OCCASIONAL DIGEST

1. I co-authored an article in the latest Frontline aiming to offer a semantic analysis of the Parliament debate on anti-terror laws and their implications.

2. Nick Robinson, our co-blogger, in this stimulating and well-argued piece suggests that the reason for the huge backlog of cases in the Supreme Court is the number and type of cases it accepts rather than the number of judges.

3.My review of Zoya Hasan's Politics of Inclusion: Castes, Minorities, and Affirmative Action. and why I think the book makes a key contribution to the debate on equality.


4. M.J.Antony says complex questions have been referred to larger benches but they have lapsed from memory in this review of the Supreme Court in 2008.

5.A.G.Noorani says in this essay on Pakistan's burden that international law imposes an unqualified obligation on Pakistan to punish the conspirators behind the Mumbai attacks. AGN also offers a critique of the CJI's speech on terrorism, both on facts and reasoning.

2008: Year of the RTI user?

As the year draws to a close, I reflect on which law has made the greatest difference to the quality of living of an average Indian citizen. The RTI Act, having born in previous years, cannot qualify itself to be considered as a new law. Yet, it has made immense contribution to the rising of awareness, and strengthened the resolve of the average Indian to seek accountability, even if the results are not immediately encouraging, due to our bureaucracy's resistance to change. This latest decision by the newly-appointed Central Information Commissioner, Shailesh Gandhi directing the CBSE, Allahabad, to furnish the details of question-wise marks in Chemistry of a Class 12 student for the year 2006 is an instance of what an RTI applicant can achieve, if only he or she took the RTI fight to the finish. This is not to suggest that all RTI applicants taste success at the appellate stage in Central Information Commission. But the appointment of an erstwhile RTI activist, Shailesh Gandhi, as one of the Central Information Commissioners recently has led to considerable optimism about the RTI movement. In this interview, Shailesh Gandhi, recalls how he was drawn into the RTI movement, leaving a profitable business venture. His blog posts apparently stopped after becoming the Information Commissioner. In his latest post in July, he reflects on the work of the Commission, and offers an in-house critique of its tendency to reject appeals on procedural grounds in a candid manner.

Creating "Informal" Intellectual Property Norms

In this Mint editorial, I've touched upon the need to reconceptualise existing intellectual property (IP) norms to suit the needs of our 'Informal Economy". The logic underlying such "Informal IP norms" could perhaps be transposed to other areas of law/regulation as well. As always, I welcome your comments/insights/critiques on this theme.

Creating ‘Informal’ IP Norms

Current intellectual property (IP) regimes are excessively formalistic in their orientation. Not too surprising, given that their creation and sustenance has largely been the preserve of lawyers trained in formal legal thought, with little input from other disciplines such as science, sociology or economics.

One watches with deep anguish as such regimes take on a life of their own, forgetting the simple yet hard truth that they are not ends unto themselves, but are mere means to help serve a greater end, i.e., fostering more innovation and creativity. In other words, patents are valuable to us only to the extent that they help engender more innovations for society.

Not only are IP rules excessively formalistic in their orientation, they also cater largely to what one might term as the “formal” economy. In other words, there is an assumption that innovation is the sole prerogative of a lone inventor who does her research within the closed walls of a formalistic entity that we call the “corporation”. Similarly, copyright norms are premised on the assumption that content creation is the preserve of artists and writers who tie up with big media giants and publishing houses.

A close look at the nature of our economy today, characterized by Web 2.0 and the vast social/ collaborative networks built on it leads one to seriously question the above assumptions.

Illustratively, the open-source movement has opened our eyes to the fact that an informal network of programmers can bring us highly innovative and free software products of a kind never thought possible under a proprietary model where coding was controlled by a single corporation and products placed on the market at monopoly prices. Such collaborative/democratic/user innovation models are now being attempted in other technology areas such as biotechnology and pharmaceuticals. And they are bound to succeed, given that innovation is not a formal or linear process directed by a lone inventor, but a social process involving a multitude of different actors.

Indeed, India’s very own Council of Scientific and Industrial Research (CSIR) is now attempting to leverage an online collaborative model to come up with a new drug for tuberculosis (TB). That the gold standard for TB is a drug from the 1960s and that we haven’t had any major breakthroughs since then leads one to seriously question the current IP model around drug innovation; a model that brings us fewer innovative drugs each year and more me-too versions.

In the context of copyright law, the rise of user-generated content has thrown archaic copyright norms into serious question. Content is being created and posted on social forums such as Facebook and YouTube at a pace that might soon rival the speed of light. Similarly, content is shared between millions of users through several online platforms such as BitTorrent and LimeWire.

In the specific context of India, where almost 90% of the economy comprises the “informal sector”, the above truths hold even greater sway. The National Innovation Foundation, run out of IIM Ahmedabad, has compiled more than 50,000 innovations belonging to the rural “informal” poor and virtually demolished the assumption that innovation is the preserve of the rich and the “formal”. But merely identifying such innovative potential in India’s villages, often referred to by Mahatma Gandhi as the “real India”, is not good enough. One has to do more in terms of coming up with norms that help these poor communities leverage their creativity.

Newer IP regimes in India, such as the protection of geographical indications and plant varieties, throw the relevance of “informal communities” into sharper focus, dealing as they do with communities of farmers and artisans. Similarly, as India moves to devise norms for protecting and leveraging its ancient “traditional” and indigenous knowledge, it will again have to cater predominantly to informal communities that live on the fringes of the existing IP regime.

This regime, largely a Western heritage gifted to us by our colonial masters, and further entrenched with the help of an inequitable international instrument called TRIPS, is very “individualistic” in tone and focuses specifically on identifiable inventors and authors. This sits in sharp contrast with the “community” focus in India, where things like traditional medicinal knowledge and folklore have no clearly identifiable authors or inventors, but have been preserved by indigenous communities over hundreds of years.

Let me end this note by highlighting a paradox that characterizes IP regimes. Since their inception, most such regimes have been fairly static in their orientation, and have failed to reflect any “innovation” and “creativity”, the very same values sought to be encouraged by such regimes.

India has demonstrated its potential for innovative IP norms by articulating section 3(d) in its patent regime, a section that helps balance pharmaceutical patent protection with the need to preserve access. Given the importance of our informal economy, can we take this opportunity to innovate within this space as well by conceptualizing a set of “informal” IP norms?

Two momentous reports from the Law Commission

The Law Commission's 215th and 216th reports, submitted to the Government recently, deal with important subjects. The reports, which will be uploaded on the LCI's website shortly, have been summarised on the indlawnews.com here, here, and here.

The 215th Report recommends that L.Chandra Kumar judgment of the Supreme Court be revisited by a larger Bench. In 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar [JT 1997 (3) SC 589] held that clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower Parliament to exclude the jurisdiction of the High Courts and the Supreme Court under articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of articles 323A and 323B would, to the same extent, be unconstitutional. The Court held that the jurisdiction conferred upon the High Courts under articles 226/227 and upon the Supreme Court under article 32 of the Constitution is part of the inviolable basic structure of our Constitution. All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls.

According to the Law Commission, the power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court. The very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before the concerned High Courts. If one appeal is considered to be a must, an intra-tribunal appeal would be the best option, and then the matter can be taken to the Supreme Court by way of special leave petition under article 136, says the report.

The LCI's 216th Report is on “Non-feasibility of introduction of Hindi as compulsory language in the Supreme Court of India”. The Report is a response to the recommendations of the Parliamentary Committee on Official Language. The LCI has revisited the highly emotive issue of language, to reject the Committee's recommendation. The LCI could as well have recalled the tumultuous events of 1960s against imposition of one official language in the entire country, and the Prime Minister Jawaharlal Nehru's promise that English will continue as long as people in South India want it. It is strange how the continuance of English is linked to the integrity of the Indian judicial system. There are instances in the Supreme Court when petitioners are allowed to argue their cases in their mother tongue, with arrangements to translate for the benefit of the Bench, but it is English as the medium of the language of our Courts, both in oral, and written arguments, and in the judgments, that has enabled any advocate from any part of the country to argue in any High Court and the Supreme Court.

Both the Reports thus deserve a close scrutiny.

Law and Social Sciences Research Network's Inaugural Conference

The LASS Conference, scheduled to take place between January 8-10 at JNU, New Delhi, will witness presentation of over 100 papers in 35 panels and spread over seven sessions. Those of our contributors,and readers who will be attending any of these panels, and interested in blogging for us about the panel discussions, are welcome to post/guest-post after the event. To avoid repetition, and to ensure we cover as many as possible, I would appreciate if you could confirm to me (through email) the panels that you look forward to with interest, and which you may be in a position to write about subsequently.

Parliament and law-making

The just concluded session of Parliament has led to a debate on whether our MPs did justice to their primary duty, that is, law-making. Newspapers have been critical of the manner Parliament passed as many as 16 Bills in 20 minutes. Some of the criticism can be read here. The PRS Legislative Research gives here the key statistics of the just-concluded session. But what I find missing in the PRS' analysis is how much time the Standing Committees spent in each of the Bills passed in this session. The comment here suggests that we need to take into account the work done at the committees to pass a judgment on whether our MPs wasted their precious time in Parliament or whether the Government really rushed through the Bills avoiding a debate. Here is the list of Bills passed in the extended monsoon session. This list highlights the objectives of the Bills passed and the status of the pending Bills.

Criminal Procedure Code Amendments

The amendments to the Code of Criminal Procedure passed by Parliament in the just-concluded session have not received the attention they deserve. A quick read seems to indicate the following, among other, far-reaching changes:
1. The new section 41 appears to drastically reduce the power of the police to arrest without warrant. The main difference appears to be that mere suspicion as a ground for arrest has been done away with, and there seems to be an emphasis on the 'credibility' of information received which will justify arrests. There are also some reason-recording obligations while making arrests. To what extent will these new obligations be judicially enforceable?
2. The list of offences compoundable without requiring judicial permission appears to have been significantly enlarged in the new section 320.
3. Many other provisions, including video-recording of statements appear to be far-reaching.

Of course, given the institutional set-up of the police, what difference these changes will make in practice in the absence of wider police reforms at the state level is questionable. But it is interesting to note at least some transparency measures (recording of reasons, video-recording etc) being mandated by Parliament through criminal procedure.

Gender Justice and Judiciary

In a recent interview, the CJI said, with regard to poor representation of women in Higher Judiciary: "We have to look for talent and not equal representation for gender, caste or creed,". He said this in response to a question whether there was a chance of a woman getting a berth in the three vacancies in the apex court. His answer, (I wish I am wrong in interpreting him the way I do) suggested as though there were no competent women candidates who could be considered for Judgeships in Higher Judiciary. The fact that there have been just three women Judges in the Supreme Court so far must be a matter of concern, and there has been no serious effort to understand the underlying reaons for this gender imbalance, which some consider as shameful. The President Pratibha Patil, while inaugurating the National Conference of Lady Lawyers recently, referred to this poor representation in passing, without indicating what her answers would be. If there is a quota for women in higher judiciary, without relaxing the criteria for appointment, is it difficult to find right women for the job?

UPDATE: In this Mint story, some former women Judges voice their opposition to the quota proposal.

More analysis of the recent anti-terrorism law efforts

Writing in yesterday’s issue of the Hindustan Times, Ajit Doval, a former Director of the Intelligence Bureau, shares his thoughts on the Mumbai attacks. His views, perhaps in keeping with those of many within the law and order establishment, support calls for harsher anti-terrorism laws. On the issue of admissibility of confessions, he raises the following question:

In the defensive mode, strong anti-terror laws — substantive and procedural — are necessary. It is gratifying that the government has almost re-enacted Pota. However, in the proposed new law, inadmissibility of disclosures made before the police remains a lacuna. How can the police get evidence of the planning, preparation and logistics that lie beyond their reach and jurisdiction? Making admissions even before senior police officers inadmissible will only help the terrorists.

How can a society unwilling to trust its police against a foreign terrorist expect a policeman to lay down his life to protect it?

The emotive question posed by Doval appears, at first glance, to be unanswerable. Shrimoyee Ghosh, a trial lawyer based in Delhi, has an op-ed in today’s Indian Express which seeks to answer this precise question (although her response is more directly prompted by a recent column by Vinay Sitapati that was discussed on the blog here).

Ghosh examines the question in its historical context and sets out how the colonial authorities put in place the foundational structures for the Indian police:

Common law (non-codified English law) rules of evidence were first enacted as statute in the Indian Evidence Act, 1872. Interestingly, the Act makes a significant departure from its predecessor, making confessions inadmissible as evidence. To understand this, one has to look at how the history of policing in India is inextricably tied to torture. The Madras Torture Commission 1858 (constituted to investigate allegations of widespread torture by revenue officials and policemen) drew attention to torture as a structural problem of Indian policing rooted in the native policeman’s “inherent” savagery. The report was premised on a rule of racist difference: natives were incapable of understanding the British ideals of fairness and rule of law, and must be organised into a highly centralised force with little discretionary authority at lower levels, but with vast amounts of brute force: to arrest on suspicion, preventively detain, conduct searches and seizures. The Report resulted in the reorganisation of the police in the Madras Presidency, a model for the colonial police organisation throughout British India. Unsurprisingly, the reorganisation did little to alter the routine use of torture as a method of investigation, punishment and colonial control. The Evidence Act’s disallowance of police confessions viewed in this backdrop is a reflection of both the colonial distrust of the policeman, and the systemic way in which brutality is ingrained in the police force, so as to render confessions before it worthless as evidence.

The unfortunate truth is that the Indian police system was designed to allow torture to routinely happen. This consciousness permeates our everyday language: ‘Remand lena’ in Hindi slang is to give someone a thorough thrashing. Pitiful as it is, the bar on police confessions is among the few safeguards against torture in the absence of complete police reorganisation. While it may be technically possible to prosecute a policeman for extracting a confession unlawfully, provisions for prior government sanction and immunity further perpetuate a culture of impunity that is virtually impossible to permeate. But the problem with allowing police confessions is not merely that it ‘incentivises’ torture. Torture happens in India today, even whilst police confessions are inadmissible. The greater danger is that it incentivises police complacency and bad investigation. The lack of a rigorous jurisprudence for testing the veracity and voluntariness of confessions creates a situation where the confessional statement becomes the piece de resistance of the police case, and an excuse to ignore the need for collecting other evidence that will stand judicial scrutiny.

She then goes on to argue that incorporating such a measure would in fact be counter-productive in successfully prosecuting crimes of terrorism:

… … … Any evidence, including confessions, obtained in violation of procedure is inadmissible. While upholding the constitutionality of TADA police confessions, the Indian Supreme Court laid down safeguards to ensure their veracity. These have been progressively diluted over the years. For instance, in the Devendra Pal Singh case, a confession by a handcuffed TADA detainee surrounded by armed guards, made on the last day of his police remand, was still held to be admissible.

Moreover, confessions made to the police can be retracted. Before a Court of law detainees can (and do) argue that the confessional statement was coerced. When a confessional statement is retracted, as it is in a staggeringly high proportion of cases under TADA and POTA, the entire police case falls apart, because the confessional statement is all they have bothered to get as evidence. In our eagerness to ‘use any means necessary’ to tackle terrorism, we may actually be taking a step that is deeply inimical to effectively prosecuting the terrorists themselves.

Also relevant in the context of considering the question of how much we should trust the police, is this editorial also in today’s issue of the Indian Express, commenting on the encounter killings in Warangal earlier this month.

The police officers involved in the encounter have been treated as vigilante heroes, and mobbed by autograph seekers. Firecrackers were burst in celebration, sweets distributed, and a victory procession converged at the house of the police superintendent. This adulation is not unprecedented: across India, there is tacit public and political approval for encounter killings. The cult of the “encounter cop” owes its origin to the perceived need for the police to show “results”, and to a public weary of hardened criminals jumping bail. Both cops and laypersons share an impatience with the criminal justice system that they feel is simply not working: it takes too long to punish the guilty, and the accused often escape through a sieve of loopholes.

But to solve an error with another is merely to compound it. Our judicial system, however creaky, needs wide-ranging and long-term reform. Encounters, far from solving anything, create their own problems. Freed from any safeguards, some cops become laws unto themselves, as the arrest of some “encounter specialists” in Mumbai has shown. Encounters also wreak long-term damage by diminishing public confidence in our criminal justice system.

On a separate note, much of the discussion on the blog has focused on the recent amendments to the Unlawful Activities (Prevention) Bill. Analysis focusing on the other bill creating the National Investigation Agency Bill has been relatively scarce. Here is a column by Chakshu Rai of PRS Legislative Research setting out the scheme and main provisions of the NIA. He points to a possible lacuna in the scheme:

Many of these provisions are widely seen as steps in the right direction. However, these Acts focus on investigation and prosecution after acts of terror are committed. They do not address the issue of intelligence that could help pre-empt terrorist attacks. Press reports suggest that the Mumbai events were not prevented, partly due to a lack of coordination between various agencies. This lacuna will continue to persist. The government has not provided Parliament with the likely expenditure required to implement these laws. The financial memorandum of the NIA Bill states that: “it’s difficult to estimate the exact amount of expenditure required in setting up the agency”, and provides for a token amount.

Sen's Reflections on Indian Jurisprudence -- Nyaya and Neeti Considerations

I don't usually dabble in jurisprudence for, unlike our other blogger-scholars, I'm just a word-smith like most ordinary lawyers. Yet, I find it increasingly hard to resist legal theory through the erudite mediation of Amartya Sen. Unlike many economists (and sadly many whom I work with), Sen hold a marvelously capacious view of what economics is about. He is neither a trained lawyer nor a convert to the insipid technical analysis of the Law and Economics movement. Yet, Sen confidently acknowledges and asserts the influence of law and legal principles on economics and development.

Previously on this blog, we carried a summary of Sen's talk at Harvard Law. There, among other things, the Nobel laureate discussed the complimentary, yet duelling, concepts of nyaya and neeti. In simple terms, nyaya refers to outcome-oriented justice, while neeti is the concept of rule-based law. Yesterday, Sen returned to this theme in his lecture to an alumni conference at the IIT-Madras, where he makes an impassioned plea for nyaya-based outcomes. The full text has not yet been posted on the IIT alumni association's website, but here is a good summary from this morning's Hindu. I wonder to what extent modern Indian constitutional and legal jurisprudence is nyaya, rather than neeti in its orientation and outlook.

House of Lords debates Mumbai 2008

On December 18, Indian media made too much of the fact that Lord Swaraj Paul presided over the session of the House of Lords, which incidentally debated cricket and Mumbai 2008. Here is the link to that debate.

Martha Nussbaum on 'Decent Patriotism'

Professor Martha Nussbaum, Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, delivered the Second Foundation Lecture organised by the Institute for Human Development, New Delhi, on December 17. Her topic was "Development and the Nation: Can there be a Decent Patriotism?" The purpose of this post is not to sum up her lecture, which in due course, will be made available in full by the IHD on its site. As I found that her lecture drew largely from her article written for Daedalus (Toward a globally sensitive patriotism, Summer 2008 issue), I wanted to share what I felt after reading this article. In her lecture, she referred to her recent article in Los Angels Times on the Mumbai attacks, and what it means for the Muslims in India, which invited many critical comments.

Taken together, the Daedalus and the LAT articles articulate her concern that stereotyping of Muslims in India is as bad as racial profiling in the U.S. Her view of decent patriotism is based on her belief that national sentiment can play a valuable role in creating a decent world culture. She identifies five attributes of decent patriotism. The first is constitutional rights and independent judiciary. Second is a separation of powers that makes going to war more difficult. She wants war-making powers should reside in the legislature, and executive authority to initiate and continue wars should be severely contained. Third, she wants firm protections for the rights of legal immigrants who are not citizens, and decent arrangements for illegal immigrants. Fourth, getting the good out of a purified patriotism requires education about foreign cultures and domestic minorities. For example, she says if schools in Europe and the U.S. were doing their job teaching people aout the varieties of Islam, the current atmosphere of panic would be far more difficult to sustain. Finally, according to her, purified patriotism requires a vigorous critical culture, and protection of freedom of speech and dissent.

Unfortunately, she says, both India and the U.S. have recently taken a turn from the purified toward the malign form of patriotism. Saying that patriotism today shows her Janus-faced nature in India, she cautions that decent patriotism faces strong opposition from the malign patriotism of "Bande Mataram". Acute fear, she says, has typically led Americans to characterize the nation in narrow and exclusionary terms.

She concludes that patriotism in and of itself is not a good thing; often indeed it is a very bad thing. What she has argued, however, is that a nation that pursues goals that require sacrifice of self-interest needs to be able to appeal to patriotism, in ways that draw on symbol and rhetoric, emotional memory and history - as Lincoln, King, Gandhi and Nehru all successfully did. Her last sentence underscores the need to appeal to emotion and imagination, even while pursuing decent patriotism. If the advocates of decent patriotism (as when a nation pursues both internal justice, characterised by economic equality, and justice for minorities, and the goal of global justice)eschew symbol and rhetoric, fearing all appeals to emotion and imagination as inherently dangerous and irrational, the Right will monopolize these forces, to the detriment of democracy, she warns.

Desai and Sorabjee on the recent anti-terror amendments

The recent Parliamentary initiative to strengthen the domestic anti-terrorism legal regime in the aftermath of the Mumbai attacks is justifiably attracting extensive commentary and analysis in the media, and on this blog. Today’s Indian Express carries columns by Meghnad Desai and Soli Sorabjee which, despite their brevity, provide interesting insights. Both of them have extensive experience with such measures in the past. More recently, Meghnad Desai was a member of the British Parliament when some crucial post-9/11 legislative initiatives were introduced (which form the basis of the analysis in his column). Soli Sorabjee was the Attorney General for India under the BJP government from 1998-2004, was probably involved in drafting POTA, and successfully defended the validity of POTA before the Supreme Court in PUCL v. Union of India [(2004) 9 SCC 580].

After briefly recounting his relevant experiences in the British Parliament, Desai states, echoing concerns raised by others, that he is

mystified by the way in which the Indian Parliament can pass an important Bill in just two afternoon sessions, after ‘Second Reading’, i.e., general waffly speeches. There seems to be no detailed scrutiny and the Executive pretty much gets its way. Speed, however, is not a guarantee of effectiveness. The only time we suspended our procedures and passed an anti-terrorism bill in a single seating was after the bombing in Omagh in Northern Ireland which had killed 250 people. The Bill proved to be completely useless and indeed one of the retired Law Lords said as much during the passage of the Bill. The law just passed by the Indian Parliament is unlikely to survive a PIL which challenges its violation of human rights.

On this last point, Desai seems to be unaware of the Supreme Court’s less-than-robust record on such laws. On the last two occasions when such laws were challenged before the Court (in the Kartar Singh (upholding TADA) and PUCL (upholding POTA) cases, the Supreme Court, in contrast with its vigorous questioning of Parliamentary policies on other issues, quite meekly endorsed the stance adopted by the government on most of the controversial questions involved. At least based on previous precedents, it is doubtful if the Supreme Court can be expected to strike down the recent changes. (Aditya Swarup, a regular commentator on this blog, has a detailed post urging the Supreme Court to reconsider aspects of its ruling in the Kartar Singh case in order to question the recent amendments made to conditions of bail). Whether this particular Supreme Court will take on the current government, at this point of time so soon after the Mumbai attacks is a far more open question than Desai recognizes.

Desai goes on to assert what should, in his view, be the real focus of anti-terrorism efforts:

The problem is not having a new law but improving counter-terrorist practice. There is immense laxity in how evidence is gathered and indeed broadcast. … …. … Counter-terrorism can be tough as long as the personnel are well-resourced and co-ordinated. There has to be a lot of preventative work which cannot be in the public domain. In the UK, when houses are raided to arrest suspects, even their names are not released till they are presented before a judge. It reduces the likelihood of other terrorists being warned off and strengthens the police case. The public also has to be trained to be aware of risky items like unattended baggage, as we have been in the UK during the last 40 years of terrorist attacks. Also, all political parties have to agree that fighting terrorism is a national priority and not a party political game.

Sorabjee begins his analysis by commending the UPA government for the “much belated, tough anti-terror legislation which is sorely needed because extraordinary times require extraordinary laws.” I am struck by the similarity between this, and the far more sarcastic comments of Arun Jaitley, contending that such measures were overdue. Both figures seem to have forgotten how much public antipathy had developed against POTA, and the enormous pressure that had built up leading to its repeal. My sense is that both these figures must have been pivotal figures in the drafting and enactment of POTA (if my understanding is correct, they were the Attorney General and Law Minister at the relevant time), and perhaps this colours their view of the controversial law.

Sorabjee is justifiably revered amongst the human rights community in India, and has often taken strong stances on issues of human rights. To many within that community, however, his active engagement with controversial laws such as POTA and his refusal to quit as Attorney General over the Gujarat riots, are blemishes on an otherwise impressive record. Sorabjee shows why he is regarded as a champion of human rights when he denounces attempts to deny legal representation to Kasab. On the recent amendments, he expresses “strong reservation”

about the period of detention up to 180 days. This is constitutionally vulnerable apart from its inconsistency with the International Covenant on Civil and Political Rights 1966 [ICCPR], which India has ratified and which will cause problems before the Human Rights Committee when it takes up India’s report which India is bound to submit under the ICCPR.

But, in the very next sentence, he states:

A serious lacuna in the legislation is the exclusion of admissibility of confessions by the arrestee which to the satisfaction of the Sessions Judge were not the outcome of torture and third degree methods. This will hamper effective prosecution and conviction. This aspect has been dealt with by the Supreme Court in the POTA case and the provision making confessions admissible was upheld. In the absence of such a provision, terrorist Kasab may get away for lack of evidence.

As followers of the recent debate will note, Sorabjee’s analysis dovetails well with Arun Jaitley’s views on the admissions of confessions by those accused of crimes of terrorism. Jaitley’s arguments (which may well have been developed initially with inputs from Sorabjee) seem to be gaining favour in these emotionally trying times. I was surprised to see, for instance, this editorial in the Indian Express essentially endorsing Jaitley’s view (without saying so).

The arguments against the admissibility of confessions have a convincing rationale, and a long pedigree, in our legal system, and are made even more necessary by the operational and systemic conditions under which our police and investigatory forces function. I will not dwell on this here, and will only note that on this point, Desai and Sorabjee disagree. Desai’s short response:

What Qasab said, what he ate, what he wrote to the Pakistan High Commission are not matters which British anti-terrorist police would reveal till they presented the suspect before a judge. The evidence gathered cannot be admissible in a court of law because it is obtained under duress. As it is Qasab can already argue that he will not have a fair trial given all the adverse publicity. Many Indians are ready to hang him without trial, but the Rule of Law has to be followed.

On one point, however, Sorabjee and Desai seem to agree. Having noted earlier the views of Desai on this, here are Sorabjee’s views:

But remember: However tough and comprehensive the law, its enforcement will be ineffective if our police force is not adequately armed, properly equipped and fully trained to combat the terrorists. Police reforms are urgent and the Supreme Court directions in this behalf should be implemented without further delay.

At the present time, perhaps focusing on commonalities – rather than differences – may be the best way forward. Given the near-unanimity on the need to address conditions on the ground in the police and investigatory wings, a focus on those complex set of issues may be prudent

Judicial independence: Threats from within

The Supreme Court's judgment in the case of Shanti Bhushan vs. Union of India has been delivered. My earlier post tried to sum up the arguments in the case. The core issue in this case, to recall, is this: whether a fresh consultation within the existing collegium of the SC is necessary when an Additional Judge is being appointed as a Permanent Judge. Shanti Bhushan argued that it is mandatory. The Union of India disagreed.

In their judgment, Justices Pasayat and Mukundakam Sharma agreed with the petitioners that the extension given to Justice Ashok Kumar as Additional Judge of the Madras High Court, when he was found unsuitable for elevation as Permanent Judge in 2005 by the then Chief Justice R.C.Lahoti was wrong. But the Judges said the clock could not be put back, because the petitioners had failed to move the Court then. In Paragraph 14, the Judges said: "Since it is crystal clear that the Judges are not concerned with any political angle if there be any in the matter of appointment as Additional Judge or Permanent Judge; the then Chief Justice should have stuck to the view expressed by the colllegium and should not have been swayed by the views of the government to recommend extension of the term of respondent No.2 for one year; as it amounts to surrender of primacy by jugglery of words."

Still, the Judges disagreed with the petitioners that fresh consultation within the collegium is necessary when an Additional Judge is being promoted as a Permanent Judge. To reject the plea that non-consultation is illegal, the Judges cited the practice of previous CJIs who had also disregarded this perceived requirement in more than 300 such cases. Do bad precedents make good law? This case is sufficient to show that the interpretation of SC's judgments in First, Second and Third Judges cases is very problematic. This latest judgment, in fact, seems to suggest that the primacy of collegium is irrelevant if an additional Judge is promoted as a Permanent Judge, or even the term of the Additional Judge is sought to be extended. Is it another way of telling the Government that it can dilute the Second and Third Judges decisions by appointing more additional Judges first, and later appoint them as Permanent Judges, thus compromising the primacy of the collegium or the CJI? The Court appears to be saying: "Yes, we agree, a wrong has been committed in the extension given to an Additional Judge, and (possibly) his subsequent promotion as a Permanent Judge. But we are helpless in correcting it".

Incidentally, I happened to read the Daedalus Fall 2008 issue on Judicial Independence. It starts with an opening essay by Linda Greenhouse on Judicial independence: why and from what? She explains that judicial independence means independence from overt political pressure and retaliatory dismissal; but it is not independence from any and all constraints: precedents, respect for the roles of the co-equal branches of government, and the norm of impartiality. Another observation which I liked in this issue is this: "Judicial independence is neither an end in itself, nor an abstraction to be taken for granted." I leave it to the readers to decide how we could place this latest judgment.

Does terrorism influence voter decision?

Recent results of the state assembly elections led most observers to conclude that terrorism can hardly be an election issue and that it was wrong to expect that the Mumbai mayhem, coming close on the heels of the assembly elections, was most likely to benefit the BJP rather than the Congress. Some analysts pointed out that though voters are highly sensitive to terror incidents, the Mumbai carnage did not benefit the BJP because, in the voters' eyes, both the major parties, the BJP and the Congress were equally guilty of being soft on terror while in power. However, the recent assembly election results evoked much interest in the media precisely because the BJP used the Mumbai attack as the campaign theme. Only a post-poll survey, usually carried out by Yogendra Yadav of Lokniti, can bring out the truth regarding whether Mumbai attack really influenced the voters' decision. The Lokniti site does not carry any such findings so far.

Curiously, a study on Israelis' voting behaviour and published in the recent American Political Science Review has provided strong empirical support for the hypothesis that the electorate is highly sensitive to terror fatalities. Notably, it presented solid evidence that terrorism causes an important increase in the support for the right bloc of political parties. This effect, according to the study, is of a significant political magnitude, to the extent that the occurrence of a terror attack before an election (or the lack thereof) can clearly determine the electoral outcome. The study simply multiplied the estimated effects of terrorism by each locality's valid ballots and the actual distribution of terror attacks to calculate the number of voters that switched alliances between the two major contending blocs.

The authors of this study conclude that terror attacks affect the electorate, substantiating the hypothesis that democracies are especially susceptible to being targetted by terror organisations. In general, they say that implementation of counterterrorism policies is accompanied by an increase of the salience of terrorism, due partly to public statements made by policy makers. Their results implied that an increase of the salience of terrorism as an important issue dimension has a negative effect that may encourage terrorists to intensify their campaign. Policies that diminish the electorate's sensitivity to terrorism, on the contrary, may also be very efficient in lowering its threat, the study reveals.

Granted that India is not Israel, is it not time to carry out similar empirical studies in India to determine the salience of terrorism as an election issue, whether counter-terrorism policies, with an emphasis on stringent measures, intensify terrorism-related incidents in the run-up to the elections? The Lokniti has been in the forefront in conducting issue-centric election surveys before and after the elections. This time, however, we have not so far seen similar studies in the media after the recent assembly elections, which is unfortunate. In this lecture at MIDS, Yogendra Yadav reflects on the state of survey research on politics in most of the world.

VP Singh, the missing obituary, and how to judge politicians

Ashok Mitra says that VP Singh, in passing away on November 27 might have chosen 'the worst possible day ... to take his bow, with the nation in the grip of the trauma of global terror. On the other hand, he would conceivably have liked nothing better. He was a man of principle, he was also a man of great civilization, with intense distaste for flamboyance.' Most of us will remember VP Singh for Mandal. Mitra shows how there was much more to the Prime Minister we forgot even when he was alive. In another moving obituary, Aruna Roy and Nikhil Dey describe his unwavering support to the right to information and right to work movements, even when his health was precarious.

What I found most attractive in these obituaries is that they show a man, although fallible, had unquestionable integrity. How many of our politicians can make that claim? He might have had a relatively short stint in the PMO, but the man appears to have more in common with Nehru than Devegowda.

An aside on politicians. India, like most of the world, loves to hate her politicians. But the last few days have seen the hatred expressed as never before. Harish Khare warns against this trend: 'Above all, we shall have to re-examine our political habits that endlessly and mindlessly encourage a disrespect for public authority. Democracy is a partnership between those have to operate the levers of the state and the citizens. We need to make a distinction between (legitimate) dissent and (undesirable) disregard of the citizen’s obligations. The state does have a duty to ensure the citizen’s safety against vendors of violence, but this charter cannot be discharged without an active involvement of responsive citizens in restoring the legitimacy and popular acceptance of our public institutions. Only then can we expect the citizens and voters to punish those who produce bad politics and reward those who strive for good governance.'

I couldn't agree more. Parroting 'middle class' clichés and painting them all with the same brush is easy but unproductive. Namita's fantastic report on the PRS conference discusses the role of the media - 'the media also tends to focus only on the nonsense and shouting matches that go on in Parliament in order to sensationalise news instead of covering parliamentary debates in the manner that they should be covered.' I watched the live debate on the terror bills for a while. Kapil Sibal's defence of the reasons for not making confessions to a police officer admissible was remarkable in its eloquence, research and wisdom. I did not come across a single news report or editorial dealing with the substantive content of his speech. We hear anecdotally that our parliamentarians do good work in the standing committees - but these being opaque, one can never know for sure.

As with everyone else, we must be slow to judge our politicians, and approach our evaluation with scepticism appropriate for all power, but not with cynicism. And let us judge them individually, not as a class. Let us start with the presumption of innocence. And let us demand morality, and judge them on high moral standards. Only after we have adhered to these requirements of due process, can we rightly pass harsh judgments. On the other hand, if we expect too little, we get too little.

PRS Conference on Effective Legislatures - Part II

The second panel at the recently concluded PRS Conference examined “Parameters for Measuring the Effectiveness of Legislative Bodies”. Having worked on the discussion paper for this conference alongwith the one on reform of campaign finance laws, I can testify to the paucity of literature available on this subject. As can be seen from the discussion paper available at this link, the Commonwealth Parliamentary Association has recommended benchmarks for democratic legislatures setting standards for the institutional and procedural structures of legislatures. The World Bank Institute has published a study on legislative oversight and budgeting that includes metrics to assess the effectiveness of legislatures. For example, they list oversight tools such as committee hearings and questions, and measure the number of times these have been used.

However, none of these reports provide a comprehensive set of criteria for measuring effectiveness of legislative bodies and therefore, we had to come up with a set of criteria, largely on our own, for measuring effectiveness of legislatures. The metrics we devised were based on an assumption that the four main functions of the Indian Parliament are: legislation, executive oversight, representation and budgeting. Some criteria for evaluating Parliament’s effectiveness as a legislative body include the quantity and quality of laws enacted. Obviously, judging the quality of law is more difficult than assessing the quantity of legislation enacted. For instance, we can evaluate the quantity of time devoted to law making by computing the total amount of time spent by MPs on debating bills in Parliament, the percentage of time spent on legislative business in Parliament as opposed to other things (including pointless shouting matches and unnecessary disruptions/adjournments) as well as the average amount of time spent in discussing pending bills. The data provided in the PRS discussion paper reveals that the current Parliament has spent only 20% of its time on legislation each year during the last five years. The quality of legislation can be judged by the quality of speeches made during legislative debates and the quality of the law enacted. Some suggested metrics for evaluating the quality of enacted laws are to examine the percentage of enacted laws struck down by courts on grounds of constitutional invalidity and the percentage of laws amended subsequently shortly after their enactment. These metrics are based on the assumption that a law that needs to be amended shortly after it is enacted or that has been declared unconstitutional by the High Court or Supreme Court cannot have been very well thought of at the time of enactment, therefore reflecting poor quality of legislation. Of course, these are not the only criteria for judging the quality of legislation and it would be useful to hear feedback on the metrics described in the discussion paper.

The panelists at the conference included Dr. Bimal Jalan, erstwhile governor of the Reserve Bank of India and a nominated member of the Rajya Sabha, Mr. Arun Shourie, former journalist and BJP member of the Rajya Sabha and Mr. Nandan Nilekani, co-chairman, Infosys Technologies Limited. The panel was moderated by Mr. Siddharth Varadarajan, an editor with the Hindu.

Dr. Bimal Jalan started by saying that as a nominated member of Parliament, he offered an outsider’s perspective of parliamentary proceedings and functioning. He gave a positive nod to the work of the parliamentary standing committees as the only place in Parliament where work is done in a non partisan manner. That was perhaps the only positive thing he had to say about the Indian Parliament as an institution. On as he described it, “a more realistic note”, he found Parliament as an institution to be absolutely ineffective because “nothing gets done”. He dismissed the myth of collective responsibility of the executive to parliament stating that if Parliament cannot even decide when it will meet or for how long it will meet, then there was no such responsibility. Parliament is convened merely for carrying out government business or for confidence motions. Legislative debates are impeded by political and other agenda, while MPs have no independent thinking or voting on issues as they are forced to toe the party line due to the anti defection provisions contained in the 10th Schedule of the Constitution. He concluded by stating that the question for an independent observer is not to measure the “effectiveness” but the “ineffectiveness” of Parliament. The legislature and legislators are not free to do anything in the interest of the country. There is no accountability whatsoever and the legislatures are marked by the supremacy of political parties.

Mr. Arun Shourie started his remarks by lauding the efforts of PRS in raising the level of MPs’ awareness of issues in legislation. He raised the following issues requiring consideration in judging the effectiveness of Parliament and provided his thoughts on the same.

1. Whether Parliament is an effective forum on national issues and policies? Whether the executive is responsible to Parliament? Agreeing with Dr. Jalan’s description of Parliament as an ineffective institution, he reiterated that it is a complete myth that the executive is responsible to Parliament. There is no illusion left about this reality now after the cash for vote scam.

2. Whether Members speak and vote their mind regarding national issues? Does the Parliament support discussion? Mr. Shourie reiterated the points regarding adversarial politics and the incidence of blame games rather than concrete discussion on any legislative proposal in Parliament. He stressed the need to amend the 10th Schedule in order to facilitate independent thinking and voting on bills irrespective of party lines.

3. Are members representatives of the people? What kind of representation are we talking about? In terms of representation, Mr. Shourie argued that because of the first past the poll rule, it turns out that our elected representatives actually do not represent a majority of the population. Therefore, he recommended that India adopt a two round voting or as it is commonly also called “runoff voting” procedure. Under runoff voting, the voter simply casts a single vote for their favorite candidate. However, if no candidate receives an absolute majority of votes, then all candidates, except the two with the most votes, are eliminated, and a second round of voting occurs.

4. The media needs to be more responsible: In a harsh indictment of the media, he stated that the media also tends to focus only on the nonsense and shouting matches that go on in Parliament in order to sensationalise news instead of covering parliamentary debates in the manner that they should be covered. The media should focus on the content of Parliament and MPs without being biased and content specific.

5 . Decriminalisation of politics and legislatures: Mr. Shourie stated that we have to ensure both decriminalisation of politics and also that those who have criminal records do not serve as MPs. He called for amendment of section 8A of the Representation of the People Act, 1951, which allows an MP who has been convicted of a crime, to continue in Parliament so long as he appeals against the conviction within 30 days. Given the delays in our judicial system, this basically translates into convicted MPs, including those convicted of heinous offences, continuing as MPs for the duration of their parliamentary tenure.

6. There has to be detailed analysis of legislative policy and bills like that conducted by PRS. On this note, he stated that if our politicians will not undertake their responsibilities, it would fall to independent bodies like PRS to do the work.

The last speaker, Mr. Nandan Nilekani commenced his remarks by breaking down the idea of the “effectiveness” of legislatures to mean both “efficiency effectiveness” and “equity effectiveness”. While the “efficiency effectiveness” criterion is easy to measure but the same cannot be said of the “equity effectiveness” criterion. The latter also includes measurement of the effectiveness of Parliament as a body as well as the effectiveness of individual parliamentarians. In this context, he stated that the anti defection law has had unintended consequences. Since MPs have to follow the party whip or face disqualification, they have no incentive to study the issue on which debate occurs or to speak their mind and present their personal views. But unless there is healthy legislative debate, we cannot have reform. Therefore, the need of the hour is to repeal the anti defection law.

Mr. Nilekani reiterated the concerns expressed by Dr. Jalan and Mr. Shourie regarding the executive’s role in circumscribing the functions of Parliament to the extent that the executive determines when a parliamentary session will be held or not. He posed the question as to whether there was a way that the Parliament could come together without executive approval but that the appropriate place for this debate is Parliament. He also reiterated praise for the Parliamentary Standing committees stating that his interaction with them had been very different from his interaction with Parliamentarians in general. He had a mixed view about whether the proceedings of the committees should be made transparent or not because he feared that transparency of proceedings may result in grandstanding along party lines.

In a striking contrast from Dr. Jalan’s sombre forecast about the future of Parliament as an institution, Mr. Nilekani was optimistic stating that things will change over time, particularly since in the next 25 years, there will be a billion Indians below the age of 20 and the ever growing middle class will be a force to reckon with. It is striking that the person most optimistic about the possibility of more effective legislatures is not a legislator.

In rounding off the discussion, Mr. Varadarajan noted that all three panelists recommended repeal of the anti defection law but considered the feasibility of political consensus on this issue debatable. The panelists also agreed that there was a need to incentivise change. We need to understand what attracts particular types of people to become MPs and see if we can’t change the incentives to attract talented people to the job. Another way of reforming MP behaviour is for visible/privileged classes to seek greater accountability from their elected representatives. The lesson to leave with in this apparently hopeless set of affairs is Mr. Shourie’s advice to “keep up the outrage; keep revamping one institution or one aspect of an institution bit by bit to make a difference”, however insubstantial, and hopefully reform will occur.

On Torture, and Confessions

The issue of torture and custodial interrogations have been discussed previously on this blog. In an article in today's Indian Express titled 'The Kasab Contradiction', Vinay Sitapati suggests that the Kasab saga exposes a key contradiction: while on the one hand, India is using Kasab's confessions to build international support against Pakistan, on the other hand, Kasab's confessions are inadmissible in Indian courts. Drawing on Arun Jaitley's suggestions on this issue, Mr. Sitapati suggests safeguards that serve as checks on torture so that confessions may be admissible in court. It will interesting to debate the extent to which Mr. Sitapati's suggestions blur the vital distinction between a magistrate and a police officer (the former interested in finding the truth, and the latter interested in a conviction). On my reading of the piece, it seems that Mr. Sitapati's suggestions do not take away the responsibility of the Magistrate, or ignore this distinction; if anything they maintain the role of Magistrate, and place additional responsibilities on the police.

Custodial interrogation: The new law and the reality

The Unlawful Activities (Prevention) Amendment Bill, 2008 seeks to extend the maximum number of days a suspect can be detained for interrogation to 180 days, if it is not possible to complete the investigation within 90 days. First, it is not clear why India needs such lengthy period for interrogation, when other countries in their anti-terror laws provided for a far less period ( According to Kapil Sibal, who took part in the debate in Parliament, under the Patriot Act in the U.S., an accused non-citizen is presented before the magistrate within 7 days. In U.K., under the Terrorism Act, 2006, an accused could be detained for 28 days. Sibal cited this to suggest that our laws are more stringent than those in these countries. Agreed. He could have as well explained why we require such lengthy period, and whether we have any inherent defects/insufficiencies in investigation. Second, I'm surprised that this factor is cited as a justification for the new law, when under S.167 of Cr.P.C., the maximum permissible period for custodial interrogation is already 90 days for offences punishable with death, life imprisonment or imprisonment for 10 years. Third, as this news report shows, the Courts do have discretion to extend the period of detention for custodial interrogation. The Delhi High Court's judgment in this case, which may be uploaded in a few days, may throw further light on this.

Relevant materials on contemporary discourse on terrorism

To facilitate the current discussion on our blog on terrorism, I am providing some relevant links.

1. The National Investigation Agency Bill, 2008.

2. The Unlawful Activities (Prevention) Amendment Bill, 2008. (Courtesy: 1&2 from the PRS website)

3.Debate in Lok Sabha on December 17, 2008.. (Synopsis, from p.5). The Lok Sabha debate on December 17 may be read fully here. Debate in Rajya Sabha on December 18 may be read here.

4. Letter written by Prof.V.S.Mani on the legal duty to prevent and restrain militant activities on one's soil. This was in response to the CJI's article describing it as a moral duty.

5. FIA alone may not be sufficient to reform our security - article by Radha Kumar.

6. Subramanian Swamy says Government can invoke Article 22(3)of the Constitution to deprive Kasab, any possible legal assistance as required under Article 22(1) by treating him as an enemy alien. (A recent decision of the Madras High Court on whether such action is legal can be read here) However, Kasab was not treated as an enemy alien, as he was produced before the Magistrate within 24 hours of his arrest under IPC, a requirement which could be dispensed with for an enemy alien.

MR Madhavan on the new Right to Education Bill

The UPA government recently introduced the Right to Free and Compulsory Education Bill, 2008. The issue of the right to primary education in India, and the way it should be implemented through parliamentary law has been simmering for long, and has attracted commentary on this blog from its inception. Previous posts tracking debates over this issue can be found here, here and here. For a good resource on issues relating to education in general, see this section of the regularly updated website of India Together.

Today’s Indian Express carries an op-ed by MR Madhavan of PRS Legislative Research which seeks to highlight problematic aspects of the Bill. He begins his analysis by noting - as mentioned in the posts referenced above - that the Bill has been delayed since 2005 on the sticky issue of the sharing of costs between the centre and the states, which appears to have now been resolved. Madhavan provides a good summary of the main provisions and aims of the Bill:

The Bill states that all children between the age of six and fourteen years have the right to free and compulsory education. It mandates the government to set up neighbourhood schools within three years. It has provisions to provide out-of-school children to be given special training and then be admitted to the class appropriate for their age. It bans capitation fees and screening tests at the time of admission, failing or expelling any child till the completion of elementary education, and private tuitions by teachers. The Bill has specific provisions for private schools: a certificate of recognition and admitting at least 25 per cent of students belonging to the “weaker section and disadvantaged group in the neighbourhood and provide free and compulsory education till its completion”. For such children, the government will provide reimbursement to the school to the extent of per-child expenditure for government schools.

He goes on to highlight five main points:

First, there appears to be lack of clarity on the delivery mechanism to provide elementary education for all children. … … … [The Bill] permits private schools, [but] places several conditions — on admissions (including the 25 per cent quota for weaker sections), minimum standards and policies on promoting students among others. ... ... ... Second, the focus appears to be on infrastructure and enrolment and not to see that the children who go to school actually learn. ... ... ... Third, the Bill provides for a uniform curriculum and evaluation procedure for elementary education within each state. This would limit the freedom of schools to determining the pedagogical content and methodology. Fourth, this Bill states that “it shall be the duty of every parent to admit his child to a neighbourhood school”. It, however, does not state the consequences of not following this duty. Also, it does not address the issues due to which parents do not admit their children. Fifth, the Bill requires each government and aided school to form a school management committee comprising local elected representatives, parents and teachers. This committee shall monitor the working of the school and the utilisation of grants given to the school. Evidence from Karnataka and several countries in Latin America and Africa on similar committees do not present any conclusive evidence of improvement in quality of schools.

His conclusion:

While the Bill attempts to lay down some guideposts, it remains an open question whether its provisions are sufficient to achieve this goal.

There is near unanimous agreement among policy makers on the crucial importance of primary education in India. To echo the point made by Tarunabh in the previous post, it is imperative that Parliament play its role of a genuine deliberative forum, at least on issues that go to the core of our constitutional democracy.

Update: The discussion in the comments section makes a reference to the text of the Bill necessary. Here is the full text of the Bill, from the PRS Legislative Research website.

India's Guantanamo (or Belmarsh)?

Lok Sabha has just passed the amendments to the Unlawful Activities Prevention Act. Although I have not seen the full text of the amending Bill, media reports indicate that it allows for indefinite detention of foreign suspects. If this is true, we might be in the process of creating our own version of the Guantanamo or Belmarsh prisons, and without any public debate. A similar law was declared by the House of Lords to be incompatible with the British Human Rights Act, 1998 in A v. Secretary of State for the Home Department (Belmarsh detainees case).

I hope this analysis is wrong and that the media reports (or my reading of them) have missed some crucial nuance in the Bill. Perhaps all it does is mandatorily denies bail after a chargesheet has been filed (which is not great either), but retains the 180-days-detention-limit-without-charge for foreigners. Can anyone please clarify?

Update - The new Section 43D (8) added by the amending Bill states: Notwithstanding anything contained in sub-sections (6) and (7), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except invery exceptional circumstances and for reasons to be recorded in writing.

I think a person becomes an 'accused' only after a chargesheet is filed, so detention without charge should still be possible for 180 days only, even for foreigners.

[Hat tip to Dilip for posting the link]

Update 2 - The analysis in the first update above may be wrong. Please see the comment section.

Regulation of Campaign Finance--Response to Comments

In his comment to my post regarding the “PRS Conference on Effective Legislatures-Part 1”, Venkatesan has rightly pointed out that as per the Supreme Court’s judgment in Common Cause (A Registered Society) v. Union of India and others (1996) 2 SCC 752, political parties are required to keep accounts of expenses by leaders of a political party campaigning on behalf of their respective candidates. The Supreme Court held, “Superintendence and control over the conduct of election by the Election Commission include[s] the scrutiny of all expenses incurred by a political party, a candidate or any other association or body of persons or by any individual in the course of the election. The expression “Conduct of election” is wide enough to include in its sweep, the power to issue direction – in the process of the conduct of an election – to the effect that the political parties shall submit to the Election Commission, for its scrutiny, the details of the expenditure incurred or authorized by the parties in connection with the election of their respective candidates.” However, both the Supreme Court’s judgment and the Representation of the People Act, 1951 allow the possibility of expenditure on campaign funds by political parties on behalf of their candidates in the garb of expenditure on propagating the party’s political program on which there are no limits and no requirement for transparent accounting.

Section 77 of the of the Representation of the People Act, 1951 provides that every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent during the campaign period. Prior to 2003, Explanation 1 to section 77 provided that the expenditure incurred by or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual shall not be deemed to be expenditure incurred or authorised by the candidate and therefore did not need to be accounted for. In light of sustained criticism of this provision, vide the Election and Other Related Laws (amendment) Act in 2003, Explanation 1 to Section 77 was amended to provide that only, "the expenditure incurred by leaders of a political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be [ ] expenditure in connection with the election incurred or authorised by a candidate of that political party or his election agent [ ]". The Amendment Act also inserted Explanation 2 that defines "leaders of a political party" to mean such persons whose names have been communicated to the Election Commission and the Chief Electoral Officers of the States by the political party to be leaders for the purposes of such election, within a period of seven days from the date of the notification for such election published in the Gazette of India or Official Gazette of the State, as the case may be. In the case of recognised political parties, the number of such persons shall not exceed forty and in case of non recognised political parties, this number shall not exceed twenty.

This amendment has considerably watered down the escape route provided by the previous version of Explanation 1 because now expenditure incurred by any person who is not a designated leader of the party can be considered as expenditure incurred on behalf of the candidate. However, this provision still allows party spending and spending by party supporters on propagating the party's program generally because surely party campaigns may be conducted in situations where it would be hard to attribute the expenditure to a particular candidate. Such expenditure is neither limited by any ceiling under the law (which fact is perhaps irrelevant as the ceilings are difficult to enforce and based on the CEC’s comments, not observed by politicians anyways) nor subject to transparent accounting. In fact, the Election Commission has recommended that political parties must be required to publish their accounts annually (at least in an abridged form) for information and scrutiny of the general public. These accounts must be audited by a firm of auditors approved by the Comptroller and Auditor General.

Dilip, a copy of the Indrajit Gupta Committee Report is not available on the internet, however, the recommendations made by the Committee are neatly summarized in paragraph 4.3.6 of the 170th Report of the Law Commission of India on the “Reform of the electoral laws” May 1999, which can be accessed at this link: http://lawcommissionofindia.nic.in/lc170.htm#LAW%20COMMISSION%20OF%20INDIA

A detailed discussion paper on “Regulation of Campaign Finance” can be found at this link: http://prsindia.org/docs/conference/Campaign_finance_draft_discussion_paper.pdf

Terrorism and the International Criminal Court

In these uncertain times, the Chief Justice KG Balakrishnan reminds us that 'substantive due process is an essential part of our collective response to terrorism.' Don't think either of them will like the comparison, but Arundhati Roy makes a similar, if more eloquent, call: "Anti-terrorism laws are not meant for terrorists; they're for people that governments don't like. That's why they have a conviction rate of less than 2%...Terrorists like those who attacked Mumbai are hardly likely to be deterred by the prospect of being refused bail or being sentenced to death. It's what they want...We're standing at a fork in the road. One sign says Justice, the other Civil War. There's no third sign and there's no going back. Choose."

The reminders are timely, given that the government appears to have tabled an amendment to the Unlawful Activities Prevention Act today in Parliament. I am sure our bloggers will discuss the amendments as soon as further details emerge, including their impact on civil liberties, if any.

I am particularly interested in one small portion of the CJI's piece:
"Another suggestion that has been made in this regard is that of treating terrorist attacks as offences recognised under International Criminal Law, such as ‘crimes against humanity,’ which can then be tried before a supranational tribunal such as the International Criminal Court (ICC). However, the obvious practical problem with this suggestion is that prosecutions before this Court need to be initiated by the United Nations Security Council (UNSC) and the latter body may be reluctant to do so in instances of one-off terrorist attacks as opposed to continuing conflicts."

This, although true, is not the only course of action available. In this article, I aruged (with Neha Jain) that India has a strategic interest in signing up to the Rome Statute of the International Criminal Court:
"The ICC has jurisdiction over a case if either the suspects are nationals of a member state or if the crimes are committed on the territory of a member state. In a case like this one, because the crimes were committed on Indian soil, India could have referred the case to the ICC if it was its member at the time when the crimes are committed. It does not matter whether the foreign state whose nationals or residents are alleged to have committed the crimes is a member or not. The ICC can assume jurisdiction and require all member states to co-operate with the prosecution irrespective of the consent of the state whose nationals are being prosecuted. For instance, if the suspects were to seek refuge in a foreign state which is party to the statute, that state would be obliged to surrender the suspects to the ICC and assist in its investigative efforts. If the foreign state is not a member of the ICC, it will not have any obligation to co-operate with the ICC. But the international attention that an ICC trial will inevitably bring to the case may shame it into prosecuting or extraditing the suspects."

This blog has discussed the ICC previously, here and here.

Debate on media coverage of terror

The debate on media coverage of terror organised by the FMP evinced considerable interest among our readers. This link takes you to the summary of views expressed at the panel discussion, as carried on the FMP's site.

Written Submission of the Union of India in Naz Foundation

The Written Submission filed by Additional Solicitor General P.P. Malhotra on behalf of the Union of India in Naz Foundation case (dealing with decriminalisation of adult consensual homosexual sex in private) is available here. The case has been followed on this blog here, here and here.

Whatever view on has on the issue, the poor quality of the submission purely from the point of view of legal acumen is disturbing. Consider this quote from the submission:

"Hindu Marriage Act s. 13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

Thus if a married man does sexual intercourse with any person other than his wife or spouse it is a ground for divorce. If Section 377 is interpreted in a manner that the act of intercourse against the order or nature is permitted and homosexuality which is an offence now is permitted it may require alteration or amendment of Section 13(1)(i) of the Hindu Marriage Act."

Does the ASG really believe this argument to be true? Any reasonably competent undergraduate law student will tell you that section 13(1)(i) of the Hindu Marriage Act merely provides a ground for divorce which has no necessary relationship with the criminality of the act in question. It will continue to remain a ground for divorce, even if adultery (heterosexual or homosexual) is decriminalised. Decriminalising sodomy will not require any change to this provision. The same section 13(1)(iv) provides that leprosy is a ground for divorce. Section 13(1)(ii) provides that conversion to a religion other than Hinduism is a ground for divorce. As far as I am aware, being inflicted with leprosy or conversion to another religion are not criminal acts, and yet have happily existed as grounds for divorce for years.

While the Union of India still battles to retain this colonial relic, Nepal continues to take a surprisingly progressive stand on the issue. First, the Supreme Court of Nepal outlawed all discrimination on the grounds of sexual orientation and gender identity last year, and instituted a committee to recommend the legalisation of same-sex marriages. Then, after the people's revolution early this year, Nepal elected Sunil Babu Pant as the first openly gay member of Parliament and the Consituent Assembly. Now, the Maoist government has made Nepal the only South Asian country to endorse a UN General Assembly statement calling for an end to abuse of rights on the basis of sexual orientation and gender identity.

News Scan

* Delhi Police finds D.K.Basu guidelines a major hindrance in tackling terror.

* Ramar Sethu affidavit: ASI official challenges his suspension in CAT. (Has my RTI on this had an impact?)

*K.B.N.Lam to defend Kasab

Profiles in Courage: Lawyers who defend unpopular clients

Over the past year, we've seen several instances where lawyers have faced pressure when they defended unpopular clients, either from the mass media or, worse, from lawyer associations. This issue has arisen, for instance, in the context of the Manu Sharma case, the Nithari murders, and when lawyers in U.P. 'banned' legal representation for those accused of crimes of terrorism. These episodes resulted in some commentary in the media, as reflected in posts on this blog here, and here. More recently, V. Venkatesan drew attention to the analysis offered by AG Noorani which appeared in the EPW.

The issue has arisen again, thanks to the Bombay Metropolitan Magistrate Court Bar Association's resolution barring its members from representing Mohd. Ajmal Kasab, the sole surviving assailant in the Mumbai attacks of November 26. This recent post collates some of the commentary inspired by the episode.

The normative arguments involved - at least for lawyers well-schooled in the demands of the rule of the law - are clear enough. Here is a piece that appeared in Livemint yesterday which profiles several such individuals who take on the thankless task of actually defending such unpopular clients. It documents the challenges that such lawyers face, which regrettably includes hostility from people who should know better: their professional colleagues.

(hat tip: Anuradha RV)

House for Mr Ali

Tales of link between terrorism and discrimination against Muslims abound, but few show this link to be so direct, so shameless. In the aftermath of the Bombay attacks, some 300 real estate agents in Surat declared in a meeting that they will not rent or sell houses or shops to any Muslims, apparently because the terrorists who attacked Bombay had 'local supporters'. This is but the latest pretext for discrimination which is based entirely on prejudice. Food-preference has been used to deny housing to 'non-vegetarians' (read Muslims) in the past.

A Bill to combat discrimination in the private (and public) sector has been on the table for a while, along with other related measures. The issue has been discussed on this blog before.

One wonders how pervasive such discrimination is. We have sporadic media reports and anecdotal evidence. Even the Sachar report does not have any data on discrimination on the grounds of religion (or other grounds, including food-preference, marital status, sexual orientation, caste, gender identity and ethnic identity) in the housing sector in India. Can anyone point to any systematic study in this area, even if it is for a small geographical region?

Commentaries

*Manoj Mitta on why absence of extradition is no hindrance to hand over suspects to India by Pakistan. Interestingly, the CJI has said there is no clear legal basis for international cooperation in the absence of bilateral extradition treaties. Read the report on his address here.

*M.J.Akbar on how Muslims fritter away their vote

*Karan Thapar's interview with Pranab Mukherjee

*BS editorial on restraint in the media

*Rajeev Dhavan's 'Don't repay a bad deed with a worse one'

*Salil Tripathi opposing the resolution by the Bombay Metropolitan Magistrate Courts Bar Association barring its members from representing Kasab. Also read Vishnu V.Shankar's article and Ram Jethmalani's views.
Kasab can't be denied legal aid (news analyis in TOI) cites a SC judgment in its support.
Here is a link to the debate on CNN-IBN on Dec.15.

Digest of recent Constitution Bench cases heard by the Supreme Court

1.K.Krishna Murthy v. Union of India

2.Bhim Singh v. Union of India: (W.P.[C]21 of 1999): Member of Parliament Local Area Development Scheme (MPLADS) under challenge.

3.Economic Transport Organisation Delhi v. Charan Spinning Mills (P) Ltd. (C.A.No.5611/1999)

4.State of West Bengal v. Commtt. for protection of democratic rights. SC's order reserving judgment.

5. Karnail Singh v. State of Haryana

OCCASIONAL DIGEST

1. Lord Bingham's 2008 Grotius Lecture at the British Institute of International and Comparative Law on Nov.17 and Arvind Sivaramakrishnan's article in The Hindu on Judicial Compensation for Legislative Weakness.
ADDENDA: Thanks to Dilip, I got two more relevant links: A. Attorney General Lord Goldsmith's 2003 advice to the British Prime Minister (marked Secret!) B.Martin Kettle in this Guardian piece, articulates the possible objections to Bingham's lecture.

2. Administrative Reforms Commission's 9th report on Social Capital: A shared destiny. The report recommends many new reforms in civil service appointments, performance and continuation of service.

3. Background documents on PRS' recent Conference on Effective Legislatures.

4.CJI's Law Day address at the SCBA function.

5. CJI's Law Day address to the Nation

6. Association for Democratic Reforms's post-election analysis: Delhi, Chhattisgarh, Madhya Pradesh and Rajasthan.
Here is its report for all the States which went to the polls recently.

7.Arundhati Roy's 9 is not 11

PRS Conference on Effective Legislatures- Part I

At a time when elections in five states have just been concluded and general elections are due to be held by May next year, PRS Legislative Research held its first Annual Conference on “Effective Legislatures” on December 5, 2008. There were two panels at the conference, the first on electoral finance reform and the second on parameters for measuring the effectiveness of legislative bodies. In this blogpost, I will discuss the broad framework of electoral finance laws in India and briefly summarise the panel discussions on this topic including suggestions for reform. The discussions in the second panel on measuring the effectiveness of legislative bodies will be the subject of a separate blogpost.

Campaign finance laws broadly regulate contributions made to political parties and candidates and expenditures incurred by them on electoral campaigns. There are a number of laws regulating election finance in India. While there are no limits on individual contributions, the Companies Act, 1956 caps corporate contributions to political parties and candidates at 5% of the company’s average net profits during three immediately preceding financial years. Moreover, there is a complete prohibition on foreign contributions to candidates and political parties under the Foreign Contribution Regulation Act, 1976.

The Representation of the People Act, 1951 and the Conduct of Elections Rules, 1961 regulate campaign expenditures and contain disclosure requirements for campaign contributions and expenditures. They prescribe ceilings on campaign expenditure in both parliamentary and state constituencies. The expenditure limit on campaigns conducted by a candidate for a parliamentary constituency varies from Rs. 10 lakh to Rs. 25 lakhs. For state assembly constituencies, the expenditure limit varies from Rs. 5 lakh to Rs. 10 lakh. It may be noted that the prescription of limits for a particular constituency is made on a state wise basis and does not take into consideration constituency specific factors like the size, the difficulty of terrain etc. While there is no limit on expenditure incurred by leaders of a political party on transportation for propagating the party’s program, expenditure incurred in connection with the campaign of a candidate is deemed expenditure incurred by the candidate.

Moreover, every candidate must within 30 days of the election lodge an account with the district election commissioner of all the expenditure in connection with the election incurred by him or his election agent during the campaign period. However, political parties are not required to maintain accounts of expenditures incurred by them in propagating the party’s program or incurred by the “leaders of the party” in campaigning on behalf of candidates.

With respect to electoral donations, the treasurer of the political party must, in each financial year, prepare a report in respect of contributions received by him in excess of Rs. 20,000 from individuals or companies, which should be submitted to the Income Tax Authority before filing the political party’s tax return. However, candidates are not required to keep records of contributions received by them or file them with the Income Tax Authority. They are only required to file an affidavit with the Election Commission disclosing their assets and liabilities.

The panelists at the Conference included the Chief Election Commissioner, Mr. N. Gopalaswami, Ms. Jaya Jaitley, Mr. Nikhil Kumar, Congress MP from Bihar, and Mr. Souvik Chakrabarty of the Financial Express as the Moderator. The CEC commenced the panel discussions by his scathing criticism of the way that there is no attempt by political parties to comply with electoral finance laws. He stated that ceilings are meaningless because no political party sticks to them, giving an example that in the Karnataka elections held earlier this year, the EC seized material worth Rs. 45 crore and estimated that the expenditure in each constituency was not less than Rs. 10 crore. Moreover, the Election Commission officials confiscated wads of cash being transported in ambulances, presumably on the grounds that this method of transportation would evade EC scrutiny. He also pointed out the lax enforcement of these ceilings stating that under the law, each candidate has to file his accounts within 30 days and any other person can challenge the winning candidate’s accounts within a period of 45 days. Out of 10,000 candidates that have been disqualified in the past years, only 960 candidates have been disqualified on inaccuracies in election accounting, of which only 2 candidates were disqualified on account of improprieties in financial expenditures.

Ms. Jaya Jaitley stated that the 25 lakh ceiling was ridiculously low because it would be met on the minimum expenditure of a 1 Re. postcard send to the candidate’s constituents introducing him/her self and his political goals. This does not take into account expenditures on transportation within the constituency and payment to party workers who campaign for the party. She also pointed out ways in which parties and candidates circumvent the disclosure requirements. The donors refuse to give donations in cheques insisting that parties accept donations in cash in order to avoid tax payments on the donations. She also stated that the problem of black money in election finance cannot be tackled specifically without targeting the black money nexus in real estate, smuggling and mining interests. Those who deal in black money transactions have to keep political parties happy. Thus, we have a vicious crime and corruption network involving politicians, bureaucrats, businessmen, smugglers and even the media. There is severe corruption in the state media, wherein, a candidate can get media coverage only if he pays the reporter. It is necessary to pay the reporter for being written about or not to be written against or to be written in favour of while demeaning the opposition. If media is not paid, then the candidate is basically a non-entity. She also criticized the EC rules whereby a candidate cannot put up posters advertising his candidacy arguing that it works to the disadvantage of poorer parties. She suggested that there should be designated public places where parties and candidates should be allowed to put up posters instead of imposing a blanket ban on the same.

Mr. Nikhil Kumar added that ceilings for different constituencies should be prescribed according to the size of each constituency, taking into account the changes in constituency size following delimitation. He illustrated his argument by giving the example of his constituency in Bihar. He stated that the size of his constituency in Bihar is 182 square km having increased by 50 km following delimitation. He argued that there was a need to distinguish between genuine expenditure and malpractices and that genuine expenditure includes expenditures on travel, correspondence, advertising, media coverage and party workers’ food. Moreover, he stated that he was against ceilings on expenditure and favoured transparent disclosure and accounting requirements as those prevailing in the US, where, for instance President elect Obama raised record sums of money for his campaign, yet every penny was accounted for. He also emphasized the obvious loophole that since there was no requirement for accounting of the funds received by the candidate or expenditures by political parties on the campaign, it was possible to expend campaign funds on behalf of the candidate even though not specifically authorized by the candidate.

Many concrete suggestions for reform came out from the discussions, many of which have been articulated by commission reports in the past. These include removal of ceilings on expenditures, delimitation of constituencies, transparency of accounting of both contributions and expenditures and removal of ceiling on corporate contributions. Both Ms. Jaitley and Mr. Kumar emphasized that the CEC must also regulate media just like it regulates other aspects of the electoral process. The panelists were also asked whether they supported state funding of elections as considered by various committees in the past including the Indrajit Gupta Committee Report on State Funding of Elections (1998), and the 170th Report of the Law Commission of India on the “Reform of Electoral Laws”. Mr. Nikhil Kumar responded after the panel discussions were over that he believed in partial state funding but did not think that there should be full funding of elections at the expense of the public exchequer.

For more information about PRS's activities, visit the organisation's website at http://www.prsindia.org/.

Can electoral corruption be tolerated?

Under Section 123 of Representation of People Act, 1951, any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to a voter constitutes bribery. Just how common is this offence in Indian elections? Does it serve any useful purpose to have a legal provision penalising bribery when almost all candidates might be guilty of this offence? Although this provision can be invoked by another candidate or a voter only after the elections to set aside the election of a successful candidate who allegedly committed this offence, we hardly hear any instance of EC being proactive to prevent such an offence using the corresponding IPC provisions. Read this social scientist and her work, for an insight into what this offence can achieve and contribute to Indian democracy, notwithstanding what the legal provisions provide.

PIL ON COUNTER-TERRORISM

Former Attorney General, Soli Sorabjee has chosen the PIL route to seek urgent measures to improve our counter-terrorism capabilities. (This report says he is probably the first former law officer to do so). As the Chairman of the Home Ministry-constituted Expert Committee to draft a new Police Act, he submitted a report to the Government recommending a new Bill, which is gathering dust. More than being the Mumbaikar, I think it is this official indifference that has forced him to file the PIL. His writ petition can be read here. In his latest column, he advocates surgical precision strikes against terror camps. His writ petition is fortunately silent on this.

Halsbury's Law December issue on Human Rights

Halsbury's Law's December issue is on many facets of Human rights. Contributors and interviewees include Justices Srikrishna,(historical and contemporary overview) J.S.Verma, and Sujata Manohar. In this issue, Chaitanya Kalbag cross-examines Justice J.S.Verma and Virendra Dayal. Excerpt from his interview with Justice Verma:
"Halsbury's Law Monthly: Was that a case of taking too doctrinaire a view in ADM Jabalpur?

Justice Verma: Both of them (Justices Chandrachud and Bhagwati) were outstanding judges, highly intellectual. Something which was so wrong, which they said in their judgments, I am not inclined to believe that they didn’t know that what they were saying was wrong. I think that was something which was knowingly done because of the prevailing fear psychosis. I know what kind of a fear was generated for us. I would not like to dilate on that because I have lived through it.".
"HLM: Law and order is a State subject in India. Do you think that has been a reason for a lot of the problems we have because when there is a breakdown of law and order at the State level, that also forces aberrations like the army being sent in to perform peacekeeping duty, where it should not be, and so on and so forth? Do you feel that there should have been a better thought given to this by the Constitution?

Justice Verma: Let us see things as they are. True, law and order is a State subject, but there is Article 355 in the Constitution, which precedes Article 356 in the Constitution. It is the duty of the Union Government, the Centre, to see that the Constitutional provisions are observed by every State Government and if there is a failure of the working of the Constitution in any State, that’s a ground for imposing President’s Rule, and we have had more President’s Rules than could be justified. Once again referring to Gujarat because we tried to do so much there…we gave notice to the Union Government, asking why they were not acting under Article 355 to tell the Gujarat Government to perform its function…The Union Government kept replying that were studying it, as if it required too much of study. If those whose duty it was to study, needed so much time, then I think they were not fit to hold those offices. But anyway, they kept on studying and did not respond till I left the NHRC, but in the meantime the Rajya Sabha took up this issue and passed a resolution, which no one opposed…obviously who could oppose such an obviously reasonable thing. So a resolution was passed, but it stayed there.

Our Constitution is quasi-federal with a unitary bias, so I don’t think the Centre can throw up its hands and say they can’t do anything. Law and Order being a State subject, the Centre cannot keep on interfering repeatedly and needlessly, and cannot be given the authority to run down its political rivals, but that does mean that it can’t do anything except sit sucking or twiddling its thumbs. So the political will should be there and the eyes should not just be on retaining power or the vote bank."

Treating Terror

The latest attacks have not produced many new ideas (I am guilty of this as well) on tackling terror (virtually none at all in the Indian media as far as I can tell) with most commentators repeating existing alternatives albeit occasionally in a new light. Regardless of what yesterday’s arrests mean, it is unlikely that they will affect the phenomenon itself very much (see this report). I am posting here links to the few relatively new approaches that I have come across (some of you might have already read them but I think it is still worthwhile to post them here).

It is worth noting that the jihadi phenomenon shares features of other social maladies such as drug abuse and alcoholism. Like them, recruitment happens commonly through social networks. A recent book argues that the religious learning often comes afterwards and many of the recruits initially have little more knowledge of religion than the average secular person (you can read a review here). Actual practice provides the ‘high’ which is also reinforced by interaction within the network as well as the retribution where it materializes. Will a similar approach of behavioral therapy therefore work? Yes claim the Saudis who are using a counseling and rehab model to address the problem (see this article).

There are of course inherent problems in this approach (particularly but not uniquely in the Indo-Pak context) not the least being access to the recruits and desire for reform. One point Sageman makes in this regard is that since online fora are an important place for motivation and recruitment, introducing moderate viewpoints in such places may have a beneficial effect. This may again not be very useful for organizations such as the LeT which reportedly use more traditional recruiting methods.

For another, it may be argued that if religion is not the primary motivating force behind joining the ranks of the jihad, then religion-based therapy may not be of much help. Also, a graded approach like the one adopted for drug addicts is difficult to do here. But behavioral therapy has been reported to have been used with some degree of success in domestic violence and if found to be efficacious, may potentially have a role to play here as well.

The other has been Kagan’s proposal. Here is a critique that explains why it will not fly.

Debate on media coverage of terror

The Foundation for Media Professionals (FMP), New Delhi, is organising a two-hour debate on the media's coverage of terror, in the context of the recent Mumbai attacks. "Who is to blame for media hysteria on terror? Journalists or viewers? -Lessons from Mumbai seige" is the broad theme of the debate, being held on December 12 at the Press Club of India, Raisina Road, New Delhi, between 3 and 5 p.m. The speakers scheduled to speak include Julio Ribeiro, Mahesh Bhatt, Rajeev Chandrasekhar, Dipankar Gupta, Vinod Mehta, Sayeed Naqvi, Rajdeep Sardesai, Deepak Chaurasia, Sanjay Pugalia, Madhu Trehan and others. The event is open to all concerned citizens.

Mumbai attacks & Non-State actors

Over at the legal developments blog, there is a good academic discussion - missed in the mainstream media - on how and whether India can establish the link between the terrorists involved in the Mumbai attacks and Pakistan. I appreciate the effort taken by Mihir Naniwadekar to explain this issue with the relevant international case law. The posts can be read here and here.

Mumbai attacks: Diplomacy is the answer

The Mumbai attacks have provoked a mixed response, ranging from jingoistic knee-jerk reactions to sober analysis based on facts and reasoning. As our blog is better known for the latter, it was indeed a surprise to read Dilip's post appearing to make a strong case for war as an option. Some of the readers have pointed to the obvious flaws in his reasoning in the comments section. The purpose of this post is not to join issue with him, but to share his anguish,which led him to choose such an extreme option, and look for answers other than war, to some of the questions which he has raised. Thankfully, there have been enough articles in the media addressing precisely the concerns articualted by Dilip, and I am glad to post links to those articles here. All of us, including Dilip, would like to avoid a war if it will not help to stop terrorism, and if the consequences of war are likely to be graver than the current phase. This is what the following articles suggest.
1. The Limits of Limited War by Suba Chandran. This 2003 post seems to raise valid concerns about limited war.
2. This research paper warns that the new Cold Start doctrine of Indian Army carries the risk of precipitating a nuclear war.
3. Swaminathan S.Anklesaria Ayyar in Times of India on dangers of Bushspeak.
4. Sitaram Yechury's forthcoming piece in People's Democracy
5. Vir Sanghvi on the rampaging elephant
6. This article on the scope of Article 51 of the U.N.Charter, concludes that allowing States to use force against those responsible for terrorism, without sufficient and recognised benchmarks, would set dangerous precedents.
7. B.S.Raghavan on why Israeli type of action against Pakistan will not succeed
8.Michiko Kakutani's review of Unintended Consequences: How War in Iraq strengthened America's enemies by Peter W.Galbraith

Lessons from the new UK Supreme Court?

The United Kingdom will get a new Supreme Court in late 2009 to replace the appellate committee of the House of Lords, as a result of the Constitutional Reform Act of 2005. The evolution of this British institution is well worth watching for anyone interested in Indian law.

In many ways the new Supreme Court will not be that different than the appellate committee of the House of Lords and the move is arising in large part to simply more clearly separate the highest authority in the judiciary away from the House of Lords and Parliament (a separation that has already existed in essence for many years, but is now being made more explicit). Yet, the highest UK judicial authority is also remaking itself beyond simply a new name - for example, it is getting additional jurisdiction that once resided in the privy council, a new appointment process, and a new home.

Since the Indian system has traditionally borrowed so much from the British, the current debates in Britain about how this new court will actually work have resonance in India too. For example, I found this article in the Times, that highlights how cases are assigned amongst the Law Lords, and how they might be in the new Supreme Court, on point for an Indian audience as well:

. . . There remains a host of other issues, as outlined by the seminar chairman, Andrew Le Sueur, Professor of Public Law at Queen Mary, in his booklet on the seminars. How, for instance, should the judges be chosen for each appeal or for deciding on leave to appeal? What kind of work will the new court take on — for instance, will it hear more constitutional or human rights cases? What cases should be allotted to what size of panel? Finally, which lower courts should be able to grant leave for litigants to go to the supreme court?

Astonishingly, even the law lords admitted that they do not know how they are selected for specific cases. Baroness Hale of Richmond said judges did not know their cases until after the “horses for courses” meeting by the senior and deputy senior law lords.

There was a consensus that however it is done, the method should be transparent: some judges would need to be chosen for their expertise in a given case; but after that, Lord Pannick said, random selection, “like the national lottery”, would seem to be the fairest method.

In India, it is also unclear (including probably to many judges) how all the cases are assigned (my limited understanding is that most cases are assigned off by computer (with justices being able to give some preference on types of cases they take or do not), and the Chief Justice able to step in to assign important cases - such as constitutional matters - to whoever they like, or to let the case remain unheard for years on end). I'm not sure if this opaqueness has British roots, but certainly the debate in Britain is relevant in India.

In the UK, how cases are given out amongst judges, the style of opinions, and even whether judgments will be televised are all questions up in the air right now. Given the historical connections between the Indian and UK judiciaries it will be informative to see which aspects in their own system the British identify as weaknesses and how they go about remedying them. This is no blueprint for judicial reform in India, but neither are these debates something that should be ignored as entirely foreign.

Diplomacy: The New Opium for the Masses

Some of you might have heard of virtual reality software (here is one example) where whoever signs up is given an avatar that does all the things that real people do and much more – buy property, set up businesses, entertain oneself, etc. All with one major difference. There, one can have the perfect fantasy life one aspires for but is unable to achieve in real life. It seems very much like the sort of world many of our news commentators live in today.

Pankaj Mishra, writing in NYT says that the answer is to resolve Kashmir. He appears to have completely missed the fact that Lashkar-e-Taiba has never set its sights as low as the resolution of Kashmir. Not in 1993, not now. He also seems blissfully oblivious of how the current jihadi movement has achieved the level of success that it has, i.e., as a direct fallout of the victory of the insurgency in Afghanistan. If India were to make concessions in response to these attacks, is there any doubt how that will be seen by the LeT and their supporters? When 9/11 happened, no one in the mainstream American media - not even the NYT which published this article - actually said that Al Qaeda and Bin Laden would be pacified by solving the Palestinian question. Yet, we are now being told that the answer to the Mumbai attacks is a resolution of Kashmir.

His advice to Obama: reject military force and embrace political and economic reconstruction. The honorable author should kindly inform us how he will rebuild a country when the schools being constructed are being destroyed, the girls who try to go there are attacked, the roads and bridges being built are blown up, the personnel doing all this reconstruction are being killed and how he will bring around the elements that have no compunctions about engaging in any of this. Why just stop at rejecting force? Why not sing kumbaya?

Amitav Ghosh wrote yesterday why this is not India’s 9/11. The first reason he gives is that this is just one more in a long series of attacks India has faced. True but does that mean the same hand waving that has characterized our previous responses should be repeated again? Apparently so:

“The question now is this: Will the November invasion of Mumbai change this? Although there is no way of knowing the answer, it is certain that if the precedent of 9/11 is taken seriously the outcome will be profoundly counterproductive. As a metaphor “9/11” is invested not just with the memory of what happened in Manhattan and at the Pentagon in 2001, but also with the penumbra of emotions that surround the events: the feeling that “the world will never be the same,” the notion that this was “the day the world woke up” and so on. In this sense 9/11 refers not just to the attacks but also to its aftermath, in particular to an utterly misconceived military and judicial response, one that has had disastrous consequences around the world.

…The Indian government would do better to focus on an international effort to eliminate the terrorists’ hide-outs and safe houses, some of them deep inside Pakistan. India will also need to cooperate with those in the Pakistani government who have come around to a belated recognition of the dangers of terrorism… A buildup would indeed serve no point at all, since this is not the kind of war that can be fought along a border, by conventional armies. The Indian government would do better to focus on an international effort to eliminate the terrorists’ hide-outs and safe houses, some of them deep inside Pakistan. India will also need to cooperate with those in the Pakistani government who have come around to a belated recognition of the dangers of terrorism...It is clear now that Pakistan’s establishment is so deeply divided that it no longer makes sense to treat it as a single entity. ”

Siddharth Varadarajan who normally writes more sensibly seems to have caught the same bug:

“In the quest for a stern and fitting response, all options, including casually-bandied about military ones like ‘surgical strikes,’ flounder on a simple fact: the only force capable of defeating terrorist groups like the Lashkar-e-Taiba, the Jaish-e-Mohammed, the al-Qaeda and the Taliban which operate from Pakistani soil is the Pakistani state itself. And the Pakistani state needs to take up this task urgently if it is to avoid imploding or becoming the next target in Washington’s ongoing ‘war on terror’.

… Rather than threatening a ‘limited war,’ surgical strikes or a suspension of the peace process, the logic of this metastatis is the most compelling argument India can marshal in its quest for the international community to insist that the Pakistani military make a final break with jihadi groups. The war that was launched in Mumbai will only end when the Pakistani military is compelled by the world and its own people to end its war on its own society. India can help this process by finding ways to help tilt the balance of power further in the direction of the civilian government. At the very least, it should do nothing that will tilt things the other way.”

I wonder where either of these authors has been all these years when attempts have been made to do just that, i.e., get Pakistan to shut down the terrorist infrastructure in their territory. It has not succeeded before and the summary rejection of India’s demands for handing over any of the men on the list of 20 suggests a replay of the very same events. Today’s NYT quotes an Indian official saying why even the composite dialogue has not helped this process at all: every time a lead is handed over to Pakistan, it is simply returned with the stock reply that it did not check out (B.Raman, without saying in so many words also asserts that this counter-terror mechanism is a farce). So, what is the solution if all this pressure does not succeed as Ajai Sahni predicts (and is widely expected)? More hand wringing? More demarches/protests? More debates/ resolutions by the diplomatic genteel in air-conditioned chambers?

Yet, we are told, a 9/11 type of response is not the answer. Apparently, the fact that a number of Al Qaeda leaders have been caught or killed including Khaled Sheikh Mohammed, the mastermind of 9/11 does not matter. Nor does the fact that the organization has since been denied the benefits of a regime and a country that aided its efforts or that no further attacks have taken place on American soil. No, we are asked to follow the example of Spain which incidentally faces a threat nowhere near that of India. We are nevertheless supposed to keep up the talking perhaps in the fond hopes of exhausting our enemies through sheer verbosity!

Another argument is that we can no longer treat Pakistan as a single entity but must acknowledge that there are multiple centers of power. Unfortunately, the jihadi groups have no diplomatic corps of their own that we can talk to. Nor for that matter does the ISI or rogue factions in the army which have allowed them to operate freely. We talk to the same folks we have always been interacting with and only come to know of the outcome when we are informed about it. Their internal power dynamics being largely beyond our control, what difference does it make how many centers exist so long as those in office cannot offer us anything worthwhile or keep their word when they do so? Is it any more comforting to know that President Zardari is unable, not unwilling, to act against these outfits? In fact, if the problem comes from a part of their governmental apparatus that is not open to public scrutiny, that is all the more reason for outside intervention.

Another brilliant analysis and suggestion comes from Sitaram Yechury (incidentally seconded by The Hindu and partly by John Cherian in Frontline) who blames the nuclear deal for our tragedy. How convenient. Never mind that these attacks have grown in intensity and their focus has expanded well beyond the borders of Kashmir long before the deal was even conceived – the attack on Parliament is a case in point.

And his answer? Approach the UN Security Council. Mr.Yechury ought to let us know how this UN committee will magically enforce what none of the big powers has so far been able to do. Barring the US, other powers are not even willing to try. There has been enough grumbling from the European members of NATO to contribute troops for combat even in Afghanistan, let alone extend the mandate to Pakistan. As Ajai Sahni wrote, Pakistan has weathered many such storms and can be expected to do so this time as well. If there is a better way to give the terrorists a free pass, I could not conceive of it. Is it any surprise then that Hamid Gul, the foremost defender of jihad, has embraced our communists?

The EPW published an editorial on the Mumbai attacks that contains not a single word on what needs to be done, only on the things we have to avoid. If repeated horrific attacks orchestrated from outside only make our leading commentators respond with stoicism, sullen acceptance and self-incrimination of this sort, it signifies pathology more ominous than the pathetic weakness that is already evident.

We have long been advised by these and other worthies that all terrorism is dastardly and our answer, apart from verbally condemning it, should be to maintain harmony and stand firm. Right through this latest attack, our society has managed to do just that. Yet, not only have the attacks not stopped but have accelerated in frequency, enhanced in potency and enlarged in scope over the years. When the effect of this old mantra started to wane, we were told that aggressive diplomacy to build international pressure would have greater success. Following several anti-terrorism resolutions as well as a ban on the LeT (in 2001), the country has been made painfully aware of the lie this always was.

Now the same medicine is being administered once again this time in combination with an opioid to calm our nerves by weaving a new fantasy that claims that Pakistan itself will implode or become Washington’s next target should it fail to act. For one thing, we are unable to convince those who are killing us (or aiding the exercise) of this logic. Nor do they seem to care what excuse we make up for our own inaction (perhaps it reinforces their prior perceptions of Hindu weakness; after all much of their literature extols the achievements of Ghauri and Ghazni in that light). Secondly, if only a small number of committed and focused attackers who are not expected to survive the operation are provided the sort of specialized training that was on display here, their handlers have little to fear from random actions or of misdirected effects.

Thirdly, the heightened domestic violence has if anything only undermined the authority of their civilian government which is thought to have little control or say in any of this. So who stands to gain from an atrophied civilian apparatus unable to meet popular expectations? Surely it is the unaccountable branches of government and their supporters outside. The emergence of the Pakistani army as an independent state-within-a-state has not been an overnight transformation but a gradual one aided by the repeated failures of civilian leadership. The enormous success of LeT’s parental organization, the Jamaat-ud-Dawa in raising funds, building schools, colleges and hospitals can likewise be equally attributed to the failure of their state to provide these services. If the religious proselytization and terrorist training can hasten the transformation of their state along fundamentalist lines governed by an emasculated civilian authority, so much the better for their own future. Why would such a governing structure that benefits so much from such a coalition want to voluntarily forego it all suddenly by succumbing to international pressure? More importantly, is there even a semblance of a basis to the fond but deluded hope of such a radical shift from within? Yes, the government may ban the organization and arrest its top leaders temporarily but do we seriously expect it to muster the will to shut it down entirely and choke its finances? That is quite a tall order given the extensive network they have built over the years and the goodwill they have accrued through their charitable activities.

Lost amidst all these prevarications is how the jihadi groups and their supporters in government perceive our non-response. Following the success of the parliament attacks and the withdrawal of our army from the border, Masood Azhar emerged a hero to the far right. If the storm abates again this time with our retribution restricted to diplomatic chambers, we can expect Hafiz Saeed to be feted as a glorious warrior in the most hallowed Islamic traditions who has stood up to the great tyrant, India. Not only does this bode ill for any government looking to tamp down on his activity, it will only serve to strengthen his organization in one form or the other (assuming the current avatar is banned) and augment its capacity for future mayhem.

The last argument for inaction is that it will unite all the jihadi groups with the Pakistani army against the common foe, India. This view has gained some ground following a preliminary effort at rapprochement between the two sides. If we buy into this argument, we must be under no illusion about the costs. The status quo would prevail indefinitely into the future (the war against the Taliban is nowhere near conclusion) in which case, India will continue to hemorrhage without end. If things take a turn for the worse with a weakened civilian dispensation, that will be no less dangerous to us. The example of piracy emanating from anarchic Somalia is right before our eyes. Finally, if and when the time indeed arrives when we decide to confront the menace, for the reasons mentioned above, we will likely face a foe with more resources and a reach greater than what it currently has.

That our domestic surveillance and intelligence apparatus needs to improve is not in doubt. I would also second the idea of an inquiry commission on the lines of the 9/11 commission set up in the US to apportion responsibility and make recommendations. But given the nature of the attacks we have faced in recent times, it is clear that virtually anyone can be hit anywhere and with relative ease. Markets, hotels and even a scientific institution have been attacked. Corporate offices have been reportedly targeted. That takes care of pretty much any one working in any building leaving only urban residential areas. We do not know when apartment complexes may be hit but it is not beyond the range of comprehension. It is a humongous and perhaps ultimately futile task to equip all of these places even to face bombs let alone be battle ready at all times to deal with fidayeen strikes. An attack on any of these places will guarantee a minimum number of deaths and destruction that may be considered adequate pay off for the investment made by the individual or organization planning it. Even if the individuals come from outside the country, a success rate of one in ten that achieves a spectacular display of carnage could be deemed sufficient to justify the effort. All this is apart from the fact that it will take years to reform our security organizations to live up to this task. The notion that we can somehow protect ourselves from this growing menace without being able to get to its source is an delusion of gigantic proportions that we can ill afford.

The PM’s idea of an investigative agency may have its advantages but is relatively worthless from the standpoint of either prevention or diplomatic persuasion. Those willing to believe our claims have already come around to our view point while those who refuse to be convinced show no sign of changing their position. Besides, the foot soldiers involved here are ready to die during the operation and their masters are beyond our reach. With an enduring supply of cadre at their disposal, they can afford to use a fresh group for every attack. That means convicting those found this time is of no help to prevent the next outrage. Why this has suddenly become an urgent priority is therefore not clear.

To paraphrase Churchill, we have repeatedly chosen dishonor over war. War has therefore now been thrust upon us. It is time to strike back.

Paradigms of Judicial Independence

I am glad to post here the lecture delivered by the former Chief Justice of India, Justice J.S.Verma recently at Patna. Justice Verma, the author of the Supreme Court's Judgment in the Second Judges case (Advocates-on-Record vs. Union of India, 1993)has been maintaining that his judgment was much misunderstood and that the judgment looked at the appointment process as a joint exercise between the Judiciary and the Executive. He does not, for instance, agree with Justice Chinnappa Reddy's prescription for primacy being accorded to the CJI rather than to the collegium.

Speaking to our blog about the recent controversy over the SC collegium's move to ignore the seniority principle while recommending three Judges for appointment to the Supreme Court, he said, the 1993 judgment did not make it mandatory for the collegium to consider the seniority principle. But the collegium must explain to the judiciary, even if it is not for public consumption, why a junior person is far more meritorius than the senior candidate. The process he visualised in the 1993 judgment is participatory and integrated.

Interestingly, the Law Commission's recently released 214th Report proposes reconsideration of the judgments in the First, Second, and Third Judges cases. The report says that the Supreme Court has completely eliminated and excluded the executive in the Second Judges case, and the Court reaffirmed this view in the Third Judges case (Special Reference No.1 of 1999) - a view which is contrary to Justice Verma's interpretation of his own judgment. In fact, the report cites my recent interview with Justice Verma (gives the year of the interview wrongly as 1998)wherein he sought a rethink on the issue, but reaches a conclusion which is contrary to what he would suggest: a legislation to restore the primacy of the CJI and the power of the executive to make the appointments.

In this recent article,[pp.9-10) R.K.Raghavan observes that we will be interested in knowing whether the SC collegium gives detailed reasons for supersession of High Court Judges, while recommending appointees to the Supreme Court.

Salve at Oxford - Terrorism and (a political analysis of) PILs

Mr Harish Salve, former Solicitor-General, gave a talk last night (03 December 2008) at Exeter College, Oxford. The two themes he discussed are summarised below:

On terrorism:
Mr. Salve noted that this attack has been perceived differently, whether or not it was in fact different (he acknowledged, without accepting or rejecting it, the explanation that this may have something to do with the fact that this time the rich were targets). But he did say that the thing most different about this attack was the reaction of the 'middle classes'. Speaking as a lawyer, he lamented that the most immediate fall-out is likely to be a thorough discrediting of the human rights discourse. He also referred to the intense pressure the government is under to act swiftly and decisively, and worried that this might lead to hasty actions. Whatever the outcome, he believed that the incident has the potential to reshape the geo-political realities of the region, and perhaps the world, and also have very important implications for domestic politics in India.

My Comments -
Arun has referred to Darryl Li's brilliant analysis on this blog, which argued against the dangers of seeing this incident, dastardly as it is, to be unique and transformative. Mr. Salve indicates that whether we like it or not, the preception is definitely that this is India's 9/11. My own hypothesis is that in being a drawn out rather than an instantaneous event, captured live on television and CCTV cameras, must have something to do with our perceptions. Images can be powerful, especially if they linger. Its real parallel with 9/11 might lie in the role playes by these images in shaping our perceptions of the events (remember the planes hitting the twin towers?).

On public interest litigation:
Some of the talk entailed detailed explanations for an international audience, but it did contain some original analysis which might be unfamiliar and will interest us here. Mr. Salve contextualised PILs as a tool used by the Supreme Court to establish its identity as 'a relevant institution of government'. This is the same theme he elaborated upon in his last talk in Oxford, which was reported on this blog.

He proceeded to give a historical account of India's judicial system, with its roots in colonial times. He mentioned anecdotally that low-caste villagers involved in land-disputes would join the British army to become eligible to access the colonial government's courts rather than the local panchayats (and thereby improving their chances of success).

He then traced the foundation of the Indian Supreme Court in the image of the US SC, although the young Court remained fairly conservative till the mid-60s. Mr. Salve offers a very interesting analysis of the right-to-property cases of its early years. He explains that the Court had no problem when the government took on feudal powers, abolition of zamindari being an example. It was mainly when capitalist institutions like banks and industries were interfered with by Mrs. Gandhi that the SC took up the mantle to defend them.

He then outlined the embarrassing role played by the SC during emergency (in ADM, Jabalpur) and the subsequent need to reinvent itself institutionally. He mentioned the part played by judges like Krishna Iyer and Bhagwati through the '80s. This decade saw great strides in cases relating to prisoners and other marginalised sections of society. Although these cases can be seen as disturbing the institutional balance of branches of government, they did not invite any serious opposition from the other branches of government because they left the political elite largely undisturbed.

In the '90s, he said, the PIL jurisprudence came to focus on two broad themes
(1) environmental activism, which has largely continued in the new century.
(2) activism relating to transparency and good governance. Cases like Vineet Narrain took on the political elite which was hitherto undisturbed. This led to a backlash from the political elite we have seen in recent years. The judgment in Association for Democratic Reforms, discussed previously on this blog, is an indication that the SC is prepared to backtrack on this issue.

In response to a question, Mr. Salve said that the SC has consistently refused to apply the same standards of transparency to itself and what we have instead is obscurity on the functioning of the Court itself (he particularly mentioned the unsatisfactory manner of appointment of judges). In response to another question, he said that the presence of someone like Justice Katju has forced rethink on the Court's institutional role and might force the court to put PILs and separation of powers on sounder doctrinal footings.

Disclaimer - I have tried to report honestly, but there might be errors due to miscomprehension on my part. I reserve the right to made suitable modifications if such error is pointed out to me by the speaker or any of the attendees.

A milestone in Centre-State relations

The media almost missed to report a significant recent milestone in the evolution of Centre-State relations in India until I brought it to the public domain in this article (pp.99-101).

BOOK REVIEWS

In this book review, I have reviewed two recent books, written by O.Chinnappa Reddy and Shanti Bhushan, mentioned on this blog a few days ago. It is difficult, for space reasons, to be exhaustive in the review. I would have, for instance, liked to add that buyers of Summits and Shallows will have an incentive to buy the book, especially because of Upendra Baxi's Foreword. Baxi, who affectionately calls Reddy as Chinnappa, compares him with other Justices of the Supreme Court, past and present. I have felt a serious disagreement with the author as well. He says that the present appointment of Judges with primacy to collegium must be reversed, with the CJI getting back his primacy, choosing to consult whoever he would like to. It would have been better if the author shared his views on the National Judicial Council proposal.

Search for an effective counter-terrorism strategy

In this recent article, (p.27-28) I have dealt with the obfuscation of the debate on counter-terrorism, and found greater merit in the institutional response which Kapil Sibal once articulated in an article, inviting critical comments from some of us.

The purpose of this post is more than just to draw your attention to my recent piece. The idea of a Federal Investigative Agency appears to have received fresh impetus with P.Chidambaram assuming charge as the Home Minister. While the UPA Government appears interested in the method of creating a FIA as proposed by the Second Administrative Reforms Commission, by amending the National Security Act it may be worthwhile to understand some of the reservations expressed by one of its critics.. The Centre appears to be of the view, according to some media reports, that Item 8 in the Union List pertaining to Central Bureau of Intelligence and Investigation empowers it to set up such an Agency with immediate effect. The effectiveness of such an Agency, whether it is created by an executive order or an ordinance, will have far-reaching implications for Centre-State relations, if the Centre chooses to ignore States' views without justification.

Incidentally, the Ministry of Home Affairs seems to have undergone a quiet transformation since Chidambaram's taking over. The emphasis on internal security in its website implicitly suggests a shift in priorities post-Mumbai, especially the phrase pointing to the duty imposed on the Centre by Article 355, irrespective of what the items 1 and 2 in States' list may convey (Public order and police), even if it is just a reiteration of the Government's policy.

Mumbai attacks: Why calling it "India's 9/11" is problematic