Wednesday, December 29, 2010

Debating Legislation

This blog has debated pending Bills on many occasions. A recent post on the Accountability Initiative blog discusses the importance of pre-legislative scrutiny and a major recent civil society effort in Delhi to address this issue. The post covers the major themes discussed at the meeting, and the various ways in which we can public debate and limit information asymmetry around Bills pending before Parliament.

Of Daughters and Debtors

Justice Gyan Sudha Misra's declaration of assets is available here. The Supreme Court judge has been criticized for listing "Two daughters to be married" under the heading "any other liabilities".

Tuesday, December 28, 2010

Binayak Sen's Kafkaesque travails continue

On Friday, December 24, 2010, a trial court in Chhattisgarh found Dr. Binayak Sen and two others guilty of criminal conspiracy to commit sedition under Section 124(a) read with Section 20 (b) of the Indian Penal Code, and sentenced them to life imprisonment. The trial judge, B.P. Verma, also found the three men guilty of charges under other emergency laws in his judgment (in Hindi, available here). The judgment has been met with outrage, and several newspapers and public intellectuals have offered their take on the deficiencies of its reasoning. (Several of these are available on the excellent and regularly updated website of the Free Binayak Sen Campaign).

We have covered the twists and turns of Dr. Sen's travails intermittently (some of these posts are available here), but it is clear that the case merits sustained and committed attention.

Here are links to some particularly insightful early critiques and analyses:

1) Jyoti Punjwani, a journalist and rights activist, has a piece titled "The Trial of Binayak Sen" in the latest issue of the EPW (Dec 25, 2010). Written before the trial court's judgment came out, the article details "discrepancies and contradictions on material points" in the evidence offered by the prosecution in the trial. (Here is another link to this excellent article that will remain in the public domain).

2) Ilinia Sen, Sudha Bharadwaj and Kavita Srinivas offer a detailed analysis of the content and logic of the trial court's judgment, focusing on its most acute problems.

3) Shiv Vishwanath's open letter to the Prime Minister is one of several campaigns that seek to highlight the extreme injustices involved in the case. (Hat tip: Kafila, which is closely following reactions to the case).

4) And finally, Dr. Binayak Sen's 'Final Statement' to the trial court, where he makes a compelling case in his own words.

Some commentators have expressed hope that the Indian higher judiciary's record on human rights cases will make this an easy case to be overturned on appeal. However, as close followers of the Indian higher judiciary's record on emergency powers know, that record is quite a mixed one, making this far from an easy case. In cases like these, sustained civic action can remind the courts of the importance of their role as guardians of the constitution.

Saturday, December 25, 2010

Consilience 2011

The Law and Technology Committee (elTek) of the National Law School of India University, Bangalore is hosting ‘Consilience’, a conference where contemporary issues of critical relevance in the field of law and technology are addressed. Past editions of the conference have engaged with a vast spectrum of cutting edge issues such as “Legal Aspects of Business Process Outsourcing”, “Biotechnology and the Law” and “Free and Open Source Software" drawing in on the rich experience of luminaries like Mr. Montek Singh Ahluwalia (Deputy Chairman, Planning Commission of India), Mr. R. Ramraj (MD and CEO, Sify Technologies Ltd.), Mr. Richard Stallman (Founder – GNU Project). Last year's conference, the theme for which was "Internet Intermediary Liability in India", has been hailed to have made a rich contribution to the evaluation of status quo and the future trajectory of intermediary liability in India by bringing in diverse perspectives from the academia, the industry and other important stakeholders. Some of the keynote speakers at the Conference were Ms. Wendy Seltzer (Founder, Chilling Effects Clearhouse and Fellow, Berkman Centre for Internet and Society), Mr. Gavin Sutter (Lecturer, University of London ) and Mr. Sunil Abraham (Executive Director, Centre for Internet and Society, Bangalore). Details and conference videos from last year's conference are available at http://www.consilience.in/

The 2011 edition of Consilience will focus on the theme of privacy and how it affects individuals and organisations. Consilience 2011 thus seeks to explore the interface between privacy and technology, the effect technology has on our understanding of privacy, and how technology shapes the contours of privacy and is in return shaped by privacy. Specific dimensions that the conference will engage with include privacy in the context of e-commerce transactions, social networking sites, upcoming gadgets, its equation with the State (with a special focus on the upcoming Unique Identity number project). Updates regarding the schedule of the conference will be posted on http://www.consilience.in/

Tuesday, December 21, 2010

Rajya Sabha Committee Report on Torture Bill

The Rajya Sabha Select Committee on the Torture Bill has recommended significant amendments to the Prevention of Torture Bill passed by the Lok Sabha. These recommendations include widening the definitions of 'torture' and of 'public servant', increasing the limitation period for filing a complaint to up to 2 years, provision for judicial review of a governmental decision to refuse sanction to prosecute, and a provision to clarify that torture shall not be justifiable even in the context of war, threat of war, or on orders of a superior. The full report is available here.

[For past coverage of the Bill on this blog, please click here.]

Thursday, December 16, 2010

Idols in Law

The current issue of the Economic and Political Weekly carries a special section of articles on the Ayodhya judgment. Anupam Gupta, one of the counsel who appeared before the Lieberhan Commission, does a close reading of the suits to suggest that the decision stands on very flimsy legal grounds. Gautam Patel reviews the evidence to suggest that the judgment is politically expedient at the cost of judicial integrity. Historian Kumkum Roy makes a thoughtful argument about how questions of faith can be addressed through a legal discourse, and more importantly, how a person of faith (in her case a practising Hindu) should respond to the court's treatment of Hinduism. To this end, she draws on a survey she carried out amongst women about what Ram means to them. P.A Sebastian makes a fairly rehearsed argument that this is the most recent in a series of judgements by Indian courts undermining secularism. Historians Supriya Verma and Jaya Menon who were observers during the ASI excavation point out the flaws in the report noting many irregularities and outdated methods they observed. Verma and Menon focus on the perception of archeology as an exact science and the role played by the ASI in fostering the impression. They attribute the reluctance of archeologists to critique the ASI, to its complete monopoly over heritage management. "Any archaeologist in India or from outside who wants to explore or excavate sites has to obtain a licence from the ASI. So no field archaeologist is willing to speak out against it or its outdated methods." Yet, instead of being the expert of experts that the Allahabad High Court declared it to be they note "academically, the work that archaeologists of the ASI have produced has little standing within the social sciences in India and abroad."

Diaspora, Development, and Democracy: The Domestic Impact of International Migration from India

Devesh Kapur, who directs the Centre for the Advanced Study of India at the University of Pennsylvania, has just published a new book: Diaspora, Development, and Democracy: The Domestic Impact of International Migration from India (Princeton University Press / Oxford University Press). A recent review of the book in the Indian Express is available here.

The Centre for Policy Research (CPR) and Oxford University Press are organizing the book launch in India on Thu 23 December at 3:00 PM, Lecture Hall, India International Centre (IIC) Annexe, 40 Max Mueller Marg, New Delhi. A panel discussion will feature Dr. Pratap Bhanu Mehta (President and Chief Executive, CPR), Shri Montek Singh Ahluwalia (Deputy Chairman, Planning Commission), Shri Jairam Ramesh (Minister of State - Independent Charge, Environment and Forests), and Dr. Sanjaya Baru (Editor, Business Standard). All interested should feel free to attend.

From the blurb:

What happens to a country when its skilled workers emigrate? The first book to examine the complex economic, social, and political effects of emigration on India, Diaspora, Development, and Democracy provides a conceptual framework for understanding the repercussions of international migration on migrants' home countries.

Devesh Kapur finds that migration has influenced India far beyond a simplistic "brain drain"--migration's impact greatly depends on who leaves and why. The book offers new methods and empirical evidence for measuring these traits and shows how data about these characteristics link to specific outcomes. For instance, the positive selection of Indian migrants through education has strengthened India's democracy by creating a political space for previously excluded social groups. Because older Indian elites have an exit option, they are less likely to resist the loss of political power at home. Education and training abroad has played an important role in facilitating the flow of expertise to India, integrating the country into the world economy, positively shaping how India is perceived, and changing traditional conceptions of citizenship. The book highlights a paradox--while international migration is a cause and consequence of globalization, its effects on countries of origin depend largely on factors internal to those countries.

A rich portrait of the Indian migrant community, Diaspora, Development, and Democracy explores the complex political and economic consequences of migration for the countries migrants leave behind.

Thursday, December 09, 2010

US Patent Influence and the Independence of our Tribunals

A recent story in the Mint exposes a questionable letter from the US Commerce Secretary, Gary Locke to his Indian counterpart, Anand Sharma, the Hon'ble Minister of Commerce. I extract the relevant portions of this letter as produced in the Mint piece:

“Dear Minister, I look forward to meeting with you during my upcoming trip to India with President Obama. As we advance and strengthen the US-India bilateral commercial relationship with this visit, India should fully consider the requisite business climate for spurring innovation, especially with respect to intellectual property protection,” begins the letter, dated 2 November. “Therefore, I am particularly concerned that the US biopharmaceutical firm Gilead’s HIV/AIDS drug Viread receives fair consideration.”

For those interested, I've detailed out the story and its implications on SpicyIP. In particular, readers of this blog may be interested in aspects of this story dealing with the IPAB, a specialised IP tribunal and how its very structure violates constitutional canons. I reproduce relevant portions below:

"In this letter, dispatched just days prior to Obama's India visit, the US Secretary attempts, in his official capacity, to advance the corporate commercial (patent) interests of Gilead, a multinational drug corporation, in which Donald Rumsfield (ex Secretary of Defence) was rumoured to have held shares during the height of the Tamiflu controversy.

This letter deals with Gilead's pending patent appeal with the IPAB, where it challenged the rejection of its patent covering Viread, an HIV drug, by the Indian patent office. Secretary Locke asks that Gilead's case receive "fair" consideration.

In all fairness, the Secretary only asked that the case receive "fair" consideration. However, as DG Shah rightly notes:

"I doubt any other country, including the US, would entertain if the government of India takes up such corporate issues with their judiciary mechanism. Ideally, our government should have discarded the US plea immediately, saying the patent tribunal here is strong enough to decide such matters independently,” said D.G. Shah, secretary general of IPA."

Further, the fact that this letter was sent to the Minister for Commerce (who controls the patent office) raises some problematic issues with the "independence" of the Intellectual Property Appellate Board (IPAB), a specialised IP tribunal tasked with dealing with certain kinds of IP disputes.

As some of you may know, the IPAB effectively replaced the functions of the High Court, in so far as a large range of IP disputes were concerned. One would have naturally expected the IPAB to be structured as close as possible to an independent judiciary. Unfortunately, this was not to be ...and those that were responsible for drafting IPAB rules and pre-requisites for appointment ensured that they themselves and their brethren (Indian Legal Service [ILS] officers) got selected to these plum posts. Little wonder then that the IPAB is seen as just another wing of the "executive". And not as an independent tribunal functioning as an organ of the "judiciary".

Paradoxically enough, our own judiciary (Supreme Court and High Court judges) has been kept out of the process for selecting "judicial" members at the IPAB....this prerogative lies solely with the government (the executive). More problematically, while Article 217 of our Constitution recognises advocates with 10 years of practice as being eligible to be appointed as High Court judges, the IPAB does not consider them fit enough to be appointed as judicial members! Since the inception of the IPAB, only ILS (Indian Legal Service) officers with next to no IP experience have been appointed as "judicial" members, with some of them even being elevated to the exalted status of Chairman and Vice-Chairman.

All of this results in a flagrant violation of norms laid down in the NCLT judgment, where the Supremes came down harshly on tribunals that, far from being set up as "independent" organs capable of rendering impartial justice, ended up being stooges of the Executive.

Given this background, Secretary Locke may perhaps be forgiven for thinking that our Hon'ble Minister, Anand Sharma has the power to influence the working of the IPAB. In fact, the Mint report itself states that Secretary Locke's letter was forwarded to the DIPP, the executive arm of the government responsible for patent matters.