Justice Kurup Responds

Now, Justice Kurup gives his version of who actually is responsible for the Kerala Smoking judgment. This episode strikes me as bizarre and quite contrary to our judiciary's rather collegial behaviour.

Biogas, Animal Husbandry or a Secular Republic

Chief Justice Lahoti approved of the animal husbandry policy of the Gujarat State government and overruled the 1958 Mohd Qureishi ruling on laws prohibiting 'cow slaughter'. The court's extensive discussion of policy issues relating to biogas production and scientific animal husbandry and it's relative neglect of the wider religious and political agendas involved is alarming. Staying away from a legal analysis for the moment, what struck me most about this opinion was the normative 'framing' of the debate. Quentin Skinner's educates us on the ways in which a careful analysis of normative language reveals significant insights into the ideological battlegrounds of our social world. We must take lessons from Skinner and George Lakoff and strive to reformulate the normative debates around 'meat-eating'. If not we may well live to see the SC hold forth on 'chicken slaughter' while conveniently forgetting to rein in 'rice plant hackers'!

Justice Lakshman and the Smoking Judgment

This letter seems like an odd clarification for a Supreme Court judge to offer a newspaper. Justice Lakshmanan, who I generally consider to be a reasonable and very pragmatic judge, appears to have taken a Hindu article on Justice Kurup's achievements quite personally. This letter protests against a Hindu report that attributes the Kerala High Court's smoking ban to another judge, Justice Kurup. Lakshmanan believes that the credit must go to both of them jointly! But, then, perhaps, I, too, would be miffed if credit due to me went to someone else. Is that really what happened?

Marital Rape held a criminal offence in Mexico: Implications for India and some observations on using foreign and international law

Earlier today, The New York Times reported that a court in Mexico has held that marital rape is a crime within Mexico:

The Supreme Court of Mexico ruled Wednesday that rape within marriage is a crime, bringing Mexico's laws into line with much of the world and removing one of the many obstacles women here face in reporting rape. The ruling ended a legal battle waged since 1994, when a majority of the justices agreed that because the purpose of marriage was procreation, forced sexual relations by a spouse was not rape but "an undue exercise of conjugal rights."

The unanimous ruling on Wednesday said the earlier decision had denied women the right to exercise their sexual freedom and was based on an interpretation of rights relating to property, not human beings. The court stated clearly that forced sexual relations within marriage - whether the force is physical or psychological - was a crime.

"What's behind this is a modern conception of the relationship between a man and a woman in marriage," said José de Jesús Gudiño Pelayo, a justice of the Supreme Court. "It's a relationship of equality in which a woman does not lose her sexual freedom when she marries." That the decision came with so little debate suggested that attitudes in this macho country are changing, albeit slowly. But many women's advocates agreed that while the ruling was a landmark step, polls on social attitudes have shown that deep-rooted opinions that women should be subservient still hold sway over much of society.

They warned that entrenched attitudes still made it very difficult for women to report rape.

As the article notes, there are now very few countries in the world which do not criminalise marital rape. Sadly, India is one of these few countries (the article identifies Malaysia as another such nation). Let us examine the position in India. Section 376 of the Indian Penal Code, which defines the offence of rape provides an exception for marital rape, as follows:

Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Activists for women’s rights have long campaigned to have this exception repealed, and the issue was recently referred to the Law Commission of India. (For details about the campaigns to repeal the exception, see this recent article by two law students which provides a useful overview of the issue, and also details some countries and international conventions that have outlawed the practice).

In its 172nd Report (dated March 2000), the Law Commission of India tackled the issue of marital rape while addressing other proposals for reforming the provisions relating to rape. The treatment accorded appears to be extremely superficial as is evident from the Law Commission’s summary dismissal of the proposed reform:

"Representatives of Sakshi [the women’s organisation which litigated the issue of reforming Indian penal laws relating to offences against women] wanted us to recommend the deletion of the exception, with which we are unable to agree. Their reasoning runs thus: where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognised by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault where the wife happens to be above 15/16 years. We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship." (Emphasis added)

It would be interesting to consider how, in a hypothetical challenge to the constitutionality of the marital rape exception to Section 376, the Supreme Court would react to the citation of the Mexican court’s judgement outlawing marital rape.

On the face of it, the Indian Supreme Court, which has a long history of engaging with foreign and international law, should have no trouble in engaging with the Mexican judgment, and following through on its rationale. As a recent study demonstrates, the Supreme Court of India has referred to foreign law in a large number of cases. Therefore, the Court should have no difficulty in accepting the reasoning of the Mexican Supreme Court as the judgment was rendered in the context of a society which has many factors in common with India. In addition, many other nations have taken the decision to criminalise marital rape, and this position is also mandated by applicable international conventions and treaties.

However, the practice of relying upon foreign law is not as uncomplicated as an initial consideration of the issue would suggest. Rajeev Dhavan has noted that the Supreme Court’s reliance on ‘western jurisprudence’ during the first 25 years of its existence led to several problems (Rajeev Dhavan, The Supreme Court of India: NM Tripathi, 1977 at pages 454-55 and 461). According to Dhavan, the early Indian Supreme Court judges “approached very many issues before them from the alien standards of western jurisprudence”. Dhavan avers that this was especially so in cases relating to property and land reforms, which ultimately led to the failure of successive laws and governmental actions to achieve meaningful land reforms. Dhavan further asserts that it was because of such a slavish attitude towards ‘western jurisprudence’ that Indian judges adopted a passive attitude towards preventive detention laws, as well as personal law matters.

There are some problems with this hypothesis. Surely the fact that the results dictated by ‘western jurisprudence’ were aligned with the interests of the classes from which Supreme Court judges were drawn, may have had something to do with the phenomenon? Seen from this perspective, Indian judges were not, as Dhavan suggests, naïve, overworked people acting under the influence of “imitative cosmopolitan habits”, but were actually strategic and instrumental actors working towards ends that benefited them and their class.

The current argument against the application of foreign and international law in India would be along the lines argued by the Law Commission of India: that criminalizing marital rape would amount to “excessive interference with the marital relationship.” This argument smacks of cultural relativism, and amounts to saying that Indian men have a ‘right’ to expect sexual intercourse on demand, regardless of the consent of their spouses. As various studies highlight, the issue is not simply of whether their spouses consent: there are documented cases where men have inflicted grave forms of sexual violence upon their wives and have availed of this provision to get away. Defenders of the exception would have to make a convincing case in light of documented studies which indicate that the extent of marital violence and rape in India are at extremely high levels. Faced with such a situation, the continuing condoning of the practice by the law would be difficult to justify.

I am not advancing a simplistic, universalist position. I believe there are strong reasons, grounded in our historical, constitutional and social context, which call for the criminalisation of marital rape (some of these reasons have been canvassed by Sakshi before the Law Commission). I believe that the growing international consensus in this respect is an additional factor which must be taken into account. Incidentally, this is the same reasoning that was adopted by a majority of the U.S. Supreme Court in striking down the juvenile death penalty in the U.S. (See Roper v. Simmons, decided in March 2005). Speaking for the majority, Justice Kennedy concluded by reasoning through domestic law that the juvenile death penalty was "cruel and unusual punishment" under the Eighth Amendment to the U.S. Constitution. Thereafter, he took note of the "stark reality" that the U.S. was the only country in the world that continued to give official sanction to the juvenile death penalty. (The Nov 2005 issue of the Harvard Law Review has an interesting debate over the use of foreign and international law in this case - see the 'Comment' section, as well as pp 84-90 of Richard Posner's 'Foreword').

Rather than a court judgment on the issue, the best solution remains that the Indian Parliament recognise the need for reform, and enact an amendment to the Indian Penal Code to make marital rape a criminal offence.

(Update, Nov 20, 2005: The latest issue of Frontline carries a column describing details of a new Bill which seeks to make comprehensive changes to the existing laws relating to sexual assault on women and children. It proposes amendments to the Indian Penal Code, theIndian Evidence Act and the Code of Criminal Procedure. There is also a proposal in respect of the marital rape provision. The Bill has apparently been endorsed by the National Commission for Women and has also gained the informal approval of the Union Home Minister. It should be interesting to see how this bill fares both in Parliament and in discussions about its proposals in public fora.)

Rajeev Dhavan on the Constitutional Crisis in Nepal and on Constitutonalism more generally

Today’s Telegraph carries a column by Rajeev Dhavan on the aforementioned topic. I am convinced that Dhavan is one of the most under-appreciated legal scholars in India. Most people recognize him from his regular (though somewhat less so in the recent past) newspaper columns and from his comments to the press about new judgments issued by the Supreme Court. Fewer people have a sense of the contributions he made to the scholarly study of the law in his earlier incarnation as an academic. I for one regret that his move to the Supreme Court bar resulted in depriving Indian legal scholarship of one of its most meticulous and astute scholars (though Dhavan continues to engage in scholarly works, it is clear that his projects in recent years have been of limited magnitude).

In recent weeks, I have had occasion to revisit his academic writings, and they are awe-inspiring. His 1977 work, 'The Supreme Court of India: A Socio-legal Critique of its Juristic Techniques (NM Tripathi: 1977)', remains, two decades later, one of the most definitive studies of the Indian Supreme Court, its judges, and the body of jurisprudence it has created. Based on his PhD dissertation submitted to the University of London, the book is one of the few academic works which tries to contextualize Indian judges, and is a rare example of socio-legal/law and society scholarship in Indian public law. Through the 1970s and the 1980s, Dhavan undertook many studies documenting various aspects of the working of the Indian judiciary, with a particular focus on its arrears and strategies developed to overcome systemic problems. He has also authored comprehensive studies of PIL litigation in India: its origins, foundational debates about the phenomenon between influential lawyers and judges, how it developed over time, etc (Sadly, some of these works are less accessible as they seem to have been published as monographs).

Dhavan has also closely followed the development of Indian legal research and scholarship over time. His masterly introduction to Marc Galanter’s ‘Law and Modern Society in India (OUP: 1989)’ provides a historical survey of works on Indian law dating from the colonial era till the late 1980s, and analyses how legal thought in India changed over different periods of time(The thirty-page endnotes section contains a comprehensive listing of the most significant scholarship on various aspects of Indian law). He comments acidly on the hold of the ‘black letter law’ tradition over Indian legal writing (as displayed in judgments and academic scholarship), and offers succinct, devestating summations of the attitudes of Indian judges, lawyers, politicians and law teachers towards the law. He also analyses the contributions of other Indian academics, as well as of those foreign scholars who have written on Indian law. His journal articles on the Indian Law Institute (with which he has been involved for a very long period of time) and the traffic of ideas from America to India provide important historical information as well as trenchant criticism of aspects which he feels have stunted the development of Indian legal research and scholarship. In this short post, I cannot do justice to the many articles on a variety of subjects that he has published in various journals, including his regular articles in the prestigious Journal of the Indian Law Institute. I hope this brief survey of Dhavan’s monumental contributions to Indian scholarly literature will inspire others to revisit his work.

Reverting to the article in today’s Telegraph, one finds some typical signs of Dhavan’s approach, where he analyses a specific contemporary issue by putting it into historical context and by locating it within a larger sphere of intellectual thought. Here is an extract from the article:

A lot of constitutions fail — either partly or wholly. In fact, in the last 60 years, very few constitutions have remained unscathed. But this does not mean that constitutionalism fails. There are three possible results. The first is that constitutional failure signifies a revolutionary change and creates a void to start afresh. This void theory was supported by Pakistan’s courts in Dosso’s case in 1958. The second approach is to recognize constitutional failure but to limit the executive power to exercise power consistent with necessity. This was the improved view of the Pakistani courts in Asma Jalani (1969) and other cases. There are also intermediate formulations from Ghana (1966) and Nigeria (1969).

But all these approaches create a “usurpers’ jurisprudence”. In the case of Rhodesia, the British Privy Council, pronouncing from a distance, called Ian Smith’s regime unconstitutional in 1969. But it could not enforce its orders anywhere — except in England. We must, therefore, turn to the third path of what I call “constitutional legality”. When a constitution fails, we must turn to the principles underlying the constitution to devise a system of constitutional governance. This is precisely what the amending power of the Nepal constitution underlines in Article 116 by referring to the spirit of the constitution.

In a talk to the Nepalese Bar Association on November 6, 2005, I compared a modern constitution with its multiple protections to the famous military formation of a chakravyuha in the Indian epic the Mahabharata, where one wall rises to the defence when the preceding one falls. So, in the Nepal crisis, the king has been trying to take over, threaten, manipulate, and overawe the other protecting walls of the constitution, including the corruption commission, the constitutional council, the human rights commission, the media, NGOs and so on. But the judiciary must stand up to the situation. To restore the constitution (a) a cabinet must advise the king, (b) all laws must conform to the bill of rights, (c) new laws must not be promulgated except when necessary, (d) elections must be announced (e) ordinances in excess of provisions must be limited or struck down, (f) a political dialogue with all, including the Maoists, must be sustained even in the face of American pressure that the political parties must not ally with Maoists, (g) the judiciary must not be compromised, (h) an independent NHRC must be reconstituted, (i) there can be no arbitrary detention and (j) the media and NGOs must be protected. The king must respect the principles underlying the constitution from which he claims to draw his power. All these form the principles of constitutional legality in the interregnum. They should be recognized and implemented by the supreme court as drawn from the constitution itself (Article 116 read with the preamble).

I hope Dr. Dhavan will continue to engage with contemporary legal issues in public fora, allowing us to have the benefit of his vast learning and astute insights.

Stimulating interview on contemporary Indian environmental challenges with Sunita Narain

A couple of days ago, the BBC's HardTalk featured a stimulating, informative, and combative interview with Sunita Narain , the Director of the Centre for Science and Environment, one of India's leading environmnetal NGOs, which was founded by the late Anil Agarwal.

Sunita Narain is an acclaimed scholar and award-winning activist, and she touched upon a number of issues during the course of the interview: the need for India to balance considerations of rapid economic growth with good environmental policies; the approach India should take towards nuclear energy; the crisis in relation to provision of water and problems with privatising the supply of water, etc.

Despite the interviewer's often hostile interventions, she was impressive for her ability to focus on the overall themes of her argument without being sidelined, and made her case with unusual eloquence and clarity. Academic-activists are beginning to carve out a space for themselves in public spaces in India ( recall the recent post on this blog about Bina Agarwal's contribution to the reform of the Hindu Succession Act).

The website of the programme carries a link to a video of the interview (originally broadcast on Nov 09) which may be available for a few more days - catch it while its still available!

A potential national debate over the separation of powers? A focus on views expressed by President Kalam and Arun Shourie

The Indian Express has, over the last two days, been reporting about a simmering national debate over the issue of separation of powers between the three wings of government. According to the Express, this issue was recently raised by no less a personage than President Kalam at a function to mark the “National Legal Literacy Day” on November 09. This high-powered event was attended by Chief Justice Sabharwal and many prominent judges, legislators and executive officials.

Having gone over the full text of the President’s speech, I am a bit skeptical of whether the President did indeed intend to cause the firestorm that the Express suggests has been set off. The speech, read in its entirety, does not appear to be confrontational. President Kalam does, of course, have a record of being forceful about views that he holds strongly. One recent example has been his activist approach on the issue of granting clemency petitions to death row inmates, details of which can be found in this excellent article by Ritu Sarin of the Indian Express. (This issue revives an old debate in Indian constitutional law about the powers of the President in relation to the pardoning power – the article reveals that Justices Bhagwati and Krishna Iyer hold different views on the subject). However, I am not convinced that President Kalam intended to similarly highlight the issue of separation of powers.

Here are President Kalam’s words that the Express is highlighting in a report carried yesterday:

‘‘All along it has been said that the executive is the third pillar of democracy which is independent of the other two. I, however, have a different view. Please do bear with me if I say that the independence that is expected of this pillar is only in theory and mostly eroded in actual practice,’’ Kalam told an august gathering here to mark National Legal Literacy Day.

“How can we expect an executive to function independently when each of its action is questioned and its functioning is made regularly actionable by, and accountable to the independent powers enjoyed by the legislature and the judiciary. Large number of regulations exist to constantly keep the actions of the executive under the watchful glare of the legislature and the judiciary and that unquestionably takes away the much bandied about independence of the executive.’’

Kalam then reminded all that ‘‘controls and provisions for interpretation and answerability are also applicable to the legislature and judiciary, but in their cases a built-in system within would be available for discharging those functions.’’

The full text of President Kalam’s speech (available at his informative and interesting website) contains this important caveat:

I am not even for a moment questioning the whys or why nots of such controls on the Executive; I am merely stating a fact that I personally have perceived watching our democratic system in actual practice.

I did not have the benefit of attending the actual event and my skepticism may stem from having read yet another bland speech which repeats trite statements about maintaining harmony between the constitutional agencies of government. The Indian Express clearly believes that this will lead to a snowballing crisis. Today’s editorial in the Express features the President’s speech and has this analysis to offer:

Has President Kalam stepped into the void between constitutional theory’s grand narratives and its messy practice? Or was he obliquely hinting at a radically different, valid path? With most other presidents, this benefit of doubt would have been hard to give.

But since he’s a president with a fine track record so far, Kalam’s point on the lack of internal controls in the executive — the contrast is with the legislature and the judiciary — deserves to be seriously noted. He is saying, it seems, that when constituents of the executive step out of bounds, the matter should be dealt with in-house. Translated in terms of recent political events, it may mean that when the Cabinet asked the president to sign the Bihar assembly dissolution order, the executive should have had recourse to correct the wrong. Why let the matter reach the courts? If that was the burden of the president’s song, it deserves the widest possible debate. It should be noted, though, that President Kalam didn’t utilise a quasi-option: sending the dissolution proposal back to the Cabinet once. His predecessor, K.R. Narayanan, did just that when the NDA wanted Bihar for itself. The NDA had to back off. Whether the UPA would have done the same is anyone’s guess. Which interpretation of the president’s speech it will like is easier to predict.

This is of course an interesting interpretation, but I cannot help wondering if this is reading too much into what actually transpired. Perhaps the coming days will prove me wrong.

What seems to have been missed as a result of this focus on President Kalam’s speech is the truly refreshing and stimulating speech delivered by current Rajya Sabha MP Arun Shourie at the same occasion. Fortunately, the full text of that speech is carried in today’s Indian Express, and it provides rich fare for those interested in constitutional law and current national politics. In his typically blunt style, but also displaying his considerable knowledge about the Indian judiciary gained by closely observing the courts for several decades, Shourie offers his insights into many existing problems. While Shourie's political and ideological leanings may cause some of us to disagree vehemently with him on specific issues, his views are often astute and he often clearly identifies problems that seem invisible to many. His recent speech deserves to be read in full and will, I hope, spark a much wider national debate than the one suggested by the Express’ recent news-items.

What I found most interesting in Shourie’s speech was his closing prescription:

How is the Judiciary in turn to be made accountable? By thorough, professional scrutiny of judgments. This has been a real lacuna in India, and the contrast with the way judgments are examined in the US and other countries is as sharp as can be. I do hope, therefore, that, even as judges do their work of guarding the Constitution, as professionals we will strengthen the Judiciary by analysing judgments with the care that they deserve, and the proper working of our Constitution requires.

This is indeed one of the most important tasks for those interested in Indian constitutional law, and I am sure that those who contribe to, and read, this blog will fully endorse this position.

The Faculty Blog of the University of Chicago Law School, and Martha Nussbaum’s posts on Democracy in India

To those who are sceptical of the value of lawblogs, the decision of the University of Chicago Law School to host a faculty blog where several prominent members of its reputed faculty would contribute regularly, must have come as a surprise. This is an important development in legal scholarship, coming soon after the University of Chicago Law School’s faculty was ranked first in the area of ‘faculty quality based on scholarly impact (per capita citations to faculty scholarship)’ in the influential rankings compiled by Professor Brian Leiter for the year 2005.

Starting from Sep 2005, the Faculty Blog (as it is titled) has quickly developed a vast audience within the blogosphere, and is referenced by a number of leading law blogs. Since mid-October, Martha Nussbaum has been penning a series of pieces on Democracy in India, which are part of a forthcoming book. While earlier pieces focused on the Gujarat riots and their implications for Indian democracy and world affairs in general, they appear to be directed at an American audience, and have few new insights to offer to Indians who are familiar with the facts and the views expressed (speaking for myself, I found them a bit trite). Nussbaum posted the fifth instalment in the series posted earlier today. In it, she pursues a fascinating line of enquiry and reasoning:

One way of understanding the choices before India today is to think of the nation’s choice of national anthems. At the time of Independence, and ever since, two different poems have been competing for this coveted spot. The losing candidate in 1947, now vociferously championed, once again, by the Hindu Right, is a song known as “Bande Mataram,” “Hail Motherland,” written by the Bengali novelist Bankimchandra Chatterjee. … … …

The current national anthem of India, adopted on January 24, 1950, is a song whose words and music were both written by Tagore. As one of the earliest critics of Bande Mataram, he deliberately constructed an alternative vision of national unity and national devotion (although of course, writing long before Independence, he did not write the song as the future national anthem). … … …

The song, then, is addressed to the divine, understood as a universal human spirit of morality and justice. This spirit rules “all people” everywhere in the world, and it is also “dispenser of India’s destiny.” Tagore makes it plain that this spirit animates the emotions of people in all of India’s diverse ethnic and geographical regions: all are equally animated by the love of rightness and justice, and parts of the nation are equally under this spirit’s care. (Some of these regions, at the time, were predominantly Muslim and some Hindu, some inhabited by Tamil/Dravidian people and some by speakers of languages descended from Sanskrit. Tagore pointedly includes them all.) There is no mention of military force or violence; instead, the “dispenser of India’s destiny” is the moral law, and it is the victory of justice for which Indians ask when they sing it.

It is rare that a nation has a national anthem that expresses the idea that humanity is above nationality, and righteousness above aggression. But the idea of a moral law that unswervingly guides our destiny is deeply rooted in Indian traditions, more deeply perhaps than it is in Euro-American traditions, where such ideas are associated with a critical and counter-traditional Enlightenment intelligentsia rather than with traditional religion. Indians connect these ideas to many sources, but prominently to the concept of dharma, or right, in ancient Hindu texts. Tagore’s take on the traditional concept is humanist and critical, but it also resonates with much that already animates India’s traditional sense of its unity; no doubt this is why has been able to win wide acceptance.

“Jana Gana Mana” is no pallid Kantian fantasy of what a rational national anthem should be. It is a beautiful song, beautiful in both its poetry and its music, and it is sung with great passion by Indians all over the nation (and abroad). They resonate not only to its invocation of the natural beauty of the nation and its rich regional and ethnic diversity, but also to the idea that there is a spirit of right that rises above wrong and injustice, a very important thought for a formerly colonized people. The hero in Tagore’s novel did not know how to use poetry to express his humanist vision; that was his great weakness. But Tagore himself, like Walt Whitman, did know how to create a public poetry of inclusiveness and moral commitment.

It is not surprising, however, that a certain type of nationalist would not be satisfied. Supporters of a more aggressive nationalism keep returning to Chatterjee for a more tough-mindedly “masculine” conception of the nation and its pride. We might say that the struggle to be depicted in these posts and my book is just this struggle: between two visions of patriotism, two visions of the nation, two visions of masculinity.”

The piece contains English translations of both “Vande Mataram” and “Jana Gana Mana”, which, I suspect, will be useful for non-Bengali Indians who know the words of both songs but remain ignorant about the specific meaning of individual words. (Many Indians of my generation will perhaps identify "Vande Mataram" with AR Rahman's stirring version, which just goes to show the importance of popular culture in reifying ideas of national identity - but that is the subject of a future post).

Nussbaum has had a long acquaintance with India and has also published pieces on a variety of issues in India, including some on the women’s rights movement, and the related role of the judiciary in India. Her Wikipedia entry (while a little too gossipy for my taste) succinctly describes her long collaboration with Amartya Sen on the “capabilities approach”.

For those intrigued by her ideas, here is a link to a longer piece where she elaborates on the dichotomies of patriotism and cosmopolitanism.

Progressive changes in Hindu family law: Towards a better future for women

A recent editorial in the Economic and Political Weekly describes the changes brought about by the Hindu Succession Amendment Act, 2005 calling it “groundbreaking legislation.” According to the EPW,

"Fifty years ago the Hindu Succession Act (HSA) 1956 was passed amidst opposition from India’s leading national figures, including our first president. Although significant for its time, it contained major gender inequalities. The 2005 act removes most of these inequalities. Some anomalies remain, but the achievements are substantial. … … …

These amendments can empower women both economically and socially, and have far-reaching benefits for the family and society. Independent access to agricultural land can reduce a woman and her family’s risk of poverty, improve her livelihood options, and enhance prospects of child survival, education and health. Women owning land or a house also face less risk of spousal violence. And land in women’s names can increase productivity by improving credit and input access for numerous de facto female household heads.

Making all daughters coparceners likewise has far-reaching implications. It gives women birthrights in joint family property that cannot be willed away. Rights in coparcenary property and the dwelling house will also provide social protection to women facing spousal violence or marital breakdown, by giving them a potential shelter. Millions of women – as widows and daughters – and their families thus stand to gain by these amendments.

On the negative side, the amendments will reduce the shares of the deceased’s widow and mother. It would have been better to abolish the Mitakshara coparcenary system altogether, and partially restrict the right to will, as suggested by some. Nevertheless the amendments are laudable."

The Editorial goes on to describe the process by which these reforms were brought about and concludes:

"Clearly even a small number of individuals and groups with commitment, supported by grassroot organisations from across the country, can be effective in improving the laws of the land, when the government has the political will to catalyse change.

This commitment and will is now needed for effective implementation. Parliamentarians and community leaders, grassroot groups and the media, all have a role to play in spreading legal awareness about the amendments and social awareness about the societal gains from women having equal property rights, in providing legal aid to women needing it, in gender-sensitising law enforcers and village officials (who record rural property shares), and so on. Such steps are critical for ensuring that the promise inherent in this landmark legislation does not remain only on paper."

As the EPW editorial notes, “this year has seen the passage of more progressive legislation than possibly seen in the entire previous decade.” The recent enactment of the Right to Information Act comes to mind. In many areas, our laws are in sore need of reform to bring them in tune with current social realities and needs. However, the Indian legal system is known for having some excellent laws on paper which have been under (or un) enforced. As the EPW editorial reminds us, “effective implementation” is indeed going to be the priority in the coming years.

The Indian Express carried an interview with the academic-activist Bina Agarwal who played an instrumental role in getting the reforms enacted into law, on the process by which this was achieved. In it, she provides a historical context to the struggle for their rights by Indian women in relation to the Hindu Succession Act. A longer piece by Bina Agarwal explaining the ramifications of the new situation was featured in the Hindu Magazine.

Click here for some extracts from the amending bill, including the full text of its Statement of Objects and Reasons. (There is a useful piece in the Economic Times which explains the legal terms, for those unfamiliar with terms like 'coparcenary').

NEW AGE “INDIAN(A) JONES"?: REGULATING BIOPROSPECTING AND CREATING WEALTH FOR INDIA

It is interesting to see how traditional knowledge and bio-resources are becoming increasingly prominent in international intellectual property and trade negotiations.

A recent note in MIP (Managing Intellectual Property) states:

“The Indian ambassador to the WTO, Ujal Singh Bhatia, has proposed to the WTO Council that the TRIPs Agreement be amended to force patent applicants to disclose the source of biological material used in their inventions. The Indian delegation wants any declaration issued at the WTO ministerial meeting in Hong Kong in December to include a commitment to negotiate amendments to the TRIPs Agreement forcing member states to change their domestic laws to require the disclosure.”

(An ICTSD newsletter discusses this in greater detail).

The Indian Patent Act was amended in 2002 to include such a provision. The noteworthy provisions are:

”(i) section 10 (4) (d) (ii) (D) which mandates that every patent specification which mentions 'biological material' shall "disclose the source and origin of the biological material in the specification" AND

(ii) section 25 (j) which states that a patent can be opposed on the ground " that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention"

As evident, this provision is aimed (in a very broad way) at regulating what is commonly termed “bio-prospecting. As a wired magazine article sensationally puts it:

“Bioprospectors head into the deepest parts of the jungle, scale the highest mountains and, generally, brave extreme conditions in their quest for "green gold" -- plants and animals with commercially valuable properties. With the Amazon alone harboring medicinal plants capable of treating anything from parasite infections to malaria, toothaches to diabetes, the potential rewards are astronomical. But who will reap them?”

India witnessed a rather interesting case of this nature in the form of a tribal group (the “Kanis”) and an energy laden berry “Arogyapacha”(translates from Malayalam [the language of the state of Kerala and perhaps the longest palindrome] to “evergreen health”). It was found that the Kanis could walk for miles without the slightest hint of fatigue, thanks to these anti-fatigue berries that they kept popping in (god knows I could do with some of this!!) Anil K Gupta, the grass-roots innovation guru and founder of Honeybee network notes that:

The knowledge was divulged by three Kani tribal members to Indian scientists Tropical Botanic Gardens and Research Institute (TBGRI), an autonomous body under the Kerala Government, who isolated 12 active compounds from arogyapaacha, developed the drug “Jevaani”, and filed two patent applications on the drug (and another patent based on the same plant but for different use). The technology was then licensed to the Arya Vaidya Pharmacy, Ltd., an Indian pharmaceutical manufacturer pursuing the commercialization of Ayurvedic herbal formulations. A Trust Fund was established to share the benefits arising from the commercialization of the TK-based drug “Jevaani”.The operations of the Fund with the involvement of all relevant stakeholders, as well as the sustainable harvesting of the arogyapaacha plant, have posed certain problems which offer lessons on the role of intellectual property rights in benefit-sharing over medicinal plant genetic resources and traditional medicinal knowledge.

(Incidentally, I hail from Kerala, often touted as God’s own country. And would you believe it, Palode, where the TBGRI is based, is about an hour’s drive away from Kulathupuzha, a small town where I was born—perhaps I ought to get down there on a fact finding mission. A senior of mine from the National law school (Bangalore, India), RV Anuraddha, did such fact finding and came up with some brilliant write ups in this regard).

Last year, there were some reports of a patent/trademark conflict with a US company that was selling "Jeevani". Again, with the media constantly conflating issues of patent/trademark and copyright infringement, it is difficult to get a sense of the precise legal issues involved. According to a report in The Telegraph, a Calcutta based Indian newspaper, this appears to be more of a trademark issue.

"A US firm has raised a storm by acquiring a trademark on a patented herbal product of the indigenous Kani tribe of Kerala.

Jeevani, known as the ginseng of the Kani people, is a herbal formulation famed for its anti-fatigue, immunity-enhancing and liver-protecting qualities. Widely used as a wonder drug by the tribe, it strengthens the body’s natural defences by activating the cellular immune system and enhances a host of other innate faculties.

Reacting to the row, Jacob Pallathra, the president of NutriScience Innovations, Connecticut, claimed in an e-mail message that the product being marketed was purchased from Kerala and made in association with TBGRI. “A layperson tends to believe that the trademark registration means it is a patent. We do not have any patents on Jeevani and we respect the patent in Kerala and we are selling the same Jeevani made in Kerala,” he said. Pallathra stated that his company has been importing Jeevani through a proper and legal channel and promoting it overseas to benefit both the Kani tribe and the institute.

While criticising the step taken by NutriScience, Chronicle Pharmabiz, a journal, raised questions about the role of the institute and the Coimbatore pharmacy.“What is surprising here is that NutriScience has been sourcing Jeevani in bulk quantities from Arya Vaidya Pharmacy until two years ago. How is that both Arya Vaidya Pharmacy and TBGRI did not suspect any foul play in such imports is something not very clear…. (Another) lapse on the part of TBGRI is that it failed to register Jeevani as a trademark in the US and European markets” .

I'm not entirely sure that is a pure trademark issue. Assuming a patent over the product was procured by TBGRI in both India and the US, they should be able to prevent any imports of the product into US markets (i.e. a patent grants the exclusive right to import as well). Anyway, as most responsible lawyers do, let me clearly state that the "above is not intended to be legal advise of any sort", more so--since we don't have all the facts.

I cite the Jeevani example to show why a country like India is keen on having a greater say in the commercialisation of bio-resources. Little wonder then that India is also keen on mandating a similar patent provision (mandating disclosure of the source of biological material in a patent application) at the international level--merely having such a provision in the Indian patent act will not in any way affect the incentives of someone filing a similar application in the US, EU or Japan.

Understandably, there is a distinct divide here between the bio-resource rich countries (that happen to also be developing countries with relatively weaker patent systems such as India, Brazil, China, Thailand, Peru etc) and the developed nations such as the US, EU and Japan (with relatively stronger patent systems but less bio-diversity), who are keen on having a lesser number of bottlenecks in the patent system. These developed countries fear that provisions such as this in a patent regime would unduly delay and complicate the patent process, which already suffers from significant backlogs.I wonder whether the above situation (that the bio-resource rich countries happen to be developing countries with weaker patent systems?) is sheer co-incidence or reflects broader development imperatives?. There are some who argue that natural resources really don’t matter to economic development, as much as well-developed “institutions” that guarantee property rights. However, there are others who caution that this focus on “institutions” is a dangerously misleading one.

The question that I want to therefore pose in this context is: Assuming that it is in India’s interest to generate more market place innovations and wealth from bio-resources, what should its focus be re: property structures and institutional mechanisms? The question of conservation of bio-resources is another major issue here and some would argue that forms of proprietary control impact incentives here as well—but let’s leave that discussion for another day.

Padmashree Gehl Sampath, another senior of mine from the National Law School and now a researcher at the Institute for New Technologies (UNU-INTECH, Netherlands) delves into this very issue in her wonderful book titled “Regulating Bioprospecting: Institutions for Drug Research, Access and Benefit-Sharing (UNU Press, 2005)”.Padma examines optimal property rights structures and institutional mechanisms for regulating bioprospecting for drug research. Focusing on the economics of the contracting process, she argues that potential investors have been put off by the poor regulatory environment in source countries, and the limitations of international processes governing this process (the most important being the Convention on Biodiversity (CBD) and TRIPS).

A UN press release notes:

“Ms. Gehl Sampath’s analysis reveals the market imperfections that shape current international trade in valuable genetic resources, and points out the dangers of a simplistic view of bioprospecting as a “one shot” contract between the pharmaceutical firm, the national access authority, and the local and indigenous communities. In reality, the drug research and development process within which both traditional medicinal knowledge and tangible genetic resources play a role, is defined by a unique set of economic properties and limitations. The high levels of risk and uncertainty, and huge up-front investments, impose transaction costs on the parties at each stage of the contracting process, which can serve to stall or hinder the bargaining procedures.”

The Wired ran an interview with her:

"One of the major reasons why companies have been discouraged from investing in the past is the legal uncertainty caused by lack of regulatory frameworks on bioprospecting at the national levels, or frameworks that recognize rights on traditional medicinal knowledge and (give) access in an extremely bureaucratic way," said Gehl Sampath.Of course, it's important to sort out the bioprospecting frameworks for the sake of fairness, but also because it gives a hard financial incentive to conserve the environment. With some governments, that's the only argument that holds water."Bioprospecting can offer market incentives for the protection of biodiversity if laws are well-designed," said Gehl Sampath. "A caveat, though, is that this may be true only for those ecosystems which host species that have non-marginal inputs to the drug R&D process."

Indeed, one can easily see why transaction costs (a favourite term of law and economic scholars) would play a significant role here. Thus for example, who is the owner of knowledge derived from or based on a bio-resource? Unless a Merck or a Pfizer or even a Ranbaxy knows who to negotiate with, they will desist from any innovative activity involving the appropriation of such knowledge (unless they find a way of exploit it without taking anyone’s permission—which as some say, is often the case). If this is community based knowledge, then how exactly is the “community” that would share in any proceeds that come out of the commercialisation of such knowledge? Will Pushpangadan (fondly known as “Push” to his friends in the US) a Kani who immigrated to the United States in the 1990’s, have a stake in the proceeds?

My colleague, Dev Gangjee (who will soon be posting on SPICY IP), spoke to me sometime back of an early Geographical Indications (GI) case, where the government delimitation of the “Champagne” boundaries caused riots, since a number of wine growers were left out and couldn’t call their wine “Champagne” anymore. (GI’s are another form of IP of high relevance to India. Dev is now doing his Phd thesis on this and will soon post on these and other trademark aspects here).In short, while

Padma’s broader argument that a more definite institutional structure needs to be put in place to ease transactions and inspire investor confidence, how do we go about designing such a system in India? Will we trust the government to take charge and administer a collective rights based system in an optimal way¾and/or will be happy with bio-resource based knowledge being nationalized (so that a commercial entity has only to negotiate with the government now and any administrative costs of disbursing royalties etc are borne by the government)?

In a brilliant award winning essay, my colleague Sudhir Krishnaswamy queries:

"Is the threat of biopiracy merely one that comes from without? Would we be content if it were established that Indian pharmaceutical companies exploited this knowledge? The nationalist lens which frames this view prompts a regulatory response which transfers control over traditional knowledge resources to a select cabal of state bureaucrats in a move which would rival the 19th – 20th century transfers of natural resources like forests to the hands of the colonial forest department. In ‘This Fissured Land’ Madhav Gadgil and Ramachandra Guha, explore the scale and perversion of the expropriation whereby state bureaucrats developed into a breed of rent seekers over forest lands to the exclusion of tribal communities. There is little evidence to suggest that the state bureaucracies constituted by the recently enacted Biological Diversity Act 2002 will conduct themselves in any different fashion. Our recent history teaches us that ‘nationalizing’ resources in the name of ‘our’ common heritage has a troubled legacy, and notwithstanding the emotive appeal of the biopiracy debate we must resist such an option with traditional knowledge."

Contrasting perspectives on dealing with terrorism

In the aftermath of the latest attacks in Delhi, terrorism, and approaches to dealing with it, are understandably uppermost on the minds of most Indians. In the recent past, two contrasting perspectives have been offered, and in this post, I seek to describe them.

Speaking to the press on his last day in office, Chief Justice Lahoti clearly had the Delhi blasts in mind when he made the following comments, reported in the Indian Express:

“We do not have the political will to fight terrorism”, he said underlining the need for new legislation. “When new challenges come, new solutions also have to found. Terrorism is a gift of the last century...Terrorist acts require an altogether new type of investigation. It (terrorism) requires new laws and new methodologies. A study should be conducted to identify the causes and suggest remedies. But there is no serious study in our country,” he said."

Justice Lahoti also reiterated his view that the death penalty should be retained:

“Referring to the lives lost in the Delhi blasts, Justice Lahoti said: “What other penalty would suit perpetrators of such brutal acts? What other penalty is called for if the crime is proved beyond any reasonable doubt? What happens is that, we forget the past. We see only the face of the accused, who is before us and his family. We forget the victims and their families.””

Today’s Indian Express carries a column by Pratap Bhanu Mehta who adopts a different stance. Though he never refers to Justice Lahoti’s expressed views, his piece appears to be a pointed response to that line of reasoning:

“We are, rightfully, angry, but against whom should that anger be appropriately directed? The perpetrators and their collaborators is the obvious answer. But here terrorism’s perverted logic comes into play. Is capitulating to the logic of violence a means to defeating it or a way of giving it succour and sustenance? What models should we look at? Hard states like Israel? It is doubtful that Israel has made itself more immune to terrorist attacks by its tactics. The US? If it is a model, it has worked only by radically increasing the risk of violence many countries around the world have faced. There is no certainty to the calculus of terrorism. As always, India will have to define its own path.

It is a great tribute to the people of India and their maturity that they understand the complexity of terrorism. They have understood that the first step in dealing with terrorism is not succumbing to ideological uses of terrorism. This is a fragile achievement that politicians are too ready to fritter away. But it is an important one none the less. This resilience has helped avoid the cycle of violence and counter-violence that terrorists want. India has not abandoned reason or a sense of proportion. But we also cannot demand the impossible from our patience and reason. How do we act?

Dealing with terrorism requires an extraordinary application of intelligence, in every sense of the term. We should not get side-tracked by peripheral debates like that over POTA that are more about appeasing our own sense that we are tough than they are about enhancing law enforcement capabilities. Effective law enforcement requires a far more sustained and different kind of attention than enacting laws. Despite severe setbacks, we should not lose focus on long term objectives for the sub-continent. Again, it is doubtful whether closing borders really brings you more security. In the long run terrorism can be defeated only if there is a shared public sphere across national boundaries, a set of common values that stands against violence of this kind. Creating this is an arduous process and we may not succeed. But we are sure to fail in our fight against terrorism if we do not even try. And finally, we have to recognise that not all our woes may be cross-border in character.”

My own preference (if it is not clear already) is for the latter approach. However, this is one of the most contested issues of our times, and there are bound to be differences of opinion. That should not, however, stop us from constructively engaging in this important debate with a view to obtaining a deeper understanding of one of the defining issues of our generation.

Socialism and Our Constitution

In the summer of 1991, Prime Minister Narasimha Rao and his Finance Minister, Manmohan Singh, embarked upon their bold agenda to reform India's economy and regulatory framework. The set in motion a series of changes to transform India’s tightly regulated and state-controlled economy into a more market-friendly one. In the early years, their “new economic policies” were the subject of considerable criticism -- the political and intellectual skeptics were many and the condemnation harsh. Yet, the Narasimha Rao government persevered with the reforms even if slowly and hesitantingly until it was defeated in the 1996 General Elections.

Fourteen years later, the reforms are no longer “new.” Many former critics have either quietly endorsed or grudgingly acknowledged the inevitability of market-friendly economic policies and deregulation. This acceptance has been even especially notable in the political arena (although there have been some notable consistent critics of liberalization and deregulation). Five governments have held office since the Narasimha Rao government was defeated in the 1996 General Election. They range from the Deve Gowda-led United Front regime to the Manmohan Singh's present UPA administration. Each of these post-1996 administrations were coalition governments. They were each formed through complex post-electoral permutations that brought together political, electoral, and ideological friends and foes. As a consequence, virtually every faction of Indian politics from the ideological left to the extreme right has been part of the government at one point or another.

Three of these coalitions (Deve Gowda, Gujral, and Manmohan ministries) included either communist ministers or relied on left for parliamentary support. The two other Vajpayee-led governments included representatives from nationalist parties who were opposed to foreign investment. Yet, none of these post-1996 administrations attempted to roll-back or dramatically reverse the course of India’s economic reforms. For this reason, one could argue that there is a broad express or implicit political acceptable that Indian economic reforms are necessary although there are sharp disagreement about how they should be implemented.

As we enter the “crystal” anniversary of the reforms, there have been several thoughtful essays assessing India's achievements and pitfalls in transforming its economy. These essays have largely focused on the political and economic aspects of the reforms. But little attention has been paid to the legal aspects, especially, the judiciary’s attitude toward the reforms. This situation is puzzling since, as with most things in Indian public life, our Courts exert tremendous influence on policy and legislation – or at least they (and we, lawyers) blithely think they do. Yet, it is hard to dispute the fact that there is virtually no subject on which our judges have not commented -- either in a formal judgment or opinion or in “off-the-cuff” observations made in open court or at public forums. Therefore, understanding our judiciary’s attitude (which is not necessarily consistent) and economic philosophy is an important task that can no longer be neglected.

Indian courts and judges are not strangers to complex economic issues or controversies. They have been handling cases with economic implications since the Constitution was inaugurated. Through 1950s and 1960s, and until the Bank Nationalization Case in 1970, the Supreme Court repeatedly examined the validity of economic law and regulatory decisions, especially those involving acquisition of property or expropriation of a business. The Court struck down many of these measures, including constitutional amendments, for violating the right to property. This led to the famous Kesavananda Bharati Case, where the Court outlined the “basic-structure” limitations on Parliament’s amending powers.

In the 1970s and 80s, however, the Court’s attitude toward economic matters, especially with respect to enterprise and property dramatically changed. It endorsed a large number of the economic laws and nationalization decisions. The Court’s composition had radically altered from the 1960s. A new generation of “committed” judges, who were a lot more ideologically aligned with the government’s views, were appointed to the bench. They readily upheld economic laws and measures in flowery language that extolled our Constitution’s socialist basis and extolled the virtues of a state-controlled economy. The Indian Supreme Court of the late 1970s and 1980s, notably Justices Krishna Iyer, Chinnappa Reddy, and D.A. Desai, judicially reversed the Constitution’s express injuction against enforcing the Directive Principles, and repeatedly invoked those principles in its new socialist jurisprudence. They were aided by the Forty-Second Amendment to the Constitution, which inserted the word “socialist” in the Preamble. As Justice A.M. Bhattacharjee says, this led the Court to hold in Excel Wear v. Union of India, AIR 1979 SC 25, that courts could not “lean more and more in favour of nationalisation and state-ownership of industries.”

This understanding of our Constitution’s economic philosophy continued well into the early 1990s. It is best exemplified by the 1993 Unnikrishnan Case in which the Supreme Court virtually closed the door to new private engineering and technical colleges to avoid commercialization of higher-education. Then, in 1997, almost six years after deregulation began, the Court declared “socialism” to be a basic feature of the Constitution. In Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297, the Supreme Court declared:

It is necessary to consider at this juncture the meaning of the "socialism" envisaged in the Preamble of the Constitution. Establishment of the egalitarian social order through rule of law is the basic structure of the Constitution. The Fundamental Rights and the Directive Principles are the means, as two wheels of the chariot, to achieve the above object of democratic socialism. The word "socialist" used in the Preamble must be read from the goals Articles 14, 15, 16, 17, 21, 23, 38, 39, 46 and all other cognate Articles seek to establish, i.e., to reduce inequalities in income and status and to provide equality of opportunity and facilities.

Despite this rhetoric, the Court hesitated to invoke this socialist reasoning in some early cases relating to the new market-friendly policies. This reluctance is especially striking in Delhi Science Forum v. Union of India, AIR 1996 S.C. 11, where petitioners challenged the New Telecom Policy. They alleged that the new policy compromised national security and India’s economic interests. The Court rejected the petition ruling that the In its judgment, the Court pointed out that the telecom policy had been placed before parliament and it could be inferred that parliament had approved the policy. It held that the judiciary was generally reluctant to interfere in economic policies.

This position was emphasized in subsequent decisions, notably, BALCO v. Union of India, AIR 2002 SC 350. There, Chief Justice Kirpal, reached back to the Bank Nationalization Case to declare that the Court could not consider the relative merits of different political theories or economic policies. Applying this reasoning, Kirpal held that the Supreme Court could not examine whether the government’s disinvestment policy is desirable or not. Citing several previous decisions, Kirpal observed that the Court could not examine whether a particular policy was wise because a better policy could have been evolved. Disinvestment is a policy decision involving complex economic factors. Courts have consistently refrained, Kirpal wrote, from interfering with economic decisions as they cannot be judicially evaluated. BALCO has since been cited in a few other Supreme Court and High Court decisions.

Despite the implicit endorsement of the new economic policy in BALCO, our present Supreme Court has yet to decide what to do with its several earlier decisions extolling the value of socialism and declaring that it is firmly rooted in our constitutional jurisprudence. As Justice Bhattacharjee notes:

In several decisions, the Supreme Court has taken note of this "recent liberalised free economy" and that as a result "private and multinational entrepreneurship has gained ascendancy and become entrenched into wider commercial production and services, domestic consumption of goods and large-scale industrial production" and that even "public corporations are thrown open to the private national and multinational investments".

But the Supreme Court has not adverted to or considered the legality and constitutionality of this policy in the context of socialism being a basic feature of the Constitution.

How, then, should we view the earlier decisions on socialism? Are they inoperative precedents that the Court has either impliedly overruled or won’t refer to anymore? Does the principle of judicial non-interference in economic policy trump the Court’s earlier findings that socialism is a basic feature? Sooner or later, the Court will have to confront this inconsistency in its jurisprudence.

Parting salvo: An endorsement of the US’s “War on Terror” policies by the outgoing CJI?

I am quite puzzled by Chief Justice Lahoti’s reported statements to the press on his last day in office. (Among other statements, I found it interesting that the departing Chief Justice found it necessary to expressly disagree with his successor’s expressed views on the death penalty). The Indian Express reports that Justice Lahoti had this to say on the issue of terrorism:

“Has anyone thought why there has not been a single instance of terror in USA post-9/11 unlike India where such attacks occur almost every day? The difference lies in the desire to study the problem scientifically and take remedial measures,” Justice Lahoti said. “We do not have the political will to fight terrorism”, he said underlining the need for new legislation. “When new challenges come, new solutions also have to found. Terrorism is a gift of the last century...Terrorist acts require an altogether new type of investigation. It (terrorism) requires new laws and new methodologies. A study should be conducted to identify the causes and suggest remedies. But there is no serious study in our country,” he said.”

Assuming that Chief Justice Lahoti is not a victim of the Indian press’ famous ability to emasculate quotes and transform their thrust, these are startling words. While Justice Lahoti may be right in calling for a sustained enquiry into terrorism in India, his seemingly unqualified support for current US policies reminds me of the aphorism that judges should refrain from commenting on issues outside of their expertise. His comments run the risk of being interpreted as a call for more stringent measures to combat terrorism, in sync with the rhetoric employed by the Bush administration.

Anyone who has followed the Bush administration’s varied responses to the 9/11 attacks would find it hard to describe them as being a result of the “desire to study the problem scientifically and take remedial measures.” In the aftermath of the 9/11 attacks, the Bush administration reacted by hurriedly enacting the immensely controversial USA Patriot Act a mere month and a half after the attacks. Criticised for several failings, even defenders of the legislation would hesitate to characterize it as being the result of a “scientific study”. Many knowledgeable people have noted that the policies pursued by the US in its “War on Terror” proceed on half-baked information, an inadequate understanding of how groups like Al Qaeda operate, and have in fact helped spread global terrorism by creating magnets for terrorism such as present-day Iraq. It is also feared that current US policies may in fact have increased recruitment for several terrorist outfits by demonizing Islam and causing even moderate Muslims to get so sorely affronted that they assume radical positions.

It is particularly ironic that Justice Lahoti should praise US policies on terrorism on the very day that the Washington Post has published a devastating expose of the CIA’s policy of illegally detaining suspects at ‘secret prisons’ throughout the world in order to avoid strict restrictions imposed by US domestic laws. The report makes clear that the CIA has acted so specifically to avoid the impact of the law. Civil liberties groups in the US have been warning of such illegal actions by investigative authorities both within the US and abroad, and taken together with other recent news-items about the torture of civilians in Afghanistan and Iraq, one is left with an impression that adherence to legality is not a priority in such investigations. I can only hope that the outgoing head of the Indian judiciary did not mean to suggest that Indian investigatory authorities follow suit.

As Venkat Iyer documents in his book, States of Emergency: the Indian Experience (Butterworths India, 2000), the Indian judiciary has a woeful record when it comes to preventing the misuse of domestic anti-terrorism laws. Time and again, it has refrained from discharging its role as the constitutionally-anointed protector of the rights of individual detainees, though, fortunately, there have been notable exceptions. This has resulted in a situation where anti-terrorism laws have been repeatedly misused, often towards ends that had nothing to do with combating terrorism, and groups like the PUCL and others have done much to try and document this phenomenon. The recent domestic debate over POTA should not be forgotten.

The role that the law must play in combating terrorism while simultaneously ensuring that innocent people are not harassed (and other agendas are not pursued) in the name of a (meaninglessly) overarching “War on Terror”, is going to be a defining issue in the next few years. One can only hope that those in the Indian judiciary who wrestle with these issues will adopt a more grounded and nuanced understanding of the issues at stake.

(Update, Nov 03, 2005: Today's Hindu carries a piece which states that Chief Justice Sabharwal had this to say about the need for new legislation to deal with anti-terrorism: "This is for the legislature to decide. It is none of the judiciary's business." It is not clear if Justice Sabharwal was asked specifically about Justice Lahoti's statement, but the statement is nevertheless one to be welcomed. Judges of the Indian Supreme Court, who are perceived by some legislators and executive officials as being too keen to intervene on policy matters, must abstain from offering gratuitous advice on matters that are not directly before the Court, and are beyond their ken. This is vital if judicial legitimacy is to be maintained. One cannot help noticing, however, that this kind of public disagreement between senior judges is quite unusual. The rest of the piece seems to suggest that Justice Sabharwal sees addressing problems of judicial delay as an urgent priority.)

THE ASIAN GIANTS AS “WORLD SUPERPOWERS”: A NOTE OF CAUTION

Numerous articles in the Indian popular press proclaim the 21st century as “India’s century”. Its technocrat President uses every possible platform to propagate his vision of making India a superpower by the year 2020. China and India are prophesized as the world's next superpowers “shaking off their ancient slumber and rising to the call of the 21st century”.

Pranab Bardhan in an interesting piece argues that the economic reality of these “Asian Giants”is far more complicated than these rosy, optimistic projections. [I thank Lakshmi Krishnamurthy for sending me the article].

In China, rural and urban inequality grows at alarming rates, and the country has actually lost manufacturing jobs in the past ten years triggering latent (and often, suppressed) unrest.

Meanwhile, India's much-vaunted hi-tech sector accounts for less than one quarter of one percent of the country's labor force. The mushrooming call centres has resulted in the emergence of a breed of employees disparagingly referred to as the “cyber coolie,” a highly educated, intelligent graduate who is “wasting (his) or her talents performing exhausting, mindlessly repetitive tasks for the call center industry.” The abundance of such call centres work “leads to a wastage of human resources and de-skilling of workers”, which will have a high impact on Indian industry in the long-term.

India still has the dismal record as the country that still has the world's highest illiteracy rate, while the rate of poverty reduction does not continues to slow. The apparent benefits of globalization for the Asian Tigers “are not as unalloyed as one might expect”!

An appraisal of India’s contemporary ‘promise’ and an analysis of the UPA government’s draft Education Bill

Devesh Kapur has recently authored an overview of Indian politics and governance which makes for interesting reading. Subtitled “Conflicting prospects for the world’s most populous democracy,” the piece highlights both the positives and negatives of the current situation in India, and contains some stimulating assertions about various issues, including the courts and legal process in India. Kapur’s writings are typically deeply researched, and provide stimulating ideas about many contemporary issues of interest. (Click here for access to his working papers and here for his other published papers).

My focus in this post is on Kapur’s analysis of the woeful situation regarding education in India:

“Critics of liberalization in India incessantly harp on the necessity of increasing national government expenditures on health and education. They are loath to admit that primary education and health are principally the responsibilities of the state authorities. Even the Marxist government in power in the state of West Bengal for more than a quarter century has failed to make much progress in providing universal primary health and education (the one realm where communist governments have had relative success). The reason is simple: an unwillingness to enforce the basics of public administration by ensuring that well-paid government employees—from health workers who don’t show up at clinics to teachers who don’t show up to teach—do their jobs, because those same civil servants are an intrinsic part of the ruling party.”

While Kapur may be right in pointing out that the states in India should take greater responsibility for education, the legal and constitutional history of the issue is not so clear-cut.

In British India, at least since 1935, education had been listed as a subject for which only the provinces (states) could enact legislation. Granville Austin tells us that during the drafting of the constitutional provisions relating to education in the constituent assembly, there was a debate among the framers about whether education should be shifted to either the union or concurrent lists, so that the Central government would be able to enact laws on education. Maulana Azad, who went on to become independent India’s first Union minister for Education, strongly opposed leaving education entirely to the states, and garnered support for his view from Nehru and other influential members of the Constituent Assembly. Azad argued that it was necessary to give this power to the Central Government so that uniform national standards for education could be established. However, some of the other framers believed that the states should also have the competence to make policies and enact laws relating to education. They were prompted, in part, by the knowledge that the several languages spoken across India would require a decentralized approach to education. The situation was resolved by retaining education in the state list, but also including entries relating to higher education and scientific and technical institutions in the Union and Concurrent lists, thereby giving the Central government the power to make policies and enact laws to regulate essential aspects of education. It was also agreed among the framers that the Central government would have the power to make national policies for coordinating the provision of educational services.

It is a well documented fact that successive Central governments in independent India neglected the issue of primary education. Until 1979, India spent less than 1% of its GDP on programmes for education. In 1976, via the 42^nd constitutional amendment, education was moved from the State to the Concurrent list, presumably to give the Central government a larger role in enabling the provision of education at a national level. However, not much changed on the ground as a result of this legal change.

In 2002, the right to education for children between the ages of 6 and 14 became a fundamental right (via the 86^th Constnl Amendment Act). There was an intense debate about the nature and ambit of the right, as well as about the financial allocations which would be necessary to secure the right – an overview of these issues is provided in this Frontline essay by Anil Sadagopal.

Activists involved in education have long asserted that creating a right for education was not the issue (especially because the Supreme Court had already asserted such a right in the early-1990s). What is crucial is the manner in which the right is administered through legislative and executive action.

The NDA government had come up with a legislative effort to implement the new fundamental right which was severely criticized by child rights activists and groups. The UPA government has apparently released a new Bill which has been subjected to intense scrutiny and criticism, which is only to be expected, given the contentious nature, long history and vital importance of the issue, for which no easy solutions are at hand.

India Together (which has a long running series of pieces focusing on Law) is going to feature a series of articles on the UPA’s bill on education and the first in the series focuses on the main elements of the Bill which have been most criticized by child rights groups.

This will surely be an issue that will garner more national attention in the months ahead, as it should.

Regulation Masterclass

The recent proposal to re-staff the regulatory agencies in the power sector prompted two very thoughtful responses from Prof Navroz Dubash and Sudha Mahalingam. Navroz argues that countering the democracy deficit in regulatory institutions is not only about appointing suitable regulators with technical expertise, but more importantly about the open consultative process that regulators follow as exercises in considered public reasoning. This echoes Richard Stewart's path breaking work [The Transformation of American Admin Law 1977 Harv LR] articulating the democratic quality of administrative action more generally, something all of us administrative lawyers must read to appreciate the new challenges in maintaining the democratic pedigree of the emerging regulatory Indian state.

Two other modes of preserving the democratic character of regulation could be explored. First, independent regulators should be required to report regularly to the Legislatures and the relevant House Committees. This would substitute for the individual Ministerial responsibility to Legislatures which is likely to confined hereafter to matters of policy. These public spectacles where the Executive Agency gives account for its actions and policy to the Legislature will bring to the fore the particular role and function of both organs of government. This is particularly important as the British style of government we adopted after Independence seldom required executive bureaucrats to be directly responsible to the legislature and hid from view this aspect of the separation of powers doctrine's application.

Secondly, the statutory power of the government to set overarching policy objectives that regulators are obliged to follow will effectively maintain the democratic control over the regulator. Sudha Mahalingam suggests that the Ministry's frustration with the regulators cross subsidy surcharge calculations which threaten to make open access distribution a non-starter has spurred the present proposal to replace them altogether. Surely, regulatory policy at this level of detail - formula for cross subsidy surcharge - is a matter best left to regulators and far too detailed to be a matter on which the Government/Ministry may issue directions to it, even where the Ministry believes that it has better expertise on the matter. The Ministry should commit itself to persuade rather than sack the regulators!

She goes on to argue that the present approach to the power sector makes the mistaken assumption that market pricing of electricity is possible and further that tariff fixing is a technical rather than political process. This is surprising as it would seem to me that neither of these propositions would operate as uncontested premises in any argument for a regulatory authority which sets up a regulated market to achieve BOTH market and non-market objectives. Surely our core concern should be with the process by which regulators balance various stakeholders - the market, the government and consumers - when designing tariff policy. The success of regulation will, as Prof Navroz insightfully points out, not rest on regulators being 'three wise men' but on their ability to conduct themselves with probity, impartiality and competently at the altar of public reason.

GLOSSING OVER CORRUPTION IN THE JUDICIARY

In Justice Sabharwal’s interview in The Hindu that Arun has referred to, the new CJIS’s views on corruption in the judiciary makes for interesting reading. He says:
“Wherever little corruption is there, as far as the subordinate judiciary is concerned, we see every day the compulsory retirement of judicial officers. As far as the higher judiciary is concerned, it is very, very minimal.”

Contrast this with the statement of another Chief Justice of India, S.P. Bharucha,J. He candidly admitted that “up to 20 percent of the judges in India are corrupt” The Centre for Media Studies has published its findings on corruption in the judiciary which again is indicative that the public perception of the judiciary is that it quite a corrupt institution.

In spite of this lament, Prashanth Bhushan testifies that there has not been a single official investigation against a judge in the last 15 years. Justice Bharucha also pointed out that with respect to the higher judiciary, the only remedy is impeachment which experience has proved to be fairly impracticable and flawed. There does exist an alternate, in-house mechanism evolved after the decision in C. Ravichandran vs. Justice A. M. Bhattacharjee (1995), but this too does not inspire much confidence. This view has been endorsed by others- from the Bar, the Bench and the press.

What has changed in the couple of years that separates the tenures of Justice Bharucha and Justice Sabharwal for judicial corruption to become “very, very minimal”?

Justice Sabharwal also adopts the high moral ground when he challenges: “Tell me, is there any other organisation where, on account of peer pressure, a High Court judge resigns? It is only happening in the judiciary.”
I cannot recollect any instance when a judge has resigned on account of peer pressure. On the other hand, the experience has been to the contrary. Arun, is a previous post has already referred to the instance where 2 High Court judges in Punjab obtained membership in an elite club in a dubious manner. Chief Justice Roy was shunted out after his attempt in seeking an explanation from these judges triggered a wonderful act of camaraderie wherein almost all judges of that Court went on leave en masse in an expression of solidarity with these 2 judges. Certain judges of the very same High Court were also said to be involved in the notorious UPSC jobs-for-cash scandal, but nothing much came out of an enquiry commissioned under the in-house procedure.

I do hope that Justice Sabharwal does not gloss over the reality of judicial corruption, and tries to tackle this problem head- on.