Friday, June 29, 2012

Remembering Justice Khanna

This month will mark the birth centenary of Justice Hans Raj Khanna, one of the most important judges to have served on the Supreme Court of India. In a short piece in the current issue of Caravan, I reflect upon Khanna's legacy and judicial philosophy.

Chief Justice Roberts Exercises the Swing Vote as the US Supreme Court Upholds the 'Individual Mandate' in Obama's Health Care Law

The US Supreme Court handed down its decision in National Federation of Independent Business v. Sebelius yesterday and upheld the individual mandate provision of the Affordable Care Act. In this post, my attempt is to provide a clear and simple analysis of the issues involved and the opinions expressed in the case.

It would be stating the obvious to say that today's decision had tremendous institutional and political significance. The extent of its importance may be understood from the fact that the court, in a rare departure from the usual one hour of oral arguments, allocated six hours to hear arguments concerning the constitutionality of the the Affordable Care Act ('ACA'). 

There were primarily three issues for determination before the U.S Supreme Court in National Federation of Independent Business v. Sebelius:

1. Constitutionality the 'individual mandate' provision of the ACA

I am going to take the liberty of explaining the meaning of 'individual mandate' for the benefit of readers who might not have been following the details of the case. The 'individual mandate' provision of the ACA requires all Americans (except certain specifically excluded categories) to have a certain minimum level of health insurance. All individuals have to buy health insurance from private providers if they are not covered by insurance from Medicare/ Medicaid (government funded health coverage for certain vulnerable sections) or insurance provided by employers. If any individual does not have health insurance by 2014, the only consequence would be that she has to pay a 'shared responsibility payment' to the federal government, which the ACA called a 'penalty'. This penalty will have to made as an additional payment when an individual pays her taxes to the Internal Revenue Service (IRS).  

This issue had two further parts to it:

1-A: Does the 'individual mandate' amount to the federal government forcing individuals to buy a product or was it merely regulating inter-state commerce which was permitted under the Commerce Clause?

The federal government argument argued that the failure to purchase health insurance had a "substantial and deleterious effect on interstate commerce" because the costs of providing health care to those who did not have health insurance would ultimately result in higher premiums for those who did purchase insurance. This cost-shifting problem that arose failure to purchase health insurance, the federal government argued, was being remedied by the ACA. They saw it as only regulation of inter-state commerce (permitted by the Commerce Clause) and not creation of commerce.

The petitioners, however, felt that the power to regulate commerce did not include the power to create commerce. The requirement to mandatorily buy insurance, they contended, forces an individual to take up commerce on the basis that lack of insurance had negative impact on interstate commerce. They rejected the federal government's argument that not buying health insurance was the basis for exercising  the power under the Commerce Clause and argued that inaction cannot be regulated under the Commerce Clause. This was the famous 'broccoli' argument in the lead up to the judgment and whether the federal government could require the mandatory purchase of broccoli in order to address health and diet problems. The federal government's response was that health insurance was a unique product and that the individual mandate in the ACA did not mean that the federal government could mandate the purchase of broccoli or cars.

Decision on the Commerce Clause

Five judges rejected the argument that Congress had the power to bring in the individual mandate under the Commerce Clause. The opinion by Chief Justice Roberts (Part III-A, p. 22 of the document above) and the dissenting opinion (Part I-B of the joint opinion by Justices Scalia, Kennedy, Alito and Thomas at p.136) held that the precedents governing the scope and meaning of the Commerce Clause did not permit the reading suggested by the federal government. 

Four judges speaking through Justice Ginsburg's opinion (Parts I-III, pp. 67-101, joined by Justices Sotomayor, Kagan, and Breyer) were of the view that the individual mandate was a constitutional exercise of power by Congress under the Commerce Clause.

1-B: Can the 'individual mandate' be seen as an exercise of taxing powers by Congress?

This is where the opinion by Chief Justice Roberts is critical and proved to be the swing vote in upholding the 'individual mandate' of the ACA. The federal government's argument was not that the Congress was exercising its taxing powers by requiring everyone to buy health insurance. Instead, the argument was that the 'shared responsibility payment' or the penalty under ACA must be seen as a tax, which Congress could legally impose by exercising its taxing powers. Since the only consequence of not buying the health insurance is to make an additional payment when paying taxes, the government argued that the 'individual mandate' could be seen as taxing not having health insurance. In that sense, it was not a requirement to mandatorily buy health insurance. Instead, it only set a condition for the payment of tax just like earning a certain income or paying tax when buying certain products.  

Chief Justice Roberts in his opinion on whether the 'individual mandate' is a tax (Parts III-B and III-C, pp. 37-51) is of the view that 'the question is not whether that is the most natural interpretation of the mandate, but only whether is a "fairly possible" one'. For the purposes of deciding whether Congress was exercising its taxing powers, Chief Justice Roberts is of the view that the label of 'penalty' attached to the payment that must be made to the IRS cannot be determinative. Through the reasoning he offers in Parts III-B and III-C, Chief Justice Roberts come to the conclusion that the requirement of the ACA that an individual who does not have health insurance must pay a penalty to the IRS can be viewed as a tax.

The Plurality on the Tax Issue

Five judges agree that the 'individual mandate' is a constitutionally valid exercise of taxing powers and that agreement is at the heart of the court's decision to uphold the constitutionality of Obama's health care law. Even though Justices Ginsburg, Sotomayor, Kagan and Breyer were primarily of the view that the 'individual mandate' was justified under the Commerce Clause, they agreed with Chief Justice Roberts (Part-IV of Justice Ginsburg's opinion, p.102) that the 'individual mandate' could also be seen as a valid exercise of taxing powers by Congress. Justice Ginsburg, while agreeing with the Chief Justice on this issue, notes that it is surprising that while he was willing to see if it was "fairly possible" to view it as a tax, he was not willing to adopt the same approach while dealing with the Commerce Clause. 

Four judges, Justices Scalia, Kennedy, Alito and Thomas, did not find the 'individual mandate' to be a valid exercise of taxing powers by Congress. Therefore, they found the law to be unconstitutional both under the Commerce Clause and the taxing powers. 

2. The Anti-Injunction Act and the Authority of the Supreme Court to Decide the Case

Essentially, the provisions of the Anti-Injunction Act prevent any tax from being challenged in a court until the tax is paid. Since the penalty under the ACA would kick in only in 2014, it was argued that the Supreme Court could not hear the case due to the provisions of the Anti-Injunction Act. 

Here Chief Justice Roberts argues (Part-II, p.18 of the document) that the label of 'penalty' in the ACA is significant since the "Anti-Injunction Act applies to suits for the purpose of restraining the assessment or collection of any tax". Chief Justice Roberts notes that the ACA labels other payments under the legislation as 'taxes' while it is called a 'penalty' under the ACA. More importantly, the Chief Justice is of the view that since both legislations, the ACA and the Anti-Injunction Act, are legislations from Congress it is important to to determine whether it was Congress' intent to make the Anti-Injunction Act applicable to the ACA. The Chief Justice undertakes a textual analysis of the ACA to come to the conclusion that this was indeed not the case and therefore renders the the Anti-Injunction Act inapplicable to the 'individual mandate' provision. 

Justices Ginsburg, Sotomayor, Kagan, and Breyer agreed with the Chief Justice's reasoning concerning the inapplicability of the Anti-Injunction Act. However, the four dissenting judges were quick to argue that the Chief Justice was on the one hand upholding the constitutionality of the 'individual mandate' as a valid exercise of taxing powers but at the same time refusing to treat it as a 'tax' for the purposes of the Anti-Injunction Act. Having decided that the 'individual mandate' is not an exercise of taxing powers, the four dissenting judges had no trouble in holding that the Anti-Injunction Act was inapplicable to the case before them. 

3. The Expansion of 'Medicaid' under the ACA is  Unconstitutional

26 states challenged the provisions of the ACA that dealt with the Medicaid programme and one of the main reasons was the impact it would have on the federal funding they would receive under it. As it stands, States are required to cover only particular categories of people - children, needy families, pregnant women, the blind, the disabled and the elderly. However, the ACA requires States to cover, under the Medicaid programme, all individuals below 65 years whose income is below 133% of the federal poverty line. The federal government would bear the entire difference in costs until 2016 and then it would gradually reduce it to a minimum of 90% of the costs over a few years after that. This issue relates to rather intricate aspects of federalism in the US and the limits on the power of Congress in trying to get States to comply with objectives of the federal government.  The States argued that Congress was looking to force the changes in Medicaid on them by witholding the Medicaid funds in its entirety if the new expanded programme and attached conditions were not accepted.

Seven judges struck down this provision as unconstitutional. Chief Justice Roberts (Part-IV, p. 51 0f the document, with which Justices Kagan and Breyer agreed) and the four dissenting judges (Part-IV, p.154) agreed that the conditions and the manner in which these conditions were attached were in excess of the spending powers of Congress. 

Invocation of Judicial Deference

The opinions by Chief Justice Roberts and Justice Ginsburg invoke concerns of judicial deference while upholding the measure adopted by Congress. In the words of the Chief Justice: 
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices. Our deference in matters of policy cannot, however, become abdication in matters of law.
However, Justice Ginsburg finds the Chief Justice's opinion on the Commerce Clause problematic on those very grounds. She draws attention to the phase in the US Supreme Court's history when economic regulations enacted by legislators were frequently struck down in the first half of the 20th century. Referring to the Chief Justice's opinion on the Commerce Clause, Justice Ginsburg said: 
Why should the Chief Justice strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever­ developing modern economy? I find no satisfying response to that question in his opinion.
However, when the case first went to the US Supreme Court President Obama would not have considered Chief Justice Roberts to be a likely saviour and might have pinned his hopes on Justice Kennedy. Chief Justice Roberts has broken ranks with the conservative wing on the court and it will be interesting to see how that dynamic develops. Undoubtedly, the reputation of the Court was at stake given the criticism it has received subsequent to its controversial 5-4 decisions on gun control in McDonald v. City of Chicago and political spending by corporations in Citizens United v. FEC. The Chief Justice has certainly saved the day for the Court and commentators see it as the beginning of the Roberts Court, shifting the focus from Justice Kennedy who has been the swing vote on the current US Supreme Court.  We will have the chance to see the dynamics of the swing vote very soon when the US Supreme Court's hears arguments on the constitutionality of affirmative action measures in Fisher v. University of Texas at the beginning of its next term in October 2012. With Justice Kagan recusing herself from the case, all eyes will be on the swing vote as the legacy of Bakke and Grutter comes before the US Supreme Court.

 The SCOTUS blog coverage on the health care case is here:

Friday, June 22, 2012

We the People

As we know, not a great deal has been written on the founding of India's Constitution. Kalyani Ramnath, who teaches legal history at the National Law School of India University, Bangalore, has a new article on the Constituent Assembly Debates in South Asia Research (available here). I haven't had an occasion to read the piece, though it looks very interesting. The abstract is as follows:

‘We The People’: Seamless Webs and Social Revolution in India’s Constituent Assembly Debates

Although the Preamble of the Constitution proclaims that ‘We the People’ have solemnly adopted and enacted it, there is almost no further mention of ‘the people’ in the constitutional text itself. Asking who are ‘the people’ in whose name the Indian Constitution was drafted, this article re-examines the Constituent Assembly Debates (CAD) and highlights the fragmented image of ‘the people’ as a multivocal, multivalent reflection of imaginations and expectations attributed to people within and behind the Constituent Assembly. It becomes obvious that the aspirations of the actual Constitution makers find clearer expression in the constitutional text than the perceptions of ‘the people’ in whose name such law making takes place. Using the lens of the social revolution that the Constitution was to bring about, the article clarifies the implications of this multiplicity of visions, distinguishing ‘We the People’ seeking to claim such unfulfilled constitutional promises today, on the one hand, and the functionaries obligated to translate constitutional promises into reality and to enforce them, on the other. Asking why it is that the ambitions of the latter find clearer expression in the constitutional text than those of the former, the article also poses deeper questions about representativeness of political institutions and about the strength and depth of Indian social reform agenda.

The Legal Context to the Supreme Court of Pakistan's Disqualification of Prime Minister Gilani

(I must thank Professor Ali Qazilbash at the Department of Law and Policy, Lahore University of Management Sciences for answering some of my basic questions concerning this controversy and constitutional law in Pakistan. Any inaccuracies, however, are my own responsibility.)

To better understand the order of the Supreme Court of Pakistan disqualifying Prime Minister Gilani, it might be useful to get a grip on the legal context in which this order was handed down. My apologies for making this largely a descriptive post but I think it might help readers better understand the complexities involved and avoid a narrow and superficial analysis like the one reflected in Justice Katju's opinion piece in The Hindu.

Pakistan's Involvement in the Swiss Case Against Benazir Bhutto and Asif Ali Zardari

The genesis of this issue can be traced back to 1997 when the Advocate General of the Nawaz Sharif government, Chaudhry Mohammad Farooq, wrote to investigating authorities in Switzerland, who were looking into bribery and money laundering charges against 2 Swiss corporations -- Cotecna and SGS -- and other individual beneficiaries, including Benazir Bhutto and Asif Ali Zardari. The Advocate General sought for the Government of Pakistan to be made a civil party in the case on the ground that it was the Government of Pakistan that should legitimately receive the money that was involved, in case the charges were proved. In August 2003, a Swiss court convicted Benazir Bhutto and Asif Ali Zardari ex parte (they refused to appear or answer questions put to them by letters rogatory) on money laundering charges and handed down a 6 month suspended sentence and an order to pay $12 million to the Government of Pakistan by way of restitution.

Musharraf's National Reconciliation Order and Pakistan's Withdrawal from the Swiss Proceedings

Benazir Bhutto and Asif Ali Zardari filed an appeal in Switzerland against the judgment of the Swiss court in August 2003 with Bhutto living in London and Dubai fearing arrest by Musharraf's government if she returned and Zardari imprisoned in Pakistan. As a result of the political churning in Pakistan between 2003-2007, Musharraf promulgated the National Reconciliation Ordinance (NRO) in October 2007 which sought to close cases of corruption filed against certain political leaders and bureaucrats within a certain period. The case against Benazir Bhutto and Zardari in the Cotecna and SGS matter also fell within the scope of the Ordinance. Following the Ordinance and Benazir Bhutto's assassination in December 2007, the then Advocate-General of Pakistan, Malik Muhammad Qayyum, sent a letter in March 2008 to the Canton of Geneva's Attorney General withdrawing the Government of Pakistan as a civil party in the case against Zardari and others.

The Supreme Court's Order in the NRO Case

In December 2009, a 17-judge bench of the Supreme Court of Pakistan, led by Chief Justice Iftikhar Mohammad Chaudhry, struck down the NRO and held that the Attorney General's letter in March 2008 was unauthorized and unconstitutional. In this judgment it also ordered the Federal Government to write to the Swiss authorities and withdraw the March 2008 letter and thereby revive the Government of Pakistan's position as a civil party in the Swiss proceeding. It is the refusal of the Government of Pakistan to send this letter that is at the heart of the current controversy. However, what has received very little attention is the fact that the Supreme Court of Pakistan issues numerous orders and summoned various bureaucrats and ministers since December 2009 in an attempt to the get the government to follow its order in the NRO case.  The Federal Government, speaking through the Prime Minister, categorically stated that it will not send the letter to the Swiss authorities until the incumbent President was in office and this finally led to the contempt petition against the Prime Minister.

The Question of Immunity u/ Art. 248 of Pakistan's 1973 Constitution

Does the order requiring the Federal Government to write to the Swiss authorities to revive Pakistan's position as a civil party in the Swiss proceedings violate the immunity available to the President under Art. 248 of Pakistan's 1973 Constitution? In April 2012, a 7-judge bench of the Supreme Court seized with the question of whether the Prime Minister was in contempt had a rather simple response. It was repeatedly argued in the contempt case that Prime Minister Gilani would not authorise the Attorney General to write to the Swiss authorities because it would violate the President's immunity u/ Art. 248 and international law generally. The Supreme Court's response was that the case against Zardari in Switzerland was initiated by the Swiss authorities and not the Government of Pakistan. The order of the court in the NRO case was only to revive Pakistan's position as a civil party in the Swiss case so that it could receive the money that was legitimately owed to it, in case the charges of money-laundering and bribery were finally upheld. Questions of immunity available to the President under Art. 248 of Pakistan's Constitution and international law generally, according to the Supreme Court, was a matter for the Swiss courts to rule upon and had no bearing upon the Government of Pakistan's obligation to write to the Swiss authorities reinstating itself as a civil party.

The Disqualification Order Puts the Supreme Court in a Tricky Situation

Despite repeatedly trying to get the Government of Pakistan to follow its order in the NRO case, the government showed no sign of relenting and this undoubtedly put the Supreme Court of Pakistan in a very difficult situation. However, by going ahead and disqualifying the Prime Minister earlier this week on the basis of his conviction in the contempt case, the Supreme Court has pushed itself into a corner with depleted options. The order in the NRO judgment was directed at the 'Federal Government' and not at the Prime Minister personally. If the next Prime Minister also refuses to write that letter to the Swiss authorities, will the Supreme Court go ahead and find the Prime Minister to be in contempt again and subsequently disqualify the next Prime Minister as well? I am not sufficiently familiar with the political situation in Pakistan to comment on the likelihood of the next Prime Minister authorising the Attorney General to write to the Swiss authorities, but the Supreme Court of Pakistan did find itself in a very difficult situation before this week and I am not sure if the disqualification order has made its position any better in the intriguing theatre of politics in Pakistan.

Thursday, June 21, 2012

Minority Quotas: Failed Lessons

The Hindu today published an article on their Editorial Page authored by me on minority quotas. Have reproduced it here

Lessons on how not to pitch for a Quota
 Reservation on the basis of religion has always raised serious constitutional concerns and recent ruling of the Andhra Pradesh High Court (which the Supreme Court refused to stay) declaring the sub-quota for minorities as unconstitutional only illustrates this constitutional tension. This is not the first time that the Andhra Pradesh High Court has declared reservations for religious minorities as constitutionally invalid. In 2005, a five-judge-bench of the Andhra Pradesh High Court struck down the Government Order giving the reservation of 5% to Muslims on the ground that it was given without consulting the Backward Class Commission. (T.Muralidhar Rao) Subsequently when the A.P. State Legislature passed an Act giving 5% reservations for Muslims, the same was struck down by another five-judge-bench, inter alia, on the ground that the said reservation was purely on religious lines and was therefore constitutionally impermissible (Archana Reddy 2007). The State legislature again passed another legislation giving reservation to specified Muslim religious group and declared them as backward class. A bench of Seven Judges of the A.P. High Court declared the legislation as constitutionally invalid on the ground that the entire exercise of investigation and identification of backwardness was done on religious lines and was also not done in a scientific manner. The string of judicial setbacks makes one wonder whether the Government is announcing minority quotas largely as a symbolic exercise with the knowledge it will not pass judicial muster. Contrary to popular perception, the Andhra Pradesh High Court struck down the minority sub-quota in admission into Educational Institutions and Central Government employment not just on religious discrimination, but also on other significant constitutional illegalities. It is important to understand and analyze the implications of each dimension on which the minority sub-quota was struck down.

First and foremost, the sub-quota violated the constitutional injunction that state action should not be based on religion alone. The High Court did not say that a sub-quota could not be created for the more backward classes among the OBC’s, including minority OBC’s. It only said that such a sub-quota cannot be created on the grounds of religion. The Supreme Court in Indira Sawhney held that further classification among backward classes based on the extent of backwardness was constitutionally permissible. In Tamil Nadu, Andhra Pradesh and various other states, backward classes are further classified into various categories based on the extent of backwardness. There are various minority backward classes which already form part of these categories based on their backwardness. If the Government had demonstrated that the minority backward classes forming part of sub-quota were more backward then the other backward classes (OBC’s), it may have been constitutionally permissible to carve out a sub-quota. However the Government just clubbed all minority backward classes into one sub-group without any material to show that the minority backward classes were more backward among the OBCs. Thus on the face of it, the sub-quota seemed to be based on religion alone. If the Central Government had placed material which showed that they evaluated the condition of minority OBCs vis-à-vis other OBCs and then carved out a sub-quota, the sub-quota may have been justified. On the contrary, as the High Court observed, the substantial variance in the economic, educational and social indicators of various minority groups itself demonstrated that the sub-quota was based only on religion and not on backwardness.

Second, the basic flaw that vitiated sub-quota in admissions to educational institutions was lack of legislative authorization. The Supreme Court in Indira Sawhney held that reservation could be made even by way of a Government Order since Article 15(4) stated that reservation could be made by a “special provision”. However, the Parliament by the 93rd Constitution Amendment introduced a new provision Article 15 (5) which mandated that reservation for admission in educational institutions could only be provided by way of a “special provision, by law”. The Supreme Court has constitutionally held that whenever constitution uses the phrase “by law”, it means a law passed by a legislature. Thus, if any rights are being curtailed, it would require legislative authorization. A quota assigned by Parliament for other backward classes enmasse as a group cannot be disturbed merely by an executive instruction. The proper course for the Central Government would have been to amend the parliamentary law providing quota for backward classes. This would have ensured that it was duly debated in the parliament.

Third, the creation of sub-quota also violated a major procedural safeguard – failure to consult the National Backward Class Commission (NCBC). Recognizing that several communities were being included in the list of backward class on extraneous grounds and not based on backwardness, the Supreme Court in Indira Sahwney case directed that any revision backward class list should be done only after a prior consultation with the Backward Class Commission and its opinion is ordinarily binding. This judicial direction of the Supreme Court was given statutory recognition by the Parliament by passing a National Commission for Backward Classes Act, 1993. However, the Central Government failed to comply with this requirement by carving out a sub-quota without consulting the NCBC. The Central Government asserted that consultation is required only when you are adding a new community and does not required when you are creating a sub-class among the existing backward classes. Not only does this assertion violate the Supreme Court’s direction, but also undermines the entire rationale for consultation with the Backward Class Commission. The Backward Class Commission was meant to be an expert body which would independently evaluate claims of backwardness and not based on populist compulsions. The NCBC as an expert body would have examined the claims of other backward classes vis-à-vis the minority backward classes. The need for consulting the NCBC was all the most justified for minority sub-quotas, since there were conflicting methodologies in determining the quantum of reservation (4.5%). Justice Lokur observed that when confronted with two conflicting methodologies, the method adopted by the Central Government may have been accepted had it consulted the NCBC before carving out a sub-quota.

Fourth, the Report of the National Commission for Religious and Linguistic Minorities (NCRLM) on which the Central Government placed extensive reliance also does not justify the creation of a sub-quota. The NCRLM is a not statutory body to investigate backwardness and neither did it investigate the backwardness of the minority backward classes vis-à-vis other backward classes forming part of the 27% quota. That function falls within the exclusive realm of NCBC, which is a statutory body to investigate backwardness. Even the NCRLM Report questioned the present OBC list as unscientific and not based on proper data and sought for an overhaul of entire OBC reservation. The NCRLM Report did recommend an 8.4% for minorities out of the 27% OBC quota in Central Government employment on the ground that 8.4% is total population of minorities with reference to the OBC population. However the NCRLM recommendation will not pass the constitutional standard since the OBC reservation was given not on the basis of population, but on the extent of backwardness. And more importantly, neither the NCLRM nor the Central Government failed to consider the issue of inadequate representation before creating a sub-quota in employment. The Constitution in Article 16(4) mandates reservation for backward classes who are “inadequately represented in the services of the State”. Merely concluding that a class is backward would not suffice. The Central Government failed to consider whether the minority religious communities forming part of the sub-quota were inadequately represented in the services of the Central Government in comparison to other backward classes. The key lesson that successive governments have failed to learn is that affirmative action programs that are narrowly tailored and ensure that benefits of quota reach the intended beneficiaries are more likely to be judicially upheld. By creating a sub-quota without following the rigorous constitutional requirements, the Government indeed has done a disservice to the minorities.

(Disclosure: I represented the Petitioners before the AP High Court)

Murder Most Foul: Curious Case of the Italian Marines:

The recent arrest and prosecution of two Italian navy marines (Massimilano Latorre and Salvatore Girone), on board the Enrica Lexie, in connection with the death of two Indian fishermen (Valentine and Ajesh Binki) has received much media attention. With a spate of diplomatic communication and conflicting facts emanating from Indian and Italian corners, the legality of the Kerala High Court proceedings stands shrouded with uncertainty. Here, I attempt to briefly outline the international legal landscape in which this argument unfolds. Before delving into the legal issues involved, however, a brief outline of the (largely disputed) facts is helpful.
Broadly, as the Supreme Court narrates, “[o]n February 15, 2012, an (sic) First Information Report was lodged at Neendakara Coastal Police Station by one Fredy, owner of the Indian registered fishing boat St. Antony. It was alleged in the FIR that at 4.30 p.m. (IST) on that day while the fishing boat St. Antony was sailing through the Arabian Sea, incriminate (sic) firing was opened by an Italian Ship - M.T. Enrica Lexie (first Appellant). As a result of firing from the first Appellant vessel, two innocent fishermen who were on board … died. On the basis of FIR, Crime No. 2/2012 Under Section 302 of the Indian Penal Code, (Indian Penal Code) was registered
The Italians dispute this version. First, they claim that warning shots were fired in the air and water surrounding the boat. Secondly, they claim that the Enrica Lexie was not, as the Indians claim, 2-3 nautical miles of the Kollam coast, but rather, 33 nautical miles away.
The larger question is: Are the Italian marines guilty as charged? That is a matter for the competent court to determine on an appreciation of the evidence. My inquiry here is to see which court is competent, the Indian or the Italian?
This, in turn, depends on two related questions: First, can Indian courts exercise extra-territorial jurisdiction, and if so, is such jurisdiction precluded by sovereign immunity ratione materiae.
Broadly, international law governing the law of the sea is found the United Nations Convention on the Law of the Sea (UNCLOS) and customary international law – both binding on India and Italy. The UNCLOS establishes 3 zones, each with varying sovereign rights for the coastal state: the territorial sea (extending up to 12 nautical miles), the continental shelf (24 nautical miles) and the exclusive economic zone (200 nautical miles). This regime is reflected internally in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act of 1976 as well. Whilst the territorial sea envisages complete sovereign rights, the continental shelf is a halfway house for sovereign rights and the EEZ allows for limited exploitation of economic resources, scientific research, marine environment and artificial structures.
Assuming the offence was committed 2-3 nautical miles off the Kollam coast, India is justified in international law in exercising criminal jurisdiction within its territory, as any other crime. Assuming the validity of the Italian facts, however, the question concerns the exercise of extra-territorial jurisdiction.
I believe that India may nonetheless exercise criminal jurisdiction in such a case based on the passive personality principle along with the dictum of the Lotus and Arrest Warrant cases decided by the PCIJ and ICJ respectively.
A safe argument by India would rest on the famous dictum by the PCIJ in the Lotus case: that anything not prohibited by international law is permitted by it. Accordingly, it transfers the burden on Italy to find a rule of international prohibiting such exercise of jurisdiction. Though persuasive, the Lotus dictum has been described as “the high water mark of laissez-faire in international relations, and an era that has been significantly overtaken by other tendencies.” (Joint Sep. Op., Judges Higgins, Koojimans and Burgenthal, Arrest Warrant case, para 51). Almost a century of state practice and opposition of unlimited extra-territorial jurisdiction would leave the Indian argument precariously placed. Whilst state practice can be found in support (see Filártiga v. Peña-Irala, and other instances recorded by Justice Breyer in Sosa v. Machain), these instances relate mostly to the lex speacialis of crimes under international law (torture, genocide etc.) that engage community interest. In fact, in the past few decades, disputes concerning exercise of territorial jurisdiction have witnessed objections on the lack of a positive right to exercise jurisdiction. (demonstrated here). Indeed, Judge Simma’s recent attack on the Lotus principle in the Kosovo Advisory Opinion only stands to reaffirm this argument. Interestingly, here, Justice P. Gopinathan’s remark that the marines were engaged in ‘terrorist’ attacks would, arguably, engage universal jurisdiction. With respect, however, I believe that Justice Gopinathan’s remark had no bearing on his finding on jurisdiction, as the charge against the marines is of murder under the IPC, and not the Indian municipal counterpart of the terrorism, howsoever defined in international law.
Rather, I believe India would be well-placed in asserting jurisdiction on the passive personality principle. As Bassiouni recounts, jurisdiction may be asserted on the basis of territoriality and its extensions (if the crime was committed on the territory of the State), the active personality theory (perpetrator is a national of the State), passive personality (victim is a national of the State), the protected interest theory (where essential interests of the state are engaged in the crime) and the universality principle.
The question, then, is: does the passive personality principle find support in the UNCLOS/Geneva Convention (“GC”) or customary rule of international law? My answer is yes. Though ships are subject to the “exclusive jurisdiction” of the flag state (Article 92, UNCLOS; Article 6, GC), Article 96 and Article 11 respectively speak of complete immunity of government non-commercial ships from the jurisdiction of any State other than the flag State, implying the possibility of jurisdiction in commercial ships. More specifically, though, the Article 97(1) of UNCLOS and Article 11(1) of the GC exclude the passive personality principle explicitly, though only in relation to a collision or other navigational incident. However, as per a literal reading under Article 31 of the Vienna Convention, and as the travaux demonstrate, these provisions contemplate guilt for maritime fault, rather than ordinary crimes such as murder. 
It is here that the rules of custom are more developed. Though repudiated in the American Restatement, and the Harvard Draft Convention, Bassiouni reluctantly admits that “the [passive personality] theory … must continue to be considered applicable in any situation in which its use is not prohibited by international law.” Articles 97 and 11 notwithstanding, I am unaware of any independent proscription. To the contrary, the extradition of Adolf Eichmann by Israel in 1973, prosecutions under the Sexual Offences Act in the United Kingdom  post 2003 and Art. 113-7 of the French Code Pénal, amongst other instances of state practice support this principle.
Finally, one must mention the similarity of the present facts and the Lotus case, where Turkey was questioned for prosecuting French seamen for the death certain Turkish seamen in a collision between French and Turkish ships. There, the Court vindicated the Turkish stand. Although the precise basis for establishing jurisdiction is unclear from the judgment, the Court in the Assert Warrant case clarified that a combination of floating territoriality (indicating sovereignty over the victim boat) and passive personality was sufficient to engage jurisdiction – and that is precisely the case here.
Having argued that Indian Courts can exercise jurisdiction under international law (the question of whether the IPC permits such an action in Indian law remaining untouched), the next relevant question is of sovereign immunity, as claimed by the Italian Republic. Sovereign immunity may be as against the individual’s status (ratione personae) or that which attaches to his functions (ratione materiae). The former is limited to high-ranking officials (heads of state and the like) and thus, it is reasonable to exclude the Italian marines from this sphere. (Cassese in his treatise ‘International Criminal Law’, 309-10 deals with this comprehensively). The question of functional immunity presents a greater challenge. In a nutshell, such conduct-based immunity may be claimed by state officials in respect of official acts. So, are the Italian marines ‘state officials’, and was their act of killing an ‘official’ one? I answer both in the positive. First, the term ‘state official’ is not defined under treaty. The International Law Commission, in its work on privileges and immunities, however, adopted the definition of State organ under the ILC Articles on State Responsibility, which is “not limited to the organs of central government, to officials at a high level or to persons with responsibility for the external relations of the State, [but also] organs of government of whatever kind or classification, exercising whatever functions, and at whatever level in the hierarchy”. This is supported by state practice, notably the Pinochet No. 3 case in the UK, the 23rd November 2004 Court of Cassation judgment concerning head of the Malta Ship Registry and the exemption granted by the US District Court of Columbia in Belhas to the head of Israeli Army Intelligence (466 F. Supp. 2d 127). Thus, one must see whether the acts of the marines are attributable to the Italian Government, as the converse would satisfy the test for immunity. Cleary, these acts fall within Article 4 of the Articles on State Responsibility. The next question is whether the acts were ‘official acts’? Here, crucially, whether or not an act is jure imperii does not depend on the international legality or otherwise of the conduct, but on whether the act in question is intrinsically governmental. This in turn depends on an analysis of the nature of the act as well as the context in which it occurred” (Akande & Shah, EJIL, 830). Here, the acts occurred in the context of use of armed force/exercise of police power as against a possible pirate threat. Indeed, the two marines were placed on the ship by the Italian Government, and not through a third-party private operator. In terms of the acts they performed, i.e. protecting Italian property from piracy, the nature of the act in itself tends towards a state function. Whilst facts in this sphere are not fully disclosed (nature of the appointment of the marines, their assignment, scope of authority on board the ship, reporting authority etc.), the available information does tend towards a favourable outcome for the Italians. In fact, in a somewhat ‘discrete’ manner, the Italian Government has also ‘settled’ its case (further evidence of attribution) with the first informant Fredy and 3 others for an undisclosed amount in three Admiralty Suits before the Lok Adalat.
Given the intricate factual and legal matrix, one hopes that these points of international law are fully appreciated by the Kerala High Court (one way or another), and the machinery of international law respected at a time where Indian interests are also constantly engaged in other states. 
 Guest post by Raag Yadava, a student at the National Law School of India University. The views are his own.

Wednesday, June 20, 2012

Supreme Court of Pakistan Cites Two Indian Supreme Court Decisions in the Order Disqualifying Prime Minister Gilani

The Supreme Court of Pakistan has cited Rajendra Singh Rana v. Swami Prasad Maurya (February 2007) and Jagjit Singh v. State of Haryana  (December 2006) in its order that reviewed the decision of the Speaker of the National Assembly (lower house) to not proceed with the disqualification of Prime Minister Gilani. It might be worthwhile to clarify the scope of judicial review permissible under Indian law when it comes to decisions of the Speaker on disqualification of members. 

Readers will remember that Prime Minister Gilani was convicted of contempt of court on 26th April 2012, after which the Speaker of the National Assembly rejected a petition to proceed with the disqualification proceedings. According to Article 63(1)(g) of the Constitution of Pakistan:

63. Disqualifications for membership of Majlis-e-Shoora (Parliament):
A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:-
(g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release;
The question that arose after the Supreme Court's decision on 26th April was whether Prime Minister Gilano was automatically disqualified from being a member of the Majlis-e-Shoora or whether it required the Speaker to refer the disqualification to the Election Commission under Art. 63(2):

(2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.
On receiving a petition seeking a reference to the Election Commission, the Speaker announced her decision that a case was not made out under Art.63(1)(g). It was this decision of the Speaker that was challenged in the Supreme Court of Pakistan and led to the order disqualifying the Prime Minister. The Supreme Court of Pakistan has cited the decisions in Rajendra Singh Rana and Jagjit Singh, along with other domestic decisions, to support its position that the decision of the Speaker can be reviewed.

However, those two Indian Supreme Court decisions adopt that position from the judgment in Kihoto Hollohan v. Zachillhu, delivered by a five-judge Constitution Bench in February 1992. In deciding the constitutionality of the 52nd Constitutional Amendment inserting the X Schedule (anti-defection law), the majority in Kihoto Hollohan held that judicial review of the Speaker's decision would be limited to “jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.” However, on the question of the constitutionality of Paragraph 7 (which sought to exclude judicial review) of the X Schedule, all judges in Kihoto Hollohan held that the ratification process required in Art. 368(2) was not completed and therefore invalid [since Paragraph 7 sought, in effect, to change Art. 136 in Chapter IV, Part V and Arts. 226 and 227 in Chapter V, Part VI, it was held that ratification of half the State legislatures was necessary as required by Art. 368(2)]. While the majority held that Paragraph 7 was severable and thereby saving the rest of the X Schedule, the minority (Justices JS Verma and LM Sharma) was of the view that the whole of X Schedule was invalid because Paragraph 7 could not be severed. However, it was held by the majority that irrespective of the position on Paragraph 7, courts could only exercise a narrow judicial review of the Speaker's decisions on disqualifications under the X Schedule. 

The Indian Supreme Court in Rajendra Singh Rana and Jagjit Singh reiterated the limited nature of judicial review while reviewing decisions of the Speaker and go on to exercise such limited review in those cases. As we wait for the more detailed order from the Supreme Court of Pakistan on the disqualification of Prime Minister Gilani, it will be interesting to see the contours of judicial review that is adopted in reviewing the decision of the Speaker of the National Assembly.

Tuesday, June 19, 2012

Pakistani Supreme Court Rules Gilani No Longer PM

As different networks are reporting the Pakistani Supreme Court has ruled that Prime Minister Gilani is no longer a member of parliament and cannot be PM (the short order can be found here).  For those interested in following the rather long and complex chain of events that led to this outcome a useful timeline can be found on the Dawn website here.  Essentially, the Court had ordered Prime Minister Gilani to reopen the corruption investigation concerning President Zardari relating to a suspect Swiss Bank account.  Gilani had refused.  The Court then held Gilani in contempt.  They have now decided that since he is in contempt he can no longer be a MP or PM.  They have ordered the President to appoint a new PM.  This presents a clear standoff.  The PPP has the seats to appoint another PM.  However, Zardari would be unlikely to appoint someone who would reopen corruption charges against himself.  Yet, if the next PM did not investigate Zardari they could be held in contempt as well.  It's unclear what the options are out of this impasse - new elections, a military coup, Zardari stepping down, open defiance of the court order, etc.

The fear, of course, is that the military is playing Pakistan's civilian institutions and parties off of each other to maintain their control in the background (or potentially soon the foreground).  Most regime changes in Pakistan (and Bangladesh) have taken place on the accusation that those in power were corrupt.  This then allowed another party - sometimes the military and sometimes political parties replacing the military - to step in on the basis that they were less corrupt than the current government.  I actually don't think that Pakistan has ever completed a successful complete term of a democratic government - i.e. an elected government rules for its full term and then another election is held to determine the next government.  It would be a shame if this court order undercuts the ability of the country to have a successful election cycle. 

Monday, June 18, 2012

Opportunity for Lawyers Interested in Financial Policy

The Macro/Finance Group at the National Institute of Public Finance and Policy has work opportunities for lawyers on interesting and important policy work connected with India's economic reform. 
One of the important projects being undertaken, at present, is research support for the Financial Sector Legislative Reforms Commission (FSLRC), which involves rewriting financial sector law for India. Ajay Shah has this post on his blog with more details on these opportunities. 
If this interests you, please contact Anurodh Sharma (anurodh54 at with your resume by 22 June 2012, where you clearly identify where your interests and capabilities lie.

Courting Legal Talent: Announcing Litigation Fellowship

In a rather provocative post around two years ago, I bemoaned the fact that a disproportionately large number of National Law University (NLU) graduates opt for "corporate" careers (defined largely as jobs involving a significant dose of corporate transactional lawyering in some form, either in law firms, companies (in house) or even in LPO's). And that very few think laterally outside of this "corporate" career box, despite the fact that a law degree (and one from an alleged "island of excellence") is pliable in so many different and diverse career directions.

I'm currently co-authoring a paper that touches on this theme; the statistics we've collected so far (over the last 2-3 years) reveal that the number of students opting for the corporate sector are as high as 70-75%. While some of the recruits have a genuine feel for this kind of a job and take to it like a fish takes to water, others succumb to the herd mentality (the prestige that comes with working for a top tier firm, the desire to walk in the footsteps of their esteemed seniors etc). And yet others are financially constrained, necessitating them to take up this kind of a job to pay off hefty bank loans (given that the NLU's now charge a significantly high tuition of Rs 2 lakhs and upwards a year).

In fact, our interviews reveal a whole host of systemic issues at play driving this career choice, not least significant of which is the absolute lack of career counselling at any of the law schools. Further, the recruitment numbers by themselves may be insufficient in coming to conclusions on the latitude of career choices , as there is considerable attrition in and out of the law firms. Many graduates do around 2-4 years in a law firm and then go on to explore a host of other career options such as litigation, academia, research and policy advocacy, government service (after taking the civil services exam), working with international organisations (World Bank, UNICEF etc), NGO's (health/environmental activism etc), legal journalism and the fact, some have been courageous enough to drop their legal sheen and follow their hearts' lateral bidding by whipping up culinary delights in downtown London, kickstarting sports management consultancies or even lighting up the ramp (and now the kitchen) with their elegant frames....

And all of this brings me to what I think to be an excellent initiative designed to solve one of the key systemic issues plaguing us, namely the sheer mismatch between law graduates that desire the thrill of the court and those that end up actually experiencing it (for want of godfathers, money and the like).

The Lawyers’ Welfare Awards
In order to recognize and promote young talent in the field of litigation at the Supreme Court, the Supreme Court Lawyers Welfare Trust (SCLWT) has instituted 2 annuals fellowships, known as the Lawyers Welfare Awards.

The SCLWT invites applications from candidates who satisfy the following requirements:
i) Lawyers enrolled with any State Bar Council in India;
ii) Having completed a minimum of 2 years, and a maximum of 6 years practice in the courts of India;
iii) Such practice will not include non-litigation practice with law firms/individuals, judicial clerkships and teaching assignments;  
The candidates must be prepared to commit themselves to a minimum period of 2 years’ practice at the Supreme Court of India;

The Fellowship

Each selected Fellow is entitled to the following:
i) A monthly stipend of Rs.25,000 over a period of 3 years practice in the Supreme Court;
ii) A one-time subscription to SCCOnline® which will be registered in the name of the candidate.


Interested applicants may e-mail the following documents in Microsoft Word format to the Trust at on or before 15th August 2012
i) A copy of the candidate’s latest CV  
ii) A 1000 word essay on the best case in which the candidate has been involved. Relevant documents relating to the case be annexed.

Process of Selection

A panel of Trustees will shortlist 15 candidates among the Applicants for the final round of interviews.
The final interviews will be held by the Chairperson of the Trust and a few other Trustees in the first week of September 2012. The two selected candidates will be awarded the LWA fellowship, which will be with effect from 1.10.2012 to 30.9.2015.

Kudos to all those involved in setting this up, namely: 
Justice J.S. Verma, Former Chief Justice of India (Chairperson)
Justice Mukul Mudgal, Former Chief Justice, Punjab & Haryana High Court (Trustee)
M.N.Krishnamani, Senior Advocate (Trustee)
V.K.Tankha, Senior Advocate, (Trustee)  
Mamata Kachwaha, Advocate, (Trustee)  
Sadhana Ramachandran, Advocate, (Trustee) 
Gopal Sankaranarayan, Advocate, (Trustee)  
Raghenth Basant , Advocate, (Trustee)

ps: image from here