Political Dynasties

Mail Today has carried a comprehensive story on political dynasties in India. Another article carried in the edit page today argues that power ought not to be given on a platter to lateral entrants to politics. The author's critique of Shashi Tharoor making it to the MEA, right after his maiden contest and success in the Lok Sabha polls, without any prior exposure to politics, is interesting. Is there scope for political/legal/constitutional reform to discourage dynasties and lateral entrants to politics from making political contest in a democracy uneven?

Paradox of Mandate 2009: Will the BJP abandon its Hindutva?

The results of the 2009 general elections have left the BJP very confused. It has been an interesting exercise to read different interpretations in the media about Mandate 2009. There are in fact conflicting interpretations as to whether it is a vote for stability at the Centre. Critics of this view point out that if it has been so, then regional leaders/parties would not have secured resounding victories in Orissa, Bihar and elsewhere. In other words, the voters' preference for stability at the Centre has not been conspicuous uniformly across the country. Similarly, suggestions that voters have decisively rejected the Hindutva brand of politics pursued by the BJP have also been questioned, because the BJP has registered spectacular victories in Karnataka, and Himachal Pradesh, and managed to retain its hold in Madhya Pradesh and Gujarat. Every election since the Babri Masjid demolition in 1992 - be it assembly or Lok Sabha election - has witnessed this debate in the media and within the BJP about the appropriate electoral strategy with regard to Hindutva: should the party adopt more or less of it. Apologists of Hindutva would, in fact, explain the party's debacle in terms of party's reluctance to adopt Hindutva wholeheartedly, in order to please the allies, and in practice the party fell between two stools, unable to make a clear choice between unabashed Hindutva, and unabashed secularism. (I understand the word Hindutva in a political sense here, and not the way the Supreme Court interpreted it) Therefore, when I read this post by Swapan Dasgupta making a strong case for abandoning Hindutva by the BJP, I was pleasantly surprised. It is not unusual for political parties to abandon its long-cherished goals for the sake of survival. Did not the DMK officially abandon its secessionist goal in 1962 after the Sino-Indian war? But for the BJP, it would be a difficult choice, as its very identity may be under threat. Considering that the Opposition space in Indian politics is equally important for the survival of Constitutional values, the direction which the BJP adopts in the coming days will have a major impact not only on the party's future, but on our Constitutional practice.

Minority Rights and Religious Identity

The judgment delivered by Punjab and Haryana High Court in the case of Gurleen Kaur vs. State of Punjab is of profound significance.(Readers can access the judgment on the High Court's site (CWP14859/2008.Date:30/05/2009)Although the Court has taken a strictly legal and Constitutional view on the issues before them, it will certainly leave us all dissatisfied. The Court has upheld the action of the minority institution in denying admission on the ground that the students claiming admission under the minority quota did not follow the tenets of that minority religion. There can be no dispute over the Court's finding, arrived after an elaborate research on Sikhism, that maintaining hair unshorn is an essential tenet of Sikh religion. But does Article 30 give licence to the minority institutions to enforce it on unwilling students, claiming admission under the minority quota? The Court has held that it does. The Court also cites the view that majority of students do not follow this tenet at all, but the court justifies its stand because, it has to consider the views as expressed by the spokespersons of the said religion. The implications of this judgment for secularism are indeed serious. If a section of the community is considered as not belonging to the minority religion under Article 30 because of the failure to follow its basic tenets, will the same section be considered as outside that religion for other purposes? Will it not be a worrying inconsistency? The Court has held that religion is a package of beliefs and doctrines which all those who adopt that particular religion are expected to follow, and that the issue is not of logic, but of faith. Therefore, forward-looking or non-fundamentalist actions cannot be bestowed with legitimacy, if the tenet concerned is of fundamental importance, the Court has held.

Profile of Union Minister for Law and Justice: Past and the Present

Here are some links to the profiles of the new Union Law Minister, M.Veerappa Moily.

*His profile as carried in the Administrative Reforms Commmission's site.

*This profile appeared in September 2008 in Business Standard.

*2004 profile, seeking votes.

*2006 interview to The Hindu

* *A profile found in engagevoter.com

*Interview to Karan Thapar in 2006. Another interview to Thapar in 2008.

*His remarks soon after taking charge as Law Minister.

*HIGHLIGHT: It is perhaps the first time in several years (recent history) that the Union Law Minister will not have a Minister of State. Remember who was the last Minister of State in the Law Ministry? Why have one, if none of the earlier MoS could leave an imprint?
Moily's promise to deliver on judicial reforms could well be trusted. A review of his promise and performance in office must await the completion of first 100 days, which will be September 10.

Punjab violence: Applying the tort liability case

Recent events of violence in Punjab after the assasination of a Sikh guru in Vienna fall squarely within the type of cases that the Supreme Court intended to cover while delivering its judgment in In re Destruction of Public and Private Properties v. State of Andhra Pradesh and Others (2009) [discussed on this blog previously]. I will reproduce Namita's helpful summary of the directions given in that case:

1. Wherever a mass destruction to property takes place due to protests etc., the High Court or, where more than one state is involved, the Supreme Court can initiate suo motu proceedings to investigate the damage caused and to award compensation.
2. In each case, the court shall appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability.
3. The Claims Commissioner may seek court instructions to summon video or other recordings from private and public sources to pinpoint thedamage and establish nexus with the perpetrators of the damage.
4. The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established. The court will apportion liability between the actual perpetrators of the crime as well as organisers of the event giving rise to liability.
5. Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.
6. Damages shall be assessed for causing destruction to public and private property as well as for causing injury or death to a person or persons and finally for costs of preventive actions by the police and the other authorities.

Will the Punjab and Haryana High Court now follow these clear directions of the Supreme Court?

Curbing and penalising inflammatory reporting

That was the subject of the workshop held by the Foundation for Media Professionals today in New Delhi for the sake of visiting journalists from Thailand. I was part of the panel which addressed different dimensions of this subject. Other participants were Teesta Setalwad, Sevanti Ninan, Vinita Deshmukh, and Satya Sivaraman. S.Srinivasan was the moderator. The focus of my brief presentation was how media had contributed to communal violence in the past, from partition to the Gujarat carnage.

Despite clear evidence to the role of the media in causing such conflicts, media could not be held accountable legally. I discussed generally the IPC provisions of Sections 153A and B, 295A and 505. Satya Sivaraman was concerned with the underlying reasons, rather than the precipitating factors like inflammatory reporting. After all, he said, journalists reflect the society they hail from. The reasons for their bias and distortion perhaps lie in the school text books, he suggested.

Teesta, drawing from her Gujarat experience, said her efforts to bring to book the Gujarati newspapers, Sandesh and Gujarat Samachar for their contributory role in the 2002 Gujarat carnage came to naught because of Section 196 (1) of the Cr.P.C. which requires that no Court shall take cognizance of any of the offences under S.153A and B, 295A and 505 except with the previous sanction of the Central Government or the State Government. Asked whether she has challenged the refusal of the authorities to accord sanction, she said the challenge is pending in the High Court.

Tarunabh has, in one of his posts, has underlined the need to repeal Section 197, Cr.P.C. for according impunity on public servants. I wonder why should journalists enjoy such a privilege, not available to a non-journalist? The object of Section 196, according to Supreme Court, appears to prevent unauthorised persons from intruding in matters of State by instituting prosecutions and to secure that such prosecutions, for reasons of policy, shall only be instituted under the authority of Government. But I found the text book explanations of this provision bizarre. R.V.Kelkar's book, (4th edition, p.223) says that it is quite possible that in a given case the very filing of a prosecution after tempers have cooled down may generate class feelings which could well be avoided by the Government by refusing to accord sanction. In another context, when the Gujarat Government accorded sanction to prosecute Ashis Nandy under this very provision, I doubted the objectivity of the State Government in doing so in this article. (hate and abuse)

Delay in selecting ministers: good or bad?

This editorial in the Telegraph laments the fact that the formation of the council of ministers took twelve days:

This inordinate delay in forming a team that is supposed to present to the nation an effective government creates a very sorry spectacle of the prime minister and the Congress president. The delay can only be read as evidence of the lack of clarity in decision-making.

I think the delay has been good for politics, and should be institutionalised. No one can argue that but for DMK tantrums, we would have had a council of ministers in place in 24 hours. The delay was hardly by deliberate design. But having been forced to stagger cabinet formation, albeit willy-nilly, the results are largely positive. These 12 days generated intense democratic debate on the merit of the individuals in contention, including on this blog. Until the election, everyone is too busy predicting who will win, and the shape of the next government is almost never discussed. Then we have the results and the cabinet the next day. There is no democratic opinion to inform the Prime Minister in his exercise of the prerogative. This time was different. The intense media focus on non-performers must at least in part be the reason why Arjun Singh, Shivraj Patil and HR Bhardwaj did not make it.

The US system gives the President-elect over two months to form their team, and every candidate is intensely scrutinised by the President as well as the media. We did well this time. The process of a staggered swearing in, with only the PM (and if we must, perhaps a few key and relatively uncontroversial Ministers) should be sworn in the day after the results, while the rest of the Cabinet must wait a while.

[If my hypothesis that democratic debate had some impact on the shape of the cabinet is true, then lawyers seem to be popular with newspaper columnists. Nearly half of the new ministers seem to have law degrees.]

Update: Dear Suresh, thanks very much for helpful comments. The title has been suitably amended. Here are my responses to your worries:

1. I agree that unlike in the US, we don't have a system of direct legislative confirmation of ministers. The problem at hand is one of democratic control over exercise of (a fairly important) executive power. Sure, legislatures in some countries are mandated to exercise this control. But even there, they do not do so exclusively. Civil society and media perform the same task, only differently. In fact, absence of direct legislative supervision in India only strengthens my argument that at least media and civil society must have an opportunity to comment and criticise the candidates. This is certainly not an argument against also considering legislative controls (although pragmatic concerns around constitutional amendment may make it less feasible).

2. By institutionalisation, I only meant institutionalisation as a constitutional convention. Here is a good precedent being set (although the criterion of the mental state of being obliged to follow it is not satisfied in the current case), and has some good reasons in its favour. Future PMs must take it seriously, and in the process, lay the foundations of a convention. In circumstances like 1991, the convention will be flexible enough to accomodate exceptional urgency. But as a rule, I think it is healthy for a democracy to allow civil society a week or so to debate the shape of the council of ministers. And if that reduces the possibility of incompetent ministers (for, unlike legislative confirmation hearings, civil society/media criticisms cannot be determinative), the extra week spent will pay itself many times over in the next five years.

3. Yes, this will help only with a strong civil society. But as you yourself note, we are getting there. But at least the conditions must exist - swearing-in of the council of ministers within 24 hours of the elections presents the nation with a fait accompli.

4. The possibility of pressure and bargaining by allies cannot be discounted. But on that question, delay can cut both ways. As the current example shows, the PM used delay to make the DMK blink first. It was the opposite convention (of immediate swearing-in of the entire council) which mounted the pressure.

What I suggest will not be a panacea, but just a small step towards greater democratic accountability. That's all.

Update 2: Veerappa Moily is the new Minister for Law and Justice. One can expect some of the proposals made by the Second Administrative Reforms Commission, chaired by him, to translate into practice.

More interesting comments on Verdict 2009

Arun has in an earlier post already drawn attention to certain views about what Verdict 2009 means. I found two comments which are very interesting. The first is by Ashis Nandy in the latest Tehelka titled "End of Arrogance-The Hour of the Untamed Cosmopolitan" (here). The second is the Editorial comment in the latest EPW titled "Myths and Hypotheses" (here). The EPW editorial cautions against jumping to conclusions about the meaning behind the verdict. It merely identifies a few issues that need to be reflected upon for a period of time to achieve meaningful theorisation. The editorial is one of the most balanced commentaries so far on the results.

Ashis Nandy's piece is more "conclusive" than the EPW editorial, but he makes some important points not only on the nature of India's politics but also on the nature of Indian society. He believes that India's diversity has been asserted through this result, in addition to the rejection of arrogance. While caste remains important, it is not the decisive factor because of the assertion of a number of castes. This last point is very interesting and was also borne out in a survey that DAKSH (a NGO, I work with) carried out in 2008 in Karnataka. The majority of the respondents said that caste was not an important criteria for them when choosing their representative in an election. While we dismissed this initially as a problem in the manner the survey was executed, discussions with sociologists revealed that in no constituency can a single caste determine the result on its own. A combination of castes have to vote for a candidate to win. Further, invariably there will be multiple candidates from the same caste resulting in a split of the caste votes. Leaving that point for a later and more detailed discussion, I think that both the EPW and the Ashis Nandy articles make a more realistic and sober assessment of the election verdict unlike various other gushing reviews. Among the gushing reviews, I found Fareed Zakaria's views the most astounding and far fetched. On CNN-IBN, just after the elections, he claimed that the result was an indication of India embracing modernity! I do not find any written pieces where he makes the same claim, although he does claim that the results are India's coming-out party in his piece in Newsweek (here), which is a more sober assessment.

Allahabad High Court hearing on impunity provision

The CBI is about to begin arguments before the Allahabad High Court in the Taj Heritage Corridor case. The agency has to justify its decision not to prosecute Chief Minister Mayawati. It appears to be hiding behind impunity provisions in the Criminal Procedure Code to suggest that it does not have official sanction to prosecute. Surprisingly, it appears to be telling a High Court not to follow the Supreme Court's ruling in Parkash Singh Badal v State of Punjab (2006) which created two small exceptions to impunity provisions. The first exception was that former public servants cannot be protected by impunity provisions (the preceding Lok Sabha tried to undo this exception by passing an amendment Bill in 2008, but thankfully was dissolved before Rajya Sabha cleared it, and the Bill died. See this article for further details). The second exception, which the CBI is arguing against in this case was expressed by the Supreme Court in Badal case thus:

The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.

If newspaper reports are to be relied upon, the CBI is basically arguing against the doctrine of precedent: 'the Supreme Court ruling in one particular case cannot be referred to as a general law.' This is not to say that there is not a practical difficulty with this second exception: whether the act was for the public servant's own pleasure or benefit is usually apparent only after a trial. This exception therefore requires the magistrate to accept a prima facie case that that is so, before taking cognizance in the absence of official sanction.

Venkatesan points out another controversy relating to impunity provisions in Kerala, where the issue is whether the Governor is bound by the advice of the Council of Ministers to refuse sanction for prosecution. Another SC precedent allowing the Governor to do so in case the Council of Ministers has not acted bona fide is in issue [M.P. Special Police Establishment v. State of M.P 2004 (8) SCC 788 -- I am only citing from the news report, have not read the case myself yet.]

While these exceptions demonstrate understandable judicial frustration with impunity provisions, it is high time our courts realise that impunity provisions are unconstitutional per se.

One also hopes that this time the PM finally has enough political authority to push through his proposal of creating a separate prosecutorial authority, independent of the CBI. (See also this previous post on this blog).

Specialised Legal Education: Bar Council Compliance?

As some of you may be aware, a generous bequest by US billionaire Vinod Gupta helped kickstart the Rajiv Gandhi School of Intellectual Property law (RGSOIPL), India's first specialised law school, focusing on intellectual property law (IP). This school, which is based out of IIT-Kharagpur has been operational since 2006 and has strong ties to the George Washington University law school, one of the top IP law schools from the US.

Although this law school does not only teach IP, but a string of other legal courses normally taught at the other law schools, it restricts admissions to candidates with a first degree in science. In pertinent part, the IIT-K website notes:

"The School presently has one programme: Six-Semester, Three-Year Full-Time residential LL.B. Programme leading to the Degree of Bachelor of Law with specialization in Intellectual Property Rights, at par with the LL.B. Degree requirements of the Bar Council of India."

Just as this novel experiment in specialised legal education produced its first set of law graduates this year, it has been hit with a legal challenge. Express Buzz reports:

"The Supreme Court has issued notices to the Bar Council of India, Indian Institute of Technology, Kharagpur and to the Secretary, Ministry of Human Resource Development on a writ petition questioning the propriety and correctness of the Bar Council of India in giving permission to IIT, Kharagpur to start a course in LLB in Intellectual Property Rights.

A Bench comprising Chief Justice K G Balakrishnan, Justice P Sathasivam and Justice Deepak Verma directed issuance of notice after briefly hearing advocate Sanjay Parekh.

The petition filed by M Chandrasekhar, an advocate of the apex court, pointed out that the eligibility for joining an LLB course is a graduation in any discipline, that is BA, B. Com, BSc etc.
The petitioner pointed out that LLB is an entry-level professional course in law wherein a candidate is taught basic principles of law in a number of subjects. If any candidate desires to specialise, he can opt for LLM course in a subject of his choice like Constitutional Law and Contracts.

But, for the first time, the general character of the LLB course is sought to be changed by IIT Kharagpur by starting a specialised course in Intellectual Property Rights and that too restricting admission only to BE, B Tech, MBBS, M Pharma, MSc, MBA with Science/Engineering background, the petitioner averred."

Towards Specialised Law Schools?

Given the sheer dearth of skilled patent lawyers in this country, I am very partial to the idea of a specialised IP law school. Particularly since the premier legal institutes in the form of the National law schools do not focus on science at all, a discipline that is absolutely essential for churning out decent patent lawyers. The National Law University (NLU), Jodhpur does offer a B.Sc. LLB, but I am not entirely sure if the level of the science taught as part of the BSc is adequate. The head of the IP Division of a big Indian pharma company once confided to me that these candidates were of no use to them, as the science taught was fairly elementary.

NUJS offers a very curious BA/BSC LLB degree, but there is no science taught at all. Dr Madhav Menon, the founding director of this law school may have intended for this law school to provide a science option as well, but this never really kicked off. The nomenclature seems more of a historic relic now.

Anyway, back to the dispute at hand and legal challenge mounted against the grant of approval to RGSOIPL's 3 year LLB course. I don't necessarily see a problem with a specialised "IP" focus in an entry level LLB course, provided other foundational legal courses such as contracts, torts, criminal law, constitutional law etc are also taught. I'll try and bring you a more detailed note on the specific legal issues once I lay my hands on the petition.

In the meantime, let me try and highlight some of the broader issues raised by this recent controversy:

i) To what extent do law schools comply with the Bar Council of India (BCI) norms?

ii) Should the BCI (in its current form) be permitted to regulate legal education at all? Does it have the institutional competence to do so?

Compliance With Bar Council Rules?

To answer the first question, a couple of months back, I checked the Bar Council of India (BCI) requirements applicable to the five year integrated law degrees (BA LLB, BSc LLB etc) and found that none of the law schools were likely to comply with the fairly onerous requirements spelt out by the BCI.

In particular, given that these schools accord rather step motherly treatment to the BA component (having a mere 5-6 courses of history, economics and political science), they are likely to fall foul of the BCI mandate that the BA or BSc syllabus "has to be comparable to the syllabus prescribed by leading Universities in India in three year bachelor degree program in BA, B.Sc, B.Com, BBA etc taking into account the standard prescribed by the UGC/AICTE and any other respective authority for any stream of education".

The BCI norms appear to require a good 14-20 courses to cover the "BA" component--which is way beyond the current 5-6 course offerings in this regard by the law schools.

Institutional Competence of the BCI?

As for the second question, most academics abhor the thought of having legal education in India solely dictated by the BCI, most of whose decision makers are practitioners with no real insights into legal education policy. And this sentiment has been echoed by the National Knowledge Commission as well, which recommended that course curriculum etc be designed by a new standing committee on legal education under a proposed Independent Regulatory Authority for Higher Education.

Arun's paper titled "The Waning of a Magnificent Obsession: An Abridged Story of the History of Legal Educational Reform in India" (which I referred to in an earlier post) has some fascinating insights into this issue. He discusses the Gajendragadkar Committee Report of 1964 in this regard and notes:

"The Committee had noted the distinction made under the Advocates Act, 1961 according to which, theoretical or scientific legal education would be in charge of the Faculties of Law working under the different Universities in India and the practical or technical legal education would be in charge of the State Bar Councils.

To remedy the situation, the Committee had recommended that the Bar Councils and the Universities should act in concert and agree upon evolving suitable criteria for both theoretical and practical forms of education. However, the Committee felt that a more substantive and long term solution to the problem would be the creation of a statutory body called the Council of Legal Education which could be given supervisory control over all aspects – theoretical, practical and incidental – of legal education in the country. The Gajendragadkar Committee was of the opinion that the Council should be constituted on a high-power basis and be composed of judges, law teachers, members of the Bar, and representatives of industry or other fields which would have an interest in law. The Committee did not elaborate on the details of the constitution of the Council or on its powers, but felt that the constitution of such a Council by Parliament would facilitate the progress of legal education along healthy lines.

Similar suggestions have, over the years, been made by several persons who have had some experience with policy making in the field of legal education, and recent fiascos like the V.Sudeer case only serve to heighten the urgency of the requirement of such a unified authority."

Live Coverage of hearing on Binayak Sen's bail plea

The campaign for securing Binayak Sen's freedom has organised the live coverage of Supreme Court's hearing on his bail plea today through this link..

Impact of OBC Reservation Policy in Higher Education in India: The TISS Report and Its Implications

The Tata Institute of Social Sciences (TISS) recently came out with a report on the ‘Impact of Reservation Policy in Higher Education in India’. Amidst the din of the general election and the war in Sri Lanka, it appears to have received scant attention in the press.

The report is a veritable treasure of facts and figures with respect to economic and educational backwardness. The initial part of the report documents the economic status of different social groups based on a number of social parameters. It concludes:

Poverty and deprivation is higher among STs, SCs and OBCs among Hindus and Muslims. Hindu STs are the poorest… while Hindu OBCs are close to national average and lie between Hindu SC, Muslims SC, ST & OBCs, Muslim Others on one hand and Christian SC/ STs, Hindu Others, Christian OBCs, Sikhs, Jains and Zoroastrians on other. In terms of economic deprivation, higher percentage of Hindu SCs & Muslims (Muslim SC, ST, OBCs & Others) fall under ‘very poor’ category as compared to Hindu OBCs…Higher the level of deprivation/poverty in a particular category, lower the number of graduates from that category. So the percentage of graduates and above belonging to poor, very poor and middle economic strata within SC, ST & OBCs are less as compared to those in top two categories (upper middle and rich) within their own community. A high number of poor amongst the most deprived socio-religious groups (Hindu & Muslim SC, ST & OBC) attain graduation and above.

As far as middle and secondary education is concerned, it concludes that ‘Hindu OBCs are adequately represented as compared to their share of population at middle and secondary school levels but their attainment drops at higher secondary level’. SC/ST enrollment as noted from the census appears to have marginally improved over the years.

Strong urban-rural (rural enrollment lower than urban; more so for lower castes than upper) and gender (lower female attainment for SC/ST/OBC/Muslim; higher disparity with diminishing household income) gaps are also noted. As for OBC representation and enrollment in higher education, it concludes that their numbers remain low as compared to Hindu Others, Jains, Christians and Zoroastrians.

The last point regarding OBCs, even if true overall, has important exceptions as their data in the next section indicates (this part is really the core of the study). The team conducted a caste-wise breakdown of university admission and performance in select universities across three states - Maharashtra, Tamil Nadu and Uttar Pradesh. A survey of students, faculties and administrators was also conducted where diverse opinions were voiced.

The data sets are not always complete but they still provide some sense of the social implications of reservation policy. In Maharashtra, while OBC enrollment in Mumbai University was found to be low, it was adequate at Marathwada university and at the Maharashtra University of Health Sciences. While CET and higher secondary (HSC) exam performances were better in the general category in engineering, OBC students performed better than the general category in medical CET and HSC marks. In terms of university level performance, general category students performed better than those in the reserve category both in terms of pass percentage and the number of first and second classes.

In Tamil Nadu, backward class (BC as distinguished from Most Backward Class, MBC) students outperformed the open category (OC) students in qualifying for medical admission and very nearly matched the open category for engineering admission. The report notes that even while engineering education in the state is highly privatized (96.7% of all engineering colleges are self-financing), BCs and MBCs were adequately represented whereas SC/ST numbers are low. Also 27% reserved category candidates who are selected for MBBS in Tamil Nadu take admission without any reservation. The majority of these (25%) are from BC and MBC categories. It also states that at the exit level of professional courses, no marked difference exists between the performance of reserved category students vis-à-vis the general category is noted and hence quotas have not diluted merit in engineering institutions. The last finding is erroneous as the conclusion can only be asserted with confidence with respect to BCs and MBCs, not SC/STs (see table 7.9 and explanation on p.53).

In Uttar Pradesh, OBC applicants to professional courses were fewer than their proportion in the overall population and filled fewer slots in medical colleges than the allotted quota but exceeded the stipulated 27% in engineering colleges. Performance-wise (as determined by pass percentages), there is something of a surprise: OBCs fared the worst, SC/STs the best with general category students in between. No explanation is however offered to account for these seemingly anomalous findings (fake SC/ST certificates?). Reserved seats were not filled in post-graduate engineering courses and an inverse correlation was found between demand for a course and the number of SC/ST/OBCs enrolled in it.

The team also studied enrollment rates to some centrally funded institutions, namely the IITs, AIIMS and TISS. They note that the percentage of SC/STs preparing for the IIT-JEE through self-study is much higher than for other groups and the sharp urban/rural and CBSE/state board divides probably affect the success rate based on the adverse impact they have on these sections. They speculate that disparities in parents’ educational status as well as household income are other important factors affecting the performance of SC/STs. A similarly high rate of failure of SC/STs in the AIIMS entrance exam is also noted. As for enrollment at TISS, it is stated that SC/STs have surpassed their respective quota shares and while the numbers are only rough estimates, a significant number of OBCs (~10%) are believed to be getting in through merit although their percentage is still less in proportion to their eligible population.

The report offers considerable food for thought.
1. Backwardness is better understood as a relative term with communities being hierarchically graded along a continuum without a clear backward/forward distinction. This could be an argument in favor of developing what was proposed earlier - an individualized deprivation index scoring system taking into account a diverse set of factors including location (urban/rural, proximity to educational institutions and coaching facilities, etc.), parental accomplishments, etc. and applied to all applicants rather than a pre-specified caste-based quota.

2. The continuing reservation policy in Tamil Nadu, at it applies to BCs and MBCs, does not appear justified in light of these findings. There is also a reasonable case to take a hard look at the distribution of OBCs in Maharashtra.

3. A recurring theme of the report is that candidate numbers in various courses are not proportionate to their population. Firstly, this point ought to be seen only in association with the number of applicants since a lower number of applicants would be a likely explanation for the fewer number of successful candidates. Secondly, the smaller applicant pool would only imply backwardness provided preferences of the community are excluded as a possibility. While a graduate degree may well be an entry barrier to the employment market, the same is not always the case for post-graduate education in which case, it may simply be an artifact of varied preferences.

4. An aspect of the debate related to the above point has been whether the goal of the reservation policy ought to be to promote classroom diversity or social advancement. The difference has not been all that material since for the bulk of the populace, the two have been closely related – any policy for upliftment will also invariably be accompanied by an increase in diversity. But as this report indicates, that may not always be the case. In courses related to agriculture, enrollment of students from the general category is very low which raises the question: should institutions actively promote themselves to sections that are not backward in the interest of diversity? To give another example, if members of a traditional merchant community were to prefer entrepreneurship to signing up for a doctoral degree program after graduation, should it be obligatory or even desirable for institutions offering such programs to resort to affirmative action to reverse the imbalance?

5. In a majority of educational courses, it seems clear that backward class performance is lower than that of the general category. To the extent that this is an indicator of scholarship/merit and a determinant of the educational environment, quotas do appear to lead to a dilution of the standard (this is a point that follows clearly from the data but a conclusion the report does not explicitly state anywhere as far as I can tell). The question then is whether this is a problem and if so, how it ought to be remedied. The authors favor a multi-pronged approach with increased assistance provided right from the HSC level to reverse this ‘inverted funnel effect’ and similar support both before admission to the university and after.

6. Given that reservation policies have had very different impacts in different parts of the country, what are the factors that contribute to this extensive disparity and how might they be remedied? The report generally recommends improved access to education but unfortunately does not specifically dwell on this question.

Law Minister

I was disappointed to hear that Mr. Bharadwaj will be sworn in again as a Minister. Hopefully he will not be given the Law Ministry. One of the UPA's government major failures in the last term has been the dismal performance of the Law Ministry. Some of the key failures are

1. No major initiative in speeding up the justice delivery system, despite several proposals. Although the NDA government also had several failures on this count, one of the few things they can be credited with is the establishment of fast track courts and the CPC Amendment.

2. The failure of the criminal justice system to render justice came into spotlight in several cases, but no major initiatives was taken to reform the system

3.Mr. Bharadwaj played a key role in the appointment of an Attorney General who was a spectacular failure by all accounts. Not only Mr Banerjee did not appear in any leading cases, he gave an allegedly "collusive opinion" in the Quattorochi episode. Mr Dhavan was right in pointing out that if action is taken is taken on the basis of the law officer's opinion, such opinion should be published.

4. Interference in the functioning of investigating agencies.

5. There is justifiable basis to question the integrity of the Law Minister when a Law Officer specifically sent to defreeze the accounts of a person who has been escaping from Indian justice system.

Indian justice delivery system needs a structural reform and for that to happen we need a Law Minister who has the experience, capability and the vision. Sadly Mr. Bharadwaj was found wanting on all counts.

Debate on Basic Structure Doctrine (Continued)

We are pleased to continue our series of debates between authors and readers. Last month, we initiated this debate between Sudhir Krishnaswamy, author of the book, Democracy and Constitutionalism in India: A study of the Basic Structure Doctrine, (OUP, 2009)and Raju Ramachandran. Today, Sudhir responds to the criticism of his book by Prasan Dhar, a recent product of NALSAR University of Law. Prasan's is a theoretical response to Sudhir's book and Sudhir's talk at NALSAR recently on the same subject.

PRASAN DHAR:

Sudhir's quest seems to be whether he can create or defend a morally/philosophically/legally superior justification of a particular court doctrine, to put forth the most viable account of judicial power. In terms of framework analysis, I believe that such analysis is, in the least, inadequate, if not misleading. I think that his account flows from a very particular vision of how to conceptualize adjudication. Adjudication, for him, remains a purely legal and interpretive phenomenon.

I believe that for a fuller account of the Court's adjudicatory praxis, it is important to view the Court as a political institution and therefore, its adjudication, especially in constitutional cases, as a political performance. If one takes the view that adjudication also has a political character, then the decision must be justified politically as well. It is therefore important for me to explain what I mean by political justification.

By political justification, I mean that the Court's oeuvre must ensure and sustain political viability of the institution itself, both in democratic terms and in inter-institutional terms. He says, "the court has been changing or shifting the boundaries of the political and the legal." While his assessment is true in a certain sense, I take issue with something underlying that statement as well as the rest of the arguments that he makes throughout his book.

While he views the shifting of the boundaries as a legal act, I view it to be a substantive political act. Therefore, when the Court says that it can examine the reasonableness of legislation under Article 21, it is a political performance first, a legal performance later. While he has presented a weak form of the democratic argument (albeit in an empirical fashion) as a sociological justification he has not at all touched upon the latter (inter-institutional viability).

My intention is to show that a political characterization of adjudication is superior to a purely legal characterization. That would entail me showing at least two things - one, that theoretically, understanding the court decisions as political decisions is superior, and two that adjudicatory praxis reflects my position better.

Theoretical Arguments

While I agree with Sudhir that legitimacy is a scalar quantity, yet it has some distinguishing characteristics i.e., the Court's political legitimacy is in the least a necessary condition for its survival and the continuance of its ability to exercise judicial power. Therefore, I offer a more political account of legitimacy. I offer two arguments (I haven't figured yet which is a more accurate theoretical account).

First, Sudhir's justifications, are in my view, not necessary conditions for legitimacy. Notice the absence of sufficiency as a criterion, which is a result of the partially scalar nature of legitimacy. This means, that even if a decision is not justified in legal terms (let us assume that it has no basis in the constitutional text) the court must at least offer a political justification that will allow the institution to survive.

Second, that the form of justification that he offers, is important only insofar as judicial power remains intact. That is to say legal/moral/philosophical justifications are important, but only if they have an effect on the political view of legitimacy. Therefore if one says for example, that the court's decision is not legally justified, that claim has nothing to say about legitimacy per se. It will have something to say about legitimacy only if it creates a dent in the political legitimacy of the decision. Therefore legal and philosophical justifications are important more from a craftsmanship point of view rather than being conclusive justifications.

Adjudicatory Praxis

I think there are numerous decisions that could exemplify my position. One example is the due process imbroglio. I think it is significant to note the type of cases that were before the Court in the due process cases. If I were to only take the triumvirate of Gopalan, Maneka and AK Roy, one will notice that in Gopalan and AK Roy where the Court took a 'conservative stance', preventive detention laws were questioned. Whereas Maneka was a case under the Passport Act (which actually did not even need to be decided).

One way I proffer to understand why this is significant is because the Court has always been deferential to the legislature when it comes to preventive detention. Further the Court has allowed preventive detention for all sorts of things, even theft of railway property. So therefore, it seems like the Court could pick out a case like Maneka to expand the scope of Article 21 review whose immediate political implications were minimal. When the NSA was challenged in AK Roy, Chandrachud would say that one cannot read Maneka to mean substantive due process but only procedural due process.

Therefore, my argument is that one of the primary ways to understand this doctrinal change is by viewing adjudication as a political oeuvres. (I have written a much more detailed essay on this recently, although my theoretical position is not as coherent there as it is here (I hope what I have said here is coherent).

SUDHIR KRISHNASWAMY'S RESPONSE:

May I first express my gratitude to Prasan and his fellow students for subjecting the book to a close reading and critical scrutiny. These interactions made the trip to NALSAR and my participation in the Socio-Legal Debate series memorable. Prasan's comment raises several issues and I will organize my response around what I see as the key questions.

1. How should constitutional law adjudication be understood?

In the book I take the view that constitutional law adjudication may be understood in several ways:

Empirically – to examine and understand how judges make decisions and the consequences of these decisions [G Austin is an important example of this]
Analytically – using legal and political categories of analysis [Commentaries like Seervai and MP Jain]

Normatively – to assess whether judicial decisions are justifiable and legitimate.
While adjudication may be ‘understood’ in several ways, ‘justification’ must proceed in one of two ways: instrumentalist justification that takes account of the contingent historical particulars of a society and non-instrumentalist justifications which assess whether adjudication (decisions / doctrine ) may be justified using general normative considerations germane to that area of adjudication.

So I do not deny the utility of an empirical understanding of constitutional adjudication and I do not suggest that one is superior to the other. I only argue that it has little to contribute to a general non-instrumentalist justification of court adjudication which is I what I offer in my book.

2. Do I offer an inadequate or inconsistent account of political legitimacy?

At various points Prasan suggests that I do not offer an adequate account of political legitimacy as I do not account for the survival of the court and inter-institutional relations. He seems to embrace the G Austin thesis that constitutional adjudication is best understood as an attempt by the court to practice realpolitik and ensure institutional survival.

An account of the courts strategic maneuvering to ensure its survival is an interesting and important part of our constitutional history. It may offer some support to an instrumentalist justification of constitutional adjudication. I argue that while these accounts are useful, the instrumentalist justification of the basic structure doctrine is now conceded even by the doctrine’s critics (for example, Raju Ramachandran). Hence, I focus only on a non-instrumental justification of the doctrine which needs different resources.

A non-instrumental justification of constitutional adjudication will rely in part on political justification. In the book I offer an account of political legitimacy under three heads: sovereignty, democracy and separation of powers. Inter-institutional relations is a part of the enquiry under the separation of powers heading. However, I have no place for a discussion on whether the court will actually survive its decisions as I do not see that to be an ingredient of any enquiry into political legitimacy.

To put the matter bluntly: a court may make legitimate decisions and be neutered by the executive or the legislature. Conversely, a court may make illegitimate decisions and a thriving inter-institutional relationship may exist. So far from being an essential ingredient of political legitimacy and justification of constitutional adjudication, the survival of the court is irrelevant to the political legitimacy of its decision making.

Prasan's discussion under the head ‘adjudicatory praxis’ suggests that constitutional adjudication in several important cases may be understood to be a byproduct of the particular circumstances of the cases brought before it. Irrespective of whether this understanding is empirically true it does not help us with the task of providing a non-instrumental justification of the decisions in these cases.

Prasan's account seems to assume that the viability of the court as an institution is in some sense necessary or prior to the legitimacy of its decisions. Hence, his claim that it is a necessary condition to the political legitimacy enquiry. While it is certainly true as a practical matter that a court must exist before this we can discuss the legitimacy of its adjudication, this is an empirical matter and has no bearing on whether the court's decisions are legitimate.

As I do not have the benefit of Prasan's longer essay, I have responded to his arguments as set out in this shorter note. I recognize that this discussion is abstract and may be tedious for the general reader, but I hope that this will clarify some part of the queries he has addressed here.

The hollowness of oath of secrecy

As I watched the oath-taking ceremony of the Union Council of Ministers live on TV, I couldn't miss the irony of administering the oath of secrecy to the new Ministers as required under the Third Schedule to the Constitution. A careful reading of this oath suggests that it is not against transparency, as it exempts communication or revelation of any matter brought under a Minister's consideration or any matter which was known to the Minister, if the same may be required for the due discharge of duties as the Minister. Therefore, there cannot be a conflict between this oath and a Minister's duty to reveal information under the RTI Act. An RTI applicant can always argue that the information is wanted for the due discharge of duties as the Minister, if the oath is invoked to deny information. I wonder whether any Ministry has invoked the oath to deny information so far under the RTI Act. Why did our Constitution-makers include this oath? Did they really believe that there could be information which might not be required for the due discharge of duties as the Minister, and it was necessary to keep such information under wraps? This 2004 article in The Hindu makes a strong case for replacing the oath of secrecy by an oath of transparency, in line with the recommendation of the National Commission to Review the Working of the Constitution. I couldn't find any reference to the oath of secrecy in the Constituent Assembly Debates; therefore, I am curious how this meaningless oath came to be included in the Third Schedule.

President's communique on PM's appointment

Today, President Pratibha Patil followed the precedent set by her predecessor, Narayanan in October 1999, by appointing Manmohan Singh as the Prime Minister, without requesting him to prove his majority in the Lok Sabha, even though the Congress Party is in a minority. She said in her press communique:

"The President having satisfied herself, on the basis of the various letters of support received, that the Congress-led UPA alliance, which is also the largest pre-election alliance, is in a position to command majority support of the newly constituted 15th Lok Sabha and to form a stable government, appointed Dr. Manmohan Singh as the Prime Minister and requested him to indicate the members of the new Council of Ministers."

The above communique is worded exactly as that issued by Kalam in 2004. I am thankful to Manoj Mitta for pointing out a factual error (see the comments section) in my earlier post, which I have now corrected. In the earlier post, I inadvertently credited President Pratibha Patil of having set the new precedent, whereas the credit goes to President Narayanan, who in his October 1999 decision, appointed Vajpayee as the PM after the general elections, without asking him to seek vote of confidence. The NDA had secured only 268 in Lok Sabha, and was assured of outside support by Telugu Desam Party. Kalam followed the Narayanan's precedent in 2004.

Narayanan's October 1999 decision was an improvement over his 1998 decision.In 1998, he was satisfied with Vajpayee's majority strength at the time of appointment, on the basis of letters of support. But he followed the precedent set by his predecessor, R.Venkataraman in 1991, and requested Vajpayee to seek a vote of confidence in 10 days.

In the comments section, Manoj observes that it may be unfair to criticise Narayanan for asking Vajpayee to seek vote of confidence because he did so, after the AIADMK delayed letters of support in 1998. The chronology of events in 1998, however, suggests that Narayanan asked Vajpayee to seek a vote of confidence, after the AIADMK and its allies sent in their letters of support, and Chandrababu Naidu telephonically informed Narayanan about his decision to remain neutral. In his press communique, Narayanan expressed satisfaction that Vajpayee had majority, and would offer a stable Government, yet asked him to seek a confidence vote, which I think, was inexplicable. This story gives the history of confidence motions moved by PMs since 1979.

Having said that, however, President Pratibha Patil's communique does indicate two things: one, she accepted the Manmohan Singh's claim because the Congress-led UPA alliance was the largest pre-election alliance, and two, it is in the position to command majority support in the Lok Sabha and form a stable Government. If these two ingredients were not present in the present situation, she might probably have hesitated to accept his claim. That is, if the pre-result apprehensions of a fractured mandate were indeed true, she would have been left with no guidance, if she assumed that this was the correct approach.

In my view, President Patil's reliance on both the factors was flawed. Manmohan Singh deserved an invitation, not because the Congress-led UPA alliance was the largest pre-election alliance, but it emerged as the largest post-election alliance. That is, if there is a choice to be made between pre-election and post-election alliances, the President ought to consider only the post-election alliance, and ignore the pre-election alliance. It is because the pre-election allies too have to submit letters of support like the post-election allies. Therefore, the distinction between them is not valid. If the letters of support indicate that Manmohan Singh will be able to offer a stable Government, and his claim is not disputed by others, then the President ought to appoint him as the Prime Minister without a request to prove his strength.

Secondly, the Prime Minister-so-appointed need not convince the President that he will be in a position to command majority support. He may not be in a position to do so, but that need not disqualify him from staking his claim, as long as his rivals do not question his claim. That is, his ability to form a stable Government does not depend on his majority support in the Lok sabha, but on whether there is any serious challenge to his ability to do so from his rivals. Her communique failed to make this clear. The criticism of President Pratibha Patil's explanation for appointing Manmohan Singh as the PM should also apply to Kalam's explanation which was almost identical in 2004.

Manoj Mitta also points out that the precedent of asking the Prime Minister to seek a vote of confidence was set by Sanjiva Reddy in 1979. I am aware of this. In fact, in the States, the precedent was set way back in 1952 by Rajaji, when he was appointed as the Chief Minister of the then Madras State. I did not refer to 1979 precedent because it was set after the ruling party split, and a faction led by Charan Singh with Congress' support staked claim to form the Government. I am equally critical of Sanjiva Reddy's action in appointing Charan Singh as the PM, let alone my criticism of his request to him to seek a confidence vote, which the PM did not fulfil, before resigning.

I relied on the 1991 precedent, because the facts and circumstances in 1991, 1998, 2004 and 2009 were similar, except that it was Narayanan who began the system of seeking letters of support from the allies after the results. Under somewhat similar circumstances in 1991, when the Lok Sabha had nearly 36 vacancies as elections were not held in J&K, Punjab and elsewhere, and the Congress had won 244 seats, (nine short of majority) President Venkataraman did not seek letters of support from the PM, Narasimha Rao, but asked him to seek a confidence vote, which under the peculiar circumstances of 1991 elections, was unnecessary, because it was clear that Rao's claim to form the Government was not disputed by others.
[I am thankful to Manoj Mitta and Tarunabh for raising questions on factual accuracy of my earlier post, which I have suitably edited after their comments]

India's Options towards Pakistan: A Guest Post

Our guest blogger today is Vinod Joseph who used to be an advocate in Mumbai till he moved to London seven years ago. Writing is a hobby Vinod indulges in when he gets some spare time. His first novel Hitchhiker was published by Books for Change in December 2005. Vinod's blog can be visited here. Vinod has always been fascinated by politics, especially politics relating to the Indian subcontinent and most of his writings revolve around current political issues. The views reflected in this post are his personal views and are in no way connected to his profession or his employer.


Imtiaz Gul is a reputed Pakistani journalist and the author of a book "The Unholy Nexus; Pak-Afghan relations under the Taliban.” In an interesting article published in the Dawn, Gul discusses the Pakistani establishment’s outlook towards the threat from Islamic fundamentalists and compares it with the threat from the east, from India. Gul speaks for the Pakistani establishment when he says that the bulk of Pakistan’s army is deployed on the Indian border because half of India’s strike corps is deployed close to the Pakistani border. Pakistan believes that India is pumping money into Balochistan, partly as pay back for past Pakistani interference in India. India is also ramping up its activities in Afghanistan, with whom its ties are getting stronger. For Pakistan’s officialdom, India is a mortal threat; the Islamic fundamentalists are not. For this reason, Pakistan is tempted to hang on to a few Islamic outfits, though Gul strongly argues that Pakistan should not do so since it makes Pakistan look volatile and weak.


Gul feels that Barack Obama and Gordon Brown overlook how India’s superiority over Pakistan shapes Pakistan’s threat perception. He argues that the West ought to allay the possibility of an Afghan-US-India alliance encircling Pakistan and ‘neutralise’ the threat to Pakistan from India if it expects Pakistan to throw its full might against the Taliban.

You can read Gul’s article here.

I believe Gul when he says that even at this stage, when the battle against Islamic fundamentalists is in full swing, Pakistan treats India as the bigger threat. As explained in this Time article two generations of Pakistanis have been weaned on a mix of hatred for India and the supremacy of Islam. The Islam practised in Pakistan used to be a lot more liberal than the austere version that has crept in of late. However, the Wahhabi version of Islam is Islam nevertheless and it is not easy for the average Pakistani to denounce it totally.

There is no doubt that Western countries will be very happy if India were to bend over backwards to make Pakistan feel secure. The million dollar question is whether India should indulge Pakistan. In realpolitik terms, what’s in it for India?

At present India seems to be in an enviable position. If India were to assist or continue assisting insurgents in Balochistan (I am only conjecturing, I am no way of knowing if India is actually doing this), Pakistan has two options. The first option would be to get an Islamic fundamentalist group to attack India. This would require Pakistan to provide weapons and training or at least a safe haven to a bunch of people who at present most probably hate the Pakistani government more than they hate India. The weapons are very likely to be used against Pakistan than against India. Also, if news of such activities were to become known, Pakistan would look mighty daft. The second option would be to assist a non-Islamic insurgent group fighting India. There are still a few left, mainly in India’s north-east. Since the first option doesn’t make sense, I assume Pakistan would go for the second option. However, the second option is not going to be particularly effective since Indian insurgents have a variety of sources to get weapons from and Pakistan is just one of them. Aid from Pakistan is unlikely to make a significant difference to the messy situation in India’s north-east.

Amidst all these Machiavellian calculations, is it possible to argue that India should go out of its way to assuage Pakistani concerns? For one, it would get India brownie points from the West. However, in these days when everyone talks of rising macho Asian powers, a pat on the back from the USA or UK alone cannot justify such an extremely vulgar display of altruism. Is it possible to argue that a strong Pakistan will serve India better than a weak Pakistan and for that reason alone, India should go out of its way to help make Pakistan feel secure enough that it is able to devote all its resources to fight the Taliban?

Unfortunately, as explained by the well-known Indian journalist Vir Sanghvi in this article a strong Pakistan is no guarantor of peace. Sanghvi has argued that India should go out of its way to keep Pakistan weak, that the traditional argument that a strong and prosperous Pakistan is vital for India’s security and prosperity has been proved wrong. Sanghvi wants India to support or resume clandestine operations in Pakistan and hit back every time India is attacked. Sanghvi says that Pakistan did not harm India for twenty years after the 1971 war which created Bangladesh and weakened Pakistan.

I agree with Sanghvi that a strong Pakistan is unlikely to be friendly towards India. However, in my opinion, a weak Pakistan is equally dangerous and a splintered Pakistan even more so. If for some reason Pakistan were to break up, wont it be so much easier for the Taliban to gobble up such pieces one by one? If India has supplied weapons to insurgents in Balochistan, such weapons will find their way to the hands of Islamic insurgents to be trained on India at some future date. The American experience with the Afghan Mujahiddin and India’s experience with the LTTE show how easy it is for terrorist chickens to come home to roost.

On balance, I feel that India ought to take all steps possible to make Pakistan feel secure. Withdrawing the Indian army’s strike corps from India’s western borders would be a good start. Desisting from aggressive overtures through Afghan proxies and not aiding Balochi insurgents would be another. Of course, having done all that, once Pakistan settles the Taliban threat, India may be back to square one, with Pakistan resuming full-fledged support to Islamic fundamentalists who wish to target India or to Kashmiri separatists. Such a scenario would be, in my opinion, be preferable to having a slew of Taliban controlled states to India’s west, some of which will have nuclear weapons.

Analysis of the 2009 General Elections: Contrasting views

As is perhaps to be expected, not all analysts agree on how we should interpret the results of the recently concluded general elections. Of the early analysis, I have been struck by three commentaries on the elections which form the subject of this post. The first is that offered by Pratap Bhanu Mehta which conforms to the dominant trend in commentaries, and celebrates the success of the Congress' victory in fairly unequivocal, near euphoric terms:

There are moments in the life of nations that are harbingers of deep changes. The Congress has achieved what even so many of its friends thought was unthinkable: not just a return to power, but a return with such aplomb. No amount of psephological quibbling can take away from this achievement. They put a lie to the proposition that this was not a national election, but a sum of state elections. The swing towards them across large parts of the country is too significant to be dismissed as a conjuncture of lots of local factors … This election is also an indicator that the era of votebank politics as we have known it is over. Parties that placed undue confidence in the fact that they had secure vote-bases amongst particular political groups have been given a severe blow. … It is too soon to say that caste and identity have become irrelevant for politics. They may seem so because the policy agendas that came out of that politics are now deeply entrenched; yet its logic is also involuting, creating new coalitions as in Bihar. It is inevitable that there will be a search for new paradigms. But the post-Mandal age of identity votebanks is over.

Yogendra Yadav’s newscolumn is less exuberant, at least on the scale – and potential impact - of the Congress’ victory. He begins his analysis with the following caution:

The verdict is out, but the mandate is hazy. If the verdict is loud and clear, the weak and hesitant voice of the mandate does not lend itself to simple headlines. It is easier to say what this mandate is not. It is necessary to emphasise this, since there is a real risk that the people’s mandate may be misread.

Towards the end of his column, Yadav sets forth an intriguing prescriptive claim: on the need for the Congress to “invent a new Left within” itself:

The real significance of this electoral verdict lies in a major shift in the political landscape. The last two decades have witnessed an expansion of the third space in Indian politics. The Left and many regional parties occupied this non-Congress, non-BJP space. The expansion of this third space brought new issues, new leaders, and a fresh energy to politics. Included here are the pro-Mandal movement, the various campaigns against the “new” economic policies and the agitations on questions of jal, jungle and jameen (land, water, forests). Ironically, the expansion of this space has been matched by the shrinking of the Third Front. As a result, this space, almost by default in this election, has come to the Congress. The real challenge for the Congress now is to inherit this legacy that has fallen into its lap. In the last five years, the Congress failed to address the politics at the grass roots, address those who are at the bottom of the pyramid. Yet, it has secured their votes. The Congress now has to create policies that respond to the needs of the poor and build a durable political constituency. It has to internalise the impulses that have been articulated by the regional parties. It has to revert to being a grand coalition and accept that the need for such coalitions is inbuilt in our society.

Is the Congress aware of this historic opportunity? Reverting to the Sonia-Rahul chants and typical Congress-style sycophancy is no substitute for organisation building. Worse, it could succumb to the temptation to go in for unbridled economic reforms, now that there is no Left to check it. If the Congress is serious about its future, the party needs to invent a new Left within it. The party does not need a new ideology: it just needs to take its own election manifesto seriously.

Atuk Kohli’s column reads like a direct counter to the celebratory accounts offered by analysts such as Pratap Mehta, as is evident in its title: What are you calling a ‘historic mandate’? Kohli’s piece focuses on some of the statistics thrown up by the elections, and offers some sobering footnotes to the conventional narrative that is developing about these elections:

A closer look at the election results, especially at the share of popular vote received by political parties, reveals important national and state level trends. While the Congress and the UPA have secured a commanding lead in parliamentary seats, Congress’s share of the popular vote in 2009 increased only by some two per cent over its share in 2004. So a ‘historic mandate’ this is not. Congress’s victory is as much a product of alliance politics and the first-past-the-post electoral system as it is a result of enhanced popular support. Congress ran on a platform of ‘inclusive growth’. The improvement in Congress’s electoral fortunes then must be understood as a vote for continuity in this pattern of development. Over 2004, the BJP’s share of popular support declined by a little more than three percent. The BJP avoided a focus on Hindutva in this election and campaigned instead on issues of governance. The context of a slowing economy and terrorism with Pakistani links should have helped the BJP. The fact that it did not ought to be a matter of concern for the party. And then there are the communists. The proclaimed demise of the Left may turn out to be premature. In spite of losing seats, both the CPM and the CPI maintained their relative shares of the popular vote between 2004 and 2009.

The combined share of the vote of the Congress and the BJP in 2009 is about the same as it was in 2004 (some 48 per cent). This means that more than half the voters continue to vote for parties other than the two main ones. Congress’s victory notwithstanding, the electorate has not switched away from voting for a variety of local parties based on caste, class, religion and charismatic individuals. The underlying fragmentation of the electorate is thus real and continues. As to the substance of the mandate, Congress’s national gain is mainly at the expense of the BJP. Since the Congress ran on a mild left-of-centre platform, and since the communists have pretty well held their own, the popular verdict has shifted the country slightly more to the left.

Kohli is, incidentally, a respected academic commentator on issues relating to democracy, development and poverty in India. (Some of his publications are available at this link).

The statistics on the number of crorepatis and criminals in the new Lok Sabha (hattip: Nanopolitan) should also provide pause to those who are claiming that these elections are ‘tranformative’. It will be interesting to see how others weigh in on these elections in the days to come.

Rajeev Dhavan's Nine-Point Legal Agenda for New Government

Rajeev Dhavan, in this article in Mail Today, outlines a nine-point legal agenda for the new Government. Each of these points will require elaboration; Dhavan has compressed them in order to provide a summary, a kind of ready reckoner. Starting with party democracy, he compliments Rahul Gandhi for attempting a genuine mobilisation of youth. How can the EC's requirements on party democracy be strictly enforced? He has no answers. Secondly, he refers to Justice Ravi Dhavan's solution in the Patna High Court (2004) that if people in jail cannot vote, they cannot stand for elections, but doesn't indicate his own stand. Thirdly, he contradicts himself when expresses his opposition to ban on dissemination of results of exit polls, before voting concludes, while agreeing that they influence an increasingly literate and TV watching populace. Should we then consider this as a permissible influence? He then joins others who want the voting period to be shortened from a month to a week or one day, but doesn't sufficiently deal with the logistical problems of providing and moving security. Fourth, I agree with him that pre and post-poll allies must be treated alike by the President, faced with a hung Parliament. He also suggests that the President should choose the largest minority,(party or a combination) if a party claiming majority support is not available. He wants the arithmetic solution to be placed in an Instrument of Instructions as intended by the Draft Constitution. President Pratibha Patil must listen to at least one of his suggestions that she should not ask the PM to seek a vote of confidence. But what if that largest minority is opposed by the majority of Members of the newly constituted House? Again, he has no answers.

What Makes Us Happy?

This is an interesting article from The Atlantic. Precisely, something which you would love to read to have a break from LAOT.

Electoral Verdict to Spur Reforms

With the return of the Congress government to power and with Dr. Manmohan Singh set to continue as Prime Minister, corporate India is likely to witness a series of reforms in the near future. Unlike the previous stint where the Government was hamstrung by coalition politics (but nevertheless achieving a record rate of economic growth), the reforms are likely to be bolder this time around as it appears to largely have a free hand in policy-making. Industry has given its thumbs up to the verdict and the markets are likely to witness a steep climb today when they open for trading, signalling the acceptance of the electoral result.

As far as matters relating to economic laws are concerned, the key outcome could be the enactment of reforms to company law. The Companies Bill, 2008 was introduced in the Lok Sabha on October 23, 2008. It seems not to have gained much traction since then as that was followed by the Mumbai attacks in November 2008 when the attention of law makers was diverted to more pressing concerns such as safety and security of the country (and rightly so), after which the election process put the issue to the backburner. The issue will hopefully be brought to the forefront so as to achieve an overhaul of Indian company law, which has been pending for over a decade now.

At a broad level, other issues on the agenda include the clarification of the tax regime for limited liability partnerships, finalisation of merger control provisions under competition law and streamlining of the foreign investment policy of the country (particularly with reference to the sectoral limits on foreign investment). This column in the Mint sets out a more detailed list of the key tasks ahead for the new government in terms of economic reforms. Finally, another event that would be viewed with a great sense of anticipation is the full Budget, which reports suggest will be presented in the Parliament session beginning in June (note that the Government had only presented an Interim Budget prior to the elections).

Should Manmohan Singh seek a vote of confidence?

Well, the latest results suggest that the UPA may end up with 260 seats. Important Congress leaders like Kamal Nath have declared on television that the party is averse to seeking support from post-poll allies to make up the shortfall of 13 seats. The Fourth Front, which has 27 MPs may be willing to support, but the Congress is reluctant to accept it because of the hidden conditions of support which the Government may have to fulfil. Some independents have already extended support, said the Minister of State in PMO, Prithviraj Chauhan. The strength of Others is 29. Is the UPA hopeful of securing the support of 13 Independent MPs among these Others? What will be their conditions for extending support? The question can well be asked, is it necessary to fill this shortfall?

The BJP has clearly said that though the verdict is not a clear majority, it believes that the mandate favours UPA. The Left parties too have declared that they would not question the majority character of Manmohan Singh Government.

If you look at it academically, if there is a gap between the majority required, and the actual strength of the alliance forming the Government, it is a cause for concern with regard to the stability of the Government. It is immaterial whether this gap is huge or narrow: because Governments can be destabilised even by one MP as we had seen in 1999 when the Vajpayee Government fell.

Realistically, however, it is not a ground for denying a claim of such alliance to form the Government. There is no Constitutional bar on minority Governments from being formed. Should such a Government be asked to prove its strength in the Lok Sabha at the earliest? Well, that can be an invitation to Opposition to gang up, when no one in the Opposition has questioned the lack of majority of the new Government being formed. The President ought not to impose such conditions on the Government. Article 75(3) only requires that the Council of Ministers shall be collectively responsible to the House of the People.

There are at least four similar precedents. In 1969, Indira Gandhi was reduced to a minority because of the split in the Congress. The Left parties extended issue-based support to her; she did not have to prove her majority.

In 1998, the newly formed Vajpayee Government had to seek a vote of confidence, as President Narayanan specifically asked it to do so. The President said in his communique: "The number of MPs supporting the formation of a government by the BJP now comes to 264. This number - 264 - remains short of the halfway mark in the total House of 539. However, when seen in the context of the TDP's decision as conveyed to the President by Shri Chandrababu Naidu, to remain neutral, the number of 264 does cross that mark." It was, therefore, a paradox why Narayanan requested Vajpayee to seek a vote of confidence within 10 days. He could have spared the Government of this unnecessary stress when he was satisfied with its majority strength. It is tempting to compare the present situation with 1998. None of the parties comprising the Third and Fourth Fronts have declared, unlike the TDP in 1998 - that they would remain neutral. Narayanan probably requested the PM to seek a vote of confidence, in view of the uncertainty surrounding his formation of the Government. The AIADMK and its allies had delayed the submission of formal letters of support to Vajpayee, and Naidu had only telephonically said he would remain neutral.

In 1991, P.V.Narasimha Rao, also heading a minority Government, moved a motion seeking confidence in his Ministry on the advice of the President, R.Venkataraman. The BJP, which was puzzled at Rao's action, opposed the motion, and the Third Front parties abstained. There were 36 vacancies in the House,because elections were not held in Punjab and J&K. Rao won the motion. The President was incorrect in suggesting to Rao to seek confidence in his ministry. In 2008, when Manmohan Singh Government lost the support of the Left Front, Singh decided to seek a vote of confidence on his own, and proved his majority.

The inference from these precedents would be that Manmohan Singh must seek a vote of confidence himself, without the President asking him to do so. But each of these precedents cited here was unique, and the facts and circumstances preceding the debate on confidence motion are not exactly similar to the present situation. As long as there is no serious challenge to Manmohan Singh's claim to form the Government, there is no need to test his majority strength in the Lok Sabha.

Election Outcome: Likely Scenario

Even as exit poll projections revise their estimates of outcome in Tamil Nadu, I depend on my understanding of the state's voting behaviour in the past. As this is one state which can decide who can form the Government, let us look at it closely. In fact, the revised estimates have surprised a columnist sympathetic the BJP to the extent that he has now conceded that Manmohan Singh forming the Govt. is now a certainty (Management of expectations). According to the revised estimates of CNN-IBN and NDTV exit polls, the DMK-Congress combine is likely to sweep the polls.

I have been interested in the voting behaviour of voters in different States. One aspect of this interest has been to find out why the voters in Tamil Nadu have always given a decisive verdict in favour of one party or combination or the other. One consequence of this trend has been a single party government in the State, even as they voted one of the regional parties to power. When it comes to the Lok Sabha election, however, the party or alliance which is allied to a national party likely to form the Government at the Centre has been the beneficiary of the mandate in the State.

Let us look at the past trends. In 1998, the BJP and the AIADMK had an electoral understanding and swept the polls. In 1999, AIADMK's withdrawal of support, bringing down the Government at the Centre did not go down well with the TN voters. The BJP-DMK alliance swept the polls in 1999. Despite many grounds for withdrawal of support, the DMK kept the support going till 2004, and it is only on the eve of the Lok Sabha elections, the party switched sides, and had an alliance with the Congress. Although the DMK switched alliances, it did not destabilise the Government at the Centre. The DMK-Congress alliance was rewarded with a decisive mandate. The BJP and AIADMK had an alliance in 2004, but the voters did not rightly think that the BJP was in a position to form the Government at the Centre, and even if it was, it did not choose a reliable partner, considering what she did in 1999. Analysts overestimate the arithmetic factor in Tamil Nadu, by suggesting that whoever has a bigger alliance, in terms of number of partners, is likely to sweep the polls. But this is a very limited understanding, and simplistic because it does not explain whether the voters are aware that they are voting in a Lok Sabha election. My alternative thesis explains this rather satisfactorily.

In 2009, the AIADMK did not have the slight advantage it had in 2004, when it aligned with the BJP. Instead it aligned with the Left and the smaller parties, who according to the TN voters, are unlikely to form the Government on their own at the Centre. Therefore, the exit poll projections in TN, contrary to what the opinion polls said, are reliable. Many analysts have said this election had no national issues or that each State voted on State issues. Even as I don't agree with this analysis at the all-India level, at least in TN,the voters have always been distinguishing between state assembly and Lok Sabha elections. Well, this is my tentative analysis. I will stand revised, and probably look for alternative answers if I am proved wrong tomorrow.

UPDATE: With the trends available (4 p.m.May 16), I don't see the need to revise my analysis of why the TN voters voted the way they did. Even if it is not a sweep, it is an overwhelming mandate in favour of the Congress-DMK alliance. In the comments section, Srinivasan Ramani rightly suggests that the DMDK's inroads might have made a sweep impossible. AIADMK aligned only with the BJP in 2004, and the TN voters correctly did not see the combination capable of forming a stable Government at the Centre. One can discern one more factor. Ever since Jayalalithaa destabilised a Government at the Centre (in 1999), the AIADMK-led alliance has not received a favourable mandate in the Lok Sabha elections. As the TN voters favour stability at the Centre, they appear reluctant to give a mandate to the AIADMK in the Lok Sabha elections, even if they are willing to let AIADMK to return to power in the State.

Options before the President

With a hung Parliament being forecast by all the exit polls, the focus is now on the President, Pratibha Patil. There is a consensus veering around among the observers that she must ask for letters of support in respect of a claimant, and only if the numbers reveal a reasonable prospect of the Government surviving the floor test in the new House, she must invite the claimant to form a Government. But things are not as straight-forward as it may seem to be. Let us imagine that NDA with its post-poll allies is able to convince the President of the support of 250 MPs through letters of support. But the Congress, with its pre and post-poll allies is able to muster only 240, but is assured of the Left's abstention (let us again imagine that Left has 35). Is the President bound to follow the precedents set by her predecessors and invite the NDA, knowing fully well that opposition to it outnumbers its supporters? The Left may not be willing to give a letter of support to the Congress, though its abstention during the confidence vote could signal its support.

Let us understand the sequence of events in 1998 as evident from my article here. First, President K.R.Narayanan invited Vajpayee because as he said, BJP was the single largest party, and he headed the largest combination of pre-election allies. Since Vajpayee satisfied the first two conditions, the President did not find it necessary to know whether there is a post-election coalition which is a claimant. Secondly, he asked Vajpayee whether he would be able and willing to form the stable government which could secure the confidence of the Lok Sabha. He did not ask Vajpayee whether he could win the trust vote in the Lok Sabha. Thirdly, he sought letters of support from Vajpayee to sustain his claim that he had support of 252 members. Please note he did not want to be convinced that Vajpayee could secure the support of 272 members. On March 12, 1998 when he met the President, he had proof of support of only 237 Members of Lok Sabha; therefore, he did not stake his claim, but left it to the President's discretion. More important, the President took into consideration the Telugu Desam Party's stand - ascertained in a telephonic discussion with its leader N. Chandrababu Naidu - that the party would remain neutral during the vote of confidence. The President did not even seek a letter of support from Trinamul Congress. Once the AIADMK-led alliance's decision to extend support to Vajpayee became known, the President invited Vajpayee to form the Government. Vajpayee was still short of the magic figure of 272; still, he was able to convince the President that he would be able to secure the confidence of the House.

Narayanan issued a detailed communique each time there was a political crisis. On March 15, 1998,he explained how he was convinced of Vajpayee's capacity to form a stable Government. Thus he explained why he had to dissolve the Lok Sabha in 1999. Narayanan's successor, President Kalam did not follow this tradition, while prematurely dissolving Lok Sabha in February 2004. It is hoped that President Patil will revive the tradition of explaining her decisions during the process of appointing a new Prime Minister, after the election results.

UPDATE: With the certainty of Manmohan Singh returning as the PM, the President has been spared of this Constitutional dilemma.

EC pats itself on the successful completion of elections

The E.C. has generally received praise from the media as well as the political parties for its reasonable success in completing the 15th General Elections satisfactorily. Here, in this press release, the E.C. congratulates itself, by bringing to notice some of the highlights of this election. Contrary to what one might have expected, the full Commission has chosen to express its gratitude to the former CEC, N.Gopalaswami, for having guided the elections till the first phase was over. The highlight of this highlight is that the staff strength of the EC's secretariat in New Delhi is just 310! When you consider the huge scale of this election, it is indeed surprising. But is the Commission's "immense satisfaction" over its performance justified? With so many voters complaining about their non-inclusion in the rolls, clearly there is a case for streamlining enrolment, so that we are able to at least enrol all who want to vote.

Landmark Death Penalty case: Santosh Bariyar v State of Maharashtra

Update: I have been asked why the case is a landmark. I realise now that in my excitement, I failed to highlight the implications of the case properly. There is hardly any DP case where seperate evidence is led on sentencing, and never any evidence on rehabilitation. If the ruling in this case is followed sincerely, DP is all but dead. Prosecution will have the insurmountable task of proving not just guilt, but additionally (on additional evidence at separate sentence hearing) that the accused is beyond rehabilitation--something that will be possible only in extremely rare cases where the accused shows accepts the crime, shows no remorse and threatens to do it again. At present, in most DP cases, no additional evidence is led at the sentencing stage, and the evidence hardly relates to the possibility of rehabilitation. On this ruling, most if not all the post-Bachan Singh cases where DP was imposed were wrongly decided (by Bachan Singh standards as understood in Bariyar).


The Supreme Court delivered the judgment in Santosh Bariyar v State of Maharashtra on the 13th of May 2009. This is sure to become a landmark case on the issue of death penalty, and a natural follow up on Justice Ganguly's recent dissent in Rameshbhai Rathod v State of Gujarat (see this previous post for a discussion on that case). For all our previous posts on death penalty, readers may want to see this.

In Bariyar, the judgment of the Court is delivered by Justice Sinha. In a learned opinion, Justice Sinha revisits Bachan Singh as the defining law on the subject. True to his style, the judgment is a progressive one, and justified by a rigorous reading of precedents and constitutional norms. It is rare to see a sound legal judgment, which does not rely upon anecdotal evidence and platitudes. Given the workload of Supreme Cour judges, the rarity is understandable, yet these rare judgments are commendable.

Justice Sinha holds that the first important value underpinning Bachan Singh is that of individualised sentencing. Therefore, mandatory death penalty is unconstitutional (citing Mithu v State of Punjab). He recalls the Court's words in Bachan Singh: 'Judges should never be bloodthirsty.' The comment is important, in light of Justice Pasayat's approach to death penalty (although Justice Sinha's judgment does not explicitly mention the latter). Yet Sinha's insistence that public opinion is irrelevant to the judicial role in sentencing is a timely reminder that as counter-majoritarian institutions, courts should stop playing to the gallery: 'Even if presume that the general populace favours a liberal DP policy, although there is no evidence to this effect, we can not take note of it....The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations. To that extent we play a countermajoritarian role. And this part of debate is not only relevant in the annals of judicial review, but also to criminal jurisprudence.'

The second fundamental ratio in Bachan Singh that the Court emphasises upon is perhaps most crucial, and will have far-reaching consequences. The Court says that Bachan Singh requires a mandatory pre-sentence hearing stage where evidence on setencing must specifically be adduced. Further, it says that the evidence must not only relate to the crime, but also the criminal, including her socio-economic background. Finally, the prosecution must show on evidence that the alternative option is unquestionably foreclosed. In other words, the prosecution must show that rehabilitation is an impossibility. This will be possible in rarest of rare cases, indeed. The relevant portions of the opinion are worth quoting at length:

It is accepted that rarest of rare case is to be determined in the facts and circumstance of a given case and there is no hard and fast rule for that purpose. There are no strict guidelines. But a sentencing procedure is suggested. This procedure is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14.

Pre-sentence Hearing and “Special Reasons”

Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of “special reasons” if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions. A scrupulous compliance of both provisions is necessary such that an informed selection of sentence could be based on the information collected and collated at this stage. Please see Santa Singh v. State of Punjab, [AIR 1956 SC 526], Malkiat Singh and Ors. v. State of Punjab, [(1991)4SCC341], Allaudin Mian v. State of Bihar, [AIR 1989 SC 1456], Muniappan v. State of Tamil Nadu, [( 1981 ) 3 SCC 11], Jumman Khan v. State of U.P, [(1991)1SCC752], Anshad and Ors. v. State of Karnataka, [(1994)4SCC381] on this.

Nature of Information to be Collated at Pre-sentence Hearing

At this stage, Bachan Singh (supra) informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at his stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis.

But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th report of the Law Commission. Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence. Objective analysis of the probability that the accused can be reformed and rehabilitated can be one such illustration. In this context, guideline no. 4 in the list of Mitigating Circumstances as borne out by Bachan Singh (supra) is relevant. The court held:

4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

In fine, Bachan Singh (supra) mandated identification of aggravating and mitigating circumstance relating to crime and the convict to be collected in the sentencing hearing.

...

Alternative Option is foreclosed

Another aspect of rarest of rare doctrine which needs serious consideration is interpretation of latter part of the dictum – “that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” Bachan Singh (supra) suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose. death punishment, as will be discussed in detail a little later, qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability.

Incarceration, life or otherwise, potentially serves more than one sentencing aims. Deterrence, incapacitation, rehabilitation and retribution – all ends are capable to be furthered in different degrees, by calibrating this punishment in light of the overarching penal policy. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore puts an end anything to do with the life. This is the big difference between two punishments. Before imposing death penalty, therefore, it is imperative to consider the same.

Rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigor when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh (supra) sets the bar very high by introduction of Rarest of rare doctrine.

To translate the principle in sentencing terms, firstly, it may be necessary to establish general pool of rare capital cases. Once this general pool is established, a smaller pool of rare cases may have to established to compare and arrive at a finding of Rarest of rare case.

And finally, the Court acknowledges that even if death penalty itself is constitutional, the manner in which it is being administered currently may not be. After a survey of post-Bachan Singh judgments, this is what it says:

...it is now clear that even the balance-sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. The situation is unviable as legal discretion which is conferred on the executive or the judiciary is only sustainable in law if there is any indication, either though law or precedent, as to the scope of the discretion and the manner of its exercise. There should also be sufficient clarity having regard to the legitimate aim of the measure in question. Constitution of India provides for safeguards to give the individual adequate protection against arbitrary imposition of criminal punishment.

Although these questions are not under consideration and cannot be addressed here and now, we cannot help but observe the global move away from the death penalty. Latest statistics show that 138 nations have now abolished the death penalty in either law or practice (no executions for 10 years). Our own neighbours, Nepal and Bhutan are part of these abolitionist nations while others including Philippines and South Korea have also recently joined the abolitionist group, in law and in practice respectively. We are also aware that on 18 December 2007, the United Nations General Assembly adopted resolution 62/149 calling upon countries that retain the death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty.

India is, however, one of the 59 nations that retain the death penalty. Credible research, perhaps by the Law Commission of India or the National Human Rights Commission may allow for an up to date and informed discussion and debate on the subject.

How often do judges in the Supreme Court call for evidence-led policy making, rather than rely on their own instincting and anecdotal understanding of evidence? One only hopes that the Law Commission and the NHRC live up to this demand.

Two important judgments

Supreme Court yesterday delivered two important judgments. In Union of India vs. Ramesh Ram, the Bench referred the matter to the Constitution Bench. In this case, the question was whether the candidates of the reserved category could opt to be selected under the general category on the basis of their merit, but also opt to be allotted a service under the reserved quota. In other words, whether the candidates belonging to these reserved categories, can have the cake and eat it too. There were certain questions to be considered whether such a course would affect the chances of general candidates not entitled to any reservation, and whether those selected under the reserved quota would lose the right to be considered for the services of their choice. The question whether the reservation benefit can be extended beyond 50 per cent ceiling also came to be considered. This case has earlier been discussed in these posts.

In the second judgment, the Supreme Court appears to have waited till the conclusion of elections in Punjab, lest its judgment used as a campaign issue. Former Chief Minister, Capt. Amarinder Singh has lost his plea that the corruption case against the Chief Minister Prakash Singh Badal be tried outside the State. The Court has held that there is no reasonable apprehension that justice will not be done in this case in the State of Punjab.

Increasing religiosity, materialism and elections

Meera Nanda, in her forthcoming book, God Market: How Globalization is Making India More Hindu, is developing an interesting thesis. It is that the BJP is creating a huge Hindu vote bank. In itself, it is nothing new. But what makes her forthcoming book interesting is how she goes about proving her thesis: she uses data with which we are all familiar, but have not taken due notice.

Meera Nanda is a John Templeton Foundation Research Fellow. Her major works include Wrongs of the Religious Right: Reflections on secularism, science and Hindutva (New Delhi, Three Essays Collective, July 2005), Prophets Facing Backward: Postmodern Critiques of Science and Hindu Nationalism in India (New Brunswick: Rutgers University Press, 2004, Indian edition by Permanent Black, 2005), Breaking the Spell of Dharma and Other Essays,( New Delhi, Three Essays Collective, 2002).

She is in the course of completing two more books: The Vedas as Science: The Strategies and Dangers of Hindu Scientism (to be published by Penguin) and The God Market: How Globalisation Is Making India More Hindu (Random House). Beginning her career as a Science Correspondent with Indian Express in New Delhi in mid-1980s, she later pursued an academic career in the philosophy of science. For her latest book in the pipeline, The God Market, she began to closely observe how increasing religiosity in India is making not-easily recognisable impact on its polity and society. She claims to have data to show that the deeper Hinduisation of the public sphere got a fillip during the NDA regime at the Centre, and later under the UPA Government. Through her book, she challenges the Western thesis that growing materialism makes people become less religious, at least in the case of India. She is also extremely critical of the deemed universities, which began during the NDA rule, and got a fillip under the UPA, for having paved the way for unregulated growth of religious universities. The PEW data shows that religiosity is pretty high in India, and what we are witnessing is a heady mix of State support with such religiosity. In this article in Telegraph, she explores the BJP's first major attempt to create a Hindu vote bank in this election, even while the party pretended that development, not Hindutva, is its plank in this election. Another article which she wrote recently for the New Humanist is here.

Law Commission's report on extreme poverty

Law Commission's 223rd Report on the need for ameliorating the lot of the have-nots has a chapter on the pending petition in the Supreme Court on beggars' human rights. This petition is coming up for further hearing on July 16. Those of us who have had the opportunity to reflect on begging in one of the previous posts may be surprised to find that the report does not refer to the Delhi High Court's celebrated judgment in Ram Lakhan vs. State. Further responses to this report are welcome.

Election Commission's power to countermand elections

The power to countermand elections is an extreme weapon in the hands of the Election Commission to ensure free and fair elections. The ongoing Lok Sabha election has so far not witnessed any countermanding by the E.C. which is a pointer to the credibility of the electoral process. In this news analysis, I examine three recent cases which called for intervention from the E.C., but which led to three different public reactions as to the E.C.'s power to countermand elections.

The age of the discerning voter

On NDTV's discussions on Mandate 2009, Prannoy Roy once made this point that this is the age of the discerning Indian voter. The Indian voter in the 1950s and 1960s was a passive voter, voting the same party back to power again and again. From the 1970s to 1980s he suggested, we had the angry Indian voter, who voted out or elected parties on the basis of emotions and perceptions. Since the 1990s, he said, we have the discerning voter, who exercises his or her franchise after considerable reflection on the strengths and weaknesses of parties and candidates. His neat categorisation of the Indian voter since Independence is compelling, but there have been a few exceptions to this general trend, which makes such categorisation vulnerable. But that need not detract us from our attempt to understand the character of the contemporary voter.

Implicit in this categorisation is the assumption that the arrival of the coalition governments at the Centre since 1996 itself is a pointer to the presence of the discerning Indian voter, who distrusts a particular party or a pre-poll coalition with the ability or competence to govern a vast and plural country like ours. The result is that whichever parties that come to power are always on tenterhooks, having to sustain the support of parties, which are not part of the government, or seek the support of the fence-sitters. The discerning Indian voter here, I would like to infer, is a median voter, who is in a substantial minority, and does not belong to either of the extreme poles in the political spectrum. For this median or the discerning voter, who comes to power or who forms the Government is of little consequence, as long as the policies pursued by the new Government reflect the median position. The parties representing this median voter are the median parties, which may be in a minority, but could decide who form the Government, by extending or refusing support to parties which are not within the reach of majority strength in the Lok Sabha. These median parties may seemingly exercise disproportionate influence, but they give content and meaning to the mandate, which is otherwise very confusing.

How does a discerning voter decide whom to vote? A discerning voter is also an average voter, with limited memory or access to knowledge about omissions and commissions of a party or a candidate. Or the voter may suffer from too much exposure (as happens in the case of live TV coverage of campaigns)to such information, which leaves him or her really confused about the choices. In other words, what is the clinching factor which weighs or ought to weigh in the minds of this voter? Conventionally,in a normal election characterised by absence of dominant issue, a voter tends to vote for a party or candidate, who according to him or her, is likely to win. Bulk of the electorate have this tendency; that is why the winner and the runner-up (and in some constituencies the third and fourth candidates who also gather substantial number of votes, because their voters thought they might win) generally gather a huge chunk of votes polled. Those who vote for a party or a candidate which they know will most likely to lose, do so under emotional influence,or on principles, and are not discerning voters. Discerning voters choose their parties or candidates on various considerations.

India's median parties played a crucial role during the NDA rule, and restrained the BJP's communal agenda significantly, though they were not completely successful in that. During the UPA regime, some of these median parties gravitated towards the Congress, with the Left supporting from outside. Once the Left withdrew support, the role of these median parties became crucial to sustain the Government. But that phase was not long enough to draw enough conclusions about what restraining role they could have played on the Government. In this piece, Siddharth Varadarajan makes the point that after the current general elections, these median parties (he calls them regional parties) could gravitate towards the Left and the Third Front, if they muster sufficient strength. Research on how these regional parties play median role to ensure governmental and policy stability in times of extreme incompatibility between two ideologically-driven political poles is required. The increasing number of regional parties in Parliament has caused anxiety to some, including the Prime Minister. But they may indeed be playing constructive role, if their recent contribution collectively is taken into consideration.

Bhaskar Dutta in this article in recent EPW (The Fragmented Lok Sabha: A case for electoral engineering, April 25, 2009)is pessimistic about increasing fragmentation, saying it has led to corruption, instability, and inability to agree on hard policy choices. He is also led to believe that increasing fragmentation in our legislative chambers simply reflects the growing divisiveness in our society. He, therefore, suggests a legal threshold that only parties obtaining a minimum of 2.5 per cent of the aggregate national vote are entitled to secure a seat in Parliament. But, according to me, the correlation between growing fragmentation and bad governance is not very convincing.

Mayawati and the Constitution

In a recent post, Vikram reflected on Mayawati and the BJP's comments and studies the relationship between Dr. Ambedkar and the Congress. In this engaging article, in yesterday's Indian Express, Vinay Sitapati discusses a Mayawati rally and examines her views on the Constitution. In addition, he argues that 'No other group has leveraged the Constitution the way Dalits have' and that 'the Constitution’s ability to accommodate the intensity of Behenji’s ambition, and variance of interpretation, says something for its elasticity'.

Newspapers Selling Coverage to Candidates

This piece in today's Wall Street Journal highlights the pressing problem of newspapers (mostly Hindi, Urdu, and Gujarati) selling positive or "not negative" coverage to candidates this election cycle. I'm not sure what the law looks like in this area, but it does seem this is something the Election Commissioners Office could step in to crack down on, and the article suggests they may be considering doing this. Otherwise, the newspapers should start warning readers that they are adverts whose articles are up for sale - that just seems like basic consumer protection law.

Justice Arijit Pasayat's legacy

In the U.S., where the voluntary retirement of Supreme Court Judges is rare, Justice David Souter's retirement at the age of 69 merits considerable discussion and debate about the Judge's legacy. But not so in the Indian Supreme Court, where Judges retire every year. That was why after I wrote on the number of Judgments delivered by Justice Arijit Pasayat, who is retiring on May 9, I was surprised to find R.K.Raghavan's article on Justice Pasayat in Frontline, calling him a Model Judge. Readers are sure to find Raghavan completely uncritical in his assessment of Justice Pasayat. Raghavan even defends Justice Pasayat's ruling on Zaheera Sheikh for turning hostile in the Best Bakery case - which,according to Pratiksha Baxi, who guest blogs today, is indefensible. Some of the readers commenting on my previous post were critical of his rulings awarding death penalty; Raghavan, however, sees it as his merit. Despite our disagreements with him on Justice Pasayat, his article is worth reading, for Raghavan, as the chief of the Special Investigation Team probing the Gujarat massacres, has enjoyed Justice Pasayat's confidence and trust during the hearing of the Gujarat carnage case.

Guest post: Talk on Public Law Litigation In India by Dr Surya Deva

Talha Abdul Rahman, a recent graduate of Nalsar University of Law, Hyderabad, currently pursuing post graduate studies (BCL) at the University of Oxford as a Shell Centenary Chevening Scholar, reports on Dr. Surya Deva's talk in Oxford on Public Interest Litigation in India. The presentation slides for the talk are available here. This blog has discussed the issue of PILs here, here and here. Talha's previous guest post on this blog can be found here.

-----------------------------------------------------------------------------------
Civil Procedure Seminar Series for BCL/MJur students had first of its seminar today on “Public Law Litigation in India” by Dr Surya Deva, Assistant Professor, City University of Hong Kong. The primary audience of the seminar was students of Principles of Civil Procedure course lead by Prof. Adrian Zuckerman, but was attended by other students and fellows of University of Oxford. The seminar was partly based on Dr. Deva’s article titled “Public Interest Litigation in India: A Critical Review”.

The seminar began with the introduction of ‘public interest litigation’ (PIL) by outlining the factors that promoted its use as tool to do justice and that enhanced its popularity, and legitimacy of the system. He pointed out that its popularity is linked to the fact that it made justice accessible to poor Indians (while maintaining the impoverishment must not be construed only in economic terms), and made collective/diffused rights enforceable. It unfettered justice from procedural rules that proved as obstacles to access justice.

The second part of the seminar was focussed on tracing the evolution of PIL. The pioneers he pointed out, influenced by American jurisprudence, were Justice Bhagwati and Justice Krishna Iyer. He also summarily pointed out the distinction between public interest litigation and social action litigation as argued by Prof. Upendra Baxi. The former is ‘group’ based, and the latter is issue based (where focus is on getting the justice done) and thus the latter is actually the true nomenclature for PIL in India. He also made a brief reference to Prof. Julius Stone’s work in connection with using the law for social action. He further argued that as opposed to other jurisdictions, PIL in India finds itself deeply entrenched in the Constitutional provisions, and is therefore there to remain. Overall framework of the Constitution of India is conducive to development and invocation of PIL jurisdiction. He noted that the Supreme Court made suitable modifications to the scope and requirements under procedural rules relating to locus standi, filing procedures, cause of action, evidentiary problems and reliefs.

Curiously enough, through a graphic representation he pointed out how the Supreme Court over the years has changed the nature of PIL, and is increasingly addressing issues that concern middle-class Indian such as good governance, and dam construction. This, he juxtaposed with ‘First-phase’ of PIL in 1970s-80s where the Supreme Court was concerned with issues that were close to ‘poor Indians’. He also made a passing reference to “1949 Constitution” which had a provision, about which many do not know, that permitted enforcement of fundamental rights against private actors.

While these observations do have some force, it seems to me that it has been assumed that good-governance etc are issues that relate to middle class and have no relevance for poor Indians. It needs much more analysis. Further, the notion of ‘middle-class’ as being an identifiable class, distinct from ‘poor Indians’ is not entirely free from problems, especially when “poor” has to be construed also in non-economic terms. It is also arguable that rather than replacing issues that it dealt with, the Supreme Court began to expand it jurisdiction to take on board issues which were hitherto addressed with a hands-off policy. Also in attributing ‘class’ to exercise of jurisdiction over issues, one is obliterating the distinction that Dr. Baxi pointed out about Indian PIL – that it is issue based litigation.

He took the audience through a range of issues that the higher courts in India have dealt with under their PIL jurisdiction. Strong issues such as sexual harassment figured, but examples were dominated by rather risible selection of cases, such as PIL on “monkey menace”. It remained unclear that whether such examples were the rule or exception; as that would determine what role Indian courts have assigned to themselves, especially when audience is placed as an outsider in an international class-room setting. It could build a strong case for law reform by anecdote, against which an Australian academic (Prof. Camille Cameron) had cautioned in one of the earlier lectures in Civil Procedure in relation of class-actions.

He submitted that Indian Supreme Court is world’s most active court, may be rivaled only by Israeli Supreme Court, as it has deployed legitimate tools available to judiciary to claim powers that did not belong to it. He exemplified this by reference to judicial appointments, and development of ‘basic structure’.

The Good, the Bad and the Ugly

Dr. Deva pointed out that there has been much good that has been done by the public interest litigation, which he sees as a phenomenon. It revived the lost faith in the judiciary and thus its legitimacy. It was now increasingly to respond to systemic failures, such as lack of education, access to health, education etc. (Though no reference was made to Emergency, but I must take this opportunity to point out that some commentators see rapid development of PIL in India as judiciary’s ‘catharsis’ for its role during emergency). He pointed out that it created an additional forum where the government could be held accountable. In many a cases (environmental law for instance) it triggered legislative machinery to produce law, and did gap filling where required. At this point, a passing reference was made to separation of power. He further said that PIL in India had a “second tier” influence on legal development in the sub-continent, in that, courts of other countries did take note of these decisions by the Indian Supreme Court. This was followed by examples of cases, about which I have mentioned earlier.

As to the Dark Side of the PIL jurisdiction, firstly, he argued that it was capable of, and was in fact being abused. It was being used for surrogate purposes of advancing private or publicity interest using court resources. At this point, he expressed his concerns for excessive liberalisation of locus standi rules and definition of public interest. He also pointed out that PIL was being used to bypass normal route in litigation. (This to me from civil procedure perspective might run foul of ‘abuse of process’ doctrine, where emphasis is not on whether someone fits in text of the law but test is rather the purpose for which it is being used. There could be sanctions/costs implication under the English Civil Procedure.) He agreed that while Indian courts have begun to impose fine, parties generally bear their own costs.

Secondly, that it created an imbalance in allocation of resources. This is a serious concern in any legal system as there are limited resources that have to be used effectively, efficiently and fairly.

Thirdly, judges, he argued, could be motivated by desire of ‘judicial populism’ and to project themselves as crusaders of democracy. While this may have some force, but it must be pointed out that examples given earlier did not engage one in ‘judicial process’, which to me is an inseparable aspect of understanding why court behaved in the way it did.

Fourthly, that the court actually delegitimizes itself by engaging in ‘symbolic justice’ and giving rulings that cannot be enforced. (No distinction however was drawn between ‘progressive realization’ through creeping jurisdiction, and practically unenforceable rulings).

He concluded that there is an urgent need to develop rules to regulate public interest litigation, for it to be utilized effectively and efficiently. Prof. Zuckerman pointed out that we have reached an interesting situation wherein, we had begun to provide direct access to justice with minimum rules as obstacles, and now we want rules to ensure that justice is done. Without rules there is no justice.

This was followed by question and answer session.

In response to a question concerning certain ‘unenforceable directions’, he pointed out that there are no rules for what can be ordered by the Supreme Court as it has power to give ‘appropriate’ relief to do ‘complete justice’, phrases that the courts borrowed from the Constitution. He also pointed out that directions could be unenforceable despite the fact in a collaborative. non-adversarial PIL mechanism government is given full opportunity to place its case. It could be because of resource allocation, or sheer feasibility issues of law enforcement. He pointed out that there are no rules, except expectation that government would behave as model litigant and would not raise mere technical issues to defeat the ends of justice. He cited instances where government was castigated for such a behaviour. He pointed out that the judges have a ‘self-interest’ in not having black-letter rules of law as that would limit their judicial freedom. (At the same time he pointed out that courts in India have interpreted “shall” used in civil procedure to fix time-table of litigation as “may”, giving them power to extend time even when they could not do so under strict reading of the text.) From a civil procedure perspective, this to me, would undermine not only the authority the Parliament that has fixed time-tables to file pleadings, but would also cast doubts on the administration of justice is it issues ‘empty threats’. This is the sort of situation that imposition of sanctions for breach of peremptory orders under civil procedure and Rule 3.9 (Relief from Sanctions) of English CPR aims to address.

He further elaborated on court’s power and discussed its power to take action suo motu, with some reference to principle of Nemo iudex in sua causa (no one should be judge in his own cause). In response to a suggestion from a Dutch student to accommodate “ideological foundation” test to liberalize locus standi rules, he argued for a regime that provided economic disincentive. He pointed out that in 1996 there was a legislative attempt to impose fine for filing frivolous petitions, but it fizzled out in political cloud. In the same breath, he noted that the Supreme Court and High Courts impose fines in appropriate cases which are deposited in court’s treasury – probably recognizing frivolous petitions as injury to administration of justice and causing waste of court’s resources. There is, he pointed out, no costs regime that takes care of such issues. He believes that rules will have to be put in place, and it will have to be seen whether such rules come from courts under its delegated legislative powers, or from the Parliament.

In response to a question of whether the system has been exploited to impose moral policing or as social ordering of female sexuality, he noted that generally this jurisdiction was used to benefit women. Rather vague as it sounds, but the question is such that it calls for much deeper analysis than, I think, is possible in a seminar. He exemplified using sexual harassment cases, and noted that the trend also indicates inclusion of enforcement of rights against private actors using state machinery as surrogate device.

As an Indian student to me, it outlined in simple terms for international students, the broad contours of public interest litigation in India.

(I am thankful to Mr. Tarunabh Khaitan for giving me an opportunity to blog this seminar. I have tried to summarize the seminar on the basis of my notes, and references to Civil Procedure unless specified otherwise are my own observations. Faults, are all my own.)

A critique of tabloidization of law: A Guest Post

We are pleased to publish this guest post written by Pratiksha Baxi, Assistant Professor, Centre for Law and Governance, Jawaharlal Nehru University, New Delhi.


While Professor Pratap Bhanu Mehta’s article has attracted immense discussion, the disturbing issue is not so much that it generated an intense debate about whether he offers an affirmation of Narendra Modi and his fascist government. Nor do we need to labour the fact that Professor Mehta’s legendary broad shoulders enable a critical engagement with his views, unlike other contexts where academics take critique personally especially where academic hierarchies mime judicial hierarchies. Rather there is something extremely provocative in the discussion Professor Mehta’s piece generated which I wish to gesture towards.


First, it is interesting to me that we continue to believe that court reporters are “credible” and therefore, when any one of us makes an honest mistake in believing a journalistic report, we are rightly dismayed beyond words. The genre of court reporting however is important as an object of research precisely because the court reporter records courtroom speech which often does not translate into the legal text. This process of translating at times produces, circulates and displays a ‘tabloid’ picture of law as versus jurisprudential pictures of law framed by “rule of law and cause of truth”. It blurs the distinction between fact and propaganda. Hence, this case acquired a value since it presented an opportunity to convert a specific template about the “fraud” of the activist [used by the Gujarat government counsel] to the universal yet spicy “Truth” about the suffering of Gujarat 2002. Dhananjay Mahapatra’s stories in the Times of India about the SIT Report are an example of the established genre of tabloidization of law. And our writing is already framed by a certain kind of complicity in the tabloidization of law, certainly to the extent we must refer back to the terms of discourse the tabloidization of law forces us to engage with.

Second, the secret document [SIT Report] offered was an irresistible resource to enacting a public dénouement, which could be certified as the Truth in the shadow of the courtroom. Hence, not only was Teesta Setalavad [and all NGOs] guilty of cooking up macabre tales of violence, but Mr Mahapatra also claimed that the SIT report has denied the exterminating sexual and reproductive violence on Kausar Bano among other cases of mass crimes documented extensively by activists. To my mind it is not so important to point out the obvious that the SIT report, a police investigation report, which will lead to several charge sheets, is not the Truth about the event which is yet to be adjudicated in the designated fast track courts in Gujarat. Rather, what is important to ask is why would people believe that the accounts of sexual and reproductive violence which found extensive documentation are an outcome of a pornographic politics of activist [read: feminist] fraud? There is enough writing on how the suppression of the testimonies of sexual and reproductive violence on women’s bodies is manufactured through the very process of state law whereby the riot machinery erases evidence of gendered violence. This has been the biggest obstacle to prosecuting such crimes in Independent India.

We must ask ourselves whether the tabloidization of law rests on extinguishing women’s voices, by making a spectacle of our bodies, and treating our suffering as a myth?

Third, what is it about the Best Bakery trial that haunts every discussion on Gujarat? What does it symbolize? Indeed, how does Teesta Setalavad, the person as versus Teesta Setalavad, the icon interpellate different discourses within “legal struggles” that work towards the “cause of justice” in Gujarat? The answers are too complicated to explore here; however one clear anxiety among academics and activists is how to resist the iconisation of survivors or those who represent them? These questions were especially pertinent since there was no witness protection program available to the survivors: indeed Teesta’s role in proffering a space to Zahira Sheikh was made vulnerable in the first place due to the structural failures of the legal system.

When we gathered support for our petition to the President to release Zahira Sheikh during unjust incarceration for contempt for one year the question that was raised was: what kind of responsibility do activists bear towards traumatised survivors who cannot carry the unbearable burden of courage imposed on them? The critique was directed at those who believed that Zahira Sheikh was lamentably seen as a “bad victim” who deserved severe punishment. This included the media, the court, activists and academics. We were worried about how Zahira Sheikh’s voice was extinguished in different ways.

Is the onus then not upon us to develop a nuance of how the iconisation of victims or those who represent them serves the tabloidization of law? While we need to have a vibrant discussion on the ethics of activists and academics, it will be a sad day if this is framed through the terms of reference of tabloidization of law, thereby forcing us to inhabit inane positions such as pro-Teesta and anti-Gujarat/anti-national; or anti-Teesta and pro-Gujarat/Modi.

Quattrocchi, the CBI, and the Attorney General

The CBI's recent decision to remove Ottavio Quattrocchi from its list of wanted persons has invited much debate on the CBI's impartiality, and the role of the Attorney General who allegedly asked the CBI to withdraw the red corner notice against Q. In yesterday's Indian Express, Dr. Rajeev Dhavan, noted legal scholar, wrote an article presenting an overview of the role of an attorney general and highlighting the importance of the position.

Relations between Dr. Ambedkar and the Congress -- The Constituent Assembly and Beyond

Yesterday, at an election rally in New Delhi, Uttar Pradesh Chief Minister Mayawati accused the Congress party of mistreating Dr. B.R. Ambedkar and ensuring his defeat in the first general elections. A similar allegation was made by BJP President L.K. Advani a few weeks ago. I have not been able to find the full text of Mayawati's speech. However, the "salient points" of Advani's speech have been posted on the BJP President's website. According to Advani:

The Congress party never gave Dr. Ambedkar his due. It defeated him in the first Lok Sabha elections in 1952. A new book by Dr. H.V. Hande, a senior leader of the BJP in Tamil Nadu (Ambedkar & The Making of the Indian Constitution, published by Macmillan) throws light on how Dr. Ambedkar could not find a place among the 296 members initially sent to the Constituent Assembly. A Dalit leader from East Bengal withdrew himself, paving the way for Dr. Ambedkar to enter the Constituent Assembly as a member in his own right. Again, it was Mahatma Gandhi who prevailed upon Jawaharlal Nehru to include Dr. Ambedkar in his Cabinet.

The Congress party promptly hit back at Advani's speech. Home Minister P. Chidambaram accused the BJP of displaying newly minted affection for Ambedkar and referred in particular to Arun Shourie's controversial book, Worshipping False Gods, that was highly critical of the Dalit leader. Without wading into the political dimensions of this debate on Indian history, it would be useful to dispassionately analyze Mayawati's and Advani's contentions based on historical facts that are in the public domain.

Advani basically makes three points: (1) Ambedkar was unable to make it to the Constituent Assembly and someone had to withdraw for him to become a member; (2) it was Mahatma Gandhi who made Nehru inducted Ambedkar into his interim cabinet; (3) the Congress ensured Ambedkar's defeat in the 1952 General Election as there was no love lost between the party and the Dalit leader. Mayawati appears to reprise the first and third point. On the first point, she goes a bit further than Advani in specifically charging the Congress with blocking Ambedkar's entry into the Constituent Assembly, the entity which drafted and adopted our Constitution.

To fully appreciate Advani and Mayawati's complaint about Ambedkar 's membership of the Constituent Assembly, one must understand how that body was constituted. As a consequence of the Cabinet Mission's ill-fated attempt to broker a deal between the Congress and Muslim League, elections were held in July 1946 to the provincial legislatures of British India. These legislatures then elected 296 members to the Constituent Assembly (allocated roughly in the ratio of one to one million). The remaining seats in the Assembly were to be filled by representatives from princely states. Ambedkar was among the 296 members originally elected to the Assembly in 1946 from the provinces. B. Shiva Rao's first volume on the Framing of our Constitution has the original list of these 296 members. Dr. Ambedkar's name is listed as a representative of Bengal.

Ambedkar was the sole representative in the Constituent Assembly of the Scheduled Castes Federation. The Federation won 14 out of the 148 reserved seats in the 1946 provincial elections. Its poor performance was due to several reasons including high property qualifications for voter registration that disenfranchised most Dalits; the Congress party's superior electoral mechanism and zeal to ensure its candidates were elected from reserved constituencies; the joint electorate system after the Ambedkar-Gandhi Poona Pact; and the fact that many Dalit leaders had already joined the Congress.

In the Constituent Assembly, Ambedkar joined 29 other Dalit members many of whom elected under Congress tickets. Most of the Congress Dalits were associated with the All India Depressed Classes League led by Jagjivan Ram. Ambedkar was elected by the undivided Bengal legislature with five transferable votes (a minimum of four was required). The Scheduled Castes Federation did not have five members in the Bengal legislature. Therefore, it has been speculated that the votes for Ambedkar came from Anglo-Indian members, independent members who were Dalits, and possibly even the Muslim League.

Ambedkar was forced to seek election from Bengal, a province he did not have much connection with, because he lacked the requisite support in his home province of Bombay. Throughout the 1940s, Ambedkar and the Congress clashed bitterly over the issue of Scheduled Caste rights and representation. Ambedkar was an unyeilding critic of the party's positions on many issues, which he believed were enimical to the Scheduled Castes' interests. Therefore, Patel personally directed the Bombay Congress to select strong Dalit candidates who could defeat Dr. Ambedkar's nominees. Despite this political enimity, once in the Constituent Assembly, Ambedkar worked closely with his Congress colleagues in formulating and drafting our national charter. His cooperation and professional approach to the task led many Congressmen to soften their opposition to him, with some believing that he had acceptably moderated his previously radical positions.

This thaw between the Congress and Ambedkar stood the latter in good stead. Under the partition plan, Ambedkar lost his Assembly seat because Bengal was divided and fresh elections for the Constituent Assembly were to be held in West Bengal. When it became apparent that Ambedkar could no longer continue in the Assembly, the Congress high command decided that he was too valuable to lose. M.R. Jayakar, a jurist from Bombay, had resigned from the Assembly, and his place was to have been filled by G.V. Mavlankar. The plan was for Mavlankar to preside over the Constituent Assembly when it functioned as the central legislature for the Indian dominion from 15 August 1947 (Rajendra Prasad was in the cabinet and could not preside over the legislature). But the Congress party decided it would rather have Ambedkar fill Jayakar's place to ensure his continuance in the Assembly.

To that end, on June 30, 1947, Rajendra Prasad wrote to B.G. Kher, the prime minister of Bombay, directing him to have Ambedkar elected to the Assembly on a Congress ticket. Prasad explained that it was important to ensure that Ambedkar continued in the Assembly:

Apart from any other consideration we have found Dr. Ambedkar's work both in the Constituent Assembly and the various committees to which he was appointed to he of such an order as to require that we should not he deprived of his services. As you know, he was elected from Bengal and after the division of the Province he has ceased to be a member of the Constituent Assembly. I am anxious that he should attend the next session of the Constituent Assembly commencing from the 14th July and it is therefore necessary that he should be elected immediately.

Besides Prasad, Sardar Patel was also closely involved in the effort to ensure that Ambedkar remained in the Assembly. On the same day as Prasad wrote to Kher, Patel spoke to the Bombay Premier, who was not the greatest fan of Ambedkar, and urged Kher to take prompt action to ensure Ambedkar's election to the Assembly. The next day, Patel tried to pacify Mavlankar by explaining that Dr. Ambedkar's election required "earlier action" since there was only one vacancy available. Patel told Mavlankar that "all people here feel that [Ambedkar's] attitude has changed and he has been a useful Member in the Committee." He advised Mavlankar that "there [was] no hurry" about his election and promised that the Congress would arrange for his election through another vacancy that would occur after a short time. Patel reiterated this position in a letter on 3 July 1947 to Mavlankar in which he noted that "everybody wants [Ambedkar] now." The rapprochement between the Congress and Ambedkar was complete when Ambedkar returned to the Assembly in July 1947 greeted by loud cheers.

The best evidence in support of Advani's second point about Ambedkar being admitted into the interim cabinet due to Gandhi's urgings is Shourie's book. In it, Shourie quotes Jagjivan Ram's widow who claims that Ambedkar requested Jagjivan Ram to lobby Gandhi for a cabinet berth. Interestingly, in Ambedkar and Untouchability, Christoph Jaffrelot also seems to agree with Shourie on this issue, although much of Jaffrelot's book is devoted to rebutting Shourie's criticism of Ambedkar. Quoting his own sources, Jaffrelot states that Gandhi was behind Ambedkar's admission into the cabinet and specifically notes that Nehru was not particularly inclined to Ambedkar.

But the idea that it was Gandhi who was instrumental in ensuring Ambedkar's entry into the Cabinet is not universally shared. Mountbatten who gave Nehru plenty of unsolicited advice about whom to include and exclude (Mountbatten wanted neither Rajaji nor Prasad) seemed pleasantly surprised at Ambedkar's inclusion. But he does not reveal who sponsored Ambedkar for a cabinet position. Valerian Rodriguez in his very useful compilation of Ambedkar's writings argues that purported intervention of Gandhi on Ambedkar's behalf is yet to be fully corroborated. And an early Ambedkar biographer, Dhananjay Keer believes that Ambedkar was included in the cabinet through the collective efforts of Sardar Patel, S. K. Patil, Acharya Donde, and Nehru. Gandhi only granted formal approval for this plan when it was presented to him by Nehru.

Advani's third accusation (repeated by Mayawati) is facially correct. A Congress candidate did defeat Ambedkar in the 1952 election for the Bombay North Lok Sabha seat. However, it is important to note that the victorious candidate, N.S. Kajrolkar, was a Dalit as well and the constituency was a reserved one. Ambedkar faced the electorate just after he resigned from the Union Cabinet because of differences over the Hindu Code Bill.

While Ambedkar was still in government, the Bombay Provincial Congress Committee actually considered entering into an electoral alliance with Ambedkar's Scheduled Castes Federation. In fact, according to the veteran Congress leader S.K. Patil, the party kept a seat vacant for Ambedkar until the last moment. However, all bets were off after Ambedkar's party entered into an alliance with the Socialist Party. Oddly enough, Kajrolkar later confided to President Rajendra Prasad that Ambedkar lost the election because he did not get the Socialists' support. Ambedkar was subsequently elected to the Rajya Sabha in 1952. But he was defeated in his second attempt to enter the Lok Sabha through a 1954 by-election from Bhandara constituency. Ambedkar took this defeat in his stride. In fact, he learnt about it while on a visit to Rangoon.

Dr.Binayak Sen's bail:Latest from Supreme Court

The Supreme Court Bench (Coram: Justice D.K.Jain and Justice Sudarshan Reddy)heard Dr.Binayak Sen's bail plea today, after admitting his SLP. Justice Jain asked Ram Jethmalani, Sen's counsel, as to whether there has been any change in the circumstances since the last decision of the Supreme Court rejecting his plea. Ram Jethmalani replied that the whole case has been demolished, and the last witness has testified. He is not likely to abscond, Jethmalani told the Bench. "All material witnesses have been examined" he told the Bench. Thereupon, the Bench issued notice to the Chhattisgarh Government to file its reply within two weeks. When Jethmalani was concerned about the impending summer vacation further delaying his release on bail, the Bench appears to have told that the case could be heard by the vacation bench. Jethmalani again requested the Bench to let him have his heart examined by the doctors whom he trusts at the CMC, Vellore, as he put it, after all, in matters of heart, the patient should trust the doctor. But the Bench did not relent, and asked the State of Chhattisgarh to provide him the best possible medical care for his heart ailment. The Bench should have known why Dr.Sen distrusts the State Government's medical assistance. Read this appeal from his wife, Ilina Sen. Read and follow this site, for further information on the Court proceedings today.

Making Sure Prosecutors Act as a Check on Government

In this recent piece in the Indian Express I argue that India needs more strong and independent prosecutors to help address the continuing governance gap. I wrote the piece for a couple reasons. First, I feel that the government's prosecution apparatus is under-studied and theorized. Whether it's the CBI, the AGs office, or the state pollution control boards not enough is known about what drives prosecution decisions, nor is there sufficient public scrutiny in this regard. Second, prosecutors could act as an important check on government agencies, but all too often do not. This is a missed opportunity in the quest to make sure that law is properly implemented against citizens and the government.

One of the statistics that peaked my interest in this topic, but I did not have space to include in the article I came across when doing research on the state pollution control boards. If you do a Manupatra search you will get 12 cases in the Supreme Court in which a state pollution control board was a primary party. If you type in MC Mehta you get 119. Now this statistic may be misleading for a number of reasons - state pollution control boards were probably a secondary party in a number of other cases, many of the cases go through the appellate authority and so never enter the normal legal system, etc. Still, it brings home that these boards (like most prosecution agencies in India) aren't exactly pushing the law forward.

Contempt case against Gujarat Chief Minister

The Gujarat Chief Minister, Narendra Modi, has another hurdle to face (in terms of ethics and propriety), before and if at all his party gets the mandate to project him as the next-to-next PM-in-waiting. The contempt petititon filed against him by Prashant Bhushan is to be heard by the Supreme Court next week. In this news analysis in Business Line, I answer the critics who call the Supreme Court's directive to SIT to probe the allegations against Modi ill-timed, and I also quote Prashant Bhushan. Meanwhile, we wish the Supreme Court's attempt to extend fast track justice to the carnage victims all success.