The Chief Justice Majority

The Chief Justice of the Supreme Court has a lot of control in shaping which justices sit on what bench, especially larger constitutional benches. How though can we look to see if he is using this power to (consciously or unconsciously) control outcomes of cases? One way the paper I posted below attempts to do so is to look at 5-justice benches and above that the CJI has sat on during the last ten years to see if he has ever been in dissent. As far as I can tell from my preliminary findings, he never has. This finding is a bit tangential to the thesis of the paper so not heavily discussed in it. I thought I would explore it more here though because it seems like an important topic of general interest.

The data I’m using to reach this finding was compiled through a Manaputra search. I’m attaching the data as a comment so folks can scrutinize it, but it doesn’t clutter the main page. There are a remarkable number of unanimous decisions amongst these cases (although many of those are dismissals) and as far as I can tell wherever there is a split decision the CJI is always in the majority. This isn’t to say the decision is what the CJI wanted – I’m sure many are compromise decisions – but the decision doesn’t come out in a way the CJI feels he needs to dissent. Perhaps if the benches were randomly selected the decisions would come out the same way, but I doubt it.

Given there are up to 26 justices on the court (and apparently more on the way) the CJI has a lot of justices to pick from when creating a bench and must have some sense of their ideologies, etc. to know how they might decide a case. I asked a justice on the highest court of another country how he would deal with this situation and he thought they should be randomly selected to benches. I think there is great merit to this argument (and as far as I can tell most two-justice benches are basically randomly selected through the Court’s computer program/registrar, although certainly not all of these smaller benches are assigned randomly either). If justice should be blind then random/blind selection to cases has a strong case to be made for it.

There are also meritorious arguments for giving the CJI independent power to select benches (although they hinge on him being impartial and trustworthy, and even then still may not pass muster). Maybe you want a mixture of junior and senior justices on a bench. Senior justices will have experience about how to deal with these large constitutional law cases, while many junior justices may not have been exposed to these cases in the same way while on high courts (and need to be partially mentored so to speak). Justices may also have certain areas of expertise or specialization that the CJI wants to draw upon (this certainly happens on smaller benches which specialize in tax or environmental matters). If a bench is randomly selected it could potentially include all junior justices or all justices that don’t actually represent a cross-section of the Court’s varying ideologies. Arguably it would be better to have an impartial CJI picking at that point who could consciously craft benches to be more impartial than a computer could.

There are also compromise positions between these two extremes that one could imagine. You could group all justices as junior or senior and then have a computer randomly assign justices in a predetermined ratio. Alternatively, you could have a predetermined ratio and then have the CJI do the appointment within this broad rule (or whatever other rules you might want to create). You could also make sure that all justices are chosen at some time for some constitutional law case so that random selection doesn’t randomly remove justices from ever hearing these cases. We could even have justices vote for which justices should sit on which benches if we wanted to bring internal democracy to the Court (although this is a more problematic alternative).

Finally, you may just want the CJI to have more power. The CJI is vested with greater power in the Indian Constitution on a number of scores, why not add this to his (or potentially/eventually her) power. The original Constitution didn’t envision bench selection by the CJI as a major power (at least at this scale), but institutions adapt and evolve and certainly the Constitution did envision some special powers for the CJI. Perhaps the present set-up is the best arrangement, but it’s likely worth more academic scrutiny.

Paper on Rise of the Indian Court

I have a paper that is being published this fall in Wash. U. Global Studies Law Rev. on the rise of the Court in India. I still hope to do another substantial round of edits before being its published. You can find it on SSRN here. I am attaching the abstract below. Any critical comments people want to post or send me would be appreciated.

Abstract: In recent years courts have risen in power across the world. The Indian Supreme Court has rightly been pointed to as an example of this global trend. Indeed, in many ways it has become a court of good governance that sits in judgment over the rest of the Indian government. This article argues that it is the shortcomings of India’s representative institutions (real, perceived, or feared) that have led the Court to expand its mandate. The Indian Supreme Court’s institutional structure has also aided its rise, and perhaps helps explain why it has gained more power than most judiciaries elsewhere. The article examines two doctrines–the basic structure doctrine and the Court’s broad right to life jurisprudence–to see how the Court has enlarged its role. It argues that the Court justified these two doctrines not only with a wide reading of the Indian Constitution, but also an appeal to broad, almost metaphysical, principles of “civilization” or good governance. The Court’s interventions have not been without critics (who raise both accountability and capacity concerns), but these doctrines have proved remarkably stable. This article finishes by examining parallel interventions in other parts of the world which suggest India’s experience is part of and helps explain a larger global phenomenon of the rise of rule through good governance principles via courts.

Legislating the right to education

We have seen several drafts of the right to education Bill, none of them entirely satisfactory. One of the sticking points was allocating the costs between the Centre and the State governments. It seems that there is some movement on the issue, with the centre apparently agreeing to share the most of the financial burden. This article points out to the new interesting aspects of the Bill currently under consideration:
1. An obligation on all schools, public or private, to admit it least 25% of the students from the neighbourhood.

2. To gradually do away with the informal school system established under the Sarva Shiksha Abhiyaan and evolve quality indicators for recognizing a school.

A detailed analysis of the Bill is available on the PRS website. After all the attention to tertiary education in the reservations controversy recently, this glimmer of hope for primary education has not come too soon.

Mass Crimes and the inadequacy of Indian laws to address them

This year’s ICC-India campaign began with its 2nd National Consultation on International Criminal Court and India in New Delhi today. The campaign is an eight-year old anti-impunity campaign, which works on issues of justice and accountability for mass crimes in India, using principles from the law related to ICC. For the uninitiated, ICC is an independent treaty-based organization that is designed to serve as a safety net for use only when national courts are unwilling or unable to act. Based in The Hague, the Netherlands, the ICC builds on a legacy of the Nuremberg and Tokyo tribunals, which tried perpetrators of World War II atrocities, as well as the more recent work of the UN-created ad hoc war crimes tribunals of Rwanda and the Former Yugoslavia. The campaign is part of the global campaign.

Currently, 106 countries have become members of the ICC’s governing Assembly of States Parties. India is not a State Party to the ICC. The Rome Statute creating the ICC is a treaty adopted on 17 July 1998 by 120 nations voting in favour, 7 in opposition and 21 abstaining. The ICC treaty came into force on April 11, 2002, with 60 ratifications, enabling the Court to try acts of genocide, war crimes and crimes against humanity committed after 1 July 2002. (Which means even if India decides to ratify the Statute, the Gujarat Genocide of 2002 will be out of its purview). In 1998, India had abstained from voting on the Statute. In December 2002, it concluded a pact with the U.S.- an active anti-ICC campaigner - not to surrender each others’ citizens or military contractors to the ICC for prosecution.

The background material distributed at the Consultation includes an insightful article on India and the ICC written by Usha Ramanathan, and published in Journal of International Criminal Justice (Vol.3, (205) pp.627-634), where she articulates and answers some of India’s concerns over the ICC Statute.

The ICC-India campaign, to use the words of Siddharth Varadarajan, who spoke at one of the sessions, may not succeed in making India ratify the Statute, but its success has to be measured in terms of creating awareness over the need to reform domestic laws to enhance their ability to address mass crimes.

Vrinda Grover, while speaking on “why mass crimes go unpunished: Gaps and flaws in the Indian legal system”, called for specific changes across the board in IPC, Cr.P.C. and Evidence Act to make State institutions accountable in mass crimes.

Elaborating, she said Indian criminal jurisprudence has no scope to deal with communal riots. S.146 I.P.C. deals with rioting by an unlawful assembly. Likewise, there are different sections dealing with murder, rape etc. The various reports of the Commissions of inquiry view communal riots as violence between two groups of equal power. There is for instance, no definition of planned targetted killing, or State's complicity in planning and orchestrating a mass crime.

As a result, the arraignment of accused is always incomplete, and those who abdicated State duties are not brought to book. The same police force, which played a dubious role during communal violence, is asked to investigate. The police thus files omnibus FIRs, there is no identification of dead bodies, and no effort taken to collect corroborative evidence. IPC lifts crimes, does not talk of the context in which crimes are taking place, she explained.

Even in the case of systematic destruction of communities because of ethnicity, caste or religion, the same requirements of filing of FIR are insisted upon. In one case, when victims filed FIR after six months, the court acquitted the accused on that ground alone. Section 375, IPC, for instance, does not envision sex-related violence during a carnage as happened in Gujarat in 2002. She deplored that there is no law to make the State institutions accountable; instead we have Section 197 Cr.P.C. to provide immunity to State officials and Judges.

Vrinda Grover was sceptical about the Prakash Singh judgment of the Supreme Court calling for reforms in Policing. She doubted the motives of the petitioners in this case, as they are former DGPs, who suffer from institutional bias. They want autonomy for the police; what about their accountability, she asked.

Saumya Uma, coordinator for ICC-India, and Co-Director, Women's Research and Action Group (WRAG)gave an overview of the campaign in South Asian countries. She spoke about Afghanistan, which is the only country in South Asia to have become the State Party to the ICC. She recalled that India signed the Bilateral Immunity Agreement with the United States in total secrecy, and made the announcement after the signature.

ARTICLE ALERT: Today's Indian Express carries an article co-authored by our co-blogger Tarunabh.

Update: A detailed report on the consultation, prepared by the organisers, can be found here.

Responses to Katjuism

Well, that is how Justice M.Katju’s observations on judicial activism must be known as. Today, the Times of India has carried Soli Sorabjee’s response to Justice Katju’s observation on April 21 that the Executive could ignore the Court’s directions, if they are illegal. The Times of India’s account of the hearing of the case on April 21 is being linked for addition to our discussion on PILs and Judicial activism. The HT's report giving the details of the case is here.

The TOI report says: "Sorabjee agrees with Justice Katju that the courts should exercise restraint while dealing with PILs questioning the validity or legality of executive's decisions on fiscal and policy matters. But how could the executive be bestowed with the power to decide which of the court orders were null and void and which of them were within the parameters drawn by the Constitution, the former AG wondered."

"Judicial restraint in fiscal and policy matters may be desirable, but permitting the executive to decide whether a court order is beyond its jurisdiction and to treat it as null and void — a ground for disobeying it — is tantamount to subversion of rule of law and independence of judiciary," Sorabjee said.

Is the SC against whistle-blowers who use the PIL?

In the recent Chief Justices Conference held in New Delhi, Resolution No.12, passed at the Conference, asked the High Courts to strictly follow the Judgment given in Divine Retreat Centre vs. State of Kerala & Ors., delivered by Justices Kapadia and Sudarshan Reddy on March 11 this year. This judgment frowns on the practice of accepting anonymous petitions as PILs, and issuing of directions on that basis, without hearing the other party. In this case, the anonymous petititon accepted by the Judge, also annexed the relevant newspaper clippings, and VCDs etc. to convince the Judge that the Police investigation into a crime was not impartial, and that the Court must order an investigation by a Special Investigation Team. The Supreme Court's stipulation that the Judge concerned must have placed the petition before the Chief Justice, rather than decide the petition himself makes perfect sense. But its general observations against entertaining anonymous petitions using the PIL route, may suffer from over-generalisation. How else will whistle-blowers bring a case of injustice or wrong-doing to the notice of the appropriate authorities, in order to bring out the facts, and seek redressal? The option of approaching an NGO, or the Legal Aid forums may not make sense to a petitioner, who perceives threats if anonymity is compromised.

Parliament Attack case: Shoukat Hussain Guru's plea for retrial-II

In the last post on the subject, I summarized the arguments of Shoukat’s counsel, Shanti Bhushan. On April 22, the Additional Solicitor General, Gopal Subramanium made his submissions before the P.P.Naolekar and V.S.Sirpurkar Bench. The ASG argued that there is a reasonable, inescapable inference that Shoukat had the knowledge of conspiracy, if we take into account his close association with the other convicts, visits to the hideouts, his last minute contact with the main convict, Afzal (who death sentence has been confirmed by the Supreme Court).

He argued that there is a high degree of probability that Shoukat had the knowledge that his cousin had conspired, and yet he refrained from intimating the police. He pointed out that the Court had analysed the evidence threadbare, knowledge was clearly made out because of tell-tale circumstances, and there was no error at all. Therefore, his conviction under Section 123 IPC (Concealing with intent to facilitate design to wage war) was absolutely correct, especially as his conduct after the attack, gave scope for no reasonable excuse.

According to the ASG, Section 123 is a lesser offence, and hence can’t be treated as a distinct offence requiring separate proof and ingredient. He argued that Shoukat’s knowledge might have fallen short of the knowledge and intent required for Section 120B or Section 121 IPC, as he was acquitted of offences under these sections. Justice Sirpurkar asked if one is acquitted of offences under Section 120B and Section 121, how can it be said that he was aware, and had the duty under Section 39 Cr.P.C. (Public to give information of certain offences).

The ASG replied that it is here judicial dispassion prevails: if larger knowledge can be termed as intent, and a starting point for convictions under Sections 121 or 120B, a lesser degree of knowledge is sufficient for conviction under Section 123. Shoukat’s acquittal under Sections 120B and 121 does not automatically warrant his acquittal under Section 123, if the ingredients are present, he said. He relied on Section 222(2) of Cr.P.C., which says when a person is charged with an offence, and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. He argued that judgment which attained finality can’t be undone. He suggested that there has been no miscarriage of justice in his conviction and sentence under Section 123.

In his reply to the ASG’s arguments, Shanti Bhushan said liberty cannot be taken away except by procedure established by law. “Procedure” here means oral hearing, which was denied to Shoukat as far as his conviction under Section 123 IPC was concerned. “You had convicted him without giving him an opportunity”, he told the Bench. Pointing to the 7-Judge Bench decision in the Antulay case(A.R.Antulay vs.R.S.Nayak, (AIR 1988 SC1531/1988 2 SCC 654), he said this Court is not powerless to correct its error. Relying on paragraphs 48 and 55 of that judgment, he said, Shoukat’s conviction was not according to procedure established by law.

“It will be to the eternal glory of this Court if it realizes that there was an error”, he told the Bench.

Bhushan also relied on Shamnsaheb M. Multtani vs. State of Karnataka ( AIR 2001 SC 921; 2001 2 SCC 577). In this case the appellant was convicted by the High Court under Section 304-B (Dowry death), without opportunity being granted to him, (Prosecution had failed to make the case under Section 302 IPC) and the Supreme Court set aside his conviction, and ordered his retrial.

Justice M.Katju on his changing perspective on PIL

This blog, among other things, will continue to record Justice M.Katju's love-hate relationship with the PILs. Here are two reports on yesterday's hearing in his court, to compensate for my failure to live-blog on this on-going, but fascinating aspect of a contemporary debate on the limits of judicial activism. The Mail Today story is here. The Hindustan Times story is here.. Between 2004 and now, what precisely influenced Justice Katju so as to undergo a genuine introspection on the PILs, and limits to judicial activism? He has grown wiser, according to his own admission, is fair enough. But what precisely contributed to this change in perspective? Are there a series of instances which might have influenced him to look at the PILs more critically than what he would have been earlier?

Articles on Mandal II Judgment

Here are some more articles which appeared in recent days on the Judgment. I add my summary/comments briefly for record.

1. Harsh Sethi, Editor, Seminar in DNA: Regrets that policy debate and public discourse is restricted to quotas alone.

2. P.P.Rao, in Tribune: Drawing from his submission to the Bench during the hearing, Rao argues that the creamy layer criteria for OBCs in education must include graduation. Argues that occupation/income route to identify SEBC is better than using caste as the starting point.

3. Rajinder Sachar in Tribune: questions the Government's failure to implement the impugned 2006 Act, (relating to SC/ST) when only the OBC part of it was stayed last year. Sachar seems to forget that quota for SC/ST is already under the Executive orders, and this Act only seeks to replace them.

4.Rajeev Dhavan in Mail Today: He, like Rao, draws from his submissions before the Bench as the petitioner's counsel. Refers to lack of Parliament debate, without mentioning the fact that J.Pasayat, who is otherwise sympathetic to the anti-quota arguments, dealt with this issue at length, only to reject the argument that lack of debate in Parliament could be a ground to set aside an amendment or Act. Similarly, his vote-bank politics allegation has also been answered by the Chief Justice. Argues for creamy layer test for SC/ST. He also shares the mistaken view that Majority Judges have made the OBC graduates ineligible for quota.

5.T.T.Ram Mohan in Economic Times: He cautions: "If the ‘creamy layer’ is defined very rigorously, it may be difficult to fill the quota of 27%. The unfilled seats would go the general category. As there is to be an expansion of capacity, quotas for SEBCs would then have the perverse effect of giving more seats to the general category."

6. Business Standard interview with Sharad Yadav.

7. T.C.A.Srinivasa-Raghavan in BS:On the way reservation works out. The link to the NBER research paper he refers to is here

8. EPW edit: (Thanks to Mr.Ravi Srinivas for suggesting)Questions the logic of applying creamy layer formula in higher education.

9. Sunil Jain in Business Standard also questions the logic of applying creamy layer principle in higher educational institutions, though he himself is against quota.

10. HRD Minister Arjun Singh's interview to Outlook, and Outlook's coverage of the issue.

11. Suhas Palshikar in Indian Express:The best analysis I have come across,making the point which I have suggested earlier that Congress or Arjun Singh cannot be accused of playing vote bank politics. Since all parties backed the quota policy, no political party could claim exclusive credit at the hustings. The author suggests that mobilisational space in OBC politics has shrunk, and no single party can be a clear winner because of the quota in educational institutions.
Suhas has also written in EPW: The Supreme Court judgment does not mean the end of the debate on reservations. A long-standing challenge for those who support affirmative action is to end the phenomenon of quotas being an instrument of political mobilisation rather than a mechanism to ensure social justice. The main issues that need addressing are identification of Other Backward Classes, the criteria for deciding the creamy layer and the fallout of sub-classification of the intended beneficiaries. None of these issues can be seen as having been permanently decided by the Mandal Commission or the courts nor can they be seen as not changing over time.
12. Jayanthi Natarajan on why affirmative action is not vote-bank oriented. Article in Asian Age
13.Jaithirth Rao on castes being a reality: I was reminded of the respondents' argument that casteless society cannot be a goal of the Constitution - a contention which the Bench rejected.
14. Pratap Bhanu Mehta in Outlook

Roche vs CIPLA: The Rhetoric of Patent Busting

Some of you may be following a recent patent controversy involving Roche, a multinational pharma company and CIPLA, a generic manufacturer from India. CIPLA brazenly defied Roche's patent over an anticancer drug, Tarceva and went ahead and introduced a generic version at 1/3rd the price. Upon being sued, it sought to invalidate the patent i.e. it claimed that the patent ought not have been granted in the first place. CIPLA's counsel, Arun Jaitley argued very persuasively in court that Roche's drug did not meet the requirements of section 3(d), a unique section introduced into India's patent regime in 2005 to prevent a phenomenon widely known as "evergreening".

Under section 3(d), derivatives of existing pharmaceutical substances would not merit patent protection, unless such derivative was more "efficacious" than the earlier existing pharma substance. Readers will recollect that this section was challenged by Novartis as being violative of TRIPS and of the Indian constitution (for those interested, SpicyIP has been tracking this dispute here).

CIPLA also stressed that since the price differential between the patented drug and the generic version sold by CIPLA was extremely high (about 3 times), "public interest" demanded that no injunction be granted in favour of Roche. In a remarkably sophisticated and well researched judgment, Justice S Ravindra Bhat of the Delhi High Court (who was recently elevated to the bench and was deciding an IP matter for the first time) ruled in favour of CIPLA.

Given that patent litigation is still in its infancy in India, and the concerns around patents and public health are substantial, this case is being watched very closely by many around the world. It is very likely to go down in the annals of patent history as an important landmark. What might be particularly interesting for readers on this list is how the judgment refers to the right to access affordable medication as a right to life under Article 21 of the Constitution (though, the judge does not elaborate on this aspect--perhaps owing to the fact that this was only an interim order).

The matter is now under appeal. Unless Roche is able to demonstrate empirically that CIPLA's lower prices for Tarceva (the lung cancer drug in issue) does not really translate to increased access to poor patients, it is difficult to see how Justice Bhat's order will be overturned in appeal. (For those interested in further details, we've been tracking the progress of this case on SpicyIP).

The Indian Express carried a short note of mine on this decision (largely as a response to this earlier piece here. I am grateful to Tarunabh for bringing this earlier piece to my attention). The Economic times also carried a piece of mine, that touched on judge made compulsory licensing norms--a wider policy implication of this judgment. Both news items are reproduced below.


Indian Express Piece: "The Rhetoric of ‘Patent Busting’

Shamnad Basheer

Posted online: Saturday, April 12, 2008 at 0028 hrs IST

"The verdict on one of the most keenly watched patent litigations was finally out last month. In a carefully nuanced and remarkably well-researched judgment, Justice S. Ravindra Bhat of the Delhi High Court refused to injunct Cipla from selling generic versions of a patented anti-cancer drug belonging to Roche. The judgment has received mixed reviews, while innovative pharmaceutical companies see this as “patent busting” of the worst order, public health activists are ecstatic at this clear preference for patients over patents.

To me at least, the judgment appears to strike the right balance between private patent rights and public health imperatives. A careful reading of the 58-page order suggests that the key factors that influenced the judge to decide way he did were: First, Cipla’s drug, Erlocib was being sold at one-third the price of Roche’s patented anti-cancer drug, Tarceva.

Second, Roche was not manufacturing the drug in India, but importing it — causing the judge to worry about the prospects of long term supplies from a multinational corporation operating within India.

Third, Cipla raised very serious doubts about the validity of the patent.

Fourth, Roche’s attorneys were ill prepared and committed a number of lapses. Illustratively, they requested an ex-parte interim injunction from the court without so much as producing a copy of the patent claims. Besides this, as the judge himself points out in his judgment — they failed to raise the issue of “irreparable hardship”, a critical component of the three step injunction test in India.

Apart from the above, an ill reasoned order from the patent office in response to a pre-grant opposition filed by Natco against Roche’s patent application influenced the court. In particular, the court found that the patent office, while granting the patent, wrongly relied on a recently overturned US test that considerably lowered the threshold for patentability. Little wonder then that Roche’s argument that the patent office decision in its favour renders the patent immune from attacks on validity did not sway the court much.

What is most unique about Justice Bhat’s judgment is that it stresses that “public interest” has to be factored in before a court decides to grant a temporary injunction or restraining order against an alleged infringer.

The crux of his judgment appears to be this: At this “interim” stage, one cannot conclusively determine whether or not Roche’s patent is valid. In the light of this uncertainty, the critical factor for consideration is “public interest” — whether or not the grant of an injunction will cause “irreparable hardship” to critically ill lung cancer patients, who may not be able to afford Roche’s monopoly prices. And if the court finally finds in favour of Roche that the patent is a valid one, then Cipla can be made to compensate Roche for all the losses up to that stage. To this extent, the court asked Cipla to maintain a clear account of moneys made from the sales of its drugs.

Given that the validity of the Roche patent is in serious challenge, does the denial of a temporary injunction to the patentee amount to patent busting? Should patent injunctions be granted as a matter of right at this stage? Has India got its policy wrong? We need look no further than the most patent friendly nation on the face of this planet — the US, where the Supreme Court held that the grant of an injunction in patent cases is not a matter of right but a discretionary remedy. And this discretion has to be exercised carefully, taking into account several factors, one of which is “public interest”.

Even as we speak, Roche is asking a US court to do exactly what Cipla had requested Justice Bhat to do — not to grant an injunction on grounds of “public interest”. Effectively Roche’s claim is that, although its anaemia drug, Mircera infringes Amgen’s patented Epogen, there ought to be no injunction on grounds of “public interest” because Mircera is cheaper, requiring less frequent “dosing” and is therefore beneficial to patients. Surely what’s sauce for the goose is sauce for the gander as well!

What remains to be seen is whether future Indian judges will apply the tenets laid down in Justice Bhat’s judgment in an unbiased manner to home grown patentees such as Ranbaxy and Dr Reddy’s. In other words, if the concern is that patients are prejudiced by potentially “invalid” patents and high prices, then the concern ought to equally apply when the patent in question is held by Ranbaxy and not by an MNC.

To conclude, one is not certain at this stage if the Roche patent over Tarceva is a valid one or not. Prior to a final decision on this count, deploying adjectives such as “patent busting” or “patent breaking” to describe the Delhi High Court order smacks of ignorance. If at all anything has been “busted”, it is the notion that patents are sacrosanct monopolies that cannot be derogated from. Most patent scholars today readily agree that patents are nothing more than a statutorily granted right by the state in exchange for the useful disclosure of scientific information. As with other statutory rights, they can be derogated from, when “public interest” so demands. Sophisticated patent policy requires a careful balancing of innovation imperatives through patents against other competing and perhaps more important interests, such as the right to health. And it is this delicate balance that Justice Bhat strives for and achieves in his judgment — a judgment that will no doubt go down in the annals of history as representing a milestone in Indian patent jurisprudence."

The Economic Times Article: Patents vs Patients: Cipla’s victory and the evolution of new “Compulsory Licensing” Norms (Published on March 26, 2008)

"In a major victory for public health advocates the world over, Justice Ravinder Bhat of the Delhi High Court recently ruled that CIPLA could continue producing generic versions of Roche’s patented anticancer drug, Tarceva (Erlotinib). Ignoring Roche’s statutorily granted right and ruling unequivocally in favour of the rights of cancer patients to access cheap medications, this could be India’s most path breaking patent decision till date.

The key issue before the court was whether or not the patentee, Roche was entitled to a temporary injunction restraining CIPLA from selling its version of Erlotinib, under the brand Erlocip.

Echoing the findings in an old British case, American Cyanamid Co vs Ethicon Ltd, the court held that a temporary injunction would issue in favour of Roche, only if it proved the following:
i) That it had a prima facie case
ii) That the “balance of convenience” was in its favour
iii) That it would suffer “irreparable injury”, if CIPLA was not injuncted

On the first condition, the court held that Roche had demonstrated the existent of a prima facie case of infringement, since it held a valid patent that was infringed by CIPLA. However, the court also noted that CIPLA had raised a plausible doubt that the patent was invalid, as it was “obvious” and it did not comply with section 3(d)—a unique section introduced in India’s patent regime to weed out frivolous pharmaceutical patents. Owing to the fact that this was only an interlocutory petition, the court did not delve too deep into the merits of this contention.

The court then looked to the second factor, namely “balance of convenience”. In other words, would the non-grant of an injunction inconvenience Roche more or would its grant inconvenience CIPLA (and the patients) more? Closely related to this analysis is whether or not Roche would suffer irreparable hardship if it did not obtain the injunction.

The court held that Roche would not suffer irreparable hardship from the non grant of an injunction. If Roche’s patent was to be found to be valid at the final stage, it could easily be compensated at that stage for all the losses accruing to it from the non-grant of a temporary injunction. To this extent, the court asked CIPLA to maintain accounts of sales etc.

In supporting CIPLA and holding against Roche, the court revealed a clear preference for patients over patents. It noted in pertinent part that CIPLA’s drug was 3 times cheaper than the Roche version. From this, the court concluded that more patients would be able access the CIPLA version, Erlocib.

Importantly, the court was also very concerned with the fact that Roche was not manufacturing the drug in India. Perhaps the pre 1970 position, where India was literally at the mercy of MNC’s (which more or less controlled drug supplies) might have played out in the mind of the judge.

In what must surely be music to the ears of patients and public health activists, the court elevated the right of a patient to access cheap drugs as a fundamental right to health under Article 21 of the Constitution.

Another major implication of the courts judgment is the introduction of new compulsory licensing norms. Thus far, we’ve known of only “statutorily” created compulsory norms in Chapter VII of the Patents Act. This chapter contains a number of provisions whereby a patentee could be forced by an applicant to license his/her invention on reasonable royalty terms.

Unfortunately, most grounds for compulsory licensing under this chapter kick in only after 3 years have elapsed since the date of grant of patent. For a drug like Tarceva patented only in 2007, CIPLA would have to wait till 2010 before approaching the patent office for a license. Under the Delhi High courts ruling however, CIPLA could cleverly achieve what the statute states without waiting for the 3 year period. All it has to do is to introduce generic versions of a patented drug and then wait to be sued!!

Although this is only a temporary ruling and we still await the final decision (after trial), the logic of Justice Bhat could be transposed to a final decision on the merits. In other words, if the patented drug is priced more than the generic (which is almost always the case) and is not manufactured in India (about 90% of MNC drugs qualify under this), the patentee will not be entitled to an injunction. Rather, damages will be taken as sufficient compensation for the losses to the patentee from infringement by a generic which sells its own cheap version of the generic.

In short, the Delhi High Court has effectively created another stream of “judge made” compulsory licensing. And to this extent, India has once again shown that it will strike a different chord from the rest of the world and evolve new “patient” friendly patent norms, when the situation so demands."

Desai and Kannabiran on the Thakur case

Kalpana Kannabiran, a Professor of Sociology at NALSAR, Hyderabad, has a column in today's Hindu on the Thakur case and its implications, where she refers to differences in the four judgments as well. A few days ago, Meghnad Desai had an column in the Express where he seemed to offer, among other things, support for the stance that Justice Bhandari takes in a large portion of his separate judgment.

I know that some people on the blog who have had a long interest in issues of reservation are still formulating their own stances. While we wait for a full debate on the case here, it would be interesting to see how others in politics, civil society and academia view the judgment. I hope others will join me in tracking the more insightful of such views, which will also serve as a record of the debate over the issue for the future.

Temporary shift in focus: Important case for property rights and SEZs

We are now beginning to delve into the details of the Thakur case, and I do not mean to obstruct that process. But, as with much else in life, things go on and we should continue to track other significant developments as well. One of our readers sent me this link to a news-item from Live Mint on a current case that may have implications for the right to property in general, and the debate over SEZs in particular. This seems like a significant development, and I hope Mr. Venkatesan and others can throw light on the actual proceedings in the Court on the issue. (Thanks to Avirup Nag for the alert).

Mandal II Judgment: More questions than answers

[Mr.Rampal of the Bailey contributed this insightful analysis in the Comments Section. I am glad to post it on his behalf, to facilitate better visibility and further debate. I thank him for the contribution. -V.V.]

GUEST BLOGGER: RAMPAL OF THE BAILEY

I think the judgments raise as many questions as they answer. Some first impressions-

1. KGB (Chief Justice) excludes the creamy layer, but after setting out the OM criteria says they may be relaxed if enough OBCs are not found to fill the seats. This defeats the entire point of the creamy layer. None of the other judges specifically concur with the relaxation holding. Pasayat and Bhandari both hold the creamy layer violates art. 14 and the basic structure. Raveendran says he agrees with Pasayat and KGB that creamy layer has to be excluded. Hopefully, the relaxation of standards can be read as obiter.

2. It is at the least odd to refuse to consider pvt edu inst considering that arguments were advanced qua them, without any objections from the respondents, as Bhandari records in his op. they could have been impleaded if required, and again, as Bhandari points out this would have saved valuable time and expense as regards future litigation. It would be another thing if the judgment were to hold that the petitioners lacked locus, a finding it does not make.

3. KGB refuses to apply the creamy layer to SC/STs saying that they are a class by themselves and that it is not a general concept of equality. This is a dangerous holding, but again one he seems to be alone in. Pasayat and Raveendran are silent on this, and Bhandari leaves the question open to be decided in a future case. From the tenor of the other judgments it is clear that they consider the creamy layer concept to be crucial qua equality (treating unequals equally and vice versa).

4. The factual basis for the holding that caste has not formed the sole basis for the fresh reservation leaves much to be desired. After extensively quoting various sociologists and judgments, KGB brushes off this question in three short paras (paras 140-142) without providing any details of what precisely the other criteria were and whether they were satisfactory. This is all the more disturbing in view of the emphatic holding by 3 out of 5 judges (Pasayat, Thakker, Bhandari) that the government has no OBC data and its figures (52% of popn is OBC) cannot be accepted.

5. It would have been reasonably simple to hold that art. 15(1) forbids only ‘discrimination’ on the basis of caste and since affirmative action is not discrimination there is nothing wrong in reservations being caste based. This argument would flow naturally from the Courts view that arts. 15(4) and 16(4) are facets of equality and not exceptions to the equality principle. KGB, Pasayat and Thakker reiterate the facet view, while Bhandari views 15(4) and 16(4) as exceptions to the (formal) equality principle. Tarun points out that this may be because they (the judiciary) wish to retain control over reservations.

6. Most interestingly, it seems eminently arguable that 3 out of 5 judges have held that once a person is a graduate he can never be considered a member of a SEBC (see para 139(5) of Pasayat’s judgment, and para 273 of Bhandari’s judgment). This would take all IIMs and post grad institutions out of the purview of reservations. (SEE COMMENTS FOR CORRECTION)

7. Standard of review- while KGB explicitly rejects strict scrutiny, Pasayat seems to confuse it with art. 19 reasonableness review (cites VG Row etc)and calls it just a tag (paras 132-133) and mysteriously says ““In that sense, the strict scrutiny test is not applicable and indepth scrutiny has to be made to decide the constitutionality or otherwise, of a statute.” Bhandari also emphasises the value of comparative material and holds that caste is similar to race and ‘careful scrutiny’ must be applied. Raveendran is silent on the point. It cannot be said that there is a clear plurality holding qua this issue.

8. Bhandari’s opinion has several holdings qua art. 21A. he orders a time limit to be set for its implementation within 6 months and virtually orders the UoI to enact a law for compulsory school education, while finding that primary education is unsatisfactorily funded compared to higher education. It is unknown whether all these issues were argued (why do the other judges not mention them)or whether all these holdings are purely gratuitous. Bhandari also challenges the established dogma that the First Parliament can be equated with the Constituent Assembly since their composition was nearly identical holding that art. 15(4) was a deviation from the Framers vision. He also pitches in strongly for the use of income criteria.

9. Pasayat’s judgment reads like the dissent that never was and he doesn’t seem to make any specific findings qua the 93rd amendment despite quoting extensively from various judgments.

10. I suspect that in order to make the judgment ‘unanimous’ (a dubious claim given the possible pluralities), KGB conceded creamy layer, and the rest conceded the validity of the constitutional amendment and the law. Being lacking in clarity, the judgments are sure to spawn future litigation, the most unsatisfactory thing in this area of the law.

Mandal II Judgment: Some unanswered questions

I have had the opportunity to go through the notes taken when the Chief Justice of India read out the summary on April 10, while delivering the Mandal II Judgment. The original version as read out by the CJI is still not in the public domain, but this notes can be relied upon for raising some valid questions.

After the four judgments were read out by the Judges, the Chief Justice read out a summary of findings of the Court so that there is no confusion. He read out as follows:-
*The 93rd Amendment Act does not violate the basic structure so far as it relates to aided educational institutions. As far as private unaided educational institutions are concerned, 4 out of 5 Judges have left the question open while Justice Bhandari has held that it is violative of the basic structure.
*The 2006 Act is constitutionally valid subject to exclusion of creamy layer.
*The quantum of 27% reservation for OBCs is not illegal.
*The 2006 Act is not illegal merely because time limit is not prescribed for reservation.
*There should be a review of the lists of SEBC every 5 years.

Questions:

1.The direction for a review of the lists of SEBC every five years: Does it run counter to the direction in Indra Sawhney 1 which was for review/revision every 10 years? The Government appears confused on this. At the same time, it should be noted that the Bench rejected the plea to set aside the Act merely because the lists were not revised by the Government, even after 10 years. In 2003, when the time for review came after 10 years of notification of the lists, the Government consulted the NCBC, and the latter conveyed the views of the States that revision was not required at that stage. The Bench did not deal with how the review should be done, and what happens if the review is not to the satisfaction of the Court.

2. The question of graduation being a factor in identifying backwardness of castes was dealt by Justice Pasayat. But such a factor is already one of the recognised criteria with the NCBC, to determine backwardness. Therefore, Justice Pasayat's suggestion has been put forward as if it was earlier ignored by the NCBC. This forms part of the summary of Justice Pasayat's findings which says: "Graduation or professional qualification shall be the standard test for measuring backwardness,", but this is missing from the overall summary prepared by the Chief Justice. The summary of Justice Bhandari's findings (as read out in the Court) is equally silent on his opinion that once a candidate graduates from a uiversity, he/she is educationally forward and is ineligible for special benefits under Article 15(5) for post-graduate and any further studies thereafter.

3. Justice Bhandari suggested to the Government to adopt economic criterion to identify backwardness, after he said he was "compelled" to agree to caste being a criterion. Justice Pasayat also said, to strike a constitutional balance it is necessary and desirable to ear-mark certain percentage of seats out of permissible limit of 27 per cent for "socially and economically backward classes". This phrase is probably used for the first time in the context of reservations. Justice Pasayat says in the summary read out in the Court: Some seats of 27% seats for OBCs should go to socially and economically backward classes after 10 years. Taken together, do the majority Judges approve of economic criterion? Will it be binding? But it doesn't form part of the CJI's summary. And it also runs counter to Indra Sawhney1 which had rejected economic criteria adopted by the Narasimha Rao Government.

4. I understand some lawyers had suggested that Justice Bhandari's view that that part of Article 15(5) dealing with reservations in private educational institutions would be severed will be binding, as the other four Judges left it open. The summary read out by the Chief Justice in the open court says: "The 93rd Amendment Act does not violate the basic structure so far as it relates to aided educational institutions. As far as private unaided educational institutions are concerned, 4 out of 5 Judges have left the question open while Justice Bhandari has held that it is violative of the basic structure." Is the question of binding nature of Justice Bhandari's decision also open? The CJI's summary is silent on this.

This is how Justice Bhandari's opinion, as read out in the Open court goes: "The 93rd Amendment Act in so far as it relates to private educational institutions distorts basic structure as it abrogates Article 19(1)(g). As far as State and aided institutions are concerned, Article 15(5) is valid. Hence I sever the portion of Article 15(5) in so far as it relates to private unaided educational institutions." Of course, it is reasonable to suggest that majority Judges want the question to be left open, but I don't know whether there is any case law which suggests otherwise.

Mandal II Judgment: Some preliminary thoughts

1. Merits of Multiple Judgments: Arun has referred in the pervious post to the problems posed by different judgments even while the Judges agree on many of the questions before them. While his view is understandable from the point of view of a reader, who has the difficulty in finding the ratio, I must say that diversity of opinions, even while the Judges concur on the crucial issues, adds to the vibrancy and development of the Constitutional jurisprudence. If they have different views, why should they not give separate opinions? Even when they want to add or supplement, a common judgment will not do justice in giving due credit to their individual contributions. It is not just language, what the Judges contribute in terms of concepts, and interpretation add to jurisprudence.

Take Justice Raveendran’s judgment, for instance. Even while agreeing with the Chief Justice on most of the questions, I find his judgment valuable for the important contributions/additions it makes. These would have been buried, if Justice Raveendran chose to give his inputs to CJI’s judgment, and the world would not know that it was Justice Raveendran who was the author of those contributions/additions.

Take Pasayat-Thakker Judgment, for example. Though Pasayat must have been the principal author, Thakker too could have contributed, we don’t know. These nuances must be transparent. Individual Judgments help this transparent exercise. Well, one could ask what about resultant confusion? That is where as students of constitutional law, we need to use the standard tools of finding out the ratio, and if that is not possible, there is the option for the parties to go back to the same bench again for clarification. Judges don’t clarify their judgments in public, and their private clarifications don’t carry weight. In complicated cases like this, individual opinions help to understand the various nuances, and understand individual Judges’ contributions better.

It is possible that some Judges tend to be repetitive in their individual judgments, even after reading the drafts of their colleagues. In that case, those Judges would have exposed themselves before the world at large, for being superfluous, and redundant. Therefore, I would say, the four Judgments on Mandal II have been by and large a rewarding experience, in terms of contribution to Constitutional jurisprudence, even while one may have serious reservations about individual judgments. One does not feel, after reading them, that a judgment has been superfluous, or redundant. In the debate on the blog a year ago, for which he had given the link, Arun had defended the virtues of multiple judgments, which I found very persuasive. His stand on the Ashoka Kumar judgment perhaps reflects the impatience of a reader, struggling to find the ratio.

2. Were the Judges shackled by Indra Sawney-1 judgment, which was delivered by a larger Bench?
This question assumes that the Judges in the Ashoka Kumar Thakur case were indeed in favour of the petitioners, who challenged Article 15(5), and the law enacted under it. But there is no evidence of any basis to such an assumption, except in the case of Justice Bhandari. In his answer to Q.No.4 towards the end, he says Sawhney 1 compels him to conclude that use of caste is valid. Although Judges cannot write their personal views in the Judgments, Justice Bhandari’s reference to the binding nature of Sawhney 1 may not be according to Judicial decorum.


3. The mystery of two-page summary read out by the CJI on April 10: I understand that the CJI read out a two-page summary listing the major points of agreements among the 5 Judges. I also understand that he corrected himself, as far as the direction to the NCBC for a periodical review is concerned. While Justices Pasayat and Thakker wanted once in a five-year review, CJI and Justice Raveendran had proposed once in a 10-year review. Justice Bhandari chose to be silent. His silence, though must be interpreted in favour of Justice Pasayat, as in substance, Justice Bhandari seemed to be in sympathy with Justice Pasayat. However, in the two-page summary, the Chief Justice appeared to have clarified that he and Justice Raveendran too favoured once-in-five years-review. One does not know whether this summary was signed by all the five. It has not been put on the website. Like the mysterious summary hastily read out by the then Chief Justice in the Keshavanand Bharati Judgment, the latest summary may be an important one in unraveling some of the nuances.
(MORE IN THE NEXT POST)

Jaising and Palshikar on the Thakur case

This post is part of an effort to track early responses to the Thakur case. I won't have time to comment on these now, but here is Indira Jaising's rediff.com column on the case, and this is a column in today's Express by Suhas Palshikar. Both can broadly be classified as supporters of the decision, though there are differences in the degrees to which they support the decision. In keeping with her status as an activist-lawyer, Jaising's piece is more fulsome in its praise for the judgment, while Palshikar, speaking from the standpoint of a social science academic, is more measured in his assessment of the merits of the judgment.

One problem with both these commentaries - and with some of the initial newsreports - is that they keep referring to the case as if it were a single, clear judgment of the Court (both columnists refer to the decision and the ruling in the singular throughout their respective columns). Yet, as Mr. Venkatesan's previous post shows, there are real problems in understanding what the Court as a whole said on the details of the questions posed beyond the larger issue of the constitutional validity of OBC quotas being upheld. A year or so ago, some of us on the blog debated the virtues of unanimous decisions of Supreme Courts in complicated cases, as a way of making the decisions more clear and coherent. This case seems to point to the problems of interpretation posed when judges can't get their colleagues to sign onto a joint judgment. I can't help wondering why the Chief Justice was not able to persuade those who did not differ substantially from him to avoid writing separate judgments, given the importance of the issue and the clear need for judicial solidarity.

Are Graduates ineligible for Mandal II benefits?

The media is abuzz with reports that Justices Pasayat-Thakker judgments on Mandal II -if read with Justice Bhandari's - would mean that majority Judges have held that graduates cannot be educationally backward, and therefore, cannot qualify as SEBCs/OBCs. As a consequence, these reports suggest, the OBC graduates cannot be the beneficiaries of the law meant for OBCs which has been upheld by the Supreme Court's Constitution Bench.

The confusion, I understand, has now been cleared. Justice Pasayat, I believe, has referred to the issue only in the context of identification/determination of OBCs. This clarification assumes significance in the context of some misinterpretations in sections of the media about the import of the Judgment.

If majority Judges indeed wanted to disqualify the OBC graduates from the Mandal II benefits, then they would have struck down the law, as the Central Government's aim in this Act was to confer the quota benefits on OBC students in higher education (though the Act is applicable to all the Central educational institutions, irrespective of whether it is post-graduate institutions or not.) Still, it would have been better if Justics Pasayat and Thakker made themselves clearer in their judgment on this issue than what they have been. It seems Justice Pasayat's purpose in suggesting it was that if a group reveals the presence of a substantial number of graduates, then that group cannot be called SEBC/OBC, and the NCBC ought to exclude it at the time of review. That does not mean, graduates in a recognised OBC group would be excluded (like the creamy layer in that group) from the Act's benefits. Seen in this context, Justice Bhandari appears to have got it wrong.

Update:: Mr.Vivek Reddy asks in the comments section whether the above clarification was in fact my interpretation. The 'clarification' was in fact based on today's The Hindu report (I am unable to provide the link) on 'Quota Judgment seen as fine balancing act'(News analysis on p.12 Delhi edition). The report concludes that Mr.Pasayat favours the identification of the SEBCs with 'graduation' as the basis; nowhere does he talk about excluding graduates. I agree that this is a plausible interpretation. This interpretation is also sustained because during the hearing of the case, none of the petitioners' counsel argued the case for excluding OBC graduates, or restricting the quota benefits to undergraduate courses. Only Mr.P.P.Rao dealt with it in passing, during the replies to the arguments of the respondents. The Judges on the Bench, including Justices Bhandari,Thakker, and Pasayat had serious reservations about his proposal to deny quota benefits to post-graduate OBC students.

Early takes on the Ashoka Kumar Thakur case

As is perhaps to be expected when the Supreme Court issues four judgments in a single case, much of the early analysis of the Thakur case is very general and noncommittal. This may be because a close reading of the judgments and a good understanding of their contents is necessary, and most columnists haven’t yet had the time for that. We will all be watching out for that over the next few days.

While all the leading dailies had news-items about the judgments, and some also carried editorials, I thought that the Express was more categorical than others. The Express editorial on the Thakur case uses the same adjective for the case that is already becoming universal, calling it a “landmark case.” But, after briefly discussing the case, the Editorial moves onto the larger issue of higher education reform:

India is already running thin on meeting the aspirations of its young citizens for quality education. Take, for instance, the All India Institute of Medical Sciences. Each year, it takes just over 40 students for its MBBS programme. Whether half those seats are reserved or a quarter would not alter the fact that four dozen places annually for India’s best medical education is pathetically limited. So it is in different proportions at the IITs, the IIMs, our law schools and our universities.

These are shortages born of apathy, and they make salient the popular perception of a clash between equity and excellence, between meaningful equality of opportunity and merit. Those are false choices. Excellence is unattainable in a society with inequities. A programme of affirmative action would therefore be incomplete without expansion and improvement of our higher education system

While this is not a new point (several others have dwelt on this issue, and Justice Dalveer Bhandari’s judgment in Thakur also touches upon the overall issue of the educational system in India), it is perhaps worth remembering as we head into a debate on the merits of the ruling in the Thakur case. A recent policy paper which drives home this point in frightening detail is available here. Authored by Devesh Kapur and Pratap Mehta, the paper starts with a quote from Prime Minister Manmohan Singh describing the malaise that affects the higher education system, and proceeds to provide details and explain some of the reasons for the status quo. I would strongly recommend this paper to anyone who is interested in knowing some vital details about our current system of higher education in India.

Returning to the Thakur judgment itself, Pratap Mehta may well be among the first to provide a detailed analysis of the judgments, which appeared in his column in today’s Express. The piece will, by setting out what he understands to be the competing considerations weighed by the majority and dissenting judgements, probably help frame further debate and discussion about the judgment, and I suspect we will hear more about his analysis in days to come. Readers of the blog who are interested in this issue will do well to closely read the views of someone who has been an astute analyst of the issues that were central to the Thakur case.

My own immediate reaction to Mehta’s piece was that he may be attributing too much to the judges on either side of the divide he describes. It is not clear to me that the divisions between the majority and dissenters are so clearly marked, either in terms of their findings or their clearly delineated philosophical differences on ways to approach the issue of caste divisions in India. There isn’t a real, genuine dissent in this case, which is to me, the only real surprise in the case. Justice Pasayat’s seeming retreat from the language he employed in the order staying the OBC quota policy is striking (as was the measured tone adopted by Pratap Mehta in analysing the judgment as well, given his own role in the uproar over the granting of the stay on the OBC quotas issue last year). As Mr. Venkatesan suggests in a previous post, the judgments will have to be read closely to find out what the actual holding of the case is, to which a majority of judges agreed as a group. My sense is that there are partial dissents, sometimes on different issues, and understanding the full import of the case may require more deliberation and discussion.

Mandal II: Justice Raveendran's Judgment

I find that Justice Raveendran's Judgment in the Ashoka Kumar Thakur case is now available.

Is Justice Katju facing isolation on the PIL?

Even as I am trying to come to grips with the Mandal II Judgment (there is confusion whether Majority Judges favoured restriction of OBC quotas to undergraduate courses), I noticed that this post may have priority at least for the record as this blog has been closely following the issue. I understand the extraordinary interest on the Mandal II matter from our readers and naturally, they are likely to consider this post as of secondary importance. Still, I thought this would considerably help neutralise the excitement caused by the Mandal II verdict, which is likely to last for several days to come, in any case.

Today, Justice M.Katju delivered his judgment on the Common Cause case, within a few days of his sensational observations, while reserving his judgment. Justice Katju's judgment is here. The remarkable thing is that his colleague, Justice Sema chose to respectfully differ from him on his general observations on PIL. Justice Sema's Judgment is here. Even while dissociating himself from Justice Katju, Justice Sema agreed with Justice Katju that this petition seeking implementation of Motor Vehicles Act deserved to be rejected.

Only the other day, at the Chief Justice's Court, the CJI and Justice Raveendran were concerned with Justice Katju's observations on PIL.(W.P.[c] 56/2004) Prashant Bhushan, counsel told the Bench that Justice Katju's Aravalli ruling was being given importance in many High Courts, if not in the Supreme Court. Therefore, it was time the Supreme Court constituted a Constitution Bench on the matter. Bhushan began suggesting that he was initially reluctant to endorse the idea of Constitution Bench to clarify the issue, thinking that it was not worthwhile. But now he was fully convinced that only a Constitution Bench could finally resolve the issue. "There are now serious implications", he pointed out. He even suggested that the Supreme Court must have a permanent Constitution Bench, as there are several matters that could be resolved by the Bench. The CJI-Raveendran Bench patiently heard him out, and accepted the other part of his suggestion, namely to invite Fali S.Nariman to be the amicus to consider the nature and extent of scope of PIL before the high Courts and this court. They also accepted Bhushan's another suggestion to issue notice to the SCBA on the matter. The matter will come up before the CJI's Court on August 3. Bhushan's suggestion for a Constitution Bench on the issue was opposed by ASG, Vikas Singh, whose view appears to have prevailed over the Bench.

During the hearing of the matter on April 9, Bhushan pointed to paragraph 26/27 and 30/31 of the Aravalli Judgment which created confusion. "It is couched in a sweeping language", he pointed out repeatedly to the Bench. (Please see Arun's earlier posts on Aravalli on this blog). If the Executive is not performing its duty, can the Court not issue a Mandamus, he asked. In the case before Justice Katju, Prashant Bhushan sought implementation of the S.43 of the Disabled Persons Act. There was no dispute about jurisdiction of the Court, he said. "My matter was very simple, there was no confusion about PIL", he said.

The Chief Justice expressed concern over paragraph 26 of the Aravalli Judgment, saying if this view is accepted, who will take care of the life of the citizen. "Can a common man go to the Chief Minister? Who will protect the life of the common man?", he asked.

The CJI told Prashant Bhushan that the Court cannot give exhaustive guidelines on when PILs can be filed. Bhushan expressed his misgiving that if the three Judges decide the matter, there could be conflict with other guidelines, so it will be better if the Constitution Bench decides the issue.

UPDATE: Thanks to Arun's comment, I now stand corrected. Even as it appeared that Justice Katju was getting isolated on this issue, he is indeed winning new adherents to his cause.

Mandal II and strict scrutiny

In Ashoka Kumar Thakur v. Union of India (Mandal II case), the SC has refused to test the impugned law through strict scrutiny. However, it seems that this refusal is restricted only to affirmative action legislations, and the Court has left scope for the argument that a discriminatory law that disadvantages a vulnerable group may be scrutinised strictly. In fact, in an earlier decision of the SC delivered in December 2007 (Anuj Garg v. Hotel Association of India) a law discriminating against women was tested by strict scrutiny standard, i.e. the State was required to show a compelling interest in the objectives sought to be achieved by the law and the fact that it is narrowly tailored to achieve that objective.

Admittedly, this is only one reading of the Mandal II case, and there is enough loose wording to conclude that strict scrutiny has been buried not only for affirmative action but also harmful and insidious discrimination. In my opinion, that was not the question before the Court and the ratio of the case is certainly limited to affirmative action cases. If Article 15(1) should give rise to the same deferential 'reasonableness' test that is used for Article 14, the Court is treating a distinction between men and women under Article 15 at par with a distinction between sellers of tea and coffee under Article 14 - this surely cannot be the correct constitutional position. Hopefully later cases that deal with insidious discrimination rather than affirmative action will confirm the position in Anuj Garg that strict scrutiny does indeed have a role to play in Article 15(1) (and also Articles 19 and 21).

Relevant extracts from the Mandal II case are below (all emphases mine):

Balakrishnan CJ:

179. Thus, the first limb of the strict scrutiny test that elucidates the

"compelling institutional interest" is focused on the objectives that

affirmative action programmes are designed to achieve. The second

limb, that of "narrow tailoring", focuses on the details of specific

affirmative action programmes and on the specific people it aims to

benefit.

184. The aforesaid principles applied by the Supreme Court of the

United States of America cannot be applied directly to India as the

gamut of affirmative action in India is fully supported by

constitutional provisions and we have not applied the principles of

"suspect legislation" and we have been following the doctrine that

every legislation passed by the Parliament is presumed to be

constitutionally valid unless otherwise proved.

Summary - 9. The principles laid down by the United States Supreme

Court such as "suspect legislation", "strict scrutiny" and

"compelling State necessity" are not applicable for challenging the

validity of Act 5 of 2007 or reservations or other affirmative action

contemplated under Article 15(5) of the Constitution.

Pasayat J:
132. It is unnecessary to decide as it has been contended

by learned counsel for the petitioners whether the concept of

strict scrutiny is a measure of judicial scrutiny as highlighted

by the conditions in India. It is submitted that label is not

relevant.

139. To sum up, the conclusions are as follows:

(10) While interpreting the constitutional

provisions, foreign decisions do not have

great determinative value. They may provide

materials for deciding the question regarding

constitutionality. In that sense, the strict

scrutiny test is not applicable and indepth

scrutiny has to be made to decide the

constitutionality or otherwise, of a statute.

Bhandari J:

SUMMARY OF FINDINGS

7) Are the standards of review laid down by the U.S.

Supreme Court applicable to our review of

affirmative action under Art 15(5) and similar

provisions?

The principles enunciated by the American Supreme Court,

such as, "Suspect Legislation" "Narrow Tailoring" "Strict

Scrutiny" and "Compelling State necessity" are not strictly

applicable for challenging the impugned legislation.

Cases decided by other countries are not binding but do

have great persuasive value. Let the path to our constitutional

goals be enlightened by experience, learning, knowledge and

wisdom from any quarter. In the words of Rigveda, let noble

thoughts come to us from every side.

LINKS TO THE MANDAL II JUDGMENT

The following are the links to the Mandal II Judgment delivered by the Constitution Bench today. Summaries and comments are welcome to facilitate a reasoned and informed debate on the Judgment.

Judgment by Chief Justice K.G.Balakrishnan is here
Judgment by Justice Arijit Pasayat and C.K.Thakker is here.
Judgment by Justice Dalveer Bhandari is here.

Editorial Analysis of former Chief Election Commissioner’s induction into the Union Cabinet

Today’s Indian Express has an editorial that is sharply critical of this action. Here is how the Express sees the issue:

Constitutional authorities like the Election Commission and the Comptroller and Auditor General perform a vital oversight duty in our democracy, and it is crucial that those in charge of them stay delinked from the political process in order to avoid any suspicion of slant or bias. Without casting any aspersions on Gill, we worry about the precedent set by the UPA four years after the Congress brought him into the Rajya Sabha. As India moves from an interventionist state to a regulatory one, we have turned our faith towards a reformist judiciary, presidency and the EC. Even as confidence in the cabinet and Parliament eroded, the EC has enjoyed immense public credibility, with its constitutionally guaranteed independence and its pivotal role in our democracy. In fact, it is the public perception of the EC’s impartiality that has enhanced the legislature’s credibility.

Against such a background, the Express editorial raises the following question:

How can we believe that bodies like the EC will remain fiercely independent if those in charge of them can go on to join the very fray they are meant to oversee?

Reading this editorial, I was reminded of similar concerns raised when former members of the higher judiciary enter the political fray, an issue that was alluded to in the comments section of this recent post.

Interestingly enough, this is the precise connection that Harish Khare draws in his column in today’s Hindu, where his principal focus is also on MS Gill’s induction into the Union Cabinet. After expressing concerns similar to those outlined in the Express editorial above, Khare asserts:

Understandably, the post-retirement behaviour of constitutional functionaries has increasingly come under close scrutiny. It is rather elementary. A government — and that means the ruling party of the day — can easily suborn a constitutional functionary by dangling the carrot of a post-retirement “accommodation.” In some cases, the expectation is written in stone. For instance, the Constitution specifically proscribes in Article 148(4) the Comptroller and Auditor-General of India from accepting any office under the Government of India or a State government “after he has ceased to hold his office.”

A somewhat similar principle is invoked in the case of the higher judiciary. Article 124(7) says Supreme Court judges, after retirement, shall not “plead or act in any court or before any authority within the territory of India.” As the judiciary has asserted itself aggressively against a weak executive and a stalemated legislature, democratic opinion has come to expect that once they leave the bench the judges would be able to resist the temptations any executive can offer. Conventions about post-retirement judicial behaviour are far from settled. A former Chief Justice, J.S. Verma, has asked for a debate on the post-bench activities of the judges.

Khare’s solution to this issue is set out in the final part of his column:

Constitutional functionaries are like monks, making lifelong commitments of moral virtue and personal self-negation. Those who seek to serve the nation in high positions owe it to themselves — as also to the democratic expectation — to remain above the fray. Surely, there must be many ways of contributing to and enriching public life without cutting a deal with a political operative. At stake are the reputation, credibility and popular acceptability of these very institutions.

Khare’s proscription has the advantage of being clear and straightforward. Yet, I remain unsure whether it is necessarily the most pragmatic measure at a time when our judiciary is struggling to attract the best legal talent to the bench. What is required, perhaps, is creative thinking on what Khare calls the “many ways of contributing to and enriching public life without cutting a deal with a political operative.” I wonder what others might have to say in response to Khare's views on this issue.

Justice R.V.Raveendran on PILs

The hearing of the PIL Occupational Health and Safety Association v. U.O.I in the Supreme Court today by the Bench comprising the Chief Justice and Justice R.V.Raveendran brought forth some interesting discussion on the PILs, especially in the context of Justice M.Katju's observations against Judicial activism in another case as reported on this blog. Justice Raveendran wanted to know from counsel for Centre for Public Interest Litigation whether there has been any research or study on which areas PIL has been productive and which areas it was not. He especially referred to the Yamuna case, and wondered whether Justice Katju's observations (without saying so explicitly) might be correct.

Prashant Bhushan said if the orders of the Court are not implemented, then the Court has to make sure that they are implemented. "Just because they are not implemented, you can's say those PILs were useless", he suggested.
Justice Raveendran, however, added that there may be some areas which are counter-productive, where we can say "hands-off". Sanjay Parikh, another senior counsel, agreed with Justice Raveendran,that such categorisation has to be done.

Shoukat Hussain Guru's case for retrial

Shoukat Hussain Guru is one of the convicts in the Parliament attack case, having been sentenced to 10 years R.I. He challenged his conviction (strangely by the Supreme Court as the trial court did not try him for the offence for which he was convicted and sentenced) through a review petition and later by a curative petition, both of which were rejected by the Supreme Court. His Writ Petition (Crl. No.106/2007) raising the same grounds argued in the review and curative petitions is being heard by the Bench of Justices P.P.Naolekar and V.S.Sirpurkar. On March 27, Shoukat’s counsel, Shanti Bhushan had argued in favour of Shoukat’s retrial. His arguments are worth summarizing in this post.

1. Shoukat was accused of having information about criminal conspiracy, but he did not inform the police deliberately. This constitutes an offence under S.123 IPC (concealing with intent to facilitate design to wage war). But charges under this section were never framed against him and he was never given an opportunity to defend himself on this point. He was first convicted and awarded capital punishment by the trial court, and was confirmed by the Delhi High Court . The Supreme Court while acquitting him of the charge of criminal conspiracy, reduced his sentence to 10 years, finding him guilty under S.123 IPC.
2. According to S.39 Cr.P.C., every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the specified sections of the IPC, shall in the absence of any reasonable excuse, forthwith give information to the nearest Magistrate or police officer of such commission or intention. There are three defences available to a person accused of concealing such information: a: I had a reasonable excuse b: I did inform c: I did not conceal it intentionally.
3. The SC simply assumed that Shoukat had not informed: He was not given the right to produce evidence. He could say, for instance, that he did inform the Police, but they did not take it seriously. If he can prove that he was threatened if he shared information with the police, that would be a case of reasonable excuse. If he had to disprove it, he should be given reasonable opportunity.
4. There are inherent powers of the Court, even after review is dimissed.

Justice PPN asked, “Did not the Court exercise inherent powers when the curative petition was heard? How many times can a party ask the Court to exercise inherent powers?
Shanti Bhushan: "Once the Court is satisfied that a mistake had happened, then it should correct the mistake, to regain confidence of the public. Court must be concerned with both justice and procedure. Both review and curative petitions were dismissed without giving him an opportunity to defend himself. To err is human, to correct is a matter of judicial function. There are no rules for curative petitions. No notice was given by the Supreme Court before convicting him. It is a total contradiction of Article 21. The Court dismissed the review petition by circulation. Can Supreme Court do anything, convict, impose a sentence, not asked for by anyone. In the Pinochet case, the House of Lords laid down a principle. They recalled their own order. If Shoukat’s conviction and sentence stood, there could be adverse public opinion. Shoukat will be released in September 2009 in due course, having completed 10 years R.I. This Court has set aside earlier Bench’s order in the Antulay case, and in V.C.Mishra case

Curative Petition has failed. Why it failed I can’t say. No opportunity was given. It is not a minor offence of S.121 IPC. It has got several ingredients. It is a fit case to order retrial under Article 145 (1) [c] . The Antulay case was heard by 7 Judge Bench (1988 2 SCC, p.602), and it is binding on you."

The ASG, Gopal Subramanium began his arguments suggesting that Shoukat was guilty of concealing with intent and illegal omission under S.123 IPC. The judgment has laid down the elements of evidence against him. The reasons for invoking S.123 have been given. He knew about the design. S.123 is attracted in terms of the facts found by this Court. Lesser charge is subsumed. Justice PPN: But it is a separate charge.

The ASG will continue his arguments.

Supreme Court's PRO: Is it constitutional?

Dr.Rajeev Dhavan has raised an important issue in today's Mail Today on the constitutionality of Supreme Court's PRO. Citing from the website of the Supreme Court, he asks whether it is Constitutional. Rajeev Dhavan's article cites from the website as follows: The PRO of the Court has been nominated to "respond to enquiries, assist litigants and public, advocates and media persons and provide information to them."
The Supreme Court's Court News October-December 2007 says: "With a view to give more information and bring more transparency in its functioning, SC has for the first time nominated a PRO to attend to enquiries and provide information to litigants, advocates and the media. The PRO so nominated will also guide and assist the advocates and litigants and look into grievances of media persons."

Dr. Dhavan asks: "Is his (PRO's) role to explain the judgments of the Court and tackle the controversies raised by them?"

The Court News makes no such claims. In fact, the actual words used in the Court News as carried in the website, makes the objective of nominating the PRO very clear: one is to give more "information", and another is to bring more transparency in its "functioning". Obviously, the PRO cannot interpret the Judgments for the sake of the media. A PRO, if he is equipped with all the relevant facts regarding the functioning of the Court, can bring down the number of applications under the RTI, which I understand, consume a lot of time of the Court officials these days. The PRO can also think of putting on the website, all the previous replies given to earlier applicants under the RTI, so that it can avoid repetitive questions from other applicants, seeking same answers.

The facilities provided for the litigants and the media persons at the Supreme Court are very limited, and there is indeed scope for improvement. It is possible to suggest that there may be grievances which need to be redressed by a PRO. A judgment can be differently interpreted by various media persons. An observation by a Judge in a Court may be differently reported in sections of the media. There can be no quarrels with that. The PRO can bring to the notice of the Judge, if there are queries from the media, regarding his observations or Judgments, and get back to the media, if the Judge concerned offers any clarifications. Dr.Dhavan agrees that it is never too late to repent, but such repentance -whether by explanation or recantation - must come from the Judge. The PRO can facilitate this repentance/recantation by the Judge, by bringing to his notice the queries/concerns of the media.

Indeed, at the recently held workshop for journalists, Mr.K.K.Venugopal, senior advocate brought to the attention of the participants the institution of similar Press Officer/PRO at the Israeli Supreme Court, which he visited recently.

Dr.Dhavan's concern appears to be that the Supreme Court does not enter the arena of publicity and counter publicity, and invite controversies. He concludes that a transparent Judiciary is a must, and this is best done by its Judges, not a PRO who has no power and ambivalent responsibility. A PRO, by definition, need not have any power or responsibility. On the contrary, the 'P' and 'R' in PRO stand for 'performance' and 'reporting'. Let him perform the function of providing information, and report back and forth between the Judges and the media on mutual issues of concern to achieve the goal of transparent Judiciary. There can be genuine doubts about interpreting a Judgment.

It is all right to say Judgments speak for themselves. There may be a factual error in the Judgments, and the media may be in difficulty in interpreting/reporting. It happened once during the hearing in the Ayodhya case. Justice Kirpal had to correct himself, the following day, after an expose in Indian Express. Dhavan asks: "Is it not better for the Judges to restrain themselves in court and in their judgments rather than go through an elaborate procedure of explanations, further explanations, and counter explanations?"

I see a curious paradox. Even as the senior advocates want the Judges to be restrained in their observations during their hearing, the Judges want to be unrestrained, as for them, an observation/question is a useful strategy to probe the minds of advocates, and elicit answers, which would ultimately help them to write better judgments. The Judges, on the contrary, would like the media to properly report such observations, and when in doubt, approach the PRO.

I think we must give the institution of PRO a try, before giving sustenance to unsubstantiated misgivings. The PRO may not be able to clear all doubts of a journalist regarding a judgment or an observation. It is not required also, as the journalist must be free to interpret what he finds, provided he understands the context. But the journalist must have the option of approaching the PRO, and explore whether this interface helps if he wants to understand the Court's processes.

UPDATE: My enquiries with the present PRO of the Supreme Court reveals that he does not interpret Judgments, but only helps Journalists in getting copies of judgments, orders, and other such requirements. In fact, he pleaded his helplessness, when I asked him for a copy of the latest annual report of the Supreme Court, saying I must download it from the internet.

Derivatives in Commodities: Some Issues

The issue over commodities exchanges and trading of futures and options in respect commodities has been brought to the fore with the Left parties deciding not to support the Forward Contracts (Regulation) Amendment Bill.

By way of background, commodities trading can occur in two ways. One is spot trading, where a buyer and seller of commodities enter into a contract, and settle the same by delivery of the commodities and the corresponding payment within a predefined time period (usually up to 11 days). The second is forward trading, where the delivery and/or payment occurs beyond such pre-defined period. Under the Constitution, spot trading is left to States to legislate, while forward trading is within the domain of the Parliament. It is under the latter powers that the Parliament enacted the Forward Contracts (Regulation) Act, 1952 (FCRA) that governs forward trading in commodities. Under the FCRA, while forward trading was permitted in some commodities and restricted in others, options were prohibited. To explain an option, it is a contract under which one party has the option or right (but not the obligation) to buy or to sell a commodity at a predetermined price. The administrative authority under the FCRA was the Forward Markets Commission (FMC), which was a government body.

With the development of the commodities futures markets over the last few years, the Government proposed an overhaul of the FCRA to take these recent developments into account. The principal changes relate to the allowance of options in commodities (that were earlier prohibited), the reestablishment of the FMC as an independent regulator (on similar lines as SEBI) rather than as an arm of the Government itself, and the organisation of commodities exchanges (to enable commodities futures trading) on corporate lines similar to stock exchanges. While these issues were part of the Forward Contracts (Regulation) Bill, 2006 that was pending in Parliament, the Government accelerated the reform process by ensuring the promulgation of the Forward Contracts (Regulation) Ordinance, 2008. The key features of the Ordinance are set out in a press release issued by the Government.

While there could be some questions as to the way in which the Government secured the changes through an Ordinance just two weeks before the Parliament commenced its session, there is little doubt that these changes were long overdue. Like the stock markets in India, the commodities markets too have been developing in a structured fashion over the last few years. Two large electronic exchanges in the form of the Multi Commodity Exchange of India Limited (MCX) and the National Commodities and Derivatives Exchange Limited (NCDEX) have been established and they now handle a significant portion of futures trading that occurs in commodities in India.

Economically, futures trading provides several benefits; it creates liquidity in the markets, enables price discovery by signaling the best price to the rest of the market participants, and most importantly, it provides traders with an avenue to hedge their risks. But, we must bear in mind that derivatives (such as futures and options) are complex instruments and hence are inherently risky. They are largely based on movements in commodity prices, and wrong bets on market movement can prove to be very costly, sometimes even to sophisticated players.

The Left has largely attacked the Ordinance by attributing the recent surge in commodity prices to extensive futures trading. However, that seems somewhat misdirected, as there is no correlation established between futures trading and increase in prices. Price increases could possibly arise due to myriad other factors.

I find that an important aspect that the Ordinance has failed to tackle is the issue of complexity of derivatives. It is not sufficient if the law merely provides a platform for derivatives trading in commodities. There needs to be a proper mechanism for disclosure, which requires persons that are selling futures and options in commodities to disclose all details (the risks in particular) relating to these products in a manner that the buyers of such products are able to appreciate the risks involved before they decide whether to participate in that market or not. In relation to derivatives in the stock market, the detailed rules issued by SEBI largely serve that purpose. It is also to be noted that the commodities futures market is likely to be patronised primarily by traders (some of them who may be of medium to small-scale) who may not possess sufficient sophistication to comprehend the risks involved in such complex instruments. The experience with derivatives in the financial markets (where the level of sophistication is somewhat higher) has not been good either, what with several companies now filing suits against banks (with whom they entered into derivative transactions) to renege on their commitments, including on the grounds that they did not fully understand what they were entering into. For details, see here and here on the Indian Corporate Law Blog). Therefore, a proper disclosure regime is called for in commodities trading so as to ensure informed trading in commodities derivatives, and thereby a transparent market.

The Left has also opposed foreign direct investment (FDI) in commodities exchanges. Although the press reports (referring to the Left objections) indicate that the FDI has been permitted under the Ordinance, it is not the accurate position. FDI is governed by various policies issued by the Department of Industrial Policy and Promotion (and not the Ordinance). The Press Note 2 of 2008 allows foreign investment of 49% in commodities exchanges (with 26% FDI and 23% FII investment) with the prior approval of the Government. Further, no foreign investor/entity, including persons acting in concert, will hold more than 5% equity in such companies. This appears to me to be a balanced approach towards foreign investment. While it allows major world players in this industry to participate in the Indian market and thereby introduce their expertise and business practices, it guards domestic interests as well. It is fairly restrictive as (i) investment is possible only with prior Government approval, (ii) majority shareholding still remains with domestic owners; and (iii) there is no risk of dominance by a single foreign player (or group) on an exchange as individual investments are capped at 5%.

It is likely that these issues will be the subject of heated debate in the near future, especially as the Bill comes up for discussion in Parliament.