The problem with Caste

Pratab Bhanu Mehta in a well written piece in the Indian Express identifies the problems with giving reservation on the basis of caste.

I welcome the recent Supreme Court Order in Ashok Thakur case referring the matter to a Constitution Bench. One of the issues which the Court is considering whether using caste would destroy the unity and the integrity of the country. This issue needs serious consideration and I hope the Supreme Court strikes down the current approach of giving caste based reservation.

STRETCHING THE WRONG WAY!! METAPHYSICAL MUSINGS ON THE YOGA--PATENT CONTROVERSY

The latest move by the government of India “to lodge its protest against yoga-related patents issued by the US Patents & Trademarks Office” prompted a number of emails to me this morning. Some even went to extent of suggesting: “Surely, if the government is taking this up, there must be some merit in this case”.

If you really want to believe that a naked emperor is adorned with the finest clothes, be my guest!! It’s all a matter of perception anyway, and as our good old sages rightly intuited: the world is nothing but “Maya”-- an illusion!!

Metaphysical musings aside, given the fact that governmental interventions in matters of this sort cost time and money (tax payers, of course), I think it’s important to think through these issues carefully and not fall prey to a trigger happy attitude. Shwetasree did an excellent post reflecting on this constant confusion between “patents” and “copyrights” and this tendency to force emotional rhetoric down the throats of unsuspecting members of the public.

In the wake of complaints that SpicyIP only caters to IP aficionados, I’ve tried to present the issues in a simple Q/A format below. A special thanks to my friend, Rohan George, an excellent journalist with “Down to Earth” for highlighting the utility of such a format to me.

1. Has the USPTO granted any patents on yoga asanas?

No. I searched the USPTO database and couldn’t find a single patent that claims any of the yoga asanas. It’s highly amusing therefore to hear a government official state lament:

"It's ridiculous to even think that an asana which has been practised for several years can be patented just because they think it is different. They have not been looking at the digital library,"

Well, good sir, they’re going to ask you to take a look at the USPTO database before venturing into your digital library!

2. Are there any patents related to yoga at all?

Yes, a search of the USPTO database reveals 166 Yoga related patents. However, most of them relate to yoga related props and accessories (and some of them only mention the term “yoga” in passing). Examples include:
i) Device and Kit for Body Stretching
ii) Yoga Grip Block
iii) Yoga Mat Carrier
iv) Yoga Socks

3. Do these patents matter?

A patent is granted to any invention that is “new”, “inventive” and “useful”. Upon grant, a patent provides the exclusive right make, use and sell the invention in question. Given this fact, do we have objections to any “accessory” related patents that meet the patentability criteria spelt out above? I guess not, since they don’t lay claims on our “timeless” asanas –rather, they cater to what Ayesha had earlier referred to as “karma capitalism”—a world where yoga has become more of a fashion statement and less of a spiritual endeavour.

In other words, Suketu Mehta who was concerned about his father performing Sirsasana in the wake of these “accessory” monopolies need not worry, unless his father insists on standing on his heard whilst at the same time, wearing the Yoga Socks.

4. If there are no patents on yoga asanas but only on the props/accessories, why is there so much of a fuss?

I’m not entirely sure—it probably has to do with the fact that such emotional appeals are fashionable today. Those that have been following this thread will know that this controversy has its roots in our famed “hot” guru Bikram claiming copyrights over his 26 sequence “sauna” room Yoga. I’m also guessing that some part of all this fuss (or tamasha, to use an Indian term) sprang from Suketu Mehta’s famed editorial that made its rounds in almost all the IP related listservs that I know of. I advised Suketu to stick to fiction when I first reacted to his NY Times piece—and now the advise turns to a deep imploration—as he has in many ways caused a considerable waste of my valuable time (and I’m sure of many others who are tired of dealing with this constant play on emotional rhetoric).

5. Where does Bikram Choudhary and the copyrighting of “hot yoga” poses fit into all of this?

If at all Yoga fans and guardians of Indian heritage need to be concerned, it’s with the copyrighting of Yoga sequences by Bikram Choudhury. Of course, this copyright only covers the exact 26 sequence step allegedly distilled out of the ancient scriptures by Bikram, to be performed in a “hot” environment. It does not prevent you from doing the asanas in any other sequence in a not so hot environment. More importantly, such a copyright may be contestable: As I noted in an earlier posting:

"… even under the most liberal IP standards that the US has now come to represent, you could still run a claim that yoga sequences are not copyrightable, since they are predominantly “functional”. And if the US is serious about “precedents” and respecting the classic “idea expression” dichotomy laid down in Baker vs Selden, you’re likely to succeed. The Patry Copyright Blog, by William Patry, Senior Copyright Counsel, Google Inc, elucidates this point quite well and also cites to 2 law review articles on this theme.”

The copyright issue is a complex one and the “real” issue here--- however, there are strategic ways of dealing with this, which the government or any interested party ought to explore. But unless we identify the correct issue, we may be barking up the wrong tree (or in the context of Yoga, breathing up the wrong nostril OR stretching the wrong way).

6. Any final pearls of wisdom?

Yoga in many ways is about “breath”—so lets take some deep breaths here, calm our minds and explore these issues in a sensible way.

As the noted Yoga maestro, BKS Iyengar, once remarked “Yoga teaches us to cure what need not be endured and endure what cannot be cured”.

I’m hoping that “ignorance” is something that can be cured. Else, we may have no choice but to endure it.

WHAT IT MEANS TO BE A LIBERAL IN INDIA-PART III

The range of opinions expressed on the issue (in the comments section) convinces me of two things: One, we are all concerned about the negative consequences of hate speech laws, primarily with the way they are being applied by the authorities, sowing seeds of discrimination between various religions. The second, which stems from the first, is that there is a gulf between the objective of these laws, and the reality; that is, in practice, these laws have been so identified with the compulsions of maintaining peace and l aw and order, that their original objectives have been more or less discarded.
The debate is mainly about Vadodara and the Punjab incidents. My initial feeling that they are unrelated – because the former was a private exhibition whereas the latter was in the public realm – cannot be legally sustained. (Here, I thank Mr.Srinivasan, though I am not sure whether his reservation against my earlier stand was on similar grounds). In other words, the fact that Vadodara was a private exhibition, meant for peer review cannot be the sole ground of defence for Chandra Mohan. Section 295 A IPC – which is applicable in both Punjab and Vadodara cases – is silent on whether an exception could be granted if the alleged act took place in the private realm. The possible view that this qualification has to be read into the provision makes no sense, as the alleged act, even if held in the private realm, can come within the scope of this section. The test has to be whether Chandra Mohan and Dera Chief had “deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, and insulted the religion of that class.” I am revising my earlier view that the test has to be whether the alleged act is likely to lead to disturbance of law and order. I based that view on the rationale underlying this provision, which is the maintenance of public peace and tranquility in India, where religious passions can be easily aroused and inflamed.
While reading on this issue, I came across an insightful article by Soli Sorabjee in the book Law and Justice: An Anthology, edited by him (Universal Law Publishing Co.Ltd.,2003). He cites from the Report of the Select committee in connection with the enactment of S.295A in the IPC in 1927. The Committee was impressed by an argument that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a sock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words ‘with deliberate intention’ by inserting reference to malice, and we think that the section which we have now evolved will be both comprehensive and at the same time of not too wide an application.”
In Ramji Lal Modi v. State of Uttar Pradesh (AIR 1957 SC 620), the Supreme Court upheld this section, and reasoned that it did not penalize any and every act of insult to religion or the religious beliefs of a class of citizens but was directed to acts perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens. “The calculated tendency of this aggravated form of insult is clearly to disrupt the public order….” (from the SC Judgment in this case).
However, it is, in my view, possible to suggest that an alleged act may not have this tendency; in other words, disruption of public order need not be a test to determine whether an alleged act falls within the four corners of this section.
Sorabjee says: “One may legitimately criticize the tenets of a particular religion and characterize them as illogical or irrational or historically inaccurate. But it is not permissible to condemn the founder of a religion or the prophets it venerates as immoral persons or frauds and charlatans. Courts would in such cases probably infer a “deliberate and malicious intention” to insult the religion, particularly if the language is abusive or vituperative. Ultimately, it depends upon the approach of the judges. Do they attach more weight to freedom of expression or are they more concerned with preservation of peace and order?”
He continues: “ The authorities deem it prudent to play it over-safe. The tendency is to ban a book or a play, if there is the slightest possibility of demonstrations and disturbances, to forfeit it and drive the aggrieved person to court to obtain a judicial verdict.”
Sorabjee cites from the observation of five dissenting members of the Select Committee which approved S.295A: “It’s a regrettable concession to fanaticism, it will on the contrary, make the situation worse; each side will accuse the other of publishing writings which are against their religion, and government will again be seen siding with one party or the other.” Another member warned: “It will only accentuate the evil which it is meant to remove. Far from healing the differences which will linger, or which now and then come to the surface, it would widen the gap by encouraging insidious men to do mischief in stealth…” Sorabjee says his objection was not only perceptive but prophetic. According to Sorabjee, criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression. “We need not more repressive laws but more free speech to combat bigotry and to promote tolerance”, he says.
Put in this historical context of the genesis of S.295A, I feel both Chandra Mohan and the Dera Chief cannot be accused of deliberate and malicious intent – the true test for invoking this Section. They are not guilty of using abusive or vituperative language or sign. Clearly, there has been a concession from the authorities to crossing the limits of tolerance as perceived by a section of the people. The number of people wrongly feeling outraged in Vadodara may be less, and more in Punjab, but that itself does not justify the use of S.295 A.
Does the law needs amplification, as suggested by Mr.Dilip, so as to make it detailed with reference to the scope of this section? I think that would further curtail the scope of freedom of expression, even though it may be justified on the basis of past experience. It can be suggested that the Courts could decide whether S.295 A is attracted, depending on the facts and circumstances of each case. A list of such acts falling under S.295A as Mr.Dilip suggests, may be an answer to limit the discretion of the courts which may be carried away by the ‘disturbance to law and order’ argument. At the same time, it helps to know what act is likely to outrage a particular religion. However, we need to take precautions that the Khajuraho sculptures and their modern counterparts do not become vulnerable to misconceived attacks from the moral police due to such legal amplification.
The Dera chief would not have had deliberate and malicious intention to insult the Sikhs by dressing like their Guru. But it needs to be asked why he did it in the first place. If it is an inadvertent error, then including this act in the proposed list under S.295 A, would stop repetition of similar acts. After all, what great freedom of expression is involved in this? If a particular form of dress is likely to offend a religion, why should a person have a licence to wear that dress in public, especially when that person himself is a public personality, and his actions and symbols are closely scrutinized by public for hidden messages?
In the case of Vadodara painting, Chandra Mohan’s painting would have been entirely due to academic interests. Since such actions need legal protection from vandalism, there can be a proviso to S.295 A clearly mentioning that if the alleged act was done in the course of an academic study, meant for peer review, and not strictly for public exhibition, the section would not apply. That way, we could balance the demands of free expression as well as the compulsions to protect religious sentiments from being outraged by irresponsible or inadvertent actions by individuals.

UPDATE: WHY DO WE REQUIRE S.295 A IPC? In the comments section, doubts have been expressed whether we require S.295 A IPC at all in view of its possible abuse by those who don’t value freedom of expression (Mr.Srinivasan has this view). Mr. Suresh asks why can’t we have the right to criticize other religions? The answer has to be found in the origin of S.295 A. This section was enacted in 1927 when the existing provision (which still continues) S.153A was found inadequate in the Rangila Rasool case. (Ray Paul v. Emperor, AIR 1927 Lah 590). A tract, Rangila Rasool, was published in which there were offensive references to the Prophet Mohammed’s personal life. The High Court took the view that the prosecution which was launched under S.153A was not legally sustainable because the writing could not cause enmity or hatred between different religious communities though it was certainly offensive to the Muslim community. Justice Dalip Singh who delivered this judgment was a Christian, and there was an unreasonable demand to sack him. The plea for a change in the law thus emerged. Such was the outrage caused by the tract that the author of the tract was later killed. (Source: Law and Justice: An Anthology Ed. By Soli J.Sorabjee)

WHAT IT MEANS TO BE A LIBERAL IN INDIA - II

I find Mr.Srinivasan’s arguments in the Comments section very compelling, insofar as it contends that might is not always right, and that to insist on might, that is, numbers, to assess whether the protest against an alleged insult is widely shared by the bulk of a religious population is putting a higher threshold limit, than what may be warranted. I see his point: that majority of Hindus are docile, and tolerant of insults to their religion, because it is not homogenous, or as organized as other religions, to register an effective protest. Therefore, absence of widespread protest should not be construed as a licence to an attempt to insult religious sentiments.
I think we need to look at in a different way. I did not suggest that the authorities should actually do a head-count of the protestors against an alleged act, or form a prima facie opinion whether the protest and the feeling of outrage is widespread cutting across all sections or limited to a group of hardliners. These are very difficult questions to be assessed in a given situation, even though they may be relevant inputs to a decision to ban.
The practical test would be to see whether if an alleged insulting act is allowed to continue, it would lead to breach of public peace, from the point of view of a reasonable and prudent citizen. In the fire-crackers case, the Bombay High Court rightly came to a conclusion that the printing of goddess pictures on fire-cracker wrappers was unlikely to lead to breach of public peace, because it had been done for a long time, and none had objected. The petitioner in this case contended that the labels carrying the divine pictures got mutilated, wasted, and thrown into the dust-bin, and subjected to all sorts of indignities. But the Court was unconvinced, suggesting that the petitioner could stop firing crackers if he felt outraged.
In the Vadodara case too, if Chandramohan’s exhibition was allowed to continue for restricted viewing by his peers, it was unlikely to have led to breach of public peace. It was only because the Bajrang Dal volunteers stormed into the exhibition on the basis of a probable tip-off, and sought his arrest amidst media glare, it came to public notice, and passions were aroused, leading to a threat to breach of public peace by a small group of hardliners, claiming to represent the majority of Hindus, backed by powerful State machinery.
Put in this context, I agree, the police mistakenly thought it had no option, but to arrest Chandra Mohan, aiming to prevent further breach of public peace by those who want to take law into their hands. Remember it was against this tendency, the Supreme Court ruled in the Ore Oru Gramathile case, when the Tamil Nadu Government sought to ban a film, because it feared it would lead to breach of public peace. The Court had held that maintenance of law and order was the State’s responsibility, and merely because there was a threat to the breach of public peace, rights cannot be curtailed.
In Punjab, if you look at the way the events unfolded, the clergy in the SGPC, first wanted to give 10 days ultimatum to the Dera chief to apologise and make amends for the perceived insult caused by him to the Sikh religion. But the agitation forced SGPC to reduce it to three days. Thus it was a case of the clergy succumbing to the general public outrage, rather than the clergy dictating the tone and tenor of the protest. I think Mr.Srinivasan’s point about lathi and sword wielding protesters forcing the submission of the majority of the Sikhs is misplaced. These are cultural symbols, and have been used to give vent to their sense of outrage. It is futile to look for a parallel between Vadodara and Punjab incidents, even though they appear to be similar in the sense, religious groups were in the forefront of the protests in both. It is true that in Punjab, the former terrorists have got a fresh issue to mobilize themselves, and fish in troubled waters. But that is no reason to underestimate the sense of outrage, caused by Dera chief’s public display of the alleged act of insult.

WHAT IT MEANS TO BE A LIBERAL IN INDIA-I

Mr.Arun Thiruvengadam has brought to our attention a fascinating issue being debated in the Indian media. The Vadadora case has brought to the fore the two extreme and conflicting views on to what extent we can let artistic freedom to flourish. Mr.Ravi Srinivas has pointed out that the Vadodara exhibition, in which the so-called offensive paintings were put on display, was meant for private view, not for public appreciation. Mr.Arun Jaitley does not go into this aspect of the controversy in his piece. But the real question would be whether the organizers of the exhibition strictly meant it for private consumption or peer review, whether members of the public – without any taste for art or appreciation of art or even without an interest in art – were welcome to view the exhibition. The answer to this is important. Today’s piece in Indian Express by Rashna Imhasly says Chandramohan’s paintings were not meant for public viewing, but were part of an internal examination by the Fine Arts Faculty. The author may well be right unless someone rebuts it with facts. Unless the complainants included any students or those who viewed it with some knowledge or interest in art or paintings, one does not see any force in the view that Chandramohan violated the legal limits to the freedom of expression, by dealing with religious symbols and sexual matters. I would join with Mr.Jaitley in condemning the journalists/columnists’ silence on the what these so-called offensive paintings were, but I would also not appreciate Mr.Jaitley’s reticence on the nature of this exhibition. Mr.Jaitley’s reference to the Visions of Esctasy case and the European Court of Human Rights verdict in the case is helpful to understand that Chandramohan’s paintings would indeed be hurtful to one’s religious sentiments if displayed publicly.
But we should also understand, as in Jaitley’s own admission, there is a world of difference between the response of Hindus and the members of other religions to such alleged insult to religious sentiments. The defining characteristic of Hinduism is tolerance, and despite the fringe elements making a strong case for assertion of rights against Chandramohan, not many were indeed moved by this plea. On the contrary, there were many who pleaded a lenient response, as the issue was one of artistic freedom and expression. This is as it should be, as it sets Hinduism apart from other religions. The issue is certainly not majority bashing, as Mr.Jaitley would have us believe.
Chandramohan can perhaps claim in his defence that he did not intend to hurt the sentiments, and therefore did not violate the provisions of the IPC sections, Sections 153 A and S.295, as his paintings were strictly meant for peer review. Just one instance would suffice to show that even if an alleged violation of these sections had taken place in the public realm, the test was to see whether the bulk of the population was hurt or considered it as an outrage – not necessarily because the complainants said so. I am giving below the brief judgment of Bombay High Court dismissing in limini a petition to ban printing of pictures of Hindu goddesses in fire crackers. (Bhau v. State of Maharashtra, 1999 Cr.LJ 1230 (Bom).

“It is a fact that photographs of God and Goddesses of Hindu religion are being pasted on the fire crackers. This is not happening for the first time, but this practice is going on since last many years and up-till-now nobody has raised any objection regarding this practice. That has happened only because nobody thought it objectionable, nobody's feeling were hurt on seeing the firecrackers bursting and the photographs destroying because the photographs on the fire crackers were not being looked at as photographs of God and Goddesses but just some prints to attract the attention of the customers. There was no intention that anybody's feeling should be hurt by selling such fire crackers or by bursting such fire crackers. Now altogether new dimension is being given to this matter. Nobody from Hindu community up-till-now has thought over on this issue in this way. It is just whim of the petitioners and for that they have come before the Court. This is nothing but wasting time, money and energy.
If anybody from the petitioners feels that by bursting the fire crackers on which there are photographs of God and Goddesses, he may stop himself using such fire crackers for his own purposes because only his feelings are being hurt, but he should not take the matter in his hands as if he is representing whole of the society when whole of the society is not looking to the matter from that point of view.”
Mr.Jaitley makes much about the ECHR’s decision in the Visions of Esctasy case. He would do well to read this article in Observer, which makes a strong case for the repeal of the Blasphemy law in England, and also refers to other cases, where the pleas for invoking Blasphemy law were ignored as they lacked any merit. The author of this article asks: “Has the time not arrived to repeal Britain's outdated blasphemy law? Only then will we have an even playing field in which freedom of speech is genuinely sacrosanct, and all religions (and their critics) are granted the same level of protection in the UK.” I am not suggesting that we should do away with our S.153 A or S.295 of Indian Penal Code, as they are useful to maintain communal peace in our plural society. But the tests for invoking these sections must be transparent and stringent, rather than be left to the fringe groups, who intend to ignite passions where there are none.

CLARIFICATION: Mr.Srinivasan's response in the Comments section suggests that I may be in favour of separate treatment for Hinduism, because of the higher degree of tolerance among Hindus, as compared to other religions. Far from it. I had referred to the tolerance aspect of Hinduism only to describe why as Jaitley observed, there has been no widespread agitation on the Vadodara issue. In the case of fire-crackers which I cited, the Bombay High Court rightly indicated what could probably a viable test in such matters: whether the perceived hurt is seen as an insult only by the complainant or a group of complainants ( claiming to speak on behalf of all the Hindus), or is it that the entire community by and large feels outraged or insulted by the alleged act. The Vadodara case clearly falls under the former category, wherein a group of hardliners, claiming to speak on behalf of all the Hindus, took the law into their hands, and secured the arrest of the student. That their act did not get the endorsement of the Hindus by and large is clear in terms of the absence of any widespread agitation either on the ground or in the media (in the form of opinions expressed). Mr. Jaitley too concedes this in his article, though he deplores it. It would be an understatement to consider the ongoing strife in Punjab as a case of armtwisting by a small group of clergy. No doubt, the clergy has channeled the outrage and sought to give expression to it. Otherwise, the state-wide agitation is a clear pointer that the Sikhs, by and large, are outraged by the alleged act, and consider it as a clear case of blasphemy.

P.S.: Thanks to Mr.Tarunabh for giving the link to the Telegraph article on the artistic appreciation of the Vadodara painting by Chandra Mohan. The article is here.

STRETCHING IP: YOGA, SUKETU MEHTA's OP-ED AND PROF SAMPAT’S RESPONSE

The controversy surrounding the Yoga guru, Bikram Choudhary and his copyrighting of “hot” yoga poses (perhaps a better term ought to be “sauna yoga”) has reared its ugly head yet again. Talk about ‘stretching” IP!!.

Oh well—if a patent can issue on a method of exercising a cat by making it chase a laser beam, what’s wrong with copyrighting a more holistic exercise regimen that does not involve anything as fancy as lasers—and more importantly, one that pertains to human beings.

What’s funny (or rather “troubling”) is that, in all this media frenzy, the Indian press continues to conflate the terms “patents” and “copyrights”. Most news reports are shocked at the “patenting” of yoga asanas—when Bikram’s claim to fame (or rather, “in-fame”) is really in trying to “copyright” it. Anyway, what began this new found interest in the monopolization of yoga may be Suketu Mehta’s op-ed in the NY times, titled “A Big Stretch”—something that was commented on by Aysha in her excellent (and provocative) post on religion and IP.

Prof Bhaven Sampat, whom I’d blogged about earlier, in connection with the creation of a very useful database of Indian patent applications, responded to Suketu’s piece and sent a copy to the NY Times—unfortunately, for reasons best known to them, they didn’t publish.

Bhaven is spot on in his critique—but I also think he is way too kind. After reading Suketu’s highly “stretchable” notion of trading Gleevec for yogic nirvana (maybe a future India—Swiss FTA should have this!!), and his rather implicit preference for the monopolization of knowledge along caste lines, my advise to Suketu would be along the lines of what was tendered by a towering Indian intellectual, Ramchandra Guha to Booker winner, Arundhati Roy in response to her piece on the Narmada dam: Please stick to fiction!!


In fact, Suketu’s very first paragraph reveals a deep ignorance for how copyrights operate. He states:

“I grew up watching my father stand on his head every morning. He was doing sirsasana, a yoga pose that accounts for his youthful looks well into his 60s. Now he might have to pay a royalty to an American patent holder if he teaches the secrets of his good health to others.”

Suketu—notwithstanding Bikram’s abominable attempt at monopolizing an ancient Indian knowledge form, his dubious copyright over yoga poses does not in any way prevent your dad from standing on his head or of teaching this to others. Of course, if he does this in a “sauna” environment (105 F or 45 C) and follows the exact same sequence of 26 odd steps that Bikram claims to have distilled out of the ancient scriptures, he may be in a little bit of copyright trouble in the US.

I say “may be”—because even under the most liberal IP standards that the US has now come to represent, you could still run a claim that yoga sequences are not copyrightable, since they are predominantly “functional”. And if the US is serious about “precedents” and respecting the classic “idea expression” dichotomy laid down in Baker vs Selden, you’re likely to succeed. The Patry Copyright Blog, by William Patry, Senior Copyright Counsel, Google Inc, elucidates this point quite well and also cites to 2 law review articles on this theme.

Suketu is right to be concerned about this rampant commercialization/monopolization of a holistic health regimen that has been in the public domain for several centuries—but deploying his poetic (or literary) license to “stretch” logic is nothing short of disrespect to an intelligent public that will soon tire of excessive emotional rhetoric. Anyway, this is Prof Sampat’s critique:

Re: "A Big Stretch" (Opinion, May 7)

The posturing in Suketu Mehta's op-ed column on patenting yoga may have interfered with his quest for enlightenment. The author is correct that there has been a worldwide growth of patenting of knowledge and techniques that are not novel but rather have long been in the public domain. These include not only the yoga related patents identified by Mehta, but also, in the United States, patents on how to swing on a swing (U.S. Patent 6368227) and a crustless peanut butter and jelly sandwich (U.S. Patent 6004596).

However, none of these patents have had deleterious effects: the vast majority of patents are never enforced or litigated, and most are easy to invent around. Just as we can swing and make our lunches without fear of paying royalties, Mehta can continue practicing downward dog in peace. Mehta's article does point to a more important and more general point: worldwide, patent offices lack the expertise, incentives, and resources to make determinations of whether an invention is really "new enough" to merit patent protection.

This can not only lead to the issuance of silly patents that don't matter, like those discussed above, but also questionable patents on inventions that can have life-or-death consequences, like the cancer drug Mehta cites. But the implication of the article—that the problem in both cases is patenting per se—is misguided. Well—designed patent systems can simultaneously promote innovation and prevent encroachment on the public domain. (And patent-based regulation of knowledge is probably better for facilitating diffusion than the caste-based regulation of knowledge Mehta appears to favor.)

The salient concern is granting of low-quality patents: those that should not have been issued in light of what was already known. The solution is two-fold. First, policymakers worldwide need to think carefully about how high (or low) to set the bar for patentability. Second, they need to provide patent offices with better information about pre-existing knowledge and inventions, and the resources needed to evaluate this information.

Bhaven N. Sampat
New York, NY May 7, 2007.
The author is an assistant professor at the Mailman School of Public Health at Columbia University, and co-creator of a free searchable database of Indian patents and applications, india.bigpatents.org .

More views on 'the Baroda case'

Vir Sanghvi and Pratap Mehta weigh in on this issue, adopting contrasting approaches, and responding at least in part to the concerns raised by Jaitley that were highlighted in the previous post. Their ruminations provide interesting perspectives on what it means to be a liberal in India.

Jaitley on the legal boundaries of artistic expression in India

Today's Indian Express has an op-ed by Arun Jaitley who makes a provocative assertion about the limits of artistic liberty and expression in India. In the course of his column, Jaitley relies on an analysis of provisions of the Constitution as well as the Indian Penal Code, as well as the recent Danish cartoons controversy, to buttress his views. I found his analysis interesting, and though I will not be able to set out my own position on this at length in the near future (owing to overly ambitious professional obligations I have undertaken over the next few weeks), I hope some of the others will be able to chip in, especially those like Vikram who have considerable familiarity with free speech jurisprudence in India. Here are extracts from the piece:

"The Vadodara incident, in which an art exhibition at the MS University was disturbed by a group of protesters, escalated into a political controversy. The protesters strongly maintained that some of the art objects on display were intended to hurt the religious sentiments of a particular religious denomination. A group of artists, supported actively by political organisations and eulogised by a section of the media, strongly maintained that the protest against the two paintings amounted to moral policing and that it was a suppression of artistic freedom. The debate continued for a few days until the young artist who had sketched the paintings was released on bail.

My normal instincts are against censorship and disruption of art exhibitions. Anxious to study and analyse the real issues in this controversy, I made a conscious effort to investigate as to what the two impugned paintings were. My curiosity was further strengthened by the fact that media organisations that championed freedom of artistic expression, projected the issue in the abstract, without informing viewers and readers what the exact expression of artistic freedom in this case was. My conscious effort led me to discover that the protest was with regard to two paintings whose contents were being censored by the responsible section of the media. I am unsure whether this was deliberate or whether it was an act of responsible journalism to prevent people from viewing an obnoxious piece of art.

... ... The question for consideration in Indian society today is whether the right of an individual, including an artist, to express himself with freedom includes his right to commit blasphemy. The most prominent amongst the fundamental rights guaranteed under the Constitution is Article 19(1)(a), which guarantees to a citizen the freedom of speech and expression. This right is not absolute. It is subject to reasonable restrictions, which, amongst others, empower the state to make laws that can restrict the exercise of this right in the interest of public order, decency or morality. This case relates to decency or morality, but let’s ignore that for the moment. The responsibility of maintaining public order prohibits an individual from engaging in actions that may lead to public disorder. The Danish cartoons controversy has clearly revealed that the cartoons were not merely excesses of caricature, but were sufficient to create disorder. Although the cartoons did not have any sexually explicit material, even then they created public disorder globally. Religious sensitivities were ignored. In the present case, it is the level of tolerance of Indian society that protests were limited to one act of slogan shouting at the art exhibition in question. What is objectionable is not the mistaken romanticism of the young artist, but the insistence of responsible sections of the society that artistic freedom would extend to such acts of blasphemy. The mere dressing up of the head of a religious sect in Sirsa with a resemblance to a Sikh Guru is sufficient to create public disorder. Can it be reasonably believed that sexually explicit paintings of Jesus Christ or goddess Durga will have no effect on society?

... .... The proponents of the liberal view argue that artists should have the freedom to give vent to their expression even if the same is blasphemous or offensive to religion. Followers of religions must choose to look in the other direction. That is what normally happens. Except for marginal protests, India does not witness the kind of outrage we saw in the Danish cartoon case. There is no need for any protesting citizen to take the law into his hands. The machinery of law must be allowed to operate in such cases. At the same time, the perversion in the definition of secularism as being synonymous with majority-bashing must end. This perversion was visible in the Vadodara incident. The strategy was — don’t let the people know what the contents of the two paintings are. Carry on the debate on artistic freedom in the abstract and criticise the whole idea of moral policing. Society does not need moral policemen. It can do well without those who pass on blasphemy as a part of their artistic freedom." (Emphasis added).

Forecasting Results: Purpose And Practice

In her article in The Hindu today, Vidya Subrahmaniam is proud that it is the journalists on the field, rather than the psephologists with their sophisticated statistical tools, who could exactly feel the pulse of the U.P. electorate before the elections. She says: “Yet in recent years, political forecasting has proved a treacherous area for pollsters, and more so in the caste minefield called U.P.” While examining why it has proved to be treacherous, she casts aspersions on the pollsters suggesting that they were probably influenced by the BJP’s PR machinery. Tracing the opinion and exit poll results since the early 1990s, she claims that the BJP has the satisfaction of doing well in these polls, even though the results of the actual elections proved otherwise.
She may well be correct. But my question is why we need these forecasts at all? What is their purpose? As she put it, the journalists and the pollsters alike are intrigued by the question which they pose to themselves: which way would the vote go? She says: “Across TV channels, pollsters described U.P. as a nightmare, difficult to read, impossible to call. The pollsters were confused, not the voters.
Opinion polling is a valuable tool, whether in market research, in the social sciences or in politics. The Centre for the Study of Developing Societies has incisively analysed changing political trends and shifting voter loyalties, drawing from a database compiled during the course of successive elections.” But she did not answer the question why we need the forecasts at all – whether it is a nightmare, or an arm-chair theorizing is secondary. Whether it is a print journalist or a pollster, it makes no sense to suggest that they should be obsessed with forecasting, rather than with the issues, the voters’ concerns, and the parties’ strategies. There is no evidence to suggest that forecasts help the political parties to make mid-course correctives, to improve their actual chances at the hustings. There is no evidence to suggest that the viewers/readers believe forecasts would help them vote better. (on the contrary, forecasts are suspected to influence the voter decision, and hence there are well-reasoned demands that they should be banned/ restricted). Do the forecasts leave the viewer/reader in any sense better informed about their parties and candidates? Even here, as Vidya has pointed out the scope for misleading is immense, considering the disproportionate advantage the BJP secured in these polls all these years. A print journalist like Vidya, even if she is reasonably sure that BSP would get absolute majority, would be reluctant to say so in her reports before the elections, precisely because a contrary result would cause sufficient professional embarrassment. The HT, for instance, depending on the forecasts that a hung assembly is in the offing, carried a front page story on the possible scenarios, based on various permutations and combinations, a day before the actual results were out. In retrospect, such stories were absolutely unnecessary, and served no reader interest. Similar was a story in The Hindu, on possible options before the Governor in the event of a hung assembly based on the views of so-called legal experts. In retrospect, we could have well had no such hypothetical analyses, if the forecasts were not there – whether coming from sophisticated pollsters, or from ‘ear-to-the-ground’ print journalists making some qualified forecasts in the midst of their copies. It serves no purpose absolutely. The data the pollsters may generate would be useful, but not the forecasts, which in their own assessment, may turn out to be inaccurate, or may even be quite off the mark. In my view, even if the forecasts turn out to be correct, they would have served no purpose, from the point of view of most stake-holders, except the pollsters and the channels, and the print journalists who could have the satisfaction of saying “I told you so”. But I agree that there will be some interest in knowing why and how the psephologists failed to forecast the U.P.results – not necessarily because correct forecast would have served any good purpose, but just to satisfy our curiosity.

Update (May 16): As expected, Yogendra Yadav has written his post-mortem piece (Part I) in today's Indian Express, wherein he clears many of the misgivings against psephologists in the wake of the U.P. results. He identifies three factors: sampling error, response bias and vote-seat distortion which led to under-estimating the BSP and over-estimating the BJP. Pollsters usually hope that the different errors they make will cancel each other; this time they reinforced each other. He says: "there is a big gap between what polls promise and are expected to deliver on the one hand and what they are capable of doing on the other. This allows us to acknowledge that the art of polling and forecasting has not seen any major methodological innovations since the path-breaking research by Prannoy Roy and the India Today-MARG team in the 1980s. Above all, this allows us to respond to Behenji’s call to the media for ‘atmachintan’. It’s time pollsters got together in some Atmachintan Workshops." Hopefully, his Part II piece will throw more light on this issue. But I find the question what polls promise and are expected to deliver (forget what they are capable of doing) intriguing. I wish YY dwelt more on this, so that I could have cleared my own misgivings about the purpose of these polls. YY has congratulated the print journalists for capturing the hawa before the actual polls in their despatches. My answer is: "so what?" I agree there is some amount of reader-interest which such reports cater to. But most often, they give misleading picture of the hawa. The value of such reports is short-lived. While trying to capture the hawa, the journalists get obsessed with the likely outcome, and try to indulge in prophesy, which I think is unjournalistic. In this endeavour, some times, they turn out to be right, and sometimes not - the rate of failure often exceeding the rate of success. And it is not a profound prophesy about long-term implications of something which they try to explain - but something which is going to be obvious in a few weeks' time. So, why not describe the campaign, and let the readers judge for themselves? After all, there is so much in the campaign, which needs to be reported, but goes unreported for lack of interest among the journalists. And the question what section of readers is interested in forecasts also needs to be addressed. Certainly, the BSP voters are not. Is there also a class bias in the business of forecasting?

How The Psephologists Missed The Wood For The Trees

WHEN I referred to the hypocrisy of the poll pundits in a previous post in the context of U.P. election analysis, some blogger friends could not understand whom I am against: voters, analysts, or parties/candidates? An interesting article in the HT edit page by sociologist Dipankar Gupta articulates the same point which I had made, albeit while examining why the psephologists failed to predict the scale of BSP’s victory. Although the author referred to psephologists, much of what he said, could well be true of the analysts, the pundits on various channels, and the so-called beat correspondents of various print newspapers. Today’s report in The Hindu, for instance, gives caste/community break-up of Mayawati’s Cabinet. One wonders what sort of reader interest is served by this break-up. I can understand if one section is completely left out of the Cabinet, or even over-represented rather disproportionately. The break-up of the numbers shows that the journalists are still trapped in the same mind-set which failed to foresee the BSP’s victory.
Gupta says: “None of the psephologists predicted that the BSP would get an absolute majority simply because they fractionated voters minutely by caste. These pollsters would have done better if they had asked on what grounds members of different castes coalesce politically. As the UP election has shown, jati loyalty is not the key. The emergence of a degree of caste correlation with electoral outcome is because economic, social and structural considerations bring otherwise hostile jatis together in caste blocks or clusters.”
Although I agreed with a blogger-friend, that we should not seek to restrict expression of such opinions in the media, saying they must have the freedom to fool the viewers and readers (because what they say and write do not reflect reality), I had also felt they were essentially playing a negative role, and must be discouraged. This is how Dipankar Gupta concludes: “But psephologists need to reinvent themselves in a hurry. By insisting on the pre-eminence of caste round the clock during election time they are not only wrong, but also dangerous. Incorrect though they are on every count, they succeed, however, in a somewhat devious way. They are successfully able to pander to popular prejudice by continuously harping on individual caste identities. It is in this sense that they play a negative social role that borders on the subversive.” What Gupta says about the OBCs being common adversary of both the Dalits and Brahmins in U.P. may be debatable, but on the issue of how pollsters went horribly wrong, one is tempted to agree with him.

Update: Mahesh Rangarajan offers a different analysis of the BSP's victory in Telegraph. He says OBCs are very much part of Mayawati's rainbow coalition, marking a clear disagreement with Dipankar Gupta. He says: " Contrary to the claims of some commentators, Mayavati has accommodated the Mandal classes. Her vote share among the lower backward classes, according to the surveys of the CSDS, is as high as 30 per cent. This makes her the head of a rainbow coalition." His article is here.

The editorial in Tribune today calls for retirement for pollsters till they improve their methodology.

Further Update: Mr.Suresh writes in the response section that I might have underestimated the problems of psephology in a first-past-the-post system, and that psephologists like Yogendra Yadav and his team are fully aware of the nuances of the Indian voters' behaviour, especially in t he context of U .P., and that Dipankar Gupta's article must not be relied upon to pass an unfair judgment on the entire class of psephologists. He also writes that YY and his team have consistently repeated in their programme on the CNN-IBN that their conclusions are only indicative, and that they should not be construed as making predictions. I agree with Mr. Suresh that the studies carried out by YY and his team have yielded rich data on Indian elections, and it is for this contribution, psephologists have to be admired. The 'predictions' aspect of psephology is important to sustain viewer interest in this era of 24-hour news channels, and therefore, the imperfections associated with this aspect may be condoned. However, I would still like to have a complete response from YY and his team to the issues raised by Dipankar and me (My grievance was mainly against journalists masquerading as poll pundits) especially with regard to the assumptions and premises underlying these 'indicators' (if the word 'predictions' may not be correct to describe their efforts).

In the past, YY had written a post-mortem of the opinion and exit polls done by his team to throw light on what had gone wrong, and draw useful lessons. I am looking forward to a similar exercise by him in a print medium of his choice. I shall also try to contact YY, as Mr.Suresh suggested, to throw more light and possibly dispel certain misgivings on the practice of psephology in India, in the context of the U.P. results. I am thankful to Mr.Suresh for this timely intervention. I have the highest respect for the scholarship and contribution of YY and his team, and my post was, in no way, aimed to disparage his methodology or analysis.

BSP’s SPECTACULAR VICTORY: SOME POINTERS

Among other things, there are two significant pointers I find noticeable from the BSP’s spectacular victory in Uttar Pradesh assembly elections. One is that the party’s victory based on its appeal to caste identities should not be confused with the general discomfort of the elite (including me) with the election campaign based on appeal to caste and religious identities. I have argued in my earlier post why there is a dire need to fill a serious lacuna in the RPA. My concern was not to restrict the kind of electoral strategy successfully adopted by the BSP. Kanchan Chandra’s article in Indian Express today succinctly sums up this strategy. It is inclusive, and not divisive; therefore, such appeals are welcome, as it brings to the mainstream hitherto marginalized groups from the political process. My concern is rather to restrict such election campaign which encourages caste and religious groups to vote enbloc to this or that party, because the opponent parties cater to other influential castes and religious groups.
The second pointer is somewhat more significant. It has led me to revise my initial enthusiasm for the Proportional Representation, or at least to look at it with some skepticism. I had earlier argued on this blog in favour of PR and Mr.Arun Thiruvengadam had expressed his misgivings. I went through his response again, and the link which he had provided then is instructive. The relevant link for my earlier post on PR is here.
If anything, Mayawati’s victory in U.P. signifies the miracle of the first-past-the-post system. The BSP would not have secured 206 seats to form a Government on its own had there been PR. PR would have given the BSP just 123 seats in a House of 403 seats, if the voting percentage secured by the BSP (30.45) (as reported in Times of India) is translated into number of seats. The winner-takes-all phenomenon may be inappropriate if we just consider the representative element in a democracy. But for a plural society like ours, where the marginalized groups like Dalits aspire for a larger political role than what they have enjoyed so far, the winner-takes-all phenomenon must be considered as the democracy’s gift for their rising political aspirations. Call it a short-cut to victory, or representation disproportionate to its voting share, this electoral miracle is fully justified, even if it disproportionately reduces the seat-tally of the other groups in society, as compared to their share in the voting percentage.
European analyst Frank Glodek, in a letter to the Central Europe Review, May 2000, noted:
Proportional representation is particularly dangerous in any nation that has suffered from ethnic, ideological or religious divisions, virtually compelling people to vote along these pre-established lines, regardless of whether they know it to be destructive and of their preference to do otherwise. Not even a five percent vote threshold for a party to hold seats in parliament is a barrier to these voting patterns and their negative impact.
Why? When you have proportional representation, you must assume the ‘others’ will vote ethnically, putting you at risk. The only way to protect yourself is by doing the same…
A proportional representation system can never unite so many diverse nations and peoples effectively, as it is inherently and unavoidably biased toward extremism, instability, immoderation and ineffectiveness. … People forget that the United States was, from the outset, a multi-ethnic and multi-religious country."
The winner-takes-all system has been tried and tested. No doubt, it has its shortcomings. But I would be reluctant to suggest its complete replacement by PR just because of its aberrations. Limited trial of PR is fine; but only limited.

The Chief Election Commissioner has told Shekhar Gupta in the Walk the Talk programme on NDTV that he preferred the follow-on election between the winner and the runner-up in those constituencies where the winner secured less than 50 per cent of the votes cast. The President, A.P.J.Abdul Kalam has reportedly favoured the two-party system. Both the views, if accepted, would have deprived the BSP its spectacular victory, and the nation, an interesting surprise. We need surprises like this to make democracy an interesting experiment in this plural society. The reforms suggested would only make it monotonous, introducing an element of predictability in the system, offering little incentive for the subaltern to participate in the electoral process.

U.P. ASSEMBLY ELECTIONS: SOME THOUGHTS ON ELECTION ANALYSIS

Even as the television channels vie with one another to make sense of the electoral outcome in Uttar Pradesh, the hypocrisy of all that goes under the label 'election analysis' is apparent. The Election Law makes it a corrupt practice and an offence for a candidate to seek votes on the basis of an appeal to a voter's religion or caste. But just look at what the pundits are saying on the channels. They explain why the Muslim voters voted the way they did, or a Brahmin or Dalit voter, for instance, voted whom and why - to drive home the point that voters vote according to their perception of who would serve their caste/community interests better. While offering this punditry, they don't offer us any proof or data to sustain their claim - whether it is Yogendra Yadav, or Prannoy Roy. Only the other day, during the campaign, Prannoy Roy was grilling a BJP leader why the BJP campaign in the elections has been blatantly communal, as witnessed by him, while listening to the speeches of second-line leaders. Now, if the pundits could explain the voter behaviour in terms of religion and caste, what great objection could be there if candidates appeal to voters' religion and caste either overtly or covertly. If election law bars only overt appeal by candidates, and if the pundits could continue their sophisticated analysis unhindered suggesting motives to voters and candidates, can there be a greater hypocrisy than this? Well, it is possible to suggest that the media pundits are only explaining a reality. Fair enough. But why the candidates are barred from campaigning openly on the basis of this reality? Is our democracy not open and transparent enough - at least from the point of our electoral laws? Or is it the assumption of our election laws that the voters are generally swayed by the appeals to caste and community, and therefore, it is necessary that the voters overcome such prejudices, and exercise vote in a free and fair manner? Does it not follow that there is an implicit assumption that the Indian voters are really immature - which is not the case in reality. Many post-election analysts have also shown that voters had voted beyond such narrow appeals attempted by parties and candidates.

Update: Is there an inconsistency between the bar of the election law on appeals on the basis of religion and caste, and the reality? My quick research suggests that the Representation of Peoples’ Act, 1951 bars only appeals to voters on the basis of the candidates’ religion or caste; that is, a candidate cannot ask the voters to either vote him because of his religion or caste, or refrain from voting the other candidate because of the other candidate’s religion or caste. (Section 123 (3) as interpreted by the Supreme Court). However, if a party or candidate runs a campaign appealing to the voters on the basis of voters’ religion or caste, it is not a corrupt practice under the R.P. Act. The Supreme Court had an opportunity to examine this issue in Narayan Singh v. Sunderlal Patwa (2003 9 SCC 300), but referred the matter to larger Bench of seven Judges, which is yet to be constituted. Considering this, there is considerable scope for a serious academic to examine whether the campaign speeches of various party leaders in the election in U.P. violated the R.P.Act, or short of violating, in view of the apparent lacuna in the Act, actually influenced the voters’ choice because of their communal or caste overtones. I wonder why the so-called secular parties, who have been critical of Justice J.S.Verma’s judgment on campaign use of Hindutva (justifying it as a way of life rather than as a corrupt practice) (Ramesh Yeshwant Prabhoo case (1996 1 SCC 130), have not even considered the need to amend the Act to fill this lacuna.

E.C.'s Symbols Order, the BJP and the turmoil in the DMK

The Election Commission is in a self-congratulatory mode, after the “successful” and “peaceful” conclusion of Uttar Pradesh assembly elections. The Chief Election Commissioner is now in the limelight giving interviews to the media one after the other on how he managed the assembly elections in U.P. If today’s editorial in Deccan Herald admires the way the E.C. has held peaceful elections in the State, the interview in Tribune quotes the CEC as suggesting that there is need to fix ceiling of parties’ expenditure too in the election campaign, as the candidates are prone to disown their expenditure as that of the parties’, in order to evade the ceiling on their expenditure. The E.C.’s helplessness in this regard, despite the reservoir of powers under Article 324, is clear to any observer.
Far more disturbing, however, are the reports that some parties indulged in campaign blatantly on communal lines, thus violating election law with impunity. Doubtless, our election law distinguishes corrupt practice from electoral offence, the remedy for the former invariably being invoked after the conclusion of elections in a High Court. The remedy for the latter too is a lengthy process, depending on the pace of investigations etc., even though the aggrieved need not wait for the conclusion of elections. The Election Commission appeared to be bristling with activity when it decided to hear the matter involving the BJP’s use of a CD with communal overtones during the campaign. Even though the non-BJP parties made a determined bid to seek derecognition of the BJP under the Symbols Order for this alleged violation of model code of conduct, the E.C. has preferred to wait and watch the party’s response to its interim directions to it ( asking it to condemn the CD etc.) and also the progress of the investigation to determine whether the party’s senior leaders were involved in this. The E.C.'s relevant press note is here.
While the E.C. should be reasonably fair and non-partisan while exercising its powers under the Symbols Order, it needs to ask itself why it has not been able to effectively use its powers under Paragraph 16A of the Symbols Order, 1968. This provision, inserted by the then CEC, T.N.Seshan, through a notification in 1994, enables the Commission to suspend or withdraw recognition of a recognized political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission. It is enough that the Commission “is satisfied on information in its possession” to invoke this section against a party. Yet, the E.C. has used this only once, when it directed all political parties to hold organizational elections periodically, or face derecognition in 1996. Ensuring a clean election campaign is part of the E.C.’s mandate to hold free and fair elections. But looking at the manner the E.C. has dealt with redressal of complaints under Paragraph 16A, it appears to be a toothless provision.

Update: It may be far-fetched to hold that the E.C.'s intervention/lack of intervention has led to turmoil in a political party. But the ongoing turmoil in the DMK, which has led to the unfortunate events in Madurai, may perhaps be traced to the E.C.'s insufficient intervention under Paragraph 16A of the Symbols Order in 1996 to ensure inner-party democracy in political parties. The E.C. regularly updates its website with information on organisational elections held by the politial parties, and when they are due etc. The E.C.'s 1996 directive stems from the fact that every political party seeking registration has to give an undertaking that it would, inter alia, uphold the principles of democracy. The E.C. interpreted it to mean that the party constitution makes adequate provisions for inner-party democracy and various organisational bodies of the party are constituted on the basis of periodic elections. Indeed, one of the already registered parties, Shiv Sena, was forced to amend its party constitution which earlier provided that Bal Thackeray shall be its supreme leader for life and all powers to run the affairs of the party shall be vested in him. But it is naive to believe that the E.C.'s intervention has had the desired effect. It is obvious that the inner-party democracy which the E.C. seems to have ensured through Paragraph 16-A is nothing but a farce. Most political parties are centered around individuals, who desire to pass on the leadership legacy to their family members - whether it is DMK, Shiv Sena, or Samajwadi Party. Holding periodical organisational elections alone cannot guarantee inner party democracy. What Shiv Sena had blatantly done, before amending its party constitution, all parties are following the similar trend, using periodical party elections as a sham to satisfy the E.C.'s requirements. Needless to say , the E.C. has to lift the veil to ensure that leadership changes do occur within political parties at all levels over a reasonable period of time. If it finds this not feasible within its powers, it should make a suitable recommendation to the Government.

Presidents and conventions: History revisited

In my last post, I suggested that the long string of precedents after Rajendra Prasad’s second term as President, limiting the terms of Prasad’s successors to one, cannot be called a convention, because there has been no agreement on this across the political spectrum, and there is no good reason for the same. Still, I was intrigued by two questions. 1. Why and how Rajendra Prasad secured a second term in 1957? 2. Why did not Dr.Radhakrishnan get a second term in office in 1967? While Austin suggested that it was not clear what was the convention, there is reason to believe that Jawaharlal Nehru wanted to create a convention of limiting the term of the President to one. In 1957, Jawaharlal Nehru desired that the then Vice-President, Dr.Radhakrishnan succeeded Prasad as President. S.Gopal’s biography of Radhakrishnan cites the relevant correspondence to suggest that Prasad first wrote to Nehru in January 1955 indicating that he would like to retire as he had completed five years in office. Nehru replied to him to hang on till 1957, making no request to continue beyond his current term. So, Nehru took Prasad for granted, and did not conceal his expectation and desire that Radhakrishnan would succeed Prasad, whom he had found stuffy and slow-going, in Bagehot’s phrase a ‘consecrated obstruction’. In December 1956, when Nehru was in Washington, a concerted chorus in the press that it had been practically decided to invite Prasad to continue in office and that he had agreed was built up thanks to the then Education Minister, Abul Kalam Azad, who was uncomfortable with Dr.Radhakrishnan. Nehru’s clarification that he had not thought about the issue could not smother discussion. On March 23, 1957, Nehru discussed with Prasad as an old colleague, and urged the need for healthy convention. Prasad heard him out in silence, and made no commitment. A signature campaign was then started in support of Prasad among the MPs. In the six-member Congress Parliamentary Board which met in March 1957, Nehru was virtually isolated. Morarji Desai, the other CPB member, who, like Nehru, wished to back Dr.Radhakrishnan, was too ill to attend the CPB. Azad, another CPB Member managed to influence the remaining three fence-sitters, Jagjivan Ram, G.V.Pant and U.N.Dhebar (the then President of Congress) in the CPB in favour of Prasad’s continuance. Nehru, accepting defeat, ruefully commented: “What weight do I carry with the Parliamentary Board?’ Later, Nehru wrote a apologetic personal letter to Dr.Radhakrishnan stating: “in the circumstances as now existing …it would be difficult and unwise to lay stress on the convention we would like to develop. And so, they (many of Nehru’s colleagues) felt that in the wider interests of the country, in the balance, they should agree to the President standing again for election. If a year or more ago we had been wise enough to lay down this convention, it would have been easy now. But personal equations have arisen now, and have an important influence.”
But was there a good reason for this desirable convention? Nehru spoke out against the same persons continuing in places of high responsibility. But he himself was not averse to have three terms as Prime Minister (even though the posts of President and the PM are not strictly comparable). Dr.Radhakrishnan offered to quit as the Vice-President, to set up the convention that posts of honour should not be held for more than one term. And he did offer a good reason: “Removal of the unfortunate impression that men in high places do not voluntarily retire was in the larger interests of a young democracy”. But it was another matter that the CPB did not let Radhakrishnan quit, if only because it would show up Prasad in such a poor light. In 1967, Radhakrishnan was emerging as the only person acceptable to both the Congress and the Opposition for a second term. But he was determined to depart, and left several hints. S.Gopal says Indira Gandhi was not so keen to retain Radhakrishnan as to consider withdrawing her support to Zakir Husain, then Vice-President. Gopal says: Had the Congress at this time announced its choice of Radhakrishnan for a second term, all parties and groups in the opposition would have probably also given their assent. But the differences between Kamaraj and Indira Gandhi precluded a quick decision, and provided stray political elements with scope for intrigue. Meanwhile, the Opposition parties sponsored the Chief Justice of India Subba Rao as their candidate, sensing that Indira Gandhi would back Husain. Radhakrishnan still did not back out officially, blinded he was because of his affection for his friend, Kamaraj who promised that he would mobilise support for him. Radhakrishnan announced his withdrawal belatedly, after Subbarao agreed to be the candidate of the Opposition. So, even if there had been a good reason for the convention, it did not clearly evolve, because the participants did not subscribe to it in letter and spirit. (I am grateful to Mr.Arun Thiruvengadam and Mr.Srinivasan for their suggestions and comments on the earlier post, which motivated me to write this.)

Searing critique of an ongoing slum clearance drive in Delhi

Yesterday's edition of the Hindustan Times featured a biting indictment of the slum clearance policies of the Delhi government as well as recent orders issued by the Delhi High Court. Authored by Bela Bhatia of CSDS, Delhi and the noted economist and social activist, Jean Dreze , the piece focuses on an ongoing drive in Sanjay Basti, a squatter settlement in Timarpur, North Delhi. As they point out, the irony of the situation is that the residents of Sanjay Basti have a good case in law, but that will not help them avert their impending fate:

"About two weeks ago, a terse notice appeared on a few walls in Sanjay Basti, a squatter settlement in Timarpur, North Delhi. Posted by the Central Public Works Department (CPWD), it directs the residents to vacate by April 27, or face demolition soon after that. The notice does not explain the purpose of this forcible removal, or specify the area to which the order applies, or mention any relocation plan. Nor does it provide a contact number where further details might be sought — so much for the right to information.

... In common parlance, Sanjay Basti is a ‘slum’ or ‘encroachment’, but these pejorative terms fail to convey the real nature of this settlement. Most of the residents have been there for 20 years or more, and they have had time to transform their humble dwellings into real ‘homes’. Without much help or subsidies, they have made thoughtful use of every inch of space to improve their environment, often by recycling middle-class ‘waste’. Their houses are tidy and functional and, what is more, they have character. In this respect, this ‘slum’ compares favourably with the somewhat dull lower-middle-class quarters across the road, built at considerable public expense. As a form of low-cost urban housing, Sanjay Basti is not doing badly.

... ... ... In principle, Sanjay Basti is well protected from arbitrary demolition under existing policies and laws. The Delhi Laws (Special Provisions) Act, 2006, prohibits any slum demolition for the time being unless the land is required for a “specific public project”, which is conspicuous by its absence in this case. Indeed, persistent enquiries from countless offices failed to uncover any specific reason for the demolition of Sanjay Basti.

Further, the Delhi Master Plan 2021, which has statutory force, declares and mandates a policy of in situ upgradation or relocation as per strict specifications (provided for in the Plan itself) of all slums and “jhuggi-jhopri clusters”, and a continuance of these settlements in the interim. The impending demolition of Sanjay Basti violates this Master Plan as well as the Delhi Laws (Special Provisions) Act, 2006. For good measure, it is also contrary to the slum policy of the Municipal Corporation of Delhi (MCD).

These laws and policies, unfortunately, are being overridden by reckless High Court orders aimed at ‘cleansing’ the city of settlements of this kind. Indeed, Sanjay Basti is only the latest target in a long series of slum demolitions carried out under pressure from the Delhi High Court and its offshoots — notably the commissioners and monitoring committees appointed to oversee the progress of demolition orders.

These orders are based on the notion that slums are parasitical settlements that tarnish the urban environment. They overlook the fact that slums serve an essential economic purpose: they provide low-cost housing to masses of workers who ‘service’ the city, and for whom no provision has been made in urban development planning. For many of them, it would be impractical or expensive to commute long distances from the outskirts of the city. For instance, street vendors and roadside workers (barbers, tea-stall owners, cycle mechanics and so on) need equipment that would be difficult to carry back and forth. Similarly, it is the short distance between work and home that enables many women to work as part-time domestic helpers in the neighbourhood even as they continue to handle child care and other household tasks.

Slum demolition drives also overlook another important fact about squatter settlements in Delhi: they occupy very little space. Indeed, squatter settlements in Delhi cover barely one per cent of the total land area in the city. This point can also be appreciated by examining Google Earth’s high-resolution maps of Delhi. It is a striking fact that slums are virtually invisible on these maps. The reason is that squatter settlements are tucked away in the nooks and crannies of the city, too small to be visible on aerial maps — even detailed maps where single trees can be spotted.

On this one per cent of the total Delhi area live some three million people who keep the informal economy going and for whom no shelter provisions have been made. When the situation is seen in this light, the case for removal looks much weaker than when slums are regarded as an eyesore and a nuisance. Would it really be unwise to allocate one per cent of the land for in situ improvement of existing slums, and spare the trauma of forced eviction to millions of people, except possibly when essential public purposes are at stake?"

Hopefully, the Op-Ed will serve its desired purpose of getting the authorities involved to at least ensure that they comply with the requirements of existing law before proceeding to act. This particular instance also draws attention to the trend of cases highlighted by the recent editorial of the EPW which should lead to a close examination of the changing nature of PIL in India, and a proper assessment of its impact. (click here to link to the post which discusses this issue and also contains the link to the editorial).

A critique of the Maintenance of Parents Bill 2007

On Saturday, the Indian Express carried a critique of the UPA government's Maintenance and Welfare of Parents and Senior Citizens Bill 2007, which was introduced in the Lok Sabha in March. M. R. Madhavan, who works with the PRS Legislative Research at the Centre for Policy Research focuses on larger policy problems with the Bill, while also zeroing in on specific provisions that arouse his concern:

"The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007, which was introduced in Lok Sabha in March, aims “to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto.” While it is difficult to contest the objective of ensuring a comfortable life for senior citizens, a number of provisions in the Bill may not be easy to implement.

The Bill neatly sidesteps the directive in the Constitution (Article 41), which directs the state to provide public assistance in cases of old age. The Bill does state that, “The state government may establish and maintain such number of old age homes at accessible places, as it may deem necessary, in a phased manner, beginning with at least one in each district to accommodate in such homes a minimum of one hundred fifty senior citizens who are indigent”. Note the use of “may” instead of “shall” — there is no obligation on the state governments to establish these. Even without this clause, there was never any prohibition on them from providing old age homes. Also, one wonders why a Bill should specify details such as the minimum size of an old age home.

Instead, the Bill places the obligation of maintaining a senior citizen on his or her children, grandchildren or any legal heirs. The process and amount differs from the existing provision in the Code of Criminal Procedure (Section 125), under which a first class magistrate may order a person to provide a monthly maintenance to his parents (or wife, including divorced wife or children), limited to Rs 500.

The Bill provides that the children of a senior citizen have the obligation to maintain a senior citizen to the extent that he “may lead a normal life”. In case of a childless senior citizen, the obligation is on a relative who is in possession of the senior citizen’s property or who would inherit his property. The maximum monthly allowance is to be specified by state governments, subject to a limit of Rs 10,000.

Some of the definitions in the Bill are confusing. Senior citizens are defined as “any person being a citizen of India, who has attained the age of sixty years or above and includes parent whether or not a senior citizen”. This implies that every parent, including those below sixty years of age, would be considered a “senior citizen”. Relative “means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death.” How does one determine who would inherit the property? Does this mean that the senior citizen has to reveal the contents of his will, and does not have the freedom to change it later? If he is allowed to change his will, consider the case of the person who is initially named in the will, forced to provide a maintenance, and who finds on the death of the senior citizen that there is another will that disinherits him.

So what does a senior citizen do if he wants maintenance? He applies to the ‘Maintenance Tribunal’. The application may also be made by any other person or organisation authorised by him. However, the Bill clarifies that such an “organisation” means “any voluntary organisation registered under the Societies Registration Act, 1860, or any other law for the time being in force”. It seems to ignore the fact that the Societies Registration Act does not define “voluntary organisation”.

One might be tempted to believe that the purpose of permitting such organisations is to assist a senior citizen. However, the Bill makes it clear that “no party to a proceeding before a tribunal or appellate tribunal shall be represented by a legal practitioner”. That is, one may not use the services of a legally qualified person in obtaining one’s legal entitlements under this law.

Regarding the maintenance tribunal, the Bill states that “the state government may... constitute for each sub-division one or more tribunals... The tribunal shall be presided over by an officer not below the rank of sub-divisional officer of a state”. There are two points to note here. First, the use of “may”, leaving the state governments the option of not forming such tribunals. Second, the job is entrusted to the SDO, who has a number of other responsibilities.

To conclude, one is not arguing against the idea of providing a safety net for senior citizens. The point is that any law that provides for such a net should be implementable. Other than the various loopholes discussed, the big issue is whether parents would take their children to the tribunal, given various social pressures. A better approach may be to design a social security system, including financial products such as pension schemes and reverse mortgages that enable the elderly to live a dignified life."

This is a powerful critique of the Bill, which is scheduled to be debated during the current session of Parliament. To my mind, there is only one existing precedent for such a law, which is the Singaporean Maintenance of Parents Act. Significantly, that law is backed by governmental programmes of pension, healthcare and other forms of support for the elderly, which adds weight to Madhavan's core argument. Hopefully, these issues will be aired during the Parliamentary debates on this law.

President's second term: The Myth of conventions

In his well-argued piece in The Hindu, Mr.Harish Khare elaborates that there has been a convention to deny a second term to the President, and that this ought to apply to the incumbent President, A.P.J.Abdul Kalam, whose term expires in July. With due respect to Mr.Khare, I feel he is mixing up a precedent with a convention. This precedent was set and followed subsequently because of extraneous factors, and not because of any inherent merit in restricting a President to a single term. Mere precedents do not make a convention. For precedents to qualify as a convention, two more questions need to be asked. They are, as Sir Ivor Jennings says, did the actors in the precedents believe that they were bound by a rule; and whether there is a good reason for the rule. A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless the persons concerned regard themselves to be bound by it.

According to Mr.Khare’s own analysis, no incumbent President believed that there was a binding convention not to seek a second term. Even political parties had no consistent belief – if the BJP’s position is taken as an example. If his description of how the no-second term precedent came to be established is any guide, it clearly shows that Radhakrishnan was denied a second term only because of intra-party dynamics within the Congress, and not because of an informal agreement among all political players that it was desirable to restrict each President to a single term. Again, Fakruddin Ali Ahmed succeeded V.V.Giri, not because a second term to Giri was undesirable due to some reason, or that the Congress took a principled position on this, which was endorsed by all opposition parties. Successively, incumbent Presidents were denied a second term by political parties, not because of any inherent agreement among them, but because it did not suit the dominant political formation. A second term for K.R.Narayanan would have suited the Left and the Congress, but not the BJP. Therefore, the BJP used the argument of convention as a ruse to deny him a second term. A second term for A.P.J.Abdul Kalam appears to suit the BJP, probably because, he appears to be a lesser risk than any other candidate of the UPA-Left alliance.
The convention of no second term to any President is a myth, because there is no shared belief among the political parties that they are bound by this rule, and secondly, there appears to be no good reason for the so-called convention. There is a whole-string of precedents after Rajendra Prasad’s second term, but without good reason. Mr.Khare’s inability to cite a good reason for the convention, appears to be a gap in his otherwise, well-researched article.
Whether President Kalam deserves a second term or not must be based on his performance in his first term, and not because there exists this so-called convention.

Update: I found from Granville Austin's The Indian Constitution: Cornerstone of a Nation, the following which may be of interest: The Drafting Committee adopted a provision designed to limit presidential power by preventing the head of state from serving more than two terms in office. This article was taken word for word by B.N.Rau, the eminent member from the Irish Constitution. The C.Assembly adopted this provision in December 1948 without substantial debate. Yet in a version of the Draft Constitution printed on October 28 1949, the restriction of presidential terms to two had been omitted from the Constitution. The number of terms a President could serve was presumably a matter that could be left to convention. Austin calls this as an unpublicized change in the Constitution, which was apparently not debated by the Assembly and it would have been easily forgotten had it not been that fears subsequently arose that convention or conscience might not be enough to cause an incumbent President to relinquish his office. What, in fact was the convention? Austin says no one had made it clear; it appears that the subject had not been discussed.

Contrary to the general impression, Rajendra Prasad, in fact, held three terms: from January 24, 1950 to 1952, when he was elected President under the normal working of the Constitution. In 1950, he was elected President of India by the Constituent Assembly. He declined to step down in favour of Radhakrishnan, Vice-President as expected by Nehru in 1957. By 1960, the question was whether Prasad would seek a third term (that is fourth term, if one includes the pre-1952 term). Bhupesh Gupta, a Communist MP moved an amendment to the Constitution in April 1961 restricting a President to two terms, an effort that came to naught. Later Prasad himself cleared the air in the autumn of the year by announcing that he would not run. Austin alludes that the fear was that Prasad might violate an incipient convention, that is, not seeking reelection beyond two full terms (if one excludes the pre-1952 tenure). Thus, it appears, we can say there was a convention that a President should not seek reelection beyond two successive terms.

The EPW's suggestions for resolving the Mandal II Impasse

A recent issue of Outlook magazine had this interesting piece, which asserted that the EPW's influence on governmental policy-making is considerable. If true, this probably explains why EPW editorials, more than other newspapers, adopt a tone which presume that their views will be considered if not directly acted upon.

In its issue dated April 28-May 04, the EPW 's editorial titled 'Stay the Course' (pun very much intended) has some harsh words to say about the UPA government's handling of the issue of OBC quotas:

"Indeed, so distant is the government from statesmanship that it seems unable to prevail even on an issue supported by all political parties! But the government’s discomfiture is not the point. The real tragedy is that a just cause is being made to look like petty politics. "

The editorial then sets out EPW's position on the issue, providing cites to previously published articles and articulating the background rationale for its stand:

"Over the past year, this journal has been part of the significant strand of national opinion that supports OBC reservations in higher education as a progressive step that is long overdue (‘Merits of Mandal II’, April 15, 2006). We have highlighted the urgent need for reliable evidence on the social composition of elite higher education; the challenges posed by internally differentiated aggregative categories like the OBCs; the imperative of engaging with crucial yet unexamined concepts like merit; and, finally, the need to design affirmative action programmes adapted to the specificities of higher and professional education. We have also expressed our deep disappointment with the Moily Committee (‘Myopic Oversight’, November 4, 2006) for having squandered an invaluable opportunity to provide alternative views on the creamy layer and other critical issues.

The latest setbacks are no doubt the price paid for its inexplicable silences. In its eagerness to save face in the procedural battle over the Supreme Court’s stay order, the government risks losing the larger ideological war over social justice. Even if the special bench constituted by the chief justice of India were to offer it some relief on May 8, this will not undo the damage that the government’s case has already suffered in the eyes of public opinion. Repairing this damage is not easy, particularly since the urban middle classes are a biased “public”, being largely upper caste and devout believers of simplistic notions of merit."

The editorial then lays out its suggestions for what should now be done by the government:

"[A] damage control exercise [should] be initiated that seeks to strengthen the weakest aspects of the government’s case, namely, its inability to adequately address the key issues of evidence and merit. The government must demonstrate its commitment to the collection of reliable nation-wide data on social inequality and backwardness by forming an expert group for this purpose. This would reassure the courts and end the hypocrisy of an establishment that blocks the collection of such data while simultaneously using its absence to question policies of reservation. The group could include social scientists and members of the statistical bureaucracy, along the lines of similar groups on poverty or unemployment. The time to prepare for the Census of 2011 is already here, and the blunder of 2001 – when pleas to include caste were resolutely ignored by the National Democratic Alliance government – must not be repeated.

In a parallel move, another expert committee must be set up to design context-specific affirmative action policies for elite higher educational institutions. To ensure adequate authority and autonomy, this group must be constituted by the prime minister’s office along the lines of the Sachar Committee. The committee would ascertain the social composition of higher education, examine the meanings and measures of merit, and devise detailed plans for introducing reservations without compromising standards.

Since its findings will interest the courts, the committee must include an eminent jurist, along with responsible academics sympathetic to the cause of reservations. Among the biggest obstacles to reliable research in this area are the educational establishments themselves, which have generally denied access to relevant data. This cannot continue, and access must be ensured.

The main task of this committee will be to clarify the widespread confusion between claims based on absolute benchmarks of competence and those based on relative ranking. Once the necessary absolute benchmarks are met, can relative ranking be combined with other relevant criteria to regulate entry? What ethical-legal implications follow? Will standards suffer even if entry and exit benchmarks remain uniform? Such measures will harness the expertise of the intelligentsia, exploit the professional affinity for questions of evidence that it shares with the judiciary, and circumvent the latter’s allergy to the legislature. Above all, they will inject some credibility into a campaign strangely lacking in conviction. They may even decide whether the UPA government stays the course in the fight for social justice, or allows its course to be stayed."

Given how much this issue has provoked debate on this blog, I wonder how both contributors and readers will react to these suggestions.

President Kalam's tenure: An unexplored episode

President A.P.J.Abdul Kalam finds himself in the midst of a debate whether he should seek a second term in office. I was one among those who was unhappy with the then NDA Government for having reduced Rashtrapati Bhavan as an award for a person’s outstanding accomplishment in science in 2002. Many were critical of the choice because President Kalam was the first President without a political or legal background, and without even a stint as Vice-President; therefore, there were genuine doubts about his suitability for the high office. As his term comes to a close this July, it is perhaps time to look back, and examine whether the skeptics including me were correct. I must acknowledge that Kalam –as the Constitutional head - not only brought freshness of approach to politics, but proved to the skeptics that his non-political and non-legal background could actually be assets in breaking with the past baggage of Rashtrapati Bhavan. Here, I intend to deal with just one episode, though there are a few firsts with which he must be credited with including, for instance, the first time use of Article 111, when he returned the Office of Profit Bill to Parliament for reconsideration. On the question of dissolution of Bihar assembly which invited the Supreme Court’s strictures, I felt his office had reasonable arguments why he could not have returned the recommendation for reconsideration of the Cabinet without any material or ground to his knowledge at that time.
The event which interested me most, however, was his acceptance of the then Prime Minister, Atal Behari Vajpayee’s recommendation to dissolve the Lok Sabha six months prior to completion of its tenure in February 2004. Not many knew that Kalam did not accept the recommendation immediately. He mulled over it, consulted the then Attorney-General, Soli Sorabjee, went through the materials, including the Supreme Court’s judgments concerning the President’s powers sent to him by Sorabjee, before making up his mind. No other President prior to him had taken this responsibility more seriously than him. Yet, contemporary history seems to have deprived him his due place, probably because of the wrong legal advice tendered to him. The media too blacked out this episode as of no interest, or consequence, even though I had sought to bring the details into the public domain during the Lok Sabha elections.
President Kalam’s query to Vajpayee was whether he should resign, following the recommendation to prematurely dissolve the Lok Sabha. The question, on the face of it, appeared innocuous, as well as naïve. Perplexed, Vajpayee promised Kalam that he would get back on this issue. Why should Vajpayee resign, when he enjoyed majority in the Lok Sabha, was the response of Kalam’s critics in the NDA and within the legal community. If he resigned, then it would be an invitation for attempts to form an alternative Government, and the dissolution recommendation would not be binding on the President, so went another argument. Others including the Law Minister, Arun Jaitley argued that if the Prime Minister who enjoyed a majority in the Lok Sabha had given the dissolution recommendation, then it is binding on the President, and the Prime Minister, who still enjoyed majority support in the dissolved Lok Sabha, need not resign.
Unconvinced with this informal advice from the Government, President Kalam sought a specific legal opinion from the AG. The opinion he sought was clear and unambiguous: whether as President, he was bound by Vajpayee’s advice to dissolve the Lok Sabha. The opinion he sought was much more specific and embarrassing to the then Government than the one he posed to Vajpayee whether he should resign, following the submission of dissolution-recommendation. AG not only confirmed to me the President’s official request –in writing to him– but to another legal journalist, Mr.Manoj Mitta, whom I sounded. (He later wrote an edit page article in Indian Express on this.) Our inference at that time was that a President would seek such an opinion whether he was “bound” by the advice, only when he wanted to reject it. Rashtrapathi Bhavan sources, however, had a different story at that time: That Kalam, being a scientist, has always posed several questions and sought answers, before he took any decision. Therefore, too much should not be read in the opinion he sought from the AG. Whatever the truth, from Sorabjee’s own account of the episode – he not only gave a written and oral advice, but cited a few Supreme Court’s judgments, with enough reading material for Kalam to read and understand himself, that he was “bound” by the advice – it is clear that Kalam had taken his decision very seriously, rather than mechanically endorse the Government’s recommendation as his predecessors would have done. ( I have my reservations on whether President K.R.Narayanan must have done more than what he did, during the shameful Gujarat pogrom of 2002. He must have done more, brought much more pressure on the Government of the day, to get the State Government dismissed, and impose President’s rule. But this would require a separate post to elaborate)
Sorabjee referred to the Supreme Court’s judgment in the U.N.R.Rao v.Indira Gandhi case (AIR 1971 SC 1002), to underscore the legal basis for the argument that the Council of Ministers need not resign along with the Cabinet’s advice to the President to dissolve the Lok Sabha. However, this judgment was not relevant in satisfying the President. U.N.R.Rao had appealed in the Supreme Court against the Madras High Court’s judgment rejecting his plea to declare that Indira Gandhi, after the dissolution of the Fourth Lok Sabha had no constitutional authority to hold office of and to function as Prime Minister. His contention was that under the Constitution as soon as the Lok Sabha was dissolved, the Council of Ministers ceased to hold office, as Article 75(3) provides that “the Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha)”. Once the Lok Sabha was dissolved under Article 85(2), he argued that it would not be possible for the Council of Ministers to be responsible to the Lower House. In that event, he suggested that the President could exercise the Executive Power of the Union either directly or through officers subordinate to him as provided in Article 53(1) of the Constitution.
The Supreme Court, rejecting Rao’s appeal, held that Article 74(1) – which says “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions’ – is mandatory, and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. However, Article 75(3) must be read as meaning that it applies only when the Lok Sabha does not stand dissolved or prorogued, the court ruled. It is obvious that this judgment was not relevant in answering Kalam’s query to the Prime Minister. Kalam wanted to know whether the Prime Minister should resign and continue as the caretaker prime minister, and not whether the President himself could run the affairs of the Government without the aid and advice of the Council of Ministers. Although Indira Gandhi’s Government did not resign along with the dissolution of the Lok Sabha in 1970 and 1977, it is reasonable to suggest that the President, on both the occasions, was prima facie satisfied –along with the rest of the nation - about the bona fide ( in ital.) reasons for the dissolutions, and did not simply accept the Cabinet recommendation because her Government enjoyed majority support in the Lok Sabha. On December 27, 1970, when the President, V.V.Giri dissolved the Fourth Lok Sabha on the recommendation of the Council of Ministers, Prime Minister Indira Gandhi, told the nation in a broadcast that a new election was necessary, a year ahead of schedule, because “we are concerned not merely with remaining in power, but with using that power to ensure a better life for the vast majority of our people and to satisfy their aspirations for a just social order. In the present situation, we feel we cannot go ahead with our proclaimed programme and keep our pledges to our people….Time will not wait for us. The millions who demand food, shelter and jobs are pressing for action. Power in a democracy resides with people. That is why we have decided to go to our people and to seek a fresh mandate from them.”
What seemed to have influenced Indira Gandhi’s timing of elections was a Supreme Court verdict, delivered only 12 days earlier, invalidating the presidential proclamation that had abolished privy purses of the princes by derecognising the former rulers. This judgment, coming on top of the earlier ones throwing out a succession of laws concerning bank nationalisation, led to intense criticism among Indira Gandhi’s supporters that the higher judiciary, determined to protect private property and vested interests, had become an obstacle to social justice, and therefore, there was need to muster enough support in Parliament to overcome the judicial hurdle to progressive legislation. By contrast, India under Vajpayee was purportedly shining and feeling good, and the ruling combine was enjoying a comfortable majority in the Lok Sabha to enact any legislation it wanted. Vajpayee made no effort to take the nation into confidence about his compulsions for dissolution, as Indira Gandhi did in 1970.
The dissolution of Fifth Lok Sabha –whose tenure was extended by a year -in 1977, prelude to holding of general elections, was necessitated to lift the Internal Emergency, proclaimed in 1975, and to revive democracy. As such there was sufficient bona fide ( in ital.) reason to justify dissolution. Indeed, the Constitution makers intended no distinction between Governments enjoying majority support in the Lok Sabha and the ones which have seemingly lost it, while discussing the draft Article in the Constitution dealing with the President’s power to dissolve the Lok Sabha. It is instructive to go through the relevant debates in the Constituent Assembly when it discussed draft Article 69 (corresponding to Article 85 of the Constitution of India, dealing with the President’s power to summon, prorogue and dissolve the Lok Sabha) on May 18, 1949. Moving an amendment, an eminent member of the assembly, Professor K.T.Shah suggested the following addition to the Article: “on the advice of the Prime Minister, if such dissolution is earlier than the completion of the normal term as provided in section 68(2); provided that the reasons given by the Prime Minister for such dissolution shall be recorded in writing.” B.R.Ambedkar, while rejecting Shah’s amendment, said: “If the object of Prof.K.T.Shah is that the Prime Minister should not arbitrarily ask for dissolution, I think that object would be served if the convention regarding dissolution was properly observed.” Ambedkar pointed out, citing the British convention, that the King was not necessarily bound to accept the advice of the Prime Minister who wanted a dissolution of Parliament.
He explained: “the President of the Indian Union will test the feelings of the House whether the House agrees that there should be dissolution or the affairs should be carried on with some other leader without dissolution. If he finds that the feeling was that there was no other alternative except dissolution, he would as a Constitutional President undoubtedly accept the advice of the Prime Minister to dissolve the House.”. Ambedkar added after rejecting Shah’s proposal for a written request from the Prime Minister: “There are other ways for the President to test the feeling of the House and to find out whether the Prime Minister was asking for dissolution of the House for bona fide ( in ital.) reasons or for purely party purposes. I think we could trust the President to make a correct decision between the party leaders and the House as a whole.” It is thus open to history to judge whether President Kalam erred in accepting the Cabinet advice to dissolve the 13th Lok Sabha in the face of clear indications that the Government was doing so to favour the ruling party and in the absence of any clear explanation from the Prime Minister stating the bona fide ( in ital.) reasons for dissolution.
In his advice to the President, Soli Sorabjee had referred to the Supreme Court’s Constitution Bench judgment in the Samsher Singh v State of Punjab (AIR 1974 SC 2192) case to drive home the point that he was bound by the Council of Ministers’s advice to him. Here, I am giving below the relevant paragraph in Justice Krishna Iyer’s concurrent Judgment in that case to suggest why Sorabjee might well be wrong. (Paragraph 156)
“We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the Constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory.”
Even as per Samsher Singh, Kalam must have been well within his powers to refuse a dissolution in 2004, because, Vajpayee’s recommendation was not accompanied by the obligatory appeal to the country, or to the House, explaining the rationale for premature dissolution.