Saturday, September 26, 2009

All in the family

A Maharashtra Assembly ticket given by the Congress party to President Pratibha Patil’s son not only questions the independence of the president's office, it highlights one of the gravest problems in Indian politics today – the pervasiveness of dynasties. This blog had earlier questioned this trend. I have previously reported on how 62 percent of young MPs in the current Lok Sabha come from political families. While recently reporting on a tangential topic, I realised how family has become the substitute for even local party structures. Those defending this trend argue thus: in a country where families dominate all professions (just look at our legal system), young politicos have to atleast prove their mettle to voters. So what is the real problem with dynasties in politics?


Seema Chishti's nuanced take on this subject appeared in The Indian Express opinion page today.

Mercy Petitions

The excessive delay in disposing of mercy petitions has received much public attention recently, especially in the case of Afzal Guru. Last week the Supreme Court expressed its concern about this delay, and suggested that a delay in disposal could lead to the death sentence being altered to life imprisonment. In today's Indian Express, I comment on the constitutional concerns that such a delay invites. Hopefully the SC's warning will push the government to act. Though as I note, placing
the decision in someone else’s hands could well be what the government wants.

Friday, September 25, 2009

The "Spuriousness" of Indian Law: Need to Delink Drug Regulation from Intellectual Property

The Indian Express published an editorial of mine, where I argue that India needs to urgently delink drug regulation from intellectual property issues, since the aims and objectives of these regimes are quite distinct. India is already advocating this de-linking at the international level and has successfully thwarted a WHO bid to link trademark issues with the threat of sub-standard drugs. However, sadly, 'charity did not begin at home" and the Indian Drugs and Cosmetics Act defines "spurious" drugs in a manner that catches within its fold legitimately authorised generic drugs, only because such drugs potentially infringe someone else's "trademark".

Saying No to the Wrong Drugs

The Drugs and Cosmetics Act (DCA) was recently amended to mandate significantly enhanced penalties for those trafficking in “spurious” drugs. While this attempt to counter the menace of harmful drugs is laudable, the term “spurious” itself is loosely worded and could be interpreted to include even legitimately authorised generics. Given recent attempts by multinational pharmaceutical companies to use the ruse of intellectual property enforcement to create additional trade barriers for Indian generic companies, the government needs to be extra vigilant. Particularly so, since such barriers are also likely to impact the availability of affordable medicines to ailing patient populations.

Section 17 (b) (b) of the Drug and Cosmetics Act defines spurious drugs thus: “a drug shall be deemed to be spurious if it is an intimation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bear upon it or upon its label or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug.”

Based on the above definition, Bayer, a German multinational patentee, dragged Cipla and the Drug Controller General of India (DCGI) to court, arguing that Cipla’s generic version of Bayer’s patented anti-cancer drug was likely to qualify as “spurious” and therefore ought not be granted drug regulatory approval.

Bayer’s preposterous legal attack drew some sustenance from section 17B of the DCA which begins by stating that “a drug shall be deemed to be spurious if it is an intimation of, or is a substitute for, another drug”. Most generics are indeed imitations or substitutes of the original drug! But imitation by itself is not a problem, unless the law states so. And given India’s unique tryst with a patent regime that actively encouraged such copying from the 1970’s and led to the growth of a world-class generic industry that now provides affordable access to a large part of the world, the government, far from enjoining such imitation, must actively promote it.

Justice Ravindra Bhat of the Delhi High Court rightly noted that under Bayer’s reading of section 17B, all generics would qualify as “spurious” and could never merit drug regulatory approval! Clearly this could not have been the intention of our law makers. The judge however found a way out and held that since Cipla’s drug would be branded and packaged differently, it was “likely to be conspicuously marked so as to reveal its true character and its lack of identity with” Bayer’s original .

While this judicial pronouncement may have been helpful in this one case where Bayer’s attempt at delaying Cipla’s generic entry was effectively thwarted, one is not sure if the same result will prevail in other cases, where a generic manufacturer uses a name that is similar to the one adopted by the originator company. Consider Cipla’s drug “Valcept”, which is a generic version of Roche’s patented anti-infective “Valcyte”. Would Valcept qualify as “spurious”, since a consumer confuses the two names and assumes that Valcept also comes from Roche? It goes without stating that even despite the confusion, the consumer is not necessarily harmed in a physical sense, since both the drugs work in the same way. And yet our newly amended Drugs and Cosmetics Act (DCA) can potentially brand Valcept a “spurious” drug, with heavy criminal penalty.

This stems from a problematic linkage created between what is essentially an intellectual property enforcement issue with the drug regulatory regime. Since these regimes are distinct in aim and scope, they ought to be kept separate and the twain should never be made to meet.

Consumer confusion is a widely accepted rationale underlying most trademark regimes today. The Indian IP regime is no different, with the Indian Trademarks Act providing for robust protection in favour of a brand owner, who may protect his/her brand by requesting a court of law to restrain a competitor who uses a similar sounding name for their drug. However, a drug regulatory authority tasked with the mandate to ensure that all drugs being introduced into the market are safe and effective, cannot be expected to police trademark issues in the same sense that a court of law does. For one, it does not have the institutional competence to do so. Secondly, the key task of a drug regulator is only to assess whether or not a drug is safe and effective, a task that will no doubt require considerable time and resources. The fact that a drug from a generic manufacturer violates the IPR of an innovative drug company does not necessarily mean that it will be of bad quality. And such a determination ought not to be the job of the drug regulator.

The last few years have witnessed a proliferation of international efforts that create additional trade barriers for Indian generics. The seizure of drug consignments in transit from India to South America at various European ports on the pretext of patent infringement is a glaring example. The Indian government has been fighting these underhand efforts, and recently it thwarted an attempt by a WHO-led anti-counterfeiting task force (IMPACT) to expand the meaning of “counterfeit” to even catch legitimate generics. Unfortunately, India’s very own definition of spurious drugs remains problematic.

The government must therefore immediately amend the Drugs and Cosmetics Act to ensure that the term “spurious” is stripped of its problematic “IP” linkage. In other words, the term must be defined only with reference to “substandard” drugs, for that is what the drug regulator is empowered to examine. Once a satisfactory definition emerges, the Indian government should fight for its international adoption to ensure that legitimate generics are spared at the borders.

This is a solution that will not only enable our grown generic companies to retain their competitiveness, but also prove a sweet pill for many patients who depend on affordable generic medications.

Thursday, September 24, 2009

The Significance of Kaminey

There is an interesting review of the movie Kaminey, titled Social Dystopia or Entrepreneurial Fantasy: The Significance of Kaminey (here), by M.K. Raghavendra, film critic and scholar, in the September 19, 2009 issue of the EPW. Raghavendra reviews the content of the movie, particularly the portrayal of law and morality and its “perceived” enjoyment by society (mainly, the “intelligentsia”) and discusses the implications of such portrayal and enjoyment. Raghavendra makes the following points:
1. The movie portrays justice as an idle dream and that the law is an agent of corruption;
2. Kaminey maybe the first Indian movie to evict law-abiding people from the domain of the story as they appear to exist only to be taken advantage of; the underworld has become the world and it would appear that everyone is somehow implicated in criminality;
3. The movie is celebratory in its approach to corruption and social decay; while one of the main protagonists is law-abiding, it is shown as a quirk rather than a moral quality;
4. The vision promoted by the movie may be roughly described as “social Darwinism”-that society is a lawless jungle in which only the fittest survive and one’s fitness is commensurate with one’s willingness to shred moral principles;
5. The portrayal of the law in Kaminey is unprecedented in Indian cinema as it portrays policemen as acting only for themselves and not even nominally engaged in enforcing the law;
6. The fact that the movie is being enjoyed suggests some strange kind of satisfaction in the fantasy of a crumbling social structure in which a person has only two options- either eat or be eaten; and
7. The world of Kaminey is dehistoricised because it treats its own vision of “people as kaminey” not as the creation of historical circumstances, but as an eternally valid philosophy for “pragmatists”. It is a depoliticised world in which even politics is only “enterprise”. Kaminey gives us an entrepreneurial fantasy for the upwardly mobile urban classes (the author explains in detail the focus on the urban classes), disguised as a social dystopia.
I do not know if some of the conclusions (in 6&7 above) that Raghavendra draws are correct or not and whether we can impute the fantasy to society at large. From the days of Plato, there has been a debate about whether art can (a) actually reflect the complex realities of society in an accurate manner; and (b) provide desirable and correct suggestions to people on how to address complex problems they face. Clearly, Kaminey does not satisfy (b), as it does not actually provide any desirable solution to the problems it portrays. However, it is in the portrayal of the problem itself that Kaminey probably scores, as it sets out the problems of morality, law and law enforcement in India in a realistic, albeit grotesque, manner. It is difficult, and probably impossible, for scholars and academics to capture the emotional consequences of failure of the rule of law and morals in their discourse on legal and moral principles and case laws. It is the realm of literature and art that help us understand how the failure of law and morals plays out in society. From that perspective, Kaminey is certainly a novel and unusual experience.

The origins of caste

I am not a scientist, and this is not a science blog. But the just-published study in Nature may have interesting implications for some important legal and political debates around caste. India, the study claims, has been under-represented in 'genome-wide surveys of human variations', so this is apparently one of the first of its kind. Before we look at its implications, here is a summary of the results:

The researchers showed that most Indian populations are genetic admixtures of two ancient, genetically divergent groups, which each contributed around 40-60% of the DNA to most present-day populations. One ancestral lineage — which is genetically similar to Middle Eastern, Central Asian and European populations — was higher in upper-caste individuals and speakers of Indo-European languages such as Hindi, the researchers found. The other lineage was not close to any group outside the subcontinent, and was most common in people indigenous to the Andaman Islands, a remote archipelago in the Bay of Bengal.

The researchers also found that Indian populations were much more highly subdivided than European populations. But whereas European ancestry is mostly carved up by geography, Indian segregation was driven largely by caste. "There are populations that have lived in the same town and same village for thousands of years without exchanging genes," says Reich.

An important biomedical implication of the study is that 'there will be an excess of recessive diseases in India'. But socially, this study challenges the following theses on the origins and nature of the caste system in India:

1. Caste is a modern, colonial invention:

This genetic evidence refutes the claim that the Indian caste structure was a modern invention of British colonialism, the authors say. "This idea that caste is thousands of years old is a big deal," says Nicole Boivin, an archaeologist who studies South Asian prehistory at the University of Oxford, UK. "To say that endogamy goes back so far, and that genetics shows it, is going to be controversial to many anthropologists."

2. Indigenous origins of the 'Indo-Aryans':

The theory, especially popular with some RSS ideologues like Golwalkar, that Indo-Aryans originated in India and did not come from elsewhere has become even more untenable. Assuming that the RSS's 'Indo-Aryans' are the same as what the study calls 'Ancestral North Indians', their Middle-Eastern/Central-Asian/European origins may be inferred from this finding:

...the 'Ancestral North Indians' (ANI), is genetically close to Middle Easterners, Central Asians, and Europeans, whereas the other, the 'Ancestral South Indians' (ASI), is as distinct from ANI and East Asians as they are from each other. By introducing methods that can estimate ancestry without accurate ancestral populations, we show that ANI ancestry ranges from 39–71% in most Indian groups, and is higher in traditionally upper caste and Indo-European speakers.

Of course, this finding does not make the ANI's any less 'Indian'. It only raises problems for those who sustain the 'pitribhumi - punyabhumi' thesis of exclusionary nationalism by relying on the indigenous origin theory.

3. Is caste race?

Why does it matter? Both caste and race are human constructs, but because of their association with endogamy, may have implications for human genetic make-up. Both have been used to exclude and discriminate. Does it matter what we call such exclusion?

For lawyers, it does. International law and legal institutions have developed to deal with racism. Caste, seen as a one-region problem, has not received similar attention. The issue became controversial in 2001, when the International Conference on Racism in Durban took place. Many dalit groups insisted that casteism was a form of racism; while the government, in keeping with its approach to all international monitoring of human rights, strongly refuted the claim. If caste was indeed race, India would be pulled up by the international institutions that deal with racism. Much academic time has been spent on the issue since the conference. Under the International Convention on Racism, descent and ethnic origin are constituent elements of 'race' One wonders what the implications of the research will be on this debate.

Wednesday, September 23, 2009

Jinnah and Consociational Democracy

Recent events surrounding the release of Jaswant Singh's book on Jinnah have resulted in renewed interest in Jinnah and his legacy both in the press and on this blog as can be seen here and here. Prof Ashutosh Varshney writing in the Indian Express argues that in light of recent historical research, it appears that Jinnah was probably in favour of what he calls "consociational democracy". He describes a consociational democracy as opposing liberal democracy on at least three counts.

"First, according to consociational theory, groups — religious, linguistic or racial — are the unit of politics and political organisation, not individuals. As we know, strategising about groups is a pervasive feature of politics, whether in the US or India. The consociational theory goes far beyond that. It says that the constitution should allocate political power and offices to different religious or ethnic groups — 50 per cent of offices would go to group A, 30 to group B, 20 to group C, etc.

Second, each community would be represented by a political organisation of that community only, not by an organisation that claims to be multi-religious or multi-ethnic. This is the “sole spokesman” idea: that only the Muslim League would represent India’s Muslims. LTTE made similar claims about the Tamils of Sri Lanka.

Third, minorities would have a veto in governmental decision-making, and consensus should be the basis for governmental functioning. If the Muslim League did not like something that others wanted Muslims to consider, the deliberation would not go any further.

He further states that consociational democracy is not an abstract theoretical idea but that it was in fact used in several small European countries after World War I: Holland, Belgium, Austria and Switzerland. In fact, theorists like Arend Lijphart have argued that a consociational democracy is much better for multi-ethnic, multi-religious societies, for it allows disaffected groups to develop a sense of security.

Varshney concludes that if Jinnah’s argument was indeed consociational, then "partition was inevitable and Jinnah was as responsible for it as anybody else." The full article can be accessed here.

Tuesday, September 22, 2009

How magazines covered encounter deaths

The issue of encounter deaths or extra-judicial killings has never been a subject of serious probe for Indian journalists until the Tamang Report on the 2004 killing of Ishrat Jahan and three others was made public recently. In this post, I wish to draw the readers' attention to the two comprehensive cover stories carried by Frontline and Tehelka.


*Ajit Sahi in his story, brings to light certain unreported facts regarding how the Gujarat Government sought to scuttle the inquiry and the probe.
*How Shamima lived with the tag of mother of India's first woman terrorist?

*In my article, I ask whether the distinction sought to be made between fake and genuine encounters is valid in practice, and bring hitherto unpublished NHRC data on encounter deaths into public domain.
*In the second piece, I give background on the encounter-guidelines case in the Supreme Court.
*Anupama Katakam's in-depth analysis of the Tamang report.
*Interviews with R.B.Sreekumar, Nitya Ramakrishnan and K.G.Kannabiran.
*Aparna Alluri on the Andhra Pradesh High Court judgment under challenge in the Supreme court.
*Reports of encounter killings in States (Maharashtra, J&K, Manipur, Karnataka, Tamil Nadu and Delhi)
*R.K.Raghavan on why gains from encounter killings are illusory, and in his regular column, reflects on the lessons to counterterrorism agencies in India from the recent conviction of three Islamists in U.K.
*On political parties' doublespeak on encounter killings.
*Praful Bidwai's column

(The PDF file of the Frontline cover story can be read here)

Monday, September 21, 2009

Occasional Digest

1. Forum for Judicial Accountability's representation to SC collegium on Justice P.D.Dinakaran.

2. How the Central Vigilance Commission made itself irrelevant in the fight against corruption.

3. For those interested in long-format journalism, my article in Frontline on Supreme, but not infallible and my interview with Prashant Bhushan (pp.29-35)on the Judges' assets controversy.

4.SPICY IP blog on whether Tirumala laddus deserved G.I. registration.

Our own Robert Bork moment?

Here's an opinion piece I wrote in today's Indian Express on whether the dispute over Justice Dinakaran's appointment is our own 'Robert Bork moment' i.e. it fundamentally questions the appointment process to the Supreme Court. I refer to jurist Fali Nariman's idea of an ombudsman. A couple of questions linger on in my mind.
1. How important were the Indira Gandhi years in pushing the judiciary to self-select? After all, the cases in which it did so (the 1993 and 1998 judges cases) took place around 15 years after Mrs. Gandhi's supersession of judges. Are there instances of political meddling in the intervening years that form the backdrop for the judges' cases?
2. I use two measures to judge 'fairness' in appointment decisions: cross-institutional concurrence and public scrutiny. What are the other realistic checks and balances?

Sunday, September 20, 2009

Fali Nariman on a Judicial Ombudsman and other things

Fali Nariman was interviewed last night on NDTV's Walk the Talk (reprinted in the Indian Express on 21/9/09). In the interview Nariman stated - with some prodding by Shekhar Gupta - that the judiciary was in its greatest moment of crisis since the Emergency because of a seeming decline in it's integrity in the eyes of the public. He made several suggestions to correct this problem - three of his recommendations that I particularly agree with I will highlight in this post (although the entire interview is well worth watching).

First, he recommended that a judicial ombudsman, independent of the Chief Justice, should be appointed to investigate allegations against judges and act on them in consultation with the Chief Justice. Second, he argued that the judges on the Supreme Court collegium were men of good integrity, but overworked and did not have time to properly screen judicial candidates. The collegium should be better institutionalized so that they have staff to help them with this screening. Third, he felt that High Court judges retirment age should be raised from 62 to the Supreme Court's 65. This way High Court judges would not feel like they have to toe the collegium's line in order to get promoted and so extend their time as a judge three more years.

On first glance, I think the judicial ombudsman is a great idea. As Nariman points out in the interview, there might not be another country with this type of ombudsman, but there aren't many countries where the judiciary effectively self-appoints itself. There needs to be a check on this power if the political branches can't or aren't capable of playing this role. An independent ombudsman would be one way to institutionalize such a check.

Institutionalizing the collegium is also important if it is to continue selecting judicial candidates. In other countries, the staff of the executive or legislature often play this role when these branches help select judicial candidates. In India the appearance is too often given that selection by the collegium is a complete insider's game (i.e. you are selected if you are friends/ideologically connected to someone in the collegium). A staff could be used to more systematically go through perspective candidates on seemingly more objective criteria.

Many have commented on the need to raise the High Court judges retirement age to be on par with the Supreme Court, and this change is long overdue. Not only can the collegium exercise an unhealthy controlling influence over High Court judges wanting to get on the Supreme Court so they don't have to retire earlier, but it is difficult to recruit talent when candidates know they will have to retire at the tender age of 62. In the constituent assembly debates members argued such an early retirement age for High Court and Supreme Court judges was needed because the average life expectancy wasn't very high in India and the difficulty older persons encounter working long hours in India's heat. Neither of these seem good justifications today. An across the board age limit of 68 or 70 would be more appropriate.

Finally, Nariman also commented in the interview that the Supreme Court was right to keep taking so many appeals from the High Courts because in many High Courts lawyers were more likely to get positive judgments if they were the same caste as the judge. In the Supreme Court such caste politics was diluted, and so fairer justice could be ensured. One of the primary reasons often put forward for the Supreme Court hearing so many cases is a distrust of the High Court judges: a feeling that some are incompetent, others may favor or discriminate on parochial interests such as caste, and some may be corrupt. If these are the reasons the Supreme Court is taking so many appeals they should be researched far more. Which High Courts seem particularly corrupt? Which discriminate unfairly? Which are less competent? Which judges? Maybe the Supreme Court should make appeal from some High Courts easier out of these fears. More to the point, maybe the collegium, or an ombudsman if they were to be appointed, should investigate such allegations and take corrective action. Either way, the problem needs to be put out into the open and then systematically tackled.

Saturday, September 19, 2009

Right to Read Campaign

Sending this courtesy my friend Rahul Cherian

Campaign - Problem Statement

Millions of Indians are unable to read printed material due to disabilities. There are technologies available which can help them read print if the material is converted into an alternate format such as large print, audio, Braille or any electronic format. While the Indian constitution guarantees the "right to read" as a fundamental right, the copyright regime does not permit the conversion of books into accessible formats for the benefit of persons with print impairment, as a result of which a "book famine" is created.

International conventions that India is a party to specifically require India to amend its copyright laws for the benefit of persons with disabilities and to make available information and material to persons with disabilities on an equal basis as others. Publishers also do not make books available in accessible formats as a result of which less than 0.5% of books are available in accessible formats in India.

As a result persons with print impairments get excluded from the education system and it impacts their career choices. In addition to this, there are no national Policies or action plan to ensure that publications in accessible formats in all Indian languages are available to persons with print disabilities all over the country.

Objectives of the Right to Read Campaign

· To accelerate change in copyright law
· To raise public awareness on the issue
· To gather Indian support for the Treaty for the Blind proposed by
the World Blind Union at the World Intellectual Property Organisation

This campaign is part of the global Right to Read Campaign of the World Blind Union.

As part of the campaign we are creating audio visual clips of eminent persons, celebrities etc. supporting the Campaign. If you know any eminent persons, celebrities etc. who are willing to support the campaign do mail me (rahul dot cherian at inclusiveplanet dot com) so that we can arrange for their testimony to be recorded. Your support is vital for the success of this campaign. More details will follow.

Sunday, September 13, 2009

Justice Kannan says goodbye to blogging

It is a sad day for Justice Kannan of Punjab and Haryana High Court for having to conclude his blogging experience. A sad day for his readers as well. Read the reasons for his last post here. While many of us see increased number of hits to this blog as an incentive for frequent blogging, Justice Kannan, however, felt extremely uncomfortable with the growing number of visits to his blog. But is he not himself responsible for this sudden interest in his blog? Is he correct in concluding that his judicial duties are incompatible with his role as a blogger?

Saturday, September 12, 2009

When to amend the constitution?

We are 'blessed' with one of the longest constitutions in the world. There is too much by way of detail, stuff that could easily have been part of ordinary statutes. No surprise, then, that we have had over a hundred amendments in its relatively modest life-span (as constitutions go). It will be an interesting study to look into the subject matter of most of these amendments: How many of them changed a genuinely 'constitutional' matter? I suspect that with a few exceptions, most amendments dealt with matters that should not have been put in the constitution in the first place.

What triggers these observations is the Prime Minister's Office's recent rejection of a HRD Ministry proposal to amend the constitution to set up a new super-regulator for education. The PMO seems to recognise the difference between 'constitutional' and 'mere statutory' matters:

PMO sources said the Constitution should not be used to regulate. Dismissing the argument that the Constitution was amended to make education a fundamental right, a source said, "Isn’t it self-explanatory? Amendment was done to give something to children. ... regulation is different in nature.” PMO has argued that in an evolving polity, there should be flexibility and the decision should be left to Parliament rather than bringing about regulation through the Constitution.... “Asking for a Constitution amendment is an extreme reaction...”

Such constitutional wisdom is refreshing, and certainly welcome.

Friday, September 11, 2009

Constituting Jinnah- I

The 61st anniversary of Mohammad Ali Jinnah's death anniversary would be a good opportunity to revisit the certain aspects of the controversy set off in Jaswant Singh's book. As Srinivasan Venkataraman points out in his excellent review, there is little new or novel about his book. This basic thesis is indistinguishable from one propounded by Ayesha Jalal over two decades ago as as C.M Naim pointed out much of the work is based on hastily plagiarized footnotes. It speaks volumes that this book has beaten out Amartya Sen's Idea of Justice and Farzana Shaikh's excellent Making Sense of Pakistan.

Until the early 80's, it suited the official line in both countries to argue that the partition was the product of one man's obstinacy. For the Pakistani's, Jinnah was a modern Saladin who freed South Asian Muslims (atleast the ones who moved/lived in Pakistan) freedom from Hindu domination while the counter image was best personified by a grimacing and surly Aleque Padamsee in Attenborough's Gandhi whose greed for power led him to break a nation.

The first academic revisionist note was struck by Pakistani historian Ayesha Jalal over 25 years ago. Jalal questioned why partition was pursued by the Muslim League when a large section of the nation it claimed to represent remained outside the promised homeland. She argued that Jinnah's deployment of a "two nation theory" was a strategic move to avoid the logic of demography in negotiating Muslim rights as a minority in India.

Jalal points out how after leaving the Congress, Jinnah continued to push for constitutional solutions within a single federation. In 1929, he even agreed to give up the demand for separate electorates in favor of reservation of seats for Muslims and other minorities. The demand for a separate 'nation' of Muslims to be recognized was made as late as 1940. Jalal suggested that the Lahore Resolution of the League that announced "the territorial imaginings of a Muslim nation" purposely did not use the term Pakistan, keeping the idea ambiguous to use it as a bargaining counter in a 'poker game' to ensure Muslims rights within an united India. Indeed the resolution spoke of independent Muslim states rather than a 'state'.

Her suggestion is that Jinnah did not really want the partition but the Cabinet Mission Plan (a belief that Jaswant Singh appears to endorse). The Cabinet Mission in 1946 visualized a three tier federation. All existing provinces would be classified into three groups. Two of them would consist of Muslim majority provinces (Baluchistan, Sindh, Punjab and NWFP and the other would have Bengal and Assam). The Central government would only run foriegn affairs, defence and transport and communications, while the provinces would have all other powers. The provinces could if they wished also surrender some powers to their respective groups.

Both the ML and the INC had accepted the proposals and the Constituent Assembly of India was elected to draft a constitution of these terms (more on this in a followup post). Jalal (and thus Singh) blame Nehru's press conference on 10th July, 1946 where he suggested that the Congress could use its majority in the Constituent Assembly to change the terms of the Cabinet Mission as the fact that forced Jinnah to withdraw.

As she described it in a recent interview,

"The Congress’s refusal to agree to the grouping of provinces – even Gandhi called grouping worse than partition - and Nehru’s public assertions against a centre restricted to three main subjects (defence, foreign affairs and communications), made it impossible for Jinnah to stick to the Muslim League’s acceptance of the Cabinet Mission three tiered plan for a federal India instead of a fully sovereign Pakistan. The outbreak of violence in Calcutta in August 1946 and, subsequently, in other parts of India narrowed the options available to the all-India leaders and made a painful division rather than a negotiated accommodation seem more feasible. However, the partition of Punjab was not inevitable until the Congress called for it in early March 1947 and efforts continued to be made to avoid the partition of Bengal until the end of May 1947."

Jalal's book caused a furore when it came out both in India and Pakistan, since it questioned both national narratives. Three years after Jalal's book was published, the 30 pages of Maulana Azad's India Wins Freedom that had been sealed for thirty years were finally published giving support to Jalal's argument. The Maulana described Nehru's statement as a blunder of Himalayan proportions. He wrote, "I warned Jawaharlal that history would never forgive us if we agreed to Partition. The verdict would be that India was not divided by the Muslim League but by the Congress".

The Turning Point

The big question remains, whether the Cabinet Mission Plan would have been a working alternative. Jaitirth Rao, puts forward the position that the Plan would have never worked and would have led to further balkanization. He highlights the role played by the British, in fostering the idea of multiple nations and in trying to create a client state that would be friendly to British interests than a 'radical' Congress. He concludes,

"t has been wrongly argued by some that Nehru and Patel favoured centralisation while Jinnah and others preferred decentralisation. The centralisation debate was secondary. The issue was secession. Nehru and Patel were willing to live with a one-time secession but, like Lincoln, refused to countenance an ongoing “right of secession”. If the Cabinet Mission proposals had been accepted (as advocated by Seervai, Jaswant and others, who refer to it as the “last chance” for preserving a united India), one can be reasonably certain that in 1957 there would have been a partition and not just Lahore and Dacca but Jalandhar, Rohtak, Hisar as well as Calcutta, Asansol and Darjeeling would have separated from India leaving us with a husk of a country."

Rao's position is undoubtedly nationalist and is premised on the assumpion that centralized Indian state as we have it today is an undeniable good, and that one could sacrifice 20% of the country to the ML to preserve the other 80%.

Other scholars take a less normative position to suggest that the Plan was always unworkable. Indivar Kamtekar cautions us from making too much of the initial agreement between the Congress and the ML, since both parties had accepted the plan in a disruptive spirit. As Nehru spelt out in his incautious press meeting, he hoped to get the ML to agree to a union and then use the Congress majority to expand the powers of the centre. Jinnah saw this Plan as a step to greater autonomy. In a letter to Major Wyatt (three weeks before Nehru's conference) he expressed hope that the plan would ultimately result in a complete sovereign state of Pakistan.

Instead of asking how was it that our founding fathers agreed to partition, perhaps one should seek to understand what they imagined partition would involve.

Ijtihaad by the courts

Tahir Mahmood responds to the criticisms made by Javed Anand of the 227th Law Commission report.

He makes two interesting points. The first that the Law Commission since its inception in 1955 has never been consulted on any legislation dealing with Muslim Law. Even the infamous Muslim Women's (Protection of Rights on Divorce) Act was drafted by the Law Ministry. Secondly, noting the failure of the Indian state and Indian ulama to initate reform, he argues that "in some recent cases the courts have made admirable efforts to read principles of Muslim law in their correct perspective. Religious circles see these rulings as mudakhalat fid-din or interference in religion. That perception might continue, but so must the on-going process of judicial restoration of true Islamic law.". The latter is perhaps an interesting evolution of Dr Mahmood's views since in the past he had been fairly critical of courts which sought to offer "progressive" readings of Islamic law.

Bibek Debroy's series on legal reform

Bibek Debroy has written part one, two, three, and four of a five-part series on legal reform in India, in The Financial Express,. The final, fifth, part appeared today. Bibek is one of India's most eminent economists (full disclosure: he's also contributing editor on The Indian Express editorial board) , and has written extensively on the idiosyncrasies of various Indian laws. His emphasis on outcomes and his use of quantitative measures make his analysis of the Indian legal system quite radical.

Kapil Sibal on Reforms in Legal Education

Newspapers today are reporting a speech by the HRD Minister, Kapil Sibal, calling for sweeping reforms in legal education. From the reported accounts it appears that Sibal is making two main points:

1. Bar Council should have a limited role in Legal Education. This point has been repeatedly made earlier by others, including the National Knowledge Commission. This blog has also discussed this issue in several posts, available here. The central issue involved in this debate over the role of the Bar Council, is the very purpose of legal education. Bar Council's control over the process seems to be premised to a large extent on the understanding that (a) the purpose of legal education, and of law schools, is to produce litigating lawyers,and (b) that practising lawyers are best equipped to guide in this process. Even if we were to accept the first contention (which is itself problematic-see here CJI's recent lament on the dearth of law graduates opting for judicial services, and "most importantly", law teaching), the second does not necessarily follow, simply because practicing lawyers are not necessarily trained in education policy.

2. Legal education should be broad-based, and an undergraduate paper on B.A. Law should be introduced as part of other undergraduate curricula. This appears to be in recognition of the role that law plays in daily life, as well as its interface with different professions and vocations.

Sibal himself recognizes the "vested interests"- I guess he is referring to sections of the Bar Council here - who want to stall reforms. Last week, the Bar Council had responded sharply to Sibal's proposal, particularly his efforts to set up a Round-Table on Legal Education. However, even if the government decides to expend political capital on overcoming this hurdle, we do need to take a look at available alternatives to the present regulatory structure. If the alternative is that regulation of legal education should be left to legal academics, the larger question remains: is the Indian legal academia equipped and robust enough to do not only a relatively better, but an absolutely good, job of regulating legal education, and of taking on the onerous responsibility of guiding the future of legal knowledge?

Justice Verma on Justice Bhat's judgment and the judges' assets controversy

Justice Bhat's judgment on declaration of assets by judges continues to be in the limelight, and has drawn high praise from the former CJI, Justice Verma, in an op-ed that appears in today's Express. In praising Justice Bhat, Justice Verma calls this yet another instance of a situation where “the high courts have shown the right path where the Supreme Court dithered.” (Though he doesn’t explicitly mention this, the historical precedent he cites is interesting because that involved a situation where he himself was one of the High Court judges who “took the right path” while the Supreme Court “dithered” in delivering the infamous ADM Jabalpur decision.)

In today’s op-ed, Justice Verma joins the rapidly increasing group of eminent figures who have been critical of CJI Balakrishnan's handling of this issue. Justice Verma goes further, to apportion responsibility to Attorney General Vahanvati by recalling historical precedents where his predecessors in office refused to go along with problematic instructions issued by their clients.

Justice Verma has been a consistent advocate for full disclosure of assets by judges. While recognising Justice Bhat's expressed concerns about the privacy rights of judges, Justice Verma has this to say:

The one area of concern voiced by many judges who are in favour of disclosure needs mention. They want a safeguard against harassment by unscrupulous persons and disgruntled litigants who are known to make false and scurrilous allegations even against some honest judges for ulterior motives. Even though the apprehension is genuine, it has to be accepted as an occupational hazard, which is common to all public functionaries. Moreover, the additional contempt power is available to the judges as a deterrent. In any case, this aspect can be taken care of, and can not be a justification for not declaring the assets subject to public scrutiny for legitimate reasons. In the current environment of waning credibility of the higher judiciary, with specific allegations of corruption based on prima facie authentic materials even against a few of the highest, it is in the judiciary’s own interest to be fully transparent and above suspicion.

To me, this is a slight modification of Justice Verma’s earlier stance. He now seems to be making a temporal argument, relying on the current perceptions of the judiciary, to assert that such a measure is required in the times we live in. Other judges too seem to share this view, given that the Madras High Court as a whole recently decided to declare assets of current judges, without seeking any intermediate safeguard mechanism. These are valid questions to be borne in mind when formulating regulatory policy. However, another important question to be considered is whether it is advisable to formulate a long-term regulatory policy based on temporal considerations such as the current perception of our judiciary.

In his conclusion, Justice Verma joins the chorus of voices seeking a comprehensive legislative scheme in respect of this issue. Given that Justice Bhat’s judgment may yet be appealed (a course of action which Justice Verma, like others before him, strongly advises against) and the uncertain status of the Judges (Declaration of Assets and Liabilities) Bill, 2009, it seems the larger issues behind this controversy will stay with us for a while.