Tuesday, April 26, 2011

Legal Basis for Telephone Tapping

A very interesting clarification from the Cabinet Secretariat on the legal basis for intercepting telephone conversations. It would be useful if the government could release the Cabinet Secretary's report in its entirety so that it can debated.

Thursday, April 21, 2011

Institutional Bypass!

In a week where Indians have been discussing institutional reform, Mariana Mota Prado of the University of Toronto, School of Law, published her paper suggesting Institutional bypasses as a way of development reform.

Prof Prado argues,
"Beginning in the 1990s, an institutional perspective on development has become increasingly prominent in development thinking, captured in the mantra, “Institutions Matter,” or “Governance Matters.” Based on the assumption that “institutions matter”, there has been a massive surge in development assistance for institutional reform projects in developing and transition economies involving investments of many billions of dollars. However, these reforms have had mixed to disappointing results thus far. Against this backdrop, this paper identifies successful institutional reforms, and claims that they have one common feature: instead of trying to fix dysfunctional institutions, as most failed reforms do, they simply bypass them. For this reason, they will be called “institutional bypasses”. Like a “coronary bypass” surgery, an institutional bypass creates new pathways around clogged or blocked institutions. Institutional bypass uses the same strategy: it does not try to modify, change or reform existing institutions. Instead, it tries to create a new pathway in which efficiency and functionality will be the norm. Understanding what is a bypass and how it works can provide answers to an important question in the law and development literature: how to reform dysfunctional institutions. This paper argues that under certain circumstances an “institutional bypass” presents a promising alternative for institutional reforms in developing countries, but at the same time it should not be regarded as a panacea for development problems"

It would be promising to think of this in the Indian context, if only to get a sense of the stakes involved in institutional reform.

Also relevant is a debate between Kaushik Basu and P. Sainath over Basu's proposal to legalize certain forms of bribe giving as "acceptable costs". Basu's argues that this might lead to a decline in bribe taking, as someone who pays a bribe to get her work done, might on completion be interested in cooperating in getting the bribe taker caught. Sainath, in a cutting riposte argues that this 'obscene idea' would serve the middle classes but leave the poor even more disempowered than before


Jean Dreze responds to Basu as well. He argues, "It may be argued that paying a harassment bribe is not morally reprehensible in the first place, because the bribe-giver is a victim and the bribe is an act of self-defence. I am not persuaded. When you pay a harassment bribe, you abdicate your duty to use other means to resist the harassment, not only for yourself but also on behalf of others who might face the same situation. You also secure an advantage for yourself, vis-à-vis others who may not be able or willing to bribe. This does not sound particularly ethical."

More strikingly he takes issue with a certain brand of economics, " Kaushik Basu’s paper is symptomatic of a common disease in the economics profession: the tendency to make sweeping policy recommendations based on analytical models that have a very limited domain of validity. "

Interestingly, both Dreze and Basu hold official positions as policy makers to the UPA government

Wednesday, April 20, 2011

Opening at Accountability Initiative

Accountability Initiative, an initiative that focuses on accountability in governance and operates out of the Centre for Policy Research, is looking to hire a Research Associate. Further details are available here: http://www.accountabilityindia.in/opportunities-us

Tuesday, April 19, 2011

Hazare and the Potential Curing of a Democratic Deficit?

Tarunabh captured some of the reactions to the Anna Hazare campaign in his post here, where he also warned that the problem of corruption is a complex multi-factorial issue, not easily amenable to ready solutions via yet another legal parchment.

In this TOI (Crest edn) piece, I reflect on how the Hazare agitation presents an opportunity to push for an opening up of the law/policy making process. Since the online version of the piece can be accessed only after your register (freely) on the TOI site, I'm reproducing it below:

"It fell several notches short of a Tahrir square. But it was enough to capture the imagination of nation, a nation that has witnessed scam after scam in the recent past, and where, attempt after attempt to introduce an anti-corruption law failed for four long and continuous decades.

Indeed, thanks to a man who threatened to take his own life, "Lokpal", a term that might have had raised eyebrows till a month ago, has now gained common currency. Some see the man as an enlightened saviour of sorts. Others as a dangerous blackmailer at the brink of subverting a precious democratic process that many believe we enjoy in India. I come neither to praise Anna Hazare nor to bury him. But to simply point to an enormous opportunity that his act of starving presents for us as a country.

That Hazare gained enormous public support by threatening to sacrifice his own life at the altar of an anti-corruption principle that he staunchly believes in is beyond doubt. However, what of the implementation of this principle through the technicality of a law? It's a fair guess that many of those who came out in support through rallies and candle light processions would have failed to read the bill, be it the government "Lok Pal" version or any of the many civil society "Jan Lok Pal" versions.

It is this participatory deficit that the Hazare movement must seek to redress. It must leverage the popular sentiment it has thus far gained by actively encouraging the public to participate in the law-making process. That government laws are drafted in secret for the most part is no new revelation. Even at the stage of parliamentary scrutiny, most intensively felt during the myriad "sittings" of standing committees, the ones consulted are a select few;not the public and in most cases, not those with subject matter expertise.

To this extent, law and policy-making processes in this country suffer from a serious democratic deficit. Granted that the formal processes (such as the act of voting by elected representatives, many of whom may have never read beyond the title of the bills presented) are all complied with, but substantively, the process is a largely non-deliberative one, with bills being presented and voted upon, for and at the behest of a select few.

Apparent government efforts to instill public participation are far from optimal. Many a time, bills are never released for public views or participation. And even when they are, the websites that call for participation are far from welcoming. The Indian "Bayh Dole" bill, seeking to regulate the management of intellectual property at universities, is an excellent example of the sheer deficit in the process. A law firm with very close ties to the government was tasked with drafting the bill. It borrowed significantly from a US legislation on the same theme, sans any consideration of the techno-cultural specifities of India, and even more problematically, sans any consultation with key stakeholders, namely universities and public-funded research institutions.

The bill was then secretly peddled between different ministries. After much public hue and cry, the bill was made available on a government website, but with no indication that public comments were welcome, and after four years since the first draft of the bill. Subsequently, even at the stage of parliamentary review by a standing committee, it was not until the Indian Institute of Science went to the press claiming that it was never consulted, that the committee relented and called for wider stakeholder participation. Thanks to this participation, the committee was able to appreciate that the bill was fundamentally flawed. It therefore directed the government to make extensive changes to the bill. By this time, five years had elapsed and the government was forced to go back to the drawing board. A process that fostered wider consultation earlier on in the lawmaking process would have saved us all this wasted time and effort.

Given this backdrop, the moral success of the Hazare agitation throws up an excellent opportunity to open up this closed law-making process and to pave the way for more deliberative discussions. Unfortunately, the Hazare movement has come across as controlled by a select few who wish to replace the government coterie with their own. Further, several discordant notes have already been struck by the various statements by Hazare, his lieutenants and others that he chose to share stage with. Little wonder then that the movement has attracted the ire of many who are suspicious of the threat to our democratic process.

Questionable as their means are, Hazare and club have broken new ground by gaining admission to a closed-door law making process. It would be a travesty if they now replicated the hegemony they seek to challenge. They must now leverage the moral capital gained so far and translate it to a call for wider and more informed public policy and law making. This must involve not just educating and sensitising the public, but also our ministers and parliamentarians.

For, in the allegedly selfless act of starvation by an endangered Gandhian species lies the hidden potential to begin the slow process of transformation from a largely formal democracy to a more substantive and participatory one."

Monday, April 18, 2011

The RSS on censorship

A remarkable opinion published in the Organiser, mouthpiece of the RSS, has vigorously opposed censorship generally, and the ban on Joseph Lelyveld's book on Gandhi in particular. It is not everyday that one hears of such unflinching endorsement of a core liberal position (even if for slightly difference reasons) by the Right. Some excerpts:

Most of those demanding a ban are unlikely to have read the book. In fact, it is not yet available in the country. The entire controversy was triggered by a review published in Britain’s sensationalist tabloid Daily Mail. The review said the author claimed that Gandhiji was bi-sexual and deeply in love with Hermann Kallenbach. It also said Gandhiji made racial comments while he was imprisoned in South Africa. Rajmohan Gandhi and Tushar Gandhi, grandson and great-grandson of the Mahatma respectively dubbed the clamour for a ban on the book as "un-Gandhian".

Irrational demands for banning books without reading them have, unfortunately, become a habit with us. Censorship is counter-productive. It was proved beyond a shadow of doubt during the hated Emergency during which even wild rumours were believed as Gospel truth. Same is true with films and books. The more you suppress, the higher the curiosity. We saw that with the James Laine book on the Hindu icon Shivaji. Traditionally, Hindu society has been open and has encouraged thinkers and philosophers to raise questions about fundamental issues pertaining to religion and society. Tolerating, even respecting, contrary viewpoints has been our ancient tradition. People’s anger can be understood if the intention were to malign an icon or to heap insults on deities and faiths. That is not the case so far as Great Soul is concerned. Hence censorship or ban is totally uncalled for and unjustified.

Friday, April 15, 2011

Indian Journal of International Economic Law

Guest Post by Abhimanyu George Jain

The Indian Journal of International Economic Law (IJIEL) is a student-run, peer-reviewed journal produced by the National Law School of India University (NLSIU), Bangalore. Its mandate is deliberately ambitious – a developing country perspective on international economic law (IEL), both public and private.

The Medusa-esque mushrooming of IEL has meant that it is increasingly becoming a challenge just to keep track of where all IEL might apply. One such largely untouched area is space law. This interface raises many fascinating questions.

Is the ‘common benefit’ umbrella that pervades space law meant to be given practical effect, and if so, how? How will choice of law regimes, intellectual property rights, antitrust rules apply to private space activities? How do we divide property in space? How do we control the space tourism industry?

These and other interesting questions are complicated by two factors. The first is the increasing commercialisation of space activity, creating serious doubts regarding the suitability of a legal regime which could scarcely have foreseen such activity. The second is the international nature of modern space activity, necessitated by the expense of space operations. Whose rules will govern what parts of the space operation?

The IJIEL special issue on space law and IEL provides what we believe is a first of its kind perspective on some of these questions. We believe this endeavour is unique because it represents possibly the first attempt to subject questions of space law to analysis from the IEL viewpoint.

Many of the questions raised above have been taken up in this issue. So, for instance, Valnora Leister examines the issue of division of the benefits of space exploration within a theoretical perspective of ‘commons utilisation’. Jason R. Bonin and Fabio Tronchetti take on the controversial issue of exploitation and appropriation of lunar and celestial resources. Watcharachai Jirajindakul and Lalin Kovudhikulrungsri apply GATS to a major financial transaction involving space assets (the take over of the Thai Shin Corporation by the Singaporean Temasek Holdings). Lotta Viikari examines the regime for space liability drawing on parallels with the nuclear liability regime for the need, nature and model of regulation. Finally, Bin Li and Haifeng Zhao apply a WTO law perspective to the Chinese legal regime for controlling commercial space activity. At the outset, Stephan Hobe’s foreword sets out the nature of legal problems commercial space activity is likely to face in the foreseeable future.

IJIEL is distributing this issue free on the internet to facilitate access and visibility. We’d be grateful for your help in ensuring the widest possible circulation of this issue. Questions regarding IJIEL, submissions and subscriptions may be mailed to ijiel@nls.ac.in.

Monday, April 11, 2011

On the 'movement' against corruption

Readers may be interested in two excellent pieces analysing the recent 'awakening' against corruption in India: Shuddhabrata Sengupta writing in Kafila and Mihir Sharma in the Indian Express (Readers may also be interested in watching Karan Thapar roast Arvind Kejriwal in this interview). I endorse Sengupta and Sharma's outrage at the preposterous provisions of the Jan Lokpal Bill and share some of their misgivings about this television-driven 'movement' against corruption. I don't know what I think about the legitimacy of Hazare's chosen means - fast unto death - but the telling comparison with the much-ignored-10-year fast by Irom Sharmila in remote Manipur is noteworthy.

One hopes that the committee set up to draft the Lokpal Bill will realise that the impunity around corruption in India is part of a larger problem with our criminal justice system more generally. The police and the prosecution are not separated from other branches of the executive and consequently lack independence and professionalism, the use of torture, 'encounter deaths' and other 'shortcuts' to deal with less influential criminals is routine, whereas impunity provisions like section 197 of the CrPC protect public servants who commit crimes. Our politicians, and indeed most people with requisite influence, manage to avoid convictions not just for corruption but for all other crimes, including murder. Nor are the politicians the only people who are corrupt - what about the corporate houses only recently exposed in the Radia tapes? Structural reform of the criminal justice system does not translate into sexy slogan, but then India Against Corruption's Jan Lokpal Bill will do nothing to address the problem of corruption, and create others we can do without.

Saturday, April 09, 2011

Constitutional Fidelity or Turf War? The Promise and Pitfalls of Judicial Activism in Pakistan

The South Asia Initiative at Harvard recently hosted a panel discussion on constitutionalism in Pakistan. Speakers included, Justice Khalil-ur-Rehman Ramday, Supreme Court of Pakistan, Osama Siddique, SJD Candidate, Harvard Law School
Beena Sarwar, Senior Journalist, Jang Group Pakistan & Fellow, Ash Center for Democratic Governance at HKS and was moderated by Noah Feldman, Bemis Professor of International Law, Harvard Law School

"As Pakistan awakens from a decade-long military rule, the nation finds itself in the grasp of political turmoil, economic challenges, weak democratic institutions and the menace of terrorism. But while these factors pose a serious threat for the nascent democracy in Pakistan, there are signs of hope for the believers as a resurgent Supreme Court, with support from the legal fraternity, is leading the way towards constitutional adherence and rule of law in the country. However, several voices of ‘liberal’ dissent argue that so long as religion plays a predominant role in Pakistan’s legal paradigm, there shall be a recurrent disposition to interpret and apply the law as an instrument of extremist religious ideology, and in the process shackle the progressive and liberal growth of democracy.This event will provide a forum for leading experts from Pakistan’s judiciary and the legal fraternity to engage in a constructive debate about the current state of constitutionalism in the country, as well as the role that religion plays in Pakistani laws. Through this forum, we hope to facilitate dialogue that fosters a better understanding of challenges confronting Pakistan’s legal landscape and a discussion that generates ideas on the best way forward."

The discussion can be viewed online here

Tuesday, April 05, 2011

Launch of Legal Information Institute (Open Access Portal) in India

The Legal Information Institute (LII), an organisation at the forefront of driving open access in all things related to law, launches in India in a big way.

The Legal Information Institute of India (LII of India) was inaugurated by Dr M. Veerappa Moily, Union Minister of Law and Justice, in New Delhi on 9 March.

LII India has been accepted as the 34th member of the Free Access to Law Movement (FALM). It is currently a consortium of 8 partner law institutions (NUJS is one), and 4 supporting institutions. The Institute has its technical hub at NALSAR University of Law, Hyderabad.

It encompasses a free legal portal on legislations, treaties and case laws. And is continuously being updated and developed.

At present, LII India has 107 databases including legislation (the India code from 1836, state legislation, commentary on legislation), Indian case law (over 300,000 cases in full text from Supreme Court, High Courts and tribunals), treaties (all India treaties to 1975 plus over 800 bilateral treaties), law reform reports (from the Law Commission), legal scholarship (six law journals with scholarship repositories), cases concerning India and International Courts and Tribunals and cases concerning India from the pre-1873 English Reports.

The LawCite citator tracks case and journal article citations showing subsequent citation histories (in India and overseas) of Indian cases, law journal articles and treaties.

Comprehensive searching facility is provided by its search engine, sino, with full boolean and proximity searching; by flexible displays of results (by relevance, date, database and citations); by consistent formatting of data across jurisdictions; by adding hypertext links between cases, legislations, treaties, law journal articles and law reform reports; by providing ‘noteups’ from texts too where they are cited; and by the automated extraction of parallel citations and creation of citation tables by the LawCite citator.

Further, case law, state and union territory legislations are regularly updated.

The Kolkata (satellite) launch of LII India is scheduled for 8 April (10.30 am to 12 pm) at WB NUJS (Room 107). All are welcome to attend.

Friday, April 01, 2011

Jindal Global Law Review invites papers for issue on "Indian Public Law: Investigations and Imagination"

Nearly sixty-one years since its formal inauguration, the Indian Constitution still remains a contested site of "national" consciousness. Yet the Constitution itself is both constitutive and reflective of myriad forces operating in social, political, economic and legal spheres. While it foregrounds public discourse, we must ask ourselves whether its conceptualization as a deeply transformative project has dimmed over time. The Constitution thus exists in this frontier between text and vision, doctrine and dream. With the benefit of six decades of judicial interrogation and political contestation, we invite research scholars, academics, students, activists and indeed citizens, to reflect upon the trajectories of this project.

Yet it is not merely the Constitution which defines the vistas of Indian Public Law. A corpus of statutes, administrative and governmental orders, cases etc. craft this discipline. A reflection upon "Public Law" must thus not lose sight of these artifacts. To this end, we also invite papers dealing with the present-day challenges facing the law, the State and the citizen. We seek to investigate this "Public Law", as a method of regulation, as a means of control, as an instrument for emancipation, as a catalyst for transformation and as a space of discourse (democratic or otherwise). While the contemporary challenges faced by Indian public law are voluminous, we also seek to use this issue as an interlude. To pause, reflect and look back upon the historical and philosophical developments which have contributed to and defined our presents. "Public Law" thus exists not only as discipline, but as an encounter. An encounter where law meets sociology, political science, history, economics, philosophy…

Submissions can be in the form of articles, essays, book reviews and comments/notes and should be emailed to the address listed below in an MS Word *.doc or OpenOffice *.odt (Times New Roman, font size 12, double spacing) format. Articles and essays should be of 8,000 to 10,000 words and comments and notes should be of 4,000 to 5,000 words (including footnotes). The Bluebook style for citations is strongly encouraged. Contributors should email a 500 word abstract of their submission at the address provided below by April 11, 2011. The deadline for accepting final submissions is May 30, 2011. For further information or clarifications, please write to us at jglr@jgu.edu.in or at jindal.glr@gmail.com.