Sunday, October 28, 2012

NLSIU' Student Bar Association Statement on Recent Campus Developments

The National Law School of India University's Student Bar Association has requested us to post this statement on their behalf.  

This is in relation to the incident of gang-rape perpetrated against a student of National Law School of India University in the Bangalore University campus on the night of October 13, 2012. The Student Bar Association seeks to draw attention to two major issues of serious concern.

First, the law and order situation prevailing in the Jnanabharti campus and surrounding areas is deplorable. The inadequacy of the sanctioned strength of the police force, coupled with the crippling insufficiency of civic amenities, compounds this problem. 

Secondly, a large section of the media has covered the incident in a reckless and irresponsible manner. Some sections have carelessly sensationalized and misreported the incident, and also blamed the victim. This is in flagrant violation of not only the Indian Penal Code, but also the norms of ethical journalistic conduct.

We intend to file a petition before the Karnataka Home Secretary, seeking better equipment and increased manpower in the area to improve the law and order situation. We also intend to file a second petition before the Press Council of India expressing our anguish at the irresponsible conduct of the media. Both of these petitions will be submitted on Wednesday, 31st October.

Please do sign the petitions by following the links below and pass it along to your friends and colleagues as well – it only takes a few seconds, costs nothing, and will help us make a positive impact on policing around Nagarabhavi, and remedy the unpleasant status quo of reportage in the case of sexual offences.

Security petition:
Press Petition:

If you have any suggestions that ought to find their way into either of these petitions, please drop in an email at If it appears as though no curative action is undertaken, we plan to initiate social action litigation in the hope that the judiciary would be able to correct the situation.


Susmit Paul Aranya (President) and Badrinarayanan S. (Vice-President),
Student Bar Association,
National Law School of India University,
Bangalore- 560 242

Wednesday, October 17, 2012

On the Power of the Pakistani Supreme Court

This op-ed "Why is the SC so Powerful?" by Faisal Siddiqi that appeared recently in the Pakistani daily Dawn I think does a good job of laying out several (intuitive and not so intuitive) reasons for why the Pakistani Supreme Court has gained so much power despite seeming to be in the weaker position vis a vie the government and the military.  Indeed, although certainly tailored to the facts of the Pakistani experience, the very short piece lends helpful clues for why judicial power (especially in the developing world) may expand whether in Pakistan, India, or elsewhere. . .

Monday, October 15, 2012

Guest Post: Composition of Information Commissions

Guest Post by Shibani Ghosh, Research Associate, Centre for Policy Research and former Legal Consultant to the CIC

The Supreme Court’s judgment in Namit Sharma v Union of India with respect to the composition of Information Commissions across the country is remarkable, and most unfortunate. In essence it says this: only retired judges can ensure the fair and efficacious administration of justice under the RTI Act. If this assumption were not problematic enough, the Court then effectively appropriates the powers of the legislature and the executive by telling them exactly what they must do. The primary issue before the Court was the constitutionality of the eligibility criteria for Information Commissioners. Currently, Section 12(5) of the RTI Act states that ‘persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance’ are eligible to be Information Commissioners. The Court found this provision to be vague – yet not discriminatory and, importantly, not suffering from any constitutional infirmity. But nevertheless, and strangely, the Court proceeds to rule on how the provision must be read to ensure its constitutionality. While construing the statutory provision, the Court gives several directions in the judgment. Perhaps the two most significant directions are: first, since Information Commissions possess the essential attributes of a court, and their functions are more judicial than administrative in nature, persons with qualification, experience and knowledge in law should be appointed to the Commissions. As judicial members, they would be able to perform the adjudicatory tasks better. Second, only former or current Supreme Court judges and Chief Justices of High Courts should be appointed Chief Information Commissioners.

This construction of Section 12(5) of the RTI Act is nothing more than a re-writing of the statutory provision. Addition and substitution of words in statutes by Courts is contrary to well-accepted principles of statutory interpretation.  This is legally impermissible, more so since the Court finds no constitutional infirmity to begin with. The Court’s detailed directions on the procedure for appointment of judicial and non-judicial members, the criteria for eligibility, and who can be appointed as a Chief Information Commissioner falls squarely within the domain of Parliament. The judgment violates the core constitutional principle of the separation of powers. Statutes establishing tribunals specifically lay down the qualifications of the Chairman and different categories of members. There are no such provisions in the RTI Act which demonstrates that Parliament did not intend to draw such bright lines. Parliament also did not provide for any special eligibility criterion for the Chief Information Commissioner, perhaps since his adjudicatory powers and functions are precisely the same as the other Commissioners. Even the selection procedure is the same. For the Central Information Commissioners, a committee of the Prime Minister, Leader of the Opposition and a Cabinet Minister make recommendations to the President. Consultation with the Chief Justice of India before appointing one class of Commissioners, i.e. the judicial members, is an additional requirement that the Court has incorporated into the existing provision. 

The Court does not stop there, and intrudes even further into the domain of the policy-maker. The direction that the Commission should sit in benches consisting of one judicial and one non-judicial member is a decision about the day-to-day functioning of the Commissions. Such a policy decision ought typically to be taken by the appropriate government, under Sections 27 or 28, after due consideration of various factors including necessity, the pendency of cases and a more general cost-benefit analysis. The directions pertaining to the appointment of judicial members are legally problematic – the Court’s reasoning for mandatorily requiring judicial members is not above reproach. Part of the reasoning appears to flow from earlier decisions of the Court with respect to the constitutional requirements for the proper constitution of Administrative Tribunals. However, an analogy with those cases may be inapposite. Those tribunals were constituted to hear cases which were earlier heard by High Courts. To ensure that the alternative institutional mechanism was no less efficacious, tribunal members were expected to afford the same judicial treatment to the cases as the High Courts would otherwise have. But in the case of Information Commissions, their adjudicatory role was never previously performed by any Court as the statutory rights under the RTI Act are novel. 

The Court’s concerns about the importance of the Information Commission’s functions are not misplaced. The Commissioners are occasionally confronted with complex legal issues, and Commissioners without a legal background may require some assistance initially in appreciating how to conduct a quasi-judicial proceeding, and how to deliver a reasoned decision. But that is hardly an insurmountable problem, nor does it require the drastic overhauling of the RTI Act that the Court seems to deem necessary. The Information Commissioners can be assisted by a well-trained in-house Legal Department. Furthermore, if the Government finds it necessary, it may propose the appointment of one or two Information Commissioners with a legal/judicial background. As long as the principles of natural justice are observed by the Commissioners, and they perform their functions conscientiously keeping in mind the overarching mandate of the Act, the public has little reason to lose faith in the RTI regime. Unfortunately, the Apex Court has decided otherwise.

Wednesday, October 10, 2012

Affirmative Action Returns to the US Supreme Court: Arguments in Fisher v. Texas Today

The US Supreme Cout will hear arguments today (10th October) in  Fisher v. Texas concerning the constitutionality of using race as a factor in university admissions. Nine years after the ruling in Grutter v. Bollinger, the Supreme Court has the opportunity to revisit its ruling that the state has a compelling interest in promoting racial diversity in universities and thereby permitting the use of race as one of the factors in admission policies.

The facts in Fisher are slightly different from those in Grutter and that might well have a crucial role to play in the outcome of the case. While the aim of racial diversity in Grutter was applicable at the level of admissions across the university as a whole, the admission policy in Fisher seeks to achieve racial diversity at the level of specific courses and within each classroom. It will be interesting to see the US Supreme Court's reaction to this 'expansion of Grutter', particularly in the context of the current composition of the US Supreme Court. Justice Elena Kagan has recused herself from the case and only two judges from the majority in Grutter (Justices Breyer and Ginsburg) will be hearing the arguments in Fisher. However, Justices Kennedy, Thomas and Scalia dissented in Grutter and will hear arguments in Fisher as well. So that leaves Justices Roberts, Alito and Sotomayor and the question about how the votes of the eight judges will stack up is a fascinating one.

Readers will remember that Chief Justice Roberts proved the swing vote in upholding the constitutionality of the 'individual mandate' in Obama's health care law in National Federation of Independent Business v. Sebelius. At that point, many commentators noted the fact that the opinion by Chief Justice Roberts took the focus away from Justice Kennedy as the swing vote on the current US Supreme Court. It will be interesting to observe how the issue of the swing vote plays out in the context of affirmative action. The focus is likely to return to Justice Kennedy, especially in the context of his opinion in Parents Involved in Community Schools v. Seattle where he voted to strike down a measure that sought  to achieve racial integration of schools by using race specific criteria to allocate schools. 

Tuesday, October 09, 2012

New Book -- Intellectual Property Rights: Infringement and Remedies

Ananth Padmanabhan, a Madras High Court advocate, has authored a most interesting book about intellectual property remedies.  With over 700 pages of commentary and several annexes, Ananth's book marks an important contribution to Indian intellectual-property scholarship. Beset by court deadlines and client demands, it is always a challenge for a practicing litigator to make any meaningful scholarly contribution. Yet, with single-minded dedication, Ananth has met that challenge by producing a lucidly written and meticulously researched book. 

Unsurprisingly, Intellectual Property Rights: Infringement and Remedies has received rave reviews from several commentators including, most notably, Justice Prabha Sridevan, chairperson of the Intellectual Property Appellate Board, and  Shamnad Basheer, a leading IP expert, professor at NUJS, and a contributor to this blog.

Monday, October 01, 2012

Call for Papers: Financial Laws and Policy

The National Institute of Public Finance and Policy (NIPFP), New Delhi invites papers for a national-level seminar titled "Financial Law & Policy: An Inter-disciplinary Approach" to be held at the National Law University, Delhi (NLU Delhi) on December 1, 2012.  

To engage with a wider audience in a constructive debate over the various issues of contemporary relevance raised in FSLRC's Terms of Reference, the broad issues from which the authors may choose are:
i) Appropriate means of oversight over financial regulators and their autonomy from the government;
ii) Consumer protection as an aspect of financial regulations;
iii) Role of the Central Bank in financial market regulation and supervision
iv) Resolution of financial firms;
v) Principle-based or ruled-based legislation: what will work in India?
vi) Unified regulator or sectoral regulator: which will work in Indi?
vii) Financial Regulation and competition policy
viii) Emergency powers in systemic risk situation
ix) Legal process in financial regulation  

More details on Ajay Shah's blog.