Friday, January 29, 2010

Post for Research Associate at Accountability Initiative, CPR

Accountability Initiative, an excellent initiative at the Centre for Policy Research, New Delhi, is looking for a Research Associate.

The initiative has three core program areas: Research - The current research is focused on understanding the role of civil society in placing accountability demands on the state. New areas of research include state capacity and its implications on accountability; Policy Research - To assess the nature and shape of the institutional structures for the delivery of basic services; Action Research - To collect data and information and develop tools to analyse public expenditure for basic service delivery with the objective of promoting transparency and accountability in public expenditures for core social service.

Candidates with at least a masters degree in the social sciences or pubic policy and at least 2-3 work/research experience can please send their CV and a writing sample to info@accountabilityindia.org. Please note, only shortlisted candidates will be contacted.

Thursday, January 28, 2010

Our Supreme Court at Sixty

This has been a week of anniversaries. Last Sunday marked sixty years since the Constituent Assembly met for its final session and members signed the Constitution. The Election Commission observed the sixtieth year of its existence on Monday. And on Tuesday, with parades and fanfare, we commemorated six decades of our nation's existence as a Republic. To paraphrase Nehru: “events crowd in upon us and because of their quick succession we are apt to miss their significance.”

Nehru had the 26th of January 1950 in mind. But his words apply with greater force to the 28th of January, which marks the diamond jubilee of the our Supreme Court's inauguration. That jubilee is celebrated by the Court's bench and Delhi's appellate bar. But most opinion editorials and newspapers remain unaware of, or have chosen to completely ignore, the event. This is disappointing and depressing especially because it is an opportunity to ponder and reflect on the Court’s role and record at the helm of the world’s largest constitutional democracy. It is difficult for one blog post or column to make amends for that neglect. In what follows, I deal only with a few random reflections on the Court's anniversary. It is not too late for others to join me in this endeavour.

As a threshold matter, there is an unmistakable symbolism in the fact that our Supreme Court was created on 28 January 1950. Under a plan devised by our founders, the creation of an apex court was among the first official acts of the newly formed republic. Yet, the Court was not born on a clean slate. Rather, it was built over an existing foundation of laws and legal traditions that were distinctly colonial. The basic pillars of that colonial foundation were the high courts. The oldest of those high courts – the charter high courts of Bombay, Calcutta, and Madras – were established almost ninety years before the Supreme Court was inaugurated. These high courts were deeply influenced by British legal and judicial conventions. They decided cases by applying codes and statutes framed by English utilitarians and supplemented them with English common law. The high courts’ traditions were continued by the federal court established in 1937 pursuant to the Government of India Act of 1935, which formed the legal basis on which British ruled India during the last phase of their residency in the sub-continent.

Upon its creation, the Supreme Court adopted incorporated several distinct elements of the existing legal framework. After all, most of the Supreme Court’s early judges had served in British Indian high courts and the federal court or had had their legal training in England. Yet, the Court developed a distinct judicial character as an institution committed to upholding India’s constitutional demos. The early justices of the Supreme Court were largely uninvolved in the freedom struggle. But they were acutely were aware that they were operating under an autochthonous constitution – a rich brew with many foreign ingredients but stirred and served entirely by Indian barristas. Therefore, slowly, but surely, the Supreme Court began to invoke their extraordinary powers and significantly wide bases of jurisdiction under the Constitution to forge a unique judicial process for itself.

Our Court’s principal role is to interpret the world longest written constitution. As a constitutional court, the Court arbitrates and resolves disputes between different branches and institutions of government over the meaning and implications of the constitutional text. It also serves as the principal guardian of India’s bill of rights with the power to grant direct redress for infractions. Yet, our Court does not conform to Hans Kelsen’s model for an exclusive forum to resolve constitutional questions adopted in much of Europe. Our Court is both a constitutional court and an ordinary appellate forum. It hears both constitutional matters and ordinary cases. Recent research has revealed that there was a secret proposal floated in 1931 to establish two distinct apex courts for India. The federal court would handle jurisdiction for constitutional questions, while the supreme court would deal with other appeals and cases. But this proposal was resisted by Maurice Gwyer, who later became the Federal Court’s chief justice. Gwyer argued that establishing two distinct appellate bodies would impair the credibility and quality of both.

A second departure from the Kelsen-inspired European model of constitutional adjudication is that our Court does not enjoy the sole prerogative to interpret the Constitution. Rather, it shares its constitutional competence with the twenty-one high courts that are also empowered to identify and rule on constitutional questions. This has helped to mitigate differences in popular legitimacy between the apex court and the rest of the judiciary, a phenomenon frequently observed in other jurisdictions.

A fact often ignored by many scholars and commentators is that, unlike other appellate bodies including the US Supreme Court, our Court is not constrained by any federalism principles. Unlike our legislative and executive branches, the judiciary is a single, unified entity whose authority remains unpartitioned between the centre and the states. We have a single Supreme Court, which is not bound by the elaborate division of subject-matter competences between the Union and the states. On account of its wide appellate jurisdiction and its ability to directly deal with fundamental rights violations, the Court’s jurisprudence is rich and varied and its institutional history is so dramatic. As Bert Neuborne writes, it can justly lay claim to being among the most interesting and important constitutional courts.

At its normative core, our Court broadly reflects the German concept of Rechtsstaat -- a system of government based on law that guarantees equal protection for all citizens and where government decisions may be challenged in court. Yet, as Upendra Baxi dramatically announced in his classic, the Indian Supreme Court and Politics, our Court is, and as always has been, a distinctly political entity. Many Indian lawyers and if I may say with great respect, judges tend to react with great “shock and awe” at this assertion. However, it is hard to deny the fact that the Court’s decisions and rulings have greatly influenced Indian politics and public life and it, in turn, has been heavily affected by the political and electoral process. These are really two sides of the same coin, as Pratap Bhanu Mehta explains in his influential essay on the Indian judiciary. In my view, there are two key constitutional developments that led to this situation.

Under its original design, the Court was to operate under a system of checks and balances to prevent concentration of power in a single governmental institution. However, in an early case, Ram Jawaya Kapur, the Court argued that India’s constitution did not embody a strict Montesquieu-ordained system of separation of powers among the trinity of the legislature, executive, and judiciary. Instead, the Court reasoned that the Constitution called for only a broad separation of functions among the three branches. The Court also took the view that it was inevitable that there would be some overlap among functions exercised by each branch. In certain situations, it was possible that one branch could exercise prerogatives that naturally belonged to another. To my mind, it is this somewhat neglected idea of “fungible functionality” that constitutes one of the key theoretical underpinnings of the Court’s emergence as a key institution in Indian politics and life.

Besides endorsing the possibility of functional overlap, the Court in Ram Jawaya Kapur also noted that had India adopted the Westminster system of parliamentary governance. Under that system, although the cabinet or council of ministers constituted the executive branch, the ministers were also required to be members of the legislature where they enjoyed majority support. Quoting Bagehot without proper attribution (a disease so endemic in our judicial system), the Court likened this set up to “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.” As a consequence, the cabinet enjoyed virtual control of both legislative and executive functions.

Now, it was theoretically possible that the indirectly elected president could offer an inbuilt check against any potential for tyrannical abuse by an all-powerful cabinet. However, the Court effectively shut the door on that possibility in Shamsher Singh by holding that the president is a nominal head of the executive government. According to the Court, the president must exercise virtually all of her constitutional responsibilities only on the aid and advice of her council of ministers. The unarticulated major implication of this conclusion is that there is virtually no check on the powerful executive constituted, as it is, from the majority of the legislature. Acting on the Court’s ruling, parliament amended the Constitution in 1976 to emphasize the president’s titular nature. This meant that there was virtually no check against an executive that commanded an absolute majority in the legislature. Ironically, the Court later felt compelled to step into that void and resisted attempts by the executive to overreach.

The Court’s dominant role as a key national institution evolved over a period of time. During the first two decades of its existence when Prime Minister Nehru was in power, the Court largely stuck to its traditional role of adjudicating legal and constitutional questions in relatively positivist tones. The Court’s decisions, notably on free speech and property rights, did arouse some criticism. Judges were accused of being insufficiently attuned to the need for massive redistribution of land and the need for the state to control the commanding heights of the Indian economy. Parliament sought to overturn the effect of some judicial decisions by enacting amendments to the constitution. However, the Court largely remained out of the political thicket, so to speak, and most of its decisions were grounded in black-letter law and principles of textual interpretation.

This changed dramatically with the Court’s decision in Golak Nath in 1967. Clearly anxious about the future of India’s constitutional democracy in a post-Nehru era, the Court drew a line in the sand in Golak Nath over repeated attempts by parliament to interfere with its rulings. It declared that parliament was not competent to amend the fundamental rights enshrined in the Constitution. That decision – and some others that followed it – were much criticized especially in parliament and by many legal scholars. The government responded aggressively with a faux articulation of a socialist agenda. That agenda required, according to the government’s key spokesmen on the issue a “committed judiciary” or a set of judges devoted to the executive’s agenda rather than some abstract constitutional or legal theory. Ultimately, the Court was forced to overrule Golak Nath in Kesavananda Bharati. At the same time, the Court insisted on retaining some limitations on parliament’s amending power. Through its basic structure doctrine, the Court declared that parliament was incompetent to amend the essential or basic features of the Constitution. What those basic features comprise remains an ever-unfolding jigsaw puzzle.

Shortly after Kesavananda was decided, the Court faced an enormous institutional crisis. The Allahabad High Court set aside Prime Minister Indira Gandhi’s election in 1975 on largely technical violations of the election code. In response, Mrs. Gandhi imposed a national emergency in which she jailed political opponents and dissidents and suspended the courts’ power to enforce civil liberties. In a notorious acquiescence to the government’s position, a majority of the Court agreed with the government’s position and upheld the suspension of habeas corpus and other fundamental rights during the emergency. It was the Court’s darkest hour and one that stained its reputation considerably.

After the emergency ended, the Court sought to atone for its capitulation. It quickly unveiled its own “liberation theology” of the judicial function and constitutional rights. It reshaped the content of Indian constitutional law, particularly emphasizing the rights of the underprivileged and dispossessed. To quote Upendra Baxi, the Court began to take “suffering seriously” and encouraged the public interest litigation movement through which activists petitioned the Court to take up unorthodox causes and cases. The Court spoke up for residents of mental asylums, championed better conditions in Indian prisons, highlighted the plight of street dwellers, and strengthened the rights of criminal defendants and under-trials and those arrested.

During this time, the Court also fashioned the concept of “judicial independence” – the autonomy of courts from the legislature and the executive. Judicial independence is a value that the Court has emphatically asserted and assiduously transformed into a profession of Indian “constitutional faith” to use Sanford Levinson’s term. Invoking the powerful descant of “judicial independence,” the Indian Court boldly went to areas in which few of its cohorts dared tread. Besides declaring constitutional amendments unconstitutional, the Court scrutinized presidential actions, including the president’s power to pardon those on death row, arbitrated competing claims for political office, and campaigned against the influence of crime in politics and elections, and banned general strikes and smoking in public with a stroke of its mighty pen.

The Court reached the zenith of its influence in the early-to-mid 1990s, when India was ruled by minority and loose coalition governments. They operated within fractured and so-called hung legislatures and there was considerable political instability. During this time, the Court considerably expanded its jurisdiction and consolidated its powers. Its major decisions included the landmark Third Judges Case in which it radically reinterpreted the constitutional provisions on judicial appointments; the Indira Sawhney Case in which crafted a carefully balanced ruling on the use of affirmative action in government jobs; and the Bommai Case, in which it imposed restrictions on the federal government’s power to remove state governments for unconstitutional conduct.

In its Unnikrishnan decision, the Court considerably expanded the scope of the bill of rights to include a fundamental right to education, which in turn led to a national movement to recognize this right. And following that judgment, for almost a decade, the Court virtually managed technical and medical educational institutions across India -- setting fee structures, deciding which students would be admitted, and fixing dates and criteria for entrances examinations and tests. Finally, the Court engineered sweeping environmental reforms – shutting down polluting tanneries, imposing norms for beach-sites and coast lines, ordering massive environmental clean-ups, calling for improved standards in blood banks, and raising pollution standards for Delhi cars and buses. In these and other cases, I would argue, the Court bargained and largely secured for itself a position of "cohabitation" with the executive and legislature on important matters of governance and administration that affect the lives of the Indian people.

In recent years, the Court has become a large national clearing house for ideas, controversies, disputes, and dilemmas – both large and small – that arise in the daily hustle and bustle of India’s democracy. On some days, the Court resembles a big think tank where ideas and propositions are exchanged, debated, and discussed. But the Court is no ordinary think tank. Its power of the pen; its ability to enforce its orders and sanction non-compliance; and its power to punish for contempt give it enormous leverage to influence legislation, policy, and public debate. As Manoj Mate has pointed out, our justices often take advantage of elite opinions to mount extraordinary challenges to government authority. He points to the Vineet Narrain Case, where the Court effectively delinked the CBI’s single directive and indirectly contributed to the fall of Narasimha Rao’s government.

Yet, with all this power and influence, the Court is still a populist court with a real and direct impact on the lives of India’s billion people many of whom have become its loyal constituents. The Court’s “ideology of popular justice,” to use Neelan Tiruchelvam’s phrase, has left virtually no area of Indian life untouched. Through its central location and All India reach, I would argue that the Court has slowly begun fostering a strong sense of “constitutional patriotism” that Jurgen Habermas has advocated should displace ethnic nationalism. Moreover, with every intervention it makes, the Court builds expectations among a growing following, including the print and increasingly assertive electronic media, whom I might say, again, with respect, the Court has skillfully and assiduously courted. As a consequence, judicial intervention in matters important and mundane is widely accepted as part of the liberal la pence unique.

Even so, there are serious doubts expressed by well-meaning persons about whether the Court has the institutional capacity and practical competence to properly discharge its large number of functions. For instance, some sitting members of the Court have vociferously argued that the Court must put a halt to its judicial activism. In a stinging critique of the Court’s handling of forest policy, Armin Rosencranz argues that the Court’s micro-management has weakened the capacities of central and state environmental agencies and produced questionable jurisprudence. One also wonders what law-and-order jurisdiction the Court relied on to recently threaten the arrest of activists and derecognition of political parties blocking a highway to Sikkim.

At the same time, the Court has shrewdly played its cards even with respect to judicial activism and, as Pratap Bhanu Mehta puts it, it carefully reads popular and political tea leaves in making its decisions. For instance, taking note of public outrage, the Court quickly dismissed appeals from the convicted murderers in the famous Billa and Ranga Case and asked the president to expeditiously deal with their mercy petitions. Furthermore, in the area of national security and anti-terrorism, where the Court has consistently upheld draconian criminal and preventive detention laws that make significant departures from established criminal procedure requirements and constitutional protections. Here, the Court has chosen not to spend any political capital and largely ignored the gross human rights violations and abuses alleged to have been committed during counter-insurgency and military operations. And the Court was mostly uninvolved in some important constitutional controversies, such as whether Hindi should be the Union's sole official language; ironically it was the political process that ensured that English would continue to be used for official purposes even though the Court was the only major national institution to function entirely in English.

* * *

An anniversary is as much about the past as it is about the future. Therefore, as the Court enters its seventh decade, I would like to briefly reflect on some key challenges that it must confront if it has to improve its impact and effectiveness.

First, our Court needs to adopt more jurisdictional and prudential limits and resist the temptation to take more cases than it can adequately handle. For reasons too lengthy to elaborate here, I'm against the proposal to establish a separate constitutional court. Structural and institutional compulsions impede the Court from adopting the US Supreme Court’s en banc handling of every case. Our Court will have to continue to assemble in benches to hear and dispose cases. Even so, the Court could tighten its admission standards and take only those cases presenting a significant and pressing constitutional or legal issue. Perhaps, the Court could adopt a variation of the European subsidiarity principle by emphasizing the need for cases to be more thoroughly determined by high courts before they are taken up on appeal.

Second, the Court needs to strengthen the jurisprudential foundations of some of its leading doctrines and clarify limits. For instance, with respect to its leading doctrine of basic structure, the Court’s multiple rulings on the subject have rendered the core meaning of that doctrine hazy and inconsistently applied it to different context. In this area, the Court is -- to be borrow H.M. Seervai’s phrase from another context -- “wandering about in a maze of its own creation.”

As a related point, the Court now produces at least ten-eleven volumes of law reports every year. This is a lot for any court, especially the highest court in the land. Our Constitution says that the “law declared” by the Supreme Court shall be binding on all courts. What constitutes “law declared” is a Talmudic puzzle that would distract me from completing this already very long post. But the Court still declares a lot of law every year. This excessive amount of judicial wisdom is bound to result in some form of “system overload” sooner rather than later. It is, therefore, incumbent upon the Court to seriously reflect whether it can reasonably expect full compliance with the law that it declares especially if its annual output equals, if not exceeds, the legislation enacted by parliament and the states.

Third, as an institution, the Court is a judicial monastery comprising 30 judges headed by the Chief Justice of India. The Chief Justice is primus inter pares, i.e., first among equals, among the judges in judicial matters. He -- and Indian chief justices have only been men so far -- is also the pater familias of the sprawling Indian judicial system. Since 1993, the Supreme Court has adopted a practice under which the collegium comprising Chief Justice of India and a select group of senior judges play a decisive role in appellate judicial appointments. There are few other countries where the judiciary has this prerogative and, as the Dinakaran episode reveals, serious questions have been raised about the effectiveness and transparency of this arrangement. Sadly, this lack of transparency is reinforced by the Court’s apparent refusal to accept the Delhi High Court full bench ruling on the Right to Information Act. Last week's headline said it all: “SC to Appeal [To SC] Against HC.”

Finally, promoting diversity on the bench is a major challenge for the Court. It is acutely distressing that the present Court has not even a single woman on it. The Court also needs greater representation from Scheduled Castes and Scheduled Tribes, who have been historically under-represented on the Court, even though a blind quota system would be destructive to its cohesiveness and functioning.

(These views are expressed solely in my personal capacity and do not constitute the views of my employer).

Wednesday, January 27, 2010

Supreme Court Access and Backlog

There is a story told in India about access to the Supreme Court: That it is broad, that it reaches out to the downtrodden. As a result, many have the image of a Court backlogged with petitions by poor and ordinary Indians. In this piece (highlighted earlier today by Venkatesan) in this issue of Frontline I try to show this isn’t true. The Court is backlogged, but it’s primarily from cases from wealthier Indians. Although wide access to the Court is often justified in more populist terms, the resulting access can generally only be used effectively by those with money. There are exceptions, but the point is that they are exceptions.

The Court doesn’t keep statistics on the wealth of litigants, but it does keep track of other relevant criteria which I try to use in this article to extrapolate the wealth bias at the Court – i.e. the types of cases brought, where they are brought from in the country, how many letter petitions are actually accepted, etc. These statistics help show the Court has mostly become another appeals court for those with money, a situation that has been obscured from view by this rhetoric that the Court is a “People’s Court”.

Now I don’t blame the wealthy, or those appealing, for this state of affairs. This (mostly) isn’t a story about fat cats gaming the system in any sort of systematic way. The Supreme Court may be out of reach for most of the poor, but the rich don’t want to be there. As a class, they would rather have final and competent justice at a lower level of the judiciary. Having to appeal to the Supreme Court adds cost and wastes time that is not in the interest of the wealthy as a group.



Instead, the story seems to be more about dissatisfaction with the lower judiciary (i.e. High Courts) and capture by the legal complex (i.e. bar and bench). The dissatisfaction thesis is likely only part of the answer though because as I show in the article appeal rates are often the highest from High Courts that many feel are the most competent. Rather, it seems that much of this can be explained by judges who get roped into taking cases they probably shouldn’t from lawyers, particularly top senior advocates.

The Economic Times reported that top lawyers charge Rs.3 to 5 lakhs for their five minute admission day appearances. The market clearly seems to be speaking here, and speaking in a troubling way. Little legal ability is needed for most of these admission appearances, so it’s hard to say that it’s a question of limited talent driving up the prices. It seems more about the relationship with judges and status these lawyers have. The lawyers have little incentive to change this part of the system, and so although you see many op-eds by top advocates in the papers about reform they rarely promote fewer cases being taken by the Court. The judges themselves come out of this same culture (since most of them were advocates at one point) and so they don’t have much incentive to change the system either, and I think genuinely worry about the backlash they would face from advocates if they tried. So, hope of internal reform seems dim and attempts by outside political forces to reform the system would be perceived or labeled as tampering with judicial independence (plus, there are few natural constituencies to push for this from the outside).

Still, at some point the protective rhetoric (i.e. we are taking all these cases for the sake of the poor) begins to break down, especially with the Court being perceived as becoming more middle-class/wealthy biased. Reform then becomes more pressing. However, reform might not be limiting the number of cases from wealthy litigants that don’t really raise substantial legal issues. Reform could simply mean expanding the Court to cassation benches around the country, making it more accessible to those of more moderate means, but keeping intact the appeals by thousands of wealthier litigants that drive the political economy of the bar.

Curb Their Enthusiasm

A recent United States Supreme Court opinion in the case of Citizens United v. Federal Election Commission, reminded me of the “antidistortion” argument involving campaign finance questions under the First Amendment. The court (pages 35-36) rejects the rationale that wealthy corporations should enjoy diminished first amendment rights on account of their ability to “distort” public opinion. While I’d refrain at this stage from expressing any view either way on this holding, the opinion does make me question the distinction we tend to draw between commercial speech and regular speech. Commercial speech receives less than first amendment protection for several reasons – its ability to distort viewpoints, its lower “value” in merely proposing a commercial transaction as opposed to making a political argument, or even the ability to have its veracity more readily ascertained as distinguished from opinion based political speech. However, consider the newspaper business in India: in my understanding, newspaper companies tend to make a loss per copy sold, and revenue streams are generated primarily from advertisement. What this means is that the established newspaper corporations in India, the bastions of high value “political speech”, owe their existence to commercial speech. Does this mean that we have to be suspicious of political speech as well – in other words, must we fear that corporate advertising may tend to “distort” political speech?

The “antidistortion” argument usually assumes that the substance of the message is more important than the intensity of the microphone. Would an antitrust policy which focuses on limiting the size of media houses specifically be justified on grounds of dampening the intensity of powerful media microphones?

From Frontline's latest issue....

1. My article on the challenges to Supreme Court's opaque functioning & why the Supreme Court Collegium is wrong in asking the Government to keep the Dinakaran recommendation in abeyance.

2. Nick Robinson's survey of the Supreme Court’s docket finds a court overwhelmed by petitions from those with money and resources.

3.My review of Subhash Kashyap's two volume history of Indian Lok Sabha wherein I pose the question whether our Constitution makers intended a partyless democracy. I also compare Kashyap's study with Sunil Khilnani's analysis.

Tuesday, January 26, 2010

Can rural reporting be “sexy”?

The FMP’s seminar on the subject on January 25 provoked a good deal of discussion on various dimensions of rural reporting and on the merits of the use of the word “sexy” by the organisers to provoke the debate. It was pointed out that the word ‘sexy’ was just a metaphor, a professional jargon or a substitute, to make rural news newsworthy. In another sense, it was a pun intended to mock at journalists who believe rural news does not qualify as news, because it does not appeal to urban readers. Development thinkers and media professionals exchanged notes on the current state of rural reporting.

The Outlook Editor-in-chief Vinod Mehta asked why the Corporate India has not been exposed in the media. The advertisement cake is growing, but many publishers have no advertisement tariff card, as the rates are negotiable. There are more television channels in India than what one would expect during recession. He asked how is India beating the trend.

Covering rural India requires money and many publishers don’t want to spend money in covering rural India. One way is to try and connect rural and urban India. Obviously, there is a connection. Take Naxalism, for example. The Union Home Minister, Chidambaram today is an urban hero. You have to freighten urban readers, in order to write about rural grievances which nurture Naxalism. He said media should not underestimate the ignorance of readers. They should explain, for example, why we can’t have efficient delivery system – the main criticism against social sector spending. Politicians, he believed, have a vested interest in keeping it weak, to sustain patronage.

Mehta’s largely pessimistic tone was, however, challenged by the speakers who followed him. They pointed out that the NREGS has enhanced purchasing power in rural India, which should keep the corporate sector smiling. Therefore, corporate sector cannot argue that rural news is not newsworthy. NREGA has contributed to enhancing minimum wage in some States, pointed out Union Minister, C.P.Joshi. Migration in search of jobs has come down following the success of NREGA, he suggested. We need to compare agricultural production before and after NREGA, he said. People are interested in rural news, and there is a vast potential, he believed.

Aruna Roy questioned about non-productive assets in banks, and why media is not writing about it. Jean Dreze believed there is a huge disconnect between media and people. He recalled that when NREGA was enacted, Parliamentarians simply ignored the sustained media campaign against it, and succumbed to the enormous popular demand in its favour. Even today, he said there is superficial investigation of corruption in NREGS. He cited several instances where the corporate hold on media has been defeated.

Sunita Narain saw a parallel between what is happening in India to what has happened in the U.S. In the U.S., people don’t believe newspapers, which don’t play the role which they are supposed to play. There is lack of discourse in the U.S.media, due to corporate control, she said. The media have to tell the story as it happens. Connection between rural and urban news interests can be made, if the media discover facts, which requires time, money and privilege, she suggested.

The seminar was ably moderated by Vipul Mudgal.

Is the Basic Structure Doctrine counter-majoritarian?

Guest Blogger: Rohan Alva, II Year, Campus Law Centre, Delhi University.


[Synopsis of the lecture delivered by Mr.Raju Ramachandran, Senior Advocate,Supreme Court of India on January 23 at CLC]

Mr. Ramachandran began by pointing out that subsequent to the enunciation of the Basic Structure Doctrine, Parliament had acquiesced to judicial review and had failed to counter the limits imposed on its ability to amend the Constitution and that unfortunately the doctrine has been absorbed without question.

He defined majoritarianism in the constitutional sense as the will of the majority that must prevail; terming it an important essence of democracy and a basic feature of the constitution as well as constitutionalism. However, the definition did not imply brute majoritarianism or that the views of the minority must be ignored. Quoting from the statements made by Mahavir Tyagi and H.V.Kamath in the Constituent Assembly Debates, Mr. Ramachandran pointed out that the Assembly itself was undecided whether it fully represented the will of the people to whom it delivered the Constitution and that the will of a non-majority Assembly was now being interpreted by unelected judges who culled out features and termed them to be beyond the power of amendment.

Mr. Ramachandran argued that the Doctrine has led to a situation where the courts have full freedom to interpret the constitution and in the same vein can hold that the constitution to be supreme; a situation that has met with meek acceptance by Parliament.

Mr. Ramachandran suggested that in order for an amendment to enjoy the support of the majority, it can be subjected to a referendum. However, the Doctrine precludes a referendum for there is no constitutional provision for it and moreover, an amendment, even after a successful referendum cannot be made for it can be hit directly by the Doctrine. This has lead to an anomalous situation in which even the will of the majority cannot be put into action.

On a different note and speaking illustratively, he pointed that if India were to join a SAARC Parliament, it would involve partial but positive surrender of sovereignty but such a step cannot be taken for it is hit by the Doctrine which enumerates sovereignty as a basic feature.

Commenting on Article 112 of the Norwegian Constitution, Mr. Ramachandran stated the Article provides that whilst amending the constitution, the principles embodied in the constitution must not be contradicted. Nothing of this sort is provided in Article 368 of the Indian constitution thereby meaning that Parliament had wide powers to amend the constitution but the Doctrine has limited the ability to amend even though the constitution does not explicitly provide for such limits.

In the interactive session, Mr. Ramachandran suggested that the scale of illiteracy in the country had no bearing on the efficacy of a referendum, for even the illiterates have shown their wisdom during elections. On the question, whether the Doctrine embodies the tussle for supremacy between the Legislature and the Judiciary, Mr. Ramachandran noted that the essence of separation of power is the existence of ‘creative tension’ between these two wings and that each must have the ability to check the other but the supremacy of the judiciary over Parliament has been fortified with the Basic Structure Doctrine.

On a question as to how Parliament could circumvent the Doctrine, Mr. Ramachandran said that would be unable to do so as long as the Doctrine remains applicable and only the Supreme Court is in a position to review it. As a concluding remark, Mr. Ramachandran said that the Doctrine may have saved India from tyranny but in this day and age it no longer served a positive purpose and deserves to be buried.

20 judgments which expanded the idea of India

I strongly recommend to this blog The Indian Express's Republic day special issue on the twenty court cases that have expanded the idea of India. Spread across six full pages, the special issue focuses on landmark cases, seen through the eyes of the petitioners/litigants/lawyers who made it happen.

Since, the rare photos are also a delight, I suggest the epaper version (if you click on the link, you will go to page one. The special issue starts on page 15 and ends on page 20.)

The issue was a result of a detailed in-house effort (with inputs from Sidharth Chauhan, and Vivek Reddy who also blogs here). I hope the choice of profilees sparks a raucous debate on this blog, while serving to inform (and entertain) millions of Indians less familiar with our Constitutional history.

Monday, January 25, 2010

Rajeev Dhavan against doubting Dinakaran panel

In this Mail Today piece, Rajeev Dhavan tries to answer all the apprehensions expressed by the CJAR in its letter to the Rajya Sabha Chairperson, Hamid Ansari. Reports suggest that Ansari has rejected the CJAR's plea.

Sunday, January 24, 2010

Sixty Years of Republic

The Hindu Magazine's celebration of 60 years of Indian Constitution is notable for the choice of its articles which are interesting to an average reader.

The lead article is by Vikram Raghavan, our co-contributor, who records perhaps for the first time, how our first President, Rajendra Prasad, clumsily inserted his name in the small space between the last line of the text and Nehru's signature, while signing the Constitution's calligraphic copies. Can Vikram also tell us where are these copies kept? Is there one copy or several copies? The article is not clear on this. He also refers to Prasad's announcement that Jana Gana Mana would be the National Anthem and Vande Mataram would have equal status. What did Prasad mean by this? Considering that Vande Mataram continues to be controversial, interpreting what Prasad meant by this may be relevant.

Readers will find the following articles too of considerable interest:


Gopal Sankaranarayanan's choosing our destiny

Gyan Prakash's in the name of the people

and Nandini Sundar's Lingering Inequalities

Saturday, January 23, 2010

Supreme Court and free speech

Supreme Court's observations while hearing Khushboo's case have offended many well-meaning people. "Why did you make such an extensive wise statement on virginity?" the Bench comprising the CJI,J.M.Panchal, and B.S.Chauhan asked. And according to some reports, the Bench also ticked her off for being immature and irresponsible, even declaring: "It is difficult to digest her statement. We cannot accept her contention that she did not commit any offence". The bench asked for the full transcript of the magazine interview.

Antara Dev Sen, in this hard-hitting article in Asian Age, not only regrets the Court's attitude to Khushboo's remarks on pre-marital sex, but asserts: "Even if the Supreme Court judges are uncomfortable with what is being said — and it would be tragic if our Chief Justice and others find liberal values undesirable — the right of an Indian citizen to speak her mind cannot be denied." Sen also expresses outrage at two other episodes which threaten free speech.

Document: CJAR's letter to Hamid Ansari on the Dinakaran Inquiry

To,
Shri Hamid Ansari
Vice President of India
6 Maulana Azad Road
New Delhi
21/1/09

Subject: Inquiry Committee appointed to inquire into the motion for the removal of Justice P.D. Dinakaran

Dear Sir,

We learn that you have appointed an inquiry committee comprising of Justice V.S. Sirupurkar, Justice A.R. Dave, and Shri P.P. Rao to inquire into the charges against Justice P.D. Dinakaran. We also understand that the selection of judges has been made on the recommendation of the Chief Justice of India whom you had consulted for this purpose.
We find that there is no requirement under the Judges Inquiry Act 1968 to consult the Chief Justice in the appointment of the Inquiry Committee. Moreover, in this case, the appointment of members on the advise of the Chief Justice would be inappropriate since the Chief Justice had not only recommended Justice Dinakaran’s name for appointment to the Supreme Court, but he has also been consistently defending him, even after the motion for his removal has been admitted by you.
We have come to know that Justice Sirupurkar has been a colleague of Justice Dinakaran in Chennai High Court from 1997 till 2003, during which time they sat on several benches and administrative committees together. Moreover, we learn that he has also told several responsible lawyers after this controversy arose that he knows Justice Dinakaran well and that he was an independently wealthy and an honourable man. Thus, apart from his friendship with Justice Dinakaran, he has also prejudged the issue.
We have also learnt that Shri P.P. Rao was consulted by Justice Dinakaran on the charges against him and that he advised him to get a commission of inquiry appointed to inquire into the charges.
Though we do not doubt the integrity or impartiality of either Justice Sirupurkar or of Shri Rao, we strongly believe that Justice Sirupurkar’s friendship with Justice Dinakaran, coupled with his prejudgement of the matter, places him in a position where if he inquires into this matter, justice will not be seen to be done. The same would be the case with Shri P.P. Rao who has been formally consulted in the matter by Justice Dinakaran.
You must be aware of the principle laid down in such matters by the Supreme Court which is set out in the case of Capt. Ranjit Thakur Vs. Union of India (1981 (1) SCR 512) in the following words: “7. As to the tests of the likelihood of bias, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however honestly, “Am I biased?” but to look at the mind of the party before him.”
This principle has also been reiterated in the Bangalore Principles of Judicial Conduct presented to the UN Commission on Human Rights which says:
2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially.
Applying these tests, there can be little doubt that if Justice Sirupurkar or Shri Rao proceed to deal with the matter as judges in the inquiry committee, there is a serious risk that the report of the committee would not carry credibility and it may give rise to unnecessary controversy.
In these circumstances, I would request you to kindly place these facts before Justice Sirupurkar and Shri P.P. Rao and ask them if they would like to recuse themselves from the inquiry committee. That will avoid any further controversy in the matter.
With warm regards,
Prashant Bhushan
(Convenor, CJAR)

Friday, January 22, 2010

Supreme Court: Recent Reform Proposals

Today's report in Times of India on the Law Ministry's consideration of the proposal to reform the Supreme Court is confusing. It wrongly suggests that the Law Commission has recommended setting up of four Supreme Courts in metros and a Federal Court in Delhi, and that this has been endorsed by the CJI. The Law Commission considered the issue in its 229th Report, and recommended setting up of 4 Cassation Courts, and a Constitution Bench in Delhi with the existing strength of the Supreme Court. That is, the 4 Cassation Courts will have six Judges each, and the remaining will sit on the CB in Delhi. The Law Commission said this can be done under Article 130.

The CJI in fact, opposed this proposal. Read this recent interview to the Hindu, where he clearly makes the distinction between SC Benches and 4 full-fledged Supreme Courts including the one at New Delhi with the proposed Constitutional Court in New Delhi exercising third appellate jurisdiction, apart from hearing Constitutional matters.

PIL Reform: Readers are welcome to read the Supreme Court's recent judgment in State of Uttaranchal v. Balwant Singh Chaufal (linked on the sidebar under SC Judgments) wherein the SC has laid down certain guidelines to entertain PILs - the subject on which we have carried several posts earlier (under the label, Public Interest Litigation)

Thursday, January 21, 2010

A book launch, a lecture and a seminar

New Delhi is in the grip of an academic fever, despite the unprecedented fog in recent years. Only yesterday, I attended a huge gathering, (with the Conference room literally overflowing with the listeners) at the India International Centre to witness the launch of Rajeev Bhargava's two books, What is Political Theory & Why do we need it? and The Promise of India's Secular Democracy (OUP). Listening to six speakers, Pratap Bhanu Mehta, Nivedita Menon, Christophe Jaffrelot, Yogendra Yadav, Achin Vanaik, and Rajeev Bhargava himself on the occasion was a feast, even if one hasn't yet found the time to read the books.

On January 23, the Campus Law Centre is organising a lecture by Raju Ramachandran on....what else?: "Is the Basic Structure Doctrine counter-majoritarian?" at 11 a.m. at the Seminar Hall. This is the first of a series of talks CLC is organising to mark 60 years of the Indian Constitution.

Many believe that campaigns for democratic rights such as RTI, education, food and NREGA would have come to a naught without the media’s support. But a consistent charge is that the media ignore issues of rural poverty because they are ‘down-market’ and ‘non-sexy’, to use media’s own lingo. Is there truth in these charges? Can something be done to make these issues ‘sexy’?

The Foundation for Media Professionals (FMP) is bringing together some of India’s best known media professionals and development thinkers to discuss this on Monday, January 25, from 10.30 am to 1 pm at the main auditorium of the India International Centre, New Delhi. The panelists are:

Mr. Vinod Mehta, (Editor in Chief, Outlook)
Dr. C P Joshi (Union Minister for Rural Development)
Mr. Arindam Sengupta (Executive Editor, The Times of India)
Ms. Aruna Roy (Magsaysay award-winning RTI pioneer)
Mr Harivansh (Chief Editor, Prabhat Khabar)
Ms Sunita Narain (Director Centre for Science and Environment)
Mr Jean Dreze (Economist)

The discussion will be moderated by FMP’s Vipul Mudgal. And it will be followed by lunch.

Friday, January 15, 2010

The Rathore effect

In this piece, I examine how S.P.S.Rathore managed to get relief from the High Court (in 2002) and the Supreme Court (in 2005)when the national media went into a deep slumber. Even now, the specific reasons cited by the HC and the SC have not been subjected to critical scrutiny by the media.

In another piece, I wonder whether the case would have caused national outrage, if the Law Commission's 200th Report on Trial by Media had been followed in letter and spirit.

Thursday, January 14, 2010

Delhi High Court RTI judgment

The Delhi High Court RTI judgment (holding that the CJI's office comes under the purview of the RTI Act) is available at:

http://www.docstoc.com/docs/22007185/APS12012010-LPA5012009

It is interesting that this, and all other judgments, start with the judges signing off on whether the judgment can be reported in local papers, reporters and digests. I wonder why judges have this discretion, especially since the requirement of giving public reasons is a very (or only?) important mechanism for judicial accountability in India.

This also raises other issues.

1)On what basis do judges decide whether a case should be reportable or not?

2)If a judge asks for a case to not be reported, what weight does her opinion carry? In EBC v. D B Modak, the SC recognized that in its publication "Supreme Court Cases" EBC "publishes all reportable judgments along with non-reportable judgments of the Supreme Court of India." The Court does not appreciate/deprecate this practice, merely recognizes it.

3)Should lawyers be allowed to argue -and judges cite- unreported cases in their judgments? A quick search of supreme court cases reveals that this is routinely done. The only statutory law I could find on this point is the Indian Law Reports Act, 1875, which provides that "No Court shall be bound to hear cited, or shall receive or treat as an authority binding on it, the report of any case decided by any High Court for a State, other than a report published under the authority of any State Government." According to this provision at least, unreported cases cannot be used by, or in, Courts of law.

4)Article 141 of the Constitution provides that "The law declared by the Supreme Court shall be binding on all courts within the territory of India." Does the "law declared" include unreported judgments? If it does (and the use of unreported judgments by Courts indicates this) then in my opinion, this violates all requirements of public notification before a norm becomes a law.

5) If an unreported case is to be cited, should it have binding, or merely pursuasive value?

Wednesday, January 13, 2010

Environment Tribunals in India: From the NEAA to the National Green Tribunal

The Union Government was scheduled to introduce the “National Green Tribunal Bill” in the recently concluded winter session of Parliament. The bill provides for the setting up of the National Green Tribunal and its four regional counterparts, as suggested over the years by the Supreme Court and the Law Commission. The Law Commission Report on “Proposal to Institute New Environmental Courts” can be accessed here. The National Green Tribunal will replace the National Environmental Appellate Authority (NEAA), constituted under the NEAA Act, 1997 and the National Environmental Tribunal to be set up under the National Environment Tribunal Act, enacted by Parliament in 1995, which has never been implemented.

Lawyers and environment groups litigating before the National Environment Appellate Authority routinely describe this body as singularly “environment unfriendly”. Appeals filed before the NEAA are heard by three retired bureaucrats and usually dismissed on technical grounds such as delay in filing appeal. Set up twelve years ago, the NEAA is without a chairperson or vice-chairperson and is understaffed. Former Supreme Court judge, Justice N Venkatachala, was its first chairperson. He retired in 2000 and the post has remained vacant since. The vice-chairperson’s post fell vacant in 2006. In February 2009, the Delhi High Court in a bench headed by Justice Muralidhar imposed a penalty of 20,000 Rs. on the NEAA for its failure to appoint a chairperson and asked it to appoint one by mid May. However, to the best of my knowledge, the authority has still not appointed a chairperson and the strength of the NEAA had dwindled to two members in July, 2009 and apparently one member now. News and magazine coverage of the dismal functioning of the NEAA may be accessed here and here.

The NEAA panel comprises of retired bureaucrats who are greatly reluctant to hold the Ministry of Environment and Forests accountable for giving environmental clearances in violation of the law and established procedures. They are similarly reluctant to set up commissions to investigate petitioners’ allegations regarding violation of existing clearances choosing to accept at face value respondent companies’ assertions that they have complied with the conditions stipulated in the environment and/or forest clearance. The myopic approach of the NEAA can be seen from its judgment and decision in the Mundra port and SEZ case, where the tribunal refused to examine allegations regarding cutting down of mangrove forest land prior to the grant of the forest clearance confining its review to allegations of violations of the clearance based on an extremely narrow and in my opinion legally unsound interpretation of the word “grievance” in section 11 of the NEAA Act.  Of course, the callous indifference of the NEAA is only surpassed by the connivance of the MoEF with companies engaged in violations and their subversion of the clearance procedures. In the circumstances, the fact that the MoEF is repeatedly in the news for granting clearances for projects destroying existing forest cover and endangering wildlife is hardly surprising.

In light of the shortcomings of the NEAA, there is clearly need for a new environment tribunal with enhanced powers. The Parliamentary Standing Committee in its report on the National Green Tribunal bill dated November 24, 2009 notes that “[The] [e]nvironment has assumed immense importance during the last few years not only because of significant climatic changes that have started manifesting in various forms, but also because of ever-sharpening conflict and contradictions between economic development and conservation and protection of environment. Such conflicts have led to a large number of litigation [ ] pending in various courts through out the country.” Given that courts in the country are increasingly burdened with civil and criminal cases, the Bill proposes the setting up of a National Green Tribunal, which shall consist of a full time Chairperson and such other full time Judicial Members and full time expert members as the Central Government may from time to time notify. The expert members shall be experts in physical and life sciences, engineering and include persons having practical knowledge and administrative experience in environmental matters. The Chairperson shall be appointed by the Central Government, in consultation with the Chief Justice of the Supreme Court of India while the judicial members and expert members of the tribunal shall be appointed by the Central Government in the manner prescribed. Unlike the NEAA, the tribunal will hear initial complaints as well as appeals from decisions of authorities under various environmental laws. However, the Tribunal shall hear only ‘substantial questions relating to the environment’. Substantial questions are those which (a) affect the community at large and not just individuals or groups of individuals, or (b) cause significant damage to the environment and property, or (c) cause harm to public health which is broadly measurable.

PRS Legislative Research has published a legislative brief on the bill highlighting its key provisions. The brief also contains a comparison of the powers of the NEAA under the NEAA Act and the National Green Tribunal under the proposed bill. While the National Green Tribunal is a slight improvement on the NEAA in terms of increased powers, including the power to hear initial complaints and appeals, and the power to impose greater penalties for noncompliance, its jurisdiction is limited to violations of particular environmental laws. The list excludes important environmental laws like the Wildlife (Protection) Act, 1972 and the Scheduled Tribes (Recognition of Forest Rights) Act, 2005. In a comparison with environment tribunals in other countries, the brief notes that “other countries give environmental courts [] much wider scope”. The brief also details the Law Commission recommendations that were ignored in drafting the bill.

Armin Rosencranz and Geetanjoy Sahu in a recent article in the EPW have analysed the provisions of the bill noting its benefits as lying in the setting up of regional tribunals (as opposed to one central NEAA) which would enable easier and cheaper access for petitioners as well as stronger powers to punish non compliance. The green tribunals can impose a fine of upto 10 crore Rs. for failure to comply with their directions. However, Rosencranz and Sahu also highlight the costs and risks associated with the proposed bill raising doubts about the efficacy of the bill and the tribunal to help reduce litigation in the environmental field, and to introduce greater uniformity and consistency in judgments in environmental cases. Moreover, while the bill is an improvement over the NEAA in that it allows the national green tribunal to entertain disputes brought within a period of six months from the date when the cause of action first arose as opposed to one month extendable to a period of three months in the discretion of the NEAA, discretion it seldom exercised, Rosencranz and Sahu rightly point out that in many environment law cases, the cause of action may pre-date the consequence by more than six months. They propose that the tribunal should have the discretion to extend time without limitation in the interests of justice.

The Parliamentary Standing Committee Report has also highlighted several flaws in the bill and made some recommendations. PRS has published a one page summary of the Standing Committee Report, which can be accessed here. It is not clear whether the Standing Committee recommendations have been incorporated in the bill so far. One hopes that the next avatar of the bill provides for increased powers, jurisdiction, independence and accessibility of the green tribunals. However, the experience with the NEAA makes clear that a strong legislative framework is a necessary but not sufficient condition for an effective environment tribunal. Executive will to implement the legislative framework and consistency of judicial pronouncements, both severely lacking in the environmental arena are similarly indispensable. 

Sunday, January 10, 2010

India's Telecom Tribunal Looking for Law Clerks

For those interested, the Telecom Disputes Settlement Appellate Tribunal (TDSAT) is on the lookout for law clerks who can commit a year or two. Remumeration is Rs 20,000-25,000 per month and any law graduate can apply. For more details, see here.

Given that Justice S.B. Sinha who recently retired from the Supreme Court is heading the TDSAT, one can expect more interesting jurisprudence from this body.

Saturday, January 09, 2010

Landmark judgment on free speech

I am currently reading the Bombay High Court's 150-pages judgment in R.V.Bhasin v. State of Maharashtra delivered recently. According to news reports, the Court has upheld the ban on the book, even while defending free speech. Our blog has discussed free speech jurisprudence on many occasions, and readers are welcome to read the previous posts using the label, free speech. I've posted the link to the Bombay High Court judgment in view of our keen interest on the subject, even while reserving my comments till I finish reading.

Friday, January 08, 2010

Two Judges, a Poet and a Gangsta-movie maker

Continuing with the fascinating questions that Shamnad has thrown up over moral rights and cultural property, Ananya Vajpeyi ruminates on the recent controversy over Ram Gopal Varma's creative remixing of the national anthem through a reading of the Supreme Court's judgment in Sanjeev Bhatnagar v. Union of India (Writ Petition 16/2005). The case wanted the deletion of Sindh from Jana Gana Mana and the inclusion of new Indian provinces. Vajpeyi's article also provides a rarely seen framework of analysis for Supreme Court judgments, that of literary theory.

Thursday, January 07, 2010

American Law Institute gives up its Death Penalty Project

The NY Times has reported that the Amercian Law Institute (most famous for its Restatements of the Law series) has withdrawn Section 210.6 from its Model Penal Code. This Section provided for the sentencing procedure in capital punishment cases, and had been adopted by the US Supreme Court in many of its decisions. By using an aggravating-mitigating circumstances matrix, restricting the award of death penalty to the most serious of offences, and recommending procedural safeguards, the ALI had sought to reduce arbitrariness in the award of capital punishment. They have now walked away from this regime on the ground that experience has shown that "guided discretion" does not reduce arbitrariness in this area. In India, the Supreme Court has adopted a similar approach of reducing arbitrariness through the use of aggravating and mitigating circumstances. Though the Indian Supreme Court has itself recognized that it has been very arbitrary in handing out the death penalty (Santosh Kumar Bariyar v. State of Maharashtra), there has been no move (to my knowledge) to reopen the issue of the constitutionality of the death penalty. The report of the ALI, setting out its reasons for its decision, is available here.

Wednesday, January 06, 2010

Bangladesh Secularlism Case

This is a very interesting case in the Bangladesh Supreme Court. It concerns the validity of a constitutional amendment challenging the deletion of secularism from the constitutional text. It is unclear from the press report as to what precisely the Bangladesh Supreme Court has done. One reading suggests that the Court has lifted a stay against the amendment that was granted by a lower court. Another interpretation is that the Court has lifted a stay against the high court order that overturned the amendment. Hopefully, I'll have a colleague from Bangladesh clarify for us. In any event, I think this case demonstrates the importance of developing a better understanding of comparative constitutionalism in South Asia.

Monday, January 04, 2010

The 3 Idiots Copyright Controversy: Whither the Moral Right of Attribution?

Venkatesan brought in the New Year at LAOT by highlighting a copyright controversy that recently broke out between the makers of India's most entertaining, yet thoughtful Bollywood flick of 2009 and the author from whose book the central plot was allegedly lifted; a movie that goes by the name of "3 Idiots", but does not have the faintest trace of idiocy in either its script or execution.

Clearly one of the best movies to have been released this year, it demonstrates yet again that meaningful "message laden" scripts sans any mind numbing dance, song or fight sequences have a fair shot at tasting box office success! Needless to state, a lot of the success of this particular movie owed itself to a brilliantly conceptualised storyline and an amazingly punchy script.

The author Chetan Bhagat claims that the attribution (or rather the lack of it) to his book in the movie has been rather "unfair". Having seen the movie ("3 Idiots") and the book ("5 Point Someone"), I'm quite sympathetic to Chetan's claims that he's been "unfairly" treated. And I also think he may have an arguable case under Indian copyright law, since his book input has not been adequately "attributed", but rather reduced to a paltry amount of 3-5%. Bhagat writes in his blog:

"Pre-release, the makers made press statements like the movie is only ‘very loosely’, ‘2%-5% inspired by the book’. After release, those who have read the book and seen the movie (and frankly, I think those are the only people who have the right to comment) find the film to be an adaptation of Five Point Someone. The setting, characters, plotline, dramatic twists and turns, one-liners, theme, message – almost all aspects that make up the story are from FPS. Yes, there are some changes, any adaptation requires that – but it is no way an original story.”

The Key Facts/Issues

1. Bhagat entered into a contract with the production house (Vinod Chopra Films Pvt Ltd), under which he assigned all rights in any audio visual format of the book or its adaptation to the production house.

2. As consideration, Bhagat was to be paid a certain sum of money (totaling about Rs 11 lakhs or so). The facts appear to indicate that he was paid this sum in full and Bhagat does not contest this in his blog post either. So this is not really about the money.

3. Bhagat was also promised credit in the film. Since this clause (Clause 4) is critical, I reproduce it below:

"It shall be obligatory on the part of the Producer to accord credit to the author in the rolling credits of any audio-visual moving image software (of any format or form in any media or medium) produced by the Producer in terms of the exercise and execution of the Rights granted as under:

“Based on The Novel

Five Point Someone

By

Chetan Bhagat”

This clause appears to have been "technically" complied with, as the credits right at the end of the film do mention the fact that the movie is based on the book by Bhagat in exactly the form that clause 4 requires. However, the placement of this credit was not prominent and appeared to be rather fleeting; I for one thoroughly missed it!

In his blog post, Bhagat indicates that even his mother missed it (since she loves him more than any of us do, we can safely assume she might have actually looked hard for it). Importantly, the script writer, Abhijit Joshi was credited right at the start of the movie.

In any case, since Bhagat did not specifically insist on any particular placement for the credit owed to him, it would appear that at least contractually, Vidhu Vinod Chopra and team did comply with the law. Even Bhagat seems to accept this technical legal compliance in his tweet. Though there is much to be said for the bargaining asymmetries between an individual author and a production powerhouse with ample financial and political muscle. So much for the freedom of contract.

Moral Rights and Lack of Attribution

4. Bhagat claims that in the pre-release publicity and even post the movie, the makers of the movie made statements to the effect that the movie was not really based on the book and that it was "original". Most damagingly perhaps, the makers claim that the movie was only based on the book to a paltry extent of 3-5% .

If what Bhagat states is true, he has a decent case on moral rights against the makers of the movie. Section 57 of the Indian copyright act vests every author with the right to insist that their works be attributed to them. And this right exists independent of the "economic" right to exploit the work. In essence, the section states that "..independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim the authorship of the work ... "

In other words, even if the economic rights are assigned away (and in this case, Bhagat assigned away his rights to any movie based on the book), the moral rights continue to vest in the author. The question now is: is it true that Bhagat's book only contributed 3-5% to the movie. Or was the movie based substantially on the book?

Having read the book (that has now reached some sort of a cult status in certain circles) and watched the movie, I personally think the copying has been rather significant. And not a mere 3-5%! However, I must also state that Abhijit Joshi, the script writer (along with Hirani) packed in some brilliant new scenes and sub-plots whilst adapting the book theme.

Therefore, what they created is also "original", unlike what Chetan claims. However, their originality does not detract from the fact that they have also, in the process, lifted a significant portion of the plot, characters etc from the book. Therefore, the end product (movie script) could be rightfully said to be a product of joint authorship, involving Chetan Bhagat, Abhijit and Rajkumar Hirani.

For those interested, I've discussed these aspects in more detail in a post over at SpicyIP. I had an interesting exchange with an anonymous commentator who questioned the need to have any protection for moral rights. In particular, he stated that "..the U.S. is one country which does not have moral rights and for good reason - these rights has a weak economic rationale."

I reproduce my quick and not so considered response, but hopefully this can serve as a starting point for engaging in a more meaningful discussion around the existence and extent of moral rights protection.

"Firstly, the US does protect moral rights to a limited extent, through VARA. Secondly, and more importantly, should we base all law making only on economic rationales. What about morality? Fairness? Justice? Shouldn't these be legitimate ends to be pursued by law and law making? Or should our lens be a predominant economic one, ala the US?

My reasons for supporting the moral right of attribution are to avoid the kind of unfairness that the Chetan Bhagat incident throws up. What the Chopra production house appears to be doing is to buy out the author and then completely negate the fact that he had anything to do at all with the creation!

Authors share a special relation to their creations--and many see it as an extension of their personality. And I just think its grossly unfair to let economic forces divorce them from their creations and obliterate their status as authors!

But all of the above arguments relate to the moral right to "paternity" or authorship. There is another moral right, albeit a more problematic one that often crops up in most of the case law i.e the moral right to integrity (to prevent any "unfair" treatment to the authors' work).

A recent article deals with some of the predominant rationales underlying such a moral right to integrity and ends up arguing against the need for any such moral right. However, it does not deal with the moral right to paternity or authorship. In fact, I am yet to find any compelling argument that persuades one against the need to have a moral right to paternity."

For those interested in a non legal take on this controversy, see this interesting piece by Vir Sanghvi, who sees this as an issue of "grace" (or lack thereof). He contrasts the rather harsh stand of the Vidhu Vinod Chopra production house with the more "graceful" stand of Danny Boyle's team who specifically went out of their way to acknowledge the role of Vikas Swarup, the author of the book on which the Oscar winning movie "Slumdog Millionaire" was based, although he wasn't "legally" mandated to do so.

One hopes that this controversy is "destined" to end "well", sans any legal expenses. And on that hopeful note, let me wish all of you a very happy New Year.

Sunday, January 03, 2010

Strength in Numbers - Part II

In my introductory post on Law and Other Things, I had questioned our Supreme Court’s institutional response to the philosophical question of when its own judgments could be overruled. Presently, in order to overrule an opinion of a certain number of judges the Chief Justice is required to constitute a larger bench. The larger bench can overrule the previous opinion even if fewer judges agree than in the previous case. Here’s an excerpt from my post:

“Assume for a moment that a bench of five judges unanimously (5-0) decides an issue in terms of Holding X. Now assume that a larger bench, say of seven judges, is constituted to consider the question of whether Holding X should be overruled. Ironically, if the seven judges decide by a fractured majority, i.e. 4-3, that Holding X should be overruled, then even though more judges had agreed in the previous case in favor of Holding X, the decision can still be overruled if four out of seven judges think so. Similarly, a 2-1 majority can overrule a unanimous two judge opinion, a 5-4 majority can overrule a unanimous seven judge opinion, and a 6-5 majority can overrule a unanimous 9 judge opinion, apparently on the strength of the fact that more judges had participated in the overruling case. Therefore, the constitution of a larger bench in such ‘overruling’ cases seems to make little sense unless the rule requires a litigant to procure a larger majority than the previous case to overrule the previous decision.”

While reading Adrian Vermeule’s illuminating paper entitled Common Law Constitutionalism and the Limits of Reason, (available here) I recalled the Condorcet Jury Theorum, which I’d like to introduce to the overruling debate. Under the theorem, as the number of minds increases to the solution of a problem, the likelihood that the answer will be correct increases: “where there is a binary choice and a right answer exists, and where average competence exceeds .5 – that is, the average member of the group is more likely than not to choose correctly”. Does this provide a satisfactory response to our courts’ present practice of increasing bench strength while overruling precedent? For one, it certainly addresses the common law’s Burkean evolutionary concerns to overruling precedent grounded in the “wisdom of the ages”. Of course, these are preliminary thoughts which I'd like to subject to larger debate.

Saturday, January 02, 2010

Call for Papers: Conference on Emerging Issues of Law and Justice

CALL FOR PAPERS FOR CONFERENCE ON
EMERGING ISSUES OF LAW AND JUSTICE IN THE COMING DECADE
MARCH 26-27 2010, UNIVERSITY OF DELHI


India has experienced major changes in its economic, social and political life during last two decades. Record economic growth has been accompanied by rapid urbanisation, rise in informal forms of employment, emerging crisis in agriculture, concerns over the sustainability of the environment and rise in unconventional crimes. There has been an increase in inequality raising concerns over the human rights of large sections of the population. The demand of the citizens to obtain information, transparency and accountability from the state institutions, the rising aspirations of the people who ask for equitable outcomes of development are visible in several parts of India today. The ability of the state to deliver equity and justice is at the core of these developments.

There is need for the legal and judicial systems to respond to these challenges. The legal system through its laws, courts and other institutions is often seen as the ‘last resort’ and expectations from these institutions are exceedingly high. There has been broad participation in debates across the country over the direction of law and policy reform. The credibility of the legal system is challenged over whether the rule of law applies equally to all citizens, big or small. All these developments indicate that the legal and judicial process is under scrutiny as never before. This conference aims to discuss these challenges across four main themes indicated below and generate useful insights for further study and possible reform.

26.3.2010: Friday : Inaugural Session

27.3.2010 Saturday: Four Parallel Sessions

Theme 1: Criminal Justice System, Human Rights and Rule of Law
• Narco-Analysis and rights of accused
• Extraordinary laws and human rights
• Prison Reform
• Hate speech and communal violence
• Trans-national crimes

Theme 2: Technology, Sustainable Development and the Law
• New technologies and privacy
• Global warming
• Natural resources and rights of communities
• Policies, technology and court administration

Theme 3: Towards Social Inclusion
• Equal Opportunity Commission Bill
• Changing contours of reservation policies
• Caste atrocities and the State
• Linguistic rights under the Constitution

Theme 4: Legal Education in a Global Context
• Legal Education in an increasingly unequal world
• Regulatory role of lawyers and judges in legal education
• Legal education and access to justice


Papers are invited on the above themes from academics, lawyers, law researchers and other interested persons. Completed papers (4000 words) are to be submitted to the Conference Secretariat not later than Monday, February 1, 2010 both electronically to clc.conference2010@gmail.com and with a hard copy addressed to:
Dr. Kamala Sankaran Conference Coordinator, CLC Conference 2010, Campus Law Centre, Faculty of Law, University of Delhi. Or to Prof. S.C. Raina, Prof.-In-Charge, Campus Law Centre, email add: scrainaclc@gmail.com.

Those whose papers are selected will be notified by February 22, 2010.

Conference participants will be provided boarding & lodging from March 25-27th, 2010.
The Campus Law Centre will not be in a position to reimburse local or outstation travel costs to participants due to limited funds. It is requested that respective institutions be requested to reimburse the same.

New Year thoughts & a controversy

Wishing the LAOT readers a very happy and prosperous New Year, nay, a New Decade. Right on the N.Y.Day, we have a very interesting controversy amidst us on Chetan Bhagat's Five Point Someone being adapted for Aamir Khan's new film, 3 Idiots without giving him due credit. I have not read FPS yet, but I would like to hear from IP experts like Shamnad and his colleagues at Spicy IP about the merits of Chetan's claims. Chetan's blog is here.