Tuesday, December 30, 2008
2. Nick Robinson, our co-blogger, in this stimulating and well-argued piece suggests that the reason for the huge backlog of cases in the Supreme Court is the number and type of cases it accepts rather than the number of judges.
3.My review of Zoya Hasan's Politics of Inclusion: Castes, Minorities, and Affirmative Action. and why I think the book makes a key contribution to the debate on equality.
4. M.J.Antony says complex questions have been referred to larger benches but they have lapsed from memory in this review of the Supreme Court in 2008.
5.A.G.Noorani says in this essay on Pakistan's burden that international law imposes an unqualified obligation on Pakistan to punish the conspirators behind the Mumbai attacks. AGN also offers a critique of the CJI's speech on terrorism, both on facts and reasoning.
Monday, December 29, 2008
Creating ‘Informal’ IP Norms
Current intellectual property (IP) regimes are excessively formalistic in their orientation. Not too surprising, given that their creation and sustenance has largely been the preserve of lawyers trained in formal legal thought, with little input from other disciplines such as science, sociology or economics.
One watches with deep anguish as such regimes take on a life of their own, forgetting the simple yet hard truth that they are not ends unto themselves, but are mere means to help serve a greater end, i.e., fostering more innovation and creativity. In other words, patents are valuable to us only to the extent that they help engender more innovations for society.
Not only are IP rules excessively formalistic in their orientation, they also cater largely to what one might term as the “formal” economy. In other words, there is an assumption that innovation is the sole prerogative of a lone inventor who does her research within the closed walls of a formalistic entity that we call the “corporation”. Similarly, copyright norms are premised on the assumption that content creation is the preserve of artists and writers who tie up with big media giants and publishing houses.
A close look at the nature of our economy today, characterized by Web 2.0 and the vast social/ collaborative networks built on it leads one to seriously question the above assumptions.
Illustratively, the open-source movement has opened our eyes to the fact that an informal network of programmers can bring us highly innovative and free software products of a kind never thought possible under a proprietary model where coding was controlled by a single corporation and products placed on the market at monopoly prices. Such collaborative/democratic/user innovation models are now being attempted in other technology areas such as biotechnology and pharmaceuticals. And they are bound to succeed, given that innovation is not a formal or linear process directed by a lone inventor, but a social process involving a multitude of different actors.
Indeed, India’s very own Council of Scientific and Industrial Research (CSIR) is now attempting to leverage an online collaborative model to come up with a new drug for tuberculosis (TB). That the gold standard for TB is a drug from the 1960s and that we haven’t had any major breakthroughs since then leads one to seriously question the current IP model around drug innovation; a model that brings us fewer innovative drugs each year and more me-too versions.
In the context of copyright law, the rise of user-generated content has thrown archaic copyright norms into serious question. Content is being created and posted on social forums such as Facebook and YouTube at a pace that might soon rival the speed of light. Similarly, content is shared between millions of users through several online platforms such as BitTorrent and LimeWire.
In the specific context of India, where almost 90% of the economy comprises the “informal sector”, the above truths hold even greater sway. The National Innovation Foundation, run out of IIM Ahmedabad, has compiled more than 50,000 innovations belonging to the rural “informal” poor and virtually demolished the assumption that innovation is the preserve of the rich and the “formal”. But merely identifying such innovative potential in India’s villages, often referred to by Mahatma Gandhi as the “real India”, is not good enough. One has to do more in terms of coming up with norms that help these poor communities leverage their creativity.
Newer IP regimes in India, such as the protection of geographical indications and plant varieties, throw the relevance of “informal communities” into sharper focus, dealing as they do with communities of farmers and artisans. Similarly, as India moves to devise norms for protecting and leveraging its ancient “traditional” and indigenous knowledge, it will again have to cater predominantly to informal communities that live on the fringes of the existing IP regime.
This regime, largely a Western heritage gifted to us by our colonial masters, and further entrenched with the help of an inequitable international instrument called TRIPS, is very “individualistic” in tone and focuses specifically on identifiable inventors and authors. This sits in sharp contrast with the “community” focus in India, where things like traditional medicinal knowledge and folklore have no clearly identifiable authors or inventors, but have been preserved by indigenous communities over hundreds of years.
Let me end this note by highlighting a paradox that characterizes IP regimes. Since their inception, most such regimes have been fairly static in their orientation, and have failed to reflect any “innovation” and “creativity”, the very same values sought to be encouraged by such regimes.
India has demonstrated its potential for innovative IP norms by articulating section 3(d) in its patent regime, a section that helps balance pharmaceutical patent protection with the need to preserve access. Given the importance of our informal economy, can we take this opportunity to innovate within this space as well by conceptualizing a set of “informal” IP norms?
Sunday, December 28, 2008
The 215th Report recommends that L.Chandra Kumar judgment of the Supreme Court be revisited by a larger Bench. In 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar [JT 1997 (3) SC 589] held that clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower Parliament to exclude the jurisdiction of the High Courts and the Supreme Court under articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of articles 323A and 323B would, to the same extent, be unconstitutional. The Court held that the jurisdiction conferred upon the High Courts under articles 226/227 and upon the Supreme Court under article 32 of the Constitution is part of the inviolable basic structure of our Constitution. All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls.
According to the Law Commission, the power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court. The very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before the concerned High Courts. If one appeal is considered to be a must, an intra-tribunal appeal would be the best option, and then the matter can be taken to the Supreme Court by way of special leave petition under article 136, says the report.
The LCI's 216th Report is on “Non-feasibility of introduction of Hindi as compulsory language in the Supreme Court of India”. The Report is a response to the recommendations of the Parliamentary Committee on Official Language. The LCI has revisited the highly emotive issue of language, to reject the Committee's recommendation. The LCI could as well have recalled the tumultuous events of 1960s against imposition of one official language in the entire country, and the Prime Minister Jawaharlal Nehru's promise that English will continue as long as people in South India want it. It is strange how the continuance of English is linked to the integrity of the Indian judicial system. There are instances in the Supreme Court when petitioners are allowed to argue their cases in their mother tongue, with arrangements to translate for the benefit of the Bench, but it is English as the medium of the language of our Courts, both in oral, and written arguments, and in the judgments, that has enabled any advocate from any part of the country to argue in any High Court and the Supreme Court.
Both the Reports thus deserve a close scrutiny.
Saturday, December 27, 2008
1. The new section 41 appears to drastically reduce the power of the police to arrest without warrant. The main difference appears to be that mere suspicion as a ground for arrest has been done away with, and there seems to be an emphasis on the 'credibility' of information received which will justify arrests. There are also some reason-recording obligations while making arrests. To what extent will these new obligations be judicially enforceable?
2. The list of offences compoundable without requiring judicial permission appears to have been significantly enlarged in the new section 320.
3. Many other provisions, including video-recording of statements appear to be far-reaching.
Of course, given the institutional set-up of the police, what difference these changes will make in practice in the absence of wider police reforms at the state level is questionable. But it is interesting to note at least some transparency measures (recording of reasons, video-recording etc) being mandated by Parliament through criminal procedure.
UPDATE: In this Mint story, some former women Judges voice their opposition to the quota proposal.
Tuesday, December 23, 2008
Writing in yesterday’s issue of the Hindustan Times, Ajit Doval, a former Director of the Intelligence Bureau, shares his thoughts on the Mumbai attacks. His views, perhaps in keeping with those of many within the law and order establishment, support calls for harsher anti-terrorism laws. On the issue of admissibility of confessions, he raises the following question:
In the defensive mode, strong anti-terror laws — substantive and procedural — are necessary. It is gratifying that the government has almost re-enacted Pota. However, in the proposed new law, inadmissibility of disclosures made before the police remains a lacuna. How can the police get evidence of the planning, preparation and logistics that lie beyond their reach and jurisdiction? Making admissions even before senior police officers inadmissible will only help the terrorists.
How can a society unwilling to trust its police against a foreign terrorist expect a policeman to lay down his life to protect it?
The emotive question posed by Doval appears, at first glance, to be unanswerable. Shrimoyee Ghosh, a trial lawyer based in Delhi, has an op-ed in today’s Indian Express which seeks to answer this precise question (although her response is more directly prompted by a recent column by Vinay Sitapati that was discussed on the blog here).
Ghosh examines the question in its historical context and sets out how the colonial authorities put in place the foundational structures for the Indian police:
Common law (non-codified English law) rules of evidence were first enacted as statute in the Indian Evidence Act, 1872. Interestingly, the Act makes a significant departure from its predecessor, making confessions inadmissible as evidence. To understand this, one has to look at how the history of policing in India is inextricably tied to torture. The Madras Torture Commission 1858 (constituted to investigate allegations of widespread torture by revenue officials and policemen) drew attention to torture as a structural problem of Indian policing rooted in the native policeman’s “inherent” savagery. The report was premised on a rule of racist difference: natives were incapable of understanding the British ideals of fairness and rule of law, and must be organised into a highly centralised force with little discretionary authority at lower levels, but with vast amounts of brute force: to arrest on suspicion, preventively detain, conduct searches and seizures. The Report resulted in the reorganisation of the police in the Madras Presidency, a model for the colonial police organisation throughout British India. Unsurprisingly, the reorganisation did little to alter the routine use of torture as a method of investigation, punishment and colonial control. The Evidence Act’s disallowance of police confessions viewed in this backdrop is a reflection of both the colonial distrust of the policeman, and the systemic way in which brutality is ingrained in the police force, so as to render confessions before it worthless as evidence.
The unfortunate truth is that the Indian police system was designed to allow torture to routinely happen. This consciousness permeates our everyday language: ‘Remand lena’ in Hindi slang is to give someone a thorough thrashing. Pitiful as it is, the bar on police confessions is among the few safeguards against torture in the absence of complete police reorganisation. While it may be technically possible to prosecute a policeman for extracting a confession unlawfully, provisions for prior government sanction and immunity further perpetuate a culture of impunity that is virtually impossible to permeate. But the problem with allowing police confessions is not merely that it ‘incentivises’ torture. Torture happens in India today, even whilst police confessions are inadmissible. The greater danger is that it incentivises police complacency and bad investigation. The lack of a rigorous jurisprudence for testing the veracity and voluntariness of confessions creates a situation where the confessional statement becomes the piece de resistance of the police case, and an excuse to ignore the need for collecting other evidence that will stand judicial scrutiny.
She then goes on to argue that incorporating such a measure would in fact be counter-productive in successfully prosecuting crimes of terrorism:
… … … Any evidence, including confessions, obtained in violation of procedure is inadmissible. While upholding the constitutionality of TADA police confessions, the Indian Supreme Court laid down safeguards to ensure their veracity. These have been progressively diluted over the years. For instance, in the Devendra Pal Singh case, a confession by a handcuffed TADA detainee surrounded by armed guards, made on the last day of his police remand, was still held to be admissible.
Moreover, confessions made to the police can be retracted. Before a Court of law detainees can (and do) argue that the confessional statement was coerced. When a confessional statement is retracted, as it is in a staggeringly high proportion of cases under TADA and POTA, the entire police case falls apart, because the confessional statement is all they have bothered to get as evidence. In our eagerness to ‘use any means necessary’ to tackle terrorism, we may actually be taking a step that is deeply inimical to effectively prosecuting the terrorists themselves.
Also relevant in the context of considering the question of how much we should trust the police, is this editorial also in today’s issue of the Indian Express, commenting on the encounter killings in Warangal earlier this month.
The police officers involved in the encounter have been treated as vigilante heroes, and mobbed by autograph seekers. Firecrackers were burst in celebration, sweets distributed, and a victory procession converged at the house of the police superintendent. This adulation is not unprecedented: across India, there is tacit public and political approval for encounter killings. The cult of the “encounter cop” owes its origin to the perceived need for the police to show “results”, and to a public weary of hardened criminals jumping bail. Both cops and laypersons share an impatience with the criminal justice system that they feel is simply not working: it takes too long to punish the guilty, and the accused often escape through a sieve of loopholes.
But to solve an error with another is merely to compound it. Our judicial system, however creaky, needs wide-ranging and long-term reform. Encounters, far from solving anything, create their own problems. Freed from any safeguards, some cops become laws unto themselves, as the arrest of some “encounter specialists” in Mumbai has shown. Encounters also wreak long-term damage by diminishing public confidence in our criminal justice system.
On a separate note, much of the discussion on the blog has focused on the recent amendments to the Unlawful Activities (Prevention) Bill. Analysis focusing on the other bill creating the National Investigation Agency Bill has been relatively scarce. Here is a column by Chakshu Rai of PRS Legislative Research setting out the scheme and main provisions of the NIA. He points to a possible lacuna in the scheme:
Many of these provisions are widely seen as steps in the right direction. However, these Acts focus on investigation and prosecution after acts of terror are committed. They do not address the issue of intelligence that could help pre-empt terrorist attacks. Press reports suggest that the Mumbai events were not prevented, partly due to a lack of coordination between various agencies. This lacuna will continue to persist. The government has not provided Parliament with the likely expenditure required to implement these laws. The financial memorandum of the NIA Bill states that: “it’s difficult to estimate the exact amount of expenditure required in setting up the agency”, and provides for a token amount.
Monday, December 22, 2008
Previously on this blog, we carried a summary of Sen's talk at Harvard Law. There, among other things, the Nobel laureate discussed the complimentary, yet duelling, concepts of nyaya and neeti. In simple terms, nyaya refers to outcome-oriented justice, while neeti is the concept of rule-based law. Yesterday, Sen returned to this theme in his lecture to an alumni conference at the IIT-Madras, where he makes an impassioned plea for nyaya-based outcomes. The full text has not yet been posted on the IIT alumni association's website, but here is a good summary from this morning's Hindu. I wonder to what extent modern Indian constitutional and legal jurisprudence is nyaya, rather than neeti in its orientation and outlook.
Sunday, December 21, 2008
Taken together, the Daedalus and the LAT articles articulate her concern that stereotyping of Muslims in India is as bad as racial profiling in the U.S. Her view of decent patriotism is based on her belief that national sentiment can play a valuable role in creating a decent world culture. She identifies five attributes of decent patriotism. The first is constitutional rights and independent judiciary. Second is a separation of powers that makes going to war more difficult. She wants war-making powers should reside in the legislature, and executive authority to initiate and continue wars should be severely contained. Third, she wants firm protections for the rights of legal immigrants who are not citizens, and decent arrangements for illegal immigrants. Fourth, getting the good out of a purified patriotism requires education about foreign cultures and domestic minorities. For example, she says if schools in Europe and the U.S. were doing their job teaching people aout the varieties of Islam, the current atmosphere of panic would be far more difficult to sustain. Finally, according to her, purified patriotism requires a vigorous critical culture, and protection of freedom of speech and dissent.
Unfortunately, she says, both India and the U.S. have recently taken a turn from the purified toward the malign form of patriotism. Saying that patriotism today shows her Janus-faced nature in India, she cautions that decent patriotism faces strong opposition from the malign patriotism of "Bande Mataram". Acute fear, she says, has typically led Americans to characterize the nation in narrow and exclusionary terms.
She concludes that patriotism in and of itself is not a good thing; often indeed it is a very bad thing. What she has argued, however, is that a nation that pursues goals that require sacrifice of self-interest needs to be able to appeal to patriotism, in ways that draw on symbol and rhetoric, emotional memory and history - as Lincoln, King, Gandhi and Nehru all successfully did. Her last sentence underscores the need to appeal to emotion and imagination, even while pursuing decent patriotism. If the advocates of decent patriotism (as when a nation pursues both internal justice, characterised by economic equality, and justice for minorities, and the goal of global justice)eschew symbol and rhetoric, fearing all appeals to emotion and imagination as inherently dangerous and irrational, the Right will monopolize these forces, to the detriment of democracy, she warns.
The recent Parliamentary initiative to strengthen the domestic anti-terrorism legal regime in the aftermath of the Mumbai attacks is justifiably attracting extensive commentary and analysis in the media, and on this blog. Today’s Indian Express carries columns by Meghnad Desai and Soli Sorabjee which, despite their brevity, provide interesting insights. Both of them have extensive experience with such measures in the past. More recently, Meghnad Desai was a member of the British Parliament when some crucial post-9/11 legislative initiatives were introduced (which form the basis of the analysis in his column). Soli Sorabjee was the Attorney General for India under the BJP government from 1998-2004, was probably involved in drafting POTA, and successfully defended the validity of POTA before the Supreme Court in PUCL v. Union of India [(2004) 9 SCC 580].
After briefly recounting his relevant experiences in the British Parliament, Desai states, echoing concerns raised by others, that he is
mystified by the way in which the Indian Parliament can pass an important Bill in just two afternoon sessions, after ‘Second Reading’, i.e., general waffly speeches. There seems to be no detailed scrutiny and the Executive pretty much gets its way. Speed, however, is not a guarantee of effectiveness. The only time we suspended our procedures and passed an anti-terrorism bill in a single seating was after the bombing in Omagh in Northern Ireland which had killed 250 people. The Bill proved to be completely useless and indeed one of the retired Law Lords said as much during the passage of the Bill. The law just passed by the Indian Parliament is unlikely to survive a PIL which challenges its violation of human rights.
On this last point, Desai seems to be unaware of the Supreme Court’s less-than-robust record on such laws. On the last two occasions when such laws were challenged before the Court (in the Kartar Singh (upholding TADA) and PUCL (upholding POTA) cases, the Supreme Court, in contrast with its vigorous questioning of Parliamentary policies on other issues, quite meekly endorsed the stance adopted by the government on most of the controversial questions involved. At least based on previous precedents, it is doubtful if the Supreme Court can be expected to strike down the recent changes. (Aditya Swarup, a regular commentator on this blog, has a detailed post urging the Supreme Court to reconsider aspects of its ruling in the Kartar Singh case in order to question the recent amendments made to conditions of bail). Whether this particular Supreme Court will take on the current government, at this point of time so soon after the Mumbai attacks is a far more open question than Desai recognizes.
Desai goes on to assert what should, in his view, be the real focus of anti-terrorism efforts:
The problem is not having a new law but improving counter-terrorist practice. There is immense laxity in how evidence is gathered and indeed broadcast. … …. … Counter-terrorism can be tough as long as the personnel are well-resourced and co-ordinated. There has to be a lot of preventative work which cannot be in the public domain. In the UK, when houses are raided to arrest suspects, even their names are not released till they are presented before a judge. It reduces the likelihood of other terrorists being warned off and strengthens the police case. The public also has to be trained to be aware of risky items like unattended baggage, as we have been in the UK during the last 40 years of terrorist attacks. Also, all political parties have to agree that fighting terrorism is a national priority and not a party political game.
Sorabjee begins his analysis by commending the UPA government for the “much belated, tough anti-terror legislation which is sorely needed because extraordinary times require extraordinary laws.” I am struck by the similarity between this, and the far more sarcastic comments of Arun Jaitley, contending that such measures were overdue. Both figures seem to have forgotten how much public antipathy had developed against POTA, and the enormous pressure that had built up leading to its repeal. My sense is that both these figures must have been pivotal figures in the drafting and enactment of POTA (if my understanding is correct, they were the Attorney General and Law Minister at the relevant time), and perhaps this colours their view of the controversial law.
Sorabjee is justifiably revered amongst the human rights community in India, and has often taken strong stances on issues of human rights. To many within that community, however, his active engagement with controversial laws such as POTA and his refusal to quit as Attorney General over the Gujarat riots, are blemishes on an otherwise impressive record. Sorabjee shows why he is regarded as a champion of human rights when he denounces attempts to deny legal representation to Kasab. On the recent amendments, he expresses “strong reservation”
about the period of detention up to 180 days. This is constitutionally vulnerable apart from its inconsistency with the International Covenant on Civil and Political Rights 1966 [ICCPR], which India has ratified and which will cause problems before the Human Rights Committee when it takes up India’s report which India is bound to submit under the ICCPR.
But, in the very next sentence, he states:
A serious lacuna in the legislation is the exclusion of admissibility of confessions by the arrestee which to the satisfaction of the Sessions Judge were not the outcome of torture and third degree methods. This will hamper effective prosecution and conviction. This aspect has been dealt with by the Supreme Court in the POTA case and the provision making confessions admissible was upheld. In the absence of such a provision, terrorist Kasab may get away for lack of evidence.
As followers of the recent debate will note, Sorabjee’s analysis dovetails well with Arun Jaitley’s views on the admissions of confessions by those accused of crimes of terrorism. Jaitley’s arguments (which may well have been developed initially with inputs from Sorabjee) seem to be gaining favour in these emotionally trying times. I was surprised to see, for instance, this editorial in the Indian Express essentially endorsing Jaitley’s view (without saying so).
The arguments against the admissibility of confessions have a convincing rationale, and a long pedigree, in our legal system, and are made even more necessary by the operational and systemic conditions under which our police and investigatory forces function. I will not dwell on this here, and will only note that on this point, Desai and Sorabjee disagree. Desai’s short response:
What Qasab said, what he ate, what he wrote to the Pakistan High Commission are not matters which British anti-terrorist police would reveal till they presented the suspect before a judge. The evidence gathered cannot be admissible in a court of law because it is obtained under duress. As it is Qasab can already argue that he will not have a fair trial given all the adverse publicity. Many Indians are ready to hang him without trial, but the Rule of Law has to be followed.
On one point, however, Sorabjee and Desai seem to agree. Having noted earlier the views of Desai on this, here are Sorabjee’s views:
But remember: However tough and comprehensive the law, its enforcement will be ineffective if our police force is not adequately armed, properly equipped and fully trained to combat the terrorists. Police reforms are urgent and the Supreme Court directions in this behalf should be implemented without further delay.At the present time, perhaps focusing on commonalities – rather than differences – may be the best way forward. Given the near-unanimity on the need to address conditions on the ground in the police and investigatory wings, a focus on those complex set of issues may be prudent