of understanding the different histories of constitutional interpretation. This book may well be subtitled: What You Always Wanted to Know about the Supreme Court of India, but Were Afraid to Ask!."
Saturday, October 25, 2008
The argument that engaging with merely the “Constitution” is not enough to make sense of how constitutional tasks are performed in legal systems may, at first blush, seem surprising to some. Two recent pieces of literature go far in making the interesting argument that one needs to engage with more than just the constitutional text for a greater understanding of constitutionalism: Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408 (2007); and Lawrence H. Tribe, The Invisible Constitution (New York: OUP, 2008). Both pieces do make different arguments, and I’ll deal with the first for now. Professor Young argues that constitutions should be interpreted functionally rather than formally. His contention is backed by a comprehensive analysis of how several constitutional functions in the United States are performed by legal texts other than the single canonical document.
I thought it may be interesting to conduct a similar analysis in the Indian context. India is a country which like the United States possesses a single canonical constitutional text. Young lists certain US legislation which are essentially a “Constitution outside the Constitution”, for instance, the Federal Communications Act 2000. Which legislation in India would fit this bill? One legislation which immediately comes to mind is the Representation of the People Act 1951. I also thought that the Right to Information Act 2005, which increases transparency in governance, may perhaps be another such legislation. Any ideas on what else may be included in this list?
Friday, October 24, 2008
1. Kunga Nima Lepcha vs. State of Sikkim: W.P.(C)353 of 2006: Heard by Chief Justice and Justices Sathasivam and Panchal. Arguments have concluded and judgment reserved. Here is the latest order. The facts of the case may be gathered from here.
2. Shanti Bhushan vs. Union of India:: (W.P.(c)375 of 2007). The petition challenges the Central Government's policy of confirming Additional Judges as Permanent Judges without the recommendation of the collegium, as laid down in the Advocates on Record case. Heard by Justices Arijit Pasayat and Mukundakam Sharma. Arguments have concluded and judgment reserved. Here is the latest order. Anil Divan argued for the petitioner. He submitted that when the appointment process starts for a Permanent Judge, consultation must be with the existing functionaries of the collegium. He suggested that an Additional Judge might have been appointed on the basis of consultation within the collegium, but when the same Judge is being considered for appointment as a Permanent Judge, a fresh consultation with the existing collegium is mandatory. He recalled the experience of supersession of the CJIs in the early 1970s, and said strict adherence to the 1993 judgment as clarified in the 1998 Reference case, was imperative to safeguard the independence of the judiciary.
Gopal Subramanian, ASG, on the contrary, argued that there was no explicit direction to consult the collegium when an Additional Judge is being considered for the post of a Permanent Judge. He suggested that portions of S.P.Gupta Judgment of 1980 are still valid law. According to S.P.Gupta judgment, any additional Judge is not qualitatively different from a Permanent Judge. The moment an Additional Judge is appointed under Article 224 (1), it is proceeded on the basis that he will be appointed as Permanent Judge,he said. Therefore, at the stage of confirmation, no further consultation is necessary, he suggested. There can be no evaluation of quality of work of an Additional Judge, except that his credentials are consistent with the Permanent Judge, he contended. For Anil Divan, however, de novo consultation is necessary because the Additional Judge, during his tenure of two years, may have developed unsavoury links, and therefore, consultation would facilitate plurality of opinions, and avoid the arbitrariness of sole opinion being the basis of a decision.
3. MCOCA case: The constitutionality of Maharashtra Control of Organised Crime Act is being challenged in this case on the ground that it stood impliedly repealed because of the Central Government's repeal of POTA in 2004. The latest order in the case is here. The hearing is to resume on November 10. The thrust of Harish Salve's arguments on behalf of Maharashtra Government is that modern state needs multiple weapons in their armoury, as terrorism is a hydro-headed monster, and that there is bound to be overlapping. "You have to prove multifarious ingredients",he told the Bench. Arguing that waging war (S.121 IPC) is also an act of terrorism, he suggested that logically S.121 should stand repealed, if there is a separate law on terror. A terrorist can also be charged with the offence of culpable homicide(S.301 IPC), but the provision dealing with terrorism and S.301 don't mutually repeal, he argued. "Terrorist acts are acts meant to overawe, and therefore the distinction between terrorism and waging war is thin; these are overlapping, blurred and that is the nature of the animal - you throw in all directions in order to rein in", he said.
UPDATE: Arguments have concluded. The latest order is here.
4. Archbiship Raphael Cheenath v. State of Orissa: The order passed in this case following a lengthy submission by the Petitioner's counsel, Colin Gonsalves seeking a CBI inquiry into the alleged rape of a nun in Orissa raises the question whether the Court could have directed a CBI inquiry considering the special circumstances of the case wherein the role of the State police has been questioned. Orissa's counsel, K.K.Venugopal mentioned that the victim did not allege the presence of police in her statement under S.161 Cr.P.C. Colin replied that 161 statement was filed by the same policemen who were present. Colin's plea was that it is a conspiracy of larger nature, and only a Central agency can investigate which organisation is responsible for the spread of the hatred.
Colin: Principal wrong-doers must be identified. There are similar incidents in Karnataka. We need to know whether these are connected. Are outsiders involved?
CJI: It is a free country, how can we restrict someone from entering a State?
Colin: Everybody knows who are the principal wrong-doers. It is a question of political will.
CJI: It is easy to say. It is a question of social harmony. It can't be achieved by arresting people.
Colin: Law should be taken to logical conclusion.
Following the rejection of the petition, the nun had to go public with her allegation.
5. Union of India v. Ramesh Ram. For the background to this case, please read my earlier post here.. The latest order in this SLP, after the hearing on October 14 is here.
The UOI's reply affidavit in this case is interesting. It says: "The normal policy of the reservation stipulates that the reserved category candidates, do have right to compete for unreserved seats but its application to the situation of the combined examination requires modification to ensure fairness and balance between merit and social justice. This modification was therefore, effected with effect from Civil Services Examination, 2002. This ensured that problem of reserved category candidates going unallocated would not arise. Rule 16(2) was framed to ensure and subserve and further advance the very principle of reservation in view of reserved category candidates to get a service of higher choice in the order of their preference. This is to ensure that reserved category candidate selected on merit is not put to a disadvantage vis-a-vis other candidates of his category of his category who have qualified on relaxed standards and are lower in rank." The respondents in this case challenge Rule 16(2)because it deprives the opportunity of the reserved candidates who got selected with relaxed standards to avail the quota benefits. It would appear that the general candidates must be happy with Rule 16(2) because the number of reserved candidates getting selected would ultimately be less, because they would be confined to the quota, and the unreserved candidates getting selected would be entirely general. The judgment, which has been reserved, will hopefully reconcile these two equally convincing contentions.
Another debatable recommendation is the advice to the Court to do away with the lengthy vacation and increase in the working hours in the Supreme Court. Apparently, the Committee - which included senior advocates like Ram Jethmalani and Abhishek Manu Singhvi - agreed with the view of some members that the system of vacations is a colonial legacy, which has no relevance today. The Report also records that some witnesses were of the view that Judges also work at their residences, for studying the cases, writing judgments etc. after the office hours, and on holidays, so vacation should not be treated as privilege. It is this burden which made one former Chief Justice of India to remark that the Judges of Supreme Court are like bonded labour. Suggesting a middle path, the report says reduced vacations will automatically add to the number of working days, and therefore, recommends increasing the number of working days in the Court to accord speedy justice, and to break the vicious circle of pendency. I am of the view that these are cosmetic changes which are unlikely to have any impact on the pendency. Nick Robinson, who has written on this issue earlier, may be surprised to know that the committee, among other things, has blamed the PILs for the huge pendency! Nick has found that the number of PILs getting admitted in the Supreme Court, contrary to the impression in the media, is negligible.
(a) it does not become a tool to gag non-violent protest,
(b) does not become an alternative to criminal prosecution for violence,
(c) targets the 'leaders' and the organising party behind the agitation rather than the foot-soldiers,
(d) compensates for damages to private as well as public interests and includes not just violence against property but also against persons.
If anyone has access to full-text of the Ordinance, please post it here.
Update - Venkatesan helpfully draws attention to the Thomas Committee, which has been tasked by the Supreme Court to look into the precise question of tackling political violence. A previous post mentioned this committee, but there is still no news on when it is submitting its report (if it hasn't done so already).
Update II - It is rather ironic that the first political organisation to have received compensation under the new law is the VHP - the case does indicate that political parties are fined rather than foot-soldiers, which is a good thing. And if this first case is anything to go by, the implementation mechanism appears to be unbiased. The news report also mentions that violence against public as well as private property will invite compensation orders. Only, the sum of compensation ordered - Rs. 20,000/- seems to be too small to have any deterrent effect (but perhaps, the cumulative effect for a regular offender may be deterrent).
Thursday, October 23, 2008
Madhav, welcome to the team. I look forward to a sustained and enlightening engagement.
Wednesday, October 22, 2008
The Halsbury's Law Monthly, the online journal being published by LexisNexis has devoted its latest issue to the discussion of what Constitution of India will look like (or how it should look like) in 2050. The interviews with senior advocates and academics, carried in this issue, are very interesting. Most interviewees, however, pontificate on immediate reforms which they have in mind, but also analyse its current strengths and weaknesses. Raju Ramachandran thus wants PR, Bill of Rights, Constitutional status to Human Rights Commissions, appointment of a distinct jurist as a Judge, as envisaged in the Constitution, and deletion of certain hypocrytic principles, such as Prohibition and Socialism.
Gopal Subramanian seeks adoption of French form of Republicanism, and is in agreement with those who urge periodic review of our affirmative action policies. Ashok Desai dwells on why our Constitution makers rightly rejected the due process clause of American Constitution (Readers who wish to know more about this aspect may find an article written by Madhav Khosla very useful. He calls the rejection of due process by the Constituent Assembly erroneous in an article in Indian Judicial Review,Vol.4:1:2007) and also deplores the lack of specialist Benches to deal with IPR cases and a system of self-restraint from dealing with issues not before the Bench.
The interviews with others are equally illuminating. Indeed, this online monthly journal must be in our regular reading list. The August issue (the first issue) has made the PILs as the cover story, while the September issue deals with conflict of laws.) A great effort, and a source of inspiration on how we could plan our blog-content.
1. “The guidelines are basically meant to provide optimum benefit of these newer technologies to appropriate persons by a skilled team of experts at affordable health and economic costs in all public and private facilities in the country. So the guidelines basically aid the proliferation of the technology. The Bill is an avatar of the same.”
Amen. Anything that legalizes a practice could potentially aid its spread though to what extent it will happen will depend on socio-economic factors. So far as the purpose is to protect health and prevent fraud, the bill, notwithstanding a few limitations, has done a reasonably good job.
2. “The draft legislation provides for State boards, which would more or less perform the same function as the national board.”
Not quite. The National Board is primarily charged with laying down rules and procedures under Act. The State Board, though enjoying some discretion in this regard, is expected to act in accordance with the directions of the National Board and is responsible for enforcement. It is empowered to examine complaints and review decisions of the Registration Authority.
3. “A concept note … notes that economically disadvantaged women could be lured into carrying the fetuses of wealthy childless couples. Even in cases of altruistic surrogacy, there is the possibility that the surrogate mother will be emotionally pressured to demonstrate family loyalty by carrying a child for a sibling.”
True. Economic necessity is unquestionably the driving force on the supply side behind commercial surrogacy. The contract forms the egg/sperm donor and surrogate sign include language that she agrees ‘without any pressure from [his/her] side and in [his/her] full senses’. The cap of three surrogate pregnancies might also protect a woman to a small extent. No doubt this may be insufficient to prevent a woman from being pressured.
But the only surefire way to prevent it is to outlaw surrogacy itself. But, as was pointed out in a previous post, that solution has its own downside. For one thing, it will deprive willing surrogates of ‘employment’ and an attractive option for livelihood without the state providing any comparable substitute. Secondly, denying domestic childless couples the option of surrogacy could potentially aid divorce or worse, the abandonment of women who often get blamed in our society for failing to conceive. A third is of course the loss of the benefits associated with health tourism.
The question of women being forced into child bearing is however serious enough to merit some thought. The phenomenon, as we know, is not specific to surrogacy. Economic development and consumerism have been reported to have led to increased demands for dowry. Could the same thing happen here with family members forcing women to carry children?
Perhaps. The answer would depend on whether the idea gains acceptability about those sections of our society that are economically better off but socially backward where the relative status of women is the weakest. Several significant factors though are likely to work against it: (1) The burden associated with child bearing and the consequent opportunity cost to one’s own family. (2) Moral stigma associated with it. A strong stigma could deter entry much like it does for prostitution – it is unlikely that the majority of women in oppressive family environments will be forced to become high class prostitutes just for the money should it be legalized. (3)The larger the number of women in the market, the lower the price is likely to get. (4) The greater the poverty, the higher the perceived return on this ‘investment’ and therefore, the greater the chances of a woman entering the trade (either voluntarily or because of coercion). In contrast, the more impoverished the family, the lower the nutrition level is likely to be and hence, the less likely that she will be chosen from amongst her competitors to bear a child. Thus, the market, so long as the supply of women is adequate as in places like Anand, will, ceteris paribus, end up disfavoring those most in need of the reward thereby diminishing the incentive for entry.
4. “The Bill directs that ART clinics, semen banks and research organisations that use human embryos for study, which are operative on the date of notification of the Act, should obtain temporary registration within six months of the notification by the State board and regular registration within 18 months of the notification. Activists, however, are baffled at the notion of temporary registration. And more peculiarly, if the agency applying for temporary registration does not hear from the State Registration Authority within 60 days of receipt of the application, the clinic would be deemed to have received temporary registration. “If this is not facilitation of ART clinics, then what is?” wondered a health activist.
Again later, in talking about the statement from SAMA, the author writes “…there was an urgent need for regulation, not just regularization and promotion, of the present practice…”
This provision (s.14(1)) is supposed to ensure a prompt response from the government. It applies only for temporary registration and is so designed to prevent disruption of their activities when the government will have to process a large number of applications during a relatively short period. There are also provisions laying down the procedures to be followed in detail and penalties prescribed for failure to follow them. Despite this, the article argues that this all only amounts to only regularization and promotion, not regulation. I always thought good regulations are ones that do not obstruct businesses any more than necessary. Apparently not. The idea seems to be that a bill must promise enough red tape in order to qualify as ‘regulation’ – it must threaten delays, denial of a license or worse; otherwise, it is just ‘regularization’, ‘facilitation’ and ‘promotion’!
5. “There are certain ludicrous provisions as well. Under the section titled duties and rights of donors, it is laid down that no ART procedure shall be conducted unless the donor has obtained the consent in writing of his or her spouse. Given the low level of negotiating rights of the poor and especially women in reproductive matters, it is highly unlikely that there will be any spousal objection in a commercial transaction.”
I fail to see why it is ludicrous. The mere knowledge of fathering/mothering a child can be a significant emotional burden for an individual. It is not unreasonable to insist that the spouse/partner be made aware of and acquiesce in the happenings to avoid conflict. I am also unable to appreciate why the problem is not so much the existence of a moral objection of the spouse but the lack of one.
6. “…what is detrimental to the health of the surrogate mother is the provision that allows for multiple pregnancies in the event of failure in transferring the first embryo. The Bill allows up to three commissioned babies. That is, the surrogate mother can accept, on mutually agreed financial terms, at the most two more successful embryo transfers for the same couple.”
All that the provision says is that if the embryo transfer fails the first time, it may be tried again. The key words are ‘if she wishes’ and ‘decide to accept on mutually acceptable financial terms’. The practice is neither unknown nor unusual. Why she believes it is detrimental to the health of the mother is not explained nor am I aware of any evidence to support it.
7. “A question that activists, health experts and women’s groups are asking is whether surrogacy can be pursued and promoted as a public policy in India, given the abysmal track record as far as the health of women is concerned. Secondly, while the government encourages the small family norm, the ART guidelines and now the Bill actually allow for commissioning up to three babies. Third, public health experts like Imrana Qadeer feel that the government could do a lot more in terms of addressing the causes of secondary fertility, through effective antenatal and natal care.
… Imrana Qadeer argues that maternal mortality will not decline if surrogacy is promoted as part of what she calls legalized health tourism.”
Firstly, the purpose of surrogacy is to help childless couples have children, not those who already have them. Secondly, allowing a woman to carry up to three surrogate children is not the same as encouraging her. If that is ordinarily so then, a fortiori, it ought to be the case where the higher number is owing to a child being borne for someone else. Thirdly, this law is intended only as a last resort for couples whose infertility cannot be treated. Parts 5 and 6 of the rules lay down in detail the procedures for patient selection. The notion that couples may not get treated for their afflictions because of this bill is ludicrous.
The author argues that maternal mortality will not decline because of this bill. Yes and it will not stop dunces from being born and the Sun from rising in the East. Public health and surrogacy may be related but no reason has been provided to believe that the latter is deleterious to the former. Why public policy ought to promote one to the exclusion of the other is beyond me.
8. “The concept of promoting surrogacy as a public policy also denigrated the notion of gestational motherhood. It is ironic that when there are laws banning commercial transaction of human organs and sex selection of babies, the ART Bill comes to legalize something that has a clear potential for exploitation of the poor. Surrogacy arrangements, if any, should be limited to altruistic ones to prevent commercialization of the same.”
Society surely has a right to regulate surrogacy on grounds of morality (some might argue that there is a case for an Art.21 challenge if a ban is imposed but I am not getting into this). Whether it ought to do so is of course the issue here. It is a good question whether commercial transaction of human organs ought to be banned (this is the subject matter of a separate post) (as an aside, the very question came up briefly yesterday in the context of the ongoing hearing in the Naz Foundation case). The fact that a ban exists there does not imply that one should be imposed here.
As for the question of exploitation, I quoted in a previous post the opinion of the California Supreme Court in Johnson v. Calvert that the degree of exploitation here is no greater than ‘economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment.’ Another way to approach it is to ask whether an act becomes exploitative the moment it is invested with commercial value. For example, does sex become exploitative when one voluntarily engages in it for a living?
9. “…the Bill did not have a clear preamble outlining the purpose or a framework emerging from the government’s own perspective… …Not only did the Bill compromise heavily on the health and rights of women and children, it also promoted invasive and expensive technology instead of encouraging adoption. Above all, the activists feared that the Bill reinforced patriarchal as well as eugenic tendencies.”]
The perspective is fairly clear – laying down requirements for institutions and individuals concerned to abide by. Yes, it promotes invasive and expensive technology. Does it discourage adoption? I have had a hard time finding data but I do believe that even if it does, the market for surrogate children will not be substantially affected. It is doubtful that most of these foreign tourists who are a critical part of the industry will be satisfied only with adoption particularly when other developing nations offer similar low cost alternatives for surrogacy. I do not know what patriarchal tendency the author refers to but there are specific provisions in the act prohibiting sex selection. Eugenics? The prohibition on allowing ART for couples who can conceive otherwise (s.20(10)), on accepting egg/sperm from ‘a relative or a known friend of either of the parties seeking ART’ (s.20(12)) and those guaranteeing anonymity to the sperm/egg donor would all prevent ‘designer babies’. I do not quite see how one could circumvent all of this and still have a child with some Bollywood celebrity even if one wanted to.
Monday, October 20, 2008
The major recommendations of the Commission in this report are worth repeating, for they throw considerable light on how the recent events could have been ideally handled. Section 3(2) of the Contempt of Courts Act and the Explanation below Section 3 as of now, treat a criminal proceeding as pending only if a chargesheet or challan is filed or if summons or warrant is issued at the time of ‘arrest’. The report wants this to be rectified by adding a clause ‘arrest’ in the Explanation below section 3 as being the starting point to reckon ‘pendency’ of a criminal proceeding as in the U.K.Act of 1981 and as proposed by other Law Reform Commission proposals in other countries. Once this amendment is made, only those which are prejudicial publications or broadcasts would not be permitted. In addition, publications or broadcasts made without knowledge of arrest, or filing challan or without knowledge of summons or warrant would remain protected.
The Commission proposed the above amendment as to 'arrest’ as being starting point by using the word ‘active’ criminal proceeding in section 3 rather than pending criminal proceeding. Another recommendation pertains to empowering the High Court to direct the media concerned to postpone the publication or broadcast if there is a real risk of serious prejudice to the trial, which could be imminent.
The Commission has relied on the Supreme Court’s judgment in A.K.Gopalan v. Noordeen (1969). In this case, the editor of Deshabhimani was convicted for contempt for publishing A.K.Gopalan’s prejudicial statement, because it was published after the arrest of the accused (before chargesheet could be filed) in a murder case. The accused had allegedly killed a CPI(M) activist during a state-sponsored bandh. Gopalan, in his statement, had identified the accused. Since Gopalan made the statement after FIR but before arrest, the Supreme Court exonerated him. This was the majority opinion (S.M.Sikri and Jagan Mohan Reddy). In his dissent, Justice G.K.Mitter, was unconvinced and said Gopalan knew that the arrest was imminent, and therefore, was guilty of contempt.
The Commission notes that in 1978, the Supreme court in Maneka Gandhi v. Union of India, has altered the law as it stood before 1978 to say that so far as liberty referred to in Art.21 is concerned, ‘procedure established by law’ in Art.21 must be a fair, just and reasonable procedure.
The Commission also traces the provision in the CCA 1971 as to the starting point of pendency of a criminal proceeding. A Joint committee of Parliament (The Bhargava committee) (1969-70), whose recommendations resulted in the 1971 Act, had omitted all references to ‘imminent’ proceedings or to ‘arrest’ as the starting point of pendency of a criminal proceeding. The Commission suggests that after the Maneka Gandhi judgment, this provision is not constitutionally valid. But this proposition of the Commission has not yet been legally tested in any Court, which is surprising if we consider the fact that the instances of the media breaching this legal requirement are numerous.
My question is this: Are not the prosecution and the media weakening their own case, if a Court were to strictly follow what the Law Commission has hinted, that the law as it exists, makes it mandatory to treat ‘arrest’ as the starting point of pendency of a criminal proceeding? What if a Court were to set aside the conviction on the ground that the accused could not get a fair trial, due to trial by the media? Indeed, this is what the U.S.Supreme Court did in the case of Sheppard v. Maxwell (1966).
UPDATE:: Delhi High Court raps Delhi Police during the hearing on Dec.15, 2008.
Sunday, October 19, 2008
Why the Act denies the mother the right to give in adoption with the consent of the father is difficult to explain, except in terms of the then law makers’ bias against women. In the case decided by the MM, it was the mother who gave the child in adoption to the foster parents, probably with the consent of the father. Right time to challenge the constitutionality of this section? Our law makers have recently found it necessary to reform the Hindu inheritance laws to ensure equal rights to women. It is a mystery why this provision did not attract their reformist zeal.
Thursday, October 16, 2008
There was an interesting post on Freakonomics yesterday. The author Stephen Dubner also provides a link to a paper by Steve Levitt analyzing the impact of money spent on election campaigns. By analyzing the outcomes of several elections taking into account various factors, Levitt identifies to what extent money played a part in it.
The analysis is fairly simple and might be amenable to adaptation to Indian conditions albeit with some changes. Apart from expenditure of the candidates, they include four variables: the partisan tendency of a voting district, incumbency factor, partisan shock or what we call a 'wave' in favor of a particular party and the inherent attractiveness of a particular candidate. Barring any scandals, the attractiveness of a candidate may be assumed to stay constant over successive elections and hence, even though not directly observable, is eliminated as a confounding variable by restricting the focus to the same candidates facing off in more than one election. Of course, the existence of only two major national parties simplifies calculations considerably.
Not surprisingly, he finds the effect of national political events ('waves') very significant. So is the incumbency factor (note that the reference is to individual incumbency, not the party) and the effect of any scandal. As for spending, he concludes: "…Once district-specific factors and the quality of the competing candidates are controlled for, the impact of campaign spending on election outcomes, regardless of incumbency status, is small but positive". How small? An extra $100,000 in campaign spending (with the opponent's spending held constant) garners a challenger 0.3% of the vote while adding less than 0.1% to an incumbent.
He also looked at whether spending had a greater impact in highly competitive elections than in non-competitive ones. His conclusion: "When only 'competitive' elections were included, the point estimates for the effects of candidate spending were actually slightly lower but were not significantly different from the results obtained using the overall sample".
Finally, he offers two explanations why politicians spend so much effort on fund-raising (also true in India though carried out away from the limelight) and spending money. One is that the opportunity cost of raising funds is very low as compared to the benefits of winning the election. The second is that politicians have confused correlation with causality when considering the relationship between spending and electoral success.
Are these findings likely to be true for India as well? To be sure, the way in which money is spent in US elections varies significantly from India. I am not aware of prolific television ads in India which suggests that popular choices are relatively unencumbered by political advertising to begin with. The only way a candidate can hope to gain through the mass media is by influencing coverage in a popular TV channel (like Montesinos did in Peru), something that might benefit a party as a whole and secondarily its leader (like ‘Jaya’ TV, ‘Kalaignar’ TV, etc.) but would therefore not come within the ambit of individual campaign spending.
A major expense incurred by candidates is on the liquor, sarees, cricket sets and other goodies gifted to lower income voters. Indeed the only study I have come across so far is one that was conducted by the Center for Media Research earlier this year documenting the extent of such bribes. Also, prominent interest groups/organizations/religious establishments need to be appeased in part through 'donations'. This is apart from whatever is spent to keep party workers in high spirits (literally!) and for banners, pamphlets, rickshaws and other expenditure. The degree of effectiveness of such bribes to selected groups may be different from propaganda, voter registration, rallies and other legitimate efforts. Levitt’s findings may nevertheless still hold some value for upper middle class constituencies where these practices may not be widely prevalent.
Lastly, multi-cornered contests may potentially render the marginal advantage more significant. The reasons he attributes to politicians spending such a fortune on election campaigns rings true in the Indian situation as well.
The differences though make the comparison a difficult one. A similar study in India might well yield interesting results. There are however likely to be methodological problems. For one thing, finding successive elections where the same candidates face off may be difficult given the extremely competitive nature of the parties’ ticket selection process. Secondly, the multi-cornered nature of many contests adds to this problem and to the overall approach as well necessitating a more complex model. Thirdly, coalition politics makes it difficult to assess the incumbency factor. These difficulties are however not insurmountable and even a limited effort might be rewarding.
Update 1: Thanks to Mr.Venkatesan for reminding me of a study done by the CSDS in India. I quote from his post on this blog:
"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."
Update 2: Mr.Venkatesan kindly provided me with a copy of the CSDS study. On the relevant questions concerning electoral spending, the report compiled a list of the percentages of votes earned by the winners and their main challengers as well as the amounts spent by these two groups. The groups were themselves divided into three categories depending on the margin of victory (under 5%, 5-10% and over 10%). Several inferences were drawn from the numbers:
1. The winner did not always spend more than the runner-up. In some of the closely contested constituencies, the runner-ups spent more.
2. Those constituencies with the narrowest margin of victory did not record the highest spending. Rather, moderately competitive constituencies (margin of victory 5-10%) recorded the highest expenditures. Thus, spending did not correlate well with the degree of competitiveness (as judged from the outcome).
3. Polling and counting day expenditures are the highest as a fraction of the total expenditure on major items in the most closely contested seats. The inference is that by the polling day, candidates already have a keen sense of their chances and make a strategic choice to spend more if they believe the contest is close and the odds of victory are good.
The conclusion from 1 and 2 is that ‘higher expenditure does not necessarily produce victory’, i.e. there are important factors besides money which make a real difference to the outcome. Note that this does not indicate whether money does or does not make a difference – that is not something that a study of this sort will tell us.
It is quite possible that in terms of votes, the winner and the runner-up got different returns on their investment similar to what was found in Levitt's paper. The data cannot however verify this nor can it be compared with the findings from that study as the terms incumbent and challenger used in that study indicate the candidates’ status before the election which is different from the labels winner and runner-up used here that are based on the outcome.
Friday, October 10, 2008
In the U.S. about 1% of cases filed before the Supreme Court are actually heard by the Court. In countries like Italy, France, and Austria with Constitutional Courts – where almost all matters for their highest Courts are referred by the legislature or lower courts and not individuals – this number jumps to closer to 100%. The Brazilian Supreme Federal Court also decides a high proportion of the cases filed before it although individuals are allowed to appeal to it (and do quite often). You can see how each of these screening methods effects the functioning of a court. In the U.S. appeal is not that difficult, but the Court accepts few of these appeals for regular hearing making its caseload quite manageable. In the case of the Constitutional Courts most appeals are only from the legislature or lower courts meaning the appeal load is low and they can accept most of it manageably. In Brazil the Court is overwhelmed by appeals (most of which it decides, even if with just a sentence) and must rely more heavily on its staff to process these appeals. In India, the Court has added more judges and benches to process its relatively high appeal and judgment load. Unsurprisingly, how courts deal with admission matters fundamentally affect their structure and functioning.
So, what are we to make of this 12% number? We could have a larger discussion about whether it is too high or too low (a longer argument that would have to be outside this post). We could use it to assess the quality of lawyers – if you are a Supreme Court advocate what per cent of your cases are taken for regular hearing? (If it is below 12% you might have some explaining to do.) We could also break it down further. For example, in 2007 21% of three-justice bench admission matters and 55% of five-justice bench admission matters were accepted for regular hearing (the highest of any categories – probably because many are referred from other benches). Two of the next highest in 2007 were Direct Tax (20%) and Arbitration (19%) matters. Was this because more valid cases were brought in these categories? Were the lawyers in these matters better able to get them placed for regular hearing? Are justices biased towards these cases? Some of the lower acceptance rates for regular hearing came in categories with the highest profile. For example, only 5% of contempt admission matters in 2007 went to regular hearing. Similarly, only 7% of PIL admission matters continued on for regular hearing (this only counts the PIL matters that were placed on the admission hearing calendar – most PIL letter petitions don’t even make it this far). What explains these divergences? Are there more spurious cases brought in these categories? Are they more likely to be decided by justices during the admission hearing so that they are rejected at this stage instead of during regular hearing? Of course, none of this tells us how much time is spent arguing during the admission hearing in each category of cases, or whether oral admission arguments actually helped inform justices better than pure written arguments would have.
The Indian Supreme Court is increasingly keeping better and better statistics about its caseload (many of the High Courts have followed suit or arguably taken the lead). Statistics can often be misleading and their use in argument counter-productive. However, statistics can also give us more concrete tools to describe the Court’s functioning and where we would like it to head. Hopefully, scholars will increasingly dive into the statistical data about the Court to firm up their arguments and let the numbers lead them to new insights about the judiciary.
The bill empowers a National Advisory Board to act as the regulatory body laying down policies and regulations. It also seeks to set up State Advisory Boards that are, in addition to advising state governments, charged with monitoring the implementation of the provisions of the Act particularly with respect to the functioning of the ART clinics, semen banks and research organizations. Several newspapers have already published some of the details of this bill (a summary of some of its key provisions may be found in this article in Tehelka). Below are some of the other salient features.
ART clinics are to become the central hub of all surrogacy-related activity. They are tasked with obtaining all relevant information, informing all the parties involved of their rights and obligations, maintaining accurate records of all the transactions every step of the way. Requirements of confidentiality and other procedural obligations of all the institutions are also specified. The bill lays down conditions (such as age, usage, etc.) that potential gamete donors and surrogate mothers must meet.
Three ‘kinds’ of parents are involved in surrogacy: intending parents who seek the child, genetic parents who provide the genetic material for procreation and the surrogate mother who carries the fertilized womb until delivery. An individual can and often does wear more than one hat. For example, a man wanting to have his own child also provides the sperm to conceive the baby thus being both the intending as well as the genetic father. Likewise, a woman can not only provide the ovum but also carry the conceptus thus acting as both the genetic and surrogate mother. Several other combinations are also possible which is where controversy often arises. The bill draws clear lines to avoid these problems.
While not using the word ‘intending’ anywhere, its implications are nevertheless clear. Firstly, it categorically states that donors, at the time of donation, and surrogate mothers, after delivery, shall relinquish all parental rights (s.33(3), 34(4)). Secondly, it bars the surrogate mother from also being an oocyte donor – in other words, traditional surrogacy (s.33(13)). In its most common form, this method involves the surrogate woman undergoing artificial insemination with donor sperm and was the primary method of impregnation before the onset of more recent techniques such as in vitro fertilization (IVF). The important difference here is that unlike in gestational surrogacy where the surrogate mother only carries the child, here she is also the genetic mother. This was evidently a potential source of legal complications and would have required the government to come up with a more detailed framework of the parties’ rights in such cases. A ban no doubt precludes the problem but it comes at the cost of the law being more restrictive than it is perhaps necessary to be. Finally, the wording of the provision (s.33(13)) has a potential loophole . It only mentions ‘oocyte’ and not ‘ooplasm’ (the content of the oocyte barring the outer membrane and nucleus), a distinction that has become important ever since ooplasm transfers started to be carried out. Thus, an individual can now end up having two genetic mothers; if the surrogate mother also ends up donating the ooplasm that is introduced into the recipient’s oocyte, that would in effect amount, at least in part, to traditional surrogacy through the backdoor and all the issues associated with it.
Foreign couples/NRIs would be required to appoint a local guardian to be legally entrusted with the surrogate mother’s welfare until the baby is handed over to them after delivery. They are also required to establish to the clinic through documentation their ability to take the child back with them (s.34(19)). This is probably in response to the recent Manji incident where a surrogate baby conceived by a Japanese couple was stuck in India following emigration issues of the baby and the father (thanks to Mr.Venkatesan for bringing it to attention). In the controversy that followed, several infirmities in the arrangement came to light including the absence of a legal contract between the parties, a fact that many saw as a worrying reminder of the potential for exploitation of native surrogates.
The bill allows individuals and unmarried couples to avail of this route to have children. There is also a provision (s.20(10)) that conception by surrogacy shall not be considered by any clinic if it would normally be possible to carry a baby to term. The disparate impact is obvious: a woman desiring a child would thus have to show that she is not capable of bearing one; a single man of course is free to conceive as and when he pleases. There is a broader ethical question here: is it wrong to have ‘designer babies’, a phenomenon this provision is ostensibly meant to prevent? If two people consensually seek to conceive a child with the woman, for whatever reason, not wanting to go through the trouble of carrying it unto delivery, what is the state’s interest in preventing it given that it has no problem permitting surrogacy regardless of the family arrangement of the concerned individuals?
There is also a restriction on ART clinics from providing any information ‘about surrogate mothers or potential surrogate mothers to any person’ (s.34(14)). Parties seeking a surrogate mother thus have to either advertise (permitted under s.34(7)) or approach middlemen. It may not be unwise for ART clinics to stay clear of matchmaking but for those looking for a surrogate, it would be of benefit to have a reliable source of information regarding potential candidates. If he/she/they are investing so heavily in it, it is only fair to them to be able to select someone from a list by reviewing their attributes and ‘past performance’. Also, the strict confidentiality requirements of s.34(12) and s.34(14) would render it difficult for a private entity outside the purview of this law to fulfill this role given their inability to access information even for verification purposes. Introducing a caveat on the lines of s.33(2) (that applies to donors) allowing for the release of personal information at the discretion of the surrogate might allow for such a prospect in the future.
Clarification: In the comments section, I made a point that gay couples would have to adopt a child post-birth as there is no provision in the act for a gay couple to have a child. In doing so, I gave the example of heterosexual couples who adopt children when one of the genetic parents happens to be an external donor. I said ‘My understanding is that this bill does not seek to change that arrangement…” I wish to clarify that while this arrangement will continue to hold for gay couples, the situation will change for heterosexual couples (both married and unmarried) should this bill pass to become law. Under s.32(2), informed consent is mandatory for both partners (in case of a married or unmarried couple); s. s.35(1) and 35(2) would automatically render the child the legitimate child of both parties.
Thursday, October 09, 2008
The issue of cohabitees' rights raises complex questions regarding consent and entitlement. Clearly non-marital cohabitees have not expressly consented to any of the rights and obligations that ensue upon marriage. On the other hand, social hierarchies often result in structural vulnerabilities and assumptions about freedom of contract in close personal relationships may be unrealistic. Also, in polygamous marriages, the second 'wife' may not have any legal recourse (unless there is already an exception I am unaware of). Perhaps an entitlement to basic maintenance on proof of long-term cohabitation is the step in the right direction.
On a related matter, I was wondering about the legal status of contract marriages in India - to what extent can parties contract rights and obligations in derogation of, or in addition to, personal law or statutory rights? I think this is possible under Muslim personal law through the nikahnama, but any educated insights will be valuable.
Wednesday, October 08, 2008
2.Supreme Court's judgment in Divisional Manager, New India Assurance Co. Ltd. vs. A.Sankaralingam: At a time when the SC has referred to a larger Bench reconsideration of the landmark Bangalore Water Supply judgment, to reconsdier a host of issues settled in that judgment, this one by a two-Judge Bench (delivered on October 3 can be accessed on the judis site, if the link is not working)is a bolt from the blue. The Bench held in this case that a part-time employee is covered under the Industrial Disputes Act.
3.A.G.Noorani on lawless lawyers in the latest EPW
4.Andre Beteille on Constitutional Morality in EPW
5.Vinod Bhanu on right to recall legislators: the Chhattisgarh experiment in EPW
6. Sharad Joshi on how S.138 N.I.Act leads to farmers' suicides in Maharashtra.
7.M.J.Antony on the latest Supreme Court judgment in Pareena Swarup vs. Union of India, declaring its contempt for Babu-friendly tribunals.
Saturday, October 04, 2008
Namita graduated from National Law School, Bangalore in 2004. That same year, she pursued an LLM at Harvard Law School. Thereafter, Namita worked at the law firm of Davis Polk and Wardwell in New York city as a litigator and as a corporate associate. In Feb 2008, Namita started her doctorate at Harvard Law School, where her focus is in the areas of constitutional law, political, legal and social theory. Namita spent the summer of 2008 working at PRS Legislative Research in New Delhi working on issues of campaign finance regulation and parliamentary effectiveness.
Welcome on board, Namita. We look forward to your posts which will hopefully broaden the range of issues covered on our blog.
Friday, October 03, 2008
He began by outlining two approaches that Enlightenment thinkers had adopted towards understanding justice. The first approach, which he called "Transcendental Justice," adopted by classical writers like Hobbes and Rousseau and developed by contemporary thinkers like Rawls, Nozick and Dworkin, focuses on distinguishing between the just and the unjust and creating institutions that would ensure a just society. The second approach, which he characterized as a comparative approach to justice, espoused by thinkers as diverse as Adam Smith, Jeremy Bentham, Condorcet, Mary Wollstonecraft and Karl Marx focuses on the actual realization of justice in society by evaluating social injustices in a comparative setting. The primary concern of the "transcendentalists" is the creation of institutions that would ensure a perfectly just society, whereas that of the "comparativists" is to ensure improvements in society by removing specific injustices. For the comparativists, the idea of justice is not about achieving a perfectly just society, but to produce as just a society as is possible given the circumstances. Noting that there exists a strong bias in contemporary political philosophy towards "transcendental justice," Sen's book attempts to develop the idea of comparative justice.
Borrowing from an ancient Sanskrit text, Sen explained the contrast between the two approaches to justice as the difference between "niti" and "nyaya." "Niti," translated as "organizational propriety and correctness," refers to the institutions that should be created in order to have a just society. "Nyaya" on the other hand, translated as "a comprehensive idea of realized justice," is inescapably linked to the world and the lives of the people. Sen stated that the idea of justice in Holy Roman Emperor Ferdinand I's claim that justice ought to be done even though the world may perish, is that of "niti." However, justice done at the expense of a catastrophe in which the world may perish does not result in "nyaya."
Sen stressed that his idea of justice is not merely consequentialist. In fact, his idea of justice encompasses a comprehensive way of looking at both processes and outcomes. He illustrated this by referencing the famous debate between Krishna and Arjuna in the Bhagvad Gita, a holy Hindu text. Arjuna, a renowned warrior, hesitates on the brink of battle even though he is on the side of good and justice because he does not want to kill his cousins who are on the other side. Krishna encourages Arjuna to do his duty regardless of the consequences. This debate is often characterized as a debate between the deontological and consequentialist positions with Krishna representing the former and Arjuna the latter. However, Sen argued that Arjuna is not a mere consequentialist, in that he is not just concerned about the fact that many people will be killed in the battle that he is hesitating to engage in but also that he will be killing people for whom he has some affection.
Shifting focus to theories of global justice, Sen argued that when people across the world agitate for global justice, they are neither clamoring for minimal humanitarianism nor for a perfectly just society. They are seeking the removal of some outrageously unjust facts or rules in the national or global society. For instance, those seeking reform of patent laws to make drugs easily available to the poor and the needy are targeting the injustice of people dying for want of necessary medications while drug companies make huge profits. Their action is calibrated to achieve a narrow goal. It is not anticipated that the removal of this injustice will result in the creation of a perfectly just society.
I found the talk fascinating not merely because of Prof Sen's forceful argument for a theory of comparative justice but also for the breadth of literature, including diverse western political thinkers and ancient Sanskrit texts, that he drew upon to explicate it. In particular, I thought his references to the Bhagvad Gita for making a philosophical argument and his interpretation of those references were quite novel.
A full report of the talk can be accessed at this link: http://media.www.hlrecord.org/media/storage/paper609/news/2008/09/25/News/Sen-Argues.For.Theory.Of.Comparative.Justice-3451308.shtml