Saturday, September 29, 2012

State, Private Property and the Supreme Court

In an article published in the recently re launched Frontline Magazine, I describe the history of the constitutionalisation, amendment, and ultimately, abolition of the fundamental right to property in the Indian Constitution. Articles 19(1)(f) and 31 together constituted the fundamental right to property in the Constitution as adopted in 1950. Article 31 codified what is often described in political and legal parlance as the “eminent domain” powers of the state. The Land Acquisition Act, 1894 which is the subject of extensive current debate and slated to be repealed and replaced by the Land Acquisition Rehabilitation and Resettlement Bill is one of over a hundred laws enacted in exercise of the state's power of eminent domain. This power inherent in the exercise of a state’s sovereignty allows the state to compulsorily acquire property belonging to private persons for a public purpose upon payment of just compensation. The twin requirements of public purpose and just compensation are based on the rationale that no individual should have to disproportionately bear the burden of supporting the public good.

In the article, I review the Supreme Court's jurisprudence on the fundamental right to property enshrined in Articles 19(1)(f) and 31 from the period 1950-1978, and on the constitutional right to property enshrined in Article 300 A post the 44th Constitutional Amendment that abolished Articles 19(1)(f) and 31. In light of this historical review of the Court’s jurisprudence, I argue that reinstatement of the fundamental right to property in the Constitution on its own will do little to protect the interests of poor peasants and traditional communities who are currently facing displacement through processes of large scale acquisition of land for private industry and infrastructure projects.

I have previously written about issues relating to land acquisition herehere and hereOther discussions about land acquisition on this blog can be accessed here and here.

Tuesday, September 25, 2012

Vodafone and India: The Student Initiative to Promote Legal Awareness at NLS

The attraction of foreign investment to India has long been debated in economic circles. Questions of economic policy and incentives have dominated the discourse. However, with greater investment has come the need for transparent and equitable regulatory structures. This has led to a number of legal difficulties, primarily concerning bilateral investment treaties (BITs) between India and its trading
partners. Most BITs provide for a mechanism of international investment arbitration, which allow foreign investors to question the acts of the Indian Government in front of independent tribunals. This explosive notion of investment arbitration has recently engaged with Indian interests, with the White Industries award, and arbitration notices served by Sistema and Vodafone. These events remind us of the need to explore international investment law, in order to determine India’s obligations to foreign investors, and to develop a coherent regulatory scheme that balances local and international interests.

The Research Panel on International Investment Law and Policy, under the aegis of the Student Initiative to Promote Legal Awareness, at the National Law School, Bangalore has been working in this area to explore some of these issues.

Their first report concerns Vodafone’s notice of dispute under the India-Netherlands Bilateral Investment Treaty. Vodafone has questioned the validity of the retrospective amendment to the Income Tax Act, 1961, an amendment that has fuelled great political controversy. The lack of clarity on India’s obligations under the Bilateral Investment Treaty has led to great confusion in legal and business circles. This report operates to fill that void by providing a detailed account of possible claims in the arbitration, and their possible treatment by an arbitral tribunal.

The Student Initiative hope that this report contributes to greater discussion within the legal and business community, and helps contextualize this intriguing area of law; one that has come to be of great significance for India. They are also very keen for any comments/criticisms on their work, and may be reached at

A Guest Post by Raag Yadava, who studies law at the National Law School of India University, Bengaluru

Friday, September 14, 2012

The Jurisprudence of Constitutional Structures

Chief Justice of India, Justice S.H.Kapadia gave an interesting lecture on the subject at IIC recently.  The webcast of the lecture is available here.  In his speech, the CJI alluded to the Supreme Court's judgment in In Re Ramlila Maidan Incident, delivered by a Division Bench comprising Justice Dr.B.S.Chauhan and Justice Swatanter Kumar, and asked whether judiciary  could enforce the right to sleep.  The speech has attracted criticism from some who feel that the CJI might have erred on the question of propriety.

Recently, a similar argument was advanced by  Arghya Sengupta, in The Hindu.  He argued that former Judge, Justice Ganguly's post-retirement utterances on the 2G case might suggest that our Court is turning political, and that his interaction with the media on the issue was uncalled for.  I disagree with both Arghya and the critics of the CJI.  Arghya is perhaps wrong in suggesting that our Court was non-political in the past, and that a 'political' Court is an anathema.  He is also unconvincing when he says that Judges are entitled to express their views after considerable passage of time from the delivery of their judgments, but not immediately.  But he is in favour of  release of  official summary of  the court judgments.  Can the Court release an official summary, without consulting the Judge who delivered it? What if the Judge disagrees with it, if prepared without consulting him?

The public display of differences between Justice Chandrachud and Justice Bhagwati has been well documented.  Upendra Baxi's book is a pointer that our Court has been a political institution. Justice Krishna Iyer has once said that it is not a sin that Judges hold political views, and even express them; however, it would have been a sin if they concealed it.

Readers know what happened to Justice Bhakthavatsala recently, when he had to be relieved of family court matters, following his sexist remarks in the Court.  Had his bias been known earlier, he could have been relieved of the family court matter long ago.  Our system does not encourage intense interrogation of Judges by the media on various issues of public importance, without touching the pending matters.  If the Judges volunteer to express their views, conservatives amongst us are outraged.

Judges have to be outspoken  before their appointment as the Judges, on and off the Bench.  Granted their off-the-bench utterances cannot influence the interpretation of their judgments, the public should not be deprived of an opportunity to assess the Judges' judicial philosophies, by this unreasonable self-imposed restraint.  The Judges can always refuse to reveal their minds if their views have any bearing on the pending cases, but why should they restrain themselves from going public on major issues, on the hypothetical prospect that some of them may become subjects of litigation?

GLC Essay Writing Competition

The Magazine Committee of Government Law College, Mumbai, has called for papers for the 12th Vyas – Government Law College National Legal Essay Competition. The winners receive a cash prize and the top two essays are published in mĂ©LAWnge, the annual college magazine. The competition is judged by sitting judges of the Bombay High Court. The 11th edition of this competition was judged by Hon’ble Shri Justice J. P. Devadhar,  Hon’ble Shri Justice V. M. Kanade, Hon’ble Shri Justice A. S. Oka, Hon’ble Shri Justice S. J. Kathawalla, Hon’ble Shri Justice K. K. Tated, Hon’ble Smt Justice Bhatkar amongst several others.

This year's topics are:
(1)  Discuss the role of the Higher Education Bill, 2011 in the growth, development and regulation of education in India.
(2) The Real Estate (Regulation & Development) Bill, 2011- A step toward greater transparency in the Real Estate sector?
(3) The GAAR effect- is India ready for the proposed General Anti-Avoidance Rules?
(4) Do we require faster and more efficient modes of adjudication of inter- state water disputes in India?
(5) Examine the impact of the judgment in Natco v Bayer and its significance for developing countries in the field of compulsory licensing.

The committee also organizes the Belles-Lettres J.E. Dastur Memorial Government Law College Short Fiction Essay Writing Competition, which has been judged by authors like Gregory Roberts and Ruskin Bond in the past.

For more information please visit or write to

Wednesday, September 12, 2012

Equality of Opportunity or Equality of Outcome?

Madhav in his response in The Hindu says -- "Most seriously, though, Surendranath’s analysis ignores the crucial constitutional principle at stake here: equality of opportunity. Reservations seek to remedy unequal starting positions, but once introduced in promotions they do the inverse: they treat equals unequally."

Part of my reply is aimed precisely at that claim. Madhav's premise is that equals are being treated unequally by providing reservations in promotion. Empirical evidence does not back Madhav's claim and his response to the empirical evidence is rather circular. He first argued that quotas in promotions were problematic because it would mean treating equals unequally and when faced with evidence that we are not talking of equals, Madhav's response is that reservations are not a legitimate tool to equalise opportunities beyond initial appointments. I don't think he can have it both ways. He must either argue that reservations is not a legitimate method to remedy lack of equality of opportunity or establish that reservations are not needed in this case because equality of opportunity already exists due to reservations in initial appointments. He does neither.

Madhav has certainly not claimed equivalence between SC/STs and OBCs. But the test he has suggested borrows heavily from the test used to determine the creamy layer within OBCs. He seems to believe that we can apply largely similar tests to both groups when determining members who should not receive the benefits of reservation. The consideration of recognition harms must be particularly intense for SC/STs and I believe that in terms of those harms, the problem of creamy layer within the SC/STs is more imagined than real. That is not to say that the demands for internal quotas within SCs in AP, Karnataka, Punjab etc are not valid. Even there, the basis of those demands is not that certain groups amongst the SCs are no longer backward but that the interests of the "more" backward amongst them needs special protection.

This has been fun and challenging but there is certainly a greater sense of freedom on the blog -- one can, in the very least, use first names!

Debating Promotion Quotas

Anup Surendranth and I have an exchange on the topic of promotion quotas in today's Hindu. My response piece is here, and his reply to that is available here.

I find it sad that Anup writes that writes that "The abysmal number of SC/STs in promotion posts belies Khosla’s foundational argument that equal opportunity at the stage of initial appointments results in equality between the general category and SC/STs" whereas I have specifically appreciated this argument and observed that it "suffers from a fatal logical fallacy: if outcomes indicate, as it is argued they do now, that equality of opportunity is not met by entry-level quotas then the necessary logical response has to be to improve access to opportunities rather than to fix outcomes. The current proposal does the reverse. It performs the easy task of manipulating outcomes rather than the hard work of addressing opportunities." Sadly Anup's reply, while four paragraphs long, makes no mention of this.

Furthermore, I made no claims for the equivalence of SC/STs and OBCs. I have always denied that equivalence - written about it in my book and elsewhere (most recently here) - and said that the Supreme Court committed a gross error by allowing the same treatment for SC/STs and OBCs. Rather the point I made here was that reservations, even for SC/STs, should not be solely on caste. My specific claim was that "If no further inquiry is warranted beyond identifying caste, then how do the socially and economically backward members of lower castes ensure that, absent judicial intervention, their benefits are not taken by lower caste members who are no longer backward?". Anup is entirely silent on this question.

Sunday, September 09, 2012

Concerns with the 117th Constitution Amendment Bill on Reservations in Promotions

In this post, I intend to build on my preliminary response to the 117th Constitution Amendment Bill that appeared as an op-ed in The Hindu. Amongst all the points that P.S Krishnan has made in his article in the Frontline, my only serious disagreement with him is on his position that the State need not empirically demonstrate inadequacy of representation as far as SC/STs are concerned. I also respond to the argument of certain commentators that reservations in promotions is problematic because we have ensured equality of opportunity by providing reservations in initial appointments.

I have no hesitation in stating that I am in favour of reservations in promotions. However, I think it is essential for the State to take certain measures to attach an essential degree of legitimacy to these measures.  I do believe that that the proposed amendment of Article 16 (4A) takes us further away from that aim and the Government must reconsider the text of the amendment, perhaps even its necessity.

I have tried to capture the constitutional evolution of this controversy in my piece in The Hindu and will not be repeating it here. In response to the Supreme Court's decision in Nagaraj and the U.P Power Corporation, the text of the 117th Constitution Amendment Bill proposes three significant changes to Article 16 (4A) as it currently stands:

i) SCs and STs notified under Articles 341 and 342 are explicitly deemed to be backward.

Readers will remember that in Nagaraj the Supreme Court had (erroneously, I believe) held that every time the State wanted to provide reservations in promotions to SC/STs under Article 16 (4A), it would have to demonstrate the backwardness of the beneficiaries. It was a rather strange ruling by the Supreme Court given the Supreme Court's repeated assertion that the concept of 'creamy layer' does not  apply to SC/STs. It would be rather shallow to argue that creamy layer should be inapplicable to SC/STs because the Supreme Court said so. But the problem in Nagaraj was that the Court was ignoring its own earlier rulings on this issue.
The issue of internal differences amongst the SC/STs cannot be addressed in the same manner as it is for the OBCs. The nature of the two groups are vastly different and the 'creamy layer' test is ill-suited for application amongst the SC/STs because it fails to address issues of recognition which is at the heart of the discrimination against SC/STs. The basis on which these two groups, SC/STs and OBCS, were created are normatively different and it would not make any sense to apply the same test of exclusion to both groups. It would not make any sense because what we are trying to remedy with these two groups are very different things. The error in Nagaraj on this point must be formally recognised not only because it has failed to follow precedent, but also because it seeks to bring in an wholly ill-suited test in the current context. 

ii) Removing efficiency as a concern

The proposed amendment states nothing in Article 335 can prevent the State from providing for reservations in promotions. The Supreme Court has relied heavily on Article 335 to incorporate concerns of efficiency into the discourse on reservations and I do not think this was a wise by the Government. It should have instead argued for a more meaningful understanding of efficiency where reservations are seen as furthering efficiency rather than hindering it. The amendment proposed on this point is a tacit acknowledgment by the Government that it concedes the efficiency argument but it is over-ruling that concern in the interest of social justice and inclusion. Arguments challenging the dominant discourse on efficiency must be developed and the Government seems unwilling to embrace that challenge. A thicker understanding of efficiency is what the State must advance in order  to question the conservative foundations of the Court's efficiency discourse. Instead it seems to have chosen the easier but less legitimate way out. If this proposal is indeed what goes through Parliament, it will undoubtedly be challenged before the Supreme Court. The question, then, is whether the Court would be willing to raise the reference to efficiency in Article 335 to being a part of the basic structure.
While the approach of the Supreme Court to efficiency in the context of reservations in public employment has been rather simplistic, the State has chosen to ignore that argument and rely on concerns of social inclusion. While the State might be faulted for not sufficiently engaging in evidence-based policy making as far as issues of adequacy of representation is concerned, the Court's position that efficiency is severely compromised by reservations in promotions has been merely an assertion, not based on strong normative foundations or empirical evidence.

iii) Inadequacy of Representation

The proposed amendment has no reference whatsoever to inadequacy of representation and clearly the attempt is to remove it as a consideration. Mr. P.S. Krishnan also seems to support the position that the State need not empirically demonstrate inadequacy of representation of SC/STs. I disagree with such an approach not because I think that the claims of inadequate representation are false. Though there has been no exhaustive study spanning all employees of the Central and State Governments, there have been indicative studies that point towards gross inadequacy. Despite that, I think the State must present the comprehensive data to the courts and the country to legitimise reservations in promotions. It must put forth a strong positive claim for reservations in promotions by demonstrating the extent of of marginalisation that exists in the higher levels of public employment. 

Reservations in Initial Appointments as Equalising Opportunity

Some commentators on this issue have argued that reservations in initial appointments does the job as far as equalising opportunity in public employment is concerned. I, frankly, do not see the basis of this argument in light of clear empirical evidence to the contrary. The evidence that is available on this issue strongly indicates that the presence of SC/STs in the higher rungs of public employment is abysmal. The Government must settle this issue with a thorough analysis of the composition of central and state level employees. Given that it is difficult to seriously question the lack of presence of SC/STs, the claim that we have ensured equality of opportunity by providing reservations in initial appointments is rather hollow. In the very least, (as Anne Phillips has argued) the equality/inequality of results must be used to test the claims of equality of opportunity. 
There is very little automatic progression through the hierarchy of public employment with different rules for different cadres -- some emphasise progression mainly through seniority while others use merit-cum-seniority as their basis. Even rules that use only seniority, there are subjective elements in play like reports on work and conduct, evaluation of complaints against employees etc. The equalisation argument is essentially based on a false premise.

Note: I would also like to point out the decision of the Supreme Court in Suraj Bhan Meena v. State of Rajasthan (December 2010) -- where a 2-judge bench struck down two notifications of the Rajasthan Government for not having undertaken the exercise mapped out in Nagaraj, especially the failure to demonstrate inadequacy of representation. 

Friday, September 07, 2012

More on NATCO Defamation Suit

On Spicy IP Prashant Reddy has posted here and here a detailed reply to the defamation petition brought by NATCO against Shamnad concerning one of Shamnad's posts on Spicy IP.  The posts are scathing of NATCO's petition and well worth the read. 

One of NATCO's primary complaints seems to be that Shamnad uploaded their petition against Bristel Myers Squibb on Spicy IP (yes, it is not clear how this allegation fits into a defamation suit).  They claim that this is a confidential court document.  Reddy points out that it is very unclear how they can make such a claim.  After all, anyone is allowed to come into a courtroom and hear proceedings in an Indian court.  Why should petitions be privileged?  This certainly is not the general practice in other countries.  In the United States, for example, the American Bar Association puts the briefs of US Supreme Court cases on the web before they are heard.  This is true of many other courts around the world.  And for good reason.  Most citizens cannot attend court proceedings, but they should be able to know what is being argued in court.  I would hope that the Indian courts actually take steps, like others courts have around the world, to upload all court documents - including petitions - wherever possible.  Occasionally a court may feel it has to restrict access to a petition because it involves a minor or trade secrets.  That is fine.  But transparency to the general public should generally be the overriding concern in court proceedings.  

Tuesday, September 04, 2012

Reservation in promotions

In the public discourse, there is much misinformed analysis of the recent controversy over reservation in promotions.  In this recent article, Mr.P.S.Krishnan explains the issues succinctly.  The highlight of his article is that in the Nagaraj case, the Supreme Court's  five Judge Bench upheld the amendments which facilitated reservations in promotions for the SCs and STs, but imposed conditions which are relevant only for the OBCs.  In the recent U.P.Power Corporation case, the reverse happened: the Court insisted on compliance with those wrongly-imposed conditions to quash the relevant provisions of the U.P.Act, enabling reservations in promotions. Some of our contributors, who have followed the issue closely, may like to comment on Mr.Krishnan's article in a separate post.

UPDATE: Constitution 117th Amendment Bill has been introduced in the Rajya Sabha

The NATCO Defamation Petition

As reported in Legally India and Bar and Bench, the pharmaceutical company NATCO has brought a defamation suit against Shamnad Basheer claiming that the blog he runs - Spicy IP - ran a blog post that defamed the company.  Shamnad is a co-blogger on Law and Other Things and a personal friend.  I am out of the country currently and have not had a chance to discuss the case with Shamnad, but I felt so disturbed after reading the articles that I thought some comment was necessary. 

The linked articles describe the allegations.  I do not know any of the details of the case besides those described there and do not wish to speak about the merits of the case (I will leave that to Shamnad and others who seem to be already making a powerful defense and will likely make NATCO regret bringing the case). 

I can say though that one of the major obstacles I see to the development of a stronger legal academy in India is free speech.  I have had friends tell me that they had not written articles for the media that concerned certain companies - despite feeling strongly that they should - because they feared a defamation suit like the one Shamnad now faces.  I remember one rather banal op-ed I wrote a couple years ago was first accepted and then ultimately not published by two prominent Indian newspapers.  In both instances an editor at the paper told me that after accepting the piece they became concerned that the judiciary might hold them in contempt for publishing it.  I ultimately published the op-ed in the US. 

Self-censorship has become a norm both for authors and the media in India to the detriment of being able to have rich and honest legal debates.  In any debate, positions might become distorted or misrepresented by either side.  This is the cost of a free society.  And the cost is well worth it.  It is in the free exchange of ideas that a community becomes stronger and that the truth - whatever it is - comes out.  If the media and bloggers cannot comment on ongoing cases out of fear of a lawsuit (particularly if the case involves a large company who can hire expensive lawyers) then everyone loses.

The legal academy in India is in actuality quite small, despite the country's large size.  As any reader of this blog will know there are few places one can turn for good in-depth analysis about current cases in the courts.  Spicy IP has been one of the leading forums for such analysis.  Today it is under attack.  That should concern everyone who cares about the legal academy and free speech in India.