Saturday, July 31, 2010

Truth about encounters

There is an excellent piece by Rajesh Kasturirangan at India Together on the truth about encounters. While I agree with him substantially that in practice the line between genuine and fake encounters is often blurred, there is need for laying down certain guidelines which would merit calling an encounter as genuine. Those encounters failing such a test must be labelled as fake, and treated as murder. In my view, therefore, the Parliament attack case merits being called as a genuine encounter, when all terrorists were killed. 26/11 also would fall under this category. This is not to suggest that only televised encounters deserve to be labelled as genuine. The Supreme Court is currently hearing on guidelines for encounters, in the case of People's Union of Liberties v. State of Maharashtra. The responses of the States and the Centre to some of the proposals by the petitioner in this case merit attention.

For those readers, who would like to know more about this case, my article published in 2009 may be of use. Manoj Mitta has written this piece on July 31.

ICJ Advisory Opinion

Guest Post: Pathik Gandhi

The Declaration of Independence by Kosovo has been given a clean chit by a majority of the judges of the ICJ in it's ICJ's Advisory Opinion of 22nd July 2010. The question which the UNGA put to the ICJ was whether the Declaration of Independence by Kosovo was valid under international law. The Court while opining on this central issue, also determined several questions as regards the admissibility of the UNGA reference, since the United Nations Security Council was also concerned with the situation in Kosovo. The Majority Court decided to exercise the discretion vested in the ICJ (with the notable dissent of Judges Tomka, Koroma, Keith, Bennouna, and Skotnikov.

As regards the principal issue, the International Court of Justice relied primarily on the argument that there has been no practise in customary international law, where a Declaration of Independence has been rendered invalid, to declare Kosovo's Declaration legal in international law. The Court narrowed down to the question - who were the authors of the Declaration of Independence? This question was the crux of the issue because the members of the Provisional Assembly in Kosovo had been elected under the Framework created by the United Nations, throught the Representative of the Secretary General, thereby rendering any Declaration by them beyond the ambit of the Framework Resolution of the Security Council.

The Opinion has come for criticism for the radical approach taken by the International Court of Justice, where it has sought to refrain from crucial International Law principles such as self-determination, territorial integritiy, inviolability of borders, use of force etc. An interesting critique is that by, Dr. Alexander Mezyaev International Law Department Governance Academy available here. The Opinion can be accessed here: Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) - Advisory Opinion - Advisory Opinion of 22 July 2010.

This Opinion, besides an interesting study of Judicial Process, leads one to ponder over the feasibility of such measures being declared legal in other areas of conflict such as Kosovo or Basque.

Pathik Gandhi has recently graduated from NALSAR University of Law, Hyderabad.

Friday, July 30, 2010

Talk on Corporate Governance

V. Umakanth will speak on corporate governance at NUJS, Kolkata tomorrow. The talk begins at 4 pm in Room 006. All are welcome to attend.

Umakanth will be familiar to readers of this blog, as he posts on corporate law and policy issues on LAOT. He is Assistant Professor at the Faculty of Law, National University of Singapore (NUS). He specializes in corporate law and governance, cross-border investments and financial sector regulation. While his work generally encompasses the Asian markets, his particular focus is on India.

He has co-authored a book on Singapore corporate governance, published articles in international journals and founded the Indian Corporate Law Blog. He has also taught on a visiting basis at the Fordham Law School, New York and the National Law School of India University, Bangalore. He is the recipient of several academic awards: the Lee Kong Chian Scholarship (at NUS), the Hauser Global Scholarship (at New York University School of Law) and eight gold medals (at the National Law School of India University). Prior to his foray into academia, Umakanth was a corporate attorney in India with the leading corporate law firm of Amarchand Mangaldas, where he was also a partner.

Details of his talk are as under:

INDIAN CORPORATE GOVERNANCE AT THE CROSSROADS: WHAT NEXT?

The concept of corporate governance, which relates to the systems by which companies are directed and controlled, has received significant recognition in India over the last decade. Within the short period, however, they have not only been prone to constant change but their efficacy has also been subjected to severe stress testing by way of corporate scandals such as Satyam. Regulatory responses to such episodes have tended to be incremental by fine-tuning existing norms.

The speaker suggests that the current corporate governance model, borrowed largely from the U.S. and the U.K., may not altogether fit within the corporate structures prevalent in India. This is an opportune moment to reconsider India’s model of corporate governance and to develop one that resonates well with Indian business values and practices from the standpoint of economic, social, and political factors.

Article alerts

* My analysis of MCOCA and its application to Hindutva terror groups.

* My appreciation of the Supreme Court's judgment in the James Laine case.

*How lack of transparency in the appointment of information commissioners is likely to weaken the RTI Act.

Bangladesh Supreme Court bans religious parties

The full text of the historic judgment delivered by the Bangladesh Supreme Court banning religious parties and upholding secularism in that country is here.

Thursday, July 29, 2010

A Marxist approach to rights

Prabhat Patnaik's article in the latest EPW on how the Left must adopt a "rights-based approach" to development makes for enjoyable reading. Patnaik has long been the key economic thinker for the CPI(M), so he speaks for more than himself. In painting "rights" red, Patnaik must perform a two card trick. The first card is to dissociate rights from it bourgeouis origins. The second card is to place it within the Marxist canon; this despite Marx's own contempt for human rights as giving workers the unfettered "right" to sell their property to a grasping economic structure. For legal thinkers hungry for a Left economist trespassing into their domain, bon appetit!

PRS Analysis 2010

Legislative analysis competition organised by PRS Legislative Research, New Delhi.

PRS Legislative Research is a Delhi-based research initiative hosted at the Centre for Policy Research, New Delhi. PRS works with the objective of making the legislative process more transparent, informed and participatory. We have interacted with over 250 MPs across 22 political parties.

To facilitate greater awareness generation and engagement of the youth, PRS conceptualised a legislative analysis competition - Analysis. Being organized for the fourth year in succession, Analysis is a national-level competition that encourages students to reflect on issues of national importance by analysing a proposed government Bill. Participants are expected to produce a succinct three-page analysis of the Bill with MPs as the target audience.

Entries will be evaluated by an eminent panel of judges from the fields of politics, law and the media. In the past years judges have included Justice Ruma Pal (former judge at the Supreme Court), Justice Y. K. Sabharwal (former Chief Justice of India), and Prof. N.R. Madhava Menon (Member – Commission on Centre State Relations), and Mr. Sam Pitroda (Advisor to Prime Minister on Public Information, Infrastructure and Innovation).

The last date for submission is September 5, 2010. In addition to prize money, the winners will be invited to the annual PRS Conference on Effective Legislatures to be held in New Delhi.

For additional clarifications, please do not hesitate to contact Anirudh Burman at 011-41048021, or at competition@prsindia.org. For further details please go to the ANALYSIS 2010 page (www.prsindia.org/analysis2010) on our website www.prsindia.org.

Dalit Christians and Caste Disabilities Removal Act

Does anyone know of the status of this case filed by the All India Christian Federation challenging the unconstitutionality of the Constitution Order 1950 which excludes Christian and Muslim dalits from the benefits of affirmative action measures available to scheduled castes? I was wondering whether an old colonial law, the Caste Disabilities Removal Act 1850, may be relevant to this litigation. This is what the operative section of this Act says:

So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court.

This legislation raises a number of interesting issues. Firstly, much will turn on the meaning of the phrase 'now in force'. I would think that, despite this unhelpful terminology, the legislation should apply to administrative orders and secondary legislation made after 1850. Primary legislation, on the other hand, will clearly override a preceding legislation (doctrine of implied overruling). Second, and it follows from the first point, a court will need to decide whether the 'public notification' issued by the President under Article 341 is primary or secondary legislation. I doubt very much it will have the authority to impliedly overrule pre-existing primary legislation, but I have not researched this point. Does anyone know of any case on this point? Thirdly, if the 1850 Act continues to apply to secondary legislation passed after 1850, and if the Presidential Order of 1950 is indeed one such legislation, the latter must conform to the 1850 Act. Fourthly, it seems obvious to me that dalit Christians and dalit Muslims are deprived of the benefits of reservations 'by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste', and that such deprivation amounts to 'forfeiture of rights'. As such, Courts cannot enforce their exclusion from these benefits.

I recognise that this is, at best, a plausible (rather than the only possible) interpretation. I am just thinking aloud, from a position of ignorance of jurisprudence surrounding the 1850 Act or the 1950 Order. Some of you will know more than I do, and I look forward to being enlightened.

As an aside, I find the 1850 Act fascinating. It may well be the first legislation protecting freedom of religion in colonial India. Also, it uses gender-neutral language in 1850! More interestingly, it does not invalidate laws that fall foul with it - instead, it demands that the courts refuse to 'enforce' them (presumably while they continue to be valid laws). The distinction between invalidation and non-enforcement has been salient in the second Factortame case, where the House of Lords decided that British law that is inconsistent with EU law will not be enforced by courts, even though it will continue to be valid law. Finally, this Act may also be relevant to the various decisions on excommunication that have been decided by our courts. I wonder whether it was cited by the parties in any of these cases.

LAOT titbits

* Lok Sabha Speaker's reasoning as to why she disallowed the notices for adjournment motion. (Pages 4-5). Considering that a Government cannot consider itself failing in its duties, can an adjournment motion be ever admitted?

*The continuing saga of the Ghaziabad Provident Fund scam probe: Read this SC order on March 23 and today's Mail Today story.

Wednesday, July 28, 2010

Supreme Court: Case updates

*PUCL v. UOI. W.P.(C) 196/2001. (Food security case) Order dated July 27. Next date of hearing: August 12, 2010.

*HT report on the hearing by Justice Katju Bench (M/s Nouveau Capitaland Fin.Ltd. v. State of Bihar, W.P.(C) 672/2004). Justice Katju has opposed SC-constituted monitoring committees.

*Supreme Court constitutes Second Forest Bench.

TRAC Cracks the Takeover Code

The July 19 Report of the Takeover Regulations Advisory Committee is available here. While the policy implications of the proposed changes are likely to be discussed in great detail over the coming months [for now, see Thakur and this debate], I found the following black-letter changes interesting:

(1) Early Warning Threshold: Acquisitions beyond prescribed thresholds (5%, 10%, 14%, 54%, 74%) set off obligations to make disclosures. Three thresholds in particular, i.e. 5%, 10% and 14%, serve as early warnings against hostile acquirers. The committee’s recommendations make the warnings more prevalent. Their recommendations require that disclosures be made at 5 per cent, and for every acquisition of 2 per cent or more thereafter, i.e. potentially 10 warnings before the 25% trigger is crossed [see Proposed Regulation 28].

(2) Trigger Pushed: A tender offer must mandatorily be made when an acquirer gets to 15% or more. The committee has recommended that this trigger be pushed to 25%, enabling some shareholders like institutional investors to increase their stakes without making an all out tender offer [see Proposed Regulation 3(1)].

(3) Creeping Acquisition: When your shareholding in a corporation is 55% or more, you can’t acquire any additional shares without making a tender offer. The committee has recommended that up to 5% can be acquired in any year without making a tender offer [see Proposed Regulation 3(2)] [Note: this shelter is not available via the new “voluntary offer” route]

(4) Offer Size: The minimum size of the mandatory tender offer is 20%. The committee has recommended that the offer now be made for “all the shares held by all the other shareholders of the target…”, i.e. not exactly for “100%” as commentators have been couching it, but certainly the remaining 75%, assuming the acquirer holds 25% when the tender offer is made [see Proposed Regulation 7(1)].

(5) Alienation of Assets: The acquirer is required to furnish an undertaking that it will not alienate any “substantial asset” of the target without prior shareholder approval. The committee has recommended that the acquirer be permitted to declare its intention to alienate "material assets". This may potentially increase the acquirer’s ability to finance the acquisition. [see Proposed Regulation 25(2)].

(6) Target Board Defensive Tactics/Obligations: The defensive actions that the target board can take are proposed to be further weakened in the face of hostile overtures: for example, ESOP based poison pills are proposed to be abolished [see Proposed Regulation 26 (f)]. Further, while the target board may today give “unbiased comments” to its shareholders once the tender offer is made, the committee has recommended that the target’s board ought to constitute a committee of independent directors to mandatorily provide recommendations to shareholders [see Proposed Regulation 26(6)-(7)]

Tuesday, July 27, 2010

Military Power and the Constitution

In the current issue of Seminar, Sudhir Krishnaswamy and I reflect on the relationship between military power and the Constitution through studying the Supreme Court's examination of the constitutionality of the Armed Forces (Special Powers) Act 1958. The paper is available here.
Those interested in the relationship between military power and constitutional design should look out for Bruce Ackerman's forthcoming book 'The Decline and Fall of the American Republic' (based on his 2010 Tanner Lectures) which has a wonderful chapter that explores this often ignored issue.

Article and other alerts

* Sitaram Yechury's provocative piece on why we should keep the word socialism in the Preamble: Rework the Agenda

*Shyam Divan's obit on Atul Setalvad: Raising the Bar

*The All India Bar Examination case is coming up before the Court of Justices Dalveer Bhandari and H.L.Dattu on July 30. [Item No.301- SLP (C) 22337/2008 -BCI v. Bonnie FOI Law College.]

Monday, July 26, 2010

Symbols of national honour

Guest Post by Shekhar Hattangadi*

A fountain-pen and a few paintings have recently captured the headlines for all the wrong reasons. Here is my column (“Pens and Pennants”) on the Gandhi Pen and Tagore Paintings imbroglios written for the DNA. The thrust of my argument is that both the controversies could have been nipped in the bud by the Centre with some timely and thoughtful action.

My original submission had an additional angle relating to international law, which was excised for space constraints. On the issue of jurisdiction in the international arena—which appears to render symbols of our national honour vulnerable to commercial exploitation outside of India’s territorial limits—I point out that these could be safeguarded abroad as if they were part of a patent or a trademark. For this, the concerned government would need to register those symbols/emblems with the registering authority of the Paris Convention for the Protection of Industrial Property, 1883.

On the paintings, I suggest that no existing statute anywhere in the world gives India any legal right to those [Tagore] painting. Does that mean a symbol of national honour becomes a legal orphan beyond our borders? Not really. Article 6 of the Paris Convention for the Protection of Industrial Property, a treaty administered by the World Intellectual Property Organization and signed by 184 member-countries including India, recognizes prohibitions concerning “state emblems and official hallmarks” and protects them from commercial exploitation in the global marketplace.

But clearly, these refer to our national flag and other state-endorsed insignia such as the Ashok Chakra crest, and even a Tagore-worshipping Bengali would have to concede that a painting by the Nobel Laureate, however artistic, falls short of being a state emblem and is therefore outside the purview of the Paris Convention.

* The author is a Mumbai-based lawyer and law professor.

Friday, July 23, 2010

NALSAR Student Law Review

The Board of Editors announce the release of the fifth edition of the NALSAR Student Law Review. This issue comprises of articles dealing with corporate law, intellectual property, arbitration, international law and the Constitution.

The following are the pieces published in the Law Review:

1. “The Doctrine of State Action- Politics of Law Making - A comparison of US & Indian Constitutional Law” - Hina Doon.
2. “Doctrine of Arbitrariness and Legislative Action: A Misconceived Application” -- Deepika Sharma and Raadhika Gupta. This article is a reply to Abhinav Chandrachud, “How Legitimate is Non- Arbitrariness? Constitutional Invalidation in the light of Mardia Chemicals v. Union of India”, (2008) 2 Indian J. Const. L. 179.
3. “The Changing Contours of Self Defence: From Article 2(4) to the Bush Doctrine” -- Manav Kapur.
4. “Regulation and Responsibility of the Credit Rating Agencies vis-a-vis the Current Economic Crisis: A Comparative Analysis” -- Brajendu Bhaskar.
5. “Rethinking the Linkages between Foreign Direct Investment and Development: A Third World Perspective” -- Shashank Kumar.
7. “The Place of Reasonableness in the Restraint of Trade: Just How Much does India depart from the Common Law” -- Shantanu Naravane.
8. “Lost in Transit: The Fate of Anti- Assignment Clauses in Patent Licensing Agreements in the Case of Mergers” -- Shreya Atrey.
9. “RK Anand v. Registrar, Delhi High Court: An Examination of the Law on Media Trials” -- Sneha Mohanty and Vrinda Bhandari
10. “Stretching the Limits of Statutory Interpretation: Critical Review of Bhatia International v. Bulk Trading" -- Vidhu Gupta
11. “The Information Technology (Amendment) Act, 2008 : The Provenance of E- Policing” -- Sakshi Sawhney

The Law Review is available at www.nalsarstudentlawreview.com and www.somethingaboutthelaw.com.

Update: Arun's earlier post also covered this new issue.

Thursday, July 22, 2010

Alternative Thinking Outside the "Law Firm" Box?

Many of us have lamented the fact that although the "national law schools" have churned out very gifted lawyers, we've lost many of them to law firms. It is but natural that many of them are attracted to financially rewarding jobs that law firms typically guarantee. However, given that these law schools were established to induce alternative forms of lawyering aimed at improving society, we have to admit that there has been a failure of sorts...and a massive one at that.

It pains me to see so many of our students devastated during the campus recruitment phase when they fail to land jobs with prestigious firms. And the one question I always ask is: are you sure this is what you want to do? Or are you merely following in the illustrious footsteps of your seniors? Surely, there are a million different ways of putting legal skills to use? Thinking "out of the box" and doing something different than being a mere cog in the wheel of corporate transactional lawyering is certainly more appealing?

More importantly, if you expand out the "base" of potential legal career opportunities, you don't need to depend so heavily on firms that come to recruit? And surely, this will help future generations of law students that take inspiration from you... and relieve themselves of the herd mentality to think differently?

Why don't you try something different, I ask in all earnestness?

I see a blank face...a blank stare...and often times, a smirk...

So what ails? Why don't many of our students consider alternative legal careers and look beyond law firms? Or perhaps join firms, but move beyond the typical corporate transactional work to do more pro-bono stuff?

I hope to engage with these maladies another day. In the meantime, I'm delighted to report on a fabulous alternative lawyering initiative sparked up by a bunch of bright lawyers who recently graduated.

Styling themselves as the Pre Legislative Briefing Service (PLBS), these young turks have begun engaging with the Indian law making process in a fairly intense way. They pick up drafts of recent bills that are before Parliament, study it extensively and come up with nuanced reports on the various legal/policy implications of the bill.

Most recently, they've done an in-depth study of the nuclear liability bill and raised points that stalwarts who've been shouting in the media have simply failed to appreciate. If you wish to read their analysis of this bill, please see this report posted on SSRN.

Engaging with legal policy at this level will no doubt improve the quality of our laws in the long run. And we will have to much to thank this bright bunch for.

I list out details of their service and the team below:

The Pre-Legislative Briefing Service (PLBS)

i) To provide rigorous, independent and non-partisan legal and policy analysis of Bills introduced in Parliament

ii) To suggest appropriate legal reform to enable bills to pass tests of constitutionality if challenged

iii) To suggest appropriate policy reform if the legislative policy is to be sound in principle and efficacious in practice

Members:

1. Arghya Sengupta, B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2008), Rhodes Scholar (2008), B.C.L., University of Oxford (2009) Current Status: M.Phil. Candidate in Law, University of Oxford.

2. Prashant Reddy T., B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2008) Current Status: Research Associate, Ministry of HRD Chair on Intellectual Property Rights, West Bengal National University of Juridical Sciences, Kolkata.

3. Sanhita Ambast, B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2009) Current Status: Candidate for the Masters in Law and Diplomacy and LL.M. joint degree, at the Fletcher School of Law and Diplomacy, Tufts University and Harvard University.

4. Shivprasad Swaminathan, B.S.L; LL.B., Indian Law Society, Pune (2004), B.C.L., University of Oxford (2006), Clarendon Scholar (2008) Current Status: D.Phil. Candidate in Law, University of Oxford

Contact: prelegislativebriefingservice@gmail.com

For those of you who've engaged with law making in this country and are privy to the legal illiteracy widely prevalent amongst Parliamentarians, you'll appreciate how valuable this offering really is.

More importantly, from the perspective of inspiring younger law students to think of alternative careers, the PBLS team couldn't have done better. Rather than playing around with the nitty-gritty of the law in badly drafted statutes, these recent graduates have decided to influence the very formation of the law itself. Certainly a much higher and more valuable terrain to play on. Perhaps law schools need to take a cue from this and focus more on the art and science of law making, rather than merely interpreting statutes and cases.

Monday, July 19, 2010

Recent legal scholarship on India and South Asia

Several law journals are continuing to post their content online for free. Here are some recent issues of interest:

i) The NALSAR Law Review's latest issue features articles by student authors on issues relating to criminal law, constitutional law, arbitration law, commercial law, trade/foreign investment law, and international law. Most of these focus on Indian law, though some have a broader perspective. The issue contains an article titled 'Doctrine of Arbitrariness and Legislative Action' by fourth year law students at NALSAR, Deepika Sharma and Radhika Gupta, that analyses equality law under Article 14 of the Indian Constitution, and takes as its foil a 2008 article in the Indian Journal of Constitutional Law by Abhinav Chandrachud, who is a contributor to this blog. My recent research on the Indian Supreme Court's equality jurisprudence reminded me of the doctrinal fluidity - and ambiguity - that characterises this area of the law, and the exchange between these pieces brings this out quite sharply.

The issue also contains an interesting case comment on the decision in R.K. Anand v. Registrar Delhi High Court (which was briefly discussed in this previous blogpost). The website of the journal appears to be temporarily down, but links to individual articles can be found on the blog Something About the Law here.

ii) The print issue of the NUJS Law Review's last issue (dated Oct-Dec 2009) has been out for a while, but is still unavailable on the journal's website. Hopefully, the editors will get their act together, because the issue has some very good pieces, including perhaps the first detailed treatment of the Supreme Court's decision in Santosh Bariyar's case (which has been discussed extensively in previous blog posts).

iii) Lastly, the latest issue of the recently established Drexel Law Review focuses on 'Perspectives on Fundamental Rights in South Asia' . It contains articles on : the use of foreign decisions in constitutional cases in India, Sri Lanka and South Africa, including such use in the Naz Foundation case (by Shylashri Shankar); socio-economic rights in Nepal (by Elisabeth Wickeri); uterine prolapse and gender rights in Nepal; gender rights and federalism issues in Jammu and Kashmir (by Sehla Ashai) and political censorship in Indian cinematographic laws (by Arpan Banerjee). The issue features a preface by Anil Kalhan and a foreword by Marc Galanter. Links to the PDF full text versions of each of these articles are available here.

Friday, July 16, 2010

Reservations over 50%?

Earlier this week, the Supreme Court passed interim orders in cases involving reservations over fifty percent. In today's Indian Express, I discuss the issue, and elaborate on why crossing 50 percent is more than a matter of degree.

Wednesday, July 14, 2010

"Socialism" in Preamble: another perspective

Guest Blogger: Kaushik Krishnan

The Supreme Court recently dismissed a petition filed by an NGO arguing for the removal of the word `socialist' from the Constitution's Preamble. The Court's reasoning was simply that since no political party has objected to it, and that the Election Commission has not yet had an occasion to derecognise a party that refuses to reaffirm its commitment to `socialism', there really is no cause, other than the academic importance of the question, that merits the hearing of this case.

As background, the whole question of the Election Commission derecognising political parties comes from Section 29A(5) of the Representation of People Act, 1951 which requires that each political party have a memorandum of association. This memorandum must include a specific provision that the `body shall bear true faith ... to the principles of socialism, secularism and democracy'. Without this, a body cannot be recognised as a political party.

V.Venkatesan wrote that through this dismissal, the Court has unwittingly given its approval to political parties to lie to the Election Commission regarding their commitment to the cause. Second, he says that it's important for academic questions to be resolved while they are still academic.

I wouldn't go that far on either claim. Regarding the Court's implicit approval, all the Court has said is that no political party has come out in opposition to the inclusion of `socialism' in our Constitution. Does this statement of fact, necessarily imply the Court's indirect declaration that political parties actually do not like socialism? Hardly. For starters, I'm sure that no political party will take lightly to being described as not `socialist'. Despite dictionaries defining the term as `a political theory advocating state ownership of industry' (Wordnet), the Indian meaning has become so diluted and ambiguous that political parties probably find it useful to latch on to a vague and overused term.

Incidentally, the Supreme Court shares a large portion of the blame for the way in which socialism has bloated in India. Its judgments have reaffirmed on many occasions that socialism aims to `end poverty, ignorance, disease and inequality of opportunity' (Secretary HSEB v. Suresh) and that it `aims at providing all opportunities for pursuing the [sic] educational activity' (DS Nakar v. Union of India). I'd like to see any political party step up and say it doesn't believe in that.

In fact, Anantrao Joshi moved a proposal in 2005 to amend the Representation of People Act, 1951 to remove the requirement that political parties adhere to the socialist requirement. In his speech, Joshi gave eight good reasons for its deletion. (All this comes from Shubhankar Dam's informative two part article on the topic in the Daily News, Pakistan). Needless to say, nothing came of it.

Second, on the question of academic debates, I find the Court's reasoning to be spot on. When none of the groups that could be affected by the term's presence have objected to it, why fix it? Yes, there may be many citizens who have strong reservations to the presence of the term in our Preamble (myself included), but it doesn't really legally affect our lives. Despite the frequent Supreme Court reaffirmations that socialism is an important guiding principle for Indian governance, the only law in India that actually requires some group to pay heed to this requirement seems to the Representation of People Act in Section 29.

Sure, we can also say that any government in power has to abide by `socialism', but has that really happened in the last decade and a half? It depends on how you look at it. If we take socialism, as it is properly understood, India is far from socialist today. If we take it, as the Supreme Court and political parties choose to understand it, it can at least be argued that India may be socialist.

This brings me to the third, and most important point. There may come a time when our political institutions attain the sufficient maturity that is required to concede openly that we are not really socialist. When that time comes, the body that should make this declaration should be the Parliament and not be the Supreme Court. It should not be the function of this Court to decide the content of our Constitution to the extent that it declare a word in our preamble to be void. It's easy for proponents of the judicial review and the basic structure theory to argue that the Court can do this.

The more pertinent and difficult question is whether the Court should. The basic structure theory was evolved at a time when the Court had the political and institutional credibility to make such a declaration. Since then, with each subsequent intrusion into the domain of law making, the Court has undermined that credibility. Today, it is overworked, understaffed, mismanaged and under constant criticism. The Court seems to have realised that the depth of its power exists only as long as such power is used sparingly and in the most deserving circumstances.

To use its power of review to entertain a question such as this is an unnecessary measure by the Court. Its restraint and respect for institutions of democracy is, in my opinion, noteworthy. I only hope that this is a sign of the beginning of a more mature and responsible judiciary.

(Kaushik Krishnan recently graduated from NUJS, Kolkata)

Tuesday, July 13, 2010

"Socialism" in Preamble

Supreme Court's order dismissing the petition against the use of the word, "socialism" in Preamble to the Constitution appears paradoxical. The Bench was correct in saying that no political party has opposed its retention in view of the changed circumstances, and that the issue at present, is academic, though important. The Bench has said that it could relook at it if any political party challenges its retention, and when the E.C. has to take a decision if a political party refuses to subscribe to it formally. But this stand exposes a profound paradox. The Preamble is not just for political parties, but all the citizens as well. If some political parties (ruling or the opposition) are unfaithful to the letter and spirit of the Preamble, in terms of what they practice and preach, can't the citizens seek the Court's intervention? In this case, the petitioner opposed the retention of the word 'socialism', because it apparently lost its relevance since the introduction of economic reforms. No political party is likely to say openly that it does not believe in socialism, and risk derecognition by the Election Commission. Therefore, the Court has perhaps unwittingly allowed the political parties to lie, rather than risk E.C.'s derecognition, and possibly the Court's approval to it later. Sometimes, academic questions need to be resolved, when they are still academic, so that truth alone triumphs. By describing the question as important, the Court has conceded that what the petitioner says is perhaps true. If so, allowing political parties to continue to lie under oath, is against our motto, Satyameva Jayate.

Sunday, July 11, 2010

James Laine vindicated

Supreme Court finally lifted its ill-advised stay of Bombay High Court's order lifting the ban on James Laine's book on Shivaji. Supreme Court's order, delivered by Justices D.K.Jain and H.L.Dattu, on July 9 is here. Earlier, James Laine refused to delete the paragraphs alleged by the State Government to offend, and as suggested by Justice Arijit Pasayat (since retired) when he heard the matter. Readers may find LAOT's earlier posts on this useful.

Tuesday, July 06, 2010

Due Process, Through the Barrel of a Gun

1. The US Supreme Court's latest opinion in the case of McDonald v. Chicago (available here) maps the trajectory of substantive due process doctrine, while holding that the second amendment right to bear arms for self defense applies against the states.

2. I had discussed in this op-ed piece in the Hindu some time ago how the Selvi and R Gandhi cases were Indian substantive due process cases.

Monday, July 05, 2010

Supreme Court's judgment on Narco tests: the debate continues

One of our regular and esteemed readers, Shekhar Hattangadi, has written this interesting piece in today's DNA, expressing his disappointment with the judgment on Narco tests. Shekhar is a lawyer and an adjunct professor of medical jurisprudence at Mumbai University. Shekhar and I disagree on the import of Supreme Court's judgment, but readers are welcome to form their own opinion on the issue. My article in Frontline is here.

Thursday, July 01, 2010

Extension of deadline for submission of papers to Lassnet 2010

Dear All,

On the requests of a number of people, the deadline for submissions of abstracts for papers and panels for the Second Law and Social Sciences Research Network (LASSnet) Conference to be held in Pune from December 27th - 30th, 2010 has been postponed to July 31st, 2010. Please send in your abstracts to Siddharth or Sruti at lassnet2010@gmail.com.

There wont be further extensions. Please help us bring a closure to this process by sending in your abstracts in time. Please forward this mail. Many thanks. Siddharth and Pratiksha



CALL FOR PAPERS

LASSnet 2010: Siting Law

Second Conference of the Law and Social Sciences Research Network (LASSnet)

DECEMBER 27-30, 2010

Venue: Foundation for Liberal and Management Education (FLAME), Pune, India



The Law and Social Science Research Network (LASSnet) was established in 2008 to bring together scholars, lawyers and doctoral researchers engaged in the research and teaching of issues connected with the law in different social sciences in contemporary South Asian contexts. The idea was to create a common forum for the exchange of ideas, work, materials, pedagogies and aspirations from a range of different institutional locations and theoretical frameworks. Given how much of our understanding of the law in South Asia has been shaped by the experience of social movements, we also hoped to provide a space in which activists, legal practitioners, and academics of all stripes could get together to share experiences and reflections. The creative tensions that emerged from such conversations, we felt, might lead to new agendas for both research and practice in the future.

The inaugural LASS conference was held at the Centre for the Study of Law and Governance, Jawarharlal Nehru University, New Delhi, in January 2009. In the inaugural conference of LASSnet, we saw a number of conversations across disciplines among legal scholars, practitioners, activists, anthropologists, historians, philosophers, social theorists, political scientists, economists and science and technology scholars. For the second edition of the LASSnet conference we have chosen to continue with such inter-disciplinary excavations, and to venture further afield.

By focussing on the multiple sites of law we seek to open out ways of thinking about the social life of law and legality and its relation to questions of violence and injustice in South Asia. We recognize that the project of modern law emerged through the universalizing of a particular form of rationality and established itself in a large part of the world through the violent history of colonialism. The project of law and the project of modernity often became synonymous, and legal scholarship also tended to reproduce this relationship.

We are therefore interested in enquiries that critique monolithic forms of legal rationality. If the project of critiquing is to have any relevance, it is in its ability to conjure possibilities and alternatives that have remained unimagined. Thus another way of thinking about the relationship between law and the social sciences would be through the metaphor of ‘sighting law’, which invites us to look at a range of social practices which have either been marginalized as custom or dismissed as affect and hence deemed irrelevant to legal theory.

To be attentive to the multiple sites of law is also to be attentive to the role played by the social sciences - particularly anthropology and history- in opening out the way we think of law as a cultural and not merely as a legal process. LASSnet seeks to extend the ways in which the law can be ‘cited’ in other disciplines, and we hope that the sub themes of this edition of the conference allows us to collectively explore the diversity of forms that may exist, both within the formal legal structure as well as outside it.

The routes which social scientists and legal scholars took to the sites of law, and the methodologies that they developed have traditionally been accounted for in terms of their differences. We wish to see this difference as being precisely the common ground on which we stand, and as the basis on which we can cite scholarship about legal experience differently.



CONFERENCE SUB-THEMES

While the Steering Committee will make its selection from as wide a basis as possible, we would particularly welcome presentations that address the following themes, which we see as especially interesting to consider in the contemporary South Asian context. Please note that the sub-themes are merely illustrative of the goals of the conference and are not exhaustive.



1. Law’s Publics: Counter legalities and Counter Publics

The law often claims to have an unmediated access to the public, for instance in Public Interest Litigation or in the determination of what counts as legitimate public purpose. Struggles for the recognition of socio-economic rights and dignity have often been premised on the claimants being recognized as legitimate public actors. What role is played by the law in the constitution of a public, and what role is played by the notion of a public in thinking about the legitimacy of the law? Conversely, what role is played by the law in the constitution of the hybrid realm of public-private entities which facilitate the flows of a globalised capital? Is the valorized language of illegality the only means of expressing resistance to law, or can political struggles, marked by their inability to be properly constituted in the sphere of liberal legality, resurface as counter publics who nevertheless stake a claim to legitimacy? In a time of ever more inventive forms of neo-liberal violence, how can counter-publics avoid capture by a legal apparatus intent on re-territorialising the terrain of the political?

2. Law like Love: Law and Affect

The ‘affective turn’ in the social sciences is beginning to speak to legal debates. How do we begin to undertake a genealogy of the affective life of law in which reason and unreason intermingle? To explore the affective life of law is to understand the ‘body of law’ not merely as an archive of legal judgments, but to engage seriously with ideas of corporeality in law, and to acknowledge that the power of law emanates as much from its affective force as its symbolic power. How does the law deal with this messy world of affect and emotion, and what are the ways through which inter disciplinary scholarship can redress the historic disavowal of affect in legal scholarship?





3. The Careers of Constitutionalism in South Asia

Constitutions as a genre have deep roots within the histories of European universalism. The emergence and experience of postcolonial transformative constitutions, marked by a different relation to questions of justice, time and memory, have significantly altered this universal narrative. How do we account for the various histories of this transformative, and even insurgent constitutionalism? At the same time there seems to be a tension between the constitution as a text of governance and text of rights. How do we critically uncover other histories and sites through which we can understand the careers of constitutionalism in South Asia? Finally, how does contemporary constitutional theory respond to the challenges posed by the emergence of the new global economic constitutionalism?

4. Theatres of Justice

Living as we do in an age saturated by hyper-science and hyper-media, we have a plurality of places in which legal norms are produced. The blurring of the lines between media, science and culture makes it imperative for us to explore the new and emerging sites of legal meaning. There is sometimes even a blurring of these spaces, as evidenced in various reality TV shows that mimic the structure of the courts. How for instance do ideas of expertise move from the laboratory to the court and back? How do images of legality produced in a studio serve as the basis of a new legal imagination? How are we to understand these multiple scenes of the law, in which the formal judicial process appears as one of the many competing actors in the theatres of justice?



INSTRUCTIONS FOR SUBMISSION

In keeping with the eclectic spirit of LASSnet, we welcome submissions that address concerns of the LASSnet broadly, including papers, panels, and presentations on the four sub-themes detailed above. We welcome proposals for panels as well as for individual paper presentations.

Panel proposals: Panel coordinators should submit a panel description of 300 words as well as a proposed list of panelists (ideally no more than four per panel). The panel description should be accompanied by individual paper proposals for each panelist, following the instructions below. Coordinators may also choose to propose a chair or discussant for the panel as a whole.

Individual papers: Paper abstracts (300 words) should be submitted to Siddharth Narrain and Sruti Chaganti at lassnet2010@gmail.com. Abstracts may be in Word, WordPerfect, or RTF formats, following this order: author(s), affiliation, email address, title of abstract, body of abstract. Abstracts should be submitted no later than July 1, 2010.

We will get back to you within eight weeks of receiving an abstract. If an abstract is accepted for the conference, a full draft paper should be submitted to the conference secretariat by November 15, 2010 and distributed to the discussant and fellow panel members no later than December 01, 2010. In the case of pre-formed panels, this will be the responsibility of the Panel Coordinator.

The maximum duration of individual presentations within each panel will be 20 minutes.

Further announcements about registration, funding and venue related details will be made available at www.lassnet.blogspot.com and (in due course) www.lassnet.org. Please contact Siddharth Narrain or Sruti Chaganti (lassnet2010@gmail.com) for additional information.



STEERING COMMITTEE FOR LASSnet 2010:

Lawrence Liang (lawrence@altlawforum.org), Alternative Law Forum (ALF) (www.altlawforum.org)

Siddharth Narrain (siddharth.narrain@gmail.com), ALF

Sitharamam Kakarala (ram@cscs.res.in), Centre for the Study of Culture and Society (CSCS) (www.cscsarchive.org)

Sruti Chaganti (sruti@cscs.res.in), CSCS

Maya Dodd (mayadodd@gmail.com), Foundation for Liberal and Management Education (FLAME), Pune (www.flame.edu.in)

Pratiksha Baxi [LASSnet anchor] (Pratiksha.Baxi@gmail.com), Centre for the Study of Law and Governance (CSLG), Jawaharlal Nehru University (JNU)

Shrimoyee Ghosh (shrimoyee@gmail.com), CSLG, JNU

Stewart Motha (S.Motha@kent.ac.uk), Kent Law School, UK

Arudra Burra (arudraburra@yahoo.co.in), Princeton University, US

Brenna Bhandar (brenna.bhandar@gmail.com), Kent Law School, UK

Anuj Bhuwania (anujbhuwania@gmail.com), Columbia University, US