Continuing the discussion on "undue influence"

I want to begin by thanking V. Venkatesan for his prompt and detailed response to my comment and for setting out the facts and decision in the Shiv Kripal Singh case, as well as the provisions of law that are directly relevant, in the previous post. While I understand the argument now, I am still not convinced that the case is a direct precedent for the Patil imbroglio.

Before getting to the main issue of 'undue influence,' it is important to understand the Congress' response to the allegations against Ms Patil so far. Mr. Venkatesan is right to correct me by pointing out that there have in fact been responses by the Congress to the allegations. Shekhar Gupta has a column in the Express today, where he discusses these responses at some length. Relying on his account, here are the responses so far:

"What are the various arguments the Congress is putting forward in Pratibha Patil’s defence? That she is not to be blamed for loan defaults by her sugar mill because the entire sugar sector has seen a slump anyway. Second, that she is not to be blamed for all the shenanigans in the bank founded by her, and named after her, because, barring a small period, she did not have a formal position in its top management. And third, and probably the most honest of all, that all the charges thrown at her could be thrown at any other Maharashtra politician anyway because each one of them owns three things, a co-operative bank, a sugar mill and a bunch of colleges, and finally, that each one of these businesses lends itself to controversies."

One can debate whether these amount to substantive responses, but what is more significant is that the Congress is not denying these facts, but seeking to explain them away. There lies the first important distinction between this and the Shiv Kripal Singh case, where the Court found the allegations against Mr. Sanjiva Reddy to be "fictitious" and completely without basis.

As Gupta explains, given the reality, it seems highly likely that Ms. Patil will become our next President, which makes the scenario of an election dispute where she alleges 'undue influence' highly unlikely. Even if this were to somehow transpire, I think there are important reasons why the Court will not hold in her favour. Apart from the nature of the facts in this case (which have now gone beyond being a smear campaign, given that some of the most damaging allegations have not been disputed), I believe that the Court has given many more rulings since 1969 which would cast this case in a different light. We now have a Right to Information Act(which the Court would like to believe was a direct result of some of its rulings), as well as decisions of the Court which have emphasised the need for close scrutiny of the backgrounds of candidates in elections. Given this recent background, it would be hard for the Court to try and argue that asking legitimate questions about a candidate's background (especially when this is in the context of the highest office in the nation) amount to 'undue influence' in relation to the voters in the electoral college.

My present position is still dictated more by gut instinct than by a close examination of the applicable law and precedents (including the Shiv Kripal case). This discussion will make me focus on those issues, but my initial view is that it would be hard to assail at least the legitimate questions being asked about Ms Patil's past conduct.

Presidential Poll: What is undue influence- Part II

In the light of certain doubts expressed by Mr.Arun Thiruvengadam in the comments section to my previous post, whether it would be wise to restrict the Opposition and the press’ campaign against Ms.Patil, especially as the campaign has brought out the allegations against her in all details (I would say they are still unsubstantiated and unverified, because the Congress has denied them by making contrary claims; it is not correct to say that the Congress has not denied these at all), I am giving below the exerpts from the Shiv Kripal Singh v. V.V.Giri judgment of the Supreme Court’s Constitution Bench on what constitutes undue influence. I am with Arun on his stand that there should be a thorough debate on the backgrounds of Presidential candidates, whether personal or family. But I am doubtful whether the law is helpful to sustain the stand. In 1969, Sanjeeva Reddy faced personal allegations against his character (sex and corruption), which to the Supreme Court seemed obnoxious. Even the argument that the allegations were made by anonymous persons was not enough to convince the Supreme Court which viewed the very dissemination of the defamatory pamphlets against Reddy as exercising undue influence.
EXCERPTS:
The Presidential and Vice-Presidential Elections Act, 1952. was passed to regulate certain matters relating to or connected with elections to the office, inter alia, of the President of India. Part III of the Act deals with disputes regarding elections and Section 18 therein contained lays down the grounds for declaring the election of a returned candidate to be void. The relevant part of the section provides :
If the Supreme Court is of opinion :
(a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate; or
(b) that the result of the election has been materially affected (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance....
the Supreme Court shall declare the election of the returned candidate to be void.
under Section 18, therefore, the election has to be declared to be void if, amongst other things, undue influence has been committed (i) by the returned candidate himself, (ii) by a person with his connivance, or (iii) by any person who is neither the returned candidate nor one having acted wtih his connivance, if the result of the election has been materially affected. Section 18(2) declares that for the purposes of this section the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code.
It is clear that Parliament deliberately made Section 18 stricter than the Representation of the People Act, firstly, by using the words "connivance of the returned candidate" instead of the words "his consent", and secondly, by including undue influence committed even by a stranger, having nothing to do with the returned candidate, as a ground for declaring the election to be void, the only condition in respect of such an act being that it should have materially affected the election. The object of doing so is obvious, namely that Parliament wanted to ensure that in respect of an election for the highest office in the realm the election should be completely free from any improper influence emanating even from a third party with whom the returned candidate had no connection and without any connivance on his part. The only limitation, as aforesaid, placed in Section 18 is that in such a case the expression "free exercise of his electoral right" does not mean that a voter is not to be influenced. This expression has to be read in the context of an election in a democratic society and the candidates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions which are exercising the minds of the electors. This exercise of the right by a candidate or his supporters to canvass support does not interfere or attempt to interfere with the free exercise of the electoral right. What does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, "tyranny over the mind". If the contention of the respondent is to be accepted, it would be quite legitimate on the part of a candidate or his supporter to hypnotise a voter and then send him to vote. At the stage of casting his ballot paper there would be no pressure cast on him because his mind has already been made up for him by the hypnotiser.
The freedom of election is two-fold; (1) freedom in the exercise of judgment. Every voter should be free to exercise his own judgment, in selecting the candidate he believes to be best fitted to represent the constituency; (2) Freedom to go and have the means of going to the poll to give his vote without fear or intimidation.
The statement of Objects and Reasons attached to the bill which ultimately resulted in the enactment of Chapter IXA of IPC explains in clear language that undue influence was intended to mean voluntary interference or attempted interference with the right of any person to stand or not to stand as or withdraw from being a candidate or to vote or refrain from voting, and that the definition covers all threats of injury to person or property and all illegal methods of persuasion, and any interference with the liberty of the candidates or the electors. "The legislature has wisely refrained from defining the forms interference may take. The ingenuity of the human mind is unlimited and perforce the nature of interference must also be unlimited.
47. From a reading of Section 171G it is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity by means of false statements relating to the personal character and conduct of a candidate and made such acts punishable thereunder. But the fact that making of such a false statement is a distinct offence under Section 171G does not and cannot mean that it cannot take the graver form of undue influence punishable under Section 171F. The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the maker or the publisher of such a statement. Therefore, it is the degree of gravity of the allegation which will be the determining factor in deciding whether it falls under Section 171C or Section 171G. If the allegation, though false and relating to a candidate's personal character or conduct, made with the intent to affect the result of an election does not amount to interference or attempt at such interference the offence would be the lesser one. If, on the other hand it amounts to interference or an attempt to interfere it would be the graver offence under Section 171F read with Section 171C.
Whether the publication of this pamphlet can be said to constitute undue influence? We have no doubt that it does fall within that definition. It is not necessary to reproduce the pamphlet in detail as we shall only be giving further publicity to this most objectionable pamphlet. The pamphlet, after giving various fictitious incidents of sexual immorality, describes Shri N. Sanjiva Reddy a debauch without any sense of shame or morality. Then the pamphlet asks : "Should the name of the Congress be lowered to such depths that this moral leper, this depraved man should be set up as the Congress candidate for the highest post?" It further adds : "A senior Congress MP has expressed the fear : If Sanjiva Reddy becomes President he will turn Rashtrapati Bhavan into a harem, a centre of vice and immorality."
54. It seems to us that these allegations are covered under Section 171-C. even if they may be covered under Section 171G. But we are not concerned with Section 171G because that section has not been made a ground for setting aside an election. We are only concerned with Section 171C. Be that as it may, we cannot add another subsection to Section 171C, as follows :
A false statement of fact in relation to the personal character or conduct of any candidate even if made with the intention of interfering with the electoral right shall not be deemed to be interference within the meaning of this section.
55-56. We are accordingly of the opinion that distribution of the pamphlet by post as also distribution in the Central Hall constituted an attempt to interfere with the free exercise of the right to vote within Section 18 of the Act.
There is no evidence whatsoever that there was any intimate connection between Shri V.V. Giri and the alleged distributors. What they were doing in this connection they were doing on their own and Shri Giri cannot be held responsible for their deeds unless, of course, it is established that the result of the election had been materially affected by the distribution of the pamphlet.
On this evidence it is difficult to hold that the petitioners have proved that the publication and distribution of the pamphlet materially affected the result of the election. It only leads to the conclusion that it probably did have some effect but the vast majority of the electors were able to throw off the effect of the pamphlet and vote according to their own personal wish or according to the mandate of their party.
160. There were various other issues exercising the minds of electors, particularly belonging to the Congress party. If in spite of all these factors some were unduly influenced in their thinking, it was for them to come and say so. There was no landslide against Shri Sanjiva Reddy. Two hundred and sixty eight members of Parliament gave him the first preference. Ninety two members of Parliament, who had given first prefrence to Shri C.D. Deshmukh, gave second preference to Shri Sanjiva Reddy. It is, however, true that if 26 more members of Parliament had voted for Shri Sanjiva Reddy, instead of Shri Giri, the former would have been elected.

221. In conclusion we hold that the pamphlet was sent by post. Further, the pamphlet was distributed in the Central Hall of Parliament. This distribution itself constitutes undue influence within Section 18(1)(a) of the Act. It is, however, not proved that this pamphlet was distributed by workers of the respondent, or with the connivance of the returned candidate. We further hold that it has not been proved that the result of the election has been materially affected by the distribution of the pamphlet. The rest of the allegations either do not amount to undue influence or were not proved.
MY VIEW:
The question to be asked in the light of this judgment is whether the campaign against Ms.Patil could be held to be undue influence if she lost the election. Yes, as the law stands today, it can be so held by the Supreme court.
AMENDMENT: The word "connivance" in S.18 of the Act has been amended as "consent" in 1974.

Presidential Poll: what is undue influence?

Ms.Pratibha Patil's candidature has led to intense polarisation of views across the political spectrum, mired as she is in a number of unseemly controversies. Today's Telegraph carries an article by Swapan Dasgupta advising the Congress to withdraw her before the nomination closes tomorrow afternoon, and that by admitting its mistake in not screening her background adequately, the party can only increase its stature in the eyes of the public. Arun Shourie's quickie, distributed by the BJP, claims to document most of the allegations against her.
Another article in Indian Express by Dipankar raises important questions of dilemma for all the parties.
It cannot be correctly and justly contended that Ms.Patil deserves to be a Governor or a Minister, but not the President of the Country in view of the allegations. I do not think that the office of the President is placed on a higher pedestal in our Constitution, as compared to other offices in terms of the qualifications for the President. The allegations against her may indeed be serious. But the allegations are not sufficient to disqualify her from contesting.
The anxiety of those wanting to stop her from reaching Raisina Hill seems to be to avoid the embarrassment of subjecting the First Citizen to investigations and inquiries of the sort that may be required later. It is not easy to dismiss such anxieties.
In the 1997 Presidential elections, the Election Commissioner, G.V.G.Krishnamurty not only published a discussion paper on the effect of whips on the free and fair elections, but went on television, explaining his stand, in the context of the E.C. refusing to take an official stand on the issue. He cited Section 171C of the Indian Penal Code (dealing with undue influence over the free exercise of electoral right) and S.123(2) of RPA, 1951. The term 'whip' according to him, has its origin to the whippers-in-people who keep the hounds in order at fox-hunting meets. Parliamentary whips are supposed to be similar disciplinarians controlling the pack of MPs in their party. The metaphor is borrowed from the hunting field and its Parliamentary application can be traced to Burke who in a debate in the House of Commons described how the King's Ministers had made great efforts to bring their followers together, how they had sent for their friends to the north and to Paris, whipping them in".
Under the Tenth Schedule to the Constitution, any Member defying the whip, invites the penal provisions of the Schedule, that is, disqualification. But it is limited in its operation in that its provisions are attracted only in relation to voting at proceedings inside Parliament and State Legislatures. But the election to the office of President is a non-legislative function performed by Members of Parliament and State Legislatures outside the Parliamentary /legislative proceedings. That is why even the latest press note of the E.C. cites the Supreme Court's judgment in In re: Presidential Election, 1974 (AIR 1974 SC1682 AT 1689) that "The Electoral College as mentioned in Article 54 is independent of the Legislatures mentioned in Art.54. The electoral college compendiously indicates a number of persons, holding the qualifications specified in the Article to constitute the electorate for the election of the President and to act as independent electors. (italics mine) Thus Krishnamurthy said if a member of Parliament or a state legislature defied the whip issued by his or her political party at an election to the office of President, he or she may not attract the penal provisions of the 10th schedule, but the dissenters would render themselves liable to disciplinary action, including expulsion, if the party High Command has 'reliable information' about a Member defying a Whip. Acting as independent electors, would mean, acting without any undue influence from anybody. In the past Presidential elections, a written whip indicating that a voter of an electoral college must vote in favour of a person and should not vote or give a second preference to any other candidate had been issued till 1992. Both in 1997 and 2002 elections, whips were not issued thanks to Krishnamurthy's intervention.
The Whip not only comes within the definition of undue influence but destroys the very concept of voting by proportional representation through single transferable vote, which means preferences are required to be given by the voter.
In the Presidential election, there is no party candidate nominated by the party. There are no symbols. So, there can be no cross-voting at least in the legal sense. There can be no independent candidate, as the BJP has proclaimed the Vice-President, Bhairon Singh Shekhawat as. Although there will be no Whip in this election, as the political parties had agreed not to issue one after 1997, it will be interesting to watch whether the parties seek to exercise undue influence over the electoral college, by other means, in order to circumvent the problem of issuing a overt Whip.
Having said that, I need to point out that the Opposition's campaign against Ms.Patil may equally be construed as bordering on undue influence. In the 1969 Presidential election when Indira Gandhi gave the call for conscience vote, resulting in the election of V.V.Giri, the Supreme Court held in Shiv Kripal Singh v. V.V.Giri (AIR 1970 SC 2097) that there can be undue influence even as the elector goes through the mental process of weighing merits and demerits of candidate and makes his choice. The SC held in that case that a pamphlet which contained some scurrilous allegations against one of the candidates at the election did come within the definition of undue influence as it effected the minds of electors. However, the election of the returned candidate was saved as it could not be proved at the trial that the said pamphlet was published or distributed with the connivance or consent of the returned candidate or it materially affected the result of the election. This defence may not be available to the NDA and friends of Shekhawat, as they are openly campaigning in his favour. An unsubstantiated, and unverified allegation against Ms.Patil, therefore, could mean undue influence. A whip - whether overt or covert - is also repugnant to the principle of secret ballot, a key feature of the Presidential election. It is possible to contend that cross-voting could not be detected and punished by political parties because of secret ballot, and therefore, the fear of undue influence may be misplaced; but this argument misses the point that at the threshold stage itself the elector's independence is sought to be compromised by the party's directive to vote in a particular way. The elector would be reluctant to defy the party whip, (in its absence, a clear signal from the party High Command, which may be express or implied) even if the punishment for its violation may not be all that clear.
UPDATE: In an earlier version of this post, I had suggested that parties had issued Whips in Presidential elections earlier, and in this election also, they will do so. I stand corrected. Parties had stopped issuing Whips since the 1997 Presidential elections, after an all-party agreement, deferring to the intervention of the then Election Commissioner, G.V.G.Krishnamurthy. I have accordingly edited the previous post. I am thankful to Mr.G.V.G.Krishnamurthy, with whom I had the privilege of discussing this issue today, for correcting me with regard to the facts.

Looking Back at Emergency: A Revisionist View

The anniversary of proclamation of Internal Emergency (1975-77) has just passed on June 26. Every year it becomes an occasion to look back on the authoritarian tendencies which marked the Emergency era, to focus on how institutions (including the judiciary) crawled before the then political leadership, when asked to bend, and how India has been fortunate to put an end to that disgraceful era in our history within a short span and return to democratic way of life, an envy of the entire world, not just in the neighbourhood. Even as we celebrate India's democratic resilience in the post-Emergency period, the Emergency's lessons for the Opposition, as well as the institutions should not be glossed over.
Today's article in Tribune by veteran journalist, Inder Malhotra, cites Bipan Chandra's book which equally places the blame for Emergency on Jayprakash Narayan's movement, which gave a call for national disobedience, and defiance of Army. Had the Emergency not been imposed then, it could have resulted in anarchy and widespread lawlessness. True, Indira Gandhi ought to have tried democratic methods to engage the then Opposition, but the question remains, whether she had any choice, given the looming threat to the Republic from the chaotic Opposition, which believed in the least in the Rule of Law, and actively encouraged delegitimisation of institutions by advocating civil disobedience, rather than wait for the holding of periodical elections to unseat Indira Gandhi from power. Here, I am giving the links for the book by Bipan Chandra as well as a critique of the book by Harish Khare in The Hindu. Another review of the same book by Sriram Chaulia is here.

Foreign Direct Investment in India: Issues with Press Note 1

Press Note 1 of 2005 issued by the Ministry of Commerce & Industry, Government of India stipulates that where a foreign entity has an existing joint venture or technology agreement (being that which is in existence on January 12, 2005) in the same field, any further investment into India by such foreign entity cannot be made under the automatic route, and that the foreign partner would have to obtain approval of the Foreign Investment Promotion Board (FIPB). In addition, although Press Note 1 itself does not explicitly state so, the FIPB’s practice is to consider such an application only when it is accompanied by a ‘no-objection’ in writing from the previous domestic joint venture partner.

This results in a favourable situation to domestic businesses whereby, following the break-up of a joint venture, the domestic partner is free to carry on the same business individually, but the foreign partner cannot do so unless it obtains the concurrence of the domestic partner.

An article by D. Murali and C. Ramesh that has appeared in today’s Hindu Business Line carries my views where I have argued that that Press Note 1 ought to be repealed, and set forth reasons for the same.

New Blog Contributor - Dilip

We are very pleased to introduce our newest addition to our community of bloggers, Dilip. Dilip is a physician, trained subsequently as a health care administrator. He has interned in group practice and worked briefly in malpractice insurance before returning to academics where he is currently pursuing a doctorate in basic science research. Apart from his professional activities, he retains a strong interest in politico-legal and social issues as well as public health questions particularly as they pertain to India. He has recently been engaged in discussions on this blog and will continue to contribute on related matters of current interest in India.

Industry Sponsors, Investigators and Their Obligations in Clinical Trials

The New England Journal of Medicine carries in its latest issue (June 28, 2007), an article on the ruling in Abney et. al v. Amgen, Inc. by the Sixth Circuit in March 2006. The ruling, while not particularly controversial, has incited a debate on the responsibilities of pharmaceutical companies sponsoring trials and partaking academic medical centers towards subjects who participate in them.
The case itself is straightforward. The plaintiffs were all Kentucky residents suffering from Parkinson’s disease enrolled in a phase II randomized, double-blind, placebo controlled trial of a synthetic protein called glial cell-line derived neurotropic factor (GDNF) at the University of Kentucky Medical Center in 2003. Amgen, which sponsored this trial, had been trying to develop a safe and effective method of administration of this protein since 1994 and had, a priori, accumulated some supportive data from an open-label study (a kind of study where no control group exists and patients, unlike in a blind study, are aware that they are taking the drug). Amgen, as is customary, executed a clinical-trial agreement with the university to set up the trial and submitted the study protocol to the University’s institutional review board (IRB). Further, as stated in the piece:
“The protocol and consent form stated that at the end of the trial, the subjects "may elect to continue treatment for up to an additional 24 months." The consent form also stated that subjects could be withdrawn from the study if the investigators deemed that the risk to them outweighed the benefits, if they were noncompliant with instructions, or "if the agency funding the study decides to stop the study early for a variety of reasons."
The trial showed disappointing results based on analysis of the primary efficacy end point (percent change in the baseline motor score at 6 months). Though the improvement among those receiving GDNF was slightly greater than among those receiving placebo, the difference did not achieve statistical significance. Nevertheless, Amgen decided to continue the trial, with all 34 subjects receiving open-label GDNF. However, in September 2004, Amgen informed the university that it had decided to stop the trial, citing three concerns. First, neutralizing antibodies that could also attack naturally occurring GDNF had developed in several subjects. Second, brain lesions had been discovered in studies of GDNF in primates. Third, the drug apparently lacked efficacy. Before making its announcement, Amgen consulted with Food and Drug Administration (FDA) officials, who agreed that termination of the study would be reasonable but said the decision was entirely Amgen's.
Many subjects, however, believed that their conditions had improved and wanted to continue receiving GDNF. Amgen met with FDA officials to discuss whether "compassionate use" of GDNF would be appropriate. The FDA granted its permission but gave Amgen discretion to decide whether it would provide the drug.”
The company, after seeking advice of eight outside experts seven of whom had advised it before (to terminate the use of the drug), declined, and the subjects sued, alleging that the termination decision was financially motivated, an allegation that Amgen vehemently disputed. The plaintiffs also questioned the pertinence of the findings of the primates’ study and challenged the view that the antibodies were harmful.
The plaintiffs advanced three legal theories to support their motion for a preliminary injunction. First, they claimed that GDNF is beneficial to them and claimed that Amgen is contractually obligated to supply them with GDNF; second, that Amgen was liable under a theory of promissory estoppel (this legal doctrine proposes that if Person A reneges on a promise on which Person B has reasonably relied, to B's detriment, fairness may require that A make B whole, even if the promise was not set forth in a valid contract) and thirdly, that Amgen owed them a fiduciary duty that was breached by unreasonably denying them GDNF.
The federal district court, relying on an opinion in a similar case, Suthers v. Amgen from the Southern District of New York, denied all the claims. On the first, it said that no contract was breached since none existed between the plaintiffs and Amgen; even if one had existed, the Informed Consent Document allowing Amgen to terminate the study for scientific reasons (a usual practice followed in such trials)ensured that Amgen would still have no duty towards the plaintiffs. Also, the trial being conducted at the university by doctors who were under its employment, the principal investigators were not Amgen agents and therefore, the principal/agent rule could not apply. On the second claim, promissory estoppel required a promise (to continue to provide GDNF following termination of the study) that did not exist. As for the third claim, the court indicated that Amgen had reasons other than the benefit of the plaintiffs for sponsoring the study, circumstances that would indicate that “the parties agreed that one party would act in the interest of the other” did not exist. Hence, it could not be held that Amgen owed a fiduciary duty to the plaintiffs. The appeals court, while affirming this decision, ultimately suggested that the plaintiffs might have a case against the university’s institutional review board and the physician investigators involved in the trial.
This case raises several questions. First of all, clinical trial agreements between industry and academic institutions are usually not revealed to subjects while recruiting them for a study. Also, the investigators themselves not being fully conversant with its details, may misrepresent its meaning and implications. Should institutions appoint an authority conversant with the specifics to deal exclusively with such matters? Secondly, in conducting a trial, the goal of the company is primarily scientific, not therapeutic; monetary or other business considerations might compel termination of the trial before its therapeutic value is fully realized for subjects enrolled in it. If ethical considerations in such instances mandate the continuation of the treatment past the termination of the trial, should the obligation be made enforceable through appropriate contract language (the article suggests so but should the company be made to bear the entire expense at that point or the burden shifted upon the subjects themselves)? Thirdly, should the determination of efficacy also make allowance for the patients’ own subjective opinions?
In India, the ICMR guidelines issued in 2000 mentions, in the obligations of investigators to prospective subjects, that they must explain the ‘benefits that might be reasonably expected as an outcome of research to the subject or to others’ and that the ‘investigator should not give any unjustifiable assurances to prospective subjects, which may influence the subject’s decision to participate in the study’ – these are helpful but general statements that do not clarify the post-trial obligations or the delineation of obligations between the industry sponsor and the academic investigator. It might be worthwhile to define this separately in some detail. Also, ethics committees of host institutes are given the responsibility of oversight of any trial. How frequently these bodies meet and how effectively they function ought to be examined.

The state of Indian legal education: An assessment of the NLS model and the importance of research

Harish's previous post highlights an important topical issue for the legal profession in India. Yesterday's issue of the Hindu carries an article by C. Rajkumar on the current state of legal education, which, while also relevant to the discussion initiated by Harish, deserves to be discussed separately. In his article, Rajkumar provides an assessment of the achievements and failures of the new, single-faculty law universities in India that have become the norm following the perceived success of the 'National Law School' model:

"There is no doubt that the establishment of the national law schools starting with the National Law School of India University (NLSIU) in Bangalore successfully challenged this institutionalised mediocrity and succeeded in attracting serious students to the study of law. In fact, the study of law has received better attention among high school leavers in the country with the introduction of five-year integrated programmes. This has brought up new issues relating to pedagogy and approach to undergraduate studies for imparting legal education for high school leavers. The national law schools that have been established in Bangalore, Hyderabad, Kolkata, Bhopal, and Jodhpur have all contributed in their own ways toward promoting excellence in legal education and research, particularly by attracting some of the brightest students to consider law as a preferred career option. But where these schools face significant challenges is in attracting faculty members who are top researchers in the field of law and can combine sound teaching methods with established track records of research. The lack of researchers in law and absence of due emphasis on research and publications in the existing law schools have led to the absence of an intellectually vibrant environment."

Rajkumar also sets out what he considers to be the biggest challenges for legal education in India, but it is his assessment of the NLS model which I found interesting and persuasive. Since several of us are products of that system, and we also have among our readers, current students in these new institutions, I wondered how others would react to Rajkumar's views.

Today's Indian Express has a column which complements Rajkumar's analysis on a larger point. Rajkumar asserts:

"Research can contribute significantly toward improvement in teaching and, more importantly, addressing numerous challenges relating to law and justice. If one were to look at the faculty profile of the world’s top law schools, one will find that there is great emphasis on research and publications among academics. Besides teaching, they contribute in significant ways by initiating and developing research projects in cutting edge areas, by professional contributions to international organisations, law firms and corporations, and by playing an important role in government policy formulation and promoting civil society activism. Law schools and academics in India need to go a long way in developing an institutional culture that promotes and encourages research that has the capacity to foster many positive changes in society at large."

The Express column, authored by C.P. Bhambri, is written as a reaction to Prime Minister Manmohan Singh's recent speech announcing the policy decision to create 30 new Central universities. Bhambri argues that attention should instead be focused on disturbing practices in current institutions:

"The explanation for the prevalence of highly differential levels of academic performance among the universities, or within the same university, has to be found from within the university itself. First, the standards of a university depend on its teachers. None of the central universities has any evaluative criteria for the academic ranking of its faculty members or for identifying completely incompetent faculty members. Since universities do not have any internal mechanism of categorising faculty members as ‘performers’ and ‘non-performers, the net result is that every professor is treated as an equal, irrespective of performance and merit.

Second, professional bodies can play a very significant role in identifying the ‘meritorious’ and differentiating them from those ‘below standard’. But this is also not acceptable to universities and faculty members who start championing their ‘autonomy’ to counter the demand of ‘their accountability’. Third, the University Grants Commission, at the behest of the education ministry’s bureaucracy, has played havoc with procedures to determine the levels of performance of individual faculty members.

Any move to create new central universities should be informed by the experiences of existing central universities. But this is easier said than done. The teaching faculty has generally resisted any attempt to ‘differentiate’ on the basis of performance. The notion of a formal equality among individual staff members has given birth to the system of mechanical uniformity and this has, in turn, given birth to complete non-accountability on the part of faculty members."

Bhambri's critique is aimed at the established universities, and may not be applicable to the new law universities. The question to ask is whether the way out for the new law universities, as well as for the more established multi-disciplinary universities, is to replicate the model of the leading foreign universities where academic promotion is strictly tied with research and scholarship output. Some people in India have argued that this may not necessarily meet with the interests of the Indian legal community. Reactions?

Liberalisation of the Legal Profession

As most of you are aware, there have been whispers (some loud, others less so) in respect of the impending liberalisation ( primarily meaning permitting foreign lawyers to pratcice in India) of the legal profession in India. Despite innumerable deadlines, most of them imaginary, liberalisation has not happened. It appears that over the last year there has been a signifcant effort by the UK Law Society and the English City Firms, supported by the UK Government to press for the liberalisation of the legal profession. News reports indicate that a joint committee of Indian and UK lawyers are negotiating the terms of the liberalisation under the ageis of the UK-India Trade Comittee.

On the UK side, there has been a significant amount of information available to the public (through press reports, presentations made before the UK parliament, etc ) regarding the reasons for the negotiations and the extent of liberalisation (very shortly, UK firms want to be able to set up on their own without having to enter into joint ventures with Indian firms). Worryingly (but not surprisingly) there has been no concrete information on the Indian side (except a few statements of denial by the Chairman of the Bar Council). I understand that the Commerce Ministry had posted a paper on its website last year, but I have not been able to find that paper. Again from sporadic news reports, I understand that India is represented by the Chairman of Bar Council of India, the vice-chairman of the Bar Association of India and Rajiv Luthra of Luthra & Luthra on the joint committee. I am not aware if there are more people on this committee.

What worries me is the complete lack of public debate in India. There has been no effort (atleast not publicly known) by anyone to study the impact that any such move may have on the vast legal profession. Opinions (ranging from- it will not affect litigating lawyers, it will be great for young lawyers, to it will be disastrous and render many lawyers jobless) vary about the effect, but these opinions are merely based on intuition and hope (or cynicism). For example, no effort has been made to draw lessons from the impact on the accounting profession in India following the entry of the multinational accounting firms. Such a study could through light on the potential impact on the legal profession (though the two professions are not organised in the same manner) if foreign firms are permitted to enter into India. There have been one or two opinions in news papers by chartered accountants warning the legal profession! One of the opinions warns that there has to be internal liberalisation allowing the profession to be better organised and ready for any external competition.

Given the emotions that this issue has raised in the past, I have a feeling that it will be difficult to have a reasoned public debate. It is therefore vulnerable for special interests to influence the outcome, one way or the other. Consequently, I fear that we may be presented with a fait accompli, and then we will have the usual efforts to rationalise whatever has happened. For example, will the bar council regulate foreign firms practicing in India. Will there be different practice rules? Issues like advertising and sharing profits with people other than advocates will become challenging for foreign firms who are not subject to such restrictions.

Also, what is the process for any such liberalisation. It probably requires a modification to the Advocates Act and rules thereunder. Even if the statute is amended, will the bar council be able to make rules given popular emotive opposition?

Based on sources close to the negotiation (this sounds like investigative journalism now) I understand that the Indian negotiators have made proposals which sound ( to me) completely unrealistic and probably constitutionally invalid. One of the proposals is said to have been that only those Indian law firms that have been registered for 10 years should be permitted to enter into joint ventures with foreign law firms (Article 14 anyone?).

Personally, I am not sure if liberalisation is a good thing or not. I have not studied the issue in any detail to decide one way or the other. There will clearly be certain benefits (better training, better organisation, etc) and some burdens.

I hope that some of you will take the time to give some thought to this issue and post comments which will hopefully generate a larger reasoned debate in the country.

The Continuing Controversy Over Retail Trade

The xenophobia over retail trade has manifested itself once again. The Government (Department of Commerce & Industry) has asked Starbucks to modify its application to enter into a franchise agreement with Kishore Biyani’s Future Group by converting the structure into one where Starbucks directly invests in an Indian entity to the extent of 51% under the single-branded retail route. An editorial in today’s Economic Times has sharply criticized this decision.

Without being drawn into the details of the proposal or its merits, I am struck by a very simple proposition. When the relevant regulations permit foreign retailers to enter into the Indian market through one of two structures, i.e. (i) franchise arrangement, or (ii) investment in an Indian entity to the extent of 51%, should the option of choosing either of these not vest with the retailer? Is it permissible for the Government to compel the parties to choose one option over the other when both are equally available?

It is ambiguities and uncertainties such as these that are keeping several prominent retails brands out of India, although the Indian retail market is burgeoning.

A Clash in Respect of Authority over Independent Directors

It is not rare for different legislative or administrative authorities to lay down laws or regulations that contradict each other. Today’s Business Standard and The Times of India quote the Minister of Corporate Affairs Premchand Gupta that the proposed Companies Act (which is expected to overhaul the existing Act) may restrict the number of independent directors on boards of companies at 33%, following the report of the JJ Irani Committee. This runs counter to, and dilutes, the existing requirement of 50% (for companies with executive chairpersons) and 33% (for companies with non-executive chairpersons) that is currently prescribed by the Securities and Exchange Board of India (SEBI) under its corporate governance requirements in Clause 49 of the listing agreement.

My quick reactions to this move are as follows:

1. A thorough study regarding the role of independent directors in enhancing corporate governance in the Indian context needs to be conducted before a limit is fixed on their number. There does not appear to be a logical reasoning for either the limit of 33% or 50% with specific reference to the Indian context.

2. The SEBI requirements listed above came into effect on January 1, 2006 after heated discussion and debate in the regulatory and business circles. In fact, the implementation of Clause 49 in its current form was delayed several times on this count. It is only now that companies have put in place systems to comply with its requirements, including those regarding the number of independent directors. Not surprisingly, several PSUs are yet not fully compliant and are still taking steps to comply with appointment of independent directors and undertaking other steps towards corporate governance and independence from government control (see report in today’s Economic Times). That being the case, the move by the Ministry of Company Affairs would result in considerable ambiguity to corporates and businesses if the independent director requirements are again altered as that would take away certainty in the legal regime that enables businesses to operate in India.

3. Although the SEBI regulations apply only to listed companies (with wide public shareholding), news reports indicate that the new Company Law is likely make the independent director requirements applicable even to unlisted companies. This comes as a surprise. Why should an unlisted company (which is usually closely held) that does not have public shareholding have independent directors? Whose interests are the independent directors expected to protect when the owners and managers are likely to be in the same as is typical in an unlisted company which is closely held? The requirement of independent directors or other corporate governance measures in relation to unlisted companies appears to be excessive and onerous.

The Government is still in the process of consultation with respect to these matters, and a consolidated Companies Bill, being formulated by the Law Ministry is likely to be introduced in the Parliament in the Winter Session.

SEZs: The Furore Over Land at Nandagudi

The proposal to set up a special economic zone (SEZ) at Nandagudi near Bangalore in Karnataka has invited a lot of brouhaha over the last few days.

While the SEZ policy of the Government of India has generally created excitement within the industry (with all major industrial groups flocking with proposals before the Government), it has invited an equal amount of skepticism from civil society. Its criticism pertains to the fact that the policy could result in land grabbing through the process of ‘eminent domain’ by shortchanging land owners. Further problems include the inability to appropriately rehabilitate the land dwellers. Following the uproar that was created in Nandigram in West Bengal a few months ago, the controversy has travelled southward towards the phonetically similar village of Nandagudi in Hoskote Taluk, Karnataka State (55 kilometres from Bangalore city).

The SEZ at Nandagudi is proposed to be developed by a private business group. The proposal was met with severe resistance from the outset not only from civil society but from within the Government. Several departments of the Karnataka Government as well as bureaucrats voiced their dissent to the SEZ for several reasons – (i) it would aggravate the water shortage in the area, (ii) it was to be established on farm land (depriving farmers of their livelihood), (iii) the farmers cannot be adequately rehabilitated as they had no skills apart from agriculture, (iv) the price of land in the area is skyrocketing due to its proximity to the new Bangalore International Airport at Devanahalli (and the landowners cannot obtain the benefit of the appreciation of land value). But, despite these objections the Government of Karnataka approved the proposal.

However, as reported in The Hindu Business Line, the Central Government came to the rescue of the dissidents of the proposal last Friday (June 22) when the Board of Approval under the SEZ Act (BoA) presided over by the Commerce Secretary decided to defer the approval of the Nandagudi SEZ. The BoA decided to take into account instructions of the Central Government that no land should be acquired by a State Government unless 100% owners give their consent.

This is a welcome move as it takes away the power of the State Government to indulge in compulsory land acquisition through the power of ‘eminent domain’. In a sense, it makes the land acquisition process a consensual one as notification of SEZs is not possible if even a single landowner objects to acquisition. On the other hand, the process could give rise to difficulties if State Governments are to allow private developers of SEZs to negotiate directly with landowners, as has been planned. Lands are fragmented with a large number of landowners who may not be able to form coalitions to negotiate adequately with private developers. Landowners (such as farmers, with low levels of literacy) may be susceptible to coercion and undue influence from players such as private developers who are well-versed in real estate matters. Hence, Governments should not be allowed to abdicate their responsibilities entirely and leave negotiation of land-deals directly with landowners. State Government ought to monitor the process to ensure that “fair” compensation is paid to the landowners, and that they are properly rehabilitated.

I suspect this controversy is unlikely to die down soon. Farmers as well as political parties have threatened to continue their agitation over the Nandagudi SEZ. We will have to wait and watch the developments over Nandagudi as they are likely to impact other SEZs too.

Secularism, casteism and the Courts

There is a provacative article by Colin Gonsalves titled "State has no religion" (www.indiatogether.org For those of you who prefer links, I am afraid, I am not yet completely blog savvy to provide links. I am working on it!). After discussing various HC and SC judgments, Gonsalves makes two broad assertions- a) The Courts have not come down heavily on people and parties spreading communal hatred (he appears to extend this to include caste hatred); and b) Certain decisions (he refers to the Rishikesh Egg Case and the Parsi Housing Cooperative society case) in fact enable and encourage ghettoisation based on caste and religion and social ostracisim of minorities (and I think he means not only religious minorities but also caste minorities).

Assertion a) is clearly debatable as one needs to examine if the Court actually had options to hand out a more severe penalty (or conviction) in each of those cases based on facts and evidence, before we can agree with Gonsalves. It is assertion b) however that interests me. Apart from the cases that Gonsalves mentions, the newspapers regularly report of incidents where certain areas in some cities (Mumbai is an example) have either gone completely "vegetarian" or completely "Jain". Incidents where corporations have banned employees from talking in regional languages have also been reported. The more chauvanistic cultural, caste and linguistic groups are indulging in violence even when there is no perceptiple threat to their own culture, caste or language. If we go by Gonsalves' assertion, an aggressive propogation of an idea that adversely affects the freedom of any other religion or caste or language (or habit it appears, if we take non-vegetarianism/vegetarianism as an example) is something that should not be permitted or encouraged as it is likely to result in affecting minority rights (Gonsalves appears to recognise that minorities vary from place to place).

Clearly any propogation involving violence or inciting violence should be punished, but is there a need to curb non-violent aggressive propogation of one's culture, caste or language? Assertion of an identity is not something that the Constitution prohibits. Therefore, if a particular group wishes to limit access to resources/ spaces (let us for the moment assume that these are not state owned or supported resources, as it is likely that state owned or supported resources cannot be the subject of discrimination) which are occupied by them to other groups, is it something that can be discouraged legally? Will that not that result in a violation of Part III? This is an issue that is going to be significant as most of our large cities become cosmopolitan, particularly so given the enormous diversity that we have. In this context, Gonsalves' prediction is pretty dire. At the same time, assertion of identities (on a non-violent basis) is something that sociologists and historians do not discourage as they believe it does encourage diversity. I understand that there are a number of studies about assertion of caste identities (particularly Dalits) that show positive benefits.

So how does one regulate majority group activity that is non-violent, but may have the effect of reducing diversity and adversely affecting minorities of all hues?

Legislation by committees

Show the UPA government an issue of concern and it will show you a committee. Perhaps all governments need expert help in framing policy. What makes the present situation unique is a curious result of legislative inaction and judicial enthusiasm which appears to be transforming the role of these committees from advisory to legislative bodies. Take the example of the Sorabjee Committee on Police Reforms - the Executive appoints a Committee to look into the matter - its recommendations don't receive a response from the legislature - the Supreme Court adopts these recommendations and gives them a legal colour. The same story is repeated with the recommendations of the Lyngdoh Committee on student politics. Given the sheer number of committees that this government has appointed, the possibilities of judicial/committee legislation are enormous.

The trend adds a new dimension to the old separation of powers debate. Adopting the recommendations of expert committees may be the judiciary's way of responding to the charges of judicial inexpertise in dealing with polycentric policy matters. But the charge of democratic deficit remains unanswered. Should we be worried? Committee watchers should certainly look out for the Menon Committee looking at the Criminal Justice System.

New Contributor: Umakanth Varottil

We are very pleased to also introduce Umakanth Varottil as a new member of our blogging team. Umakanth is a PhD candidate at the Faculty of Law, National University of Singapore, where he has been awarded the Lee Kong Chian Scholarship and the President's Graduate Fellowship. His research is on " The Role of Independent Directors in Corporate Governance", which will focus on the board structure and director independence from an emerging markets' perspective, and lay particular emphasis on the impact of corporate governance legislation similar to Sarbanes Oxley Act (of the United States) in those markets. Umakanth recently completed his LL.M in Corporations Law from the New York University School of Law, where he was a Hauser Global Scholar.

Prior to his foray into academia, Umakanth was a corporate lawyer in India with 11 years' professional experience with the leading law firm of Amarchand Mangaldas, where he was also a partner. He has advised several domestic and international clients on cutting-edge transactions in all areas of corporate and commercial law, including foreign investment, mergers & acquisitions, joint ventures, securities law, corporate finance, structured finance and information technology. In 2006 and 2007, he was ranked as a leading corporate/mergers & acquisitions lawyer in India by the Chambers Global Guide.

Umakanth has a keen interest in corporate and commercial law with particular focus on India, and would contribute to the blog on current legal developments in India in these areas.

New Contributor : Tarunabh Khaitan

We are happy to announce that Tarunabh Khaitan has agreed to join the team blog here at Law and Other Things. Tarunabh is currently a D.Phil candidate at Oxford University, and his doctoral dissertation seeks to critique contemporary approaches to anti-discrimination (or equality) jurisprudence in several jurisdictions (including India). Tarunabh has earlier been associated with the Alternative Law Forum, Bangalore (click here for a paper on the death penalty in India that is featured on the ALF website). Since October 2005, he has run a link blog called Human Rights Law in India which collates information on significant human rights developments in India. As the foregoing suggests, Tarunabh has a keen interest in human rights issues in India in particular.

As readers of the blog must have noted, we are seeking to expand the range (in terms of legal issues) and number of contributions. Over the next week or so, we will introduce other new team members, and we hope to have new additions from time to time (some of whom may be part of the team temporarily as guest bloggers). Those who have already expressed an interest in joining the team, and those who may want to do so in future, are requested to contribute (or continue to contribute, as the case may be) by posting in the comments section of the blog.

ALLEGATIONS OF BIAS IN THE NOVARTIS PATENT LITIGATION

Whilst most of us await the Madras High Court judgment on the constitutionality of section 3(d) of the Indian Patents Act, here’s an update on what’s going on at the IPAB (Intellectual Property Appellate Board), the specialized IP tribunal in India.



As mentioned in an earlier post, the Novartis litigation was split up—the patentability issue was referred to the IPAB and the constitutionality issue was to continue with the Chennai High Court. Before the IPAB could even begin to wade into the turbulent waters of what it means to be a more “efficacious” salt form, Novartis has raised objections to the presence of Mr Chandrasekharan (ex Controller of the Patent Office) on the IPAB panel. Novartis alleges that the Gleevec application was rejected by the patent office at a time when Mr Chandrasekharan was Controller. Therefore, having Chandrasekharan sit in judgment over whether he got it right the first time around violates cardinal principles of natural justice. To complicate matters, Chandrasekharan filed an affidavit at the earlier stages of the Novartis litigation before the Madras High Court, supporting the rejection of Novartis’ patent application.



The Financial Express Reports:



“The Intellectual Property Appellate Board (IPAB), which has been formed to give a verdict on various patent cases across the country, may reject Novartis objection on the presence of S Chandrasekharan, the former patent controller, on IPAB. Novartis had objected to Chandrasekharan’s presence on the board saying he was responsible for Glivec being denied product patent in 2006, when he was the controller general of patents.



Experts close to the development say that IPAB will consider the fact that Chandrasekharan was actually not responsible for the decision on Glivec’s patent application. IPAB will consider Novartis’ objection on July 2. An attorney from Madras High Court, who is close to the Glivec case, told FE, “The role of Chandrasekharan is entirely different now. While he was in the Chennai patent office, he had administrative responsibilities only. It was not he who took the decision.” “Subramaniam, who is the examiner and Rengaswamy, the patent controller, took the final decision and as Chandrasekhar was the final authority, he gave the final consent. Anyway, he was not directly involved with the decision finally taken,” the attorney added.



Says Ranjit Shahani, vice-chairman and managing director, Novartis India Ltd, “The government has taken a step forward in creating a fully functioning patent system by setting up IPAB. However, we objected to the appointment of the former controller general of patents as the technical member since it was in his tenure that the patent was rejected and he was also acting as a party to the recent court case reviewing the decision of the Indian Patent Office to reject our patent. We believe it would not be in the interests of natural justice for him to hear our appeal.” Another patent attorney opined that if IPAB rejects Novartis’ objection on these grounds, Novartis could go to the high court again with a writ petition alleging favouritism in IPAB’s action. If the court finds Novartis’ arguments are true, IPAB will have to appoint another technical member removing Chandrasekharan, he added. At present, Justice Ansari is the legal member while Chandrasekhran is the technical member.



Novartis has challenged section 3(d) of Indian Patent Law, according to which, any new use or a new variant of an old substance cannot be patented without having any significant efficacy. On this basis, the Chennai Patent Office had rejected Novartis' patent application for anti-leukemia drug, Glivec. Novartis approached the Madras High Court against the verdict arguing that Section 3 (d) of Indian Patent Act is not compliant with the Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement that India had signed in 2005."



No doubt, Chandaraskeharan was not directly involved with the rejection of the Novartis patent application by his Assistant Controller, Rengaswamy. One might argue that his involvement was in an administrative capacity, as head of the patent office. Whether this distinction between judicial versus administrative capacity is sufficient to enable him to adjudicate on the matter in an appellate capacity is a moot issue. However, what is damaging is his direct involvement at a time when Novartis appealed the patent office order before the Madras High Court. He filed an affidavit before the court defending the rejection of the patent application by the patent office.



This being so, having him continue on the IPAB flouts cardinal principles of natural justice, particularly the one stating that no one can be a judge in his own cause (for those of you with a penchant for dead languages, “nemo debet essa judex in propria cause”). There is a clear and legitimate apprehension of bias here and as many of us were taught in law school “Justice must not only be done, but must also be seen to be done”. The government should take immediate steps to recuse him—(or he should do it himself). Else, an otherwise strong case for the government (on merits) may suffer.





But if he is so recused, what happens? Should the IPAB go ahead and decide the matter without him? Doesn’t seem like a particularly sensible option to me. Justice Ansari (Chairman of the IPAB), who is on the IPAB panel along with Chandrasekharan may have excellent credentials –but is no patent expert. In fact, the IPAB never functioned till recently because it had no technical member. Chandrasekharan’s appointment was with a view to fill in this lacuna. But more importantly, Chandrasekharan was hastily appointed in the wake of the Novartis litigation and the governments’ desire to have the matter shifted to the IPAB. One can only second-guess the reasons for the government wanting to do so--- perhaps from fears that one of the Madras High Court judges was pro Novartis---as the learned judge had, in an earlier matter involving the exclusive marketing right (EMR) of Novartis over Gleevec, upheld the validity of the EMR and injuncted several generics (in sharp contrast with a Mumbai High Court order that questioned the validity of the EMR in question).



Whatever be the reasons, it is paradoxical that the government tries to get away from a supposedly biased judge by running into the warm embrace of another one. But “paradox” is a familiar bedfellow as far as IP law/policy in India goes. One hopes that better sense prevails and a new technical member is appointed to the IPAB to replace Chandrasekharan in this matter. Perhaps the IPAB may end up getting an excellent technical member and may begin churning out excellent patent jurisprudence in the coming years. Or perhaps the matter will continue as it is—and Chandrasekharan’s presence will make a dent in an otherwise strong case for the Indian government. We’ll have to wait to see how this saga unfolds….

Reading India After Gandhi

I am presently reading (more like devouring) Ram Guha's magnificent new tome, India After Gandhi. The book is a fascinating and accessible telling of our country's post-independent history from the assassination of the Mahatma to present times. With copious research, Ram Guha has highlighted several previously unknown or relatively obscure historical vignettes. It is amazing how he has packed information about so many events without giving the impression of being hurried or pedantic.

The book is noteworthy for its clear and accurate discussion of several constitutional and legal developments. That, by itself, is a big achievement. Most contemporary Indian writers and historians fail to either acknowledge or reflect upon the role and influence of the Constitution, the Supreme Court, and the system of laws on the life of our Republic. Ram Guha is an important exception. For that reason and more, I believe his book is essential reading for the Indian legal community. After all, as Justice Oliver Wendell Holmes put it: "A page of history is worth a volume of logic." The pages of India After Gandhi are worth an entire bookshelf of materials, and I am very glad it now adorns mine.

BN Harish -- New Contributor to Law and Other Things

I am very pleased to introduce BN Harish as a new contributor to Law and Other Things. Harish is an advocate practising with a firm that he founded in Bangalore. Apart from legal practice, Harish is interested in the role of law in society and its use as a tool to create social transformations. He is also interested in a number of policy issues related to democracy and governance and is currently working on a project developing performance evaluation mechanism for elected representatives.

Judging and Politics: Using an American lens to raise some questions about the Indian situation

The latest issue of the New Yorker has a short but interesting assessment of the judicial output of the U.S. Supreme Court over the last year. The author of the article is the noted legal analyst, Jeffrey Toobin (who, like most established legal journalists in the U.S., has a law degree from an elite law school). The piece adopts a fairly standard American approach to conducting an assessment of the judicial record of the highest court of the land. By standard, I mean an analysis that is extremely (perhaps overly) sensitive to the political backgrounds of judicial actors - while this is becoming common in other jurisdictions, America is still perhaps the only jurisdiction where this realist awareness is taken to such degrees. So, in Toobin's analysis, the most important factors which explain why American judges decide the way they do, are their personal political beliefs, which in turn causes Presidents to appoint them to the Court. Here are some extracts from the piece which set out this view:

"In the next week or so, the justices will begin their summer recess. The first full term in which Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., have served together will thus be completed, and the changes on the Court, and their implications for the nation, have been profound.

The careers of Roberts and Alito have been emblematic of the conservative ascendancy in American law. Both men, shortly after graduating from law school, joined the Reagan Administration, where Edwin Meese III, who was for a time the Attorney General, and others were building a comprehensive critique of the Supreme Court under Chief Justices Earl Warren and Warren E. Burger. The conservative agenda has remained largely unchanged in the decades since: Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade, and allow states to ban abortion. As Alito wrote in an application for a Justice Department promotion in 1985, his work on abortion and race cases, among other Reagan Administration priorities, had given him the chance “to advance legal positions in which I personally believe very strongly.”

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda.

[The next few paragraphs of the article detail some important decisions handed down over the past year, which appear to confirm Toobin's claims].

All these conservative victories were decided by votes of five to four, with Kennedy joining Roberts, Alito, Antonin Scalia, and Clarence Thomas to form the majority. (The last big case outstanding this term is a challenge to school-desegregation plans in Louisville and Seattle. Based on the oral argument, Kennedy appears likely to join the same quartet in striking down the plans.) Kennedy holds the balance of power in the Roberts Court, much the way Sandra Day O’Connor did in the Rehnquist years. Kennedy is more conservative than O’Connor, so the Court is, too. He sided with the liberals in only one important case this year, when the Court ruled that the gases that cause global warming are pollutants under the Clean Air Act, a ruling that repudiated the Bush Administration’s narrow view of the law.

... ... ...And that, ultimately, is the point. When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. Presidents pick justices to extend their legacies; by this standard, Bush chose wisely. The days when justices surprised the Presidents who appointed them are over—the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the Presidents who appointed them. At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly."

What is striking in this analysis, is the assertion that decision-making in the U.S. Supreme Court is guided almost entirely by the personal political beliefs of individual judges. Toobin does not seem to think that there are any other factors which can work towards constraining a judge in deciding disputes. In an important new book, the American scholar Brian Z. Tamanaha has called such a view "instrumental" or the idea that the law is merely a means to an end. Tamanaha asserts that under this view, "people see law as an instrument of power to advance their personal interests or the interests or policies of the individuals or groups they support." According to Tamanaha, such a view "is taken for granted in the United States, almost a part of the air we breathe," and perceives the law "as an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends." The rest of Tamanaha's book is devoted to detailing the problems which accompany such a worldview. In its stead, Tamanaha proposes what he calls a "consciously rule-bound orientation." Tamanaha accepts that personal political views and experiences will colour and affect how judges decide cases. Yet, he asserts , a judge can and should aspire for objectivity in legal decisions, which is both real and achievable in the conscious attitudes and motivations of judges.

Coming to the point of this post, I wonder about the extent to which such views of the law shape how we in India react to decisions of our own Supreme Court. As a perceptive student pointed out in a recent class discussion on constitutional theory in India, the structure of the Indian Supreme Court, and the operational details it adopts, precludes a straightforward adoption of American modes of analysis. This is because judges in the Indian Supreme Court do not sit together to decide cases, and decisions of the Court are actually handed down by twenty-six judges sitting together in benches consisting of 2 or 3 judges. On any given day, therefore, a decision of the Supreme Court of India could be given by any of ten different benches of the Court that are sitting concurrently and handing down decisions. All this is not to suggest that this makes the personal political views of judges irrelevant for decision-making. They are certainly relevant, but to conduct an analysis of how exactly they influence decisions will require a more sophisticated methodology, which accounts for the more complex practices of the Indian Supreme Court.

Also, I wonder whether what Tamanaha calls the "instrumental view of the law" is as prevalent in India. While one does see examples of this kind of analysis in India (evident, for instance, in how some newspaper commentators reacted to the interim stay order in the Thakur case), I suspect that even during the height of PIL jurisprudence (a jurisdiction which seems more amenable to allowing a judge to inject his personal views in actual decision-making) , a considerable number of people think that judges are not simply paying politics when they intervene in executive and legislative decisions. The fact that the Supreme Court consistently comes out near the end of the top of public institutions ranked for credibility, shows that it is generally perceived as enjoying legitimacy. (Of course, one way of interpreting this is that the people in general know that judges are playing politics, but simply approve of the politics that they are engaging in).

Recent discussions on this blog have focused on how Justice Pasayat, while exercising jurisdiction as part of the Vacation Bench of the Supreme Court, has handed down decisions which are apparently inconsistent. I refer here to previous posts by V. Venkatesan on the Supreme Court's orders in the Dera Sacha Sauda and Gujjar riots episodes. In analysing these decisions, both my fellow bloggers and the various commentators who reacted to these posts, have adopted explicitly "instrumental" views of the law, implying that Justice Pasayat's personal views may account for such seeming inconsistencies. On the current Supreme Court, Justice Pasayat, at least in the calender year 2007, is enjoying an undue amount of attention in part because he has had to decide some extremely controversial issues. While he was allotted the Thakur case, his decisions in the Dera Sacha Sauda and Gujjar riots episodes came about because he happened to be on the Vacation Bench. How a judge on the Supreme Court gets allocated particular cases is a matter within the administrative powers of the Chief Justice, but the general understanding of current practices is that in most cases, bench allocation happens through computerisation, and the role of individual discretion is greatly circumscribed. Still, from time to time, especially when it comes to the constitution of benches for sensitive constitutional questions, this becomes a matter of speculation and controversy. These events act as a possible counter to my speculative conclusion that Indian analysts are perhaps not as committed to instrumental views of the law, and harbour a belief that judges are subject to constraints (of text, history, and precedents, to name a few).

I invite comments, counterpoints and other responses from fellow bloggers and readers on these speculations, as well as on ways of analysing judicial decisions in India more generally.

CONSTITUTIONAL VICE OF CASTE BASED QUOTAS IN PRIVATE EDUCATIONAL INSTITUTIONS

In the OBC reservation debate, a key issue – and a more serious issue – which took a backseat is the imposition of caste based quotas in private educational institutions. The 93rd Constitutional Amendment introduced a new clause in the Constitution (Article 15(5)) enabling the State to make a special provision for advancement of socially and educationally backward classes in private educational institutions, irrespective of whether they receive aid from the state. It has an express exemption for minority-run-educational-institutions. In effect, this Amendment enables the State to impose caste based quotas in unaided private educational institutions. This Amendment is subversive of some of the most basic liberties in this country. The fact that it did not generate a strong debate in Parliament and in the media is indicative of extent of political correctness in public discourse. Thankfully, we have a Constitution where “liberty” is not a dirty word, something to be sacrificed at the altar of “equality”. After the Supreme Court’s ruling in Keshavanada Bharti (1973) – India’s unique contribution to field of Constitutional Law – any constitutional amendment which negates the basic structure of the Constitution is unconstitutional and does not have any effect. The 93rd Amendment violates the basic structure of the Indian Constitution in a four-fold manner.

First and foremost, this Amendment destroys the very essence of academic freedom. Although not expressly enumerated in the Indian Constitution, academic freedom – like the right to free press – is a special concern of the constitutionally guaranteed right to free speech and expression (Article 19(1)(a)). The right to free speech and expression is an integral part of a democratic set up and is part of the basic structure of the Constitution. Any constitutional amendment which negates the very essence of the constitutional right of free speech and expression is liable to be struck down as unconstitutional.
What constitutes academic freedom? The eminent judge, Justice Felix Frankfurter of the American Supreme Court gave a cogent working definition by outlining the "four essential freedoms" that should constitute academic freedom. He said academic freedom entails the right of a university to “determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" (Sweezy (1957)) The 93rd Amendment enables the State, instead of the concerned educational institution, to determine “who may be admitted to study”. The State is going to decide the criterion for admission. If this Amendment is upheld, the State could then be empowered, by a constitutional amendment, to decide who may teach, what may be taught and how it should be taught in private institutions. While nationalization of economic activity may be constitutionally permissible (even though economically indefensible), nationalization of educational process is not only constitutionally impermissible, but marks the end of democracy. The eminent educationist and former President Dr. Sarvepalli Radhakrishnan in his report on University Education in 1956 poignantly observed – “We must resist, in the interests of our own democracy, the trend towards governmental domination of the educational process.” Chief Justice Kirpal, speaking for a bench of eleven judges in T.M.A. Pai (2002), made the same point when he spoke about the right of private educational institutions to “pursue intellectual excellence and being free from governmental controls.” The 93rd Amendment suffocates the constitutionally protected freedom of academic institutions by trying to control their admission process.

Second, the 93rd Amendment violates the essence of the equality clause in the Constitution. The Supreme Court in a number of cases right from Keshavananda Bharati decision in 1973 to the Indra Sawhney-II decision in 2000 has affirmed that equality is part of the basic structure of the Constitution. If the stated theme of the 93rd Amendment was to impose the obligation of social justice on private unaided educational institutions, there is no justification for excluding it when it comes to minority unaided educational institutions. The irrelevance of the objective of giving preferential treatment comes out in sharp contrast when it comes to professional education, which has little nexus with the minority status. Why should a Christian or a Muslim professional educational college be exempt from admitting students from a backward class into engineering or a medical course when the same obligation is imposed on other colleges? If the objective of the government was to preserve the minority character of these institutions, the Amendment could have obligated these institutions to admit students from the respective minority communities. Secularism mandates that State cannot use religion as a basis for either imposing a duty or denying a benefit. The 93rd Constitution Amendment uses religion as the basis for discriminating against non-minority educational institutions and minority students. At a practical level, this Amendment would encourage “institutional conversion” whereby non-minority institutions would try to get members from the minority community on board and designate themselves as a minority institution to escape from the affirmative action obligation. This has happened in the past – the most glaring example being Ramakrishna Math claiming to be a minority institution! Our constitution makers conceptualized minority rights to be anti-discriminatory provisions. The 93rd Amendment turns this upside down by making it a charter for reverse discrimination. This is a violation of Equality and Secularism which form part of the Basic Structure of our Constitution.

Third, the 93rd Amendment destroys the very essence of liberty – the right to be let alone. Every individual has the right to pursue his own interests as long as he is not causing any harm to the public. The Indian Constitution does recognize this conceptualization in Article 19 which gives the citizen five valuable liberties (freedom to speak and express, move, associate, assemble and the right to practice trade, occupation or business). The Constitution does enable the State to impose restrictions on these invaluable rights, but they have to be “reasonable”. The Constitution even identifies the grounds on which these “reasonable restrictions” can be imposed. (Articles 19(2) to 19(6)) Very few constitutions have used such an approach to protect liberty. The message is unequivocal – one cannot trust law makers when it comes to the protection of our basic liberties. This carefully erected balance – between liberty and public interest, between liberty and responsibility, and between liberty and equality – forms part of the basic structure of the Indian Constitution.
The 93rd Amendment upsets this carefully erected balance by ostensibly trying put equality over liberty. A bench of seven judges of the Supreme Court in Inamdar held that caste based quotas in private institutions would amount to an unreasonable restriction on the right of private educational institutions to run the institution. The 93rd Amendment tries to overrule this Supreme Court ruling by enabling the State to impose unreasonable restrictions on the right of individuals to run an educational institution and in the process upsets carefully erected balance created by the Constitution in Article 19. As Justice Lahoti pointed out in the Inamdar case, state regulation of admissions would amount to “nationalization of seats” which cannot be a “reasonable restriction”. If the 93rd Amendment is upheld, it will create a wrong precedent. There will be no constitutional constraint in the future to stop the government from imposing an unreasonable restriction on the other liberties. Equality alone cannot be a valid justification for narrowing the scope of an already truncated liberty clause. While it’s true that liberty without equality would lead to anarchy, it’s also equally true that equality without liberty would lead to tyranny. By enabling the State to impose unreasonable restrictions on liberty, the 93rd Amendment sounds a death-knell for the liberty clause in the Constitution which is part of the basic structure of the Constitution. The 93rd Amendment validates an old maxim – our liberties are in great danger when the legislature is in session.

Fourth, the 93rd Amendment also violates the right to free speech and expression by compelling institutions to endorse caste as a criterion for admission. An educational institution that intends to run the institution for the benefit of backward sections of the society, but does not intend to use caste as a criterion for admission, will now be compelled to endorse caste since the government identifies "backward classes” primarily based on caste. The educational institution is precluded from designing its own social justice mechanism and is compelled to adopt a selection process which will entail an enquiry into the caste of the applicant. Even if the institution is against caste, the Amendment leaves it with no option but to admit students on the basis of caste. Compelling private educational institutions to use caste as a criterion amounts to “compelled speech” and this goes against the freedom of expression since right to express also includes within its ambit right not to express.
Further, caste is a prohibited criterion under the Indian Constitution for identifying backward class and by a convoluted interpretation, it became a permissible criterion. Even if it is permissible for the government to use caste in the admission process in state institutions and in the hiring process for state employment, thrusting it on private institutions violates the core of the liberty clause in the Constitution.

The pernicious effect of this Amendment can be illustrated by two real life examples. The truck drivers in the State of Tamil Nadu raised funds and constructed an engineering college to increase the educational opportunities for their children. Similarly a NRI constructed a college in Maharashtra with the sole objective of advancing the interests of Scheduled Tribe students. Nothing in the Constitution should stop these educational institutions from admitting students to serve their objective since they are not relying on the State for support. Not so under the 93rd Amendment. The State is now going to decide the admission policy and the institutions have no option but to comply. The 93rd Amendment creates a command and control mechanism in higher education.

The Amendment is now before the Supreme Court and the Basic Structure Doctrine amply equips the Court to strike down this Amendment. The Basic Structure Doctrine was intended to be used in the rare case when the core values enshrined in the Indian Constitution are under threat. The 93rd Amendment attacks the core values of Liberty and Equality in the Indian Constitution and I hope the Court strikes it down.

UPDATE

The Comments section makes an interesting point about severability – once the exemption for minority institutions is taken out, Article 15(5) can still stand on its own. This argument is inconsistent with established constitutional jurisprudence on severing the unconstitutional part from the constitutional part. (See the classic judgment of Justice Venkatram Ayyar in 1955 in RMDC case which outlines the principles of severability). The essence of these principles can be summarized as follows:
For a legislation to be severed, it has to satisfy two conditions
First, the constitutional part must be able to stand on its own, after the unconstitutional part has been severed.
Second, the Court in the process of severing the legislation cannot go against the intention of the Parliament.
In the case of 15(5), the first test is satisfied. Article 15(5) can stand on its own after removing the exemption. But severing the exemption for minority institutions would violate the second test. The effect of severing the exemption is that state will now be empowered to impose caste based quotas in minority institutions. This goes against the express intention of Parliament not to impose the obligation of affirmative action on minority institutions.
Therefore, the entire Article 15(5) has to sink once the Court comes to the conclusion that the exemption violates Secularism and Equality.

SC'S INTERVENTION IN GUJJAR VIOLENCE: A FEW QUESTIONS

The Supreme Court's suo motu notice to the DGPs of four States on what action they have taken or proposed to take against the perpetrators of the violence, triggered by the Gujjars' bandh is interesting. This is perhaps the first time that the Supreme Court has taken suo motu notice when there was large scale destruction of public and private property, due to the call for bandh by any group of people. There can be no two opinions that the organisers of the bandh must be asked to pay for the resultant losses, whether the bandh is peaceful or not. There can be a debate on whether bandh is an effective medium to register a protest, or even whether the protestors have the right to force the non-protestors to join the bandh, by creating unfavourable circumstances like road blockade etc. The Gujjars' bandh was anticipated. Therefore, why the DGPs did not take preventive action, to stop destruction of property and disruption of normal life could have been the right question which should have been posed by the Court, which would have helped the country to face similar situations in future. Therefore, the Court's question to the DGPs - on what action was taken or why no action was taken - may not really bring the desired results. Action could be taken only if the police knows who are the culprits, and this requires investigation, and the setting in motion of a legal process.
The urgency shown by the Court stems from the fact that it was disturbed by the images shown on the television by many channels. On the destruction of public and private property, it needs to be asked whether the channels identified the culprits, whether the culprits could be identified by virtue of the TV clips. If it is possible, no doubt action must be taken against them.

I would not be surprised if a proper investigation reveals that the violence was to some extent abetted by these channels, who were vying with one another to sensationalise the issue. The repeated manner they were showing the 'violent' clips during the week-long disturbances even made the I&B Minister so disturbed to call these channels and advise them to follow some code of behaviour, so that they don't unwittingly contribute to the spread of violence. A serious discussion in Parliament on any issue makes no news; but pandemonium does. Similarly, a peaceful protest makes no news to these channels; a violent protest does. Since you cannot show killings, show destruction of property, encourage and abet a peaceful crowd to do that in order to gain publicity on T.V. is the in-house unwritten code for many of the television journalists. "As the electronic media shows, the offenders feel that they have done some heroic or laudable thing because they show their beaming faces when the TV camera is focused on them," the court in its brief order recorded. Therefore, in its anxiety to ensure justice to the victims of this national shame, the Court should not close its eyes to the shame within the media.

Having said that, certain disturbing questions are bound to be asked about the merits of Court's intervention in this case. No doubt, the Court was moved by a genuine concern that justice be meted out to the victims of violence. But, only on June 4, the Vacation Bench rejected a plea to intervene in the violence instigated against the Dera sect in Punjab. The plea of the petitioners was for a direction to the authorities to ensure protection of the lives and properties of the followers of the sect, and the sect itself in the wake of the threats from the hardline Sikh groups. But the Court rejected the plea saying only State could handle religious conflicts. The Court said it was a religious issue on which no writ mandamus could be issued. It also stated that the tension arising out of the situation was purely a law and order problem that had to be essentially handled by the government agencies.
Reacting to the plea of Dera Sacha Sauda counsel Rajiv Dhawan that the deras faced a threat of closure, apparently from Akal Takhat, the Bench said, "Sensitisation of the issue should not involve the court… it is not the court’s job to decide where the BSF or Army should be deployed… for that, you have to approach the government."
As Dhawan said the problem was not confined to the jurisdiction of Punjab and Haryana High Court but some other states like Rajasthan, Uttar Pradesh and Jammu region of Jammu and Kashmir were also involved, the Bench said, "The genesis of the problem is essentially Punjab."
Personally, I am not at all convinced by the distinction sought to be drawn by the Court between the violence resulting from the Gujjars' demand and the one following the threat to the Dera sect in Punjab. If the Court could intervene in the former, they could do so in the latter also with justification.

Update: In the comments section, Mr.Harish points out the inconsistencies in the Court's intervention. Just one instance would suffice to show why I find Justice Pasayat's judicial philosophy, with utmost respect to him, wholly puzzling. In the AIIMS Doctors' strike during the height of their anti-reservation stir, he had extracted a promise from the ASG that the striking medicos would not be deprived of their salary during the strike period, even though they were not entitled to it in accordance with the principle, no work no pay, as a court-mediated solution to end their stir. The striking doctors caused immense chaos to the health services during the strike period, still the court was keen to condone their action, and even reward them for their strike. The contrast with Gujjars needs no explanation.