Saturday, December 29, 2012

1st NLS-TIOL Taxation Law Conference


The Moot Court Society of National Law School of India University, Bangalore, in association with Tax India Online, is organising the 1st NLS-TIOL Taxation Law Conference on 6th January, 2013 along with the NLS TIOL Moot Court Competition. The Conference seeks to trace out the developments since the proposed introduction of General Anti-Avoidance Rule in the Finance Act, 2012. While the Shome Committee has made certain recommendations that provide clarity with respect to the application of GAAR, some recommendations are a cause for concern. Further, the manner in which the GAAR is to be applied in India under the Income Tax Act and under the proposed Direct Taxes Code remain controversial and must be debated.

The Conference will witness a congregation of persons of eminence from the legal and accounting fields – Mr. Mohan Parasaran, Additional Solicitor General, India, Mr. Nishith Desai, Founder, Nishith Desai & Associates, Mr. Nageswar Rao, Partner, PDS Legal, Mr. Parmanand Kincha, Partner, M/s H C Khincha & Co, Bangalore, Mr. Rupesh Jain, Partner, Vaish Associates, Mr. P.K. Prasad, Director of Income Tax, Bangalore. The session will be moderated by Mr. Mihir Naniwadekar, Advocate, Bombay High Court.

The Conference will be organised on Sunday, 6th January, 2013 at Vivanta by Taj, Bangalore. Registration Fee for the Conference is Rs. 1500 for Professionals and Rs. 200 for Students. Details will be put up on www.nls.ac.in and http://www.taxindiaonline.com/RC2/adpage/NLS_TIOL_MOOT.htm shortly. For any queries, kindly mail nlstaxmoot@gmail.com or contact the following for details:

Mr. Dheer Bhatnagar:      +91 9986538654
Ms. Jahnavi Sindhu:        +91 9538960420
Ms. Deekshitha Ganesan:  +91 8050055308

Friday, December 28, 2012

P.A.Sangma vs. Pranab Mukherjee

The Supreme Court's split decision in this case raises some interesting issues.  In this article, I touch upon two such issues within the limitations of space. One is why the CJI has never been in a minority.  I  would agree that the CJI being in a majority in most cases cannot be just a coincidence.  But  I am equally intrigued what could convincingly explain this phenomenon.  The second issue is what I think many have missed in this debate - except those campaigning against death penalty.  When the Supreme Court admitted Sangma's petition against Mukherjee, should it not have restrained Mukherjee from taking irreversible decisions till it disposed the petition?

Wednesday, December 26, 2012

Tehelka's analysis of the horrific rape in Delhi

Much has been said and written about the events unfolding in Delhi over the last few days.  Some of the reactions have been just as upsetting, and it is hard to come across sober and meaningful reflection and analysis.

The latest issue of Tehelka relies upon prior reporting to pull together some thought-provoking analyses which are illuminating.  This piece tries to contextualise the issues involved, while this collates  responses from a number of sociologists, lawyers,  and other individuals, some of whom have a long history of engagement with the Indian criminal justice system's  approach to rape and other offences against women.  Tehelka is also re-featuring a disturbing sting operation first published in April 2012, where it analysed the attitudes of senior policemen in the Delhi-NCR area to rape. 

Almost every commentator acknowledges the enormity of the challenges involved, but these pieces provide a fuller sense of those complexities.  Before we can proceed with reforming the law, we need to obtain a proper sense of the terrain, and the exact nature of the problems requiring reform, both in the criminal justice system and the wider social context.

Update (Dec 27): Praveen Swami has an op-ed in today's Hindu which provides comparative data on conviction rates for rape in the US and UK, and makes some compelling points on the situation in India.   

Update on Sri Lanka Judiciary-Executive clash

Rohit's previous post on this issue in early December drew attention to the brewing crisis around the impeachment of Chief Justice Bandaranayake in Sri Lanka.  Since then, some other developments have occurred on this front, and the purpose of this short post is to highlight them.

On December 15, The Bar Association of Sri Lanka passed a resolution in support of Chief Justice Bandaranayake and asserted that it would not cooperate if a new person was appointed in her stead as Chief Justice by President Rajapakse. (Details here in a report in the Hindu).  On December 19, the Chief Justice moved the Court of Appeal asking for the impeachment proceedings against her to be quashed.  Details of her arguments are available in this story in the Washington Post.

On December 21, in a significant move, the Court of Appeal issued notice to the Speaker of the Parliament, and the members of the Parliamentary Select Committee which conducted the impeachment proceedings against the Chief Justice, and asked them to appear before the Court on January 3, 2013.  It also directed that no further action be taken against the Chief Justice until the court proceedings were completed.

In his analysis that appeared in the Hindu on Dec 22, RK Radhakrishnan argues that this has set the stage for an unprecedented Executive-Judiciary clash in Sri Lanka.  The Speaker of the House of Parliament has reportedly refused to appear before the Court.  For now, however, all players seem to be adopting a low key role.  As the next date of hearing nears, things are sure to heat up.

As Rohit notes in his post, there are precedents from across South Asia for such clashes.  This situation in Sri Lanka might well be decided behind closed doors, but if it continues to play out in the public sphere, it might have significant implications for the contemporary Sri Lankan polity.  What is also striking is that the Sri Lankan legal profession and judiciary has been drawn into adopting a fairly aggressive role against the political executive, at a time when it is particularly powerful.  Given the relatively quiescent role played by these legal actors in Sri Lanka historically (especially when contrasted against their counterparts in India, Pakistan and Bangladesh), this may well turn out to be a landmark event in the history of the Sri Lankan 'legal complex.'

Monday, December 24, 2012

Promotion Quota Bill



In this op-ed in today's Indian Express, I add my own perspective on the promotion quota bill. Among other things, I argue that (a) there is no comprehensive data that conclusively establishes under-representation of Dalits in the senior bureaucracy, and (b) more importantly: even if there is under-representation, discrimination is not the only explanation for it.

This blog has previously debated the legal questions surrounding this issue here.

Monday, December 17, 2012

The Precedent Issue at the Supreme Court

In this op-ed in today's Express I highlight a pressing, yet underadressed problem in the upper tiers of the Indian judiciary - that of following precedent. As the piece makes clear, more and more cases are not only being appealed to the Supreme Court, but also disproportionately being accepted by it. This would seem to indicate either the High Courts or the Supreme Court itself is having increasing trouble following precedent. This potentially could be because the Supreme Court has simply gotten too big and so coordination challenges between the benches of the Supreme Court have increased.

I do think the Supreme Court needs to better understand how serious this predent problem is and where the most blame lies (in the High Courts or the Supreme Court). Depending on the answer to this question, the judiciary could choose from a set of corrective measures varying from changing how the Court accepts admission matters to having visiting Supreme Court judges sit on High Court benches to strengthen precedent following in High Courts where this seems to be a particular problem. If such corrective actions are not taken the entire system could face a tipping point at which the number of appeals quickly overwhelms the system (some might argue that point has already been passed).

Friday, December 14, 2012

The Indian Supreme Court by the Numbers

I released a paper today with Azim Premji's Law, Governance, and Development Initiative entitled "The Indian Supreme Court by the Numbers." It can be downloaded here or here. I have been collecting data about the Supreme Court for a number of years now and I wanted to finally get a report out that not only analyzes the data, but also discusses some of the current limitations of the Supreme Court's data and how it might be improved. Some of the findings I think are interesting to a general audience and the Times of India has already reported on some aspects of the report. In particular, the high appeal rate to the Supreme Court from states that are closer to Delhi and wealthier is striking. So is the disproportionate growth of the Supreme Court's workload compared to the High Courts and lower courts. The statistics that break down the Court's caseload by subject category may also be interesting to many Court watchers. Most of all, I hope this paper is just a beginning and, that over the years, scholars can collect more data about the Court and that the Court can improve its data.  There is still much we don't know about the dynamics of the Supreme Court's workload. Statistical data can't provide us with a complete picture, but it's a good place to start.

Thursday, December 06, 2012

NLSIR Public Law Symposium 2012


[The following is an announcement from the Chief Editor, National Law School of India Review]

The National Law School of India Review, the flagship journal of National Law School of India University, Bangalore is pleased to present the second NLSIR Public Law Symposium to be held on 22 December, 2012 at the National Law School campus. Last year, the editorial board of NLSIR spearheaded the first edition of the Public Law Symposium on the "Adjudication of Socio-Economic Rights by the Supreme Court of India" in an effort to initiate a systematic study of public law jurisprudence in India. The theme of the symposium this year is "Delimiting Media Freedoms: Discovering the 'Delicate Balance' Between Article 19 and Article 21", an issue which has seen significant legal developments in the recent past. For this project, we are collaborating with the Alternative Law Forum, Bangalore. The symposium shall field opinions from the judiciary, practising lawyers, the media and students, and will be attended by renowned luminaries including Justice Muralidhar (Delhi High Court), Geeta Seshu (The Hoot), Apar Gupta (Partner, Advani & Co.), amongst others.

The discussion will be divided into two sessions. In the first session (scheduled between 10.30 A.M.-12.30 P.M.) the panel will discuss the right to privacy and the problems posed by its uncertain ambit of protection under Article 21. Questions regarding the balance between the right to privacy and the media's purported objective to protect public interest as well as the standards of privacy enjoyable by public figures together with the development of procedural innovations globally will constitute an important part of the discussion. The second session (scheduled between 1.30 P.M.-3.30 P.M.) will focus on the controversial subject of 'trial by media' and the propriety of the judiciary governing the content of media reports through instruments such as the recently invoked 'doctrine of postponement'. Lunch and refreshments will be provided by the Organizing Committee.
The registration fee for the symposium is Rs. 200 for students and Rs. 500 for professionals. All those interested are requested to register their attendance at the following link: https://docs.google.com/spreadsheet/viewform?formkey=dHN1M1ZJem1nVlgzaUxoX0NMYU9MaEE6MQ.
For any further details regarding the symposium, please contact Ashwita Ambast (Chief Editor, NLSIR) at +91-9986478265or Sahil Kher (Deputy Chief Editor, NLSIR) at +91-9739265715 or email us at mail.nlsir@gmail.com.

Wednesday, December 05, 2012

Miscarriage of Chief Justice, Sri Lanka Edition




Earlier this week proceedings were initiated in the Sri Lankan Parliament to impeach the Chief Justice of Sri Lanka, Dr Shirani Bandaranayake. The allegations against Chief Justice Bandaranayake are of personal misconduct and failure to disclose her income and her foreign exchange . However, most media sources widely agree that the impeachment proceedings were triggered by an adverse judgment given by her striking down the Divenguma Bill. The judgement required that the bill had to be enacted with a two thirds majority and needed a referendum for one of its provisions.

The bill would have centralized development funds which were previously devolved to local authorities, and would have granted greater discretionary powers to the Minister of Economic Affairs. Devolution has been a long standing demand of Tamil parties and was brought as part of the peace process. However, ethno-nationalist Sinhala politicians want to nullify even the limited devolution that has been introduced. Basil Rajapakse, the Minister for Economic Affairs, is the brother of the President Mahinda Rajapakse. The Speaker of Parliament, who initiated the impeachment proceedings and heads the Parliamentary Select Committee, is Chamal Rajapakse, another brother of the President.

The first two hearings have begun before the Parliamentary Select Committee. Chief Justice Bandaranayake's request to have the hearings made public have been refused, and her motion to two members of the eleven member committee to recuse themselves on grounds of bias (she had ruled against them or their family members) has been ignored. This is not the first attempt to impeach a Chief Justice in Sri Lanka, governments had made attempts to impeach Chief Justice Neville Samarakoon (1984) and Chief Justice Sarath N.Silva (2001). However, the stakes appear to be much higher in this case.

1) The Chief Justice has emerged as a symbol around whom a large number of groups have rallied, including lawyers, trade unions, Catholic priests and the influential Buddhist monks. The government has been forced to bus in counter protestors to demonstrate against the Chief Justice. The support extended by all levels of judiciary and opposition parties to Chief Justice Bandaranayake is worth noting.

She has been in several ways an unusual appointment. She remains to the best of my knowledge the only academic to have been appointed to a Supreme Court in South Asia, and her lack of judicial background had led to several protests by lawyers and judges at the time of her appointment. However, the judiciary as a whole seems to be coming to her defence. On Monday, all the judges of the High Courts and the Magistrate's Courts gathered at her residence and issued a statement of support for the Chief Justice.

When she was sworn in as Chief Justice in 2011, opposition parties that are rallying to her side had been extremely critical of her and made allegations of corruption against her husband. However, akin to the moves by the Pakistani opposition towards Justice Chaudhary, they are becoming increasingly vocal in her support.

2) Similar to proceedings in Pakistan and in post-Emergency India, the Supreme Court has also begun hearing a petition challenging the constitutionality of the entire impeachment process in the Constitution. The Supreme Court has summoned the entire Parliamentary Select Committee before the court to respond to petitions filed by civil liberties groups. The Speaker has ruled that these summons need not be complied with.

3) Commentators have begun to make arguments on the 'basic structure' of the Sri Lankan Constitution and held that the principle of judicial review is central to it, and the courts reserve the right to review constitutionality of any government action.



Tuesday, December 04, 2012

Is the Government of India liable for Judicial Delays


In the latest edition of the EPW, PK Suresh Kumar discusses the implications of a recent arbitral award in Singapore. In (White ­Industries Australia Limited and the Republic of India 2011) the arbitral tribunal criticized the Indian Supreme Court for delays and directed the Union government to compensate the company for the delay.

Suresh Kumar's critique of the judgment is based on the idea of judicial sovereignty  By holding the executive liable for judicial delays, would imply either imply the lack of independence of the judiciary or create an incentive for the executive to intervene in judicial enforcement. The author is scathing in his critique of bureaucrats, who he believes have compromised India's judicial sovereignty by drafting the investment treaty badly.


The article is interesting for two questions it opens up
1) Is there a distinct entity judicial sovereignty? With increased globalization of economic and human rights regimes, ideas of national sovereignity have undergone dramatic changes. In India, the Supreme Court has already held in the GATT and WTO cases that the Union government may transform the constitutional separation of powers between the state and the centre by taking on international agreements. Could this analogy be extended to the separation of powers between the executive and judiciary?
2) What sort of claims for compensation for judicial delays be made in domestic situations, given that the right to speedy trial has been recognized as part of the right to life?


The relevant order can be found here (HT: Nick Robinson)