Wednesday, September 29, 2010

Access to Quality Legal Education: 3 vs 5 Years?

I'm pleased to bring you a guest post from Kshitij Malhotra on a topic close to my heart.

As Kshitij rightly argues, we need to create more 3 year programs of a quality that matches up to the best 5 year programs. The Rajiv Gandhi School of IP law at IIT Kharagpur is a good step in this direction. DU has always had an enviable 3 year program record. And now the Jindal Global Law School (JGLS) promises to give a complete face-lift to 3 year courses.

But these schools are few and far between and we need more such degree programs.

However, I'm not so sure that Kshitij's proposal that lateral entry be permitted for graduates from other disciplines to the NLU's (in the 3rd year) is a viable one. Most national law schools do not just offer BA subjects (social science courses such as economics and sociology) in their first two years. Rather they intersperse it with a good sprinkling of basic legal subjects as well. This appears sensible policy to me, as students need some sense of the law in their first two years. A thoroughly compartmentalised BA vs LLB program defeats the very purpose of an integrated BA LLB course. And if this were to be the case, we may as well have just had separate BA and LLB courses and degrees.

Without much ado, I give you Kshitij's thoughtful musings on this theme. But first, a little background on Kshitij:

He is a qualified chemical engineer from Indraprastha University, and a student of law at University of Delhi (LC2). He is a registered patent agent, and working as a patent professional since 2006. Presently, he is involved with a start up company in Intellectual property service domain. Before working with this start up, he had a brief stint at an IP law firm, ZeusIP Advocates. He started his career from a knowledge process outsourcing company, Evalueserve.

Lack of 3 year LLB programs at top law schools: Restricting access to quality legal education

Gone are the days, when the term lawyer imaged a black robed guy sitting in a court chamber. Lawyers are now commonly seen in the carpeted bays of corporate offices. The practice has moved from saving shady criminals to overseeing merging of multi-national companies. From contending a family feud over a piece of land to getting injunctions over intellectual property infringement. Certainly, the legal profession is rapidly evolving, and so are the firms in the legal services industry. Cross-domain professionals are now highly sought. Company Secretaries well aware of business and compliance laws, Charted accountants that are versed with tax laws and PHDs that are well versed with patent laws.

Such professionals are accepted with open arms, and of course remunerated very well. Going forward, there seems to be an optimistic demand in the industry regarding such professionals. However, the concerns remain regarding the supply. The question therefore arises whether our legal education system is providing doctors, engineers, PHDs, CAs and civil administrators with enough opportunities to access quality education? The Bar Council of India, the body responsible for accreditation of courses at law schools, prescribes two streams of law courses required to be enrolled as an advocate viz. a 5 year integrated LLB degree open for students after 10+2 or 11+1, and a 3 year law course for graduates. The onus of choosing what to offer rests on the law schools.

At present, none of the top law schools including NLSIU, NLUI, NALSAR and NUJS, provide 3 year LLB programs (although initially few of the top law schools did offer 3 year LLB programs, but, then they gradually moved to the 5 year programs). This leaves graduates, and more importantly professionals, with very few options to pursue quality legal education. The reasons for not providing 3 year LLB programs are best known to these law schools. Some suggest that 5 year programs are easy to mange, and students are able to save a year in completing their education.

However, most often than not lack of interest in students for 3 year LLB courses is quoted as an excuse. But, is lack of interest really a justified reason to restrict these programs? Recently, IIT Kharagpur started a 3 year LLB program restricted to engineers, doctors and post graduate in sciences, and it has been a success. The 3 year LLB program at University of Delhi (the only program that has some credibility and quality) has always been well attended by professionals from civil administration, police, corporate, engineering, and information technology, and most of them enter into the legal profession as a litigator or a consultant, after the completion of the program.

Jindal Global Law School, probably the first law school set up with a vision of providing globalized education in India, has also instituted a 3 year LLB program. 3 year LLB programs at other universities, such as Banaras Hindu University and Banglore University, are also seriously attended. This clearly shows that takers of 3 year LLB programs have always been present.

Another reason given by administrators is that professionals do not consider study of law seriously, and only see it as a part time vocation. Law is serious business, and market forces cannot be allowed to govern studies in law. This argument though partly true, is not true in its entirety. Lackadaisical attitude has been prevalent in many students regarding legal education, wherein working professionals pursue LLB programs with a typical “ho jayega” (we will manage it somehow) attitude, and wherein graduates pursue LLB programs with a typical “kuch nahin se kuch to sahi” (better study law then do nothing) attitude.

However, this does not mandate closing the doors of quality education for professionals who are serious about studying law. I am sure, if given an opportunity of studying at top law schools of the country, a professional will definitely think of means to balance professional occupation with studies, and even might think of taking a sabbatical. Also, when a professional decides upon pursuing legal education, then his/her decision is based on much more deliberated grounds as compared to the decision of a typical teenager, who usually enters these top law schools right after completing schooling.

Also, opening up 3 year LLB courses does not mean compensating standards of education, such as relaxing minimum attendance criteria etc. Neither does it mean mandatory setting up of evening classes. Maintaining the standards of education is always in the hands of administrators. However, having evening classes scheduled for students, who are needy and want to work side by side for their sustenance, might not be a bad idea. Offering late evening classes has been a known concept at the B-schools in India. University of Delhi successfully runs an evening program at two of its centres. The onus of meeting the expectation of a law program is completely on the students enrolled at the program. In fact, the strict curriculum and attendance policies (some of which requires a minimum attendance of 75 percent) will automatically instill a sense of urgency and seriousness, if lacking in enrolled students.

The old Bar Council of India (BCI) rules (rule 5, 7 and 8 of section A) mandated all law schools to provide an option of lateral entry in their 5 year LLB courses, wherein graduate and post graduate students can enter the 3rd year of such programs. Notwithstanding, the concept of lateral entry might not be an attractive proposition anyway for professionals as this would mean studying with fellows, who are easily 5-6 years junior to them. This at least provided flexibility to professionals, post graduates and graduates to enter laterally into the 5 year LLB programs. However, these rules have been scrapped by the BCI and the latest set of BCI rules (rule 13 of Section A) prohibits such lateral entry and exit. In fact, the latest proposed rules of the BCI suggest implementation of an age bar to the entry of both 5 year and 3 year LLB programs. As per the proposed rules, no candidate above the age of 20 would be admitted to the 5 year LLB program, and nobody above 30 years of age will be allowed to join the 3 year LLB program. Imposition of such bar is not at all mandated.

On one hand, policy makers consider law to be sacred and a profession of the mature, and on the other hand, they are restricting entry of experienced and learned administrators, police officers, doctors and scientists into the profession!

Therefore, a review of 3 year LLB policy at top law schools is highly desirable. Further, a review of lateral entry to 5 year LLB by the BCI is also necessary as this might provide means for professionals and graduates to pursue quality legal education. Opening up evening classes on the lines of law program at University of Delhi can also be looked upon. Until then, it might be fair to say that our legal education system, which is supposed to imbibe the philosophies of justice, might be ignorantly or intentionally imparting injustice to law aspirants, and especially to a class of professionals including civil administrators, engineers, doctors, PHDs, CAs and CS. Excluding such a class of professionals will not only ruin the chances of taking up the level of legal profession in India, but might also ruin any chances of having domino effects on the standards of our judiciary.

Pratap Bhanu Mehta on Social Justice in India

Pratap Bhanu Mehta, one of India's leading political theorists and constitutional experts, will be delivering the Nand & Jeet Khemka Distinguished Lecture at the University of Pennsylvania on Wednesday, October 27, 2010. The lecture is on 'The Politics of Social Justice in India'. As per the event flyer:

"Dr. Mehta will examine the discourse of social justice in contemporary India and the ways in which it arises out of the intersection of caste and politics. He will also look into the historical origins of this discourse and the sense of self and moral psychology that underlies it, which argues that what is at stake is the meaning of India’s constitutional project."

Further details of the event are available here. Those in the vicinity should most certainly attend.

Thursday, September 23, 2010

Dignity on Trial: Human Rights Watch Report on Conducting and Interpreting Forensic Examinations of Rape Survivors

Human Rights Watch has released a comprehensive report "Dignity on Trial" on the use of forensic evidence in rape trials. The report compiled by Aruna Kashyap has also been covered by the New York Times. The report critiques the criminal justice system for its perpetuation of morally loaded ideas of chastity, modesty and virginity, and argues that what is needed is not just law reform, but a change in mindset which sees violence as a violation of women’s dignity, equality, sexual autonomy and bodily integrity.

It also make a set of reccomendations to the Indian government which I am reproducing:

Recommendations To the Indian Central and State Governments:

In order to ensure that the current review processes bring about concrete change in how the health and criminal justice systems approach survivors of sexual violence in general, and rape survivors in particular:

Prohibit the finger test and its variants from all forensic examinations of female survivors, as it is an unscientific, inhuman, and degrading practice, and
o Instruct doctors not to comment on whether they believe any girl or woman is “habituated to sexual intercourse”.
o Instruct all senior police officials to ensure that police requisition letters for forensic examinations do not ask doctors to comment on whether a rape survivor is “habituated to sexual intercourse.”
5 Human rights watch | September 2010
o Communicate to trial and appellate court judges that finger test results and medical opinions about whether a survivor is “habituated to sexual intercourse” are unscientific, degrading, and legally irrelevant, and should not be presented in court proceedings related to sexual offences.
• Devise special guidelines for the forensic examination of child survivors of sexual abuse to minimize invasive procedures. Emphasize that tests that risk mimicking the abuse should be conducted only when absolutely medically necessary to determine if injuries need therapeutic intervention. Ensure that any test is only carried out with the fully informed consent of the child, to the extent that is possible, and the consent of the child’s parent or guardian, where appropriate.
• Develop, in a transparent manner and in consultation with Indian women’s, children’s, and health rights advocates, doctors, and lawyers, a protocol for the therapeutic treatment and forensic examination of survivors of sexual violence that adheres to:
o The procedural and evidentiary decisions pronounced by the Indian Supreme Court and international laws.
o Standards and ethics issued by the World Health Organization.
• Organize, in consultation with national and state judicial academies and experts on women’s, children’s, and health rights, special programs for trial and appellate court judges on proceedings related to rape and other sexual offenses, and on the rights of survivors.
• Organize, in consultation with state police academies, judges, and experts on women’s, children’s, and health rights, special programs for police related to investigating and prosecuting sexual offenses, and on the rights of survivors.
• Organize, in consultation with judicial and other officers in charge of prosecution services and experts on women’s, children’s, and health rights, special programs for prosecutors on proceedings related to rape and other sexual offenses, and on the rights of survivors.
• Develop, in consultation with women’s, children’s and health rights experts in India, multidisciplinary centers in at least one government hospital in every district of the country (or in an alternative appropriate population-to-distance norm), staffed with trained personnel and equipped to provide integrated, comprehensive, gender- sensitive treatment, forensic examinations, counseling, and rehabilitation for survivors of sexual violence.
Dignity on Trial
• Develop and introduce, in consultation with lawyers and experts on women’s, children’s, and health rights, a mandatory gender-sensitive training module for medical students on treating and examining survivors of sexual violence.
• Form a committee to review, update, and revise medical jurisprudence textbooks to ensure the inclusion of the latest positions in Indian law on procedure and evidence related to sexual violence.
• Consult with women’s rights and children’s rights activists and lawyers to ensure that their concerns regarding forensic examinations in sexual violence cases are addressed in the final version of the Perspective Plan for Indian Forensics. Before finalizing the plan, the government should also study lessons learned from other jurisdictions about how integrated medical and forensic services are provided in a gender-sensitive and timely manner.

Friday, September 17, 2010

Bollywood and the Rule of Law

In this fascinating paper, Michael Hoffheimer surveys the changing treatment of law and lawyers from Saratchandra's original novels Devdas and Parineeta, Bimal Roy's classic film dramatizations of the 50s, and the 2002 and 2005 hits. He argues that the mythic reworking of the stories shows the enduring appeal of the conflict between romantic love and social convention. And he shows that the transformation of the male lead in Parineeta from lawyer to musician and the corresponding transformation of Devdas from rusticated student to alcoholic lawyer pit law directly against eros and complete the personification of lawyers as bad lovers. Hoffheimer corrects a huge historic oversight in providing the first discussion in an English language law review of Saratchandra and of the classic film translations of his works.

Thursday, September 16, 2010

Round 2 of HRD Ministry v. Pratap Mehta

Pratap Mehta recently wrote on stinging piece on the need for "introspection" in the HRD ministry in The Indian Express. I don't know enough to judge the substance, but the tone of the article is full-throated, aggressive, but hardly personal. One can't say the same about the response from Sunil Kumar, additional secretary at the HRD ministry. Since it is by a serving babu on a subject that concerns his ministry, Kumar's is obviously an official reply, not a personal rant. Which is why his petulance is even more embarrassing; his is after all the government view.

Also note the logic: Kumar objects to Mehta's claim that the Education Tribunals Bill has not passed Parliament by saying that it was passed by the Lok Sabha, but is still pending in the Rajya Sabha (what then, is Kumar's definition of Parliament?). He also brushes aside Mehta's critique of a sample bill, drafted by a group of academics, as a slight on their "unimpeachable" credentials, not as something that requires a counter-argument by him. While Kumar's idioms may be his own, it is inconceivable that a serving babu would write this without approval from his minister. And it says "to be continued", which means there's more coming.

UPDATE: Sunil Kumar's concluding part is now available. Mehta must neither preach nor rant, Kumar preaches and rants in this column. While the substantive issues are up for grabs, the petty tone of Kumar's official response re-asks the original question: where is the HR in the HRD ministry?

Tuesday, September 14, 2010

Public Health Exclusions Under Patent Law

At the start of this year, WIPO (World IP Organisation) commissioned a group of us (under the stewardship of Professor Lionel Bently, the famed Cambridge IP don and co-author of the leading treatise: Bently and Sherman on IP) to do a report on exceptions, exclusions and limitations in patent law.

This report was prepared pursuant to the work at the SCP (Standing Committee on the Law of Patents) and will be tabled at the 15th SCP session this October.

The background to this report has been articulated thus:

"At its thirteenth session, held from March 23 to 27, 2009, the Standing Committee on theLaw of Patents (SCP) decided that the Secretariat would “commission external experts astudy on exclusions, exceptions and limitations focused on, but not limited to, issues suggested by members, such as public health, education, research and experimentation and patentability of life forms, including from a public policy, socio-economic development perspective, bearing in mind the level of economic development” (document SCP/13/7, paragraph 9(c)(i))."

The authors of the report are as below:

Annex I: Professor Lionel Bently, Center for Intellectual Property and Information Law,
Cambridge University, United Kingdom;

Annex II: Professor Brad Sherman, University of Queensland, Australia;

Annex III: Professor Denis Barbosa, Catholic University of Rio de Janeiro and
Rio Grande do Sul, Brazil;

Annex IV: Professor Shamnad Basheer, National University of Judicial Science, India;

Annex V: Professor Coenraad Visser, University of South Africa, South Africa; and

Annex VI: Professor Richard Gold, McGill University, Canada.

To download all the reports, click here.

Our report (marked as Annexure IV and authored by Prashant Reddy, Shashwat Purohit and me) deals with "public health" exclusions. I reproduce parts of our introduction here:

"There is much debate on whether or not patents foster a higher rate of new ideas, and if so, to what extent. More importantly, the issues are technology specific, and evidence that patents may help in an investment heavy industry such as pharmaceuticals may not be readily transposable to industries such as Information Technology and semiconductors. Further, there is also the issue of developing and least developed countries that are net importers of technology.

The question is whether patent regimes promote technology transfer to these countries or whether they effectively curb the potential growth that these countries might have experienced, had they had the freedom to imitate and learn; freedoms that many of the developed countries enjoyed in the pre TRIPS era. For these countries, the potential use of patent eligibility exclusions is far more significant in driving national policy.

A brief survey of case law from developed economies would suggest a restricted reading of eligibility exclusions. However, developing countries such as India opt for a wide reading of such eligibility exclusions, reflecting their specific national priorities. Although we’ve categorised section 3(d) of the Indian Patents Act as an “impure” patent eligibility exclusion later in this chapter, it may help to consider this section for the purpose of this argument.

Section 3(d) seeks to exclude a large number of similar chemical/pharmaceutical substances from patentability by providing that only those derivatives that demonstrate significantly enhanced efficacy would be patentable. This exclusion has been expensively interpreted by patent office and the courts: notably, the term ‘efficacy’ in the explanation to Section 3(d) of the Patents Act, 1970 has been interpreted in Novartis AG & Another v. Union of India & Others, 2007 4 MLJ 1153 at ¶ 13 to include only “therapeutic” efficacy, with the result that a number of derivatives that demonstrate non therapeutic advantages such as heat stability etc are likely to be excluded.

For developing countries, patent policies are not just about increasing the rate of innovation, but are to be calibrated to take into account concerns of “access” to technology goods. The question of access is most significant in the context of pharmaceuticals and public health. Therefore the patent regime cannot be hermetically sealed off from other public policy concerns such as health. Indeed, one often witnesses a conflict between patent rights on the one hand, and social values, public policies and fundamental rights on the other. The issue for most countries then is to balance out these competing and often conflicting concerns and devise a regime that would, while furthering innovation outcomes, also not erode important values such as health.

It is a truism that patents often cause price rises. A variety of tools exist to regulate such price rises and ensure affordable access to consumers, particularly in the context of drug patents and developing countries. Indeed most such measures revolve around ex-post regulatory mechanisms such as compulsory licensing that help limit the impact of patents and in the process promote public health goals. This chapter seeks to evaluate the patent and public health interface from the point of view of ex-ante mechanisms i.e. ways in which countries have sought to limit the grant of patents to certain categories of subject matter in a bid to promote access to public health goods."

Amongst the various exclusions that could potentially further public health objectives, we limit ourselves to two exclusions: the "method of medical treatment" exclusion and the "morality" exclusion.

In so far as our Indian section is concerned, we try and draw out propositions from opposition cases (from the patent office) as best as we can. As many of you know, courts are still relatively new to patent matters and it will be a matter of time before they begin to yield sound propositions on various statutory exclusions.

Before I sign off on this, I want to place on record my genuine admiration for two final year law students (Rohan Sahai and Medha Marathe) at NUJS that we roped in at the last minute. One of our co-authors on this report fell seriously ill towards the end of the report and I sos'ed these two students for help. Not only did they come up to speed on complicated patent concepts and extensive literature surveys in the shortest possible time, but managed to do a brilliant job of helping us finish the report and contributing significantly on the India section.

Friday, September 10, 2010

Ask, and You Shall Receive

The September 9 opinion of the United States District Court (Central District of California) in the case of Log Cabin Republicans v. USA is available here. In its 85 page opinion, the court found fault with the US Military's “Don’t Ask Don’t Tell” policy on the touchstone of the fifth and first amendments to the American Constitution (although definitive relief has not yet been issued). Like Naz Foundation the opinion reminds us that constitutional law does not begin with the Supreme Court, although it may end there.

Naz and Comparative Constitutional Law

Sujit Choudhry, one of the leading figures in the field of comparative constitutional law, has just made available on ssrn a wonderful paper titled 'How to Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation'. The abstract of the paper is as follows:

How should Indian courts do comparative constitutional law? Does the practice of cosmopolitan citation carry with it the necessary implication that Indian constitutional adjudication is part of a trans-national conversation on the relationship between rights, democracy, courts and the rule of law that knows no jurisdictional boundaries? Or is comparative analysis entirely inappropriate to the interpretation of a document that, is the embodiment of the Indian political identity?

In this chapter, I offer a provisional answer to these questions, by puzzling through the recent judgment of the Delhi High Court in Naz Foundation v. Union of India, which held the application of section 377 of the Indian Penal Code to consensual sexual acts of adults in private to be unconstitutional. Comparative constitutional law did real work in Naz Foundation. But Naz Foundation neither used comparative materials in a way that was universalist, nor rejected their relevance because of a commitment to the particular and distinctive national character of the Indian Constitution. Rather, the court reasoned dialogically with comparative materials, and used them as interpretive foils to identify, reframe and enforce the premises of the Indian Constitution that were articulated at its adoption. Thus, the Indian courts join their counterparts in the United States, Canada, and South Africa in adopting the dialogical model of comparative constitutional interpretation.

At the heart of Naz Foundation is the analogy between untouchability and sexual orientation. In a growing number of constitutional systems, courts have condemned discrimination on the basis of sexual orientation, and interpreted constitutional guarantees of liberty and/or privacy in a non-discriminatory manner to encompass sexual intimacy between same sex partners. The question was whether the holdings and reasoning of those foreign courts resonated with pre-existing Indian constitutional premises. Naz Foundation held that they did. The court appeared to regard sexual orientation and untouchability as analogous, and accordingly seems to have reasoned that the Indian Constitution should condemn discrimination on the latter basis as much as on the former. Naz Foundation demonstrates that there is a way to do comparative constitutional law seriously that not only acknowledges, but also affirms, the notion that the Constitution is a reflection of the modern Indian political identity.

Wednesday, September 08, 2010

Invalid Appointments and the De Facto Doctrine

A writ petition was filed recently challenging the legality of the appointment of the current chairman of the Copyright Board, Raghbir Singh. The writ came up before Justice Sikri of the Delhi High Court yesterday and notices have been issued.

I've been dealing with this controversial appointment in several earlier blog posts on SpicyIP. Since the case raises some interesting constitutional issues as well, I thought I would flag them up here on LAOT.

In one of the posts on SpicyIP, I had questioned the eligibility of the Chairman on the ground that he was 66 years old at the time of his appointment and therefore not suited to hold the office of Chairman of the Board. The Copyright act provides (interalia) that the chairman should be a person eligible to be appointed as a High Court judge.

Eligibility criteria for High Court judges find mention in Article 217 of the Constitution of India, under which a judge must necessarily retire at the age of 62. I took this to mean that no person above the age of 62 could be appointed a High Court judge. And since Mr Singh was 66 at the time of his appointment, he was not eligible to be a High Court judge. And therefore not eligible to be appointed as Chairman of the Copyright Board as well. Well, it now turns out that I was wrong.

Courts have consistently held that the retirement age of a High Court judge as stipulated in the Constitution cannot necessarily be construed as an "eligibility" criterion. I quote extracts from a recent ruling (State of Uttaranchal vs Balwant Singh), where the Supreme court approved of the ruling by a division bench of a high court as below:

"The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate General who is qualified to be appointed as a Judge of a High Court. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court "shall hold office until he attains the age of 60 years" (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years).

The Division Bench further held that the real question then was whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. It was further held that as the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court. The Court further observed that the provisions about duration in the first clause of Article 217 cannot be made applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor.

This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words "until he attains the age of sixty years". The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217."

and later:

"In view of the clear enunciation of law in the aforesaid judgments, the controversy has been fully settled that the Advocate General for the State can be appointed after he/she attains the age of 62 years. Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years. In a number of other cases regarding the appointment of other authorities, the Courts have consistently taken the similar view."

and still later:

"The controversy raised by the petitioner in this case was decided 58 years ago in the judgment of Karkare (supra) which was approved by the Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res-integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevent the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office."

Mr Singh's appointment has been challenged on other grounds as well. Assuming that Singh's appointment is held invalid on such other grounds, how would this impact the legality and tenability of the Board proceedings and its order? Under the de facto doctrine and the doctrine of necessity, courts are likely to uphold the validity of the proceedings, notwithstanding any irregularity in the appointment of members adjudicating the dispute/proceedings. In other words, even assuming Mr Singh's appointment is held illegal or irregular on some ground, this will not, by itself, vitiate the proceedings of the Copyright Board.

What if the copyright board order is appealed though? What impact will an irregular appointment have on the tenability of the order?

Would the appellate court hold that no "deference" be given to any fact finding done by the Board? Those in the know of administrative law norms may be familiar with the age old and time tested law vs fact that I am still unable to comprehend: aren't all legal propositions really "facts", albeit of a certain specific kind. The distinction becomes particularly problematic when we consider "mixed questions of law and fact", a nebulous category ingeniously invented by lawyers to open up any factual issue that wouldn't warrant interference otherwise.

Anyway, standard admin law norms suggest that courts are to defer to agency expertise when it comes to issues of "fact, and cannot reopen them unless there is a manifest error on the face of the record. However, in so far as issues of law are concerned, courts are free to review them de novo. Given the flawed constitution of the copyright board, would the court decide to not grant any deference to issues of "fact" that have been determined at the first instance by the Board? If such facts could be reopened by counsel, would it lead to a re-enactment of the entire saga once again before the courts?

I believe there is a recent case where a TRAI order had been appealed to a court in the first instance. Since this was the first appeal, the court appears to have held that it could review both questions of law and fact afresh. I'm hunting around for this decision and will bring you more on this once I find it. Alternatively, if any of our readers are in the know of this decision, please do let us know.

As to whether or not an appellate court hearing this particular compulsory licensing matter will adopt the above ruling and reopen all issues of fact (and perhaps even remand the case to a freshly instituted copyright board for specific factual determinations) remains to be seen.

ps: many thanks to Vivek Reddy for pointers on the TRAI decision and the standard of review.

Tuesday, September 07, 2010

From the latest Frontline

*Frontline's latest issue has a detailed expose of how the Hindustan Unilever is avoiding its responsibilities to its workers exposed to mercury in the thermometer factory it owned in Kodaikanal,in the cover story written by Sarah Hiddleston.

*Minister of State for Environment and Forests, Jairam Ramesh's landmark decision rejecting Vedanta's plea for clearing Niyamgiri forests for mining - which resulted in the reversal of a Supreme Court's judgment - requires more than a cursory attention. Relying on the text of the Minister's decision, available on the MoEF's website, I explain why it is significant.

* The Whistleblower Bill, introduced in the Lok Sabha, has been analysed threadbare here.

*Book Review: A review of memoirs of Justice Albie Sachs, Fali S.Nariman and Vicaji J.Taraporevala.

Monday, September 06, 2010

Academic Misconduct Survey for Law Students

Aditya Singh and Jonathan Gingerich, Student Empirical Research Fellows at the Harvard Law School Program on the Legal Profession are conducting empirical research on the prevalence and causes of academic misconduct by students in Indian law schools, as well as the strengths and weaknesses of the forms of student evaluation that law schools currently use. They hope to assist law schools in India in developing better methods of testing and evaluating students.

As part of this study, they are surveying law students from a number of Indian law schools. If you are a law students and interested in taking the survey, it a brief introduction to this research is available here. They can be contacted at

Saturday, September 04, 2010

JGLR Call for Papers

The Jindal Global Law Review is inviting submissions for its March 2011 issue on the theme "The Changing Role of Law in Asia: Revolution or Devolution?" The issue will explore the effect of the evolution of laws and regulations in Asia with particular attention to the contemporary social, political and economic landscape of Asia. More information and details about how to submit can be found here. Please note that abstracts needed to be submitted within the next couple weeks.

Wednesday, September 01, 2010

Parliamentary Reform

For those who followed this previous post, the Rajya Sabha has sent the Prevention of Torture Bill to a Select Committee for further examination (see Pratap Bhanu Mehta's piece in the Indian Express today on the Bill).

On a related note, I want to reproduce verbatim the speech by Mr. NK Singh, Rajya Sabha MP from Bihar, in the House yesterday because it reflects some of the concerns we have raised regarding parliamentary reform on this blog previously, including the need to provide MPs with research staff and for greater transparency in Parliamentary Committee proceedings:

I think, the one question we must ask ourselves is: What can we do to enable a Member of Parliament to perform his functions more diligently and improve the quality of his parliamentary debate? If we look at cross-country international comparison, Sir, all over the world Members of Parliament get independent research staff which can give them advice independent of this advice which they receive from the executive. Look at the US practice, look at the UK practice and look at cross-country comparisons all over the world. How do you enable a Member to more efficiently and diligently perform his functions? There are two important lacunae. One is that he has no office facility, whatsoever. If you give him a house, you must allow every Member to be able to have one independent office facility and have an independent research staff of some quality to be able to enable him to perform his functions. I think that the Minister for Parliamentary Affairs very rightly pointed out that in the ensuing debate on the MPs Salary there is a growing public cynicism on the work that Members of Parliament perform. So, I think there is a great need to improve this public perception. One of the things which we need to do is about the work done by the Members of Parliament in Parliamentary Committees, in Standing Committees, in Public Accounts Committee, in Estimates Committee. All this goes completely unnoticed in the coverage which the media does. So, I request the Minister of Parliamentary Affairs to find out some way in which the work done and diligence exercised by Members of Parliament in these Parliamentary Committees also do get reflected in improving the public perception on the work that MPs perform so that this growing cynicism about what MPs can do is dissuaded.

Readers may note that currently proceedings of a parliamentary committee are completely opaque and not available even under the Right to Information Act. Mr Somnath Chatterjee made some unsuccessful attempts to make the proceedings of Parliamentary Committees transparent during his tenure as the Speaker of the Lok Sabha.

Readers may also be interested in this book by Arun Shourie, and his complaint that good work by MPs is often ignored by media and this previous post on this blog on how to judge politicians.