Wednesday, November 30, 2011

SC-ST Quotas in Public Procurement

This article by Sukhdeo Thorat discusses the government's decision to establish quotas for SC-ST entrepreneurs in procurement. It is an interesting refinement of traditional affirmative action arrangements, which have traditionally focused on quotas in educational institutions and in government jobs.

I suspect this measure will be upheld by our courts. At the same time, it is important this measure does not become a loop-hole for further corruption and malfeasance in government contracting. The policy may also have to be reconciled with the proposed public procurement bill, which has been released for public comment.

Finally, it is important to point out that Thorat's otherwise interesting analysis ends on a sour note with its reference to the Malaysian Bhumiputra policies. It has been widely alleged that those policies have promoted thinly disguised racial discrimination against Chinese and other ethnic minorities.

Operation Majnu: Illegal Policing

The cops in Gaziabad 'punished' young couples in parks this morning by making them do sit-ups (calling it 'Operation Majnu'). The case highlights the need for the upper judiciary to clarify that section 294(a) of the IPC does not cover couples sitting together in parks showing affection towards each other (see our previous blog post on this issue here. See also this previous post on 'cultural policing'.).

What annoys me most about this case, however, is that even if what those couples were up to does amount to obscenity prohibited by s 294(a), there is absolutely no legal power with the police to punish the couples in this case. The police is a preventative, investigative and perhaps prosecuting agency - the task of punishment is normally that of the judiciary alone. Sometimes laws give police the power to fine offenders for minor offences. As far as I am aware, there is no law giving police the power to punish anyone for violation of section 294(a). This corporal punishment was inflicted without fair trial and without the authority of any law.

The Delhi High Court held in Manushi Sangathan v Govt of Delhi that 'there is no power in the MCD, much less the Delhi Police, to seize and either sell in auction or destroy a rickshaw even where it is found to be driven without a licence or by a person not having a proper licence.' [para 63] That case turned on the right to property guaranteed by the constitution, which the Court rightly held can only be taken away by law. (see our previous post on that case here). Right to liberty, which is involved in the case of Operation Majnu, is a fundamental right and therefore on a higher status than the right to property. It cannot be infringed without express provision of the law, which must be just, fair and reasonable. The cops in this case have clearly violated the law, as well as the constitution. They must be held to account.

Monday, November 21, 2011

Air India Cabin Crew Association v Union of India

The Supreme Court has delivered an important judgment in Air India Cabin Crew Association v Union of India last week. Here is the press note sent to me summarising the judgment. The judgment is available on JUDIS, but I couldn't find a direct link to post here.

A Supreme Court bench of Justices Altamas Kabir and Cyriac Joseph, on November 17, upheld Air India’s 2005 decision to abandon its policy of reserving the In-flight Supervisor designation to its male cabin crew. An Inflight Supervisor is the boss-in-charge of all cabin crew on board a flight – i.e. female cabin crew or Air hostesses, as well as male cabin crew, Flight Pursers. Once on board the aircraft, all cabin crew, whether Air hostess or Flight Purser, are under the direct supervision of the Inflight Supervisor.

Until 2005, only men were designated by Air India as Inflight Supervisors. This meant that male Flight Pursers who were appointed Inflight Supervisors would supervise the work of all Air hostesses, including those who were many grades above them and many years senior to them. 

In December 2005, Air India decided to end this blatantly discriminatory practice, announced that Inflight Supervisors will be appointed from among both genders, and designated 10 women Senior Managers (each of whom had more than 30 years of flying experience), as Inflight Supervisors. This decision of Air India was challenged by the male Flight Pursers before the Delhi High Court, claiming that agreements between their union and Air India preserved the position of Inflight Supervisor only for men, and also claiming that the Supreme Court of India had recognized this right.

On 8 October 2007 the Delhi High Court dismissed the Flight Pursers’ petition, holding that it was unable to discern in any of the agreements between the union and Air India, any assurance or promise to the male cabin crew that a female colleague of theirs will never be asked to perform the function of an In Flight Supervisor. It took note of the irony that although many of the Air hostesses had trained the flight pursers to perform the functions of Inflight Supervisor, they were themselves excluded from performing the function. The High Court held that Air India’s removing of the 'men only' tag from the position of Inflight Supervisor, was in keeping with the mandates of Articles 14 and 15 of the Constitution of India prohibiting discrimination on the grounds of sex, as well as binding international obligations under the Convention on the Elimination of Discrimination against Women (CEDAW). Air India, the high court held, had enabled its female cabin crew to break the Glass Ceiling and there was nothing unreasonable in male cabin crew being asked to serve on a flight which had their female colleague as an Inflight Supervisor.

The Flight Pursers challenged the Delhi High Court judgment before the Supreme Court, and in November 2007, the Supreme Court directed status quo, which meant that Air India was unable to implement its decision to bring about equality. By its judgment Thursday, the Supreme Court dismissed the petitions and upheld the Delhi High Court’s decision, recognizing Air India’s right to place an employee in a position where she would be best able to contribute to the Company.

The Supreme Court’s confirmation of the Delhi High Court judgment is an important milestone in the fight against discrimination by Air India’s female employees. Importantly in the present airline scenario, it is also a matter of sound business sense that the most experienced and the most capable are placed in positions of responsibility and that women are not kept from such positions on account of their gender.

Sunday, November 20, 2011

Bar Exam Trends

I was looking through the March and July bar exam results and although there isn't yet too large of a sample set it seems as if definite trends are emerging. Overall, about 70% of those who sit for the exam pass it, although not unexpectedly only about 56% pass it who sit for it a second time. Women seem to do slightly better than men on the exam, but only by 1 or 2%. (for an international comparison, about 65% of those who take the New York bar exam pass it).

The more striking breakdowns are by state and the language in which the exam is taken (the same exam, which is entirely multiple choice, is translated into 9 languages, although I don't think anyone has taken it in Oriya yet). The passage rate for those who take the exam in English, is on average the highest of any language group, at about 80%. English is also by far the preferred language to take the exam in. About a third as many people take the exam in Hindi and the passage rate for them is about 60%. Gujarati is the next most popular language. For July these test takers passage rate was 65%, but in March it had only been 35%. The next largest group that takes it is those who do in Kannada, and they tend to do particularly poorly passing only about 30% of the time. You can look at the links for the results of the other language groups, but for most of the rest not enough people take them in these languages for clear statistical relevance to be established.

The statewise breakdown is also revealing, although not as much because of the passage rate. For example, those who took the exam in Bihar have an extremely high passage rate (98% for March). This might seem odd given the socio-economic indicators in Bihar, no matter what understanding might be out there in the popular imagination concerning their penchant for test-taking. Yet, only 106 people took the exam in the state that month. There are about 100 million people in Bihar. Maharashtra, which has about 110 million people, had almost 4000 people take the test. Considerably smaller Delhi had almost 2700 people take it. Amongst the lowest passage rates from states where lots of people seemed to take the test were interestingly in Andhra Pradesh, Gujarat, and Karnataka. Not naturally places one would assume would do poorly. However, it might just be that they have far more law schools and so far more test takers. Still, it's not obvious why some of the poorer states would have higher passage rates even if they had fewer students taking the test (one could imagine that they would just have fewer and worse students).

It will probably require results from a few more exams before one can come up with any real meaningful comparisons between the states, and have a big enough data set that one can say something concretely about all the language groups. Still, it does seem that if your English is good enough that you feel confident enough to take the exam in English that you are likely to do better than others around the country (this makes intuitive sense since the best law schools in India tend to be English only and most key legal resources, such as Supreme Court judgments, are in English). It also seems clear that different states are producing dramatically different numbers of (qualified) lawyers. Perhaps some of the test takers who took the exam in Maharashtra are from Bihar and will return there. However, it seems like certain states aren't currently producing very many lawyers, or for some reason students graduating in these states don't yet feel pressured enough to take the exam. Certainly, many law graduates don't go on to practice law and so won't take the test, but states like Bihar, Jharkhand, and Orissa currently have a statistically insignificant number of people take the exam in their state. It seems important to get to the bottom of what explains this and whether this should be a point of concern.

(Thanks to the folks at Rainmaker, who conduct the bar exam, for originally pointing me towards these statistics)

Monday, November 14, 2011

International Law through the Indian lens

International Law Curry joins a growing body of legal commentary including Spicy IP and LAOT. As the name suggests, ILC, provides an "Indian" perspective on international law questions, and in doing so seeks to provincialize some of its universalist claims.

Tuesday, November 01, 2011

Call for papers - new journal on telecommunications and broadcasting law

The National University of Juridical Sciences, India is launching a thematic journal on Telecommunication and Broadcasting Law (JTBL). It is conceived as an international peer-reviewed journal that will be dedicated to legal scholarship in the field of telecommunication and broadcasting laws around the globe. The Journal encourages deliberations on subjects of an interdisciplinary nature and would include review of laws and policies involved in the field.

The inaugural issue of the JTBL is slated for July 2012. Interested contributors can find out more by checking the details of the call for papers on the journal's website here or by emailing