Friday, December 28, 2007

Who Killed Benazir?

Jason Burke, blogging in the Guardian, speculates that it may be a combination of many factors:
“Finally, it is worth looking back at a previous attempt on Bhutto's life - not that of October 18 this year but back in the early 90s, when Ramzi Yousef, now in prison in America for trying to blow up the Twin Towers, attempted to assassinate her. That scheme involved local criminal elements, senior Islamic militants from the Gulf, a local Afghan hardline commander with Saudi Arabian links, Yousef himself and money from overseas. A similar combination may be behind this murder. It is unlikely, sadly, that we will ever really know.”

Bill Roggio, writing in the Weekly Standard, argues that the attack had the hallmarks of a military operation and was probably carried out by the Taliban and al-Qaeda. Bob Novak who has excellent sources in Washington, writing a column speculating upon this question a couple of months ago after the last major attack upon her, said:

“So, who wants to kill Benazir Bhutto? Not Musharraf, who is astute enough to know his complicity in her death would be devastating for him. Yet he has not been forthcoming in investigating the Oct. 18 bombing in Karachi or preventing its recurrence…

Al Qaeda and the Taliban, who do not want Bhutto to lead Pakistan's government a third time, are behind the suicide bombing but do not appear to have acted alone. In addition to the bombing that took at least 136 lives, it is unpublicized that snipers fired on her convoy. Not al Qaeda's style, that points to Pakistan's ISI (Inter-Services Intelligence), or at least rogue elements within it. Musharraf, though still military commander, does not exercise complete control over ISI (which is considered a state within a state and gave birth to the Taliban in Afghanistan).

It is difficult to identify attempted assassins because Interior Minister Aftab Khan Sherpao said he would "categorically reject" help from world-class FBI forensic investigators…More than 10 days after the bombing, it is too late for forensic evidence.”

Burke now, as Novak then, thinks that Musharraf is probably not involved. Given the history of political assassinations in Pakistan, as Burke concludes, sadly, the truth may never be known.

Thursday, December 27, 2007

Ramadoss v. Striking Medicos: Is the Opposition to Compulsory Rural Service Justified?

The Union Health Ministry’s push to implement a mandatory year of rural service for medical students ready to graduate set off a firestorm of protests and criticism. The protests, though strongly felt in Tamil Nadu and Maharashtra, echoed more general resentment of the idea. Anuradha Raman writing in Outlook said:

“The 70 per cent rural population has only primary healthcare centres to turn to which, more often than not, do not even have a medical officer. It would appear there are no doctors to fill up the vacancies. In 2005-06, nearly 51 per cent of posts of surgeons, obstetricians, gynecologists, pediatricians and physicians were lying vacant. Records show that of the 6,83,682 registered allopathic doctors in the country, only one in 10 doctors works in a rural area. In light of all this neglect, isn't Ramadoss justified in his rural plans for the students? Opinion is sharply divided…”

That the measure will address this shortage has not been seriously disputed even by critics. Most of the counter-arguments put forth relate to quality. She quotes a Tamil Nadu representative to the MCI saying that the students aren't trained to serve in villages. This is another way of saying that these physicians are not fit to function independently. That being the case, they are as likely to perpetrate harm working on their own in the private sector (which, by the way, they are perfectly allowed to do being legally licensed to practice by the State Medical Council) as they are serving in a public facility. If such a serious infirmity has been detected, the question is, service or no service, why they ought to be allowed to graduate at all. He continued: “Rural health can't be treated in such a casual manner, especially when all the attention and money goes to providing the best healthcare for urban India. Relying on students to provide healthcare amounts to giving second-class treatment to rural India.” Quoting a professor of Medicine at Wardha, she added:

““There is no doubt that the imbalance of doctors in rural and urban areas needs correction. But most rural facilities in India continue to lack enough providers, equipment and infrastructure to offer effective and efficient care.” With experience in a rural medical school and hospital at Sevagram, he feels that rural and socially disadvantaged people tend to have far more serious and complex medical problems which needs more knowledge, expertise and experience. "To offer cost-effective medical care to the rural and poor people isn't's certainly beyond the capacity of young, unsupervised doctors," he says.” It is agreed that better equipment, infrastructure and experienced physicians will indisputably provide ‘first-class’/’serious’ healthcare. But the more relevant choice before us is whether sending physicians to work in the system as it exists to provide even ‘second class’/’casual’ healthcare is better than no care at all. Any reasonable observer would say that it is. All of these tangential arguments amount to little more than an unsubtle effort to camouflage their own support for the students’ self-serving stance in politically correct terms more likely to garner public sympathy. Other reasons for opposition, though raising questions of equitable treatment and a culture that allots primacy to self-interest, giveaway this fact. Asks Professor Kalantri in an article:

“Why are medical students expected to make greater sacrifices than other professionals? ….Can we really expect students who have made what is essentially an investment to forget about money and think of their professional ethics and social obligations? After all, if students pay a fortune for their education they are going to be interested in recouping that investment at the earliest. By encouraging private medical colleges the government is sending the signal that medical practice is for personal profit. Is it realistic to demand social commitment from young doctors when nothing else in the system encourages them to think and act along these lines? Are they wrong if they think solely of their careers and turn a blind eye to the problems of a rural population with no access to healthcare?”

That being said, why is the medical student community so disturbed by this suggestion? A variety of reasons may be attributed. (1) Salaries for fresh MBBS graduates vary widely across the country with hospitals in those parts of India having fewer medical colleges generally paying better. The amount of Rs. 10,000 / month reportedly being considered by the government may therefore not be appealing to everyone. (2) These are dead-end jobs (i.e. with no option to advance in that position) that offer only limited additional training, i.e., owing to the paucity of supervision and/or infrastructure, the physician himself/herself is unlikely to learn much in the form of new techniques or skills that would be useful in other better equipped settings. (3) A large number of graduates hope to go on to obtain a post-graduate degree either in India or abroad. Most of these positions can be availed of only upon passing entrance examinations that are extremely competitive and require extensive preparation. Rural service, being outside of an academic setting, is of little value – indeed, many such exams in India have traditionally tested more one’s ability to recall a voluminous collection of arcane facts rather than analytical skills more pertinent to clinical problem-solving, an approach that reduces the imminent value of practical expertise gained in any setting. From this standpoint, rural service or in fact, practice of any kind, is essentially a distraction. (4) A small but significant number usually come from families whose parents own or are part of established healthcare institutions. Such students are sometimes anxious to return home to work at such places as soon as possible and perceive no advantage in a rural digression. (5) The general lack of amenities of urban life and relative isolation add to its unattractiveness. (6) An already extended period of study and training further lengthened by a year causes some degree of envy especially in comparison to an engineer who is able to get a relatively high-paying job after only four years of education.

What then is the principal inference from the above paragraph? Medical students, around the time of graduation, are most concerned about charting their future. A majority do not see themselves working in rural areas in the long term and consider the idea a diversion from their main goal of securing their professional careers.

The Health Minister has so far stood his ground though the proposal has not yet been finalized. The students have not relented either and several political parties in Tamil Nadu have apparently extended their support to them (including the DMK and surprisingly, the CPI). Now that the storm has been weathered, it remains to be seen whether the proposal, in its current or a modified form, will return once more to the limelight in the months to come.

Can this proposal be made more palatable? Several developing countries in the past have tried compulsory posting of physicians to address rural shortages. Malaysia is a good example where a three-year period of government service is mandatory to be licensed to practice with certain options for deferral, reduction or exemption of the same. A similar system may be tried in India with a mandatory year of rural service to be completed at some point before being licensed to practice. If one wishes to proceed further to acquire a post-graduate qualification before serving, he/she may be allowed to do so. Exemptions may also be granted to those specializing in areas where academic or other major urban centers too are facing a shortage. The downside of this option is that there would be a significant element of attrition with some graduates choosing to stay abroad or giving up practice altogether thus reducing the extent of coverage. Yet, the trade-off may be well-worth it if the greater flexibility allows physicians, having completed their education, to feel relatively more secure in their careers and thereby leads to higher motivation and a stronger commitment to service.

Monday, December 24, 2007

The March of Sovereign Wealth Funds

In this era of globalization and free-market economy, one would imagine that the state’s role as a market participant would dwindle over a period of time. However, that seems to be untrue in one important respect – the surge of activity in the international financial markets that has been precipitated by sovereign wealth funds that are themselves state players. A sovereign wealth fund (SWF) is defined by Investopedia as “pools of money derived from a country’s reserves, which are set aside for investment purposes that will benefit the country’s economy and citizens. The funding for SWF comes from central bank reserves that accumulate as a result of budget and trade surpluses, and even from revenues generated from the exports of natural resources”.

Although SWFs have been in existence for nearly half a century without much fanfare, they have recently become the subject matter of contentious debate in the international financial circles. The concept of the SWF has assumed significance because of the exponential growth in its size, which is currently estimated anywhere between US$ 2 trillion and US$ 3 trillion. While SWFs in countries like Norway and Singapore (through the Government of Singapore Investment Corporation (GIC) and Temasek) traditionally managed substantial investments, the recent surge in sovereign wealth is due to increase in commodity prices, oil in particular, that has left several SWFs in the Middle East flush with funds (a.k.a Petro Dollars). Examples are the Abu Dhabi Investment Authority, Kuwait Investment Authority, Qatar Investment Authority and similar entities in Saudi Arabia. China too set up its SWF in mid-2007 the form of the China Investment Corporation (CIC) that has been modeled on the lines of GIC.

Over the last few months, these SWFs have made multi-billion dollar investments in stocks of companies situated in various countries around the world. A bulk of these investments have been made in US companies, such as Citigroup (by Abu Dhabi Investment), UBS (by GIC), Blackstone (by China Investment) and even London Stock Exchange (by Qatar Investment). It would not be long before Indian companies begin attracting large sums of money from SWFs, as it is a favourite investment destination for such funds as an emerging economy. Since SWF investment transcends beyond a pure commercial transaction, there could be sensitive issues of national sovereignty that might be affected by these investments. This would require appropriate consideration by the Indian regulatory authorities (such as the Ministry of Finance, Reserve Bank of India and the Securities and Exchange Board of India), which are reportedly seized of the issue already.

Some of the risks that the authorities need to be cognizant of are as follows:

1. Market Impact: Since the investments by SWF could be of gigantic proportions, any withdrawal of these investments over a short period of time could adversely affect stock markets in which investments have been made, as this could trigger a massive fall in stock prices. Such impact was felt by the Asian economies during the Asian financial crisis of the late 1990s when foreign investors such as hedge funds and other institutions pulled out these markets all of a sudden thereby exacerbating the collapse of these economies.

2. Security Concerns: There are certain sensitive industries such as defence equipment, telecommunications, media and the like where investment by foreign sovereign entities would be of grave concern to recipient countries’ governments. Even countries such as the United States (US) that led the free-market and liberal investment policy juggernaut have taken to closed-door policies when it came to such sensitive sectors of the economy. For instance, recent amendments to the US legislation governing the Committee on Foreign Investment in the United States (CFIUS) give wide powers to the US Government to block deals by foreign players that are against US national interest. These legislative changes were triggered due to overtures in the past by the state-owned China National Offshore Oil Corporation (CNOOC) to take over Unocal, and by Dubai Ports World to acquire Peninsular and Oriental Steam Navigation Company, that were eventually warded off by the US. Even key European nations, through outspoken heads of states in the likes of Angela Merkel (of Germany) and Nicholas Sarkozy (of France) have called for protecting important industrial sectors from political influence of other nations.

3. Political Influence: Some commentators perceive a risk that investing sovereigns will exercise political influence by leveraging their large stakes in the markets of other countries, although it is not entirely clear whether such instances have yet occurred. Fears have been expressed that investing sovereigns could lobby for favourable tax treatment, special benefits for companies in which they have invested and the like.

4. Lack of Transparency: Unlike financial investors and commercial entities that are answerable to their shareholders, and thereby have disclosure and reporting requirements, SWFs by and large do not have similar obligations. Hence, their investment policies and strategies are shrouded in secrecy. Information about investment patterns of SWFs may not be generally available in the financial markets or to countries in which they make investments.

In this background, there appear to be two schools of thought emerging with respect to SWFs. The first school takes a more liberal approach, whereby commentators argue that SWFs should not be restricted from investing in other financial markets and ought to be treated on par with commercial investors. They urge a dispassionate and financially prudent strategy on the part of recipient countries. The only area where they call for a different approach is to enhance disclosure obligations on SWFs so that an element of transparency is introduced in their operations. Finance & Development, a quarterly magazine of the International Monetary Fund (IMF) states “[t]here's no apparent reason to see the continued existence of these funds as destabilizing or worrying. In fact, the IMF has strongly encouraged exporters of nonrenewable resources to build up exactly such funds in preparation for a “rainy day.”” Similar views have been adopted in where Vinay Nair, a senior fellow at the Wharton Financial Institutions Centre argues:

“Not all sovereign funds are similar. Moreover, in my view, laws curbing capital inflows are unlikely to be helpful. Such regulations are often blunt instruments. Capital is an important ingredient of development – especially in India, and the country needs to attract overseas investment to sustain the world’s second fastest pace of economic growth. At such a time, laws that place investment barriers on SWFs would be a step in the wrong direction”.

On the other hand, there is another school of thought that adopts a more cautious approach. In an earlier article in DNA - Money, Mukul Asher states:

“Open societies with still-developing regulatory, and data gathering and mining capabilities such as India need to be particularly cautious when the investments by the SWFs are involved in strategic areas such as banks, telecommunications, and ports.

There is a possibility of national policies being undermined by transactions undertaken by SWFs of different countries. India also needs to substantially enhance its regulatory and monitoring capacity for not just approving the foreign direct and portfolio investments, but also their behaviour over time. India should consider developing a database of foreign investments by type of financial institutions, including SWFs.”

In a recent article in Rediff Money, MR Venkatesh argues:

Obviously, all this is not about economics, as it seems on a superficial level. As SWFs deploy their assets, political friction with target countries is likely to accelerate. No wonder many countries have now put in place well-defined foreign investment review processes.

It is indeed time that the Indian regulators too discuss this issue and ensure appropriate policy response to this vexatious issue. Nevertheless, what is ironical to note here is that globalisation had contained the seeds of this protectionist state of play -- a point that was missed by many.

Obviously, the challenge to the policymakers is to find a balance for government-backed funds that contain geo-political issues without discouraging orderly global movement of capital -- a Herculean task considering the inherent paradox contained in the idea.

Naturally issues get blurred when questions are raised concerning direct or strategic investment by SWFs -- i.e. when management stakes, sensitivity and security risks, size and, of course, strategic interests are involved. The response would naturally be equally blurred, diffused and to that extent arbitrary.

Who said capital did not have colour?”

Even though there is no consensus on the approach towards SWFs, one thing appears fairly clear – that SWFs are likely to continue to undertake substantial investments in various countries, and hence investment destinations such as India need to adopt a clear policy stance towards such investments. We could expect pronouncements not only a national level by the Indian regulatory authorities, but also from the World Bank and IMF that are currently exploring guidelines and standards for SWFs. This debate is not likely to fade away soon.

Sunday, December 23, 2007

Nepal SC leads the way on gay rights, marital rape

The Supreme Court of Nepal, in a remarkable ruling, has upheld the right of gay, lesbian, bisexual and transgender people to access full citizenship rights and not be criminalized. This is in stark contrast to the Delhi High Court which had dismissed a challenge by the Naz Foundation on standing issues. The judgment was reversed by the Supreme Court and the case is now pending with the Delhi High Court again. All the relevant legal material on this case can be found here.

This is not the first time the Nepali Court has been progressive. About five years ago, the Supreme Court declared that marital rape is included in the definition of rape. A previous post on this blog dealt with the issue of marital rape in India.

Saturday, December 22, 2007

The Clinical Establishments Bill, 2007: Boon or Bane?

The Clinical Establishments (Registration and Regulation Bill), 2007 is one of the important bills pending before the house that has somehow escaped the scrutiny of its more controversial counterpart-in-passage, the Broadcasting Bill. It may however have equally prominent implications for healthcare across the country. It has been introduced in parliament and is currently pending passage.

The bill notes in the introduction that healthcare in India is of uneven and uncertain quality, its supervision poor and there are few incentives in the current healthcare delivery system conducive providing enough incentives for improvement in efficiency. It also states that concerns voiced by the general public as well as a number of stakeholders coupled with the general perception of an inadequate regulatory framework is sought to be addressed by central legislation to create a uniform standard of facilities and services across the states. The highlights, provisions of the bill and relevant government documents can all be accessed from the PRS website (I thank Mr. Venkatesan for sending me the brief). The highlights of the provisions are as indicated below:

  • As the name suggests, it seeks to register and regulate, and set standards for clinical establishments. It shall be applicable to all union territories and four states. Other states may adopt the Bill.

  • A clinical establishment is defined as a hospital, maternity home, nursing home and any similar facility with beds. The definition also includes a laboratory that carries out pathological, bacteriological and other diagnostic services.

  • The central government shall establish a National Council. Its main functions include prescribing standards for clinical establishments and maintaining a register of clinical establishments.

  • Every clinical establishment will need to register. The Bill provides for both provisional registration and permanent registration upon satisfaction of prescribed conditions.

  • The district registering authority is responsible for registering clinical establishments, inspecting such establishments and cancelling registrations in case of non-compliance with prescribed standards.

Several of these have been criticized. The website also provides a brief analysis of the contentious provisions and issues. These, with a few additions, have been detailed below.

  • Cl. 2(c)(i) defines clinical establishments as facilities with beds. Thus, out-patient clinics which comprise 60-70% of private healthcare (Report of the Working Group on Clinical Establishments, Professional Services Regulation and Accreditation of Healthcare Infrastructure (RWG)) are automatically excluded. Independent laboratories and radiology facilities that perform diagnostic and/or investigative services are covered under 2(c)(ii). Outpatient surgery, now-a-days a common feature in the United States (see this report), is beginning to catch on in India as well - several scientific reports have been published involving specific surgical procedures - though no actual numbers are available on the pervasiveness of their practice in freestanding clinics (A good guess may be that less capital intensive procedures (eg. traditional forms of cataract surgery) are more prevelant). Facilities conducting such procedures are usually attached to outpatient clinics, require patients' presence only for the duration of the operation itself followed by a brief period of post-operative supervision usually amounting in toto to less than a full day and warrant no beds or admission. Such facilities too, notwithstanding the substantive nature of care involved, would not come under the purview of this act.

  • Cl. 5 empowers the government to develop 'proper' as well as minimum standards for healthcare. The latter alone is to be applied in reviewing the state of any facility. In a country with limited information about the nature and quality of healthcare, no national program for development of practice guidelines or medical review criteria (World Bank Report, 2003) in addition to vast regional and social disparities, creating such standards will be quite a difficult task. The RWG acknowledges this (para 37) and being a long-drawn process, recommends delinking it from registration (para 40(x)), a view incorporated in the draft bill.

  • Cl. 10 designates the District Health Officer (DHO) or Chief Medical Officer (CMO) as the district registering authority for registration of clinical establishments in each district. The DHO/CMO also shoulders responsibilities for the management of government facilities in that district. This leads to a conflict of interest.

  • Cl. 39 has a limiting stipulation that the register must be maintained in digital format. There is a concern that newer non-digital technologies may therefore be excluded.

Is state regulation a smart idea? This fundamental question at the heart of the debate has no easy answer. The RWG which recommended this step (para 67) does not appear to have seriously debated the merits of this solution. The report discusses briefly the problems of quality and lack of regulation in the private sector (para 6) and from there, jumps to a discussion on the forms of regulation, previous legislations, their inadequacies, and comparative approaches in other countries, with little mention of how legislative enactment will address specific issues, how far it ought to go or why it is a superior approach relative to the rest. It does stress that central legislation is necessary to ensure uniform standards (para 26). However, to foster cooperation and mitigate the skepticism of the private healthcare establishment, the National Council which is tasked with developing standards (Cl. 5) is required to adopt a consultative approach (Cl. 7).

A World Bank (WB) Report from 2003 titled 'Health Policy Research in South Asia: Building Capacity for Reform', a goldmine of information on the private sector (the RWG appears to have drawn from it at several places), summarizes the various malpractices that previous studies have noted in the private sector (p. 235): "Stories abound of problems with diagnostic and treatment practices; with inadequate facilities and equipment; and of doctors over-prescribing, subjecting patients to unnecessary investigations and interventions, charging patients exorbitantly, using unethical and irrational practices, and failing to provide information to patients." The report, similar to several other studies, generally favors regulation though its authors (who are all prominent in the field) are not entirely in agreement upon the way forward. One of them recommends decentralization and a better regulatory regime (p .59); a second, writing in greater detail upon this question strongly argues for a 'minimum set of basic regulations covering the licensing of practitioners and institutions, measures to ensure minimum standards of quality, guidelines regarding pricing, and actions to prevent the oversupply of services (including technology)' (p. 240); a third, though convinced of the imperative for state intervention, insists that rigorous evaluation is a necessary prerequisite for there is little understanding of the regulatory mechanisms already put in place (p. 250). It must be noted however that many of the studies that recorded evidence of malpractice were not limited to private hospitals and nursing homes. They often focused on individual healthcare providers and also included those operating in exclusively ambulatory clinics with no separate assessment of the proportional contributions in each type of setting. Given the predominance of such clinics, regulatory scrutiny of a large fraction of such ethical violations will be precluded under the terms of this legislation.

The RWG also insists that though 'state-specific variations would certainly exist, the need of the hour is [to have] uniform standards' (para 34). The bill, in the statement of objects and reasons, repeats this theme (para 3). All of which brings us to the next question: Is a uniform standard a good idea? The definitive answer will have to wait till these standards are actually enunciated. One can speculate based on the wording of the bill and the RWG of the ministry's thinking.

Cl. 12(i) entails minimum standards of facilities and services and cl. 12(ii) of personnel, for clinical establishments to meet the requirements of the Act. Regarding facilities, the legislation is likely to have beneficial effects at least with regard to private institutions in urban areas. Important findings previously reported in limited studies have been a lack of hygienic conditions and limitations of space (Nandraj, 1994). Both are easily identified though the latter may be difficult to remedy in a congested urban environment (that study was conducted in Bombay). How much leeway may be offered by the regulating authority for such locations remains to be seen.

Services can be loosely categorized into two: those that directly relate to patient care and those that are either peripheral to patient care but involve interphasing with the public or are more directly concerned with the institution's own upkeep. The former includes medical, surgical, nursing and other services that directly relate to patient care whose practices are governed by professional guidelines and the conduct of whose professionals, to a significant extent, is overseen by professional bodies and also comes within the ambit of other laws (such as the Consumers' Protection Act, 1986). Any regulation may end up interfering with not only the jurisdiction of these bodies but affect professional autonomy and are likely to engender profound resistance. However, egregious instances of medical errors that get reported often involve poor professional practice or judgment. Several previous efforts have resulted in little noticeable alteration in practices, their failure being blamed on 'weakness', lack of clarity or relevance, strong resistance from practitioners and state apathy (Bhat, 1999; Nayar, 2002). Some provisions to examine medical records for irregularities already exist on the statute in some states but have not been implemented (Bhat, 1996). It remains to be seen whether a similar fate awaits this renewed effort with no verification mechanism put in place to check whether the developed standards are being regularly followed (Prominent instances attracting media attention may still lead to exacting regulatory scrutiny in the absence of a routinely enforced system of auditing records of private health centers). The second kind of services are more amenable to regulation - governments and accreditation agencies usually target them in their efforts to improve quality of healthcare. The same is likely in India also. In fact, the RWG mentions the standards developed by the National Accreditation Board for Hospitals and Healthcare Providers (NABH), a constituent board of the Quality Council of India (QCI) (para 62). Other accrediting bodies have also emerged (para 63 and 64). It is quite possible that the standards adopted finally under this Act will be significantly drawn from some of these existing models.

Personnel problems abound in the healthcare sector. Apart from the widely publicized issue of rural doctor shortage, nursing shortages have also been reported. The vast differences in the number of medical colleges in different states (Supe and Burdick, 2006) also means that the number of graduating physicians will continue to be uneven with location, lifestyle preferences and linguistic barriers potentially preventing large-scale redistribution from overserved to underserved areas. These problems, being rooted in the existing system of incentives and restrictions, are destined to remain for a while. The question here is: how will new regulations affect them? If the medical education system is anything to go by, the answer is: adversely. Professional medical colleges are bound by the standards for faculty recruitment laid down by the MCI and risk losing their recognition should they flout those norms. At the same time, they have been facing an acute shortage of faculty in several (primarily non-clinical) specialties for which the blame is partly laid at the door of the MCI with calls to reduce these requirements to address this issue (Ananthakrishnan, 2007). Similar staff shortages exist in the general healthcare sector as well. Allopathic hospitals sometimes operate with homeopathic house surgeons (Nandraj, 1994) and recruit untrained nurses (Bhat, 1996; WB Report, 2003). If qualification requirements are strictly enforced, private institutions, faced with the prospect of losing their license, may either rise in revolt or resort to a variety of unsavory methods to pass inspection (see 'Hoodwinking the medical council' in this news item). In rural areas, this problem has been overcome to some extent by existing personnel performing additional services outside the scope of their training. I knew of a surgeon in a popular rural facility in North Karnataka who also doubled as a gynecologist and was said to be proficient in performing orthopedic surgery when the regular orthopedic surgeon was out of town. The WB Report acknowledges this practice in Uttar Pradesh (p. 274-5) but recognizing that the alternative is the absence of any service, recommends allowing it to continue 'for now' with the rider that full disclosure be made by practitioners to community leaders and the public. A proviso to cl. 13(2) insists that 'in prescribing the standards for clinical establishments, the Central Government shall have regard to the local conditions'. I found this somewhat ironical - are not the notions of uniformity and Central intervention antithetical to the idea of a local solution? Are Central experts truly more conscious and sensitive of local considerations than local health officials? In any case, not providing for some flexibility in the regulations framed under Cl. 12(ii) will certainly hurt rural providers. How these diverse requirements will be handled remains to be seen.

There have also been various reports of a variety of inadequacies in the conduct of individual providers - widespread absenteeism, unfilled vacant posts, incompetence and tardy work ethic (Nandraj, 1994; Das and Hammer, 2004; Hammer et al, 2006). Many of these have been reported in the public sector and the lack of robust accountability practices has been blamed for this (Hammer et al, 2006). How will better regulatory standards impact this? Cl. 42-44 allow the government to levy fines for failing to conform and a proviso to cl. 32(3(b)) allows for the institution to be restrained from 'carrying on' if there is imminent danger to the health and safety of patients. As mentioned before (vide supra), with the DHO/CMO holding overall responsibility for government facilities in the district, the ensuing conflict of interest makes it quite unlikely that he/she would be willing to take strong action against erring individuals or facilities. Apart from this, the coercive impact is blunted as any fine levied is merely one arm of the government paying another. There may be more severe consequences if a facility is actually forced to shut down for non-compliance. That is however likely to be a rare event; if it is serious enough to scandalize the government or even otherwise jolt it into action, the finger will once again point to the very DHO/CMO who ordered it. Thus, even if better accountability standards are developed and adopted, these constraints are likely to hamper their effective implementation.

Apart from uniformity between states, the RWG also talks about parity between public and private healthcare institutions (para 36): "Private sector players are quick to accuse the govt. of observing double standards in prescribing minimum standards for private establishments and doing nothing to improve the pathetic conditions in public health institutions. This issue would need to be addressed in the right spirit by the government. No exemptions have been provided for government institutions in laws framed for management of bio medical waste, setting up of blood banks and pre-natal diagnostic tests etc. All these laws have had salutary impact on their specific areas. All the more reason that government establishments should also be required to register and comply with prescribed standards." On the face of it, the initiative is a laudable one. However, Ajay Mahal, in the WB Report from 2003, quoting classical economic theory has this to say (p. 59): "...particularly the suggestion to improve the quality of public sector care, run[s] into the problematic observation made by Besley and Coate (1991) that greater equity can be achieved and insurance for the poor improved if the quality of available public services is not 'too high'. They argue that the interests of the poor could be served by the public sector if the richer groups start using private care or unsubsidized public facilities such as paid inpatient wards. For this to happen, however, the nonpoor would have to perceive the quality of care in the private, unsubsidized facilities as being better than that of subsidized public services." He also found that the BIMARU states and Orissa have the least egalitarian distribution of public health subsidies, i.e., the wealthier sections use public health facilities more than the poorer sections of society. If the prescribed minimum standards are high enough to require both public and private establishments to upgrade their facilities causing greater parity, it might then end up worsening the targeting of subsidies to impoverished sections and enhance healthcare disparities. The same result would also occur if private establishments, finding themselves unable to meet the requirements, simply shut shop or move elsewhere.

The Indian Medical Association (IMA) which has consistently resisted state regulation, not surprisingly, came out against this particular effort also. As it alleges, this is, in a sense, a return to the license-permit raj with registration and inspection becoming potential focal points of corruption.

In conclusion, in a highly diverse country such as ours, I remain skeptical about a nationwide effort to bring uniformity through state-mandated regulation. The Act may well have some positive effects characterized by noticeable improvements in the urban private sector institutions. However, a full assessment must include the entire array of costs and benefits incurred by all constituent parts of the healthcare system as well as its participants. Only a few states have so far signed on to this initiative. If this remains the case, it may eventually provide an opportunity after it has been implemented (if at all it comes into effect), to examine, through comparative analysis, how effective it has turned out to be.

Thursday, December 20, 2007

Highlights of the Report on Gujjars' demand for inclusion in ST List

Justice Chopra Committee has submitted its report to the Rajasthan Government, and the summary of the report, (Chapter Nine) is available here.. Six months ago, the Gujjars' agitation almost paralysed life in North India. Their demand for inclusion in ST list, however, was never accepted, as it did not meet the criteria followed by the Centre. I have had the occasion to observe here that if only Rajasthan followed the example of Tamil Nadu and Kerala, and created a special category within the OBC list for Gujjars, their grievances could have been addressed effectively and the ground for voicing the demand for inclusion in the ST list might not have been there.

The highlights of the report are as follows:

1.Gujars in Rajasthan are a heterogeneous group. They are widely dispersed , and have varyingly adjusted themselves in the subcultures of the different regions of the State.
2. Barring a small group that lives in Bikaner, almost all Gujars claim to be the Hindus.The community is divided into several castes, with different degrees of assimilation into the Hindu fold.
3. Not all of the Gujars match the traditional stereotype of cattle grazers and shepherds.
4. Areas and villages that have good road-connectivity exhibit considerable dilution of primeval traits. They lead a harmonious co-existence with other castes and communities. Employment of the five criteria (see my earlier post)laid out by the Centre for such a heterogeneous group can only lead to a dead end. The five criteria are qualitative, and their quantification is difficult. Even the logicality of these five criteria is questionable.
5. It is the geography of the habitat that defines the sociology of deprivation. Replacement of caste by an area-based strategy seems to be the only way out.
6. The case of the rural Gujars particularly those inhabiting the most difficult and relatively unaccessible terrains,deserves not only verbal sympathy but positive affirmative action. They should not be further neglected by definitional cobwebs, and unimaginative legalities. The State should accord priority attention to them, by instituting special Development Fund to meet their genuine demands raising their quality of life and standard of living. Unless the children of these remote and isolated areas educate themselves reservation in government jobs or in political institutions, would have only symbolic value, and these benefits will naturally accrue to the most advanced sections of this umbrella group.
7. The criteria for inclusion in the ST list, evolved in late 1960s, are completely outdated. Thanks to the enormous social and cultural change that has occurred in the Indian society in the following years make these criteria inapplicable even for those groups who are part of the Schedule.
8. People living in Sawai Madhopur, Karauli, Dholpur, and Alwar living in the Dang area - that is, plateaus - undulating hilly slopes, and rocky plains, forests and ravines - amply represent primitive traits (isolation, traditional economy and away from modernity). These are the sites where most of the Gujars reside, sharing the poverty of the area, and thus obvious targets for the proposed affirmative action.
9. The area approach will not exclude those families that are poor and deprived, but do not belong to the Gujar community.
10. Solution to the problems faced by these people does not lie in meeting definitional requirements, and certainly not in the blind following of the criteria fashioned after the 19th century formulation of relatively ill-trained outside observers of rural and tribal India.

By suggesting a solution beyond the caste calculus, has not the Chopra Committee initiated a refreshing debate on how to address backwardness?

Monday, December 17, 2007

Further commentary on the Aravali Golf Club ruling

I thank Mr. Venkatesan for drawing my attention to pieces by two legal jurists in today's papers that adopt a critical perspective on the Mathur-Katju bench ruling. In some ways they echo points already made here, while outlining fresh points with much greater clarity and further context.

Justice Rama Jois - who apart from being a distinguished former Chief Justice of a leading High Court is also a familiar name to generations of law students by virtue of his text book that is prescribed reading in most Indian law schools- has a column in the Express that is critical of the Mathur-Katju bench for “crossing the lakshman rekha of judicial discipline.” He feels that by criticizing Supreme Court decisions that are still the law of the land, the Mathur-Katju bench has done grave damage to the reputation of the Supreme Court. Interestingly, Justice Rama Jois believes that the Mathur-Katju bench was justified in its criticism of the Delhi High court’s decisions.

Rajeev Dhavan, writing in the Mail Today, agrees partially with Justice Rama Jois’ claim but goes much further. In his words:

"What is a matter of worry is that Justice Katju has called into question the entire human rights and social justice jurisprudence evolved by the Supreme Court over the last 30 years."

Dr Dhavan’s views on this issue carry great weight because he has been among the earliest, most diligent and insightful scholarly commentators of the phenomenon of PIL. In recent decades, after he moved from academia to the trenches of the Supreme Court bar, he has been actively involved in several prominent PIL and constitutional cases as counsel and amicus. Here is his main argument, which ends up being quite a devastating critique of the ruling:

"The real problem with Justice Katju's shock treatment approach is two-fold. The first is that his remarks may have been appropriate for a speech but not for a judgement which has created chaos. The phrase “judicial terrorism” comes to mind. Second — and more important — Justice Katju fails to distinguish between “judicial activism” (which is permissible) and “judicial excessivism” (which is not). Judicial activism is inevitable. India has a forward- looking activist Constitution to impart human rights and social justice for all. Judges cannot shy away from fulfilling this dream for all people by inventing new legal techniques to ensure it. Without these techniques, the Constitution would become supine. No doubt there is judicial excessivism. The Jharkhand cases wrongly invaded legislative autonomy. The Forest cases cannot go on for over 10 years whereby the Supreme Court and its infamous committee have virtually become the Ministry of Forests. The Police and Sexual Harassment cases enacted law. Government by judiciary is questionable unless it is disciplined.

I believe such a discipline exists.

The Chief Justice wants to re-examine the principles of PIL. In my view, this would be a mistake. I was an amicus to the court in the Sudipta Majumdar case (1983) where ten questions were formulated to discipline PIL. Around 2000, on my advice, a Constitution bench declined to order straitjacket guidelines because it rightly accepted that guidelines were available. Judges should simply follow these existing guidelines. An assessment of PIL itself will open a Pandora's box, which is neither necessary nor desirable. Judges often make extra-judicial remarks. This one has flown over the cuckoo's nest."

Sunday, December 16, 2007

The CEC's Outlook Interview & the Symbols Order

I was appalled after reading the interview given by the Chief Election Commissioner, N.Gopalswamy on the course of action that the EC can take if they hold those accused of violating the Model Code of Conduct guilty. His answer to the last question in that interview is :
"The code has no legal force. It is a 'moral' code created by political parties in the hope that the polity would refine itself. The EC hasn't mandated it; it has merely been appointed as the arbiter. There is no punishment—only a rebuke is possible."

I don't think the CEC is unaware of Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968, and the E.C.'s powers under it. Surely, he is not suggesting that it is an illegal Order, even though it may not have enacted by Parliament. Does his interview suggest that the EC is willing to hurt, but not to wound, even if the matter involves a serious violation of the Code, and even threatens the possibility of a fair result? In any case, does not propriety demand that the CEC kept silence on this issue, till the three-member EC deliberated the matter?

The Paragraph, dealing with the power of the Comission to suspend or withdraw recognition of a recognsied political party for its failure to observe model code of conduct or follow lawful directions and instructions of the Commission, is self-explanatory. This Paragraph, added by the former CEC, T.N.Seshan during his tenure, on February 16, 1994, gives the EC the power to suspend or withdraw recognition, which means, it can withdraw the symbols allotted to the parties either temporarily or permanently. It can cause a huge damage to the party's prospects in the polls, throw the party into disarray. That was the objective of P.16A. That was the intended punishment for violating as solemn a code like the Model Code of Conduct. The code may be voluntary, lacking a legal status, but it is the essence of free and fair elections.

It may sound arbitrary, but let us ask why the E.C. was in such a tearing hurry to seek a reply from Narendra Modi, Sonia Gandhi and others in the midst of the election campaign? The E.C. even fixed a deadline for their replies. And when the replies reached, the E.C. is in no hurry to take the speed with which it issued notices to logical conclusion, either way. It appears, it has no deadline for itself to pronounce a decision. What prevents the E.C. to consider even suspension of the party symbols, if not withdrawal? If the E.C. thinks P.16A is a dead letter, then let it say so, and repeal it through another Order. If the E.C. is doubtful about its powers, let it at least test it out in this case.

Saturday, December 15, 2007

The aftermath of the Aravali Golf club ruling and an analysis of some of the initial commentary

TR Andhyarujina (who, as noted in this post, has written insightfully about PIL in the past) has an excellent column in today’s Indian Express which provides an objective assessment of the much-discussed ruling in the Aravali Golf Club case. He points out why the Mathur-Katju bench is right in raising its concerns, as well as the problems with the way it has done so. In doing so, he provides a lot of historical context which is worth recalling as this issue continues to be debated. The whole piece is an illuminating read. Here is how he ends:

The admonition of the two judges of the Supreme Court may cause problems in the PIL jurisdiction being exercised by high courts. Propriety required that the judges should not have commented on pending cases in the Delhi High Court as they have done. There are other areas in public interest litigation, which are still the legitimate function of courts which the recent judgment does not address and cannot be considered as hands-off for courts. How are courts, particularly the high courts, to exercise this jurisdiction now? One suggestion is that a larger bench of the Supreme Court should lay down authoritative criteria of the permissible and impermissible judicial interventions. Some time in 1983, a bench of the Supreme Court did make such a reference to a larger bench, but it remained in cold storage. To distil judicial power by rigid rules of conduct is not advisable but it may at least guide the future course of the action of courts in the vast and amorphous jurisdiction assumed by them in the name of judicial activism.

Here, Andyarujina recalls a quarter-century old precedent for this episode: in Sudipt Mazumdar v. Union of India, (1983) 2 SCC 258), a two-judge bench comprising Justices ES Venkataramaiah and S. Fazl Ali, created a minor furore during the early days of PIL when they passed an order raising fundamental questions about the new PIL jurisdiction being exercised by the Court. Here is part of that (in)famous order:

The following questions arise for consideration in the writ petition :

1. Should this Court take notice of such letters addressed by individuals by post enclosing some paper cuttings and take action on them suo motu except where the complaint refers to deprivation of liberty of any individual ?

2. Should such letters be sent to the Supreme Court Legal Aid Society by the Registrar with a request to examine whether there is any prima facie case which requires to be considered by this Court and if it is felt that there is such a case to file a formal petition against appropriate parties after collecting necessary material ?

3. Can a stranger to a cause, be he a journalist, social worker, advocate or an association of such persons initiate action before this Court in matters alleged to be involving public interest or should a petitioner have some interest in common with others whose rights are infringed by some governmental action or inaction in order to establish his locus standi to make such a complaint ?

4. (a) Can this Court take action on such letters though there is no prima facie case of infringement of any fundamental right ?

(b) Even in cases where a fundamental right is stated to have been infringed, can this Court take action on such letters where there is no allegation that the person concerned is kept in illegal custody ?

5. Can this Court take action on such letters in matters for which remedy can be had in ordinary civil, criminal or revenue courts or other offices on the ground that a number of people are affected ? To be precise, if the complaint contains an allegation of encroachment of lands of one group or tribe by another group or tribe, can this Court direct the District Magistrate or the District Judge to enquire into the matter and to make a report to this Court ? Or should the parties be given necessary legal aid and referred to a local court having jurisdiction over the matter ?

6. Can this Court take action on letters addressed to it where the facts disclosed are not sufficient to take action ? Should these letters be treated differently from other regular petitions filed into this Court in this regard and should the District Magistrate or the District Judge be asked to enquire and make a report to this Court to ascertain whether there is any case for further action ?

7. If after investigation, it is found that by such a letter a baseless complaint had been made, should not costs be imposed on the person who had written it? Can he be treated differently from others?

8. Should a petitioner who has an interest in common with others whose rights are alleged to have been infringed be exempted from paying court fees and from all other relevant rules of the Supreme Court when he writes a letter to this Court complaining about such infringement? Should all the relevant rules be suspended when a complaint is made through a letter?

9. If this Court can take action on such letters in such informal way, why should not the High Courts and other courts, authorities and officers in India also act in the same way in all matters?

10. Would such informality not lead to greater identification of the Court with the cause than it would be when a case involving the same type of cause is filed in the normal way?

Since these and other important questions arise for consideration in the above case, we feel that this case should be placed at this stage itself before the Constitution Bench to give proper guidelines on the various issues involved in it.

Clearly, some of these questions are still relevant, a quarter-century on. However, as Andhyarujina notes, these questions were never addressed by the Supreme Court, even though Justice Venkataramaiah went on to become Chief Justice, and theoretically had the power to convene a Constitution Bench to focus on these issues.

The question is whether the issues raised in the Aravali Golf Club ruling will meet the same fate as those outlined in the Mazumdar case. Today's Express carries a report which states that CJ Balakrishnan has decided to take up the issues raised by the Mathur-Katju bench for consideration. The report in the Hindu carries more details, and also quotes from the order of the Sinha-Bedi bench which referred the case to the CJI pursuant - and as a somewhat petulant reaction - to the Mathur-Katju order. The news-reports indicate that the CJI has posted the matter to February 2008. The immediate effect of this intervention by the CJI is to forestall further debate on the Aravali Golf Club ruling, and to provide some certainty, while also putting an end to the criticism of judicial adventurism. The message sent out, at least for now, is that both the Supreme Court and the High Courts can continue to admit and rule on PILs. This would also seem to take care of the concerns expressed by Andharujina in the extract quoted above.

There is, however, reason to doubt whether the Supreme Court will actually follow up on this seeming promise. Note that the matter has not been placed before a Constitution Bench, but will be decided by a three-judge bench, which may or may not directly address all the issues raised by the Mathur-Katju bench while deciding upon the facts before it. The ruling of a three-judge bench will not, in any event, carry the authoritative effect of a decision of a Constitution Bench. This therefore seems more like an attempt to soothe the feathers ruffled by the Mathur-Katju order, rather than a genuine effort to address the substantial questions raised in it. This may be because the questions raised both in Mazumdar and the Aravali Golf Club case are extremely difficult ones to answer. Furthermore, it may well be in the institutional interest of the Supreme Court to avoid giving precise answers to these questions. As Pratap Mehta has argued, ambiguity on these questions actually enhances the power of the Court. We will have to wait for a few months to find out what happens as a result of this extraordinary ruling.

Andhyarujina’s piece is to be contrasted with Barkha Dutt’s rambling, muddled piece on the same case in the HT. While she too provides interesting background context (especially on the political sensibilities which inform reactions to the case), her analysis of the legal issues involved (as well as their historical context) leaves much to be desired. Take the following paragraph:

Those who are impatient with an activist judiciary have caricatured it as the first refuge of the lazy liberal. And, admittedly, there has been an aggressive infiltration by the PIL-happy NGO army into the once robust world of high-minded law. Often, these petitions are absurd. Moreover, in a country where there is a backlog of 40,000 cases in the Supreme Court alone (and another 25 million in the lower courts) they are also a waste of valuable time and money. So, for the Punjab and Haryana High Courts to get involved in the internal workings of whether a golf club should create a driver’s post for a gardener is indisputably ludicrous.

This analysis betrays a fundamental misunderstanding of the Aravali Golf ruling, which was not a PIL, but a case initiated by justifiably disgruntled maalis. The P & H High Court was required to “get involved in the internal workings” of the Golf Club. Here is how the Mathur-Katju bench describes the facts of the case (see paras 4-5 of the judgment):

The brief facts which are necessary for the disposal of the present appeal are that the plaintiffs (respondents in this appeal) were appointed as Mali (gardener) in the service of the defendant-appellant, which is a golf club run by the Haryana Tourism Corporation in the year 1989 and 1988 respectively on daily wages. Subsequently in the year 1989 they were told to perform the duties of Tractor Drivers, though there was no post of tractor driver in the employers establishment. However for a number of years they continued to be paid wages for the post of Mali. Thereafter on a recommendation made by the Head Office, the appellants started paying them wages of tractor driver on daily wage basis, as per rates recommended by the Deputy Commissioner. Though they continued to work for about a decade as tractor drivers, their services were regularized against the post of Mali in the year 1999 and not as tractor driver. When despite representations their grievance was not redressed, the respondents herein filed civil suit in the month of April, 2001 claiming regularization against the posts of tractor driver. (Emphasis mine).

There is nothing “indisputably ludicrous” about the merits of the case filed by the maalis. While the single judge may have been somewhat injudicious in drafting his order, his action is not without precedent – courts very often require government departments to make adjustments to the designations and service perks where their actions are seen as giving rise to such expectations in employees. The maalis working in the Aravali Golf Club did have some cause to argue that they had been treated less than ideally by the Golf Club, and hence by the government.

That is why Andhyarujina refers to the case as “a minor case.” Indeed, as Bibek Debroy points out in his column analyzing this ruling, “It is conceivable to think of situations where natural justice might require such an order.”

I cannot help thinking that the Mathur-Katju bench made a miscalculation in choosing the case where it decided to take its stand. Their “unprecedented” call for a change might have had more persuasive effect if they had chosen a better vehicle to demonstrate the merits of their attack on judicial adventurism.

Thursday, December 13, 2007

A defence of the Broadcast Bill

Abhishek Singhvi, the national spokesperson of the Congress party, has a column in today's Hindustan Times where he seeks to defend the much criticized Broadcasting Bill. Posts about the bill on this blog (two of which can be accessed here and here) have tended to also be critical of particular aspects of the Bill.

Singhvi attempts to fend off criticism, but I for one remained unpersuaded, perhaps because less than half of the short column focuses on the actual criticisms of the Bill (some of which have been very pointed). Singhvi ends his column by asking readers to have more faith in the capacity of our mature democracy to strike the right balance. This, I thought, was a particularly unconvincing plea, considering how little of 'balance' one has seen in debates about public policy at the highest levels in recent times. I hope those of us who have more exposure to the intricacies of this area of the law will comment on the merits of Singhvi's defence.

Wednesday, December 12, 2007

Judicial Backlog : Focus on the Madras High Court, and a stimulating suggestion

The huge backlog of cases in the Indian judiciary has often cropped up in posts and discussions on this blog. Recently, this post incidentally mentioned Chief Justice Balakrishnan's Law Day speech where he provided details of the latest statistics relating to cases pending before various levels of the judicial setup. Sriram Panchu, a leading light of the Madras High Court bar, has an op-ed in today's Hindu which begins by focusing on the CJI's speech, and the numbers cited there. He then focuses more closely on the statistics to make the point that the High Court of Madras "does seem to have received stepmotherly treatment." He goes on to assert that:

Whether one takes pendency or fresh institution of cases, absolute numbers or percentages, the Madras High Court is disadvantaged. The Court with the second largest caseload and the biggest influx of fresh cases has the least number of judges. Every Court in this country needs more judges, and the purpose of this piece is not that other courts do not deserve to have increases in judge strength. Instead, it is to underscore the position in a major High Court, which seems to have been overlooked for no appreciable reason.

The rest of the piece makes good on this theme by citing statistics, and discussing the implications of the staggering pendency for the functioning of the High Court of Madras. Towards the end, Panchu raises a more general point of policy:

This situation must cause us to rethink the present system under which courts are dependent on the executive for funds for their infrastructure and functioning. Governments have various priorities, and can always plead shortage of funds (which seem ready at hand for populist causes). Politicians and bureaucrats are often at the receiving end of court orders and censures, and can hardly be expected to be generous when sanctioning budgets for the judiciary. Isn’t it rather strange that ministerial berths can be created at the drop of a hat, but judicial posts are being sanctioned, and filled, slowly? We need a different, more independent method of evaluation of judicial needs and speedier responses. Perhaps a National Judicial Commission, whose birth is long awaited, can perform that role.

Panchu’s argument appears compelling, and though judges have often made calls for greater allocation of funds in the annual Union budget, the linking up of this issue with the National Judicial Commission appears to be a novel suggestion, and may well be worth considering seriously.

Myriad responses to the Aravali Golf Club ruling: Not earthshaking, but significant

The previous post ended by speculating about the reactions of judges – especially those who are regarded as more ‘activist’ - to the caustic remarks of the Mathur-Katju bench on judicial activism in the Aravali Golf club case. Today’s papers are reporting a number of diverse responses from judges at the Supreme Court and the Delhi High Court.

At the Supreme Court, the reactions of pro-PIL judges has been swift, though different strategies have been adopted. The judges on the current bench who have recently been identified as favouring ‘activist’ approaches have most prominently been Justices Arijit Pasayat and SB Sinha, and it is interesting to note that both judges have reacted quite quickly and directly.

A bench consisting of Justices Pasayat and Sathasivam, while deciding a case relating to a labour/employment dispute, is reported to have reacted to the Aravali Golf case ruling as follows:

“The only thing in a judge’s decision binding (on) a party is the principle upon which the case is decided,” said the court, adding that it was important to analyse a decision and isolate from it the observations. Underlining that observations made by courts “must be read in the context in which they appear to have been stated”, the bench comprising Justices Dr Arijit Pasayat and P Sathasivam said: “Observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context.” While judges may embark on lengthy discussions to interpret words, phrases and provisions of a Statute, the court said, this was “meant to explain and not to define”. “Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes,” the apex court reminded.”

The Pasayat-Sathasivam bench is thus taking the technically correct stance that the observations of the Mathur-Katju bench on judicial activism were purely obiter. In other words, those observations were not necessary to decide the facts before the Court in that case, and do not therefore, have precedential authority for future cases. This is of course true, because, as we saw in the last post, the Aravali Golf case was a service matter and did not arise from a PIL; arguably, the facts there did not involve ‘judicial legislation’ at all.

A bench consisting of Justices Sinha and Bedi is reported to have taken a more aggressive stance (though some newspapers – such as the Telegraph - have misconstrued this as a cautious response). The Hindu describes the proceedings before that bench as under:

A two-judge Bench of the Supreme Court, dealing with a public interest litigation petition since 2004, has referred the matter to Chief Justice K.G. Balakrishnan for being posted before a larger Bench. It has apparently taken note of a judgment by Justices A.K. Mathur and Markandey Katju, who on Monday said the judiciary must show restraint.

The Bench, consisting of Justices S. B. Sinha and H.S. Bedi, was hearing the PIL petition filed by a non-governmental organisation, Prajwala, seeking guidelines for rehabilitation of victims of immoral trafficking after “they are rescued from brothel homes.” The court in 2004 issued notice to the Centre and the State governments and the matter was at an advanced stage of hearing.

When it was taken up on Tuesday, Justice Sinha told Solicitor-General G.E. Vahanvati, “In view of yesterday’s [Monday’s] developments which we came to know this morning,” larger issues were to be decided in this case and hence “we are referring it to the CJI.”

In essence, the Sinha-Bedi bench is pointing out the problem of a 2-judge bench having questioned modes that have become conventional methods in the Supreme Court. (In the comments section to the previous post, Dilip draws attention to this and the fact that unlike the US Supreme Court which sits en banc, our own apex Court operates essentially as a series of 10-12 co-ordinate courts sitting and deciding cases separately, although all such decisions are considered decisions “of the Supreme Court of India”).

By referring the matter to the CJI, the Sinha-Bedi bench is signaling the need for a coherent institutional response to the issues raised by the Mathur-Katju bench. This is also interesting because the case before the Sinha-Bedi bench appears to be of the kind which is the focus of the Mathur-Katju bench’s observations. Here are more details about the facts of the case before the Sinha-Bedi bench (from the Hindu's report):

The petitioner submitted that in the country over 23 lakh women and children were trafficked in for commercial sexual exploitation. More than 25 per cent of them were children. Giving details of how poor women and children were lured into the trade on the promise of a better life in cities, the petitioner said, “After the initial rape and the consequent exploitation in slavery-like conditions, the victim starts believing that this is her fate.”

The petitioner pointed out the problems faced by sex workers faced after they were rescued, and sought framing of a Victims Protection Protocol. There should be penal consequences for non-compliance by authorities and it should be made mandatory for the governments to incorporate guidelines on proper rehabilitation of sex workers. These would include putting in place a training-module to sensitise police, judiciary and government personnel involved in the rescue and rehabilitation of victims of trafficking.

The obiter observations of the Mathur-Katju bench appear to have caused considerable consternation among its other target audience: the judges of the High Court of Delhi. The Telegraph reports the reaction of Justice Mukul Mudgal as follows:

Justice Mukul Mudgal deferred a case relating to begging till February 8. He said he did not want to hear the case till he had seen the Mathur-Katju judgment. Several of the verdicts criticised by Mathur-Katju were Delhi High Court rulings, including some on begging, nursery admissions and demolitions.

Zee news reports that Justice Gita Mittal of the same court took a different approach (mirroring, in some ways, that of the Pasayat-Sathasivam bench):

Justice Gita Mittal rejected a submission made by DDA's counsel Rajiv Bansal that in view of the apex court's observation, the court should refrain from hearing the matter relating to constructions on the Yamuna banks. Justice Mittal, while rejecting the counsel's plea, said that nowhere the judgement had said that courts should not entertain the petition relating to violation of Article 21 (Right to Liberty). "Court cannot remain silent looking at the plight of the citizens and the pathetic conditions of the city," she observed, while reminding the counsel that court intervene when the DDA failed to discharge its duties.

As these diverse orders point out, reactions to the observations of the Mathur-Katju bench have been swift and pointed. While the substantive issues raised are not new, the way in which they have been raised is certainly novel. This episode also raises the question of how courts should go about correcting their course, assuming that there is consensus that such a correction is required.

Given these complexities, I for one was a bit surprised at the quick endorsement advanced by the editorial team of the Indian Express for the views of the Mathur-Katju bench. My own view is that the substantive debate, while important, may have to wait till the immediate problems caused by the Mathur-Katju bench’s gratuitous observations are sorted out. I remain doubtful if the course of action they chose to make their case was the correct – or justifiable – one.

Tuesday, December 11, 2007

A fresh round in the internal debate within the Supreme Court over the limits of Judicial activism

Today’s newspapers are devoting considerable attention to a recent decision of a division bench of the Supreme Court consisting of Justices AP Mathur and Markandey Katju. This is how the news-item in the Indian Express begins:

In the strongest censure of itself in recent times, the Supreme Court, admitting that judicial activism is disturbing the “delicate” balance of powers “enshrined” in the Constitution, has sent an unequivocal message to the judiciary: restrain yourself. And has even gone to the extent of questioning a slew of recent orders by the Delhi High Court — on several issues from demolitions to nursery admissions — calling them “illegal.”

The title of the report in the Hindustan Times reads: “Supreme Court raps Delhi High Court activism.” The report in the Hindu prefers to adopt a less sensational reporting style, and also opts for longer quotations from the judgment.

I tend to be skeptical of news coverage of important court decisions in India, and sought to read the full text of the judgment. Fortunately, the full text of the judgment in the case, titled Divisional Manager, Aravali Golf Club v. Chander Hass (“the Aravali Golf club case”), is available on JUDIS here. After reading through the decision, I cannot help thinking that the newspapers are justified in making a big deal of the decision, and its implications. There are indeed many singular aspects of this decision.

The facts at the heart of this case are seemingly innocuous and my first impression was that this was what is referred to as a “typical service” matter. The case arose out of an appeal from the decision of a single judge of the High Court of Punjab and Haryana in litigation relating to an employment dispute. The Supreme Court judgment is quite a short one, extending to 41 paragraphs. The Mathur-Katju bench sets out the basic facts and its decision on them (which consisted essentially of holding that the single judge of the High Court of P & H was wrong, and reversing his decision) in the first 16 paragraphs. The 'dramatic action' that is the focus of the news-reports begins at para 17, which reads as follows:

17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.

In paras 18-40, the Mathur-Katju bench expands on this theme, and draws upon an eclectic array of sources (prior decisions of the Indian Supreme Court; a quotation from Montesquieu; the views of retired Chief Justices, JS Verma and Anand; and several U.S. Supreme Court decisions) to buttress its central argument. In the process, as emphasized in the newreports, the Mathur-Katju bench called into question specific decisions of the High Court of Delhi (at para 27) and two decisions of the Supreme Court (at para 28, referring to the Jagadambika Bal and Jharkhand assembly cases).

The Mathur-Katju decision should be viewed as a follow-up to Justice Katju’s decision in the Bisht case (May 2007), where he had outlined a similar argument, relying at times upon the similar reasoning and the same sources (see this previous post which provides further details about the case). The Bisht case saw a spirited dissent by Justice Sinha; this time around, Justice Katju seems to have found a sympathetic ally in Justice Mathur.

What is unusual about this case is that a division bench of the Supreme Court has, arguably without justification or cause (since the case before the Court had no factual or direct legal connection to the Supreme Court decisions that were disparaged), called into question the correctness of larger bench decisions of the Supreme Court. This is the aspect that is focused upon in this news-report in the HT, where, ironically, former Chief Justice Anand is quoted as expressing disapproval of the ruling in the Aravali Golf Club case on this score.

Another striking feature of this ruling in the Aravali Golf Club case is that it calls into question the validity of several decisions of the High Court of Delhi (the HT has this short piece identifying these cases in greater detail), some of which are, to my knowledge, still pending. Once again, the facts that gave rise to the decision in the Aravali Golf Club case have no clear connection to the decisions of the High Court of Delhi that were criticised in it. While the Supreme Court is fully entitled to castigate the reasoning in decisions of High Courts that are properly before it, the wisdom of offering unsolicited advice on the legality of decisions of High Courts that are either being implemented or have not yet being challenged on appeal, surely is questionable, to say the least.

There is, therefore, considerable irony in the fact that the Mathur-Katju bench, in making its case for judicial propriety, is itself open to the charge of having breached judicial norms. Justice Katju is fast emerging as the outspoken judicial critic of ‘activism’ among the current generation of Supreme Court judges. In doing so, he carries on a long tradition, that dates back to the earliest years of the history of the Supreme Court. Whatever one thinks of the merit of his views, the mode that he (in common with Justice Mathur) has chosen for expressing his views is generating a fair bit of controversy. In the past, Justice Katju has used extra-judicial fora to express his controversial views that are somewhat out-of-step with mainstream judicial thinking (see this post outlining his relatively bold views on current contempt laws). One may wonder why he did not choose a similar vehicle for expressing his views here - while they would still have generated controversy and debate, the reasons would have more to do with their substance than with the process concerns that dominate here.

The judges who decided the two named Supreme Court decisions in the Aravali Golf Club case have since retired. I suspect that the real focus of the Aravali Golf club case is upon decisions that continue to emanate from the Supreme Court while exemplifying the judicial philosophy which the Mathur-Katju bench is strongly critical of. It will, therefore, be interesting to follow the reactions of other judges to this ruling, especially of those who see themselves as constituting the more 'activist' members of the Court.

Sunday, December 09, 2007

Narendra Modi -Sonia Gandhi spat: Limits to how Election Commission can intervene

There are limits (read self-imposed) to what the Election Commission can do with regard to its powers to stop an ongoing corrupt behaviour of candidates to secure votes. Currently, the E.C. is examining the reply sent by the Gujarat chief minister, Narendra Modi to its notice sent on December 6 seeking his explanation on his alleged violation of Model Code of Conduct. Specifically, the E.C. pointed to his speech at Mangrol on December 4, and the complaint that it amounted to open exhortation to violence and misuse of religion for political ends, and so violative of the MCC. The EC also recorded its prima facie view that references to the late Sahrabuddin (who was killed in a fake encounter in Gujarat, and which incident is being probed under the direction of the Supreme Court), and linking his name to terrorism, made in the speech, amounts to indulging in activity which may aggravate existing differences , creating mutual hatred, and causing tension between different communities, and would involve violation of clauses (1) and (3) of Item I of the MCC.

In his reply to the E.C. Modi has admitted that he said the following:

Modi: You tell what should be done to Sohrabuddin?
People at the rally: Kill him, Kill him.

Modi denies he said the following, which has been attributed to him in the media reports, and which is not there in the video-recording of his speech, sent to the E.C.

Modi: Well, that is what I did. And I did what was necessary.

Modi’s other defences are as follows:

*That he is entitled to his right of free speech and reply to political opponents.

*His political opponents used expressions such as “merchants of death” and “Hindu Terrorism”, and despite complaints by the Gujarat unit of the BJP, the E.C. has not so far taken any action.

*E.C.’s obligation to conduct free and fair election will not extend to preventing him from expressing his strong views against terrorism.
* That he has made a reference to the Sohrabuddin’s case and mentioned the allegations against him, and that he accused the Congress of suggesting that he had engineered a fake encounter. He did not justify the specific encounter of Sohrabuddin’s case. He did not explicitly refer to the religion of any person.

Q.1: Is Modi’s reply acceptable?

If one accepts Modi’s reply on the face of it, this is what he should have said at the meeting:

Modi: The Congress accuses me of engineering a fake encounter in the Sohrabuddin’s case. Do you believe in it? (To which the crowd could have responded saying No). Had he said this, then there would not have been any problem and the E.C. would have no option but to accept his defence.

Modi’s very question to his audience – and the response it elicited from the audience – and the fact that he did not correct the audience’ response immediately - suggests that he believed Sohrabuddin was a terrorist and that killing was a natural response to such terrorists. What Modi denies having said, is something which can be easily inferred, even without his saying it.
While considering speeches, it is not what the exact words used by a speaker which must be considered, but their total effect on the audience.

Q.2. Did Modi violate Model Code of Conduct?

A: I would tend to agree with Modi that he did not intend to refer to Sohrabuddin’s religion, and therefore, did not violate MCC.

Q.3 But did he contradict his Government stand in the Supreme Court on the Sohrabuddin matter?

A: One would certainly think so. But it does not involve violation of the MCC, and therefore, no corrupt practice. The interview given by Mr.K.T.S.Tulsi to Tehelka makes it clear, he was not taken into confidence by Modi on this.

Q 4: Now, what are the E.C.’s options?A: Send notices to Sonia Gandhi and Digvijay Singh on the basis of the BJP’s complaint: This is the safe option, as it would help to cool the political temperature. Digvijay Singh has denied that she used the remark “merchants of death”, to accuse Modi personally, and therefore, there is no violation of MCC. He may well be correct. But E.C.’s linking these two notices, makes no sense. The E.C. must take an independent decision on Modi’s reply. The linkage is not explicit, but obvious. The notices are here.

B. Hold Modi guilty of violation of MCC. Possible, on the basis of its prima facie opinion. However, as Modi has said he reserves his right to give a detailed specific reply to the notice later, no immediate punitive action is possible by the E.C. even if it is dissatisfied with his preliminary response.

C. Reprimand both Modi and Sonia and close the matter: Very likely, as the E.C. had never taken any punitive measures against those held guilty of violating MCC.

Q. 5: Does it mean, if Modi or Sonia are indeed guilty of corrupt practices under the R.P.Act and the IPC, no remedy is available?

A: R.P.Act helps an aggrieved person to approach the court after the election is over, and the damage is done. IPC can help to register cases even during the elections, but unlikely unless the EC forms an opinion, and wants an investigation to further proceed in the matter. The particular example being cited by the complainant, the speech in which Modi is alleged to have appealed to communal feelings or that his speech might have aggravated in mutual hatred or tension between different communities may well be an offence under the RPA, but this seems to be a stretch , as his focus appeared to be on terrorism, and he did not make an allusion to Sohrabuddin’s religion.

Q.6: Could Modi's speech be construed as open exhortation to mob violence and vigilante justice?

A: One can't rule it out, because he did not care to correct the audience's response to his question. The other view that both Modi's question and audience response must be understood in the context of the campaign, and therefore, nothing much must be read into it also appears to be sensible.

Wednesday, December 05, 2007

Trial Court judgment in the Uphaar Tragedy: "A Much Needed Precedent"

The quotation marks in the heading of this post refer to the title of a recent EPW editorial, which begins as follows:

The judgment delivered recently by a Delhi sessions court that upholds the guilt of the 12 accused in the Uphaar cinema tragedy sets a much-needed precedent. The judgment proves vital in that, on the one hand, it exemplifies how a sustained campaign by the people, as seen in the struggle waged by the Association of the Victims of Uphaar Tragedy (AVUT), can propel the justice machinery, on the other, it draws attention to the need for closure in instances of similar other disasters, where public safety has been deliberately given short shrift. On June 13, 1997, 59 people, several of whom were children, died mainly of asphyxiation, after a fire caused by a poorly functioning transformer broke out in Delhi’s Uphaar theatre, during the screening of a film; in addition, 103 persons sustained grievous injuries. The wait for justice has been pro­longed, and has been possible because of the unflagging cam­paign waged by the AVUT that was formed within a fortnight of the tragedy.

An initial committee of inquiry headed by a deputy commis­sioner, Naresh Kumar, and later a Central Bureau of Investigation probe established the culpability of several players, including six from the government, i e, from the Delhi Vidyut Board, the Municipal Corporation and the Delhi Fire Service. The Naresh Kumar report in its every detail has convincingly shown how building by-laws, electricity norms and rules ascribed by the Cinematograph Act 1952 were violated. Along with four theatre employees, the court, in its judgment of November 20, held these government officials guilty of “culpable homicide”, as they had issued no objection certificates (NOCs) permitting several ille­galities such as the construction of a mezzanine floor, the block­ing of exits so as to add to balcony seating space, and locating the transformer in the theatre’s parking space. The Ansal brothers, Sushil and Gopal, too have been held guilty, albeit of lesser charges, i e, of causing “death by negligence”. The Uphaar verdict has seen several legal twists and turns. Victims of the tragedy are agitated about the “lesser” guilt imposed on the Ansals, but to pin responsibility on powerful corporations remains difficult.

The editorial goes on to place the case in the context of other recent cases, while also setting out problems with our Indian legal system that seem all too familiar:

In being a first in several ways, the verdict also has familiar echoes with judgments received in the recent past – the Jessica Lall and the Priyadarshini Mattoo cases in particular – where the call for justice was driven by well-organised middle class protests against entrenched apathy and callousness. And while the plight of the mainly poor victims of the Bhopal gas tragedy of December 3, 1984 has been highlighted by associational groups of the victims, Dow Chemical Company, which has inherited Union Carbide’s liability for the Bhopal legacy, persistently denies its responsibility. The long-delayed process of compensation remains riddled with problems: the lok adalats have been accused of corruption and the compensation amount, as survivors’ groups have pointed out, has been too little to take care of severe health problems or those that have manifested themselves years after the tragedy.

Several newspapers have carried stories about the valiant struggles of the family members of those who died in the Uphaar tragedy. In my view, the best account of this is to be found in a detailed article in a recent issue of Tehelka, which not only documents the heroic elements of this story, but also focuses on the legal strategy employed by AVUT. (This is also an opportune time to put in a plug for the new, improved version of Tehelka, which continues to provide some of the most insightful and critical commentary on contemporary events in India). The Uphaar case is by no means over, as both the AVUT and the lawyers for the Ansals have promised to take the case up on appeal.

Apart from other issues, this case points to the persisting problem of delay in our legal system. On the occasion of Law Day (which falls on November 26), the head of the judicial system in India, Chief Justice Balakrishnan, sought to directly address this problem (among others) in his annual speech that is by convention delivered on the lawns of the Supreme Court. Another speech addressing the problem of delay in delivering justice that was delivered, interestingly enough, in China, is available here. Though these speeches cover well trodden paths (and arguments), they provide interesting insights into the manner in which the officials at the helm of our judicial system perceive and respond to the problem, while also providing details about new and proposed initiatives.

These links are from the website of the Supreme Court of India, which has started making a lot of interesting information available to the public, including a regular newsletter called “Court News.” The latest issue of this newsletter provides information about appointments as well as the exact number of cases that were "disposed off" as well as those that are still pending at every level of the judicial system for the period between June-September 2007. These initiatives are to be welcomed, and one hopes that the Court (as well as the judicial system at large) will take further steps to improve transparency about the inner working of this vital wing of government.

Update, Dec 06: In the speeches linked above, CJ Balakrishnan seeks to present a picture of an understaffed, overworked judiciary that is striving to tackle the ever-increasing number of litigated cases. This image would be rendered more credible if the facts set out in this newsitem, which mentions that at present the Supreme Court has only 176 working days in a year, were changed (link to the newsitem via Nanopolitan). The CJI's argument would certainly apply to the High Courts and lower courts which are woefully understaffed, but this has not been true at the Supreme Court itself for some time. Recent issues of 'Court News' bear out the depressing fact that cases pending at the Supreme Court are increasing because the number of cases instituted consistently outpaces those decided. This situation calls for more drastic solutions, and reducing the large number of holidays at the apex court would send out a strong signal to the rest of the system, while also demonstrating good leadership by showing a willingness of those at the highest level of the system to subject themselves to harsher working conditions.

It may also be a good idea to compile and distribute (in future issues of 'Court News' for starters) information about the workload of individual judges (at the Supreme Court, for starters). Many other apex courts around the world release such figures, and academics study them to analyse individual voting behaviour of judges, as well as larger trends on specific subject areas. Providing such information publicly will also act as a more effective check on those judges who are falling behind, while acting as an incentive for those who carry more than their share of work.In the past, Rajeev Dhavan has compiled such information about the Supreme Court, but his writings on this issue always note the difficulty he experienced in obtaining such figures.