Thursday, May 31, 2012

The Judiciary and Indian Telecom Regulation

Arun K. Thiruvengadam and Piyush Joshi have published a new paper on the judiciary and Indian telecom regulation, in the current issue of the journal Regulation and Governance. The paper is part of a special issue on Understanding the Rise of the Regulatory State in the South with Guest Editors Navroz Dubash and Bronwen Morgan

Tuesday, May 29, 2012

The Uncertain Push for Empirical Data: Courts Strike Down Central Government's Minority Sub-Quota and U.P's Consequential Seniority in Promotions

Two recent decisions, one from the Andhra Pradesh High Court and the other from the Supreme Court, might well radically alter the dynamic between the courts and the State in the context of reservations.

In the judgment delivered yesterday in R. Krishnaiah v. Union of India, a Division Bench of the Andhra Pradesh High Court, comprising Chief Justice Madan Lokur and Justice Sanjay Kumar, struck down the two Office Memorandums of the Government of India (dated 22 December 2011) that carved out a 4.5% sub-quota for minorities from the overall 27% OBC quota in Central Government posts and certain central educational institutions. The Court held that there was no material placed before the Court, in terms of establishing any special backwardness, that justified creating a sub-group of religious minorities within the OBC category. The Court highlighted the fact that the sub-group comprising Muslims, Christians, Sikhs, Buddhists and Parsis was not homogenous in terms of backwardness  and this fact indicated to the Court that the sub-quota was purely based on religion. The Court also ruled that the Government of India had an obligation to consult the National Commission for Backward Classes (NCBC) under the Act establishing the Commission and that this obligation existed even though the advice of the NCBC was only 'ordinarily binding' on the Government under s.9(2) of the NCBC Act. Readers will remember that the Cabinet had approved this measure few days before the Election Commission declared elections in five states, including Uttar Pradesh, in December 2011. 

In U.P Power Corporation v. Rajesh Kumar & Ors., a two-judge bench of the Supreme Court (Justices Dipak Misra and Dalveer Bhandari) struck down Rule 8-A of the U.P Government Servants Seniority Rules that provided for consequential seniority. Rule 8-A was inserted pursuant to the 85th Constitutional Amendment which specifically permitted, through Article 16(4A), consequential seniority in promotions. Reservations in promotions had seen a lot of disagreement between the Supreme Court and the Parliament before the Supreme Court in M. Nagaraj v. Union of India (2006) upheld the validity of the 77th, 81st and 85th Constitutional Amendment Acts and ruled that Articles 16(4A)and (4B) were only enabling provisions. As a result, the State can provide for reservations in promotions and attach with it the benefit of 'consequential seniority'.** However, in U.P Power Corporation the Court has repeated what it held in Nagaraj, that Article 16(4A) is merely an enabling provision and it does not lend automatic validity to all provisions of consequential seniority in the various Rules. The conditions laid out in Nagaraj about determining backwardness, adequacy of representation and efficiency of service will have to be established.

Both decisions make very important moves as far the burden on the State to present empirical data is concerned. The courts have made it clear that the State cannot rely on general data that was collected for other purposes. The State, they say, must collect very specific data that is aimed at providing empirical support for the specific preferential policy in question. In Krishnaiah, the AP High Court held that it was not relevant, for purposes of Articles 15(4) and 16(4), to rely on the Ranganath Mishra Commission Report and a more specific exercise had to be undertaken to demonstrate why the minority groups identified in the memorandums were more backward than other groups in the OBC list. The AP High Court took a similar approach in T Muralidhar Rao v. State of AP (2010) when it struck down the Andhra Pradesh Government's move to provide a 4.5% quota for OBC Muslims in the State (the Central Government's measure mentioned above is for all minorities and not just Muslims) by holding that the State Government had relied on secondary data and had not produced specific empirical data that demonstrated how the backwardness and lack of representation of Muslim OBCs was different from that of other OBCs.  Similarly in UP Power Corporation, relying on M.Nagaraj, the Supreme Court rejected the claim that there was enough material which indicated a general inadequacy of representation of Scheduled Castes in promotional posts per se. The Court declined to accept this level of generality and said that the relevant unit for determining 'adequacy of representation' is the cadre strength.

Such a move raises very important issues for the relationship between the courts and the State on reservations. The courts are clearly looking to provide an extremely narrow meaning to the phrase 'in the opinion of the State' in Articles 16(4) and 16(4A) when deciding the adequacy of representation. The courts seem to be saying that the State cannot base its decision on data that might generally indicate inadequacy of representation and it is a very pointed exercise, down to the cadre, that is required. 

I do believe that M Nagaraj was wrongly decided, especially in the context of the condition laid down that the State will have to determine backwardness (in very obvious references to the 'creamy layer') while taking measures under Article 16(4A), which deals with promotions for Scheduled Castes and Scheduled Tribes exclusively. However, in UP Power Corporation the Supreme Court seems to ignoring that condition laid down in Nagaraj and concentrating only on the requirements of demonstrating 'adequacy of representation'. Additionally, these cases raise the inevitable question of the deference that Courts must exhibit towards the 'opinion of the State' under Article 16 and I think the courts are setting the bar too high.

**Consequential Seniority -- Let us assume that A, belonging to the General Category, currently holds Level 3 of a government post and B, appointed under the Scheduled Caste quota, is junior to A in Level 3. When promotions to Level 4 are to be decided, let us assume further, that due to reservations in promotions B has to be promoted to Level 4 before A because there are no Scheduled Caste candidates at a seniority similar to that of A. The question that then arose was whether A would regain seniority over B when she is promoted to Level 4 in due course. 'Consequential Seniority' means that A will not regain her seniority and B will now be considered senior to A within Level 4.

Monday, May 28, 2012

Interesting links

1. This op-ed by Vikram which appeared in yesterday's edition of the Hindu offers some historical perspectives on the institution of the President of India, as we head into elections for that important constitutional post later in the summer. 

2.  Jeffrey Toobin's recent article in the New Yorker on the Citizen's United case has generated considerable debate in the U.S.  This is a link to the original article, while this takes you to a careful deconstruction of the main argument offered by Toobin.  Reading Toobin's analysis as an outsider, one is struck by the power wielded by the Chief Justice of the US Supreme Court in making a difference to the final outcome through a variety of decisions. This reminded me of the argument advanced by Nick Robinson in his recent post (and article) emphasising the importance of structural issues in constitutional adjudication. 

Sunday, May 27, 2012

Strasbourg Clarifies Voting Rights for Prisoners -- Another Reminder of India's Regressive Position

The European Court of Human Rights in Scoppola v. Italy (22 May 2012) has diluted the right to vote for prisoners that it upheld in Hirst v. The United Kingdom in October 2005. In this post, I briefly explore the different positions on the right to vote for prisoners and demonstrate that the legal position in India falls into the most regressive category. The debate in much of the world has been around whether individuals who have been tried and convicted of a crime can be deprived of the right to vote, which is quite progressive compared to the Indian position. The position in India, established through s.62(5) of the Representation of the People Act, 1951 and the judgment of the Supreme Court in Anukul Chandra Pradhan (July 1997), is that it is not just all those who are serving a sentence, but even undertrials and those in lawful police custody can be deprived of this right.

Hirst and Scoppola -- Right to Vote Cannot be Denied to 'All' Convicted Individuals

In Hirst v. The United Kingdom, the provision challenged was s.3 of the Representation of the People Act, 1983 - "A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local election." In a 12-5 decision, the Grand Chamber of the European Court of Human Rights (ECtHR) declared that 'such a general, automatic and indiscriminate' provision did not meet the requirements of proportionality and violated Article 3 of Protocol 1 of the European Convention of Human Rights.

However, the provision challenged in Scoppola v. Italy was slightly different. Rather than an automatic and indiscriminate ban on all those serving a sentence, the relevant Italian domestic law provided (translation from the Scoppola judgment):

 1. The following persons shall not vote:
(d) persons who have been sentenced to penalties entailing a lifetime ban from public office
(e) persons under a temporary ban from public office, for the duration of that ban.
2. Judgments in criminal cases shall entail the loss of voting rights only once they have become final.’

Article 29 of the Italian Criminal Code further provided:

A sentence to life imprisonment or to imprisonment for no less than five years shall entail a lifetime ban from public office for the convicted person; sentencing to imprisonment for not less than three years shall entail a five-year ban from public office.’

The ECtHR held that, unlike the United Kingdom's law, the provisions in Italian law took away the right to vote only when individuals were awarded particular sentences. By virtue of not being a blanket ban, the ECtHR upheld the Italian law and confirmed in a press release that the United Kingdom had six months to change its law in accordance with the judgments in Hirst and Scoppola.

Comparative Analysis Highlights India's Regressive Position
It will be noted that the provisions in both the UK and Italian laws operated only when individuals have been sentenced for crimes after a trial. The context of the debate in the ECtHR is very clear -- it is whether States can take away the right to vote for all individuals who have been sentenced after a trial. In India the discourse on the right to vote for prisoners is many steps behind. Statutory law and a judgment of the Supreme Court have established the position that the right to vote can be taken away for not just all individuals serving a sentence, it can also be taken away for all undertrials and even those in lawful custody of the police.
I am not aware of a country whose position on voting rights for prisoner's is as regressive as India's. Countries across the world adopt different positions on the right to vote for prisoners but all them are premised on the individuals having been tried and convicted. On one end of the spectrum we have countries like Canada and South Africa where the respective apex courts have recongised the right to vote for all prisoners (Sauvé v. Canada (2002) and August v. Electoral Commission (1999)) and at the opposite end we have some states in the United States like Florida and Virginia that do not permit those convicted of committing a felony to vote even after serving their sentence. A large majority of countries, including over 20 countries in the Council of Europe (15 other countries in the Council of Europe have adopted positions similar to that of Canada and South Africa), fall in between these two extremes whereby prisoners are disenfranchised depending on the crimes that led to a conviction or sentence-based criteria. 
India is clearly an outlier in this context because it does not base disenfranchisement of prisoners on being convicted for particular crimes or any sentencing related criteria and the constitutional basis for it is suspect.

The Unconvincing Search for Justifications in India
s.62(5) of the Representation of the People Act, 1951 explicitly takes away the right to vote from those 'confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police'. However, the proviso to s.62(5) makes it inapplicable to those detained under a preventive detention law. A challenge to the constitutional validity of s.62(5) was rejected by a 3-judge bench of the Supreme Court in Anukul Chandra Pradhan v. Union of India in July 1997. Writing for himself and on behalf on Justices Sujata Manohar and B.N Kirpal, Chief Justice Verma was of the view that there was no basis for challenging s.62(5) because the right to vote was purely a statutory right and that Chapter III of the Constitution could not be invoked to challenge provisions of a statute that provided the content of such a right.

However, before coming to that conclusion, Justice Verma's opinion provides three grounds for why a Part III challenge may also be rejected:

a. The objective was to address criminalisation of politics and when judging the validity of classifications that are intended to achieve such an aim, the legislature must be given more 'elbow room'.
b. The resource crunch argument.
c. Prisoners are in jail because of their own conduct and are therefore deprived of liberty. They cannot claim freedom of movement, speech and expression on terms similar to others and the classification on the right to vote would be reasonable.

A constitutional challenge to s.62(5) necessarily needs to overcome the ridiculous (but yet established through many judgments) judicial position that the right to vote is purely a statutory right and cannot be seen as a constitutional right despite Articles 325 and 326 of the Constitution. Reasons for reversing this position that has been established through numerous judgments is best reserved for another post except to say that Justice Venkatarama Reddi's opinion in PUCL v. Union of India (March 2003) articulates the nature of the right correctly in contrast to the dominant approach adopted by the two other judges in that case. 

Each of Justice Verma's justifications for why a Part III challenge would also fail stands on extremely weak footing. It is not feasible to present detailed responses to each of Justice Verma's justifications in this post,  but I do believe that it is shocking that Justice Verma's opinion ignores the crucial distinction between undertrials and those in police custody on the one hand and those convicted on the other. There might well be an argument that this distinction should not be pressed and that the position in Canada and South Africa is the ideal that we should strive for. But my simple claim here is that even the most conservative position on this issue requires the Supreme Court to engage with the difference between those two categories and provide a justification on that basis rather than adopting an approach that treats them similarly. Even the case for disenfranchising those convicted of crimes is far from clear and the Supreme Court should have provided a far more reasoned judgment on why it believed that being sentenced for a crime meant that the right to vote could be taken away. Yes, being sentenced to prison does curtail liberties but surely that general level of justification is not sufficient in this context. The Supreme Court needed to go one step ahead and justify why the right to vote should be one of the rights that is taken away when prisoners retain many other rights.  

We might choose to disagree with Locke and Rousseau who argue in favour of disenfranchisement on the basis that there has been a violation of the 'social contract'. But surely, even they would agree that it has to be first established that such a violation has in fact occurred. It seems like a very fundamental point of justice to not exclude such a crucial democratic right on the 'possibility' of guilt, but yet the Supreme Court and Parliament seem to believe otherwise. Prisoners as a group, surviving on the fringes of our society, hardly possess any political capital and it is unfortunate that the Supreme Court has taken a view of prisoners that displays an utter lack of nuance.

Saturday, May 26, 2012

The 3rd IJLT-CIS Lecture Series at NLSIU- Professor Rohan Samarajiva on Tariff Regulation in South Asia

The Indian Journal of Law and Technology at the National Law School of India University, Bangalore (NLSIU), in association with the Centre for Internet and Society, Bangalore is organising the 3rd IJLT-CIS Lecture Series at NLSIU. The lecture series will be spread out over the course of the year and will include eminent speakers who will talk with the students and other interested persons on their topics of expertise.

To kick off the lecture series, Professor Rohan Samarajiva will deliver the inaugural lecture on Tariff Regulation in South Asia.

Tariff regulation has in the recent past attracted the attention of the Telecom Regulatory Authority of India and the Telecom Dispute Settlement Appellate Tribunal, as well as the Department of Telecom at the Union Ministry of Communications. India has a burgeoning and competitive cellular services provider market, and tariff regulation has far-reaching impact on the industry. Moreover, as aware consumers of mobile telephony and data services, this is an issue that is relevant for all of us.

Prof. Samarajiva is a pre-eminent figure in policy-making and academia on the subject of information and communications technology, and this is an excellent opportunity to get his insights on the crucial topic, not just from an Indian perspective but from a pan-Asian viewpoint. He has taught at universities in USA, Netherlands and Sri Lanka and is currently Chairman & CEO, LIRNEasia, an ICT policy and regulation think tank active across 12 emerging Asian economies. He is also a Board member at Communication for Policy Research - South, which is a capacity building initiative to develop Asia-Pacific based policy initiatives on ICT policy regulation among junior to mid level scholars.

The lecture will be organised at the NLSIU campus on Sunday, the 27th of May, 2012 from 5.30 pm to 6.30 pm. You are requested to take your seats by 5.20 pm. The hour-long session will include both a lecture and an interactive session with the speaker. Interested persons are requested to register for the lecture series by sending in an email to

Academic Block
National Law School of India University
Jnanabharati Road, Nagarbhavi
Bangalore - 560242
Google maps location

Follow the event page ‘3rd IJLT-CIS Lecture Series’ on Facebook to remain updated.

Thursday, May 24, 2012

The Indian Journal of Constitutional Law: Call for Papers 2012-2013

The Indian Journal of Constitutional Law is an endeavour of the Constitutional Law Society at NALSAR, Hyderabad and the MK Nambyar SAARC Law Chair in Comparative Constitutional Studies. The Journal serves as a forum for the promotion of scholarship on core and comparative constitutional law issues. Published annually, the Journal comprises separate sections for articles, essays, case comments, legislative comments and book reviews. It is aimed to provide a source of qualitative and well-researched jurisprudence to constitutional lawyers, academicians and students, while simultaneously encouraging contributions from all these quarters.

The Indian Journal of Constitutional Law is pleased to invite contributions for its 6th Issue slated to be released in July 2013. We shall be accepting original unpublished work in the fields of Constitutional and Comparative Constitutional Law and Theory.

The last date for submissions is the 31st December, 2012.

Any queries regarding the same may be sent to

Tuesday, May 22, 2012

Politics of Social Justice in India

A while ago, I had written a post about a lecture on social justice that Pratap B Mehta was then to deliver at the University of Pennsylvania. Several arguments delivered in the lecture are now available in an article by Mehta titled "The Politics of Social Justice", which appears in Business Standard: India 2011. The article is available online here: Section II of the article is particularly thought-provoking.

Monday, May 21, 2012

Summer Workshop on Strategic Studies

The Centre for Policy Research is conducting a two-week Summer Workshop on Strategic Studies, that aims to bring together a group of twenty advanced graduate students, young analysts and junior faculty members from the fields of international relations, military studies, political science and public policy. It will look closely at issues rooted in strategic and military policy, whilst equipping the participants with the necessary conceptual frameworks and methods of analysis to conduct advanced historical and theoretical research. 

The workshop will be coordinated by Srinath Raghavan, Centre for Policy Research, New Delhi and Rudra Chaudhuri, King’s College London. Additionally, ten experts will deliver visiting lectures on specific subjects.

The Workshop will be held at Centre for Policy Research, New Delhi, from 23 July to 3 August 2012. The participants will be selected based on their written applications. In some cases, they may be required to give a telephonic interview as well. The cost of participant’s travel within India along with room and board in New Delhi will be borne by the Workshop. 

Further details of the workshop can be found here and here. For any specific queries you can email to Please note that the final deadline for application is 8 June 2012.

Thursday, May 17, 2012

The Supreme Court's Panel Structure

One of the defining features of the Indian Supreme Court is its panel structure.  At present it has 27 judges that on a typical day may sit in benches of two or three judges in one of over a dozen active courtrooms.  In this sense, it's not a single court, but many courts.  In this article that is to be published later this year in the American Journal of Comparative Law I look at how the Court's structure was promoted to further certain values or understandings of what a supreme court should be.  I argue that the desire for access to the Indian Supreme Court has come at the cost of some of the cohesiveness of the Court's doctrine.  But it has also had less intuitive consequences as well.  It has encouraged judicial entrepreneurs who can use smaller benches to push precedent farther or more creatively than they might be able to if they sat on a larger bench.  It has empowered a Chief Justice dominant Court, where the Chief Justice's power to set benches and move cases has made him the clear focal point and leader of an otherwise relatively fragmented institution.  And it has arguably helped reduce perceptions of politicization of the institution by the public because it is so difficult for outsiders (or insiders) to see the creation of clearly defined coalitions of judges as happens on unified benches like the US Supreme Court where conservative and liberal wings of the court are well documented and debated.

Several other effects of the paneled court structure of India are detailed in the article, along with a comparison to the US Supreme Court's unified bench structure.  The article does not argue that either a paneled or unified bench structure is superior.  And that is largely the point.  Each structure arises out of different values and needs and responds to different contexts.  I actually think one could not come up with a definitive ideal structure for a supreme court that should be adopted by countries around the world. Different structured courts would have different impacts in different countries at different times.

That said, I believe in a country like India the purpose of the Supreme Court's structure is not articulated and reflected upon seriously enough (this is definitely not a problem isolated to India).  Instead, institutional momentum, and drift, largely account for keeping the Court in its current form.  If the current trajectory prevails more appeals will come to the Indian Supreme Court in the future, requiring more judges and more panels, leading to even greater stresses on the institution.  This will result in more calls for changing the structure of the court and we should be prepared to have the tools to understand what the costs and benefits of these changes might be.

Wednesday, May 16, 2012

More Rumblings about Justice Bhandari's "Election" to the ICJ

Justice Dalveer Bhandari's election as Judge of the International Court of Justice has thrown up problematic questions of propriety and legality. Raag Yadava's earlier post highlighted the plausible deficiencies of the process of selection; in the op-ed page in yesterday's Hindu, Arghya Sengupta looks at judicial independence concerns regarding Justice Bhandari's nomination and subsequent election to the ICJ and how they demonstrate or perhaps reflect the falling standards of propriety in public life in India. 

Monday, May 14, 2012

Parliament and Shankar's Ambedkar - Nehru Cartoon: The Familiar Lack of Context and History

'A Brahmin Prime Minister whipping a Dalit leader and blaming him for the delay in creating the Constitution' -- that spin on Shankar's cartoon is too dangerous for any government to ignore. However, the government could have chosen to do the brave thing and defend the use of the cartoon by resorting to the legacy of Shankar's cartoons and the context within which the cartoon appeared, both historically and within the NCERT textbook.

Shankar and the Congress

As MPs contemplate removing more cartoons, the Congress-led Government might do well to remember Nehru's attitude towards political satire. Shankar paid a lot of critical attention to Nehru by making him a subject on over 90 cartoons never once did Nehru react adversely. He wholeheartedly endorsed and enjoyed
Shankar's work even when it was intensely critical of him. Be it the cartoon where one Nehru is seen holding another Nehru back -- which was sketched to reflect on Nehru's contradictory stance on China's "liberation" of Tibet, where he repeteadly asserted that McMahon Line was the border and yet did very little when China marched into Tibet -- or, the cartoon of a weary Nehru, carrying a torch, way ahead of the pack in a race comprising Lal Bahadur Shastri, Gulzari Lal Nanda, Indira Gandhi, Krishna Menon and Morarji Desai, published 10 days before Nehru's death in the context of the most debated question then -- 'After Nehru Who?' (to borrow the title of 
Welles Hangen's 1963 book). Despite being subject to such intense political satire by one individual, Nehru always reflected on Shankar's work. Shankar in return thought of Nehru as the political giant of his time because of his ability to accept criticism and not be blinded by his own importance.

Emergency and Shankar's Weekly

It must have been a rude shock for Shankar (but given how politically astute he was, it perhaps wasn't such a surprise ) when the daughter of the man who enjoyed his work so much sought to go after the cartoonists of his publication, Shankar's Weekly. In order to protect his cartoonists during the lawless days of the Emergency, Shankar told Indira Gandhi that he would shut down Shankar's Weekly if she spared his cartoonists and published one last edition on 31st August 1975 with the caption 'Parting - Not Without Sorrow'. 

The beleaguered Congress-led UPA Government can choose which legacy it wants to inherit in this regard and it might do well to use this opportunity to reclaim some moral high ground that it so desperately needs.

 Ambedkar on the Pace of Making the Constitution

In controversies like the current one, history is often the first casualty. Speaking in the Constituent Assembly on 25th November 1949 (Shankar's cartoon appeared in Shankar's Weekly on 28th August 1949), Ambedkar was clearly aware of the criticism leveled against the Constituent Assembly for taking far too long and wasting public money. Responding to the public perception that it was a case of "Nero fiddling while Rome was burning" (Constituent Assembly Debates, Vol.XI, 25th November 1949), Ambedkar provided a detailed response based on the comparative experiences of the United States, Canada, Australia and South Africa and drew attention to the fact that India had adopted her Constitution in lesser time than some of those countries. The critical point Ambedkar highlighted in his speech was that the procedure adopted by the Constituent Assembly in India allowed amendments to resolutions moved in the Constituent Assembly and thereby placed India in a different position from the other countries mentioned where resolutions were adopted as moved.

What is evident from Ambedkar's speech in the Constituent Assembly is that he understood the criticism of delay being levelled against the Constituent Assembly as a whole and not just the Drafting Committee, of which he was the Chairperson. And that is the only possible and reasonable inference of the public criticism because the Constituent Assembly comprised at least 19 other Committees and Sub-Committees that contributed to the making of the Constitution. The Constituent Assembly first met on 9th December 1946 and the Drafting Committee was formed by the Constituent Assembly on 29th August 1947. The Draft Constitution was submitted to Dr. Rajendra Prasad, the President of the Constituent Assembly, on 21st February 1948 after which there was widespread consultations and meetings all over the country to discuss the draft, particularly in the Provincial Assemblies. The Constituent Assembly reconvened only in November 1948 to discuss threadbare the provisions of the Draft Constitution. 

It would be a distortion to think that Ambedkar was ever blamed personally for the delay. The complaint, however unfounded, was always against the Constituent Assembly as a whole and this is reinforced by Shyama Prasad Mookerjee's speech in Parliament during the debate on the 1st Amendment in 1951. Referring to the debate on the Fundamental Rights Chapter in the Constituent Assembly, he argued that the level of detailed discussion that led to many changes in the Draft Constitution was absolutely necessary given circumstances in which the Constitution was being drafted.

 The public consultations all over the country and the detailed debate in the Constituent Assembly was necessary to set off the charge of democratic deficit that plagued the creation of the Constituent Assembly, given the lack of universal suffrage and the dominant position of the Congress Party. That process, undoubtedly, did take time and it is precisely in that context that Shankar's cartoon appeared in Shankar's Weekly and in the NCERT textbook as the cartoon accompanying the text under the headings - 'Composition of the Constituent Assembly'; 'The Principle of Deliberation'; and 'Procedures'. What our parliamentarians have done is to strip the cartoon of the historical context in which it appeared and engage in a meaningless, hollow and undemocratic act of literalism.

A Counter View:

Wednesday, May 09, 2012

Update on the Haj case

This is an update on my earlier post on the Haj order (A Liberal Secularist Agenda for Disengagement with Religion). The interim order in Union of India v Rafique Shaikh Bhikhan by Justice Alam and Desai is available now. The relevant (and fascinating) extract outlining the Court's reasoning is reproduced below:
we appreciate the intent of the Government of India to provide subsidy to cover the additional burden resulting from the stringent regulation imposed by the Saudi Arabian Authorities. We also take note of the fact that the grant of subsidy has been found to be constitutionally valid by this Court.We are also not oblivious of the fact that in many other purely religious events there are direct and indirect deployment of state funds and state resources. Nevertheless, we are of the view that Hajj subsidy is something that is best done away with. 
This Court has no claim to speak on behalf of all the Muslims of the country and it will be presumptuous for us to try to tell the Muslims what is for them a good or bad religious practice. Nevertheless, we have no doubt that a very large majority of Muslims applying to the Haj Committee for going to Hajj would not be aware of the economics of their pilgrimage and if all the facts are made known a good many of the pilgrims would not be very comfortable in the knowledge that their Hajj is funded to a substantial extent by the Government. We remind ourselves that the holy Quran in verse 97 in Surah 3, Al-e-Imran ordains as under:
“ 97. In it are manifest signs (for example), the Maqam (place) of Ibrahim (Abraham); whosoever enters it, he attains security. And Hajj (pilgrimage to Makkah) to the House (Ka’bah) is a duty that mankind owes to Allah, those who can afford the expenses (for one’s conveyance, provision and residence); and whoever disbelieves [i.e. denies Hajj (pilgrimage to Makkah), then he is a disbeliever of Allah], then Allah stands not in need of any of the Alamin (mankind, jinn and all that exists).”
We, therefore, direct the Central Government to progressively reduce the amount of subsidy so as to completely eliminate it within a period of 10 years from today.

[emphasis in the original]

So the reasoning of the Court is not exactly based on liberal disengagement with religion. Quite the opposite, really! The Court is telling you what it is to be a good Muslim, although echoes of Shah Bano are quickly drowned in the modest qualification of the Court's inability to speak for all Muslims. Also, the Court acknowledges that Haj subsidy has been held to be constitutional, but thinks it is bad policy. Can the Court set a policy aside without finding unconstitutionality? I believe this is the right outcome, but based on bad reasons - the policy should have been found to be unconstitutional because it violates Article 15. Admittedly, that would be a radical overhaul of existing jurisprudence, and require a larger bench. Also interesting is the Court's use of a the 10 year window: one can see resonance with Brown v Board of Education, and also the 'progressive realisation' jurisprudence on socio-economic rights in South Africa.

Report on the Q&A Session with a Delegation of Indian MPs at Oxford (16th April 2012)
(co-authored with Dhvani Mehta)

Apparently when Devi Lal, the ‘tau’ of Indian politics, was asked why he had made his son, Om Prakash Chautala, the Chief Minister of Haryana on becoming the Deputy Prime Minister of India himself in 1989, he crudely responded  –‘aur kya, Bhajan Lal ke chhore ko banauu?’ That level of arrogance may not inform contemporary Indian politics but responses from a delegation of Indian MPs to a question on dynastic politics indicated that the tau’s ghost might linger for a while.
Responses from Supriya Sule (LS, NCP), Piyush Goyal (RS, BJP) and Deepender Hooda(LS, INC), who were part of a panel that also included Chandan Mitra (RS, BJP), Asaduddin Owaisi (LS, All India Majlis-E-Ittehadul Muslimeen), Jayant Chaudhary (LS, RLD) and Rajagopal Lagadapati (LS, INC), made it clear that solving the problem of entry barriers into Indian politics was far from being a priority. Their focus, as has very often been the case on this issue, was on justifying why positions of privilege do not prevent them from being sincere and hardworking MPs. The democratic deficit caused by the entry barriers hardly found any mention in the responses. Supriya Sule’s passionate declaration of the personal sacrifices she was making, Piyush Goyal’s treatment of his political lineage as an advantage and Deepender Hooda’s assertion that election victories (after the first one) were all about individual merit reeked of a power elite determined to hold on to its position of political privilege. Perhaps the question stood no chance given that it was being put to a panel where 6 out of 7 speakers were inheriting the political legacies of their families.
Panellists seemed more willing to introspect when posed a question on the institutional reforms needed to make Parliament functional again. They acknowledged problems with the system, and stated that attempts were being made to forge solutions across party lines. Details however were scant, apart from the mention of a proposal to introduce an annual minimum of parliamentary sittings. Chandan Mitra was of the view that, contrary to public perception, Parliament achieved significant results through consensus in its standing committees.
Given the history of the Third Front in Indian politics, it was surprising to see the degree of optimism amongst non-Congress/BJP panellists about the possibility of such a government in 2014. Perhaps the most enduring account of the problems surrounding the formation of a Third Front government is Devi Lal’s insistence on taking the oath as Deputy Prime Ministerin 1989 despite President Venkataraman’s strong suggestion during the ceremony that the Constitution permitted him to take oath only as a Minister (And well, it took a decision of the Supreme Court to finally resolve the issue). Supriya Sule’s answer, if implemented, might well be a way to counter such deep levels of suspicion and discord - she emphasised the necessity of presenting a pre-poll Common Minimum Programme to the electorate, rather than cobbling together a post-poll alliance. If voted to power, Asaduddin Owaisi was of the view that the economic and foreign policies of a Third Front government would be substantially different from the largely indistinguishable policies of the two national parties. However, Piyush Goyal believed that a government dominated by regional parties might be ill-suited to address national issues. In a polity that is increasingly dominated by regional parties, Deepender Hooda acknowledged the need to address regional aspirations and strengthen leadership in the States. 
The responses to a question on whether identity politics impeded or enabled democracy were predictable. Chandan Mitra promptly held up the examples of Nitish Kumar and Narendra Modi and their brand of politics as moving away from the fixation with identity. Rebutting the mainstream discourse about Nitish Kumar’s development agenda, Asaduddin Owaisi claimed that the Bihar Chief Minister had merely got his religion and caste permutations right by carving out Maha-Dalits and Most Backward Classes from the Scheduled Castes and OBC categories respectively. While the jury might still be out on the political feasibility of Nitish Kumar’s strategy in other parts of the country, it certainly represents the next level of legal challenges for reservation policies. While courts have been willing to uphold the sub-classification of OBCs along economic lines, the constitutional fate of Nitish Kumar’s reservation policies for Scheduled Castes remains uncertain, especially in light of the Supreme Court’s decision in EV Chinnaiah v State of AP & Ors
Being rather dismissive of Narendra Modi’s model of development, Asaduddin Owaisi asserted that it was too high a price to pay. He delivered an impassioned justification for identity politics, especially in the context of safeguarding minority rights. The reactions from Mr. Owaisi and other Muslim MPs to the Supreme Court’s observations on the Haj subsidy have been interesting. Neatly capturing the benefits of identity politics, he concluded his remarks with a poetical flourish- ‘phool nahin toh phool ki patti hi sahi’ [if we can’t have the flower, then we may as well have the petals]. 
If one were to attempt to roughly label the responses, arrogance, predictability, lack of nuance and evasiveness would be good candidates, typical of so much of Indian political discourse. While some of the responses to questions on climate change, reservations based on economic criteria, and the Gujarat riots betrayed the latter two characteristics, other answers on the same issues were certainly more measured and reasoned. When asked whether India could afford not to transition immediately to a low-carbon economy, Piyush Goyal attempted to portray India as the victim in global negotiations and seemed to suggest that development and environmental protection were antithetical. In contrast, Mr Chaudhary remarked that this distinction was counter-productive, and that moves to adopt low-carbon measures ought not to be viewed as a conspiracy of the developed world. Instead, it was in India’s self-interest to move towards sustainable growth particularly in the light of our vulnerability to the effects of climate change.
Supriya Sule also displayed a lack of nuance when she cited the Right to Education Act as an example of affirmative action based on economic criteria without any reference whatsoever to the manner in which various State governments had, under their respective rules, divided up the 25% quota. 
This lack of nuance is particularly ironic given that politicians are quick to accuse civil society of failing to appreciate the complexity of political challenges, the India Against Corruption movement being a case in point (Chandan Mitra couldn’t resist a self-congratulatory pat on the back as he reminded the audience of the high quality of parliamentary debate on the Lokpal bill).  
The BJP’s defensiveness over Narendra Modi is evident in its reaction to the report submitted by the Supreme Court appointed amicus, Raju Ramachandran, on the Zakia Jafri case. It was also evident when, on being asked whether there would be adverse political consequences if Narendra Modi apologised for his moral culpability (rather than legal) for the Gujarat riots, Chandan Mitra’s initial reaction was a refusal to answer the question. It took him very little provocation to respond when Asaduddin Owaisi responded to a question on whether such an apology would suffice for the Muslim community. He said that Narendra Modi would never apologise because an apology for such an act required a ‘human heart.’ He asserted that all legal proceedings would have to continue, and indicated that a Truth and Reconciliation Commission based on the South African model might be acceptable. This response was sufficient for Chandan Mitra to spout the BJP line on Narendra Modi that there was no question of an apology, since no legal culpability had been established. 
The session was a unique opportunity to interact with parliamentarians from across the political spectrum and although several trite responses were duly parroted, there were some well-articulated positions along with encouraging passion for convictions. It gave us a taste of what makes Indian politics exciting and frustrating at the same time.

Tuesday, May 08, 2012

Haj subsidy struck down: A Liberal Secularist Agenda for Disengagement from Religion

I am still to see the full judgment, but media reports suggest that a bench of Justices Alam and Desai have struck down the provision for Haj subsidy as unconstitutional. If this move signals a shift from secularism as equal engagement with/respect for all religions to secularism as disengagement from religious belief and doctrine, I think it is a very welcome move indeed (and one which should be welcomed not just by secularists but also by religious non-secularists - the disengagement view of secularism  provides greater autonomy to religions so long as they do not harm others, so religious groups are likely to be better off under a hands-off state rather than a hands-on state).

The secular disengagement agenda also includes personal law reform (with a secular Uniform Civil Code as the ultimate goal); abolition of religion-based tax benefits to Hindus (through the institution of Hindu Undivided Family); robust antidiscrimination provisions to prevent housing, education and employment discrimination on the grounds of religion; end to the state's meddlesome role in temple trusts; end to symbolic religious practices by state institutions (eg bhumi-poojan); repeal of anti-conversion legislation; repeal of cow-slaughter bans; express enumeration of atheists and agnostics in the national census; effective measures to combat religious violence; robust protection for anti-religious speech etc. Acceptable exceptions will include cases where religious doctrine causes harm, e.g. open access to temples for dalits.

The agenda will require nuanced discursive responses to allegations of decontextualised naïvety and claims of Indian-exceptionalism (although the one thing we will perhaps not be guilty of is partisanship). Are liberals up for the fight?

Wednesday, May 02, 2012

Naz SC hearing transcript and Vth NLSIR symposium

1.  A transcript of the hearings in the Naz Foundation case before the Supreme Court is available here.  The 125 page document - which has clearly been put together after considerable effort and coordination - makes for interesting and, at times, depressing reading, given the variable quality and content of the arguments raised. Kafila has an interesting set of blogposts on the case (available here, here and here).  With the decision of the Supreme Court expected sometime this year, one can anticipate a lot of discussion on the issues that arose for consideration in the case.  Since the SC hearings reference the US Supreme Court's decision in the Lawrence v. Texas case, this piece by Dalia Lithwick in the New Yorker reviewing a fascinating recent book on the story behind the case is relevant.    

2.  The NLSIR is hosting its Vth symposium on "Corporate Mergers and Acquisitions: Recent Regulatory Changes" over the coming weekend at the campus of the National Law School, Bangalore. Further details about the event, including the full programme, are available here

Tuesday, May 01, 2012

Welcoming Anup Surendranath & On the State of National Law Schools

We are very happy to announce that Anup Surendranath has agreed to join the blog team at LAOT. Readers who have been reading his guest posts should already be familiar with him somewhat and can look forward to regular posts by him. 

Anup is currently reading for the D.Phil in Law at Balliol College, Oxford and looks at the sub-classification of Scheduled Castes, OBCs and women in the context of reservations. Anup graduated from NALSAR University of Law, Hyderabad in 2006 and completed the BCL and M.Phil in Law at Oxford between 2007-10. His areas of interest include comparative rights adjudication, socio-economic rights, Indian constitutional law and contemporary Indian politics. He will be taking up a teaching position at NLU Delhi from September 2012. Anup, welcome to the team.

I should also use this opportunity to highlight an important newspaper column that Anup has recently written (along with Chinmayi Arun) on the crisis in the National Law Schools. A lengthy excerpt follows:

the main parameters of assessment must revolve around the quality of legal education being provided at these universities, the quality of research output and the ability of these institutions to contribute meaningfully to policymaking and public debate in India.
If the quality of education being provided at the NLUs is to become a high priority, it would require a close consideration of the faculty composition, the contributions to curriculum and the governance structures of these institutions.
Within the student community, there exists a strong perception that the reputation enjoyed by some of NLUs is not matched by the quality of faculty. Very early on into their law degrees, students decide that time spent in the classroom is a waste, and self-learning through internships, moot court competitions and other extra-curricular activities make for a better education. This lowering of expectations is caused largely due to sub-standard classroom teaching, albeit with some very notable exceptions, across these universities. This failure of classroom education is often laid at the doors of the teachers. However, it may more accurately be attributed to institutional structures relating to faculty hiring, retention and incentives. At NLUs, faculty members find themselves in a system that hardly rewards research output, innovative courses/teaching methods or quality publications and are instead left to negotiate a system that mainly rewards the number of years clocked in the job with no appropriate mechanism for faculty evaluation. Little attempt is made at training new faculty or discussing teaching techniques, let alone acknowledging the importance of course development and structure.
The curriculum keeps both teachers and students in the classroom for too many hours a day for students to focus on. In most NLUs, the academic year is peppered with multiple rounds of tests and numerous research paper submissions. This weighing of the curriculum with excessive classroom time and many rounds of ineffective assessment leaves teachers with very little time to grow as scholars, to engage in their own research and to evolve as teachers. NLUs tend to prioritize the number of hours spent in the classroom over the quality of teaching; the timelines of evaluation over the quality of evaluation; and the number of courses taught per year over development of good courses. The processes adopted discourage teachers from putting sufficient thought into their teaching and assessment, and as a result the level of rigour informing teaching and assessment is far from satisfactory.
When trying to decide whether to teach at one of NLUs, a good scholar (inevitably a person with other job options) would be confronted with the fact that she will not be allowed enough time to prepare adequately for class and will probably end up teaching subjects in which she has no interest. She will be offered little, if any, time and resources that would help her engage with the larger universe of academics and researchers in her field, and which would allow her to do what any academically inclined person worth her salt wants and needs to do—read, think and write. It is not money that tempts lawyers to give up a lucrative career and enter universities. It is the freedom to read widely, think deeply, write independently and keep learning—the opportunity to live in the world of ideas. Any university that does not offer its faculty this freedom and opportunity will fail to attract promising teachers and researchers.
Since good education is impossible without good scholars, and since NLUs do very little to attract, retain and mentor good scholars, it is imperative that these institutions consider a major systemic reform. This reform will be meaningless without taking on board the experience and concerns of major stakeholders—the administrators, teachers and students of these universities. Research needs to become a higher priority, with incentives and time set aside for it. Attention needs to be paid to the quality of teaching and assessment, with a focus on course development, teaching techniques and useful feedback, none of which can be achieved without a comfortable faculty-student ratio.

Guest Post from Anup Surendranath: The Right to Education Case: Was Another Constitutional Amendment Required?

When narratives on the Supreme Court’s enforcement of socio-economic rights are written, the judgment of the Court upholding the constitutionality of the Right to Education Act, 2009 will probably enjoy pride of place. In this post I explore the construction and role of legislative intent behind the 86th Constitutional Amendment and also, whether a further constitutional amendment was necessary to impose the 25% quota obligation on unaided non-minority schools as discussed in Justice Radhakrishnan’s dissent in Society for Un-Aided Private Schools of Rajasthan v. Union of India.

Balancing Rights

To be clear, it is my argument that unaided schools can be legitimately required to bear the 25% quota obligation but the method adopted in the current instance leaves it open to constitutional challenges. The 86th Constitutional Amendment that inserted Article 21-A into the Constitution declares that ‘the State shall provide free and compulsory education …….in such a manner as the State may, by law, determine’. Reading Article 21-A on its own would suggest that there is nothing that stops the State from adopting the model envisaged in The Right of Children to Free and Compulsory Education Act, 2009. However, the question is whether precedents of the Supreme Court clarifying the scope of Article 19(1)(g) in light of Article 21-A’s drafting history meant that a further constitutional amendment was required to impose the 25% quota obligation on unaided non-minority schools.

Drafting History of Article 21-A

About a month before Parliament passed the 86th Constitutional Amendment on 12th December 2002, the Supreme Court delivered its judgment in the TMA Pai case. Coupled with the drafting history of Article 21-A and the decision in TMA Pai, Justice Radhakrishnan has appropriately highlighted that the strategy to impose an obligation on unaided schools through an ordinary legislation is not on firm ground. In the TMA Pai case, an 11-judge bench of the Supreme Court held that the State could not require unaided private colleges to implement the State’s reservation policies or provide free education. As a matter of constitutional interpretation, Justice Radhakrishnan is right in arguing that Parliament must be deemed to have been aware of the decision in TMA Pai before it passed the 86th Constitutional Amendment and it is in this context that the lack of a specific provision in Article 21-A giving a specific power to the State to impose obligations on private parties becomes problematic.

This is where the drafting history of Article 21-A complicates matters. The first draft of Article 21-A that was presented before the Chairperson on the Rajya Sabha in July 1997 contained a provision [draft Article 21-A(3)] stating that the State could not make a law requiring unaided institutions to provide free education. However, taking into account the discussions that were held by a Committee of the Rajya Sabha and a report from the Law Commission of India, this provision was dropped in due deference to the Supreme Court’s decision in Unnikrishnan which permitted the State to require unaided institutions to set aside up to 50% of their seats for free education. Additional Solicitor General Indira Jaisingh argued that this drafting history must be interpreted as Parliament’s intention to permit the State to impose obligations on unaided schools to provide free and compulsory education.  However, TMA Pai over-ruled Unnikrishnan on this point before Lok Sabha passed the 86th Constitution Amendment Act. Therefore, the law on Article 19(1)(g) as declared by the Supreme Court before the 86th Constitutional Amendment Act was that maximum autonomy must be given to unaided institutions in their admission procedures. By not inserting a specific provision permitting the State to impose obligations on unaided institutions, the argument is that it must be deemed that Parliament was accepting the constitutional scope of Article 19(1)(g) as it existed on that date.

Legitimate Aims, Unconstitutional Methods?

The question comes down to whether it is constitutionally permissible for Parliament to over-ride the existing protection of a constitutional provision [Article 19(1)(g)] through an ordinary legislation. However, Chief Justice Kapadia’s response to the above argument is that the judgment in TMA Pai did not explore the connection between Articles 21-A and 19(1)(g) and therefore, cannot limit the operation of the Right to Education Act. TMA Pai, the Chief Justice argues, defined the scope of Article 19(1)(g) in the context of reservations in unaided higher educational institutions under Article 15. The Chief Justice’s argument is not entirely convincing because it does not explain why the scope and content of the right in question, i.e Article 19(1)(g), can be different for the same kind of institutions for similar kind of State action. The answer might well be that the objective of the State in the two cases are different. However, the majority judgment does not provide an explanation as to why the difference between pursuing inclusivity in higher education and implementing the right to primary education should make such a qualitative difference to the content of the right protected under Article 19(1)(g).

However, this issue raises a fascinating question about the role of legislative intent in constitutional adjudication. While Justice Radhakrishnan might well be correct in the construction of the legislative intent behind the 86th Constitutional Amendment, he does not answer the question why the Supreme Court must consider such intent. While the court is yet to develop a coherent approach to the role of legislative debates and legislative intent in adjudication, a possible response to Justice Radhakrishnan could be that the Supreme Court need not refer to or be bound by the legislative intent behind the 86th Constitutional Amendment and that it would be perfectly legitimate for the court to engage only with the text of Article 21-A in the context of contemporary circumstances.