Wednesday, November 28, 2012

JGLS National Student Research Colloquium

JGLS is taking applications (due December 15th) from law students for its National Student Research Colloquium of Contemporary Challenges of Law in India. The Colloquium will take place in March 2013. For more information click here.

Tuesday, November 27, 2012

Right to Public Service Acts

I thought some might be interested in this recent report I wrote for Accountability Initiative. It's based off some research I did in Madhya Pradesh and Bihar on the implementation of the relatively newly passed right to public service acts in those states. I find the development of these Acts - in over a dozen states in the past couple years - fascinating for several reasons.  First, it's an example of a state-led legislative movement. There have certainly been proponents of a similar act in the center, such as Anna Hazare/IAC and NCPRI, but it's the states - usually led by their Chief Ministers - that have gotten this rolling (the center still hasn't passed anything similar). The implementation and political commitment to these acts certainly varies by state, but it's something that the states seem to be proudly owning and working to be innovators in.  The first movers tended to be NDA states, but now the states that are passing such acts encompass a much broader political spectrum.

Second, these acts seem to be an example of the migration of a legal technology from one setting to another. The state acts almost all incorporate a triggered penalty against a bureaucrat if they do not provide a designated service (such as giving an income or residence certificate) within a set number of days. The inspiration for this triggered penalty seems to have clearly come from the Right to Information Act where it was perceived to be critical to the success of that Act. In the struggle to implement laws, policymakers have come across one tool that they perceived to be successful in one context and are now using it in another context.

Third, despite this borrowing from one context to another, it's unclear whether the triggered monetary penalty is the right tool for the job. There needs to be much more focus on grievance redress for public services, and citizens should have and should demand much stronger procedural safeguards. Too often there is a sense of impunity amongst bureaucrats, especially when they deal with the poor concerning public services. Yet, I couldn't find another country that has a similar triggered monetary penalty they use to ensure their bureaucrats perform their jobs correctly. They reprimand/demote/fire officials for not following the law or not performing at a certain standard, but this triggered monetary penalty seems different. That certainly doesn't mean that a triggered monetary penalty can't be effective at helping ensure officials implement policy, but it should make us wonder about what other reforms might be necessary. This is especially true because some states that have passed Right to Service Acts have had very poor implementation, while in others the implementation has been reasonably good - or rather, service delivery has been seen to improve when a package of reforms has been brought in (such as in Bihar, and to some extent MP). However, it's not clear which of the reforms are causing the largest impact in the improvement of service delivery.

These Acts are a clear manifestation of the ever-rising demand for better public service delivery in India. Although many lawyers are already deeply and passionately involved in helping meet this demand, I think there is a need for more lawyers, and in particular legal academics, to play a larger role.  Administrative law clearly plays a central role in these debates, but the little I've been exposed to how administrative law is taught in India hasn't convinced me that it's preparing students to grapple with these challenges - particularly how administrative law relates to and effects policy implementation. (As an aside, I wrote an op-ed a while back on how rulemaking might be reformed to improve responsiveness to citizens). Service law is another natural area that legal academics could contribute more in improving service delivery. What legislative (and constitutional) framework would allow sufficient protections to government employees - for what, after all, is often a thankless and difficult job - while also properly incentivizing employees to do their jobs?  What are the tradeoffs involved with different laws and institutional design proposals?  It strikes me that the Right to Service Acts are in many ways trying to create an alternative penalization mechanism because current service law has proved inadequate to the task. Yet, in the long-term such a bypass strategy is likely simply delaying larger changes that need to be made, including deploying a far broader array of incentives and disincentives for bureaucrats within existing service and administrative law.

Monday, November 26, 2012

Reflections on Law Day -- 26 November 2012


Guest Post by Abhinav Sekhri, a law student at the National Law School of India University, Bengaluru
The last decade of British rule in the subcontinent had immense political drama but little in coherent political policy, the product of which was the passage of the India Independence Act on July 18, 1947. The Act gave the people a date – August 15 – little short of a month ahead which would mark a historic shift and grant what people had come to covet most; independence. The Act also mentioned another date – December 9, 1946 – on which a body burdened with the task of creating a document that would define the nation to be, first convened. The importance of a Constitution and what it means to a legal system continues to be a subject of interesting academic debate, but its significance remains beyond question. A Constitution is unique; it is an amalgamation of the beliefs of our forefathers at the time, their ideals for the future nation, and a representation of what the present thinks as well. Following from this, it is obvious that not every Constitution lasts; one need not look far for examples. However, the Constitution that the people of India gave to themselves and adopted on November 26, 1949 continues its tryst with destiny.
Few events since 1946 have surpassed the making of the Indian Constitution in scale and ambition. Little need be said of the diversity of the Assembly (albeit with obvious limitations of class and gender), with 207 members initially and 284 members at the conclusion of the Project, providing a voice to the vast masses who had recently acquired a new political identity. This acquisition was marred with violence and witnessed an exodus unlike any other in modern history. It was in this climate of hostility and uncertainty that a group of people met and debated over the destiny of a nation many feared would be stillborn. Some were ministers in the interim parliament, and juggled their responsibilities of manning the helm of the present while keeping the ship on course for a steady future admirably. Indeed, Pandit Nehru who was a giant figure in the Assembly could himself be seen quelling (and fighting) riots in Delhi streets at times. The Constitution is their biggest legacy, but mustn’t be understood as our inheritance.
26 November 1949 was not heralded with fanfare akin to Independence Day two years ago. The pressmen were in their boxes reporting on the completion of an event they saw begin. The President of the Assembly delivered a concluding speech outlining the difficulties faced, and highlighted the significant features of the fruit of their labour. Misgivings were made public, Gandhi was remembered and thanks were given to those who worked hard behind the scenes. The final motion moved was put to motion thereafter, with the question being
“That the Constitution as settled by the Assembly be passed.”
Words describing an event seldom do justice to the reality portrayed. Government publications are especially adept at portraying any excesses – of sorrow or jubilation – in the most muted of ways. There could not be a better example of this than the six mere words in the records of the Constituent Assembly which tell us that “The motion was adopted, (prolonged cheers)”. A journey which began three long and arduous years ago had finally come to an end. All the members individually went up to the President and shook his hand. It was drizzling outside, a good omen they said, as they tried to look past the raindrops to discern what might the future bring.
The Constitution has seen an interesting 62 years since the 284 appended their signatures on January 26 1950. After relatively smooth settling, it faced its biggest test during the ‘rule’ of the daughter of a prominent Assembly member. It bought those alive from the journey of decades ago to come together as the Constituent Assembly Members’ Association (Dreams and Realities) to protect their cherished creation. The Constitution came out relatively unscathed, although with some modifications, and has not faced similar circumstances since.
Today, we stand in their place looking beyond our windows. Some of the landscape outside appears clearer, coloured by the experience of the past 62 years. Most of it remains the same for us as was for them though – hazy, with hopes and aspirations drawing blurry lines across, forming patterns to interpret for the gainsayers and naysayers alike.
Abhinav Sekhri

Sunday, November 25, 2012

Guest Post: Remembering Shahid Azmi: Can the Love of Justice be Assassinated?


By Arvind Narrain and Saumya Uma

Progressive lawyers, social activists and academics have invested much time in trying to puzzle out what is the progressive potential of law. Sometimes, answers to deep philosophical questions emerge from a single life. Shahid Azmi’s life   (1977-2010) exemplifies one answer to this perennial question. It was a life which took to the legal profession with the objective of using law as a shield and tool in the quest for justice. It was also a life which was tragically cut short, when Shahid Azmi was assassinated at the age of thirty three.

Shahid entered the legal profession, emerging out of a crucible of experiences which few people have had. At the age of sixteen, in the midst of the Mumbai communal violence of 1992-93, he faced violence from the mob, courageously confronted a policeman who was threatening to shoot a woman and thereafter did relief work in the Muslim community. Disillusioned by the way Muslims were targeted in Mumbai 1992-93, he then left to Kashmir with the aim of joining the militants. Unhappy with that experience, he returned to Mumbai.

In December 1999, he was arrested by the Mumbai police and taken to Delhi where he was implicated in a plot to assassinate politicians including Bal Thackeray.  He was in jail for five years, during which he experienced various forms of physical and mental torture as well as several months of solitary confinement. According to Shahid’s brother, Khalid Azmi, in Tihar jail, Shahid was told by one of his co-prisoners: “There are two ways in life: one is to take to the gun to assert your rights, but that is the wrong path. You can also take a pen and fight your enemies till your death. Which path you decide is in your hands.” Shahid was also encouraged by Kiran Bedi to study.  He completed his twelfth standard as well as a B.A. while in Tihar jail. He was subsequently acquitted by the Supreme Court.  On his release, at the age of twenty-two, he was determined to continue the struggle against injustice.  For this reason, he studied and completed a course in both journalism and law.

Shahid Azmi’s journey from the Mumbai slums to courts is unique. His life in Govandi in Mumbai, where he was raised in a lower middle-class woman-headed family with four brothers, taught him the meaning of poverty and deprivation; the communal violence in Mumbai made him conscious of the vulnerability of Muslims in a climate charged with religious fundamentalism; his experiences in the Tihar jail gave birth to a feeling, that perhaps law was a tool in the struggle against oppression. Shahid did not have the advantage of an affluent family, a law degree from a renowned university or clientele which was passed down from other family members. He stepped into the helms of the legal profession with a baggage of disadvantages, including the fact that his Muslim identity and the history of imprisonment put him on the radar of the police for several years after his release from jail.

As a lawyer in his brief but impressive career of seven years, he represented those who were falsely accused of terror charges by an Indian state all too willing to tar innocents with the brush of terrorism. The iconic case in Shahid’s legal career was the trial in the Mumbai terror attacks of 26 November 2008. Shahid represented Faheem Ansari who was a co-accused along with Ajmal Kasab.

Shahid’s sharpness and brilliance as a criminal lawyer was instrumental in securing the acquittal. In Khalid’s opinion, Shahid was able to cast reasonable doubt on the case of the prosecution that Faheem Ansari was indeed involved in the attack at all. The state’s case was that Faheem prepared the map, went to Nepal and forwarded it to Sabauddin who forwarded it to Inter-Service Intelligence (ISI) or Lashkar-e-Toiba (LeT) and the map was shown as recovered from the pocket of Abu Ismail - who was killed in the same encounter in which Ajmal Kasab was taken into custody.  Shahid’s argument was that Faheem never prepared a map, and that at the relevant time, Faheem was in Lucknow jail. Shahid highlighted to the court that the map which was shown as being recovered was a fresh map and did not even have folds on it. There was not a single drop of blood on it, which was most strange, if it had actually been recovered from the pocket of Abu Ismail. The map is supposed to have changed many hands, and travelled from Nepal to Pakistan and from Pakistan via sea to Mumbai and was yet creaseless and had not become soft due to the sea’s humidity. Shahid also questioned the need for a hand-drawn map in the age of computers, as well as writings with two different inks on the panchnama – indicative of manipulation of evidence. The cross-examination of Shahid ensured that Faheem was acquitted by the trial court. Unfortunately Shahid was killed some months before the order of acquittal dated 3 August 2010. Both the High Court and the Supreme Court concurred with the findings of the sessions court subsequently.

Shahid represented the accused in other cases such as the Ghatkopar bus bombing case of 2002, Malegaon blast case of 2006, Aurangabad arms haul case of 2006 and Mumbai train blasts of 2006. Shahid also took up the cases of 64 suspected operatives of the Indian Mujahideen involved in the Ahmedabad terror strikes of 2008.  He argued that the Maharashtra Control of Organised Crimes Act (MCOCA) should be used for organized crime but not for terror cases. He argued that Section 2 (1)(e) of MCOCA which focuses on "causing insurgency" could not be justified solely on the basis of confession unless corroborated by circumstantial evidence.  The Supreme Court responded positively and stayed the trials in Malegaon blasts case, Mumbai train blasts case and Aurangabad arms haul cases.

Shahid alleged custodial torture of persons accused in the Mumbai train blasts case, in Arthur Road jail and petitioned the Bombay High Court in July 2008.  The High Court ordered an inquiry and found his allegations to be true, and held that jail superintendent Swati Sathe was responsible for supervising and directly perpetuating the torture.  Strictures were passed against her by the court and predictably, she was transferred without loss of pay. Shahid was also successful in preventing the screening of the film ‘Black Friday’ until completion of the trial into the 1993 attacks, in order not to prejudice the mind of the public or the courts.  Unfairly named as a ‘terrorist’s lawyer’, he did not confine his work to anti-terror cases, but worked for asserting the rights of the poor who were ousted when Mithi river was beautified as well as slum dwellers whose houses were being demolished. The numerous people who sought his legal assistance and the late hours which Shahid kept are testimony to his commitment as well as his courageous advocacy.

The words of Roy Black - an American criminal defense lawyer – were pinned on Shahid’s desk and inspired him till the day of his death. It aptly summed up the principles Shahid stood by in his life:

“By showing me injustice, he taught me to love justice. By teaching me what pain and humiliation were all about, he awakened my heart to mercy.  Through these hardships I learned hard lessons. Fight against prejudice, battle the oppressors, support the underdog. Question authority, shake up the system, never be discouraged by hard times and hard people.  Embrace those who are placed last, to whom even bottom looks like up.  It took me some time to find my mission in life – that of a criminal defense lawyer. But that ‘school’, and that Teacher, put me on my true path.  I will never be discouraged. Even thorns and thistles can teach you something, and lead to success.”

Perhaps emblematic of the impossibility of extinguishing the ideal for which Shahid stood for is the path taken by his youngest brother Khalid. Khalid was inspired to study law by Shahid, who told him that sooner or later he would be killed and that ‘if something happens to me you should carry forward the work’.  It was barely four months after Khalid completed studying law that Shahid was shot dead in his office in Kurla. The responsibility fell on Khalid to take up his brother’s cases and complete them.

The time following Shahid’s assassination was a time of fear, with many advocates unwilling to take on Shahid’s cases. However Khalid ensured that there was a continuity in his brother’s work by first appointing counsel after much difficulty, and thereafter arguing the cases himself.  He simultaneously built a team of young and committed lawyers to carry forward the sensitive and life-threatening work. Khalid himself is barely thirty years of age and seems too young to discharge such an enormous responsibility.  When asked whether he was ever afraid that he too could be killed, Khalid responded:  ‘I have never felt a fear because I have nothing to lose. I have lost my brother - that means that I have lost everything.’ It is also admirable that their mother, Rehana Azmi, after losing one son, extends consistent support to the work of the other son in the perilous path of justice, while the eldest brother, Arif Azmi, quietly backs his family.

Shahid’s story also spoke directly to film director, Hansal Mehta and producer Anurag Kashyap, who recently completed a film on Shahid’s life, titled ‘Shahid’. A Shahid Azmi memorial lecture has also been commenced in February 2012. These will, perhaps, inspire many others to take forward the legacy of Shahid.

The question which his killers need to ponder is - Did you kill the desire for justice by killing Shahid Azmi? Shahid’s assassination may have created an initial fear and insecurity among defence lawyers handling similar cases.  But today, it has inspired numerous Muslim youth in the locality where he worked and was killed, to study law and enter the legal profession, to carry forward the ideals that Shahid stood for.  This, despite the clear and imminent danger to their own lives, which they are acutely conscious of. In a manner similar to the shooting of Malala Yousufzai that has strengthened the determination of girls to access education, the killing of Shahid has given a new lease of life to his work - from within an underprivileged community of Mumbai that has long been wronged by state agencies and fundamentalist groups alike.  The assassination of Shahid, instead of killing the work that he had undertaken, has only succeeded in multiplying the quest for justice in innumerable hearts and minds.


Arvind Narrain is a lawyer with the Alternative Law Forum.  Saumya Uma is an independent researcher on gender, law and human rights.

Kasab's Right to Judicial Review Against President's Action?

Professor Madabhushi Sridhar argues eloquently that Kasab's constitutional rights were violated in the haste to execute him. He says the government should have informed Kasab that he could ask for judicial review over the president's decision to reject his mercy petition.

But surely one could also ask what Kasab's lawyers, who argued the appeal and prepared the mercy petition, were doing.  It was they, rather than the government,  who should have raised this matter with their client, even if they were not actively representing him anymore. Or were they, too, kept in the dark about the imminent execution? In any event, they -- or someone on Kasab's behalf -- could have sought a stay as soon as news leaked out that the mercy petition had been rejected if the circumstances so warranted.

Wednesday, November 21, 2012

Kasab Hanged to Death in Yerawada Jail

News agencies are reporting that Ajmal Kasab was hanged to death in Pune's Yerawada Jail at 7.30am this morning.

Today's edition of the Indian Express carries a story on its front page that the President of India had rejected Kasab's mercy petition though the report does not indicate when the decision was taken.

My op-ed in The Hindu (in September 2012) had argued that the outcome of the Kasab and Maya Kodnani cases indicated the arbitrariness that informs the administration of death penalty in India. 

Of Judicial Retirement

Why is the mandatory retirement age for Supreme Court judges and High Court judges different in India? I addressed this question in a paper published in the EPW last week. Supreme Court judges in India retire at the age of 65, while High Court judges retire at the age of 62 (earlier, this was 60). In my paper, I argue that the additional years in service were meant to serve as an incentive to get senior High Court judges and High Court Chief Justices to agree to give up their positions of seniority on their respective High Courts, in exchange for a junior position on the Supreme Court of India. I conclude by arguing that this reason no longer holds true today: senior High Court judges and Chief Justices no longer decide to become Supreme Court judges because of the few additional years for which they might continue in service, but because of the intrinsic prestige and status of the post itself.

Tuesday, November 20, 2012

The Fear of Balasaheb Thackeray


I wrote in yesterday's The Indian Express on Balasaheb Thackeray. Im sure the arrest of two bloggers today will attract this blog's attention.

Thursday, November 15, 2012

Australian Journal for Asian Law


The Australian Journal of Asian Law is a forum for debate for scholars and professionals concerned with the laws and legal cultures of Asia. It aims for recognition as a leading medium for scholarly and professional discourse in a region characterised by rapid growth and social change. It is a joint initiative of the members of the Asian Law Centre at the University of Melbourne and the Law Faculty of the Australian National University, with support and advice from Australian and international colleagues. The Australian Journal of Asian Law publishes two issues every year.
From edition 13(1) the Australian Journal of Asian Law is freely available in electronic form via our SSRN website. This important change will enhance the quality, availability and accessibility of the journal.
Requirements for submission
1.     Standard articles or translations should be 8,000 to 12,000 words (inclusive of notes and references), depending on the subject matter.
  1. Book reviews or review essays should be 1,000, or, 3,000 words for a longer review essay.
  2. Intending authors should adopt the style used in this journal, that is, in-text citations. A style guide is available from the editors on request.
  3. An abstract of 150-200 words should accompany every submission.
  4. Intending authors should provide their contact details, institutional affiliation, position and any other relevant information in a separate document.
  5. A reference list of all material mentioned in the article, including books, book chapters, journal articles, court decisions and laws, should be provided at the end of the article.
  6. Contributions should be submitted to the editors (law-asianlawjournal@unimelb.edu.au) as an email attachment using Microsoft Word.

Conference on ‘The Copyright Amendments, 2012: A fair Balance?’


[The following is a conference announcement from the Intellectual Property & Technology Law Society]

The MHRD IP Chairs at the National University of Juridical Sciences (NUJS) and the Cochin University of Science and Technology (CUSAT) are jointly hosting a two-day Conference on ‘The Copyright Amendments, 2012: A fair Balance?’ at NUJS on November 27 and 28, 2012. The conference is supported by the NUJS Law Review and the Intellectual Property & Technology Law Society (IPTLS).

The Indian Copyright Act, 1957 has been amended six times to date in 1983, 1984, 1992, 1994, 1999 and this year. The latest and the most voluminous of all the amendments so far, introduces wide-ranging changes, some of which have no parallel in any copyright regime, marking a new beginning to India’s copyright jurisprudence, industry practice and social justice. The provisions affect an array of stakeholders, to name a few: lyricists, directors, record labels, copyright societies, public libraries, disabled, intermediaries and enforcement agencies. As with most legal policies, the amendments seek to balance various competing interest groups, ranging from the entertainment industry to disability rights groups. 

The Conference will set the stage to brainstorm and reflect on the changes and various interpretative challenges to the provisions. The stellar panel put together by the organizers comprises academicians, policy makers, IP practitioners, industry voices, civil society organizations and students. And not to mention those responsible for the changes itself to give a comprehensive account to the legislative history of the amendments. 

Here's a glimpse of what these two days will bring forward

The keynote address by noted composer and lyricist Javed Akthar will be followed by an overview to the amendments by Prof. N. S. Gopalakrishnan and history of the amendments by the Registrar of Copyrights, Mr. G. R. Raghavender. 

Session I on ‘Copyrights & Entertainment Sector’ will undertake a discussion on provisions affecting Bollywood and the entertainment industry from eminent voices in music industry and legal practice. This includes a Round Table Discussion on the provisions and its impact on industry with experts such as Pravin Anand (Managing Partner, Anand & Anand), Rakesh Nigam (CEO, IPRS), and Deepak Jacob (Star India) participating. 

Session II on ‘Copyrights & Technology’ will brainstorm on the worrisome tech-related provisions of the Copyright Act. In particular, the session will dissect the intermediary liability and technology enforcement measures including Technological Protection Measures (TPMs) under the Act. 

Session III on ‘Copyright Limitations & Exceptions’ comprising strong voices from the civil society organizations and legal academia will evaluate the laudable exceptions to copyrights in the amendments and will also take stock of missed opportunities. The Panel features Prof. Basheer, Rahul Cherian (Inclusive Planet), Pranesh Prakash (Centre for Internet & Society), Lawrence Liang (Alternative Law Forum), Abhishek Malhotra (TMT Law Practice) and SpicyIP’s Amlan Mohanty. 

Session IV on ‘Copyright Enforcement, Adjudication and Governance Issues’ will address the constitutional challenges to the Copyright Board and transparency concerns in collecting societies. This Session features Ananth Padmanaban and SpicyIP’s most prolific blogger, Prashant Reddy. 

The tentative schedule for the event can be accessed from here. If you wish to join in on any of the panels and have something interesting to say on any of these provisions, please do drop us an email at iptls@nujs.edu (with a copy to shamnad@gmail.com) informing us. If there is space in any of the panels, we will certainly accommodate you. Else, we look forward to your participation as a member of the audience. And we really hope you can join us and enrich the discussion. 

The conference is just the start 

The aim of the conference is to generate papers on the various themes outlined above which will culminate into both: 
1.      a journal issue: the Special Issue of the NUJS Law Review 
2.      a book to be published by the publishers of the NUJS Law Review, Eastern Book Company (EBC). 
The book will contain expanded versions of the papers in the journal. Edited by Prof. Basheer, it will be the first comprehensive book to deal with the copyright amendments. Apart from the value it promises to bring to IP practitioners, policy makers and students, we aim to produce articles that could proffer interpretative assistance to courts confronted with litigation in the immediate aftermath of the amendments. 

Registration 

The conference is open to all. Those interested to attend the conference are requested to send an email to iptls@nujs.edu with their names and designations by November 20, 2012. No registration fee is required for students enrolled in any university and non-profit organizations. For others, the fee is Rs 5000 for registering and attending. You will also be invited to the gala evening (with a creativity theme) we have planned on the 27th night.

- IPTLS