Sunday, May 31, 2009
Friday, May 29, 2009
*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.
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?
Thursday, May 28, 2009
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)
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.
Wednesday, May 27, 2009
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.
Tuesday, May 26, 2009
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).
Monday, May 25, 2009
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."
Sunday, May 24, 2009
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.
Saturday, May 23, 2009
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.
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.
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.
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.
Friday, May 22, 2009
Wednesday, May 20, 2009
"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]
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.
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.