Law and Other Things

'Autonomy' of Nuclear Regulator: The ideal and the reality

2012-02-01T00:58:00.000+05:30

Guest Post by Prashanth Reddy

Sometime later this year, Parliament is going to have yet another debate on the degree of ‘independence’ of an Indian regulatory body. The regulator in question is the nuclear regulator that has been proposed under the Nuclear Safety Regulatory Authority of India Bill, 2011 (NSRAI). The debate on the ‘independence’ of the nuclear regulator in India has been one of several contradictions. Despite the nuclear establishment repeatedly claiming that its regulator – the Atomic Energy Regulatory Board (AERB) – was independent, Rural Development Minister Jairam Ramesh very obviously contradicted the entire establishment when he publicly called for the creation of an ‘independent’ AERB. (http://www.indianexpress.com/news/jairam-time-for-independent-aerb/764673/) In order to understand the differing versions of ‘independence’, it is necessary to understand the history of nuclear regulation in this country.

At the time of its inception, soon after independence, the Indian nuclear industry was regulated mainly by ad-hoc safety committees of the Department of Atomic Energy (DAE). In 1972 the DAE passed an office order creating the institutionalized mechanism - DAE-Safety Review Committee (SRC), which would now be responsible for safety of Indian nuclear plants. In 1979 the then Secretary of the DAE ordered the DAE-SRC to review its functioning and recommend any possible changes. This Committee was headed by M.V. Meckoni, Director BARC and its final report which was submitted in February 1981 came to be known as the Meckoni Committee Report and it is this report which formed the basis of the creation of the AERB. (The report can be downloaded over here. https://docs.google.com/open?id=0Bxi2TzVXul5ZYTVmYjE4MWMtOTdiNy00MWQyLWIyNzEtODhmYmVlNjNkMGNj )

A fatal error in this entire exercise was the composition of the Committee itself, which is not to say that the members of the Committee were incompetent but the fact that all seven of them were serving members of the nuclear establishment and would most likely not be capable of an objective assessment of independent regulatory requirements. The final recommendations of the Committee called for an ‘autonomous’ AERB staffed by members of BARC and the ‘DAE Family’ therefore in effect creating another ‘in-house’ body. Most of these suggestions were followed by the DAE when it created the AERB through an Executive Order of the President in 1983. In the process the only useful suggestion of the Meckoni Committee, which was to create the AERB through a legislation of Parliament was ignored. The problem with Executive Orders is that they can be modified by the DAE itself, something which it demonstrated in the year 2000 when it excluded BARC, India’s principal nuclear weapons establishment, from the purview of the AERB.

The AERB created by this Presidential Order was a system mired in severe ‘conflict of interest’. As per this Order the AERB was responsible to the Atomic Energy Commission (AEC). The AEC itself was responsible for promoting the use of nuclear energy in India and is in itself headed by the Secretary of the DAE. The DAE is the department which controls BARC, India’s primary nuclear weapons establishment and more importantly, the Nuclear Power Corporation of India Ltd. (NPCIL) – the government company which operates all of India’s nuclear reactors. The AERB’s mandate was to regulate the nuclear reactors operated by the DAE but at the same time made responsible to the AEC which was headed by the Secretary of the DAE. Further, the Executive Order also stated that the DAE would control the AERB’s budget and be responsible for it before Parliament.

Any objective assessment of the above setup would lead to the logical conclusion that the AERB was anything but ‘independent’ of the DAE. Surprisingly however, the AERB in its yearly reports to the IAEA under the ‘Convention on Nuclear Safety’ (CNS) (http://www-ns.iaea.org/conventions/nuclear-safety.asp) has consistently claimed that it is an ‘independent’ body.

Section 8(2) of the CNS defines independence in the following terms: Each Contracting Party shall take the appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy. In its latest Report to the IAEA, (http://aerb.gov.in/t/news/CNS2010.pdf) the AERB has stated the following: “The position of AERB in the government set up ensures administrative and financial independence in its functioning. Technical support is drawn from various national laboratories as well as from other national academic and research institutions. The Central Government provides the financial resource to AERB according to its proposed budget. There has never been shortage of finance towards fulfilling its mandate and responsibilities. The statutory and legal provision of the Act & various rules framed there under and the powers conferred by the gazette notification provides AERB with the authority for its independent and effective functioning. Hence, India complies with the intent and spirit of Article 8 of the Convention.”

Obviously, the nuclear establishment and the political establishment have differing version of ‘independence’. The question for future debate is whether India’s latest attempt to create an independent nuclear regulator is compliant with its treaty obligations under the CNS? Ideally the government should have released a white paper on the status of the AERB before it proceeded to create a new regulator. However as always we put the cart before the horse.

[ Prashant Reddy T. is an Advocate, blogger at SpicyIP and a co-founder of the Pre-Legislative Briefing Service (PLBS).]

Guest Post by Prashant Iyengar: A tribute to the late Professor Vepa P. Sarathi

2012-01-26T21:04:00.000+05:30

The renowned legal scholar, eminent jurist, former Law Commission member and Senior Advocate of the Supreme Court Vepa P. Sarathi passed away yesterday, four years short of his 100th birthday. There were
portents: this is after all a season in which diminutive titans have been missing centuries. To the generation of his students at NALSAR and elsewhere, this news has come as a shock. I think many of us believed audaciously that he could live forever, or at least that our adoration of him would make it so. We mourn his passing today.

Professor Sarathi was the grandsire of NALSAR and stewarded us through many difficult legal battlefields. At once, Bhisma and Sarathi, he was to us, entirely the stuff of legend. A glance at his eclectic scholarly oeuvre - including bestselling books on statutory interpretation, property law, evidence, his authorship of law commission reports, and his semi-professional interests in literature, vedic mathematics and astronomy, all attest to his extraordinary erudition. The NALSAR university website lists him as having taught courses in the Indian Penal Code, Criminal Procedure, Transfer of Property, Evidence and the Constitution. He also taught Judicial Process and Company Law and was available for guest talks in many other courses. With him around we had the rare privilege of having eight decades of legal virtuosity at our continuous disposal. NALSAR will be hard pressed to find five new faculty who could be the equal of one Professor Sarathi. But more than his scholarly attainments, he was also habitually a friend, guide and mentor to almost everyone who crossed his path, and was the affable grandfather-in-law (avus lex) who we all looked up to. He was simply the kindest man we knew. It is this latter avatar that we will miss the most.

In his first satire, the Roman poet Horace pauses to ask rhetorically, “Ridentem dicere verum Quid vetat?” (roughly, “What prevents me/one from speaking the truth in a playful mood/smilingly?”). I think this question quite aptly describes Professor Sarathi’s teaching style, if not his entire mien. He had a rich fund of humour - anecdotes and clever limericks, many of his own coining - which he employed to dilute the viscosity of legal discourse. As a teacher his lectures were always riveting– whether he was discussing arcane principles of
property law or lighter themes like law and literature. He had the magician’s knack of nonchalance. The rabbit of the rule against perpetuities was conjured effortlessly from his top hat of legal knowledge, and presented to us matter-of-factly. Having only recently turned law professor - of property law, at that - I am now more fully able to appreciate the wizardry required to be able to convey nuances of property dogma to a class of indifferent nineteen year olds!

More than an institutional loss, his passing will be felt as a national loss. For over four decades, his books on Property, Evidence and Statutory Interpretation have instructed thousands of law students interested in acquiring more than a mere guidebook education. Moreover, at 96 he was one of the last surviving repositories of a
legal memory that spanned, and could give firsthand accounts of four distinct eras of our legal culture - colonial, national, post-emergency and post liberalization. He could speak of law with the same facility as narrating his own family’s history. He was simultaneously museum, relic, encyclopedia, chronicler, genealogist and exponent of Anglo-Indian law. A true national treasure.

A friend’s favourite Vepa Sarathi story is about how she once discovered him in his office at NALSAR reclining comfortably in his chair, feet resting on his table, absorbed in a Harry Potter book. This has also become my favourite image of the man. At 95, this is what I aim to be doing. To have accomplished in law even a fraction of
what he did, but also to stretch my legs on a table and read whatever it is the kids are going crazy about. To have authored dense legal commentaries and have read Cicero, but also to retain my curiosity in the fabulous. This ‘passionate curiosity’ will be one of Professor Sarathi’s enduring legacies. It is the thing he has infected us, his grateful students, with.

We will miss your gentleness, you erudition and your humor Professor Sarathi. Thank you for everything.

Guest Post by Anup Surendranath: Children Born Out of Inter Caste Marriages – Abandoning a Pure Group Assimilation Approach

2012-01-26T18:13:00.002+05:30

The recent decision by a two judge bench of the Supreme Court(Justices Aftab Alam and Ranjana Desai) in Rameshbhai Dabhai Naika v. State of Gujarat has clarified that a person born out of an inter-caste marriage caninherit the caste/ tribe status of the mother (for the purpose of reservations)as result of an evidence-based factual determination of the disadvantagessuffered. The court held that a mechanical application of the position in Hindupersonal law that a child born out of an inter-caste marriage inherits thecaste of the father is constitutionally invalid as far as determiningbeneficiaries of reservations is concerned. This judgment consolidates theSupreme Court’s departure in the mid-90s from its early discourse on suchissues developed between the 50s and 70s through cases like Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram (1954), N.E Horo v. Jahan Ara Jaipal Singh (1972) and Guntur Medical College v. Mohan Rao (1976). In my view, theimportance of the decision in Rameshbhailies not so much in the fact that it reiterates the established position sincethe 1950s that a woman need not necessarily assume the caste/ tribe status ofher husband as far as reservations are concerned, but rather in itsconsolidation of the position that the individual experience of disadvantage isjust as relevant as group membership even for Scheduled Castes and ScheduledTribes (admittedly restricted to contexts of non-birth based membership in thegroup).

In the Jasani and Jahan Ara era, when confronted withdetermination of caste/ tribe status arising out of inter-caste marriage andadoption cases in the context of reservations, the Supreme Court’s response wasto focus on the assimilation of the person within the beneficiary group.Questions concerning acceptance by other members of the beneficiary group andnature of assimilation were central to the discussion. However, it must benoted that even during this period the emphasis was very much on anevidence-based factual determination but with a completely different focus.

The judgment of the Gujarat High Court in Rameshbhai Dabhai Naika (2010) that the action of the relevantauthority in cancelling the appellant’s Scheduled Tribe certificate was validon the ground that the appellant could only inherit his father’s caste (forwardcaste Kshatriya) and not his mother’s Scheduled Tribe status was rightly seenas an incorrect application of precedent. The two judges disagreed with themanner in which the decisions in Valsamma Paul v. Cochin University and Ors. (1996), Punit Rai v. Dinesh Chaudhary (2003), and Anjan Kumar v. Union of India (2006) were interpreted and held that those decisions in factsupported the position that every such case must be decided on particular factsas applicable to the individual. Thoughthere could be a presumption that a child born out of an inter-caste marriageinherited the caste of her/ his father, the Supreme Court was of the view thatsuch a child could lead evidence to rebut the presumption while demonstratingthat she/ he was brought up by the mother and was also accepted by the mother’scommunity along with those outside the community.

However, the nature of the factual determination being discussed inthe Supreme Court’s judgment in Rameshbhaiis significantly different from what was contemplated in Jasani and Jahan Ara. Starting with Valsamma,the Supreme Court has sought to move away from a framework that requiresfactual determination only along the lines of acceptance by group members andassimilation. In Valsamma, theSupreme Court explicitly holds that, for purposes of Article 16(4), recognitionof the individual by the beneficiary group is irrelevant and it is the life experienceof the individual that is relevant. Decided by a two judge bench, the decisionwas arguably not in consonance with what was decided by larger benches (threejudges) in Jasani and Jahan Ara. In SobhaHymavathi Devi v. Setti Gangadhara Swamy and Ors. (2005), three judgesof the Supreme Court over-ruled Jahan Arato the extent that it does not take into consideration the actual backgroundand circumstances of the person in question and relies solely on questions ofgroup assimilation. Marriage into a beneficiary group and acceptance by themembers of that group is held to be insufficient for an individual to claimbenefits under Articles 15(4), 16(4) and 332.

The Supreme Court’s decision in Rameshbhaiis a logical extension of the decision in Sobha. While in Sobha,the question was whether a woman from a socially dominant group could marryinto a beneficiary group and claim the benefits of reservation, in Rameshbhai the court was faced with thereverse fact scenario. The individual in question wanted to inherit hismother’s Scheduled Tribe status despite her marriage to a forward caste man. Thecourt was correct in extending the analysis in Sobha to establish the position that an examination of the individual’scircumstances can lead to her/ him inheriting the mother’s status.

Therefore, the big news from the Supreme Court’s decision in Rameshbhai is not really that anindividual can inherit her/ his mother’s status in certain circumstances, butrather that the Supreme Court now seems to have established the position that,in cases of inter caste marriage, children born out of inter caste marriage andadoptions, there is an additional level of investigation to be conducted todecide the eligibility for reservations – and that additional level of investigationcentres around individual deprivation and moves away from pure notions of groupmembership even in the case of Scheduled Castes and Scheduled Tribes.

Undoubtedly, it would have been possible to reach the same conclusion through the framework developed in Jasani and Jahan Ara but the additional individual-based investigation in themanner envisaged Valsamma onwardscertainly contributes to fine tuning India’s reservation policies.

PRS' Legislative Assistants for Members of Parliament (LAMP) Fellowship Programme

2012-01-13T23:55:00.003+05:30

PRS Legislative Research is accepting applications for their Legislative Assistants for Members of Parliament (LAMP) Fellowship Programme. Please see below for details about the fellowship and the criteria for selection.

The Legislative Assistants for Members of Parliament (LAMP) Fellowship is an opportunity for exceptional young Indians who are seeking to widen their understanding of politics and policy-making in the country. The LAMP Fellowship is a unique initiative, designed to provide individualised research support to MPs, by training Fellows to assist them in their tasks as law-makers. The LAMP Fellowship was conceptualised by PRS Legislative Research in 2010, launched with a pilot initiative consisting of 12 LAMP Fellows. Currently, the LAMP Fellowship 2011-12 has 46 LAMP Fellows, who come from diverse academic backgrounds and are working with Members of Parliament from across political parties.

Role of a LAMP Fellow: Each Legislative Assistant is assigned to an MP, to provide quality research support for their legislative and oversight duties. The LAMP Fellow will help MPs frame Parliamentary questions, raise issues, participate in parliamentary debates and speeches and help prepare for committee meetings.

Essential Criteria: Under the LAMP Fellowship, PRS is seeking committed, highly-motivated individuals to assist MPs for their work in Parliament. Applicants must meet the following criteria:
Applicants must be no more than 25 years of age (born on or after January 01,1987)
Applicants must have at least a Bachelor’s degree in any discipline.
LAMP Fellows are required to be based in Delhi for the entire duration of the Fellowship.
Only Indian citizens can apply.
Duration: June 2012 to May 2013.

The last date for applications for the LAMP Fellowship 2012-13 is February 26, 2012.

President's "Assent" for Lokpal Bill's Introduction in Rajya Sabha

2011-12-30T20:13:00.002+05:30

Earlier this week, the government scrambled to obtain the President's consent before the Lokpal Bill was sent to the Rajya Sabha. It was widely reported that presidential approval was necessary "because several amendments were moved in the Lok Sabha." This explanation was both odd and misleading. Nothing in the Constitution requires presidential action just because a bill is adopted by one house of parliament with a number of amendments.

Rather, as some newspapers later reported, the President's involvement was necessary because the Lokpal's expenditure will be charged to the Consolidated Fund of India. Article 117 (3) of the Constitution requires the President to sign-off when a bill includes such a provision. Yet, contrary to the news reports, the President did not "assent" to the Lokpal Bill before it went to the Rajya Sabha. Presidential "assent" is only granted after a bill has been duly adopted (or deemed to have been adopted) by both houses. Rather, the President had only "recommended" that the Rajya Sabha consider the Lokpal Bill as passed by the Lok Sabha.

The Article 117 (3) requirement applies when either house of parliament (not just the Rajya Sabha) considers a bill involving Consolidated Fund expenditure. Accordingly, a Presidential recommendation had already been obtained when the government introduced the Lokpal Bill in the Lok Sabha earlier this month. Due to Article 117 (3)'s wording, a separate recommendation was necessary before the Bill could be sent to the Rajya Sabha.

Interestingly, the President's communication to the Lok Sabha also cited Article 117 (1), which requires prior presidential recommendation for "Money Bills." These bills are defined in Article 110 to include those involving expenditures charged to the Consolidation Fund. The reference to Article 117 (1) was omitted from the presidential recommendation to the Rajya Sabha ostensibly because, as a Money Bill, the Lokpal Bill could only be introduced in the Lok Sabha.

The Case for Universal and Integrated Health Care in India

2011-12-30T11:41:00.006+05:30

In an Op Ed published yesterday in the New Indian Express, I describe the current crisis of health service delivery in India. I argue that while we certainly need to increase health spending in India, more importantly, we need to reflect upon the failures of health policy over the last 60 years that have resulted in the current crisis. I analyse three chief failures of health policy in India and argue why we need to move toward provision of universal health care within an integrated health care system. I also make some suggestions as to initial steps in this direction.

Some excerpts from the article are as follows:

India’s health care system is in crisis. Health indicators are dismal. One quarter of the world’s total maternal deaths every year occur in India. 47 per cent of all children in India are underweight. This is more than the number for the entire continent of Africa. India’s health system failures are usually attributed to the chronically low levels of health spending. In most countries of the world, government spending on health care constitutes a significant proportion of total health spending partly because health care constitutes a “public good” and also because health spending enables poverty reduction and greater social equity.

Despite increases in spending in recent years, total yearly health spending in India as a percentage of GDP is approximately 4.5 per cent, thereby contributing to India’s rank of 153 out of 193 countries with respect to total expenditure on health per capita. However, government expenditure on health is only a quarter of total health spending with the bulk of the expenditure being private expenditure. The impact of this spending inequality has severe consequences in a country where 42 per cent of the population lives below the international poverty line of $1.25 per day and an even greater proportion of the population relies on public health facilities.

Today, there is recognition that the government must increase health spending in India. The stated goal of the National Rural Health Mission launched in 2005 was to increase health expenditure from 0.9 per cent of GDP to 2-3 per cent of GDP in the next 5 years. However, despite increases in government health spending, this target has not been met so far.
While India’s neglect of health spending is significant, India’s health policy failures are graver because they mean that whatever little is spent on health is not used effectively to ensure better health service delivery. Within India’s federal constitutional framework, state governments possess primary responsibility for public health and sanitation, including both the funding, programmatic and structural development of health care systems, hospitals and dispensaries. Yet the central government significantly influences health policy through its “Five Year Plans” and centrally sponsored schemes.

India’s health policy since independence has been marked by three chief failures that have contributed to the current health care crisis. First, there has been an absence of a political commitment to realise universal health care. Second, the shift in budgetary and policy priorities toward the creation of vertical disease eradication programmes and family planning during the 1960s and 1970s, which gained even greater impetus during the emergency, have resulted in a decline of institutional health capacity and prevented the creation of an integrated health infrastructure in India. Third, where piecemeal disease eradication programmes as opposed to universal health care programmes have in fact been implemented, they have proved to be both ill conceived and cost ineffective.

..........
The need of the hour is a serious rethink of health policy in favour of establishing a universal and integrated health care system. Toward this end, government health spending must in fact be increased to 2-3 per cent of GDP. The NUHM must be launched as soon as possible and integrated with NRHM. Both the NUHM and NRHM must become a permanent feature of our Five-Year Plans and not dependent on the budgetary priorities of future governments. However, serious, transparency, accountability and bureaucratic failures plague health service delivery in India, particularly in the poorest states. Continuous monitoring and audit of health schemes is imperative for India’s health care system. PDS, ICDS and the mid day meal schemes should be integrated with the NRHM and NUHM.

The Op Ed can be accessed at the following link:

Dealing with Forced Marriages

2011-12-25T12:52:00.000+05:30

Pakistan joins the UK in taking the question of forced (not merely 'arranged') marriages seriously. However, unlike the UK which has a civil regime in place to protect people in danger of being forceably married (under the Forced Marriage Civil Protection Act 2007), Pakistan has preferred a criminalisation approach. The Prevention of Anti-Women Practices (Criminal Law Amendment) Act 2011 amends the Penal Code to add s 498B, which criminalises forced marriages. It also amends s 310A, which provides for punishment of anyone who compels a female into marriage in order to settle a civil dispute or criminal liability.

The women's movement in India has been surprisingly soft-spoken on the issue, while the queer rights movement in India has begun articulating its demand to deal with forced marriages. A sophisticated civil society debate on the extent of the problem and how best to deal with it is still to emerge. While there has been some movement towards the legal recognition of live-in relationships, I am not aware of any evidence that the Indian state even considers forced marriages a serious issue.

Advocates-on-Record: Name on Rent

2011-12-17T18:45:00.004+05:30

Guest Post by Prashant Narang*

The Advocates on Record (AoR) exam results came out recently and only 71 advocates out of around 400 test takers could get through the June 2011 examination. The system is now under challenge in the Delhi High Court in Balraj Singh Malik Vs. Supreme Court of India through its Registrar General WP(C) 8327/2011.

Unlike the Senior Advocate system, AOR selection is neither an ambiguous process nor based on any subjective satisfaction of the Court, but rather is pegged to an objective written exam that aims to create a dedicated SC ‘Bar’ well-versed with the Apex Court rules and procedures. In SCBA v. B.D. Kaushik reported in 2011(11)SCALE72, the Court has explained the SC rules in the context of AoRs:

8. … [A]n advocate-on-record to be the only person to "act" as well as to "plead" before this Court. The other two categories of persons, namely, "senior advocate" and "non- AoR" can only plead, but cannot act on behalf of the client. Their appearances/pleadings in a case before this Court cannot be without an AoR and without his instructions. …[A]n AoR shall, on his filing a memorandum of appearance on behalf of a party accompanied by a vakalatnama duly executed by the party, is entitled to act as well as to plead for the party in the matter and to conduct and to prosecute before the Court all proceedings that may be taken in respect of the said matter. Clause (b) of Rule 6 mentions that no advocate other than an AoR shall be entitled to file an appearance or act for a party in the court. Rule 10 of the Rules provides that no advocate other than an AoR shall appear and plead in any matter unless he is instructed by an AoR, …

Now, non-AoRs do appear and plead in the Supreme Court, although supposedly with an AoR and under his instructions. If the Apex court is marginally different from the High Court in certain procedural aspects such as filing Special Leave Petition, trial courts are nowhere near to the High Courts on this fictional similarity index. Needless to mention, advocates are allowed to file, plead and appear in all other courts and tribunals without passing any special exam.

The SC rules mandate ex-ante ‘instruction’ by the AoR to non-AoR advocates probably to ensure quality of arguments and adequate preparation. The penalty for not actually doing so could be the discretionary imposition of costs on a lawyer for under-preparation or wasting the Court’s time. But imposing a penalty for inadequate preparation does not require AORs. By way of imposing costs, the court can inculcate discipline and raise standards of the court proceedings with or without AoRs.

The other issues with the AoR rule mandating instruction are enforcement and the perverse incentives it creates. Not only does the Court find it difficult to check whether the AoR actually gave instructions before the proceedings, every AoR will find it lucrative to maximize his earnings by way of letting out his name on rent to the maximum number of advocates. This is evident from the Court’s observations in Poonam v. Sumeet Talwar [WPC 86/2000; decided on 22 Mar, 2010]:

19. In Vijay Dhanji Chaudhary Vs. Suhas Jayant Natawadkar (2010) 1 SCC 166, this Court has taken note of the ongoing rampant unethical practice by some of the Advocates-on-Record, duly enrolled under the provisions of the Supreme Court Rules, 1966, as many special leave petitions are being filed by them being merely as name- lenders, without having, or taking any responsibility for the case. As a result of prevalence of such a practice, in such cases, the Advocates-on-Record do not appear when matters are listed before the Court, nor do they take any interest or responsibility for processing or conducting the case. They also play no role in preparation of the petitions, nor ensure that requirements of Rules 12 are fulfilled and defects are cured. If role of an Advocate-on-Record is merely to lend his name for filing cases without being responsible for conduct of a case, the very purpose of having the system of Advocates-on-Record would get defeated.

The usual intuitive response to this problem would be to mandate the presence of an AoR during the hearing. However, the number of AoRs is very limited, and so the case proceedings may have to be adjourned resulting in further delays in the already clogged system. Secondly, it would increase the costs charged by AoRs thereby further raising the cost of justice to the litigant as their input hours would increase. Please note that contingent fees are not allowed in our jurisdiction and lawyers charge ‘per appearance fee’. This would mean double the appearance charges and double the size of the hole in the pocket of the poor litigant.

Another solution that might immediately come to the reader’s mind is to think of a magic number that balances the demand and supply of AoRs. This would be ironic as there is no cap on the supply of lawyers. Moreover, once such a cap is put, the elite club of AoRs would have all the incentives to lobby to minimize its number and maximize their earnings.

Currently the AoR system creates an unnecessary cost of an intermediary who charges hefty prices for letting another lawyer file and plead on his behalf, but hardly adding any value to the process overall. The burden lies on the proponents or supporters of the AoR system to show: a) how the value added by an AoR justifies the costs charged by him and the costs incurred by the system in sustaining this class of lawyers; and b) how this system is more efficient than imposing costs or other kinds of penalties during proceedings to ensure quality. Otherwise, it is difficult to defend this system from the argument that it merely creates a rent seeking class that extracts rent by letting out its name and adding no value to the system.

(* The author is final year LL.M. student at Jindal Global Law School, Sonepat, India.)

Interesting Conflicts and the Basis for Bias: The Right Peg?

2011-12-16T13:27:00.014+05:30

Two important IP developments in the recent past have thrown up interesting issues around the standards for judicial recusal and for determining conflict of interest.

Novartis Patent Dispute and Judicial Recusal

1. Justice Dalveer Bhandari recused himself from a controversial patent dispute involving Novartis' famed anti cancer drug, Glivec; a dispute that has dogged Indian courts for several years now. The allegation was that since he attended a conference organised by patent owners (Novartis was one amongst the many patent owners that formed part of the association organising the conference to which the judge was invited), there was a genuine apprehension of bias. It would appear that under rules pertaining to travel abroad by judges, he would first have had to take permission from the Chief Justice and that his trip would necessarily have to be paid for by the Government of India.

Justice Ruma Pal mentions this rule in her hard hitting Tarkunde memorial speech:

"At present no judge, whether of the Supreme Court or the High Courts can accept any invitation from any foreign person or organization or indeed even visit a foreign country out of his/her personal funds, unless an application is made to the State and Central Governments with the approval of the Chief Justice two months ahead of the date of departure and the application is vetted by different Ministries and ultimately allowed or disallowed by an executive order which may or may not be received before the date fixed for leaving!"

One might therefore infer that Justice Bhandari attended the conference only after getting the necessary government and CJI clearances. And that his trip was paid for by the government. Further, it bears noting that the judge did not speak on the Novartis case at the conference but made a general speech on intellectual property rights and asked that IP regimes be strengthened. Some months later, he refused to admit Roche's challenge in a big ticket patent case (and Roche was also a member of the very same association that organised the impugned conference). The key question is: given these facts, was there a genuine apprehension of bias? Or ought we to have strict rules preventing judges from attending such conferences? Where ought we to peg the standards in this regard? I reflect on this issue in two posts on SpicyIP here and here.

Sibal, Copyright Bill and Conflict

2. More recently, allegations of non declaration of a conflict of interest were levelled against HRD Minister, Kapil Sibal who sought to introduce the copyright amendment bill in Parliament. The claim was that since his son (Amit Sibal, a rising lawyer) appears for T series (a major sound recording company) in several cases, he ought to have declared this "interest" prior to moving the bill. The relevant rule (Rule 294(1)) in the Parliament’s Ethics Committee Report states as below:

“whenever a Member has a personal or specific pecuniary interest, direct or indirect, in a matter being considered by the Council or a Committee thereof, he shall declare the nature of such interest notwithstanding any registration of his interests in the Register, and shall not participate in any debate taking place in the Council or its Committees before making such a declaration.”

It must be noted that this rule appears less potent than our rules informing judicial recusal. An apprehension of bias leveled against a judge invariably means that the judge cannot adjudicate upon that case. However, a declaration of "interest" within our Parliamentary framework is simply nothing more than a mere "declaration". It does not prevent the person concerned from participating in the concerned Parliamentary debate (provided he/she makes such declaration before participating).

The following issues arise for consideration:

1. Firstly, does the fact that Amit Sibal (Minister Sibal's son) represent T series pose a personal or a pecuniary interest, direct or indirect? What if Amit Sibal had only acted once for T series? What if Mr Sibal had himself acted for T series during his career (and I recall he did appear for T series in a Supreme court case dealing with "version" recordings). Given that Mr Sibal was and continues to remain an illustrious lawyer, isn't it possible that he may have acted at one point or other for a whole range of clients with some kind of an "interest" in the present copyright bill?

Does this mean that he has to declare an "interest" in all such cases? And given that his son is a rising star in the litigation firmament, does he have to declare an interest in all cases where his son acts for some client with a copyright interest (given the pervasive nature of copyright today, is there any corporate entity that does not have a "stake" in copyright law today?)

The second issue is: even assuming that there is an indirect interest here, does this pose a serious apprehension of bias (or potential for corrupt practices)? The question may not be relevant to the issue of whether or not this is an "indirect" interest, but I deal with this nevertheless to study the nexus between "interest" and apprehensions of bias or the potential for corrupt practices.

T Series and the Copyright Bill

If one were to simply examine the text of the copyright amendment bill, one finds that not all provisions favour T series. In fact, some provisions are heavily loaded against it. The Bollywood mandatory royalty provisions are a glaring example of this, where T series cannot enjoy all music revenues by itself (even assuming it has contractually taken over all rights of underlying music composers and lyricists), but must necessarily share all its revenues with them, each time the work is exploited outside of the regular cinematographic medium.

On the other hand, the amendment to section 52 (1) (j) (dealing with version recordings) clearly favours T series.

Section 52(1) (j) provides that anyone is free to reproduce their own version of a copyrighted song after two years of the song being on the market, provided royalties (currently, it is 5% of sales) are paid to the owner of copyright in the song (music and lyrics). The most recent copyright amendment bill (whose fate is expected to be decided this winter in Parliament) contains an amendment to this provision. Surprisingly, this amendment has received very little attention thus far. In fact, it is not even clear as to how the proposed amendment came about and at whose behest and one may need to file an RTI application to locate its genesis.

While section 52 (1) (j) provides that a cover version can be made anytime after the expiry of two years after the first recording is made (by a music major such as T series), the amendment seeks to extend this moratorium to 5 years: in other words, sound recording companies such as T series benefit immensely, since there are no cover versions for the first 5 years after their commercial release.

Given this mixed bag, where one set of amendments favours T series and the other goes against them, can one argue that there is still a genuine apprehension of bias? Or ought we to desist from asking this question and simply follow the "declaration" rule to its letter?

And lastly, what happens now? Assuming the rules are interpreted rather liberally (with "indirect" interest being read widely), does this mean that the bill can only be discussed in the absence of Mr Sibal, the prime mover of the Bill? Or does he only have to stay away from discussions involving provisions that impact T series (one might argue that almost all amended provisions will impact T series one way or the other).

Whatever the outcome, one can be sure that these thorny conflict issues will continue to accost us with increasing rapidity in the years to come. The time is therefore ripe for for an intense discussion and debate around these norms, the standards that they must be pegged at, their overall purpose and how best to enforce them.

In the meantime, for those interested, the PRS website has some excellent resources/discussion on conflict of interest rules and the Indian Parliament. And LAOT has had some excellent discussion around the rules relating to judical recusal in the past.

Bollywood Plagiarism: Some Thoughts

2011-12-09T20:07:00.007+05:30

That Bollywood is often "inspired" by many a storyline of Hollywood or that its music composers routinely "borrow" tunes from across the world, without attribution to the original composer, is a well known fact.

I list some of my favourite "lifts" below:

1. The raunchy "Munni Badnam Hui" was copied from a 1992 Pakistani number. Umar Sherif, the original composer says he was more surprised than angry when he came to know of the copy. However, Lalit-ji refuses to acknowledge the copying, making this one painful badnaami that no Zandu balm can cure.

2. "Teri Meri Prem Kahani", from the latest Salman hit (Bodyguard), is a clear copy of a 15th century Romanian carol, made famous by an angelic rendition by Cleopatra Stratan, when she was all of 6 years old! The music producer, Himesh "nasal" Reshamiyya insists that there is no copying and that this is an original "raag" based melody.

3. Tamally Maak from Egyptian composer Sherif Tag and performed by Amar Diab, a leading Arabic rockstar. This was transformed by the inimitable copy cat, Anu Malik to a murderous "Kaho Na Kaho".

4. Pehli Nazar Mein (from the movie "Race") copied from a wonderful Korean song.

My all time favourite however is the Lambada tune made famous by the French band, Kaoma. This appears to have its origins in a Bolivian number and underwent several adaptations before it found its way into the creative consciousness of Jennifer Lopez who used it to hit the dance floor with a certain pit bull. And here again, Bollywood was not far behind: Bappi Lahiri cashed in on this famous tune in a 1990's Bollywood blockbuster, Ghayal starring Sunny Deol and Meenakshi Seshadri.

For those of you interested in uncovering more lifts, try the fabulous itwofs, a resource created with painstaking effort and diligence.

For the most part, such borrowings (particularly in the music sphere) have not been subject to any legal sanction under India's copyright norms. However, in a recent decision, the makers of the Malayalam movie, Urumi were restrained from exhibiting the movie (and performing the song in languages other than Malayalam) owing to the fact that one of the key songs in the movie copied the soulful tune of a Canadian celtic singer.

This order may perhaps signal the end of an era of unabashed copying by Pritam, Anu Mallik and the like. However, while such "borrowings" may technically amount to an infringement under India's copyright laws, we need to ask whether or not we ought to encourage such borrowings. I personally lean in favour of creating some legal space for them, subject to attribution and the payment of royalty in appropriate cases.

In a recent post at SpicyIP, I outline some tentative proposals in this regard:

1. Firstly, music composers ought to be provided an opportunity to check their tunes against previous similar sounding versions. In other words, we need a smart tech savvy person with an interest in music to come up with a product that enables such cross checks. Any such product will certainly not starve for want of a market. For not all copies are conscious copies, and conscientious composers may find themselves at the receiving end, simply because they have no idea that their tune is an unconscious copy or adaptation of something they heard earlier! Perhaps there already exists such a product that I am not aware of?

2. Secondly, my own view is that, irrespective of whether or not the copyright in a tune has expired, every borrowing be acknowledged and attributed. The challenge is to convert this to a specific legal obligation with definite bounds susceptible to easy enforcement. I am reminded of the patents regime, where every patent application has to necessarily disclose prior art that it draws from. Ought we to have a similar obligation to disclose musical borrowings (and make copyright protection contingent upon such disclosure)? Would this be feasible?

3. Thirdly, every composer be free to borrow or lift any copyrighted tune, provided royalties are paid to the original copyright owner. In short, we institute a compulsory licensing scheme! It bears noting that we already have such a scheme for straightforward copies, which go by the name of "version recordings". A scheme that made T series what it is today.

Section 52(1) (j) provides that anyone is free to reproduce their own version of a copyrighted song (by making it afresh with a new set of performers) after two years of the song being on the market, provided royalties (currently, it is 5% of sales) are paid to the owner of copyright in the song (music and lyrics).

I find it a bit paradoxical that when straightforward copying is encouraged under such a "version recording" scheme, adaptations (which involve more work) are not. This can be rectified with a simple stroke of the legislative pen. However would such a compulsory licensing scheme be desirable?

Should we encourage such copying, particularly where there is some creative adaptation. I find that many a time, it takes a copy to appreciate how much better the original version was. And more importantly, but for such copycats, one may never have discovered the original artist in question. Thanks to Deepak Dev, I found Loreena McKennitt, and have not stopped listening to her ever since. Lastly, as is the case with Urumi's "Aaro Nee Aaro", copies are capable of evoking a very different imagery than the original. One may perhaps argue that raw pieces of art or music often have little meaning outside of the cultural context in which they situate themselves.

Nuclear Liability in India - Continuing Saga

2011-12-06T03:55:00.000+05:30

In this interesting recent piece, Arghya Sengupta revisits the vexed issue of nuclear liability law, specifically Rule 24 of the newly notified Civil Liability for Nuclear Damage Rules, 2011. This rule, dealing with the right of recourse, i.e. the right of the operator of a nuclear establishment to claim damages from nuclear suppliers in the event of an accident being caused by the fault of the supplier, apparently attempts to substantially limit the fairly wide provisions on recourse contained in the parent statute. Sengupta argues that it is flawed both in principle and policy.

India's Unknown Crime Rate

2011-12-02T13:32:00.002+05:30

I was going through India's Crime Statistics for 2010, which can be found at the National Crime Records Bureau here (just click on Crime in India 2010 in the left column). I found that the records seemed to tell more about the failure to report most crimes in India rather than what the actual crime rate in India is. According to the government's statistics the highest reported crime rate is in Kerala, followed closely by Pondicherry. This should immediately strike one as odd because one does not usually think of Kerala or Pondicherry as the most crime-ridden parts of India.

Indeed, the National Crime Records Bureau seems to back this up, in part, thereby betraying the weakness of police reporting in most states in India. When one looks at the murder rate, Kerala is actually the second safest state or union territory in India. Only in Lakshadweep are you less likely to be killed, and that is because there were no reported murders in Lakshadweep last year.

Murders are far more likely to be reported than other crimes, especially in states with weak governance. In fact, few murders will ever not be reported. Therefore, it is probably safer to use the murder rate as a proxy for the actual crime rate when there is such weak reporting of crime, either because victims do not come forward or the police do not record their complaints when they do.

The following Chart uses the government's 2010 crime records to compare reported crime rates vs. reported murder rates (per 100,000 persons) and then rank the states from worst to best in crime rates and murder rates. The results are fairly striking

	Crime Rate	Murder Rate	Cr Rank	M Rank
AP	215.7	3	13	16
ARUNACHAL	197.5	6.1	16	1
ASSAM	199.1	3.9	15	8
BIHAR	131.1	3.5	26	9
CHHATTISGARH	224	4.3	11	5
GOA	188.9	2	19	27
GUJARAT	200.1	1.8	14	31
HARYANA	240.4	4.1	9	7
HIMACHAL	195.1	2	17	29
J&K	173.8	1.6	20	33
JHARKHAND	125.7	5.5	27	2
KARNATAKA	242	3.1	8	15
KERALA	424.1	1	1	34
MP	297.2	3.4	4	11
MAHARASHTRA	189.2	2.5	18	22
MANIPUR	100.5	3.4	29	10
MEGHALAYA	96	5.1	30	3
MIZORAM	215.7	4.8	12	4
NAGALAND	47.1	2	35	28
ORISSA	138.3	3.2	23	13
PUNJAB	134.4	3.3	24	12
RAJASTHAN	242.8	2.1	7	25
SIKKIM	90.5	2.8	32	18
TAMIL NADU	274.5	2.8	6	19
TRIPURA	160.8	4.1	21	6
U. PRADESH	87.5	2.2	33	23
UTTARAKHAND	94.1	1.8	31	32
WEST BENGAL	143.7	2.7	22	20
ANDAMANS	226.9	2.1	10	26
CHANDIGARH	299.8	1.9	3	30
D&N	133.6	2.1	25	24
DAMAN	101.5	2.5	28	21
DELHI	279.8	3.1	5	14
LAKSHADWEEP	58.3	0	34	35
PUDUCHERRY	352.3	3	2	17

Kerala ranks 1st for crime rate, but 34th for murders; Puducherry 2nd for crime rate, but 17th for murders; Chandigarh 3rd for crimes, but 30th for murders, etc. In fact, the only place that seems to rank as one of the top ten worst places for both murders and crime overall is Haryana - this is likely because although it's more developed and reports more crimes, it also might actually just have a high crime rate.

Overall, the impression you get from government statistics though is that as development goes up the murder rate goes down, but the crime rate goes up. It's likely most of this is a reporting problem and better developed states report all crimes - both murder and otherwise - fairly well, while poorer states only report murders consistently.

That said, there is another theory worth considering, which is that the government's statistics are correct, or largely correct, and do reflect the actual situation on the ground. Perhaps, wealthier states just have more opportunities for things to be stolen or fraud perpetrated, etc., but have better solved the murder problem. Therefore, their crime rates are higher, even if you are less likely to be murdered there. Perhaps . . .

Equity of Land Acquisition

2011-12-01T02:33:00.006+05:30

In an Op Ed published in today's New Indian Express, I analyse the provisions of the proposed Land Acquisition Rehabilitation and Resettlement Bill, 2011 in light of the functioning of the Land Acquisition Act, 1894 over the past century. I identify four main problems with the conception and practice of state acquisition of land in India and analyse whether the LARR bill addresses these issues. Based on my analysis, I conclude that,

"The LARR Bill is undoubtedly a step in the right direction of ushering in a culture of justification wherein the government is required to explain and engage with the people it dispossesses of their lands, livelihoods, and way of life, of the legitimacy and necessity of such dispossession. But it must be suitably revised in light of evidence of current state practices if the government's promise to enact an equitable and transparent land acquisition law has any chance of becoming a reality".

I have previously written about some of the issues involved in land acquisition here. Other discussions about land acquisition on this blog can be accessed here and here.

SC-ST Quotas in Public Procurement

2011-11-30T18:40:00.000+05:30

This article by Sukhdeo Thorat discusses the government's decision to establish quotas for SC-ST entrepreneurs in procurement. It is an interesting refinement of traditional affirmative action arrangements, which have traditionally focused on quotas in educational institutions and in government jobs.

I suspect this measure will be upheld by our courts. At the same time, it is important this measure does not become a loop-hole for further corruption and malfeasance in government contracting. The policy may also have to be reconciled with the proposed public procurement bill, which has been released for public comment.

Finally, it is important to point out that Thorat's otherwise interesting analysis ends on a sour note with its reference to the Malaysian Bhumiputra policies. It has been widely alleged that those policies have promoted thinly disguised racial discrimination against Chinese and other ethnic minorities.

Operation Majnu: Illegal Policing

2011-11-30T18:33:00.001+05:30

The cops in Gaziabad 'punished' young couples in parks this morning by making them do sit-ups (calling it 'Operation Majnu'). The case highlights the need for the upper judiciary to clarify that section 294(a) of the IPC does not cover couples sitting together in parks showing affection towards each other (see our previous blog post on this issue here. See also this previous post on 'cultural policing'.).

What annoys me most about this case, however, is that even if what those couples were up to does amount to obscenity prohibited by s 294(a), there is absolutely no legal power with the police to punish the couples in this case. The police is a preventative, investigative and perhaps prosecuting agency - the task of punishment is normally that of the judiciary alone. Sometimes laws give police the power to fine offenders for minor offences. As far as I am aware, there is no law giving police the power to punish anyone for violation of section 294(a). This corporal punishment was inflicted without fair trial and without the authority of any law.

The Delhi High Court held in Manushi Sangathan v Govt of Delhi that 'there is no power in the MCD, much less the Delhi Police, to seize and either sell in auction or destroy a rickshaw even where it is found to be driven without a licence or by a person not having a proper licence.' [para 63] That case turned on the right to property guaranteed by the constitution, which the Court rightly held can only be taken away by law. (see our previous post on that case here). Right to liberty, which is involved in the case of Operation Majnu, is a fundamental right and therefore on a higher status than the right to property. It cannot be infringed without express provision of the law, which must be just, fair and reasonable. The cops in this case have clearly violated the law, as well as the constitution. They must be held to account.

Air India Cabin Crew Association v Union of India

2011-11-21T19:57:00.001+05:30

The Supreme Court has delivered an important judgment in Air India Cabin Crew Association v Union of India last week. Here is the press note sent to me summarising the judgment. The judgment is available on JUDIS, but I couldn't find a direct link to post here.

ASupreme Court bench of Justices Altamas Kabir and Cyriac Joseph, on November17, upheld Air India’s 2005 decision to abandon its policy of reserving theIn-flight Supervisor designation to its male cabin crew. An Inflight Supervisoris the boss-in-charge of all cabin crew on board a flight – i.e. female cabincrew or Air hostesses, as well as male cabin crew, Flight Pursers. Once onboard the aircraft, all cabin crew, whether Air hostess or Flight Purser, areunder the direct supervision of the Inflight Supervisor.

Until2005, only men were designated by Air India as Inflight Supervisors. This meantthat male Flight Pursers who were appointed Inflight Supervisors wouldsupervise the work of all Air hostesses, including those who were many gradesabove them and many years senior to them.

InDecember 2005, Air India decided to end this blatantly discriminatory practice,announced that Inflight Supervisors will be appointed from among both genders,and designated 10 women Senior Managers (each ofwhom had more than 30 years of flying experience), as InflightSupervisors. This decision of Air India was challenged by the male Flight Pursersbefore the Delhi High Court, claiming that agreements between their union andAir India preserved the position of Inflight Supervisor only for men, and alsoclaiming that the Supreme Court of India had recognized this right.

On8 October 2007 the Delhi High Court dismissed the Flight Pursers’ petition,holding that it was unable to discern in any of the agreements between theunion and Air India, any assurance or promise to the male cabin crew that afemale colleague of theirs will never be asked to perform the function of an InFlight Supervisor. It took note of the irony that although many of the Airhostesses had trained the flight pursers to perform the functions of InflightSupervisor, they were themselves excluded from performing the function. TheHigh Court held that Air India’s removing of the 'men only' tag from theposition of Inflight Supervisor, was in keeping with the mandates of Articles14 and 15 of the Constitution of India prohibiting discrimination on thegrounds of sex, as well as binding international obligations under the Convention on the Elimination of Discrimination against Women(CEDAW). Air India, the high court held, had enabled its female cabin crew tobreak the Glass Ceiling and there was nothing unreasonable in male cabin crewbeing asked to serve on a flight which had their female colleague as anInflight Supervisor.

TheFlight Pursers challenged the Delhi High Court judgment before the SupremeCourt, and in November 2007, the Supreme Court directed status quo, which meantthat Air India was unable to implement its decision to bring about equality. Byits judgment Thursday, the Supreme Court dismissed the petitions and upheld theDelhi High Court’s decision, recognizing Air India’s right to place an employeein a position where she would be best able to contribute to the Company.

TheSupreme Court’s confirmation of the Delhi High Court judgment is an importantmilestone in the fight against discrimination by Air India’s female employees.Importantly in the present airline scenario, it is also a matter of soundbusiness sense that the most experienced and the most capable are placed inpositions of responsibility and that women are not kept from such positions onaccount of their gender.

Bar Exam Trends

2011-11-20T07:51:00.003+05:30

I was looking through the March and July bar exam results and although there isn't yet too large of a sample set it seems as if definite trends are emerging. Overall, about 70% of those who sit for the exam pass it, although not unexpectedly only about 56% pass it who sit for it a second time. Women seem to do slightly better than men on the exam, but only by 1 or 2%. (for an international comparison, about 65% of those who take the New York bar exam pass it).

The more striking breakdowns are by state and the language in which the exam is taken (the same exam, which is entirely multiple choice, is translated into 9 languages, although I don't think anyone has taken it in Oriya yet). The passage rate for those who take the exam in English, is on average the highest of any language group, at about 80%. English is also by far the preferred language to take the exam in. About a third as many people take the exam in Hindi and the passage rate for them is about 60%. Gujarati is the next most popular language. For July these test takers passage rate was 65%, but in March it had only been 35%. The next largest group that takes it is those who do in Kannada, and they tend to do particularly poorly passing only about 30% of the time. You can look at the links for the results of the other language groups, but for most of the rest not enough people take them in these languages for clear statistical relevance to be established.

The statewise breakdown is also revealing, although not as much because of the passage rate. For example, those who took the exam in Bihar have an extremely high passage rate (98% for March). This might seem odd given the socio-economic indicators in Bihar, no matter what understanding might be out there in the popular imagination concerning their penchant for test-taking. Yet, only 106 people took the exam in the state that month. There are about 100 million people in Bihar. Maharashtra, which has about 110 million people, had almost 4000 people take the test. Considerably smaller Delhi had almost 2700 people take it. Amongst the lowest passage rates from states where lots of people seemed to take the test were interestingly in Andhra Pradesh, Gujarat, and Karnataka. Not naturally places one would assume would do poorly. However, it might just be that they have far more law schools and so far more test takers. Still, it's not obvious why some of the poorer states would have higher passage rates even if they had fewer students taking the test (one could imagine that they would just have fewer and worse students).

It will probably require results from a few more exams before one can come up with any real meaningful comparisons between the states, and have a big enough data set that one can say something concretely about all the language groups. Still, it does seem that if your English is good enough that you feel confident enough to take the exam in English that you are likely to do better than others around the country (this makes intuitive sense since the best law schools in India tend to be English only and most key legal resources, such as Supreme Court judgments, are in English). It also seems clear that different states are producing dramatically different numbers of (qualified) lawyers. Perhaps some of the test takers who took the exam in Maharashtra are from Bihar and will return there. However, it seems like certain states aren't currently producing very many lawyers, or for some reason students graduating in these states don't yet feel pressured enough to take the exam. Certainly, many law graduates don't go on to practice law and so won't take the test, but states like Bihar, Jharkhand, and Orissa currently have a statistically insignificant number of people take the exam in their state. It seems important to get to the bottom of what explains this and whether this should be a point of concern.

(Thanks to the folks at Rainmaker, who conduct the bar exam, for originally pointing me towards these statistics)

International Law through the Indian lens

2011-11-14T03:16:00.007+05:30

International Law Curry joins a growing body of legal commentary including Spicy IP and LAOT. As the name suggests, ILC, provides an "Indian" perspective on international law questions, and in doing so seeks to provincialize some of its universalist claims.

Call for papers - new journal on telecommunications and broadcasting law

2011-11-01T06:29:00.006+05:30

The National University of Juridical Sciences, India is launching a thematic journal on Telecommunication and Broadcasting Law (JTBL). It is conceived as an international peer-reviewed journal that will be dedicated to legal scholarship in the field of telecommunication and broadcasting laws around the globe. The Journal encourages deliberations on subjects of an interdisciplinary nature and would include review of laws and policies involved in the field.

The inaugural issue of the JTBL is slated for July 2012. Interested contributors can find out more by checking the details of the call for papers on the journal's website here or by emailing jtbl@nujs.edu.

Do Kiran Bedi's refund claims amount to corruption?

2011-10-21T17:58:00.006+05:30

As someone who is pleased with the unprecedented attention that Anna's movement has brought to the issue of corruption in our public discourse, but critical of certain tactics of the movement which I fear can cause lasting damage to democratic institutions, and also of some of the provisions of the JanLokpal Bill, I have watched the 'revelations' about the members of Team Anna with interest. Some of it is indeed in the nature of a witch-hunt, and underscores the need for a strong anti-victimisation law to protect whistle-blowers and activists. Some attention obviously comes with being prominent in public life.

It was easy for liberals to condemn the attack on Prashant Bhushan for holding controversial views on Kashmir. Whatever the merit of his proposals, social censorship by vigilante groups has become a huge problem in India and we are still groping for a legal response.

The case of Kiran Bedi's inflated reimbursement claims for air travel to give lectures is less clear cut. Bedi seems not deny the facts, but has two defences:

1. Business class travel fare is an entitlement (almost contractual entitlement which is agreed upon by her acceptance of the invite), and in any case claimed with the knowledge ('deemed consent'?) of the organisers.

2. That the 'savings' have been used for a good cause (i.e. by her Trust for educating children).

I think it will be an interesting exercise to see whether this would amount to 'corruption' under the Jan Lokpal Bill. I must enter the caveat that I have no expertise in contract law except what I remember from the first year in law school, and much of the analysis to follow may depend on a good understanding of contract law. Nor have I looked at case-law to see how judges have interpreted the relevant legal provisions. I hope a wiser reader will show how I have completely misunderstood the law. So, I am just thinking aloud and not committed to these views:

The definition clause of the Jan Lokpal Bill borrows the definition of 'corruption' from the Prevention of Corruption Act 1988, with a proviso which is not relevant for this analysis.

The most directly relevant provision of the 1988 Act seems to me to be section 11:

Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain for himself, of or any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Prima facie, this definition applies only to public servants, and since Bedi was not acting as a public servant, she would be exempt. It is also not clear whether the people who invited her to give lectures would qualify as the relevant givers of the 'valuable thing'. But for our purposes of discovering whether Bedi has practised what she preaches, these technical exemptions based on the identity of the people involved in the transaction must be ignored for the moment (they do have a bearing on the question, to which I will return later). First we must focus on the substance of the offence of corruption in this provision (which I have highlighted in bold in the provision).

The provision demands that the accused by obtain 'any valuable thing without consideration, or for a consideration which he knows to be inadequate'. Presumably, the concept of 'consideration' is borrowed from contract law.

It seems clear to me that there was indeed some consideration (Bedi was after all taking a flight in order to provide a service in the form of a lecture). I am not a contract lawyer, but it does appear to me that the consideration in this case was indeed inadequate, and Bedi herself appears to accept this. The question is whether her two defences - consent and good purpose - apply.

That the organisers knew about inadequate consideration seems to be irrelevant since the law does not appear to accept consent as a defence. So, Bedi's first defence falls. The provision makes no reference whatsoever to the 'purpose' for which the valuable thing was obtained, so Bedi's second defence that it was for a good cause would be quite irrelevant in the eyes of the law.

Now we return to the fact that Bedi is not a public servant. Indian contract law, as far as I can recall, does not require adequacy of consideration, only that there must be some consideration. Thus, private citizens are indeed allowed by law to enter into transactions where one party gets too little consideration for what they have put in (except in some extreme cases of unfairness). The PCA 1988 modifies these rules in the special context of a public servant, and demands that consideration must also be adequate, and in fact attaches criminal liability to inadequate consideration. If Bedi had done what she has done as a public servant, her actions would most probably amount to corruption. As a private citizen, it is not illegal. Of course, if NGOs are covered by the LokPal, a suggestion that 'Team Anna' has opposed, and similarly stringent rules were applicable to NGO functionaries as they are to public servants, then Bedi may well have committed the offence of corruption.

I must reiterate that I have no personal knowledge of this case beyond what has been reported in the cited links, and I do not know enough to be able to tell whether Bedi's motives were benign. It appears from reports that her motives were indeed benign (again, no defence under this provision). This is just a technical analysis of applying a legal provision to some reported facts. Perhaps the law should take motives and purposes into account. But surely politicians deserve the benefit of this nuanced approach to corruption as much as Bedi?

Regulatory Barriers to Litigating in India

2011-10-06T10:46:00.004+05:30

This interesting short paper "Regulatory Barriers to Litigation in India" by Prashant Narang recently came out in the Asian Journal of Law and Economics. The basic argument is that the regulatory framework of the legal profession in India frequently biases against new entrants to the profession and favors those with preexisting family connections.

Take the ban on advertising - Narang argues this clearly favors those with well-established family names limiting new entrants from building up a reputation through advertising. Or the ban on contingency fees? Again, it favors well-established players and means new entrants, who can't bank on getting cases through family connections, that are willing to take a risk on a case by using contingency fees are banned from doing so. The ban of moonlighting, or having another profession? This also favors those who can use family connections to catapult their reputation and enter the top tiers of the profession quickly. It limits the options of others without these connections to be academics or start their own business, etc. on the side, while they slowly build their reputation in court during the same period. Finally, he argues that restrictions on the size and nature of the law firm in India mean that they are more likely to be family dominated, and so less professional and meritocratic.

All these bar council rules might have been well-intentioned, and several may clearly have benefits, but it seems clear to me that the Bar Council has likely not taken into account these unintended negative consequences. This is in part because of the rather insular nature of the Bar Council (those who couldn't break into the profession because of the above mentioned barriers aren't going to be leading it and have a chance to reform the rules). Narang argues that there needs to be a rethink of the composition of the Bar Council, or at least those who make its rules, to make sure a more diverse set of interests are represented and to avoid regulatory capture.

I couldn't agree more. My limited experience with the Bar Council's regulation of Indian legal education is similar (and deserves a separate post). Essentially, it is a story of well-intended regulation having unintended and deleterious consequences because the rule making process is not carried out by a body that is representational enough or that receives (or actively seeks out) enough critical feedback.

Supreme Court substitutes death sentence by L.I.

2011-09-28T20:43:00.002+05:30

When Supreme Court substitutes death sentence imposed by the trial court and confirmed by the High Court by a sentence of imprisonment for life, it deserves appreciation. Each such decision by the Supreme Court helps to correct the distortions which marked the jurisprudence over the years. In today's judgment in Rajesh Kumar v The State through the Government of NCT of Delhi, Justices A.K.Ganguly and D.K.Jain explain how the HC erred in awarding death sentence to the convict.

A Lakhman Rekha for The Judiciary

2011-09-25T03:22:00.000+05:30

This has got to be one of the most interesting back-and-forth during a Supreme Court argument. Gone are the days of judges passively listening to senior advocates drone on and on. This bench, at least, seems to be in a combative mood.

Men's Only Bar in Bombay?

2011-09-25T03:19:00.000+05:30

Why is it so hard for women to become senior advocates in Bombay? This is a national disgrace. I'm sure the numbers aren't much better at other high courts or in the Supreme Court. No wonder we so few women judges across the country.

GLC Essay Writing Competition

2011-09-23T03:56:00.003+05:30

The Magazine Committee of Government Law College, Mumbai has called for papers for the 11th Vyas – Government Law College National Legal Essay Competition. The winners receive a cash prize and the top two essays are published in méLAWnge, the annual college magazine. The competition is judged by sitting judges of the Bombay High Court. The 10th edition of this competition was judged by Hon’ble Shri Justice J. P. Devadhar, Hon’ble Shri Justice V. M. Kanade, Hon’ble Shri Justice A. S. Oka, Hon’ble Shri Justice S. J. Kathawalla, Hon’ble Shri Justice K. K. Tated, Hon’ble Smt Justice Bhatkar amongst several others.

This year’s topics are:
1) International tax treaties – Examples of globalised corporate governance or infringements of national sovereignty?
2) Is the proposed legislation on Public Interest Disclosure sufficient to protect India's whistleblowers?
3) Jaitapur Nuclear Power Project – Is the promise of the largest nuclear power generating station in the world overshadowing public safety and environmental concerns?
4) Land Acquisition and Resettlement and Rehabilitation Bill, 2011- A boon or a bane?
5) Sedition laws in India and the National Security Act 1980 – A necessity or a deprivation of constitutional and statutory rights?

For further information please visit www.glcmag.com or write to melawnge@glcmumbai.com

The committee also organizes the BELLES-LETTRES J.E. Dastur Memorial Government Law College Short Fiction Essay Writing Competition, which has been judged by authors like Gregory Roberts and Ruskin Bond in the past. Visit the website for more details.

Supreme Court's latest judgment on death penalty: A critique

2011-09-15T20:58:00.004+05:30

Supreme Court’s recent judgment in Ajitsingh Harnamsingh Gujral v. State of Maharashtra, (hereafter referred to as Ajitsingh) deserves a close study by all those concerned about the award of death penalty in India. There can be no doubt that one would be horrified by the brutality of the murders found to have been committed by the appellant in this case. It is difficult to disagree with the Bench that circumstantial evidence is overwhelmingly against the appellant.

There are certain flaws in the judgment which are also the flaws of many judgments which the Bench has cited. There are exactly 32 precedents which the Bench cited and all of them are in defence of the Bench’s argument that the most heinous and barbaric murders are also invariably the rarest of rare cases which call for imposition of death penalty.

Rightly and most expectedly, the Bench began with the Supreme Court's judgment in the Bachan Singh case and cited the crucial sentence in Paragraph 58:

"For persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

It is curious that the Bench has emphasised the first part of the last sentence, whereas the second part of that sentence qualifies the first part. Because of this flawed emphasis, the jurisprudence on death penalty suffered for lack of clarity and consistency since 1980, and it continues to suffer so to date. Supreme Court pointed this out in Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009). Unfortunately, Bariyar does not find a mention in Ajitsingh.

Other cases which have been conveniently left out in this selective survey are Mulla v State of U.P. and Swami Shraddhananda which apply the law and precedents correctly.

In Bariyar, the Court noted that the mitigating circumstances listed in and endorsed by Bachan Singh give reform and rehabilitation great importance, even requiring the State to prove that this would not be possible, as a precondition before the Court awarded a death sentence.

In Paragraph 96 of Ajitsingh, the Court did not even refer to this State's responsibility to prove that the appellant could not be reformed or rehabilitated. Instead, the Bench has substituted this requirement with the opinion that a person like the appellant who, instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner, could not be reformed or rehabilitated. Can a Judge's personal opinion replace the need for evidence when the alternative option is unquestionably foreclosed?

In Ajitsingh, the Court has relied on Machhi Singh (1983) and Mohd. Mannan v. State of Bihar (2011) to hold that murders which are gruesome, ghastly or horrendous, and when collective conscience of the community is petrified, death penalty is called for, as they belong to the category of rarest of rare cases. The questions whether the sentence of life imprisonment is inadequate and whether there is no alternative punishment cannot be answered with subjective views. The facts and circumstances of each murder are different, and therefore, by simply repeating the adjectives used to describe the manner of killing in earlier cases, the case before the Court does not ipso facto become rarest of rare. The distinction between ordinary murders and murders which are gruesome etc. which the Court have drawn in Paragraph 98 of Ajitsingh is not at all convincing. Neither Bachan Singh nor Machhi Singh Benches intended to draw such distinction.

The paragraphs which the Bench has cited from Mohd.Mannan in Paragraph 99 clearly suggest that it ought to have further enquired and believed that the accused condemned could not be reformed or rehabilitated and would continue with the criminal acts. There is nothing to suggest in the judgment that the Bench did this exercise. It needs to be asked whether the question was put to the prosecution during the hearing, and what was the response.

In Paragraph 99, the Bench has admitted that the expression 'rarest of the rare cases' cannot, of course, be defined with complete exactitude. I disagree, with due respect. It ought to be defined exactly; otherwise, we will be unjustly taking away the life of a convict. The broad guidelines, explained by various decisions of the Court, are not exhaustive, and sometimes confusing, with conflicting judgments.

As a matter of routine exercise, the Bench has cited the Law Commission's 35th Report in Paragraph 55. What does it say? It has concluded that deterrence object of capital punishment is achieved in a fair measure in India, on the basis of its opinion survey conducted several years ago. Instead of opinions, what we require is hard data. I wish the court has gone into such hard data, to find out, whether the capital punishment has achieved the deterrence objective over the years. The Law Commission, in that report, actually said we needed studies extending over a long period of years to know the conduct of prisoners released from jail. It was also doubtful whether any other punishment could possess all the advantages of capital punishment, and whether statistics of other countries, as to the deterrence aspect, were conclusive. A report which has expressed doubts about its own findings cannot be the basis for capital punishment.

Supreme Court has the power to commission data and studies as well, where no hard data is available. It is inexplicable why successive Benches of the Supreme Court confirming death penalty have not thought it necessary to do so.

Lastly, the Bench claims in Paragraph 101 that it is only the legislature which can abolish the death penalty and not the courts. I wonder how the Supreme Court declared Section 303 IPC unconstitutional in Mithu v State of Punjab. The Court certainly has the power to abolish, but it has chosen not to do so for other reasons.

(I thank Bikram Jeet Batra for making helpful suggestions on an earlier draft of this post. I also thank Vikram, Arun, Tarunabh and Nick for their encouraging response to the previous draft which I had circulated)

Call for Papers- National Law School of India Review

2011-09-04T21:27:00.000+05:30

The National Law School of India Review is now accepting submissions for its upcoming issue - Volume 24(1).The National Law School of India Review (NLSIR) is the flagship law journal of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. Over the last 20 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, Senior Counsel practicing at the Indian bar, and several renowned academics.

The most recent issue of the NLSIR, Vol. 23(1), featured contributions by Mr. Justice Altamas Kabir (Judge, Supreme Court of India), Professor Christopher Forsyth (Cambridge University), Professor Julian Roberts(Oxford University), Professor Lea Shaver (Yale Law School), Professor Ariel Ezrachi (Director, University of Oxford Centre for Competition Law and policy) and Mr. K. Swaminathan (Head of the Direct Tax Practice at Lakshmikumaran & Sridharan) among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, inAction Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat's Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.

Papers may be submitted as Long Articles (approximately 8000 words), Essays (approximately 5000 words) or Notes (approximately 2500 words). Submissions may be made to mail.nlsir@gmail.com. Queries regarding submission may be sent to the same email address. The last date for submissions is November 1, 2011. Formore information, please visit - www.nlsir.in.

2011-09-01T20:34:00.000+05:30

The Anna movement and the media

The Foundation for Media Professionals held a panel discussion on the subject at IIC, New Delhi on Aug.31. Highlights of the discussion are available on the Events page.

George H. Gadbois, Jr.

2011-08-27T21:11:00.000+05:30

I am very pleased to welcome George H. Gadbois, Jr. to Law and Other Things. Professor Gadbois has been a distinguished scholar of Indian law and judicial behaviour for several decades. He obtained his Ph.D. from Duke University and is Professor Emeritus of Political Science at the University of Kentucky, USA. He is, perhaps, best known for his 1970 article on Indian judicial behaviour published in the Economic and Political Weekly. Earlier this year, Oxford published his long-awaited Judges of the Supreme Court of India: 1950-1989.

Gadbois' New Book

2011-08-25T15:22:00.002+05:30

Oxford University Press recently published a book on the Judges of the Supreme Court of India by George Gadbois. The book has been covered on this blog previously. In a review article in the current issue of the Economic and Political Weekly (available here), Sudhir Krishnaswamy and I examine the book and reflect upon the nature of Gadbois' contribution.

Substantive Due Process

2011-08-23T11:30:00.004+05:30

In a book published this month by the Eastern Book Company, entitled “Due Process of Law”, I analyze the doctrine of substantive due process, in particular its evolution in American constitutional law, and its emergence in Indian jurisprudence. In it, I expand upon themes I previously wrote about (here and here), arguing that the term “substantive due process” has evoked three meanings in American constitutional jurisprudence, (i) “federal-state” due process, (ii) “fundamental rights” based due process, and (iii) substantive scrutiny of life, liberty and property deprivations. I examine the origins of the phrase “due process of law” in per legem terre in the Magna Carta, exploring the intellectual disagreement (though centuries apart) between Lord Coke and Blackstone over its meaning, its adoption into the fifth and fourteenth amendments to the American constitution, the tussle between Justices Frankfurter and Black on the American Supreme Court in the manner of its interpretation (at approximately the time that B.N. Rau met Justice Frankfurter and was advised to drop the clause), the “false start” of substantive due process doctrine during the Lochner era (leading up to its new beginnings during the Warren era), B.N. Rau’s own reservations with the “due process” clause even prior to his meeting with Frankfurter, the strong apparent support for the words “due process of law” on the sub-committee on fundamental rights and later on the constituent assembly of India itself and Dr. Ambedkar’s ambivalence towards the clause. I explore what I believe are three emanations of substantive due process doctrine in India: (i) the blending of boundaries between constitutional provisions beginning with the end of the Gopalan era and culminating in our “basic structure” jurisprudence, (ii) the strong substantive “arbitrariness” test with its origins in the moral illegitimacy of the court during the emergency, and (iii) the well known “right to life jurisprudence”. This book explores the juristic techniques employed by the Supreme Court of India in interpreting the Indian constitution and their strong resemblance to American "substantive due process" doctrine, but it does not attempt a history of the court’s handling of socio-economic legislation. I would like to invite interested readers to read further.

Does the Jan Lok Pal Bill reflect 'We the People'?

2011-08-23T01:26:00.004+05:30

In the latest episode of Barkha Dutt's 'We the People', I argue that the Anna Hazare movement is driven by the urban middle-class, and this is reflected in the peculiarities of the Jan Lok Pal Bill. I also argue that the ideal Lok Pal must be one who is not 'all-powerful' (i.e. a sitting PM, higher judiciary, and MPs acting within Parliament must be outside its ambit), but one who is completely 'independent'. As I perhaps imprudently accused Justice Santosh Hegde: If his Jan Lok Pal Bill was law under Indira Gandhi's regime, she might well have used it to jail his father, the great judge K.S. Hegde (who stood up to Madam Gandhi).

I will be engaging in an online debate with the readers of rediff.com tomorrow (Tuesday, 23rd August) at 4pm. Please login to take the discussion forward.

Annaleela: hazarding a guess about its immediate outcome

2011-08-22T13:21:00.007+05:30

The country is in the midst of a huge suspense, with Team Anna hardening its demands to end Anna Hazare's fast. When he was released (or rather released himself) from Tihar Jail, the Team Anna clarified that it secured permission to hold the protest for 15 days (with an option to review), and that Anna's fast is not fast-unto-death, but an indefinite fast, that is, he would fast as long as his health permitted. Implicit in this statement was the assumption that when his doctors say he is no longer fit to continue the fast, he would give it up. But statements, made subsequently by Anna and his team members belie that assumption.

It now appears that he is determined to continue the fast till the Government accepts the core demand to withdraw the Government's Lokpal Bill and introduce and pass the Jan Lokpal Bill in this session which ends on Sep.8. No one expected that Anna would refuse to leave Tihar Jail when freed, and instead insist on unconditional permission to hold his protest as a precondition to leave the jail. But can anyone predict what is likely to happen in the next 7 days or beyond?

Media has so far refrained from predicting the sequence of events in the immediate future, even while explaining what went wrong with the Government's response. They have also refrained from suggesting how the Government should specifically respond, given Team Anna's intransigence.

One of the curious paradoxes of this crisis is the much perceived dichotomy between political and legal options before the Government. This distinction is interesting because the Central Government was accused of adopting a purely legal option, rather than pursuing a political one, which could have helped to stem the crisis from acquiring the huge proportions that it has managed to subsequently. Are the political and legal options inconsistent with each other?

I welcome our readers and contributors to reflect on the political and legal options before the Government in the next few days, and advice specifically the steps that could prove to be effective in resolving the crisis. Not that the Government would act upon our advice here, but it could be, at least, of academic value.

(The News and Article Alerts and Interview pages have some links to interesting opinion pieces on the various dimensions of this crisis while the Primary Sources page has some useful links to original materials, relevant to the discussion.).

Corporate middle-class and Hazare

2011-08-18T19:00:00.002+05:30

As the 'movement' around Anna Hazare gathers steam, I wrote this op-ed in yesterday's The Indian Express. It takes further some ideas I was exploring here .

Delhi University's Digital Book Archive

2011-08-17T19:56:00.002+05:30

Readers may be interested in accessing Delhi University's archive of digitised books whose copyright has expired. The archive has some useful legal material.

Debate on the removal of Justice Soumitra Sen

2011-08-17T15:22:00.004+05:30

Rajya Sabha has just begun the process of removal of Justice Soumitra Sen with Sitaram Yechury speaking on the motion. The debate can be watched live from here. The Report of the Inquiry Committee and the text of the motion can be read at the Primary Sources Page. Here is a video record for Aug.17. The verbatim record of the RS proceedings can be read here, here, and here. After Justice Sen presented his defence, the Leader of the Opposition, Arun Jaitley began to speak on the motion, and has not yet concluded. The debate will resume at 2 p.m. tomorrow.

Madras High Court Turns 150

2011-08-16T07:37:00.000+05:30

Our Independence Day also marks the 150th anniversary of the Madras High Court. The Hindu published an excellent opinion editorial on the subject by Justice Chandru who is a sitting judge. He calls for a social audit of the High Court's performance, which is something all our courts probably need. He also calls for doing away with the summer vacation and having rotational leave among judges and allowing Tamil as a language in which pleadings can be made. I'm also struck by this profile of Chandru who appears to have dispensed with colonial practices and customs that are still in vogue at the High Court.

Ram Jethmalani exposes the fraud of frauds

2011-08-14T13:25:00.000+05:30

When Ram Jethmalani exposed for the first time how the Central Government used the instrument of ratification to cover up corruption (on August 6 at CJAR convention in New Delhi -see Events page), it was another story waiting to be told in detail. He has now followed this up in his column in Sunday Guardian today. The Government signed the UN Convention Against Corruption on May 9. Two things are worth noting: It took India more than five years to begin the process to ratify it after signing it towards the end of 2005. And it did so with a controversial qualification, which seems to defeat the very objective of ratification.

Liberalisation, Contract Teachers, and Constitutional Moments

2011-08-12T09:30:00.002+05:30

Liberalisation transformed India's economy and workforce. Government employees have been just as affected as their private counterparts, and perhaps even more so, as the government has increasingly employed contract workers to perform various state functions. Varun Gauri and myself look at how the judiciary has reacted to this shift in government labor policy in the education sector in this recent article in which we track all contract teacher cases that we could find over the last thirty years in the Supreme Court and the High Courts of Kerala, West Bengal, Gujarat, and Bihar. The paper finds that although almost never explicitly overturning precedent, the judiciary has increasingly become less sympathetic to contract teachers' demands.

This is particularly clear at the Supreme Court level - think about the general turn of events for government contract workers between Piara Singh in 1992 (in which the Court says regular employees should be the norm and lays out a path for regularization of contract workers) and Uma Devi in 2006 (where the Court stops judge-ordered regularization and says it's up to the government if there should be regularization). The Court eventually makes this general shift towards a more liberalized view of contract employees, but it lags behind the actual policy shift of the government, not fully adopting this position until the 2000s (with even some holdout judges currently on the bench). The High Courts generally lag even further behind than the Supreme Court.

The article concludes by arguing that the Supreme Court should consider reengaging with the government (and state governments) about appropriate labor policies that not only achieve better results for students, but better working conditions for teachers (some of this recommendation is complicated by provisions in the Right to Education Act, which depending on how it is interpreted may limit or ban contract teachers, but in actual practice hasn't done this yet).

Working on this article got me thinking about how many areas of supreme court precedent have likely had to essentially reverse or substantially change themselves to accommodate "liberalisation" (a term I am using loosely in this post for lack of space). Usually this was done without ever explicitly overturning precedent. This is an interesting phenomenon worth further exploration. But it also led me to reflect if the Constitution itself had provisions that no longer seemed to apply, that like old precedent in the contract labor example had essentially been overturned even if they had not been removed. In other words, to borrow Bruce Ackerman's language momentarily, did India in the early 1990's have a constitutional moment, but not amend its constitution to account for it? And are the judges accounting for it on their own instead through case law?

Indira Gandhi's Emergency can be considered a constitutional moment. It arguably left India with a Basic Structure Doctrine that at least in the short to mid-term was seen as unassailable, which profoundly shaped our understanding of the constitution going forward. However, that was not the only mark left on the Constitution. Indira Gandhi's trumpeting of a socialist reordering of the economy, which went beyond even her father's vision, ensured that the preamble would now read that India was a "socialist" state. The Directive Principles were also amended through the 42nd amendment to include 43A: "The state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry."

When the Emergency ended the new government repudiated Indira Gandhi's authoritarian overreach by passing the 44th amendment to remove provisions she had added to the Constitution that dubiously protected herself and her power during the Emergency. However, the 44th amendment did not remove the provisions that reoriented India towards a more socialist economy. Instead, it further strengthened this reorientation by removing property as a fundamental right and adding in the directive principles 38(2): "The State shall . . . strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities, and opportunities . . ." It essentially reconfirmed India's socialist entrenchment.

Now many of the provisions of the Indian Constitution even if conceived of as operating against the backdrop of a socialist or quasi-socialist state don't explicitly require such an economic system. For example, Article 43's provision of the state endeavouring to provide its citizens a living wage through suitable economic organisation does not require that the means of production of the economy be in state hands . However, I would argue 38(2) and 43A do come close to requiring this, and at least they can't be achieved under liberalisation as embraced by India in the 1990's. In the case of 43A making sure workers help run the companies they work for runs directly counter to liberalisation's focus on privately run industry. In the case of 38(2), liberalisation is seen by its supporters as a way to make everyone richer than they would be without it, but even its most ardent proponents would have a difficult time claiming that it reduces income inequality.

One might point out 38(2) and 43A are just directive principles, which are not judicially enforceable. And yet, in the late 1970's the government went to considerable lengths to add them to the Constitution to signal that a certain type of socialism popular in that time was now the guiding constitutional vision for the economy. Why didn't the liberalisers of the early 1990's do the same? (a lack of popular mandate springs easily to mind as one possible answer) But more to the point, what is the implication of the fact that they have not entrenched this changed economic policy in the constitution? And that the Constitution in some specific parts seem to directly contradict liberalisation's policies and in other parts arguably does in spirit? How should this affect judges when they try to interpret a document that clearly had envisioned a different economic ordering? Perhaps this means that liberalisation wasn't a constitutional moment (it certainly is still contested). Or maybe it signals a different approach by Parliament towards how the constitution will be viewed to relate to economic policy.

In defence of freedom of expression: Way clear for Aarakshan

2011-08-10T23:57:00.005+05:30

The Bombay High Court has rejected the petitions challenging the film certification granted to the film, Aarakshan. In this judgment, the Bench, relying on the Supreme Court judgment in the Jagjivan Ram case, has said that the threat of unrest or protests cannot be the ground for denying certification to a film. The petitioners wanted a direction to the directors of the film to screen the film to them, before its release. Rejecting this plea, the Bench has expressed satisfaction over the CBFC's claim that it has taken precautions like consulting experts belonging to SCs and OBCs, and secured their consent, before granting the film the required certification. Moreover, the respondents have claimed that the film is not against reservation as such, as apprehended by the petitioners.

UPDATE: The controversy is far from over with demands for ban on the film continuing to be voiced from disparate groups. The U.P.Government has already banned the film for two months. The issue appears to be whether certain characters in the film could use certain expressions, deemed offensive against certain sections of the people, even if the overall thrust of the film is not against reservations per se. While I don't want to jump to conclusions before watching the film, the resolution of this controversy could offer lessons on how issues involving freedom of expression ought to be addressed.

UPDATE 2: With Punjab and Andhra Pradesh too banning the film, the director Prakash Jha has petitioned the Supreme Court for relief. The case is coming up for hearing in the Supreme Court on August 16. See Court Updates for details.

Justice A.K.Ganguly's speech on Corruption

2011-08-09T13:52:00.009+05:30

[The following are excerpts from the Supreme Court Judge Justice A.K.Ganguly's speech at the release of the book on Corruption and Human Rights in India written by C.Raj Kumar, Vice-Chancellor of the O.P.Jindal Global University, and published by OUP on August 5. The Vice-President, M.Hamid Ansari released the book. The Vice-President's speech can be read here.--VV]

I really feel honoured to be before you this evening in connection with the book release on a topic of great social relevance. If I may say so, Prof. Raj Kumar could not have timed it better. (laughter) It reminds us of the great cricketers – the Indian cricketers – they have a great sense of timing. I think Prof. Raj Kumar has done the same thing. He has traced the history relating to corruption in society right from Kautilya down to this latter day ongoing debate on Lokpal Bill. Well, I am still a sitting Judge of the Supreme Court where I have some restraints of the office. But as a student of law, I really feel that there is no substance in the debate that the Prime Minister should be outside the Bill. If Lokpal Bill is meant for introducing scrutiny in the affairs of those who are holding a public office, nobody will dispute the position that the Prime Minister is holding a public office. Anyone holding a public office cannot shy away from public scrutiny. As far as I know from the newspaper reports, the Prime Minister himself is willing to come under the scrutiny. The more attempt is made to take him out of the purview of the bill, the entire effort will become more and more suspect. That is my view as a student of law.

Now, the debate which is going on today on eliminatng corruption is a debate which is made, if I may say so, without proper appreciation of the ground realities. Now, what is corruption? Prof. Raj Kumar has attempted to define it. At the same time, he says it is difficult, it is incapable of precise definition. Corruption is an attitude of life. It is a particular mental frame. A perverted mental frame. Corruption has a very strong presence in our social life.

At every stage, there is an element of corruption. Every case of helplessness is a result of a corrupt act on the part of somebody else. And the voiceless people. They hardly count. The legal framework which is there under our laws does not touch them.

Corruption is very deep-rooted. In our society, a corrupt man is unfortunately offered a successful life. Let us accept this as the position. A corrupt man is not a social outcast. He is most of the time a hero, a leader.

The law is called Prevention of Corruption Act. To my mind, I am not talking as a Judge, it is apt to say Preservation of Corruption Act. There is a very important provision in this Act. Unless there is a sanction you cannot proceed against the corrupt official. Who is to give this sanction to prosecute? It is said that if this protection is not given, the courts will be flooded with frivolous cases of corruption. So we are not being sincere on eliminating corruption.

Look at the effect of corruption. Today the right to development is considered as a basic human right. Corruption means what? An undue advantage. What is due to me is denied to me. There is a recurrent theme in our Constitution. The theme is Constitutional governance. Article 37 says the Directive Principles are not enforceable by the Courts, but are fundamental in the governance of the State. Then the Fundamental Duties. Constitution has emphasized that if you want to make the Constitutional promise, this country must proceed on the basis of constitutional governance, which is not only your right, but also your duty. Therefore, I have the feeling that if the act of corruption is unconstitutional per se, whenever somebody is acting in a corrupt way, it has to be tackled very seriously. But who is to do that?

I am happy that Prof. Raj Kumar has also talked about corruption in the judiciary. He has referred to recent cases of impeachment. But in the next edition, he may kindly correct that Justice Dinakaran is not from Sikkim High Court, but basically from Madras High Court. Both the learned Judges referred to, I cannot defend them. I feel sorry for them. If the Judges of the High Court today are accused of this kind of things, then what will happen to elimination of corruption? Even then I appreciate the candour and the courage with which Prof.Raj Kumar has attempted this book. This is a very valiant effort.

The petitioner's saga in Nandini Sundar

2011-08-08T13:42:00.002+05:30

The media's reportage of Nandini Sundar judgment mostly focussed on the judgment, rather than on how the petitioners fought and won the case, untrammelled by the dilatory tactics of the Chhattisgarh Government during the proceedings. In this article, the lead petitioner, Nandini Sundar narrates her personal exposure, as a non-lawyer, to the vicissitudes of the case, and what she learnt from it. As she referred to in her Indian Express article, published a few days ago, the media's neglect of the other petition in this case, filed by Kartam Joga, and his own imprisonment by the State Government on charges unknown to many, is indefensible. Unfortunately, despite Joga's legal victory in the Supreme Court, there has been no campaign to secure his release from jail. To my surprise, much of the media's space (including this blog's) seems to have been spent on whether the Supreme Court Bench was correct in indulging in the ideological discussion in the first 20 paragraphs of the judgment. In my article, I try to achieve some balance, by drawing attention to the relevant paragraph of the judgment, which perhaps convinces the reader why the Bench was justified in writing those paragraphs. The outcome of the Centre's review petition in the case will be instructive.

Land Disputes, Gender and Legal History

2011-08-08T03:22:00.008+05:30

I just wanted to flag a number of new articles that raise interesting questions that are directly relevant to our discussions on Law and Other Things.

Nivedita Menon, in the recent issue of the EPW, critically reviews the legal, political, ethical and social science debates over the Ayodhya judgment. Menon's discussion engages with several points raised on this blog by me, Tarunabh Khaitan, Arun Thiruvengadam, Aparna Chandra and through a guest post by Vikramitjit Banaji. Moreover, she incorporates the critique put forward by archeologists and historians on the use of historical evidence in a lawsuit.

Tehelka has an extensive discussion over the proposed Land Acquisition Bill that is likely to be introduced in the current session of parliament. A draft version of the Bill is here and the Rural Development Ministry is inviting comments from the public. Amongst the radical shifts in policy, it ties questions of land acquisition with resettlement and rehabilitation, defines rights of sharecroppers and makes attempts to make irrigated multi crop land immune from acquisition unless required for defence, national security of natural calamities.

Jeff Redding has a new working paper out on SSRN which engages with the Pakistani Supreme Court jurisprudence on the rights of transgendered individuals. Redding's project is interesting in part because of its subject, but also because of his methodology and the questions he asks. Like discussions on the blog, he raises questions about progressive legal judgments that emerge through a certain middle class benevolence and use of questionable categories, in this case, identifying transgenderism as a 'gender disorder'. He also attempts to provide an ethnography of a particular case, to trace how concepts and claims evolve through the course of a single litigation.

Prabha Kotiswaran exciting new book, Dangerous Sex, Invisible Labor: Sex Work and the Law in India, has been published recently. Kotiswaran challenges discourses of shame and criminalization surrounding sex work, and seeks to understand it through the lens of labour law. Methodologically, based on detailed ethnographies of the political economy of sex work in Sonagachi and Tirupathi, her work is an exciting break from a conventional theorization over crime, criminality and regulation.

Finally, a PIL filed by former intelligence bureau official and represented by Bangalore based lawyer Aditya Sondhi challenges the legality of the Intelligence Bureau itself. The Intelligence Bureau is set up on the basis of an administrative order dating back to 1887 and has not been reconstituted by a statute or recognized by the Constitution. Given that is occupies an amorphous space the PIL raises questions about its transparency, accountability and impact on rights of citizens (hat tip Prashant Reddy)

Nandini Sundar and Naga Movement cases compared

2011-08-06T21:35:00.002+05:30

By Arushi Garg

The Centre for Legal Philosophy and Justice Education at the NALSAR University of Law, conducted a discussion on the operationalisation of Emergency powers in India on 20th July, 2011. This discussion was conducted in the light of the Nandini Sundar decision, and was contrasted with the Naga Movement case (or the AFSPA case) that upheld the constitutionality of the Armed Forces (Special Powers) Act, 1954 (AFSPA). The discussion was moderated by Professor Amita Dhanda. The discussion commenced with a summary of both the judgments, and a brief analysis by LLM students from the University.

Much has been written and said about the decision on this blog and elsewhere. The link between military power and the Constitution has also been explored here. But a few points struck me as original, especially those that sought to juxtapose the two decisions.

The focus of the discussion was an iteration of the argument that was made (albeit rejected) in the AFSPA case. The legislative competence to regulate matters concerning public order lies solely with the States. The Centre has attempted to usurp this power under the pretext of Article 355. It is essential to realize that Article 355 lies in a Chapter dealing with the Emergency powers of the Centre. What the Court in essence upheld in the AFSPA case was the invocation of Emergency powers, but without any of the constraints that have been provided in that Chapter, thus committing a fraud on the Constitution. While Entry 2A of List I of the Seventh Schedule allows for deploying central forced to “aid” the State, the flaw in AFSPA lies in the fact that the State has not been given the power to refuse this aid—which makes the AFSPA a law imposed on the people of a State without involving or consulting them. In this sense the AFSPA is a law that seeks to govern without the consent of the governed.

What came out in many passionate responses was also the active and passive stereotyping of people who hail from the North-East as “the other.” It was disturbing to hear about how culturally and historically rich regions of the country have hardly been touched in most school curricula. While this educational bias is hard enough to deal with, it was worse still to hear about horror stories of prejudicial letters written by Vallabhai Patel to Nehru as far back as 1950, talking about how “The contact of these areas with us is by no means close and intimate. The people inhabiting these portions have no established loyalty or devotion to India.” This led to the suggestion of the possibility that the kind of Emergency provisions in operation were easier to uphold as constitutional in the AFSPA case because the areas in which they are being implemented are not “mainland India.”

But the key difference in the two cases lies in the fact that in Nandini Sundar the State was shirking its duty to protect the people by trying to outsource its obligations. The security of the people is the responsibility of the State, not some State-backed civilian militia and it is this abdication of responsibility that the Supreme Court refuses to condone.

So in both cases we see patently unconstitutional policies being challenged. In the AFSPA case however, the judges seem to be aware of the massive scope of abuse and choose to deliberately restrain themselves from striking the AFSPA down on that count through a medley of references to affidavits and directions. In Nandini Sunder, even when the Chhattisgarh government offers affidavits, the Supreme Court recognises their meaninglessness and insincerity for what it is.

The discussion also veered into the domain of what possible solutions could be implemented in the troubled AFSPA regions of the country. The problem there is in large part due to the deployment of the Army vis-a-vis the police force. The Army is trained to kill, the police is trained to control disorder. The institutional training of the Army goes to the use of force against enemies, not the citizens of their own country. It is unlikely that a solution that has failed continually for about sixty years will succeed anytime soon. Sadly, the permanence of it seems to have been assumed--no attempts have been made to even try and train the police between then and now.

Ultimately, however, it remains that the AFSPA is as much an attempt at legitimising arbitrariness as the deployment of the SPOs in Chhattisgarh was. As long as it continues, the disaffection of the people will remain a reality we cannot ignore.

(The writer is a student at NALSAR University of Law, Hyderabad)

Corruption: NCPRI's alternative basket of measures

2011-08-04T19:17:00.003+05:30

The NCPRI has now made public its alternative proposals outlining the measures needed to tackle corruption. Further details are available here, here and here. There are many substantive differences between these proposals and the Jan Lokpal Bill - I have only gone through them cursorily so far, and am waiting for more details to emerge, but it appears that the NCPRI proposals are much more nuanced, potentially more effective, and more respectful of constitutional norms and democratic propriety.

32 Years Later Not Much Has Changed

2011-07-29T13:39:00.004+05:30

Today's front page of the Times of India carries a story about a 19 year-old who has been in jail in New Delhi for the past year on the charge that he stole 200 Rs because he could not post bail (which was 10,000 Rs). Ordinarily if convicted he would serve three months, so on the advice of his lawyer he finally reluctantly pleaded guilty yesterday and was released. (full disclosure: I know both the reporter of this story and the legal organization - HRLN - that represented him).

To anyone who has worked around the criminal justice system in India there is nothing new to this story. In Delhi alone there are hundreds if not thousands like him who have already served more time than they would likely ever be convicted for. They just can't afford bail. Essentially, because they are poor they are trapped. While in jail they lose their jobs, they lose touch with their families, and they frequently become depressed and despondent, making them susceptible to drug and alcohol addiction. They lose, society loses, tax payers lose.

32 years ago one of the first seminal Public Interest Litigation cases was decided: Hussainara Khatoon vs. State of Bihar in which Justice Bhagwati eloquently ordered the release of thousands of under-trials in Bihar, trapped by a bail system that like today's essentially criminalizes poverty. Basically, the order said that when prisoners could show ties to the community a court should consider releasing them without them having to post bail.

I am not a criminal law expert, but from my perspective it strikes me despite all the reverence still given to the Hussainara Khatoon decision little has changed. Groups like Commonwealth Human Rights Initiative still tirelessly campaign on this issue and I know the High Courts and Supreme Court have lower courts periodically review their undertrial situations, but the problem is still entrenched.

As TOI points out in their brief editorial on this at the bottom of the article it seems that at the very least persons held should be released once they have served the maximum possible sentence they could have . Then if they don't return for the actual court date they can be held liable, and potentially convicted in their absence, but the penalty would still be time served.

Still, this doesn't address the fundamental problem, which is the poor being held far too long just because they can't afford bail. One option to think about might be to let prisoners out without bail if they have already served more time than an ordinary sentence for their alleged crime. The longer lasting solution would likely include both exploring other alternative forms of bail for the poor and providing them with better legal aid so that their cases can move through the system more quickly.
(Note: this post was revised because I had earlier said that the maximum he could have served was three months. In fact that it is instead a typical sentence for the charge - which still seems quite long even if one actually did steal 200 Rs).

Anna Hazare & the middle classes

2011-07-26T18:18:00.003+05:30

The Lokpal Bill has been carefully dissected on these pages. I use another scalpel, in this essay in the latest Economic & Political Weekly on what the Anna Hazare movement and India's middle classes say about each other.

Nandini Sundar on the Salwa Judum Order

2011-07-22T18:16:00.007+05:30

The Salwa Judum order by the Supreme Court has attracted much comment from members of this blog (see Rohit, Madhav and my reactions). Nandini Sundar, one of the petitioners in the case, has defended the order in an op-ed today. Responding to some criticism about the appropriateness of the Court's discussion of neo-liberalism, she says:

While the order has been widely welcomed, much media space has been occupied by those opposed to the judges’ framing of the problem in terms of neo-liberalism. Yet few have been able to dispute their facts — the growing inequality, the massive displacement of people from their resources, the desperation that drives people to arms. Even the home ministry’s 2006 status paper conceded: “Naxalites operate in a vacuum created by inadequacy of administrative and political institutions, espouse local demands and take advantage of the prevalent disaffection and injustice among the exploited segments of the population and seek to offer an alternative system of governance which promises emancipation.” If the judges are wrong, why the need for a food security bill, resettlement and rehabilitation bill, or an integrated action plan?

There appears to have been three kinds of criticisms of the Court's use of neoliberalism as an explanation of Maoism:

1. That the causal connection between the two is factually incorrect. This is the criticism that Nandini Sundar primarily responds to.

2. That, irrespective of the veracity of the connection, it is inappropriate for judges to comment upon it (usual separation of powers reasons relating to judicial inexpertise in polycentric cases).

3. That, irrespective of the veracity of the connection, it was unwise of the judges to make that connection because it makes an otherwise sound order unnecessarily vulnerable to criticism.

On the first criticism, I am no expert over the matter, but I suspect that there probably is at least some correlation (if not a direct causal connection) between certain economic policies and insurgency. The last two criticisms draw greater force from the fact that this discussion was thoroughly unnecessary to reach the conclusions that the Court did. On judicial propriety, I believe that there may be cases (given the nature of our Constitution) where judges are entitled to discuss economic policy--this case, however, was probably not one of them.

In the main, however, my criticism falls in the third category. When judges are writing a judgment that they know will be controversial, it is wise for them to make sure it rests on solid grounds, and does not provide easy targets (at least not unless their constitutional duty leaves them with no other option). An analogous case that springs to mind was the Supreme Court's judgment in Shah Bano case. A wiser Court could have easily achieved the same result with much less fuss (indeed, the Supreme Court has in fact achieved the same result with much less fuss before as well as after that infamous case). As Madhav points out in his piece, the rhetoric around neoliberalism in this case has unnecessarily obscured the thorough soundness of this Order.

Call for Papers - Socio-Legal Law Review

2011-07-22T14:49:00.001+05:30

Socio-Legal Review

Call for Submissions

Socio-Legal Review welcomes contributions for its eighth volume to be released in 2012.

About the Journal

The Socio-Legal Review (SLR) is a student-edited, peer-reviewed interdisciplinary journal published annually by the Law and Society Committee of the National Law School of India University, Bangalore. The Journal aims to be a forum that involves, promotes and engages students and scholars to express and share their ideas and opinions on themes and methodologies relating to the interface of law and society. SLR thus features guest articles by eminent scholars as well as student essays, providing an interface for the two communities to interact.

The Journal subscribes to an expansive view on the interpretation of “law and society” thereby keeping its basic criteria for contributions simply that of high academic merit, as long as there is a perceivable link. This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/ institutions of governance/administration, power structures in social commentary and so on. Through this effort, the journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students.

SLR has been listed in the Directory of Open Access Journals and has been uploaded on Westlaw and Heinonline. It was supported by the Modern Law Review for three years and entered into an agreement with SAGE in 2010, to sponsor the Annual SLR-Sage Essay Writing Competition.

GUIDELINES FOR SUBMISSION

All contributions submitted to the journal should be original and should not be simultaneously considered by any other publication.

The Editorial Board has refrained from imposing a theme. A submission is welcome as long as it fits within the general mandate of the Journal, as outlined above.

Contributions should be mailed only in a soft copy to slr@nls.ac.in, the subject of the mail being ‘Submission for 2012 volume’. Biographical information is to be provided in a removable title page.
The Journal is accepting contributions for Articles and Short Articles. With reference to Articles, contributions should not ordinarily exceed 8000 words. With reference to Short Articles, contributions should not ordinarily exceed 5000 words. The Editorial Board reserves the right to reject without review manuscripts that exceed the word limit substantially.
The Journal also accepts Notes from the Field, which are shorter pieces designed to provide a glimpse into a new legal strategy, political initiative or advocacy technique applied in the field, a current problem or obstacle faced in, legal reform or development work, or a new issue that has not yet received much attention and needs to be brought to light. Contributions should not exceed 3000 words
The last date for submission is November 15^th, 2011. Submissions may, nevertheless, be made after this date. They will be considered for publication in the next volume.
All submissions are to be made via e-mail as .doc or .docx documents.
SLR follows the Harvard Blue Book – A Uniform System of Citation (19^th edn.) style of referencing. Contributors are requested to comply with the same.

For any clarifications, please mail us at slr@nls.ac.in.

Social Rights in India

2011-07-19T07:49:00.003+05:30

In the new issue of the International Journal of Constitutional Law, I study the social rights jurisprudence of the Indian Supreme Court. I make many arguments, and the piece is available here. The abstract is as follows:

"Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with, what is termed as, the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter."

Supremacy of Parliament

2011-07-15T23:41:00.005+05:30

In a provocative piece, C.V.Madhukar asks whether the Indian Parliament is really supreme as a counter to those who question Anna Hazare's politics. To substantiate his claim that Parliamentarians are responsible for not treating Parliament as supreme, Madhukar lists six grounds. These are: One, Bills are passed without discussion; Two, there is no demand from MPs for a deeper consultative pre-legislative process; Three, MPs do not ask Government why the Standing Committee recommendations on Bills referred to it are not completely accepted; Four, Members show little interest in Private Members' Bills, and very little time is devoted to their discussion; Five, Anti-Defection Law reduces MPs to mere head-counts, and most MPs simply endorse their parties' positions on policy matters, fearing disqualification, thus making their participation in the law-making process a farce; and Six, power to convene Parliament remains with the Government, rather than the MPs themselves, enabling the Government to delay convening it, so that Parliament meets only for a few days.

I have a small quarrel over the implicit assumption in this piece. The assumption is that Anna Hazare's politics is popular because Parliament, in practice, is not supreme. Let us, for the sake of argument, imagine that Madhukar's six grounds do not exist. Would it have guaranteed the passage of an effective Lokpal Bill much earlier than now? I doubt. Would it have at least limited Anna Hazare's following? I again doubt.

I disagree with Madhukar on the substantive grounds too. I agree that Parliament passes many Bills without discussion. How does it make it less supreme?Secondly, if MPs consider themselves supreme, why should they bother about the need for a mechanism to ensure pre-legislative consultative process? Thirdly,if Parliament is supreme, how a Standing Committee, which obviously enjoys less stature than the House itself, can expect that all its recommendations must be accepted by Parliament? Grounds 4,5 and 6 completely overlook the centrality of political parties in Indian Parliament. Grounds 4, 5 and 6 are not new phenomena - they have been characteristics of Indian Parliament right from the beginning. Does it suggest Indian Parliament has never been supreme? Then the argument that Parliament supremacy has been eroded in recent times loses its strength. No doubt, our Parliament meets for less number of days in a year than what it used to earlier. But would frequent meeting alone make Parliament more supreme than what it is now? I think Parliament's supremacy is understood in terms of the functions it performs when it meets, rather than X number of meetings that it holds.

NAC's style of drafting Bills

2011-07-13T21:48:00.004+05:30

The National Advisory Council (NAC) has in its agenda, among other things, giving legislative inputs to the Government. This it does, by preparing draft Bills on important issues. But little is known about how it goes about this exercise, notwithstanding the transparency which marks its website. The Draft Bill on Prevention of Communal and Targeted violence, prepared by NAC, is being submitted to the Government for its consideration, after NAC put its first version on its website, inviting comments. After the deadline for receiving the comments was over on June 4, the NAC agreed to 49 amendments on its first draft. Even though the NAC had constituted a Drafting Committee and an Advisory Committee, very little is known about what were the comments of members in these committees, and whether the NAC considered them at all at the drafting stage, and if some of them were rejected, why. In this article, I bring to light some of the misgivings on the final draft which the NAC has produced. If some of the critics who served on the AC and DC are to be believed, the NAC's in-house style of democratic decision making leaves a lot to be desired. If consultation with experts proves to be a farce, NAC's credibility will be at stake.

In another article, I examine the AG's advisory opinion to exclude CBI from the RTI Act's purview, and question some of his assumptions. The Law Ministry, which favoured a partial exemption of CBI from the Act, is no less culpable. The erstwhile Law Minister, Veerappa Moily, might have been shifted to another Ministry for other reasons, but one wishes the Prime Minister considered this as reason enough for shifting him.

Salwa Judum and the Supreme Court

2011-07-13T11:10:00.002+05:30

In two excellent posts (here and here), Rohit and Tarunabh have brought to light interesting aspects of the decision in Nandini Sundar. In today's Hindu newspaper, I offer my thoughts on the order (here). In particular, I argue that we need to engage more deeply with the legal significance of the decision, and stop limiting our focus to the bizarre but largely irrelevant rhetorical flourish contained in the order.

IP Research Fellow Position at NUJS

2011-07-10T12:50:00.003+05:30

Applications invited for the position of IP Research Fellow at WB NUJS, a leading Indian law school. Further details available here. Last date for application is the 5th of August 2011.

Anna and pre-legislative scrutiny

2011-07-08T02:26:00.004+05:30

Given that this blog has discussed the Hazare campaign in detail, readers may be interested in my EPW article on the legislative reform lessons we should learn from it. I have made similar arguments in a more succinct form in this op-ed published by the New Indian Express. Some excerpts follow:

... the flawed institutional set-up of the NAC entails the same twin dangers as extra-institutional interventions like those of the Anna and Ramdev: the danger from selection and the danger from competing representation. To the question ‘Who should make laws?’ the founders of our constitution rightly answered, ‘The people, through their directly elected representatives’. The question we are asking now is: ‘Who should be consulted while making laws?’ The answer to this question is: Those who will be affected by these laws, and experts who have special knowledge of the issues involved. Unlike direct elections, however, there isn’t any impartial selection process which helps us identify those affected and those with expertise. Allowing power to make this selection may facilitate the elite, corporate and sectarian capture of the state.

To guard against the danger from selection, participation in the law-making process must be transparent, universal, deliberative and institutionalised.

...

The danger from competitive representation is equally pernicious. When Ramdev claims to live in the hearts of millions of citizens, he is claiming representative legitimacy without having demonstrated it in the only constitutionally recognised manner: winning an election. Similarly, a body like the NAC which presents itself as an interface between the state and civil society will inevitably begin to compete with Parliament for representative legitimacy. If our democracy is to survive, elected legislatures alone should be able to claim representative legitimacy. So long as politics — through the universal right to stand for elections — is open to everyone, there should not be any compromise on this principle. Admittedly, there is a strong case for dismantling the barriers of money, muscle and ménage that currently prevent ordinary citizens from entering politics.

The solution, clearly, lies in strengthening Parliament by augmenting its democratic credentials, rather than weakening it by extending legitimacy to competitive claimants of popular representation.

...

It is in this context that one must welcome the decision taken by the NAC last month to ask its working group on transparency to ‘evolve a policy on pre-legislative consultative process’. Ironic though it is, the most important contribution of the NAC to Indian politics will be to chart the path to its own irrelevance. As it scripts its suicide note, we should wish it the very best.

Nandini Sundar v State of Chattisgarh

2011-07-07T03:06:00.009+05:30

This post continues the conversation Rohit has already begun on this very interesting case. The following are the most important orders given by the Justices Sudershan Reddy and Surinder Singh Nijjar of the Supreme Court in the case of Nandini Sundar v State of Chattisgarh (2011):

1. The unguided power under the Chattisgarh Police Act 2007 to appoint Special Police Officers is declared unconstitutional. An exception is permitted for non-combat purposes such as relief assistance in disasters.

2. The state of Chattisgarh is to refrain from using SPOs for any other purpose, and must recall all firearms that have been distributed. It must provide security to these SPOs.

3. It must prevent the operation of Salwa Judum and other private armed groups.

The Court found that the SPOs are mostly poor, young and uneducated tribals. They are provided with negligible training, burdened with all the responsibilities of a police officer, provided with fire arms, and used in combat operations against naxals. In this role, they are quickly marked as targets by naxals. At one point, the Court described them being used as cannon-fodder and held that their constitutional rights under Articles 14 and 21 were being violated.

The Court did not spend much intellectual energy to justify its Salwa Judum order. It is an obvious point that the State must not tolerate, let alone encourage, private militias - the Court treated this as such.

The following off-the-cuff comments are presented in order to inspire debate:

1. The legal reasoning of the Court is very sound, and in keeping with a great tradition of judges standing up to political power seeking suspension of civil liberties during emergencies. The Court disagrees with Cicero to say 'Laws cannot remain silent when the canon's roar.' (para 71) Standing up for civil liberties, especially at the times of crisis, is a classic counter-majoritarian judicial function which judges across the world have proudly performed time and again (and one that our own Supreme Court miserably failed to perform in ADM Jabalpur in a different age). The Court insists that 'The fight against terrorism and/or extremism cannot be effectuated by constitutional democracies by whatever means that are deemed to be efficient. Efficiency is not the sole arbiter of all values, and goals that constitutional democracies seek to be guided by, and achieve.' In this insistence no judicial impropriety or breach of separation of powers is evident.

2. The case is yet another remarkable example of the difficulties constitutional courts face in dealing with evidentiary issues. India has one of the few constitutions which allow constitutional courts to be courts of first instance in such a large number of cases. Bereft of the facts determined by a trial court in accordance with well-established rules of evidence, the Court is limited to reading between the lines in conflicting affidavit evidence. We saw similar problems in cases such as Narmada Bachao Andolan and in the Ayodhya case. (Most other constitutional courts have been known to exercise their original jurisdiction extremely sparingly for two reasons - first, as already pointed out, the trial process is the best way to judicially determine facts. Second, if another court has applied its mind to a case, legal issues are clarified and an appellate court has the benefit of at least one other reasoned opinion before making up its own mind. Arguably, this reduces the chances of serious mistakes.)

To clarify, I do not intend this point as a criticism of what the Court did in this case. If anything, the analysis of the patchy and difficult evidence before the Court is rather commendable. Its job would have been much easier, however, if it had the benefit of facts determined by a trial court.

3. The use of public interest litigation to bring this action is fascinating. There was clear public interest involved in the case (the fear that thousands of unemployed armed men scarred by political violence can destabilise society). While this was one of the reasons for the Court's orders, these orders were also justified in part on the basis that the constitutional rights of SPOs were violated. The irony is that the only interested voice absent in the proceedings was that of an SPO. Some of the language used by the Court to describe the tribal youths recruited as SPOs is cringe-makingly paternalistic (see paras 48 and 50), if thoroughly well-intentioned. (For a good discussion of the democratic deficit in associative and public interest standing, see Cane, 'Standing up for the Public' 1995 Public Law 276.

4. Perhaps the most intriguing aspect of the case is contained in the first 22 paragraphs. These paragraphs emphasise the evils of unbridled capitalism and highlight the constitutional mandate for a welfare state. The judges see socio-economic deprivation as the root cause of insurgency in India. While I am politically sympathetic the position articulated by the judges, I find it intriguing that the judges voice these fairly controversial opinions (on what some may term 'policy issues') even though it was somewhat unnecessary to deciding the issues at hand. I think I have issues concerning judicial craft rather than judicial impropriety in mind.

No More State Terror: Salwa Juddam Unconstitutional

2011-07-05T23:45:00.003+05:30

In a pathbreaking judgments, Justices Reddy and Nijhar of the Supreme Court ruled that the Chattisgarh governments arming of tribals to act as vigilantes as unconstitutional. The judgment can be found here.

I hope to analysis this at length later, and I am sure the other commentators will have much to say, but I wanted to flag some aspects of this case that were not related to the judgement.

-The petitioners, Nandini Sundar, Ramachandra Guha and EA Sarma are distinguished academics and this model of the PIL harkens back to the first public interest litigations which were filed by individuals (Sheela Barse, Olga Tellis, the early MC Mehta cases). It is in some ways a departure from the more organized generation II PILs which have been fought with the support of organizations and advocacy groups.

Perhaps an important mode of action to consider in a period when the urban middle classes claim to be politically disenfranchised.

- A number of the lawyers appearing for the petitioners (such as Menaka Guruswamy and Bipin Aspatwar) represent a new generation of the Supreme Court Bar engaged in civil liberties cases.

-The judges use diverse sources (ranging from Joseph Conrad to Joseph Stiglizt) but use them very effectively. The language of the judgment is crisp and gives no figleaf to the state to hide behind. The opening paragraphs of the order are striking

"We, the people as a nation, constituted ourselves as a sovereign
democratic republic to conduct our affairs within the four
corners of the Constitution, its goals and values. We expect the
benefits of democratic participation to flow to us – all of us
-, so that we can take our rightful place, in the league of
nations, befitting our heritage and collective genius.
Consequently, we must also bear the discipline, and the rigour
of constitutionalism, the essence of which is accountability of
power, whereby the power of the people vested in any organ of
the State, and its agents, can only be used for promotion of
constitutional values and vision. This case represents a yawning
gap between the promise of principled exercise of power in a
constitutional democracy, and the reality of the situation in
Chattisgarh, where the Respondent, the State of Chattisgarh,
claims that it has a constitutional sanction to perpetrate,
indefinitely, a regime of gross violation of human rights in a
manner, and by adopting the same modes, as done by4
Maoist/Naxalite extremists."

-I am struck by the courts use of fraternity as a constitutional principle, a angle that Tarunabh Khaitan has called to attention before

More to come.

CBI’s exemption from RTI Act: Is the AG’s opinion justified?

2011-06-30T21:20:00.006+05:30

By Arushi Garg

The government’s notification exempting the CBI under Section 24 of the RTI Act (which allows exemption of intelligence gathering agencies from the RTI Act) has sparked a controversy. A PIL has been filed in the Madras HC challenging its constitutional validity. In the light of the above, the Attorney General’s opinion on the same becomes pertinent, since the exemption has been granted solely based on his opinion. This exemption is in contradiction of the reports of both the Law Ministry as well as the Department of Personnel and Training.

The primary argument in the AG’s opinion, a copy of which is with the LAOT, is that the CBI’s investigation affects the security of the nation and the term “intelligence” extended not just to information gathered for the prevention of the occurence of events, but also post-event intelligence gathering. The AG has used the term `intelligence’ primarily to refer to information relating to the security or defence of a nation.

Since many cases investigated by the CBI are related to the security of India, he concluded that CBI was eligible for an exemption. Even if it is assumed that intelligence gathering need not always be preventive, and covers investigation, his opinion fails to take into account the fact that no investigation would be hindered by covering the CBI under the RTI since information relating to pending investigations has already been exempted under Section 8(1)(h) (as I have argued on June 16 on the Legal Notes page).

There could be no interference with the process of investigation, or with the security of India, even if the information is related to substantive aspects of the investigation, let alone the other procedural aspects (such as administration, personnel, accounts/finance budget and training) for which no exception is carved out in the AG’s opinion. The CBI investigation would already be complete at the time any RTI application is filed.

The least convincing part of the AG’s opinion is his refusal to recommend notification of only those parts under Section 24 as are related to intelligence gathering. He justifies it because Section 24 exempts not just intelligence agencies but also organisations dealing with the security of the country. This seems to imply that even if the investigation of the CBI doesn’t concern intelligence gathering, it will still magically be connected to the security of India. This argument crumbles in the face of numerous Supreme Court rulings that have iterated over and over again that the scope of matters dealing with security is extremely narrow, and not all breaches of public order and law and order are concerns related to security.

Case law on the subject, as cited by the AG, can be traced to the judgment of Hidayatullah, J., in the Ram Manohar Lohia case, wherein it was stated:

“One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”

It was also observed that “When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder.”

The import of this statement (which later developed into the “Even Tempo” test, as it has been referred to by the AG) is that if the disruption of law and order involves only certain individuals, and not the society at large, only then can it be regarded as a disturbance of public order. The scope for what is to be regarded as a threat to security is then even smaller, and cases involving individuals cannot be included within this narrow scope.

This observation has been quoted with approval till very recently by High Courts as well as the Supreme Court. In fact, just last year, a division bench of the Supreme Court reaffirmed this understanding. Thus, while public order is a broad area, only the “most serious and aggravated forms of public disorder” endanger public security.

This distinction has been acknowledged and in fact, explored in rather comprehensive detail by the AG. But his opinion then goes on to enumerate the cases investigated by the CBI which have a bearing on national security while not dealing with the fact that a substantial number of them don’t. Many of these cases involve allegations of specific crimes committed against specific people that do not meet the threshold for cases involving national security.

The most famous example that comes to mind is the Aarushi Talwar case that was handled by the CBI. The CBI has also dealt with the charges of kidnapping and attempted rape against Noida based businessman Moninder Singh Pandher. Both are instances of brutal and shocking crimes, but had no ramifications on the “security” of the State as has been understood by the courts of this country. Curiously, AG's opinion expressly states that a separation of the various types of cases investigated by the CBI is not possible because “we are concerned not just with intelligence but also with the security of the State.”

The fact that the provisos to Section 24 anyway forbid exemption of information relating to corruption and violation of human rights has also been wilfully overlooked by the blanket exception that has been carved out for the CBI. Even commentators who have defended the inclusion of the CBI have advocated laying down rules that limits this exemption in accordance with the Section 24 provisos, and providing the exemption only during the pendency of the investigation.

Based on the above, despite the AG’s faith in this exception, it is unlikely that it is justified in law.

(The author who has just completed an internship with LAOT, is a IV Year student of the NALSAR University of Law, Hyderabad)

Justice Verma and the Appointment of Justice Punchhi

2011-06-29T15:03:00.008+05:30

A recent interview of Justice J.S.Verma's on CNN-IBN, with Karan Thapar, seems to suggest that, as the Chief Justice of India, he was against Justice Punchhi's elevation to the Supreme Court, and even wrote a letter recommending an inquiry into the charges against Justice Punchhi. But former Prime Minister I. K. Gujral's autobiography suggests that the facts are more complicated. The relevant extract is as follows:

From I. K. Gujral, Matters of Discretion: An Autobiography (Hay House India, 2011) at 478-479.

"

In January 1998, one more cause of worry was the appointment of the next chief justice of India, which had been mired in controversy as a result of determined opposition to the proposed name (Justice M. M. Punchhi) by highly respected advocates such as Shanti Bhushan and Ram Jethmalani. They along with Justice V. M. Tarkunde (a renowned civil rights activist known for his anti-Emergency stand) and some others had made serious allegations of misdemeanor against Justice Punchhi. However, the Supreme Court Bar Association had come out strongly in Justice Punchhi’s support and had even gone to the extent of expelling those who had levelled charges against him.

The present chief justice of India, J. S. Verma, was also against Justice Punchhi’s elevation. However, he had faltered in his duty in that he had not made the needed recommendation regarding his successor one month prior to the date of his own retirement, i.e., 17 January 1998.

After many hiccups, Justice Verma had told me in the third week of December 1997 – before he went on a holiday (as the Supreme Court was having a ten-day winter break) – that he would meet Justice Punchhi on his return and then make the required recommendation. All the same, he had orally stated that he would obstruct Justice Punchhi’s elevation. Ultimately, on January 4 1998, Chief Justice Verma sent me a letter exonerating Justice Punchhi of all charges and recommending his appointment as the next chief justice of India. On 5 January, in an official communication to the president, I recommended Justice Punchhi’s appointment.

The same day, after the Gandhi Peace Prize Function – awarded to Gerhard Fischer, a German diplomat known for his efforts to combat lepresy and polio – that was held in Rashtrapati Bhavan, Justice Verma met the president and me informally. He requested us to hold back the official appointment of Justice Punchhi’s appointment as the next CJI since he had summoned Shanti Bhushan and Ram Jethmalani to persuade them not to presist in their anti- Punchhi campaign. We agreed to his request.

In the meantime, the president asked me to submit the full file and not merely a summary of my recommendation.

Justice Verma telephoned me late on 5 January night to say that he had met Bhushan and Jethmalini but had failed to persuade them to change their stance and felt that the two might file a public interest litigation (PIL) against Justice Punchhi, which could lead to further complications. He had not disclosed to them that he had already recommended Justice Punchhi’s name. Meanwhile, he suggested that I should hold back the recommendation. This was an odd suggestion. I brought Justice Verma’s suggestion to the president’s notice first over the telephone and later when I met him at a formal lunch hosted by him.

Both Jethmalini and Bhushan believed that we needed to stop the process of Justice Punchhi’s elevation on the basis of an informal suggestion made by Justice Verma. In this context, I declared unambiguously: ‘We are not a group of conspirators to act for or against Punchhi. We must uphold the constitutional requirements.’ I planned to submit the full file to the President on 7 January. Around that time, Shanti Bhushan – who had helped me in 1991 in fighting a case against the Election Commission’s arbitrary order cancelling my election from Patna – expressed his strong displeasure that I was unwilling to go along with his campaign against Punchhi. He wrote a letter to the President that, as a ‘caretaker prime minister’, I should be barred from using Indian Air Force planes for electoral purposes. He also announced that he would stand against me from the Jalandhar Lok Sabha constituency. This upset me a great deal since I held Shanti Bhushan in high esteem.

President Narayanan agreed with me that I was constitutionally bound to elevate Justice Punchhi as the next chief justice of the Supreme Court on the basis of the written advice given by Justice Verma."

Detailed comparison of Lokpal Draft Bills

2011-06-27T17:05:00.009+05:30

By Anuj Kapoor

In the last Joint Committee meeting of the members of the drafting committee for Lokpal Bill on 21st June, the government members and the members from the civil society were unable to reach a consensus. Thus, both the parties came up with their own version of the bill. The government's bill and the bill prepared by Team Anna are available on the Primary Sources page. There are a lot of agreements as well as disagreements, some of them fundamental. There are areas in one bill which are not even touched upon in the other. Which bill propopes a better, more workable institution of an ombudsman, and which itself would not suffer from the infirmities that it proposes to eliminate, are intractable questions.

In my opinion, there are positives and negatives in both the bills and it would be improper to aim at enactment in a hurry. The government does need to be commended for coming this far, but it should encourage and engage in more debate if it is truly desirous of tackling the menace of corruption. Here is a brief provision-by-provision comparison of the two bills in a tabular form which will hopefully assist the reader in forming an opinion on the two bills.

[Anuj Kapoor, IV Year student of Symbiosis Law School, Pune, is currently an intern with LAOT]

Corruption and Constitutional Rights

2011-06-14T20:34:00.012+05:30

While we are discussing corruption in India, it may be interesting to look at the recent decision of the Constitutional Court of South Africa in Glenister v President of the Republic of SA [2011] ZACC 6, drawing a duty to effectively tackle corruption from the duty to respect constitutional rights. Some excerpts follow:

[83] Corruption is a scourge that must be rooted out of our society. It has the potential to undermine the ability of the state to deliver on many of its obligations in the Bill of Rights, notably those relating to social and economic rights.

[84] As will be discussed later, this judgment recognises an obligation arising out of the Constitution for the government to establish effective mechanisms for battling corruption.
The establishment of an anti-corruption unit is one way of meeting the obligation to protect the rights in the Bill of Rights. The Constitution is not prescriptive, however, as to the specific mechanisms through which corruption must be rooted out, and does not explicitly require the establishment of an independent anti-corruption unit. The amicus and the applicant conceded this in the course of the hearing. Nevertheless, they contended that the obligation to establish an independent anti-corruption unit is implicit in the Constitution when viewed in the light of South Africa‘s international treaty obligations. Lest I be misunderstood, while I am prepared to hold that there is a constitutional obligation for the state to take effective measures to fight corruption, I am not prepared to narrowly construe the options available to the state in discharging that obligation.

After discussing South Africa's obligations to tackle corruption under international law, in particular the UN Convention Against Corruption, the Court goes on to say:

[105] As I understand it, the argument of the amicus that there is a constitutional obligation to establish an independent anti-corruption unit rooted in section 7(2) of the Constitution proceeded along the following lines. Section 7(2) of the Constitution creates an obligation on the state to ―respect, protect, promote and fulfil the rights in the Bill of Rights. This obligation goes beyond a mere negative obligation not to act in a manner that would infringe or restrict a right. Rather,it entails positive duties on the state to take deliberate, reasonable measures to give effect to all of the fundamental rights contained in the Bill of Rights. As corruption and organised crime have a deleterious impact on any number of these rights, the amicus contended that among the state‘s positive duties under section 7(2) is an obligation to prevent and combat these specific social ills. The obligations contained in the Convention, the amicus argued, give content to the state‘s duty to protect and fulfil its obligations in terms of section 7(2).

[106] I accept that corruption has a deleterious impact on a number of rights in the Bill of Rights and that the state has a positive duty under section 7(2) to prevent and combat corruption and organised crime. I also accept that, in giving content to the obligations of the state in section 7(2), a court must consider international law as an interpretive tool as required by section 39(1)(b).

[107] Under section 7(2), there are a number of ways in which the state can fulfil its obligations to protect the rights in the Bill of Rights. The Constitution leaves the choice of the means to the state. How this obligation is fulfilled and the rate at which it must be
fulfilled must necessarily depend upon the nature of the right involved, the availability of government resources and whether there are other provisions of the Constitution that spell out how the right in question must be protected or given effect.

[113] In the result, I conclude that there is no constitutional obligation to establish an independent anti-corruption unit as contended by the applicant and the amicus.

[116] Section 205(3) of the Constitution requires the establishment of a national police service in order to ―prevent, combat and investigate crime. Section 205(2) requires that the legislature ―establish the powers and functions of the police service in order to ―enable the police service to discharge its responsibilities effectively. I accept that for the police service to effectively discharge its responsibilities under the Constitution, it must not be subject to undue influence. That is the extent of the obligation imposed by the Constitution,and it is in this context that the obligation imposed by section 7(2) must be understood. The question for determination, therefore, is whether the impugned laws establish an anti-corruption unit that has the capacity to ―discharge its responsibilities effectively, as required by the Constitution.

[121] Ultimately therefore, the question is whether the anti-corruption agency enjoys sufficient structural and operational autonomy so as to shield it from undue political influence. I do not understand these instruments to require absolute or complete independence.

[177] The Constitution enshrines the rights of all people in South Africa. These rights are specifically enumerated in the Bill of Rights, subject to limitation. Section 7(2) casts an especial duty upon the state. It requires the state to respect, protect, promote and fulfil the rights in the Bill of Rights.It is incontestable that corruption undermines the rights in the Bill of Rights, and imperils democracy. To combat it requires an integrated and comprehensive response. The state‘s obligation to respect, protect, promote and fulfil the rights in the Bill of Rights thus inevitably,in the modern state,creates a duty to create efficient anti-corruption mechanisms.

Review of George H.Gadbois Jr.'s book

2011-06-12T18:46:00.001+05:30

By Arushi Garg

Judges of the Supreme Court of India (1950-1989) by George H. Gadbois, Jr.,(OUP, 2011) seeks to study the background and life of the ninety three judges who were elevated to the Supreme Court from 1950 to 1989. The book, in its two parts, seeks to achieve the following-first, to present a brief sketch of the lives of each of the judges, and second, to paint a collective portrait.

Sure enough, the aims of the book have been modestly defined, and the boundaries strictly drawn. The author seeks to provide biographical essays, and consider why or why not the elevation of some judges was carried through, but others were not. This is followed by his “collective portrait.” Judges have been grouped according to who the Chief Justice was, at the time of their appointment. The judges are also broadly divided into two ‘generations’ (from 1950 to 1970 and from 1970 to 1989), mainly because of the perceived increase in the role of the executive in the appointment of judges post-1970. The methodology that was followed by the author was either interviewing the judges themselves, or their family. Reliance was placed on Supreme Court files, as well as the Supreme Court Reporter.

Indeed, the sources referred to by the author set this book apart. The records he gained access to during the course of his research are not available to the public. Justice AN Ray granted to him, the only interview he ever gave to anyone. The book therefore contains a more complete account of events than is likely to be found compiled in many other places.

But at the very beginning, Gadbois specifies that his aim is to provide the “life experiences, professional and otherwise” that have socialized the judges whose lives he has studied. The idea behind doing this is to examine how these backgrounds and life experiences have shaped the personalities of these judges. By the end of the book, the reader is left with a list of the achievements, degrees and often publications of these judges, but rarely an examination of how these may have moulded each one of them.. The book is undoubtedly useful in the sense of being a collection of biographical notes, but this is hardly something one would hope to study in a vacuum, divorced from the real impact this has had on the jurisprudence of Indian courts.

It is likely that this restraint is deliberate. Gadbois himself admits that he means this book to be only a kind of reference book. But he does go on to analyse the similarities and differences among these judges; he only chooses to be selective in his analysis. So he talks about the second generation of Indians being more “Indian” in the outlook they brought to Delhi than the first generation and attributes this difference to the fact that the latter were mostly educated in the West. But he does not talk about the impact of other sensitive characteristics. For instance, he does not offer any comment on what ramifications the essentially Hindu (and mostly Brahmin) composition of the Court might have had on the judicial outlook. When he talks about 40% of the judges studied by him being sons of lawyers and judges, he refrains from discussing the possibility of nepotism.

Perhaps in his gratitude for all the information provided by the judges he interviewed, Gadbois has been generous in his adulation, where deserved, but silent on the criticism. By way of example, his discussion on Justice P.N. Bhagwati contains one stray reference to the adulatory letter written by him to Indira Gandhi on her re-election, and that is also prefaced with a remark about how controversy seemed to have followed the revered judge everywhere. Other authors have not been this polite.

He starts his book with the disclaimer that it is not meant to be an “exposé” and then seems to go out of his way to make sure he stays within the lines.

It is refreshing to see someone who wants to turn down the sensationalism, but it would have been even more refreshing to break away from the dearth of sociological studies on the lives of these judges that has been lamented time and again in Indian scholarship.

In terms of being a “who’s who” of the judges studied, the book is instructive. It contains a useful summary of the life of these judges and, given the lack of biographical data that has impeded a more detailed examination of the composition of the Supreme Court, this fills in many gaps. As the author himself concedes, “this is the first, not the last word.” Unfortunately, this concession seems more like an excuse for avoiding controversy through linkages that might have otherwise made the book seem more complete. As of now, it remains more informative than insightful.

National Advisory Council's Prevention of Communal and Targeted Violence Bill

2011-06-11T11:05:00.003+05:30

The Bill has led to differences among even secular minded people. A press release from Anhad has been placed on the Primary Sources page. It offers a detailed critique of the Bill, signed by several activists. The Bill can be accessed at the NAC's site or here.

Tackling Corruption: The Bihar Way

2011-06-10T20:09:00.000+05:30

By Arushi Garg

Recently, the Supreme Court has refused to stay the operation of the Bihar Special Courts Act, 2009 (hereinafter “the Act”), while agreeing to hear the SLP against the Patna High Court judgment upholding the constitutional validity of the Act.

The text of the Act is available here.

The Act provides for the setting up of special courts in order to try the offence specified under Article 13(1)(e) of the Prevention of Corruption Act, 1988, which deals with owning disproportionate assets. Under the Act, assets of public officials can be attached even while the probe is under way if the authorized officer concludes that the assets were obtained as a result of corruption.

This judgment is specifically important in the light of the movement against corruption that has gripped the civil society today. The Jan Lokpal Bill, available here specifies in section 18(v) that once a complaint has been made against a person, a list of all his moveable and immoveable assets is to be made and notified, after which no transfer of these assets will be permissible in law. This is somewhat similar to the authorized officer under the Bihar Special Courts Act, being able to confiscate property which prima facie seems to be the fruit of corruption. Both deal with action taken against the property of the accused before the conclusion of the trial. This is not strictly in consonance with the presumption of innocence.

The primary objection before the High Court was that if it was assumed that there was a prima facie case against the accused, it would prevent him from getting a fair hearing since a bias would be created in the mind of the judge after confiscation had been carried through on the basis of this assumption. This was rejected by the Court since the authorized officer (who decides on the confiscation) is a distinct authority from the judge who would be presiding over the main issue. This is also true in case of the Lokpal Bill. The Lokpal, which is supposed to decide upon the question of freezing the assets of the accused, is a distinct authority from the judge before whom prosecution will ultimately be initiated.

The second objection was that there was no way to appeal the decision for confiscation; but the High Court held that the jurisdiction of the High Court as well as the Supreme Court remained under Article 226 and 32 respectively, so the procedure remained just. The same can be said of the Jan Lokpal Bill.

While the Supreme Court is yet to rule on the issue, it seems unlikely that such provisions suffer from legal infirmity. But it seems the government is following the progress of this case closely before reaching a final decision on the introduction of such a provision into the Lokpal Bill.

Apart from the other challenges to the Act, another aspect of the judgment that stands out is the strange manner in which the High Court dealt with the provision relating to the return of the confiscated property. It was claimed that the provision allowing the State to return the price of the property (with 5% interest) instead of the property confiscated could inflict “humliation and suffering” on the accused and should be struck down on the ground of Article 21. The High Court opined that this cannot be done without seeking a special order from the High Court or the Supreme Court, and if the property could not be returned, then the interest paid on the compensation should not be 5% but whatever the prevailing bank rate is. The most the High Court could have done is to strike down the offensive provisions, and not substitute the number decided upon by the Legislature with whatever the judges thought was more just.

Legal Education in India

2011-06-03T06:30:00.007+05:30

By Arushi Garg

Recently, in an interview of Professor Upendra Baxi, the Rainmaker explored the condition of legal education in India, and his sustained endeavours to make legal education in India socially relevant.

Professor Baxi’s concern started with his first teaching assignment in India when he realized “with a degree of astonishment, if not horror” what passed off as legal education in India. The basic reason was the focus of Indian education on doctrinal modes of study and the law as it is, coupled with the relegation of the exploration of the law, as it ought to be to optional and “wayside” courses. He drew upon his activist experience in Sydney and Berkeley to have a meaningful dialogue about how to proceed in his attempt to provide a social-science base to the understanding of law.

His efforts received support from both pioneers in the field of legal education as well as from young, upcoming scholars. The idea was to promote a healthy academic environment aimed at legitimating a different perspective as co-equally important as doctrinal research without debunking the importance of the latter. It was in such an environment that the idea of a National Law University (NLU) first emerged.

On the question of the Bar Council of India (BCI) and the NLUs, Professor Baxi was somewhat restrained in his responses. He did talk about being invited to help in the proposal of an NLU by the Ram Jethmalani, Chairman of the BCI at that time. While there was no question of his leaving DU at that stage, he reminded them of how the BCI has a special stake in legal education. Today, he is disturbed that hardly any senior counsels keep this fundamental fact in mind. While the BCI is mostly willing to regulate legal education in India, they are strangely reluctant when it comes to contributing resources.

This point raised by him is specifically important because in real terms, this means that often, law students are incapacitated from seizing the opportunities that are available to them, with many of the brightest minds in the country being simply incapable of financing themselves through international moots, summer schools or exchange programmes.

The direct consequence of the BCI’s general unwillingness to provide aid also means that a lot of institutions that were meant to be centres of excellence are practically privatized bodies, with little regard being given to equity. Mediocrity has been accepted as the norm, especially when it comes to faculty. There is either a dearth of good faculty, or the unwillingness to look for them actively.

The Vice-Chancellor of one of the best-known law schools in the country has been known to respond to complaints of incompetent faculty by saying, “If you can find them, I will appoint them.” Hardly the job description of a law student, but when you hear these responses often enough, slowly, and sadly, they stop sounding outrageous.
The failure to achieve culture of “excellence” that the NLUs sought to create remains the bitterest disappointment of all. Legal education has been broken down to CVs, and unhealthy, cutthroat competition. The average NLU student will learn how to answer the question, rather than solve the problem. A common lack seems to be the ridiculous emphasis on handwriting and presentation in exams—a problem other places have solved by digitizing exams with the help of anti-cheating softwares.

This is not to say all is lost. As a student of these Universities, I can vouch for the fact that I have sat through at least some courses that have changed me in very fundamental ways and challenged me to think in innovative ways about issues of justice and equity. I am sure a lot of other students in my position feel the same way. But this should not take away from the fact that there is a long way to go.
Professor Baxi’s only hope is that these institutes will realize that it is time for introspection, to examine their faculty as well as their original goals in the light of their current structure. In saying this he echoes the hope of NLU students across the board.

When asked about the new generation of legal education in India, Professor Baxi expressed his impatience when it came to ministerial “mission statements” and some “excess known as the Knowledge Commission.” In his words, “What do new generations signify? Growth in self-reflection, wisdom, and capacity to serve the underprivileged. Now by this criteria, there is no new generation - broadly speaking - of legal education.”

This is an apt summation of the crisis in legal education that has hit the country. After all the lofty goals we read about, for the average NLU first year, law school can stand to symbolize very bitter disillusionment. The emphasis on learning by rote, statutory provisions, case names and bench strengths can be stressful as well as meaningless. This is in sharp contrast to most other Universities in the world, where most students are given the option of take-home exams, research papers and at the very minimum, are allowed to take in external material for classroom exams that shift the burden from mugging up to understanding.

The social relevance of the law cannot be restricted to adding subjects to the course even though this is the all-important first step. Understanding and writing about law and poverty in India can be an exercise entirely divorced from internalizing what you learn.

Professor Baxi has talked of realizing the dream of having both kinds of law persons—“those who are technocratically competent and those who can perform the roles of soldiers of justice.” This is the laudable aim with which the NLUs started off, but as of now, this goal remains largely elusive.

Corruption in Brazil and India

2011-06-03T06:15:00.006+05:30

By Arushi Garg

On May 31, the renowned political scientist Eduardo Graeff was at the Centre for Policy Research, New Delhi to present his paper entitled “A Chronicle of Corruption and Transparency in Brazil.”

The gist of this paper is summarized in his own words as “Institutions matter, but history also matters.” Much of his paper focuses on how attitudes to corruption are moulded by the history of a place, and any institutions that seek to redress this problem have to take this into account.

His talk started with the hard-hitting statistic that 96% of the Brazilians surveyed by the BBC in 2010 think that corruption is a very “serious problem.” He went on to debunk the myth that democracy means an adherence to rules, while corruption means an absence thereof. Corruption has its own ground rules of greed, and of choices to be made after analyzing the costs and benefits.

This broke at the very outset, the relationship between corruption and regime types, a question he came back to later in the day when he spoke of the military government’s aim to stop communism and corruption—they stopped communism, but they only stopped the debate on corruption! He did add though, that involvement and awareness levels definitely vary with regime types. The Constitution that Brazil came up with in 1988 was the first one which involved the common people. The rise of President Lula was an important development in this regard, since he came with a humble background and started his political journey as a union leader. These were manifestations of the transition in Brazil from oligarchy to democracy, a transition that is yet to be completed.

The question of whether democracy has improved or worsened corruption in Brazil is also raised in his paper, but left deliberately unanswered. He does seem to be issuing a caveat about the role of media being a double edged sword, and how it’s easier to allege rather than prove allegations through the media. The manner in which unverified press statements have been issued with respect to the violence surrounding land acquisitions in UP for the Yamuna Expressway is a reminder of how the journalism in India too can worsen a situation rather than focusing on constructive solutions.

Corruption in Brazil, according to him, arose because of conflicting loyalties, i.e., loyalty to the nation-state on one hand and loyalty to the family, community, nationhood, class or political boss on the other. This last point in particular is the legacy of the colonial period in the 1500s in Brazil, when loyalty to your boss was paramount and it became acceptable to enjoy personal profit from your office as long as you were loyal to your boss.

Another factor that is instrumental in shaping the discourse around public attitudes to corruption is the period of slavery in Brazil. This led to the acceptance of an elite, upper class that was somehow above the law. The slaves had neither the means, nor the moral attachment to abide by the law, but did not have the social standing to abide by it. This persists in the form of what Graeff describes as “corporatism” in Brazil today, where the upper class is somehow deemed to be exempted from following the letter of the law.

This situation seems reminiscent of the lack of a culture of legality with respect to the some strata of the society in India. No one can deny that whose patronage you enjoy will have a major role to play in what law enforcement agencies expect of you.

While talking about enhancing mechanisms to facilitate transparency in Brazil, he spoke of some that are common to most of the democratic world (media, civil society, Congressional enquiries etc.) and some that are creative solutions to the particular problems of Brazil. For instance, the process of “reverse auctions” has been adopted in Brazil where instead of asking for tenders and deciding on the lowest bid, these bids are made online so that all actors involved can see the kind of prices being offered and adjust their own offer accordingly. Another illustration is the Integrated Financial Management System that provides real-time financial information that can be used for efficient utilization of resources.

Given the similarities in the nature of corruption between the two countries, perhaps we would do well to incorporate some such mechanisms in India as well, especially at this time when public discussions around corruption have reached their peak. The use of technology is catching up in India all too slowly and this pace could surely be advanced by the sort of measures that have been suggested in Brazil. Although statutes such as the Right to Information Act, 2005, talk about the digitizing information, this is not something that has been implemented in most places. The potential for using technology to encourage transparency remains largely unrealized.

Despite these mechanisms, he pointed out that political struggles, police corruption and slow legal processes meant that transparency hasn’t completely been realized in Brazil. He suggested that alternation in political power, global cooperation and using the internet to disseminate information could go a long way in dealing with these problems. The experience in other fields such as the Human Rights Movement was instructive in learning how to effectively use global pressures to deal with local problems.

This lecture was followed by an interactive discussion. A member of the audience was quick to point out that in developing countries such as Brazil, China or even India, somehow, as long as there is enough money being made, public outrage seems to be toned down with reports about expanding economies being at the forefront. Graeff agreed with this, stating that even though 96% Brazilians had expressed that they realized the enormity of the problem of corruption in the BBC survey, this could not be taken at face value.

The crimes that lead to the impeachment of President Collor in 1992 in Brazil were no more serious than those that politicians are committing on a daily basis in Brazil today, but his inability to control spiraling rates of inflation led to his impeachment. This also led him to ask that perhaps global exposure and the comparative experience of developing countries was perhaps focusing on the wrong things, and leading to higher tolerance levels of corruption rather than lowering them. Communication must be aimed so that you “act to embarrass” rather than build immunity to stories of corruption.

Audience feedback also brought about several other points. Graeff’s paper has spoken of the “history” of a culture as if it were a monolith. But there are many classes, and many social groups and at the experience of all these groups is a history worth exploring. These variations have not been accounted for. Perhaps one could say that each of these histories has its own impact on the development of a system, but the very general observations made in Graeff’s paper fail to capture these nuances.

In fact, most of the problems pointed out in Graeff’s paper are equally true of India. There is a class of people above the law, political allegiances give people the implicit right to get away with things, and democratic tools are often abused to draw political mileage. The history of both nations is distinct and unique, but the problems of corruption are more similar than someone with Graeff’s hypothesis would care to acknowledge.

Moreover the whole tenor of the proceedings was conservative, something acknowledged by Graeff himself. By suggesting that it was a failure to account for the history of a place, rather than institutional shortcomings that was the problem, he had argued against the creation of altogether new institutions. While talking about the link between crime rates and police corruption, he identified a direct link, but then added that these rates had been lowered through repression, a reality that is “embarrassing for any left leaning sociologist” to recognize. He confined himself to talking about “high corruption” and large scale scams.

This last point is reflective of an attitude that also finds its place in the debate surrounding the jurisdiction of the recently proposed Lokpal authority. Critics have suggested confining this to only large scale scams while leaving “everyday” corruption out of the ambit of the new Bill so as to not overburden a newly constituted authority. The flipside to this is that a decrease in “high corruption” may have the direct consequence of increasing corruption of other kinds to make up for the black money that is lost. While Graeff does not undermine the nature of other kinds of corruption that “has less impact in the media but more direct impact on the daily life of citizens”, it is still worth noting that the treatment of such corruption was deemed dispensable by Graeff.

Graeff suggests that institutionally, the structure for progress in Brazil is there; but the mechanisms that are developed to counter corruption must keep in mind Brazil’s history of patrimonialism, slavery and the harsh lessons the country has hard to learn with respect to inflation. While there is some merit to this proposition, perhaps Graeff may well have understated the role an institutional overhaul could have on Brazil and overstated the role of history in trying to account or the lacunae in the current regime.

Judges of Indian Supreme Court: Beyond biography?

2011-06-02T19:49:00.004+05:30

George Gadbois' book on Supreme Court Judges is bound to invite mixed reactions from readers. My review is no exception. I welcome reviews by other contributors as well.

From the latest Frontline

2011-06-02T19:30:00.004+05:30

On why the Supreme Court's judgment prescribing death penalty to the convicts in Encounter death cases does not really address the problem.

A tale of two dams. Why Jairam Ramesh's order lifting the stay on Maheshwar dam is not convincing.

The Land Acquisition (Amendment) Bill has an interesting trajectory.

Other articles can be accessed here.

An observer's account of public consultation on Lokpal Bill

2011-05-31T11:07:00.006+05:30

By Arushi Garg

The fourth public hearing on the Jan Lokpal Bill was conducted on May 26.

As I first reached the venue, a park in the heart of a crowded residential colony in East Shalimar Bagh, New Delhi, I was struck at how deserted the park seemed to be, except for the people who were there to make the presentation, and the children who were mildly interested in finding out what had deprived them of playing space for the evening.

I had read newspaper reports about how the public has been shockingly uninterested in these public consultations, but nothing had prepared me for this. One of the organisers strolled over, smiled and said, “Well, it seems we have at least an audience of one.”

“What are they screening?” asked a lady from the balcony of her first floor apartment. “It’s a movie about Anna Hazare,” responded her friend on the ground. In the face of everything, the organisers did a brilliant job in getting people interested. There were patriotic songs and clips playing before the main presentation started, and one of the coordinators made it a point to keep reminding the people that this was about them, and their problems. People did start trickling in after that, and there was a crowd of about thirty people by the time the presentation ultimately started. This was mainly a documentary describing the flaws in the current legal regime dealing with corruption, the main highlights of the Jan Lokpal Bill, (prepared by the India Against Corruption, hereafter referred to as the Bill) its criticisms, and why the authors considered that these were unfounded. This movie is also available online.

The movie talks about the primary functions of the Lokpal which include primarily the responsibility of rooting out corruption from all public authorities, right “from the Panchayat to the Prime Minister.” All such proceedings are to be concluded within the year, even if this means hiring additional staff. More stringent and innovative penalties than the current ones have been proposed through the Bill. For instance, confiscating the assets of a person when they are acquired through corruption was presented.

In response to concerns surrounding the susceptibility of the Lokpal to corruption, the procedure for appointment of the Lokpal was gone into. Such a procedure includes people from different background, representing many diverse interests so that the selection does not swing in favor of a particular ideology or party. All meetings of both the Search Committee (that prepares nominations) and Selection Committee (that ultimately appoints the members) involved in the process will be recorded and broadcast for the sake of transparency.

Currently the CJI’s permission must be taken to lodge an FIR against any judge. The Bill proposes that a seven member bench of the members of the Lokpal will now make this decision following a public hearing. There are measures to ensure the protection of the complainants so that people can come fearlessly forward.

Today, if a company is accused of getting its work done through bribing government agencies, the investigating agency must collect proof that bribes were given and taken. Since no witnesses are present in such situations, this becomes hard to prove. Under the Bill, if some unlawful act is done for some company, then it will be assumed that a bribe was given.

The Bill also proposed to merge all other agencies investigating corruption under the Lokpal at the central level and the Lokayukta at the state level.
One of the most useful parts of the movie was the response given to the criticisms the Bill is facing now.

For instance, many people have suggested exclusion of the Prime Minister from the jurisdiction of the Lokpal, since this can taint his or her image at the international level. It was forcefully asserted that there can be no greater shame at the national or international level for a democracy to protect a corrupt Prime Minister. Along the same lines, giving the Lokpal the authority to decide on whether the prosecution of judges is to be continued was defended.

Secondly, the Bill has been sharply criticized for trying to cover too much in a single sweep. The critics have suggested that the Lokpal should confine itself to scams of a large scale magnitude and leave the institution of proceedings for every day matters to other agencies. This is primarily based on the fear that corruption is so pervasive that the Lokpal would be steeped in arrears if it tries dealing with everything.

This was countered at four levels. First, it was pointed out that the very point of the Bill was to reach out to the common man by recognizing the pervasiveness of corruption. Secondly, since any complaint has to travel through multiple levels (officer, head of department, vigilance officer and then the Lokpal),it is unlikely that the Lokpal will be overburdened. Third, the Bill provides for the appointment of additional staff in case the complaints are too many to deal with. Fourth, once the first few complaints have been received, this will surely have a deterrent effect and the incidence of corruption will decrease, gradually reducing the workload of the Lokpal over time.

Some have also worried about doing away with other bodies that deal with corruption, insisting that there is no harm in letting these bodies function in addition to the Lokpal. However, this criticism has not brought about a change in the Bill since empirically, none of these other bodies have proved that they are capable of functioning independently and efficiently. In such a scenario, they can only pose an unnecessary burden on our national resources.

These issues are important because they are still contentious, and forms were circulated at the end soliciting the opinion of the viewers on these criticisms to see if the public also regards them as unfounded. This seems to be a good way of making the process more democratic, but I’m not sure how many people ended up actually filling the forms. This attempt at spreading awareness was bolstered with the distribution of pamphlets and video CDs that summarized key features of the Bill. Questions were invited at the end, but none seemed forthcoming.

The organization was done well, but the low turnout was disconcerting. At the end, I was left with the haunting feeling that you can do very little to help a citizenry that doesn’t seem to want to help itself.

New Internet Rules: contours of the debate

2011-05-30T12:21:00.009+05:30

By Arushi Garg

Various concerns have been raised after rules relating to the internet were notified on 11th April 2011. Objections have been raised on mainly three fronts: one, that an unreasonable standard has been imposed on the intermediaries and cybercafé owners who will face liability for acts that are not strictly within their control; two, that the said rules abridge the fundamental right to freedom of speech and expression that has been enshrined in Article 19 of the Indian Constitution and three, that the right to privacy has been contravened through the power conferred on government agencies to access sensitive personal information of internet users.

To start with, it must be noted that the liability imposed on intermediaries is not absolute. They are not in fact responsible for all the activities of their users. They are only required to publish relevant rules and policies and inform the users that specific kinds of materials have been disallowed through the rules (Rule 3, the Information Technology (Intermediaries guidelines) Rules, 2011). In addition to this, hosting or transmitting illegal information is only problematic if it is done “knowingly.” The intermediary is required to remove the offensive information within thirty six hours of it being stored or hosted or published, but only if it is brought to his notice, or he otherwise obtains knowledge. This does not seem to be as tyrannical as it is being made out to be, and the idea that intermediaries bear the “extremely onerous responsibility to be able to police every bit of content before it goes out” seems to be a misconception.

Another report claims that the effect of the new rules is that cybercafé owners must now make sure their equipment is not used for illegal purposes. On the contrary, the whole thrust of the new rules is towards ensuring that if cybercafé equipment is in fact used for illegal purposes, the user is easy to trace. No unrealistic expectations have been put on café owners. Duties include maintaining log record of the uses to which their equipment is put, collecting copies of identification from all users and complying with the physical layout mandated by the rules.

Secondly, concerns regarding freedom of speech and expression have disturbed the online community. The prohibition on materials that have been described in vague terms such as “disparaging”, “grossly harmful” and “objectionable” have caused great alarm. In the words of Nikhil Kumar Verma, one of India’s top ten most influential tweeters, "No-one has a say of what is right, and what is wrong... if someone objects you can't talk about it." According to the head of a digital marketing agency in Mumbai, “Any individual can write to us and say that piece of content offends us and without any recourse we have to take it down." This does not seem to be a tenable objection. It is absurd to assume that the standard laid down in the rules is a subjective standard. Terms such as “objectionable” are surely to be adjudged based not on what overly sensitive people might regard as objectionable but what a reasonable man might perceive as such.

Still, it is well worth noting that these terms have not been defined and are open to misuse. Already, Google has received reports from the State asking them to take down content that is critical of leading politicians, prompting them to publicly reject the rules as anti-democratic. This obviously raises concerns that these terms might be open to a broad, arbitrary interpretation.

While examining this objection in the light of the Constitution, one way of looking at these provisions is through the lens of the basic norm of statutory interpretation which requires that if it is possible to interpret a statute in two ways, only one of which is constitutional, then “a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided.” This means that these terms are to be read in such a manner so as to be consistent with the reasonable restrictions on the freedom of speech and expression that have already been laid down in Article 19(2) of the Constitution of India. Given this interpretation, these rules merely impose additional duty on intermediaries in the light of existing restrictions, rather than imposing any new ones.

However, the lack of definition also leads us to a discussion surrounding the “void for vagueness” doctrine. According to a 5 judge bench of the SC,

“It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked".”

A provision is therefore vitiated by vagueness if it creates scope for “guiltless and innocuous innocent people” to be “arrested and prosecuted by abusing or misusing or misapplying this definition.” This idea has been recognized on other occasions as well, in the form of the “void for vagueness” doctrine, an idea borrowed from American jurisprudence. According to this doctrine, laws should be sufficiently clear so as to give notice of the conduct that is proscribed.

In the current matrix, there are three implications of this observation. Firstly, these ill-defined restrictions may well be held violative of the principles of natural justice, because the general public has not been given due notice of what sort of conduct is being sought to be controlled by these rules.

Secondly, the direct and inevitable impact of these rules, as bolstered by the SC’s observations, that people would “steer far wider of the unlawful zone”, i.e., people may hesitate before exercising their right to freedom of speech and expression for fear of violating these rules. This would amount to a violation of Article 19(1)(a) read with 19(2).

Thirdly, since it is vagueness that leads to such massive scope for abuse by enforcement agencies, it might be possible to successfully challenge the constitutionality of some of these measures. The only catch here is that high standard that has been articulated by the SC while invoking this doctrine may prove to be a hurdle. In the words of the apex court, this can be done if a Statute is “absolutely vague and its language wholly intractable and absolutely meaningless.”

Last, but most troubling, is the fact that these new rules allow for transfer of personal information, without the consent of the user, to government agencies as they state the reason for soliciting this information and don’t disclose it further on. Such personal information includes, inter alia, “sexual orientation” and “any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise.”

This sweeping provision has to be viewed against the fact that privacy has been recognized as a facet of the right to life in India. It is true that the right to privacy in India is subservient to compelling state interests, but recent case law has aimed at expanding this right. The Selvi judgment has recognized that the right to privacy has both mental and physical aspects. In the celebrated Naz judgment that deals in particular with the right to privacy of people of varying sexual orientations, the Delhi High Court described the right to privacy as “private space in which man may become and remain himself.”

While the relaying of information that strictly relates to a compelling state interest might be lawful, the Centre may perhaps want to review the unregulated powers that have been granted to the Government under Rule 6 of the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, in the light of the broadening contours of the right to privacy. But the Government does not seem interested in answering these criticisms.

Intern at LAOT

2011-05-26T10:45:00.006+05:30

LAOT is pleased to announce that Arushi Garg, who has contributed the previous two posts, will intern as a blogger for the next few weeks. She is a third year law student from NALSAR University of Law, Hyderabad. She tweets regularly here linking select articles & news stories of interest to our readers.

Veterans and Ethnic Cleansing in the Partition of India

2011-05-25T12:02:00.001+05:30

Steven Wilkinson, the Nilekani Professor of India and South Asian Studies at Yale University, and one of the world's leading political scientists working on India, will be presenting a paper at the Centre for Policy Research on 'Veterans and Ethnic Cleansing in the Partition of India' (by Saumitra Jha (Stanford) and Steven Wilkinson (Yale)). The presentation will take place on Monday 30 May at 11.30 AM. All those who are interested should feel free to attend.

Abstract:

This paper analyses the pattern of ethnic cleansing during and after the partition of India, using new all-India data on both the precipitants of violence and the scale of ethnic cleansing. The paper shows that the pattern of cleansing is in fact much more varied than many accounts suggest. Our main finding is that the levels of cleansing are associated with larger numbers of frontline veterans in a district; ethnic cleansing requires not just the motivation for violence, or the existence of a security crisis, but also military skills and organization. While the link between veterans and violence has been asserted before, especially for Punjab, this is the first paper to demonstrate the relationship empirically, and to show that frontline experience, rather than military training per se, is the crucial factor.

The relationship between veterans and political mobilization arguably has implications for other post-1947 developments in India, such as the Punjab movement, and also perhaps shifts in patterns of central spending in some states.

Author biography:

Steven Wilkinson is Nilekani Professor of India and South Asian Studies at Yale University, where he teaches political science. His books include Votes and Violence: Electoral Competition and Ethnic Riots in India (Cambridge, 2004), which was the co-winner of the Woodrow Wilson award for the best book in political science, and Patrons, Clients and Policies: Patterns of Democratic Accountability and Political Competition(Cambridge 2007), co-edited with Herbert Kitschelt.

SC vs. CIC: Does SC have a case?

2011-05-24T16:50:00.006+05:30

The Supreme Court has gone to the High Court again, appealing against a CIC order. If it was about the declaration of assets earlier, this time it is to assert the primacy of the Supreme Court Rules over the RTI Act.

The main issue at hand is whether the non-obstante clause in Section 22 of the RTI Act, 2005, overrides the Supreme Court Rules. According to the statutory provision in question, the provisions of the RTI Act are to have effect “notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Order XII, Rule 2 states that the Supreme Court may provide all documents, records and pleadings associated with a case to anyone who was not a party to the case if good cause is shown for seeking this information and prescribed procedure (including payment of prescribed fees) is duly followed.

Both provisions have been put in place to facilitate transparency and in that sense, are not inherently inconsistent with each other. But there are some crucial differences. Unlike the Supreme Court Rules, the RTI Act provides for a time limit within which such information is sought, offers no discretion if the information in question is covered by the Act and does not require the party to state any reason at all for seeking this information. A system of differential pricing is followed with respect to the payment of fees under the RTI Act.

The CIC has held that since both provisions are two ways of achieving the same end, there is no inconsistency of the sort covered by Section 22 and it is therefore open to the parties to seek information through whatever channel they use. Such an inconsistency does emerge when information is to be mandatorily made available to an applicant under the RTI Act, but is denied to him or her under the Supreme Court Rules. In such a situation, the RTI Act trumps the Supreme Court Rules since Section 22 is then operationalized. Any other interpretation would be a violation of the right to information that has been recognized as a fundamental right by the Supreme Court.

In coming to this conclusion, the CIC discussed two important maxims. The first of these is - lex posterior derogat priori - non est novum ut priores
lages ad posteriores trahantur- which means that an earlier Act must give way to a later one, if the two cannot be reconciled. The CIC held that this was to be done in only those rare situations where no harmonious construction of the two was possible. Thus, both provisions were recognized as valid modes of obtaining information unless there was an obvious conflict of the sort described above.

The other maxim discussed generalia specialibus non derogant(i.e., general things do not derogate from special things) was similarly dealt with. The CIC held that the general provisions of the RTI Act would not take away from the SC Rules unless there was a stark inconsistency between the two that led to an inability to apply this maxim.

The SC has approached the High Court challenging such a construction.
Apart from the grounds that have already been dealt with by the CIC, a fresh ground of appeal seems to be that the SC Rules are framed under the direct authority of the Constitution and should therefore trump the RTI Act This argument must necessarily fail. The SC Rules have been framed under the authority of Article 145 of the Constitution and are “[s]ubject to the provisions of any law made by Parliament.” The interpretation given by the CIC seems to be sound in law and is unlikely to be overturned.

However, the related issue of the kind of information sought, rather than the mode of information might be well worth exploring. The information sought by the applicant extended to “reasons for judicial decisions.” Arguably, the requirement that all decisions must be reasoned decisions has already found its way into the corpus of principles of natural justice, and there is little to be gained by allowing applications demanding reasons beyond those that have already been furnished. In that sense, these applications would largely be superfluous, and would unnecessarily consume time and resources.

ADDENDUM

Moreover, Section 4(1)(d) of the RTI Act, explicitly mentions that the ambit of the Act extends to reasons for all administrative and quasi-judicial decisions. Had the Legislature wanted to include judicial decisions, nothing would have been easier than to mention that in the said provision. The Legislative intent was clearly to exclude judicial decisions from the ambit of the RTI Act.

[Contributed by Arushi Garg]