Monday, August 30, 2010

"In Orissa, there are tribes which are living on grass"

Manoj Mitta's excellent article on how Supreme Court betrayed the Orissa tribals made me read in full Chief Justice Kapadia's 2008 Justice J.K.Mathur Memorial Lecture. Readers may draw their own conclusions.

Saturday, August 28, 2010

Bill Watch: Rajya Sabha is discussing Torture Bill

The Rajya Sabha is likely to take up the Torture Bill for consideration and passing sometime early next week. We have documented the various flaws in this Bill previously on this blog (see also, here and Siddharth Varadarajan's piece in the Hindu yesterday). Although one hopes that the Rajya Sabha sends this seriously flawed Bill to a parliamentary committee, it does not seem to be high priority for most political parties. Why is the Opposition not making any noise on an attempt to effectively grant impunity to torturers?

Update: There appears to have been some movement in the Opposition benches, with 10 MPs serving notice for amendments.

Thursday, August 26, 2010

Accountability Initiative: Research Associate Vacancy

The Accountability Initiative, a research initiative that works to promote accountability for service delivery, is seeking to hire a Research Associate to work on the PAISA Project. PAISA – (Planning, Allocations and Expenditures, Institutions: Studies in Accountability) is AI’s flagship project aimed at undertaking expenditure tracking exercises and strengthening local decision making with the objective of strengthening accountability and transparency in the process of public expenditure management for core public services.

For more details on the job description, qualifications and how to apply, please visit

Analysing the Khairlanji verdict

Shekhar Hattangadi's recent piece on the Bombay High Court's judgment explains why justice has not been meted out to the Khairlanji victims, and how the judgment ignores "multiple motive" concept in criminology. It also points to the dilemma of human rights activists, as the judgment has commuted the death sentence awarded to the convicts by the trial court.

Wednesday, August 25, 2010

Dissecting the Right to Information Act

Frontline's recent issue is a celebration of the strengths of the Right to Information Act, and a critique of its flaws, as the activists see it. There are 10 components to the cover story, of which I have written three. Though the readers may find all the contributions informative, I'm linking my articles, for the purpose of record, and of course, to invite feedback.

1. Analysis of proposed amendments to RTI Act

2. Appointment of information Commissioners & the need for reform

3. Secrecy around bill on whistle-blowers

Saturday, August 21, 2010

Delhi Law Review: Call for Articles

Please find below a call for papers being posted on behalf of the editors of the Delhi Law Review. I hope that the DLR, like other law school journals, puts its archives online soon.

Delhi Law Review (DLR), one of the oldest law journals in India, invites articles from academicians, independent researchers and students for its forthcoming edition. The articles may be on any contemporary legal issue and must not exceed 3,000 words. Biographical information of the contributor should be provided on a separate page. Regarding the style of referencing, please refer to the past issues of D.L.R. Importantly, speaking footnotes are discouraged.

A soft copy of the article must be emailed to with the subject ‘Submission for DLR 2010.’

Those contributors whose articles have been selected for publication shall be informed as soon as the selection process has been completed. Contributors are requested to submit only original work which is not under consideration with another publication.

The last date for submission is August 31, 2010. No submissions will be considered after this date.

Wednesday, August 18, 2010

Proportionality as a Standard of Rights Review

In a recent issue of the International Journal of Constitutional Law (I-CON), Tsakyrakis presented a powerful critique of the proportionality test. In the current issue of I-CON, I respond to Tsakyrakis, defending proportionality as a standard of rights review. I am grateful that Tsakyrakis has taken the trouble to further respond to me, and his rejoinder is available here. I hope, in due course, to continue this debate.

The following is an abstract of the piece:

In a recent article in the International Journal of Constitutional Law, Stavros Tsakyrakis presents a passionate critique of the proportionality test. Tsakyrakis regards proportionality as an illusory attempt at infusing objectivity in rights adjudication. Moreover, he posits that it necessitates weighing public interests against individual rights. Proportionality has emerged globally as the leading framework for evaluating rights violations. It serves as the uniform standard of rights review in jurisdictions as diverse as Israel, Germany, Canada, and South Africa. Remarkably, recent opinions by Justice Breyer of the United States Supreme Court indicate that the approach is gaining currency within American’s constitutional jurisprudence. Considering proportionality’s significance, Tsakyrakis’ critique is of considerable moment and merits careful study.

In this Essay I argue that while Tsakyrakis is right to consider certain types of balancing objectionable, he is wrong to conclude that proportionality necessitates them. Rather than focusing on important philosophical questions regarding the commensurability of values, this response is limited to providing clarity on proportionality’s methodology and observing the false premises that underline Tsakyrakis’ arguments. Examining the cases and hypothetical that Tsakyrakis relies upon, I demonstrate how they fail to articulate any defect in the proportionality test. Notwithstanding this, Tsakyrakis’ analysis provides a useful insight into the dangers with treating proportionality subtests as farcical.

Tuesday, August 17, 2010

Bar Council Exam

The proposed examination by the Bar Council of India has been covered previously on this blog. In the current issue of the University of Pennsylvania's India in Transition Series, I offer my thoughts on the proposed measure, discussing some of the concerns raised in V. Venkatesan's wonderful Frontline piece on the issue.

Monday, August 16, 2010

Guest Post: The Pre-Legislative Briefing Service (PLBS) – 'Building India one Bill at a time'

We are very pleased to publish the following guest post from Arghya Sengupta, member of the Pre-Legislative Briefing Service.

Prashant, Sanhita, Shivprasad and I started The Pre-Legislative Briefing Service (PLBS) with a view to proactively engage with the law-making process, by ensuring that parliamentary legislation is constitutionally sound, and in harmony with judicial precedent, international best practices and prevailing statutes. We felt that legislative drafting in India would be benefited by intensively researched academic analyses, which could draw attention both to relevant international precedents and practice in this regard as well as municipal laws and practices which needed to be accounted for before legislation was passed. Such analyses, we hoped, would mitigate the possibility of complex international legal imbroglios from emerging subsequently, as well as lengthy domestic litigation which would be both cumbersome and wasteful. “A stitch in time” is what we intended to provide to appropriate legislations.

I am happy to report that our first “stitch” on the Civil Liability for Nuclear Damage Bill, 2010, to which Shamnad drew the attention of the readers of this blog earlier, was extremely well received by the Parliamentary Standing Committee on Science and Technology, Environment and Forests and PLBS was invited to depose before the Committee on 2 August 2010.

Legislative Design in India

We at PLBS, envision our services will have fundamental implications on legislative design in India, and will encourage and assist drafting agencies and Ministries to bring clarity to statutes that affect the entire country. As things stand today, multiple drafting errors and inconsistencies lead to years of delay in implementation of an enactment, since the judiciary has to resolve legal and constitutional challenges before anything else. For instance, the ‘Separation of Powers’ issue that delayed the National Company Law Tribunal and the Competition Commission of India has resurfaced in the Civil Liability for Nuclear Damages Bill, and threatens to derail execution and implementation here too. Interventions at an appropriate stage, as envisaged by PLBS, will not only ensure a clean statute, but will also allow the judiciary to focus on its true role of interpretation of statute, rather than spending years in disentangling ‘bad’ law.

PLBS’s first report on the Civil Liability for Nuclear Damage Bill, 2010

On submitting our very first report, titled 'A Briefing Document on the Civil Liability for Nuclear Damage Bill, 2010: Questions of Constitutionality and Legislative Options Open to Parliament' to the Secretariat of the Department Related Parliamentary Standing Committee on Science and Technology, Environment & Forests, PLBS was invited by the Committee for a deposition. Three of us appeared before the Parliamentary Standing committee on 2 August 2010.

In our report and subsequent deposition, we cautioned that the Bill still has several constitutional and legislative challenges to overcome, before it is worthy of enactment. Most importantly, if the legislation itself were to be challenged before the Supreme Court, it may disastrously affect and delay access to the rights that the law seeks to provide. Such delay would also affect the nuclear power sector and perhaps even dash hopes of cheap, affordable nuclear power.

The PLBS report on the Nuclear Liability Bill inter alia addressed three key factors, discussed in detail below:

1. Institutional independence of bodies executing pivotal functions under the Bill
2. Consistency of clauses with basic principles of legal drafting
3. Constitutionality and international compliance of provisions on compensation and recourse

1. Institutional Independence

Clause 3 of the Bill vests the entire power to notify a ‘nuclear incident’ in the Atomic Energy Regulation Board (AERB), a body under the complete control of the Department of Atomic Energy (DAE). The DAE also runs all the nuclear power plants in the country. Therefore, the report highlighted the concern that the Government, in order to escape liability, may not be inclined to notify smaller nuclear incidents.

Similar concerns were raised about the independence of the Claims Commissioner and the Nuclear Damages Claims Commission (NDCC) set up under the Bill. Both bodies are to award compensation against nuclear plants owned by the Central Government. Both are also controlled by the Central Government. PLBS contextualised this in view of Supreme Court rulings which say that under the constitutional doctrine of ‘Separation of Powers’, any tribunal taking over the functions of a Court has to be vested with adequate judicial independence. Such independence is essential if only to preclude any interference from the Executive, especially when the Executive is party to the dispute before the Judiciary.

2. Legal drafting Concerns

The definitions of ‘nuclear damage’, and 'nuclear incident' in Clause 2 of the Bill were circular and prone to confusion. A harmoniously drafted definition was recommended which avoided circularity and ensured clarity in interpretation. Clause 5, relating to exemptions for operators was found to be inconsistent with international treaties and Supreme Court jurisprudence, since it excluded the operator’s liability in accidents due to natural disasters of exceptional nature. Apart from international treaties which do not contain this exemption, the Supreme Court has clearly stated in multiple precedents that operators of hazardous incidents have to incur ‘absolute liability’ without any exceptions whatsoever. Thus it was recommended that this clause be deleted.

Clause 46 of the Bill, inter alia suggests that liability caps on operators do not prohibit State Pollution Control Boards from claiming unlimited damages from the plant operators under special purpose environmental legislations such as the Air Act, Water Act and the Environmental Protection Act. If this is true, then the entire aim of this legislation is vitiated since operators would have to pay expensive additional insurance premiums, in turn hiking the cost of electricity generated by these nuclear plants. The interface between the Bill and other legislations on the one hand, and general tort law on the other, was a key issue flagged by the PLBS submission. Keeping in mind the special nature of the legislation, it was recommended that the legislation override other legislations and general principles in the specific instance of a nuclear accident and claims for compensation be brought entirely under its legislative umbrella.

3. Constitutionality and international compliance of provisions on compensation and recourse

PLBS found that liability caps, as mentioned in Clause 6 of the Bill, the subject of much media and popular debate (see here and here), were neither unprecedented nor unconstitutional. However, while such caps may apply with regard to the operator of a nuclear establishment, it does not translate into a cap on the entire liability for the incident. In other words, even though one party need not pay, another party like the government would need to pay for the damage caused. This feeds off the Supreme Court's interpretation of Article 21 of the Constitution, according to which a victim deserves full compensation for damage suffered due to industrial pollution. Thus the underlying principle which needs to be adhered to is that victims must not remain uncompensated.

In this regard, provisions for recourse, in Clause 17 of the Bill are equally relevant. To ensure ease of access of compensation for victims, this Bill, as well as comparative legislations in other countries, channel liability, irrespective of fault on to the operator. Thus the victim can proceed against the operator of a nuclear plant in case of nuclear damage, irrespective of who or what caused it. In certain situations however, the damage may be caused by the negligence of the supplier of the nuclear fuel, materials or equipment. The key issue in such cases is whether the operator should continue to be exclusively liable or whether he should have recourse to the supplier who should bear liability. Though public policy would demand that those at fault be made liable, equally, foisting liability on the supplier in case of fault would lead to pyramiding insurance costs since both operators and suppliers would have to take out insurance for the loss thereby raising the cost of nuclear energy. Highlighting these factors forms a key part of the Report which recommended suitably nuanced positions which are both theoretically sound and practically efficacious.

More generally, with regard to the inter-relation between the Bill and international law, PLBS also expressed concerns about the extent to which the Bill was compliant with the Annex to the Convention on Supplementary Compensation for Nuclear Damage. The Statement of Objects and Reasons of the Bill in paragraph 7 states as follows: “It is, therefore, considered necessary to enact a legislation which provides for nuclear liability that might arise due to a nuclear incident and also on the necessity of joining an appropriate international liability regime”. As part of Article II of the CSC, the Convention may be signed by any nation whose national laws either implement the Paris Convention or Vienna Convention, or comply with the provisions of the Annex to the CSC. As India is not signatory to either of the mentioned conventions, it is key that the present Bill comply with the Annex if India seeks to sign the CSC in the future. PLBS noted that the Bill departs from the Annex in three key ways. First, the liability caps mentioned in clause 6 of the Bill are in parts much lower than the liability caps prescribed in Article 4 of the Annex. Secondly, the right of recourse as contained in the Bill is much wider than the right of recourse contained in Article 10 of the Annex thus making the scope for supplier liability wider. And finally, while Article 3 (3) of the
Annex clearly states that the operator shall be absolutely liable for any nuclear damage, the Bill contains no corresponding provision.

The response to the initial reports has been extremely encouraging for us at PLBS. Legislative interventions, such as the ones PLBS seeks, have for long been seen as outside the domain of mainstream lawyering in India. We started out with a desire to change this perception and use our legal education, skills and analytical ability to further the collective good, in the manner we best could. If our first experience is anything to go by, exciting law-making times lie ahead!

Thursday, August 12, 2010

Call For Papers: Socio-Legal Review (SLR) of NLS

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

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


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

2. The Editorial Board has refrained from imposing a theme. A submission is welcome as long as it fits within the general mandate of the Journal, as outlined above.
a. Contributions should be mailed only in a soft copy to, the subject of the mail being ‘Submission for 2011 volume’. Biographical information is to be provided in a removable title page.
b. The Journal is accepting contributions for Articles and Short Articles. With reference to Articles, contributions should not ordinarily exceed 8000 words. With reference to Short Articles, contributions should not ordinarily exceed 3000 words. The Editorial Board reserves the right to reject without review manuscripts that exceed the word limit substantially.
c. The last date for submission is November 30th, 2010. Submissions may, nevertheless, be made after this date. They will be considered for publication in the next volume.
d. All submissions are to be made via e-mail as .doc documents (preferably Microsoft Word 2003).
e. SLR follows the Harvard Blue Book – A Uniform System of Citation (19th edn.) style of referencing. Contributors are requested to comply with the same.

For any clarifications, please mail us at

Wednesday, August 11, 2010

The Khairlanji verdict

The Bombay High Court (Nagpur Bench)Division Bench's verdict in the Khairlanji case has shaken the conscience of all right-thinking people, as the Judges refused to see any caste prejudice to the killing of Dalits by upper caste persons. The entire Judgment can be downloaded from here. Articles by Brinda Karat and Manoj Mitta are especially useful to understand this judgment. A new book on the subject, written by Anand Teltumbde has been published by Navayana.

Accountability Initiative: New Links

The Accountability Initiative is an independent effort to strengthen accountability by undertaking policy research, creating networks of stakeholders, exploring new areas and ways to collect and disseminate information on the quality of public services in India.

Accountability Initiative's blog, which has been previously covered on this blog, has shifted to a new site, accessible here. The organization also has a new website:

Since many issues covered by the organization are of central importance to lawyers, this blog should be of enormous interest to LAOT readers.

Call for Papers: Journal of Indian Law and Society

Journal of Indian Law & Society is currently soliciting submissions for its second issue due in December, 2010. The deadline for submissions is October 5, 2010. Please send in your submissions under the categories mentioned below. All submissions to the Journal are double blind refereed and edited by the student editorial board. For general queries relating to your submissions, kindly write to us at

About the Journal

Journal of Indian Law & Society is a peer-reviewed and student-edited Journal of interdisciplinary studies on law and society. It is based at and published from The National University of Juridical Sciences, Kolkata. The Journal seeks to present a dedicated forum of debate for work bearing upon the cultural, economic, political and social lives of law in India. Published bi-annually in June and December, the Journal solicits articles, notes and comments covering judicial decisions, legislative developments, and empirical research on Indian legal system, public policy studies and theoretical analysis from related fields of inquiry. We welcome submissions from academics, practitioners, policymakers and students from within the legal community and have a strong preference for articles that are not descriptive but prescriptive and argumentatively focused.

Objectives of the Journal

The Journal subscribes to the view that law is a reflection of a society’s fears, inhibitions, values and aspirations. The body of law therefore must continually evolve to suit the needs of a dynamic world. However, seldom does either perfectly mirror the other. These inaccuracies need to be minimized.

Academic debates, deliberations and discussions are the first step towards conceptualizing an ideal inter-play between law and society. There is a need today to explore and continually question this relationship and the values our society embodies to catalyze the process of evolution. In a globalised world, it is even more imperative to carve out a niche for Indian thought and understanding. This would be best served through a socio-legal understanding of our concerns, based in and influenced by our historical, cultural and economic context. Through the medium of our Journal we seek to influence the body of law to make it more responsive to and compatible with the desired societal goals.

We, therefore invite you to help us in our endeavor to highlight the change that is required and the direction we must take to better serve the common objectives of law and society.

Submission Guidelines

Nature Of Submissions

A. Articles (8000-10000 words, inclusive of footnotes)

Submissions in this category should provide a comprehensive analysis of a particular issue in the law and society domain, with a specific discussion of the legal nuances. It should review the existing literature extensively and also highlight the specific contemporary developments in the issue being discussed. The authors are encouraged to discuss the challenges surrounding the issue and to suggest changes to overcome the same.

B. Notes (5000-8000 words, inclusive of footnotes)

This category is more suited for writings on specific themes. Hence possibly more appropriate for our student contributors. The nature of the note should be analytical apart from being descriptive and they should mainly deal with recent developments.

C. Book Reviews (2000-2500 words, inclusive of footnotes)

In choosing a book for reviewing, authors are encouraged to review a book that offers a unique perspective on any issue affecting Indian society and the legal implications it has. It is recommended that the book chosen is a recent publication (within the last 2 years) in keeping with the contemporary focus of the Journal.

D. Essays (3000-5000 words, inclusive of footnotes)

Submissions in this category should provide a concise overview of a specific issue. New ideas and perspectives are encouraged under this category. The idea is to promote a new understanding of an existing or contemporary problem through a central argument. For the purpose of writing an essay, the author can dispense with an extensive review of the existing literature.

E. Case Comments (2000-3000 words, inclusive of footnotes)

Submissions in this category would include a comprehensive analysis of a recent judicial pronouncement, engaging with the underlying theme of law and society. It should provide an analysis of the law prior to the ruling as well as the subsequent implications of the ruling. The comment could also highlight the inconsistencies associated with the judgment, if any.

F. Legislative Briefs (2000 – 3000 words, inclusive of footnotes)

Legislative briefs are policy tools to generate information and propel debate on legislations. Legislative briefs should be extensively analysed, helping readers grasp the background, objectives and main provisions of a particular legislation. Preparing a brief requires synthesizing complex data, fact and statistics and they should be readily understandable, clear and concise. Use of graphs and tables, along with a one-page summary, is encouraged. Briefs must be objective in reporting facts and provisions, but a short section at the end should list down possible problems or inconsistencies to propel further debate. Facts and figures in briefs should be credibly sourced, mostly from the government surveys, commission reports, international organisations and civil society. For any further guidance, feel free to write to us.

Submission Guidelines

1. Contact Address: The Journal accepts only electronic form of submissions and they should be mailed to

2. Deadline: The Journal accepts submissions on a rolling basis. The deadline for submissions for this issue is October 5, 2010. Submissions received thereafter shall be considered for publication in the next issue.

3. Covering Letter: All submissions must be accompanied with a covering letter, containing the name of the author, institutional affiliation, title and category of the submission and a contact address of the author, including the e-mail address. Submissions should be sent as MS word (.doc format) attachments with the title of the article as the file name.

4. Identification Details: The body of the submission must contain no identification of any kind, including the name and institutional affiliation of the author, which must be provided in the covering letter. This is to ensure an impartial review and a fair assessment of your submission.

5. Theme: The Editorial Board has refrained from imposing a theme. A submission is welcome as long as it is in tune with the Objectives of the Journal as outlined above.

6. Decision on Publication: The Journal promptly acknowledges the receipt of submissions and a decision on publication takes around 8 weeks. All submissions made to the Journal are double blind refereed. The issue is out in print within 4 weeks of a decision to publish. Requests for expedited reviews can be forwarded to the Editorial Board when the submission is being considered for publication by other Journals. Please mention the name of the Journal for which the submission is in consideration, one contact person in the Editorial Board of that Journal and a date by which you expect our response. Relaxation of any rules regarding submissions is subject to the discretion of the Board of Editors.

Style Guidelines

1. Form of Submission: Submissions must be in electronic form. All submissions must be word-processed, double-spaced in Times New Roman. Main text should be in font size 12 and footnotes in font size 10. The prescribed word limits are inclusive of footnotes and contributors are expected to strictly conform to length policy and the Submission and Style Guidelines. Kindly go through them carefully before mailing your submissions.

2. Abstract: All submissions must contain an abstract of not more than 250 words describing the relevant conclusions drawn in the paper. There is no requirement of prior submission of the abstract.

3. Title: The Journal does not recommend any specific guidelines regarding the titles and sub-titles. However, the main titles must be centered, typed in small capitals and emphasized in bold. The titles must be uniform, concise and descriptive.

4. Quotations: Quotations should be clearly indicated and it is vital that they are accurate. Double quotation marks should be inserted at the beginning and end of every quotation and where the quotation will run to more than forty words it should be typed as a separate paragraph and left-indented.

5. Foreign words: Foreign words not currently absorbed into the English language should be italicized, e.g., “inter alia”, “bona fide” etc.

6. References and Citations: The Rules of Citation are generally derived from The Bluebook, A Uniform System of Citation (18th Ed.)

Israel's Policies and India's Attitude to Kashmir

Guest Post: K.P. Nayar

For many years, Israel has been criticised by the UN Human Rights Council, Amnesty International and many national governments for its policies towards the West Bank and Gaza.

A group of Indian journalists who recently visited Israel were told, at least somewhat to their surprise, that India's handling of the Kashmir unrest has been no better, if not worse. K.P. Nayar, the chief diplomatic correspondent of the Telegraph, discusses this issue in an article that he has sent to us. The full article is available here.

Tuesday, August 10, 2010

From the latest Frontline

*The encounter guidelines case in the Supreme Court (PUCL v. State of Maharashtra)is taking an interesting turn with almost all the States and the UOI having responded to PUCL/Prashant Bhushan's 20 draft guidelines, which are improved versions of those recommended by the Bombay High Court and the NHRC. Now it is PUCL's turn to reply to those counter-affidavits filed by the UOI and the States. In this piece (Evading Guidelines), I give a detailed account of the case, followed by an interview with Prashant Bhushan.

*Rajmohan Gandhi's 'A Tale of Two Revolts' is a fascinating book which I read and reread recently. I followed it up with an interview with the author, which may be of interest to our readers.

PRS Legislative Research Job Openings

Opportunities at PRS Legislative Research – 2 Positions

POSITION: Analyst/ Senior Analyst

Core responsibilities: The Analyst will be responsible for producing Legislative Briefs, Background notes on topical policy issues, and undertake related activities. The Analyst will also brief MPs on a regular basis on issues that come up before Parliament.

Abilities required: (a) Strong analytical skills with high level of attention to detail (b) Excellent writing and research skills with a high level of comfort in working with numbers; (c) Ability to explain complex issues in an easy-to-understand manner both in writing and orally; (d) Ability to work with a team; (e) Ability to multi-task and deliver quality work in a timely way; (f) Familiarity with the important policy challenges and politics in India.

Qualifications sought: PhD or a Masters degree in Economics, Finance or related areas. Familiarity with a variety of government documents such as budget, RBI publications, etc. is a requirement. Fluency in English and Hindi.

Location: New Delhi

Emoluments offered: Flexible depending on qualifications and ability.

Please email your details and CV to with the subject line: “Analyst”

About the organisation: PRS Legislative Research (PRS) is an independent research initiative based in New Delhi. The mission of PRS is to strengthen the legislative process in India by making it better informed, more transparent and participatory. PRS is managed by a team of highly qualified professionals from various professional backgrounds.

PRS supports Members of Parliament (MPs) and political parties with non-partisan research to enable them to take a more informed view on legislation and other issues of public importance. PRS works in a collaborative manner with various stakeholder groups and experts, including the government.

Details about PRS can be accessed here

NUJS Law Review (Oct-Dec 2009)

In this recent post, I had drawn attention to the print issue of this journal. Happily, the editors have now put up the contents of the volume online, which are available here.

Apart from the article analysing the Indian Supreme Court's decision in Santosh Bariyar which has huge implications for the future of death penalty law that was adverted to earlier, the issue features pieces on : juvenile justice in India (authored by Professor Ved Kumari, one of the leading Indian experts on the issue); juvenile justice in Nigeria; patentability of 'incremental innovation' under the Indian Patents Act; an analysis of the Indian Bayh-Dole Act; abortion law in India (drawing comparative insights from the US); the implications of the significant ruling of the Pakistan Supreme Court in Nadeem Ahmad (July 2009); regulating hate speech law in India; and judicial independence and judicial power in India (including an analysis of recent controversies such as the still unfolding Justice Dinakaran issue and the Judges (Declaration of Assets and Liabilities) Bill 2009).

Sunday, August 08, 2010

The "Spirit" of Privacy

The contours of privacy law in India are, as yet, uncertain. In the wake of attacks against the Unique Identification Data (UID) project, the government is moving ahead with plans to legislate in this area. Tarunabh had listed out some excellent pieces on UID and privacy in his post here, including pieces by Usha Ramathan and Rahul Mathan.

I comment on this latest government initiative and the pressing need for clearer privacy norms in India, deploying the Swami Nithyananda scandal as the backdrop. This editorial was published in the Times of India (Crest) yesterday, as below:

In the Service of Privacy

A leaked videotape involving a Tamil actress thrust Swami Nithyananda into the eye of a controversial storm. While some claimed that the video was doctored, others argued that this was an aspect of tantra not immediately discernible to the uninitiated. Yet others alleged that the swami's encounter with the actress casts serious aspersions on his claim to be celibate and his legitimacy as a guru.

It is important to separate the 'moral' from the legal here. For the most part, what the good swami does within the privacy of his home is his own business. In fact, advanced legal regimes would treat this as an unlawful encroachment on the swami's right to privacy. For Lenin Karuppan, an erstwhile disciple, had secretly planted a camera in the swami's bedroom and leaked out the tape without his consent.

More recently, K Yogesh, a devotee of the swami, lodged a criminal complaint alleging that Lenin himself had committed a legal wrong. For, his secret entry into the swami's bedroom and the planting of a camera therein without permission had caused severe distress and annoyance to the swami and was therefore punishable under the Indian Penal Code as "criminal trespass".

There is a decent chance that Lenin would be held criminally liable for this intrusion. However, what of civil liability? Can Indian courts apply common law principles of privacy and grant appropriate damages to the swami for this harm?

US courts have been preventing such intrusions through civil law remedies since the publication of an influential Harvard Law Review article in the 1890s which advocated for a right to privacy and noted in pertinent part that :

"The intensity and complexity of life, attendant upon advancing civilisation, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury."

Retreating from the material world is not an alien concept to a civilisation, whose ancient scriptures have prescribed "vanaprastha" as one of the four stages to be traversed in one's life. More to the point however, the massive proliferation and dissemination of personal data in this digital day and age gives great cause for concern and makes a law to protect privacy imperative.

One might argue that Indian law only recognises a right to privacy within the meaning of Article 21 of the Constitution of India, which guarantees to every citizen the "right to life". In other words, unless the state is directly involved in an infraction that implicates the privacy of a citizen, a court cannot interfere. But even here, one might argue that by failing to prevent invasions of privacy by other private citizens, the state breaches its constitutional duty. Such an argument was implicit in the notorious murderer Auto Shankar's case, where the court grappled with the issue of whether or not sordid details of the serial killer's life could be published without his consent.

Justice Jeevan Reddy of the Supreme court held in that:

"The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his life, family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages."

In other words, the court was suggesting that breaches of privacy by non-governmental actors were also to be prohibited by laws such as the common law of privacy. Unfortunately, the contours of this law are uncertain, as we have not had many privacy cases in India.

All this is set to change, as the government is now seriously considering a comprehensive statute to protect privacy. It has constituted a panel of senior officials headed by Shantanu Consul, secretary (personnel) in the Department of Personnel and Training, to prepare a draft law in this regard. The key challenge of this law will be to determine the extent of "privacy" accorded to citizen's data and the circumstances in which such privacy can be abrogated in the larger interests of the State and the public.

Nithyananda Swami and his esoteric video are not the trigger for this wonderful legal initiative by the government. Rather, it stems from the scathing attacks that have been mounted on the ambitious Nilekani-led UID (Unique Identification Data) project that seeks to provide unique identity cards to all Indians. Pertinent information relating to specific individuals could then be tagged to the ID in question. Civil society groups and many others have berated the project and questioned its legitimacy on account of the capturing of private data and its potential for misuse. Indeed, some fear that without a corresponding privacy legislation, there is a serious threat to the very constitutionality of the UID project.

Were such a legislation to shape up in the near future, the swami's supporters will have much cause to celebrate. Not only because it would bolster the swami's case for preventing future intrusions of this sort, but also because spiritual development and privacy are largely two sides of the same coin. Indeed, one cannot effectively traverse the many layers of human consciousness, unless one's metaphysical odyssey is protected to some extent from harmful outside interference.

Thursday, August 05, 2010

'Honour' Killings, Love Commandos and what Liberal-Secularists must do

Lok Sabha discussed 'honour killings' yesterday, the Supreme Court convicted three 'honour killers' for murder, the Khaps demanded a ban on same-gotra marriage, further details of the legal changes being considered by the Group of Ministers to curb these killings emerged, and 'Love Commandos' have set up a helpline to protect victims of family honour. It has been a busy week!

Some of the GoM proposals raise familiar liberal dilemmas: while the liberal horror at these killings is evident, should we support reverse onus clauses for murder? (See also, this earlier post). Of course, not all proposals are questionable. Simplifying the procedure under the Special Marriage Act is perhaps of utmost importance.

But those of us who consider ourselves liberal and secular can act at a personal level too. If these 'Love Commandos' are a serious bunch, they can do with legal help. Let the lawyers and law students volunteer to provide help where we can and where it is needed. Second, we must choose the secular alternatives in family law, wherever available. The Special Marriage Act will stop being 'Special' and become the norm only when citizens use it extensively - even when they are marrying someone from the same community.

Wednesday, August 04, 2010

Setalvad, Bar Exams, Disability

1. Gautam Patel's moving obituary on Atul Setalvad is worth reading.

2. On Bar Exams - If the Bar Council is going to regulate entry into the profession using a separate bar exam, shouldn't it get out of the business of regulating legal education? Does any one know if law schools are demanding autonomy as their fair share in the bargain?

Update: A reader says 'KN Chandrashekharan Pillai and NS Soman of CUSAT School of Legal Studies have argued for precisely this in a recent article in the "Kerala High Court Cases". I am sorry I cannot provide the citation as I don't have access to this journal right now.' Does anyone else have a scan/soft copy they can share?

3. Disability - In an apparently regressive judgment in Dalco Engineering v Padhye (March 2010), Justice Raveendran of the Supreme Court has held that the non-discrimination obligations under the Persons with Disabilities Act apply only to the State, and not to the private sector. The judgment fails to appreciate global trends where most democracies prohibit discrimination on the ground of disability in public as well as private sector. The case turned on the interpretation of section 2(k), which reads thus:
"establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;"
Interpreting this clause, the SC held that a company registered under the Companies Act is not 'a corporation established by or under a Central ... Act'. In light of precedents cited in the case, this appears to be an inescapable conclusion. Was it time to revisit those precedents? Or is it best to leave this for Parliament to clarify?

Tuesday, August 03, 2010

All India Bar Examination case: an update

Legally India has this update on the case, and the outcome of the last hearing in the Supreme Court on July 30.