Speaker’s status: A response to criticism

My post on this has provoked a vibrant debate.
Let me respond to some major criticisms in this post.

1. The CPI(M)’s explanation of its withdrawal can be read here and here. The withdrawal did not mean that the party just wanted a trust vote. When it withdrew support, it clearly said publicly that it had no confidence in the Manmohan Singh Government, and through withdrawal it was marking a complete break with UPA. The trust vote demand was secondary, though important.

2. I don’t think the party failed to convey to Somnath its expectation directly and publicly. Directly it did convey through a number of informal channels. Publicly, the party avoided expressing the demand explicitly because the Speaker’s post is a Constitutional post, and therefore, short of removal, he can only resign. Publicly demanding him to resign would have caused him embarrassment, so the party tried informal channels to convey its request. By saying ‘it is for him to decide’, the party left the decision to him on when to quit as a matter of courtesy.

It is naïve to assume that the party included his name first, and sensing adverse public opinion, it refrained from issuing a whip to him. A whip could not have been issued to him at all because of Article 100 (1) which says the Speaker shall not vote in the first instance. So a whip, which is a common direction to all party MPs, could not have been issued to him. The fact that he was expelled for "seriously compromising the position of the party", shows that the party did expect him to resign, and conveyed this to him. How does it matter whether it is conveyed privately or publicly, for the purpose of determining whether he compromised the party's position?

3. I agree convention is not just a string of precedents. All parties must agree, and there ought to be a justification for it. That the Speaker belongs to the ruling party or coalition is certainly a convention, to which all parties had agreed over the period. I cannot recall any departure from this at any time before or after Independence. Now, the justification is obvious. Most of the House’s business is Government-initiated.

The Speaker, no doubt, has to be impartial in the conduct of the proceedings. But it does not mean that House can risk an adversarial Speaker, who creates hurdles at every stage, obstructs Government’s legislative agenda tacitly or explicitly because of his sympathies with the Opposition. In the case of equality of votes, envisaged in Article 100(1), can a Government risk an Opposition Speaker who can be expected to cause its downfall? What more justification one would require for a convention? More than a convention, it is a compulsion created by Article 100(1) to have a Speaker who supports the survival of the Government.

Even now, the Opposition threatens to move a no-confidence motion against the Government. During the voting, a tie is again a possibility; can the Government risk having a Speaker who belongs to the Opposition? No doubt, Government is itself not aggrieved about this, but I am only raising a theoretical possibility, to suggest that there is a justification for this convention.

Draft Prison Policy

In a recent EPW article, Vijay Hiremath draws attention to a new Prison Policy drafted by an almost-secretive commission constituted entirely of prisons bureaucracy, which took many organisations working on prison reform by surprise. This alleged non-cunsultative procedure could only have created a state-centered policy, as Hiremath alleges is the case.

Yet, there are some interesting aspects to the policy. One that caught my attention was the statement that 'The committee has also recommended alternatives to imprisonment and extensive amendments to the Prisons Act of 1884.' I haven't seen the report and don't know if this suggests an official recognition of community sentences. But as this article explains, the judiciary is already imposing community sentences in some cases (their legality is qestionable since I doubt whether current criminal laws provide enough scope for imposition of such sentences). This is an important development, and one needs to see whether the report gives adequate attention to the problems with community sentences, specifies which crimes deserve it and which must be dealt with by incarceration alone. The idea has been employed in many countries for years now, and is a useful one to interrogate. But we must have better reasons to adopt it than the sole fact that our prisons have run out of space.

The status of Lok Sabha Speaker: some questions

The CPI(M) expelled the Speaker, Somnath Chatterjee from the membership of the party in terms of Article XIX Clause 13 of its party constitution. This provision says in exceptional circumstances, party committees in their discretion may resort to summary procedure in expelling members for grave anti-party activities.

Curiously, the party’s website still shows Somnath Chatterjee as one of its 44 members of Lok Sabha (see the section on Elections) He is shown as the 43rd member elected from Bolpur. The Lok Sabha website also shows that he continues to be the CPI(M) MP.

This anomaly is perhaps due to the fact that the Speaker is not supposed to take note of expulsions by the party, unless there is a complaint before him. In this case, as the Speaker himself happens to be the affected MP, will he ask the Lok Sabha secretariat to show him as the “unattached MP” in its records and on its website? Or will he ignore this anomaly as it is of no consequence? No doubt, the CPI(M) has to correct its website, (may be put an asterisk on Chatterjee to show that he has been expelled).

The category “unattached” finds no mention in the Tenth Schedule, and it is an innovation evolved by successive Speakers to categorise those who have been expelled, but were not disqualified in terms of the Tenth schedule to the Constitution. Tenth Schedule seeks to disqualify only those who voluntarily gave up membership of the party or violated party whips in the House. But did the Speaker voluntarily give up the membership of his party before his expulsion? This is an issue on which I have written recently, and has been carried in this issue of Frontline. I have argued that there is a case to seek his disqualification on this ground, citing precedents. Another version of the same article may be read in The Hindu.

The purpose of this post is not only to point out the likely dilemma to be faced by the Speaker (can he categorise himself as unattached, overlooking issues of propriety), but to point out certain inconsistencies that would arise if he continues as the Speaker. Many observers have criticised the CPI(M) for being tyrannical in expelling Chatterjee so soon after the trust vote. Most of today’s newspapers have complimented Chatterjee for taking a courageous stand. But, let us objectively examine some of the issues, without taking sides in this controversy:

1. Why did Chatterjee not resign from the CPI(M) membership using an option given to him under Paragraph 5 of the Tenth Schedule? There are no answers from Chatterjee himself. Should we then presume that he agreed to be subjected to party discipline?

2. By not using that option at the time of election as the Speaker, can he now voluntarily give up his membership of his party in terms of Paragraph 2(1)(a) of the Schedule and claim exemption under Paragraph 5? Chatterjee himself has not explained why he did not resign as Speaker following withdrawal of support by the CPI(M). Did he do so to maintain the impartiality of his office? Although this is one of the plausible inferences, he was legally required to explain this in public.

3. Did he not voluntarily give up membership of the CPI(M) by refusing to resign as Speaker prior to the Confidence Vote? This is the plausible interpretation, as he consistently refused to answer questions from the media on this. He left no one in doubt that he was no longer a member of the party, and therefore, not bound by the party discipline.

4. Was it necessary for him to resign as Speaker before the Confidence Vote and later?

Answer: A. Before the Confidence Vote, it was necessary because had there been a tie during the confidence vote, (which was one of the possible scenarios then) he would have had the duty to cast his casting vote to break the tie. Had he supported the motion, it would have been defection of the highest order, because he was not subjected to the party whip, precisely because he is not, unlike other MPs, bound to vote unless there is a tie. Had he voted against the motion, it would have been against established Parliamentary conventions of having a Speaker from the side of the Government or one of its supporting parties. It would have also meant that the Speaker simply followed the party diktat, though he was not bound to as Speaker. The demand for resignation as Speaker, before the vote, therefore, made sense.

B. Should he resign now?: There is a qualitative difference between a Speaker who was elected, defeating a rival, and a Speaker who was unanimously chosen by all the parties. Under both the circumstances, the Speaker is expected to function impartially. Even if the Speaker is elected, by defeating a rival candidate, the party or parties which put up the rival candidate, adjust to the reality, and do not seriously question the Speaker’s impartiality subsequently, by showing all the respect which he deserves as the Speaker.

But today we are witnessing a new situation. The Speaker was chosen unanimously without a rival candidate at the time of election. Subsequently, his party expelled him, thus declaring lack of confidence in his impartiality. The Speaker may still enjoy the confidence of majority of members of the Lok Sabha, but will he be able to function impartially, especially after his party found it necessary to expel him? Will not the objective of Paragraph 5 of the Schedule be defeated?

WAS THE CONFIDENCE VOTE TAINTED? Having found strong legal reasons for the disqualification/resignation of Speaker, I must confess I did not find the confidence vote a tainted one. Let me explain. There were 23 MPs who had cross-voted: 16 from the Opposition in favour of the trust motion, and 7 from the Congress/SP against the motion. The total tally is 275 for the Government motion, and 256 against it. So, if you exclude 16 from 275 and seven from 256, the result is still 259 for the Government and 249 against it.

Thus assuming that money power played a role in run-up to the trust motion, it did not have any impact on the actual result of the vote. The Tenth Schedule is prospective, and the disqualification of MPs, who defied party whip, starts from the date of the decision of the presiding officer, thus leaving the votes cast by the rebels or their absences valid and legitimate. I would agree that there is a case for invalidating the votes cast by such rebels, or making it difficult for illegitimate absences from the House during such voting. But that is a separate issue.

Supreme Court redefines death penalty & life sentence

Even as Parliament remains the focus of discussion today because of trust (thrust?) vote, a momentous judgment from the Supreme Court on death penalty should be taken note of. This pertains to the Swamy Shraddananda case discussed at the time of hearing on this blog. The unanimous judgment delivered by the three-Judge Bench takes note of the recent Amnesty Report (also discussed here), and acknowledges its contribution to the stand of the Bench in this case.

The Bench commuted the death penalty awarded to the convict by the trial court and the high court, to life sentence, but underlined that life means life, and the convict should be in jail for the rest of his life, and not just for 14 years. This is perhaps the first time when the Court has clearly laid down that executive clemency should not mean that the Court cannot award life sentence beyond 14 years. The Bench found that there is a huge gap between 14 years and death penalty, and the Court's options to impose an appropriate punishment should not be closed.

The Bench said: "The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the bench."

The Bench has given three specific reasons why in this case, they could not endorse death penalty. First, the convict devised the plan so that the victim could not know till the end and even for a moment that she was betrayed by the one she trusted most. Second, though the way of killing appears quite ghastly it may be said that it did not cause any mental or physical pain to the victim. Thirdly, as noted by Sinha J. (in the previous split judgment with Justice Katju) the appellant confessed his guilt at least partially before the High Court. The merits of these reasons are entirely debatable, and this only confirms what the Bench itself admitted, that is, the Judges are not free from subjective element. This inconsistency only shows why the constitutionality of death penalty needs to be reconsidered by a Bench larger than that of Bachan Singh.

New Book on Parliamentary Debates on Reservations by Rajeev Dhavan

I think this guest post by Madhav Khosla will be of general interest:

Last week, Rupa released a new book by Rajeev Dhavan titled "Reserved! How Parliament Debated Reservations 1995-2007". Although I have not had time to read the entire book, a preliminary reading suggests that Dr. Dhavan's new book seems to be a much needed addition to the affirmative action discourse in India by examining parliamentary debates in the area of reservations. It also proves to be a very useful addition to emerging literature on the failure of Indian's representative institutions. Dr. Dhavan tracks the affirmative action developments in India beginning with the promotion amendments of 1995, and all the way till the OBC verdict (AK Thakur). He examines the tussle between Parliament and the Supreme Court between 1995-2007, and the five constitutional amendments during this period that reversed key decisions of the Apex Court. Dr. Dhavan also devotes considerable time to the problems that have arisen in beneficiary identification, a critical issue in framing effective affirmative action policies. On a personal note, he explains the reasons for his own shift in stance from arguing for the OBC's in the Mandal cases to against even the SC/ST's in a string of latter cases. Like his other works, the book appears to be comprehensively referenced and outstandingly researched. Fortunately, unlike some of his other works, the book has been published by Rupa and should thus be easily accessible. During arguments in the AK Thakur case, Dr. Dhavan contended that Parliament had not sufficiently considered the issue of OBC reservation. The Supreme Court rejected the argument, stating that it must presume due consideration on behalf of Parliament. Dr. Dhavan, it seems, has now taken his argument to a larger audience. The response should be interesting.

India, the ICC, President Bashir, Oil, and Indian Soldiers

Last week the prosecutor of the International Criminal Court presented his case against President Al Bashir of Sudan for genocide, crimes against humanity, and war crimes in Darfur. The prosecutor is requesting an arrest warrant from the ICC’s judges. This is the first time that a sitting head-of-state has been prosecuted under the Rome Statute. In 2005, a senior Sudanese government official and a Janjaweed leader had arrest warrants issued for them by the Court. The government of Sudan, who is not a party to the Rome Statute, has refused to turn over these two men and says that they will not turn over their President. They have also said that Bashir’s prosecution has only made peace less likely and exasperated an already explosive situation.

So, what does this have to do with India? As those who have read my previous post on this issue or kept up on Sudan-India relations know, India is rather uniquely positioned towards Sudan. India’s ONGC is one of the largest investors in Sudan’s oil fields (and thereby one of President Bashir’s chief business partners). At the same time, India has a military presence in Sudan under the auspices of a United Nations Peacekeeping force to keep peace between the north and the south. (China, the other major backer of Sudan’s oil industry, has also dispatched soldiers to the country under the United Nations as peacekeepers, but in the West in Darfur).

Given these facts, does this mean that India might be put in the awkward position of having its soldiers ordered to attempt to capture the Sudanese President so that he can be shipped to Europe to be tried for genocide? Well, not likely, but also not impossible.

India, China, Sudan, and the United States are not parties to the Rome Statute so technically they have no real obligations under the statute (something the U.S. likes to point out frequently). The case of Sudan though is the first case that was referred to the ICC by the Security Council (China, the US, and Russia all went along with this in the end under tremendous public pressure). As this article points out the UN Security Council resolution that made this referral “urges” all states (even those who did not ratify the Rome Statute) and international organizations to cooperate with the ICC on this matter. This could theoretically mean that Indian forces on the ground under the UN peacekeeping force could be called upon by the ICC to aide in apprehending these suspects in Sudan.

Still, given that three years have passed since arrest warrants were issued against the first two suspects in Sudan and UN peacekeeping forces haven’t been called upon to arrest them, it is unlikely that an arrest warrant issued for President Bashir will change the situation. Further, the “urge” language in the original UN Security Council resolution does not seem binding and the rest of the referral is quite vague on what state or UN peacekeeping forces obligations would be. It would likely take another more specific Security Council resolution before UN peacekeepers were expected to take any affirmative steps to capture President Bashir or the other two suspects.

ONGC’s oil operations in Sudan now seem more a liability than ever though, even if it hasn’t necessarily approached the level of legal liability. It certainly seems against the spirit of the Rome Statute and arguably the Security Council referral to keep doing business with President Bashir and his government if an arrest warrant is issued against him. Still, it seems highly unlikely that this relationship will expose Indian leaders or officials in ONGC to the ICC’s jurisdiction. The Mint recently had two good articles on ONGC in Sudan. One detailed the efforts of divestment groups in the West to pressure ONGC and India to be more responsible players in Sudan. The other reports that ONGC abandoned its business interests in the United States before investing in Sudan because it feared it would become open to liability in the U.S. once it began business in Sudan. Other recent articles have reported on how ONGC may be forced out of its holdings in the Alberta tar fields (a largely untapped oil reserve about equivalent to Saudi Arabia’s) because of Canadians upset about ONGC’s business in Sudan.

Even if there is no legal liability, the position India now finds itself in is clearly awkward and it will be interesting to see how or even if India responds to any arrest warrant issued for President Bashir. So far India's policy towards Sudan has been to publicly neither condemn or condone the government's actions, but just remain silent.

Chidambaram on the legal issues arising out of the Indo-US nuclear deal

P. Chidambaram delivered the Convocation address at the 6th annual convocation of the NALSAR University of Hyderabad on July 19, 2008. Somewhat unusually, he chose to speak on a very topical issue - the legality of the civil nuclear deal that is the focus of so much attention in legal and political circles. An edited excerpt from that address appears as an op-ed piece in the Hindustan Times, and makes for interesting reading.

Gonsalves on Delays in the Indian legal system

The issue of delays in the Indian legal system has generated considerable discussion on this blog. (See, for instance, two separate discussions from the 2007 archives here and here).



Colin Gonsalves has a recent article in India Together which argues that while most commentators blame the Indian judiciary for this state of affairs, such a critique is largely mistaken.

Focusing on the perspective of the judiciary on this issue, Gonsalves quotes from several speeches made by former heads of the Indian judiciary, and also cites from reports of the Law Commission and the National Commission to Review the Constitution to highlight the meager financial resources available to the judiciary.

In particular, Gonsalves draws attention to this recent speech by Chief Justice Balakrishnan, from which he culls five strands of his principal argument that the judiciary gets an undue share of the blame for the massive delays that clog the Indian legal system:

A large number of cases pending in courts have the governments as a party indicating that lack of proper administration was the reason why citizens are driven to litigation. "Weak and inefficient revenue administration" has resulted in a "poor land rights recording system" which was the main reason for the institution of a large number of cases, he argued.

Secondly, financial institutions had filed a large number of cases seeking to recover money through criminal proceedings by using the Negotiable Instruments Act, thus converting the courts into "collecting agents for these financial institutions". Many of these institutions are privately owned by people engaged in giving usurious loans. As a result the trial of ordinary criminal cases is seriously hampered.

Thirdly, since insurance companies do not follow a fair procedure of acknowledging liability and disbursing amounts before the victims come to courts, there are a large number of motor accident claims pending before various tribunals.

Fourthly, there are a huge number of land acquisition cases in courts because of mal-administration in land acquisition cases where "the amounts awarded by land acquisition officer has never been reasonable or proper" and as a result, "the parties are driven to litigation in a large number of cases."

In criminal cases the chief justices identified the" tardy and inefficient" investigations resulting in a huge delay in the filing of chargesheets as one of the reasons for delay in the disposal of criminal cases." Inept policing and weak prosecutions are hugely responsible for slowing down and protracting the criminal trials in many courts."

Some of these arguments carry strains of the blame game played by the judiciary and the executive over the issue of delay in the Indian legal system for quite some time now. When one looks at the standard reforms suggested by judges for bringing down delays, they usually consist of seeking the appointment of more judges, and the allocation of greater financial resources to the judiciary. While these are certainly relevant, they do not acknowledge the far more deep-rooted causes of delay in the Indian legal system. It is rare for a judge speaking on the issue of delay to acknowledge the fundamental problems in our legal system that cause such backlogs and delays in an honest manner.

While seeking to blame the executive, judges do not admit that there are very few systems in place to monitor inefficiencies within the judiciary. Even at the Supreme Court, there is no way of ensuring that a judge who hears a case pronounces judgment upon it in timely fashion. It is, in fact, common practice for cases to be set down for ‘rehearing’ because at least one of the judges who heard the case in the first instance did not pronounce judgment upon it for several years, and has since retired. Such inefficiencies would be met with sanctions in other departments of government, but, at the Supreme Court, are tolerated as a norm. The stories one hears about the celebrated work ethic of our Supreme Court judges would be rendered more credible if they were backed by empirical evidence of the workload and disposal rates of individual judges. Such studies are common in other jurisdictions, but scholars who have sought to obtain similar data in India have complained about the stonewalls that have been instituted in their path. By commissioning such studies, the Supreme Court would simultaneously quell criticism while also showing itself to be a role model for the rest of the judiciary and other wings of government.

While Gonsalves reiterates the oft-repeated ‘solutions’ offered by the judiciary, the more specific causes enumerated above may indicate that the judiciary is beginning to look beyond the conventional reasons. This bodes well, because, as suggested by the more sophisticated analyses of delay in the Indian legal system, a much more thorough-going enquiry and approach than has previously been employed by the principal actors, will be required to effect lasting and effective reforms. It will also require getting past the old mentality of seeking to blame someone else for the problem, and working in concert towards improving the situation.

Update: A recent book which focuses on the issue of delay in the Indian legal system from multiple perspectives is: Arnab Kumar Hazra and Bibek Debroy (eds.), Judicial Reforms in India (Academic Foundation: New Delhi, 2007). The book generated this critical review in an earlier issue of India Together, where Bikram Jeet Batra focuses on the complexities involved in formulating dispassionate policy responses to the issue of delay.

Upendra Baxi's critique of Justice Thakker's judgment

In a stinging critique, Upendra Baxi has compared Justice C.K.Thakker's judgment in the Manu Sharma case to the A.D.M.Jabalpur judgment of the Supreme Court during the Emergency,and has called for its review by a larger Bench to correct the injustice caused to human rights. Justice Thakker's judgment is here.

James Laine case in Supreme Court: An update

The Maharashtra Govt's SLP against the Bombay High Court's lifting of the ban on the book Shivaji, written by James Laine came up for hearing before Justices Arijit Pasayat and Mukundakam Sharma on July 15. Ms.Kamini Jaiswal submitted that she had instructions to appear for James Laine. During the last hearing, the Court ordered issue of notice to Laine, to find out whether he would be aggreable to deletions of certain paragraphs in his book found objectionable by the State Government to meet "ends of justice". The matter will now be heard after four weeks.

The Efficacy of Windfall Profits Tax

The recent spike in oil prices has rekindled the debate on the need to impose a windfall profits tax on private oil companies. The matter has even acquired political overtones in the US presidential elections, with one of the nominees, Barak Obama, supporting the imposition of such a tax.

This issue has now reared its head in India as well (perhaps for the first time, to my knowledge). Here too, it has unsurprisingly assumed political proportions. However, there is yet no clear opinion on whether such a tax would be efficient, and as to what could possibly be the implications of such a tax from an economic and legal standpoint. In a previous article, the Hindu Business Line sets out the issue (as follows):

“With global crude oil prices touching new highs, a debate has been triggered on measures to deal with the situation and partially insulate the consumers from the impact.

One such suggestion has been imposition of a windfall profits tax on private/joint venture oil-producing companies and private standalone refineries earning profits through import parity pricing policy.

The Left and other political parties such as the Samajwadi Party have been pressing for levy of such a tax citing examples of countries where the tax has been introduced.”

The article then sets out both points of view on the matter:

“A windfall profits tax is levied on oil companies because of the profits they earn as a result of the sharp increase in oil prices. Industry trackers feel that imposition of such a tax would merely mean extending the burden sharing of high crude prices on standalone refiners, and would not help much in cushioning the retail consumers. Besides, it would send a wrong signal for those who are looking at investing in oil and gas exploration in the country.
…

However, the contrary argument is that with high crude oil prices, the product prices also go up, which is measured by gross refinery margins and this is where the refiners gain, thus the refiner should share the burden. Public sector players say that if the tax is levied in lieu of the subsidy burden which they have to bear then it may be acceptable, otherwise it serves no purpose.”

However, more recently, the Hindu Business Line carries a column by Raghuvir Srinivasan that launches a scathing attack on the proposal for windfall profits tax. He argues:

“A windfall profit tax on oil companies now would be illogical and an unwise economic measure; those arguing in favour should look at the experience of other countries that have imposed such a tax in the past, specifically the US, where it did more harm than good to their economy.
…

So, what is all this talk of a windfall profit tax then? Such a tax is certainly not going to help bring down pump prices of petrol or diesel. What it will do though is cause immense damage to the already faltering oil companies and lead the government into complex litigation. The rationale for such a tax is completely suspect and can be challenged in the Courts. This is territory not traversed by the government before and could lead to needless complications in an election year.”

This issue is still at the early stages of evolution in the Indian context, but certainly has the potential to throw up interesting legal challenges if pressed forward.

Scholars' guide

A new blog, Scholars without borders has been online for quite some time, and doing great service to those academically inclined. Those who have not heard it earlier, may visit it now.

DIVIDED WE STAND: INDIA IN A TIME OF COALITIONS by Paranjoy Guha Thakurta & Shankar Raghuraman, Sage, 2007.

As the UPA Government at the Centre struggles to survive in power, with the vote of confidence in Lok Sabha scheduled on July 22, there will be sufficient interest on the stability of coalition Governments. In this book, the authors assert that ideological affinity is the best guarantor of the longevity of alliances, whatever the CMP may or may not promise. Coalitions, they claim, can make a major contribution to deepening and strengthening Indian democracy: If they have arisen because large sections of the people of India felt excluded from the process of development, they will survive only if they are able to reverse that exclusion. The authors find that how much political instability- or how little – is desirable for the progress of economic reforms is a very difficult question to answer. In 2004, the BJP and the Congress together barely managed to cross the half-way mark in the Lok Sabha. In the next election, the authors assert it will not be surprising if they together fail to reach the half-way mark. This only shows that the next Lok Sabha will be more fractured than the 14th Lok Sabha, and political stability will continue to be elusive.

Supreme Court's Terminal List of cases 2008-09

As the Supreme Court is all set to take up the regular cases from July 15, the list of Specially Directed and Adjourned Matters for the period from July 2008 onwards (the terminal list)has been put on its website for the first time.

Researching contemporary history

In a persuasive article in EPW (the access to this link may be denied to non-subscribers later), Ramachandra Guha identifies the obstacles to the writing of contemporary history, and outlines how they might be overcome. These obstacles are the ban on accessing government records which are less than 30-years old, the inevitable biases and prejudices of authors and readers etc. Guha, however, is optimistic that it is possible to overcome these obstacles, by relying on private and institutional papers, periodical press, oral history, and official papers of other countries which have had close or contentious relations with India.

According to him, the period of independent India upto and including the Emergency can be viewed through a properly historical lens. Guha deplores that we do not have a single work by a historian that analyses or interprets the evolution of the caste system since independence. Nor do we have a historical study, he says, that can illuminate our understanding of how elections and electioneering have changed over these 60 years. The 50th anniversary of the formation of most Indian states was met with a resounding silence: No historian, living in any of the 28 states of India, thought it worth his while to write a social, or political or cultural or total history of the state he was working in, he says.

There are certain observations which I found interesting. Till the 1970s at least, he says, politics in India had a strong moral and ideological core - it had not become, as it is now, wholly cynical and instrumental. (Well, it is the degree of cynicism which Guha seems to imply. But it is debatable whether India then had a strong moral and ideological core).

Guha also challenges the prevailing myth that socialism was a consequence of Nehru's prejudices. He says not only Bombay Plan asked for a strong and interventionist state, but they quoted the Cambridge economist A.C.Pigou to the effect that socialism and capitalism had to find a common meeting ground. There was, he says, an overwhelming consensus in favour of a self-reliant, state-directed, "mixed economy" model for India's development. He blames the economic historians for not examining in a rigorous fashion, the economic policies of the successive governments of independent India. There is no reliable study of the formation of economic policy in independent India, he says. Historians have not written with depth or insight about the (often very fertile) debates among writers and social scientists in independent India; no Indian historian has written a proper historical study of our wars with Pakistan, he writes.

There is one issue on which the feminists, and some legal academics who worked on the Hindu Code Bill are bound to disagree with Guha. Guha challenges the view of contemporary feminist-academics that Hindu Code Bills, passed in 1955 and 1956 did not reform Hidu personal laws,they merely codified them, that is, brought them into conformity with what was assumed to be the Indian norm- north Indian, upper caste practices.

Guha omits to include Judiciary, Parliament & State Legislatures, and State and Central Executives (in contrast to leadership) as areas where research could be focussed on the first three decades of independence. No doubt, he refers to Granville Austin, but it is in the context of his exemplary use of private papers, official papers, newspaper reports, and oral histories.

Austin's two major works, Working A Democratic Constitution and The Indian Constitution: Cornerstone of a Nation are both substantial contributions. Yet, they are inadequate accounts as far as the history of Indian Supreme Court since independence is concerned. Cornerstone, for instance, was published in 1972, and has one chapter each to Executive, Legislature and Judiciary (of which Supreme Court is discussed in 8 pages) out of the book's 13 chapters. Working was published in 1999, and the book's chapterisation is in terms of issues, themes, and events. Of course, we have Supreme But Not Infallible (2000), and 50 years of Supreme Court of India (OUP-ILI). But these are edited volumes and cannot be a substitute for a proper history of Indian Supreme Court. Supreme Court in quest of identity by Govind Das (2000 -2nd edition)looks at the Supreme Court from the prism of political events, and is still inadequate.

Guha's omission to include Judiciary (his list of institutions requiring historical study does not go beyond AIR and NDDB - what about Election Commission,on which too no scholar seems to be interested) among areas of potential future research does not surprise me. Even while deploring the lack of biographies on prominent and less known personalities, Guha fails to mention the need to write biographies of Judges.

I have found a general and inexplicable bias against in-depth writings on law, Courts etc. not only in academics but in journalism. This may be partly out of ignorance of the role played by law and courts in our lives, but also due to a general contempt (Guha is, of course, an exception to this)to things legal, because of the jargon which is usually associated with legal writings. The onus perhaps lies on the legal academics and journalists, to make their writings comprehensible to the non-legal community at large. I see it both as a challenge and an opportunity.

Policies and Politics of Social Justice

I am posting here the gist of 28th JP Memorial Lecture delivered on 23 March 2008 at Gandhi Peace Foundation, Delhi, by Professor Yogendra Yadav of CSDS. I read the text of this lecture in The Radical Humanist, May 2008 issue, which does not have an online presence. I found the lecture offering a new perspective on the contemporary debate on reservations and affirmative action.

SUMMARY OF YOGENDRA YADAV'S LECTURE

Policies and Politics of social justice have reached a dead-end in contemporary India. While policies of social justice refer to the entire gamut of affirmative action policies, politics of social justice is usually identified with political parties like the BSP, the SP or the PMK OR the DMK. Whatever be the exact outcome of the next general elections, it is certain that the next government will include parties committed to social justice agenda. In all probability either the Left or the BSP or both, formations committed to the same agenda, will emerge as the pivotal player in the next Lok Sabha.

The apparent ubiquity of politics and policies of social justice is a pointer to their dead-end. If the language and legacy of social justice has a wide presence in our public life today it is because social justice has turned into a thin foil that can be used to wrap virtually any substance. The success of politics of social justice has become limited to the accession of leaders from dalit communities to governmental power. The policies of social justice are confined to effective implementation of reservations in government jobs.

The electoral requirement to gain plurality of votes has led to an imperative to create social coalitions. Most social justice parties either face fragmentation or co-option. In either case their capacity to use state power to push policies of substantive social transformation is very limited. Rather than annihilitation of the caste system, much of the politics of social justice ends up drawing upon if not reinforcing the same caste system.

In the Mandal II debate, the dead-end of the policies of social justice was quite visible. In the face of a very aggressive media-led anti-reservation campaign, the pro-reservationists were clearly on the defensive, not just because they were outnumbered and out-shouted in the elite circles, but because they did not have fresh and robust arguments. Policies of social justice are increasingly weak in the moral and ideological contestation for legitimacy. The policies have proven particularly fragile in dealing with challenges that arise from within.

Thinking about social justice must not be restricted to the arena of state. Besides state power, politics of social justice needs to be aware of and encompass social institutions, institutionalised religion and market. The success of affirmative action policies and politics had little impact on the social character of other power centres like the media or the NGOs. It is time that politics and policy of social justice focussed its energies on the private sector that represents the largest arena of economic opportunities.

Any attempt to change the unjust social order must begin by looking at the cumulative impact of these multiple inequalities. The current practice of identifying the beneficiaries of affirmative action with reference to a community or a similar identity needs to give way to an evidence based approach. Social justice need not reject relevance of ability, effort and choices to life prospects. Reservation in one form or another should be used as a measure of the last resort, rather than the first or the only tool of social justice. The existing system of reservations, which remains valuable and robust, needs to be fine-tuned.

Quota for the poor

In today's Hindu, Tarunabh and I have underlined the three major infirmities in the Rajasthan Government's compromise with the Gujjars who ended their agitation recently. The larger question, which needs to be examined, and which does not get sufficient treatment in the article, is the legal implications of reservations for the poor among the forward castes. Although we have said that the Indra Sawhney judgment is clearly against the quota for the poor, I have been curious about the basis of the Government of India's decision to set up a Commission for identifying the poor who require reservation and who have been left out of the existing categories of reservations. The reports here and here point to the setting up of the National Commission. But we know little about what the Commission has been doing all these months, the basis of its formation, etc. The Rajasthan decision was also based on the interim report of a State Commission set up following the setting up of the National Commission. As the Rajasthan assembly begins its session from July 14, we may expect these issues examined in the media.

BJP IN POWER

HINDU NATIONALISM AND GOVERNANCE Edited by John McGuire& Ian Copland,OUP, 2007, Rs.695, pp.476.

This book is a significant contribution to the study of BJP in power. With the BJP making a determined effort to return to power in the next general elections, scholarly interest on how the BJP governed the country from 1998 to 2004 should naturally focus on whether the initial apprehensions in the media when BJP formed its first durable Government in 1998 were justified.

Although the stability of the BJP-led NDA Government was in doubt every time when it was formed - first in 1996, (when it formed Government for 13 days) then in 1998, and in 1999 - the Vajpayee Government survived the multi-party coalition experiment successfully. Along with the stability question with which it was concerned throughout its tenure, the NDA Government was also accountable for its omissions and commissions, especially for its pursuit of the so-called hidden agenda of the Sangh Parivar. That is why the decisions taken by the various Ministries during those six years must receive scholarly scrutiny, beyond the superficial journalistic account, in order to make an assessment of what an ideological party can do or cannot do while in power.

John McGuire, Professor of Modern Indian History, Curtin University of Technology, Australia, and Ian Copland, Associate Professor of History and School of Historical Studies, Monash University, Australia have edited this volume. Contributors include Prabhat Patnaik (Economic Policy), Douglas Hill (Food Security, Governance, and Rural Development), Greg Bailey (Rewriting of Indian History), Salim Lakha (sifting economic agenda), Mushirul Hasan (Text Books), Edwina Mason (Politics of Hindu nationalism), Brian Shoesmith and Norel Mecklai (Hindu Rashtra), Robin Jeffrey (media revolution), Rita Manchanda (Hindu public discourse), and Achin Vanaik (foreign policy perspectives). There are separate essays on Kashmir, Pakistan and Bangladesh as well.

While these independent essays by these specialists will most certainly offer the much-needed insights into the functioning of the Government, there is indeed need for a chronologically backed scholarly account of the BJP in power, focusing on the issues of governance, that is, the legislative output in Parliament, the controversies and compromises which marked the executive decisions, and the state of independent institutions such as judiciary and election commission, apart from the dynamics of party-Government relationship. The book has no chapters on these themes, which only shows there is a void which can be filled by interested scholars.

Guest Post: A Critique of Kerala's IP Policy

Frustrated with the Central Government's lack of action in bringing about a nationwide "traditional knowledge" policy, the State Government of Kerala decided to take matters into its own hands. It recently unveiled a controversial "intellectual property policy" dealing primarily with "traditional knowledge" regulation. We bring you a guest post by Dr K Ravi Srinivas, Associate Fellow, RIS (Research and Information Systems for Developing Countries).

For the necessary background to this policy, please see this post here at SpicyIP. I've also done another post here which discusses the "Constitutional" implications of this policy i.e. can the State government legislate in this area, when it appears that the Centre has exclusive jurisdiction. This may be of interest to the members of this blog.

Anyway, we give you Ravi Srinivas and his thoughts on this rather daring policy.


Kerala’s Intellectual Property Policy

Krishna Ravi Srinivas

Kerala has come out with an Intellectual Property Rights Policy. In this blog post I provide a brief critique of the policy. While there is no bar on states on having policies on Intellectual Property Rights (IPRS), that is subject to the constitutional provisions. IPRS are listed in the Central list and the Centre alone is empowered to bring in legislations that govern issues related to IPRS in India. Under Article 246, List I (Union List) contains “Patents, inventions and designs; copyright; trade-marks and merchandise marks” as an item. It is a well settled principle that on items listed in List 1 of Article 246 (Seventh Schedule) of the Constitution the Central government alone can pass laws and frame relevant rules. (e.g. OSMANIA UNIVERSITY TEACHERS' ASSOCIATION v. STATE OF ANDHRA PRADESH AND ANOTHER [(1987) 4 SCC 671, M.P. VIDYUT KARAMCHARI SANGH v M.P. ELECTRICITY BOARD [(2004) 9 SCC 755] .

India has a Patent Act in place and on Biodiversity and Plant Varieties there are Acts and bodies set up under these to administer the Acts and regulate access and benefit sharing. The move by Kerala government cannot over ride these. But the policy ignores these basics and wants to create a different system of ‘IPRS’ for Traditional Knowledge (TK). This is fundamentally flawed and is not likely to stand judicial scrutiny.

Ayurveda is not confined to Kerala and one cannot demarcate Ayurveda as Kerala-Ayurveda and non-Kerala Ayurveda. Many firms inside and outside Kerala in the Ayurveda sector are medium and large scale enterprises. Traditional Knowledge like any other knowledge has spill over effects and whether it is codified or not, forms a source for research and development. Permanent State sovereignty over natural resources is a well recognized principle in international law but this does not extend to knowledge. The Convention on Biological Diversity also recognizes the sovereign rights over genetic resources but CBD does not explicitly transfers traditional knowledge into the domain of state ownership. Moreover it is not clear as to under provisions of Constitution or any International Treaty or Convention this assertion over TK is made.

Hence the claim made by the state government that it can be deemed to have rights over some portion of traditional knowledge is absurd, to say the least. There is more to TK than traditional medicine. TK includes but not limited to traditional cultural expressions, traditional arts and crafts, and, traditional designs. TK is not static and has dynamism of its own. The policy ignores these facts.

The irony is the policy has come at a time when the IGC (Intergovernmental Committee on Folklore, Traditional Knowledge and Genetic Resources of WIPO) has prepared some guidelines for a misappropriation regime for TK besides model provisions and scholars have examined the possibility of using trade secrets and compensatory liability regime to protect the interests of TK holders. The CBD recognizes the idea of Prior Informed Consent (PIC) and this principle has been accepted as a key principle in protecting the rights of TK holders. Yet the policy has no place for PIC as it decides what rights these TK holders would have.

The scheme envisaged by the state government is unclear on this as it puts forth an ill-defined concept ‘Knowledge Commons’. Knowledge Commons is defined as “Knowledge Commons” refer to the knowledge, which is the collectively produced sphere of ideas and which is left unencumbered for the greater benefit of all”. According to this policy a portion of TK belongs to Knowledge Commons and not to Public Domain.

It specifies no reason as to why Knowledge Commons is a better one, in terms of theory and practice over Public Domain. Unfortunately this policy provides no clarity on the legal status of the Knowledge Commons and the legal principles that underlie this idea. On the other hand Public Domain is a much better defined idea and is well understood in the context of IPRS. Similarly the policy refers to Commons and Commons License without clarifying their legal usage. It is not clear as to whether it refers to a Creative Commons type of license or a version of GPL or to any other form of license.

The policy wants further changes in the Biological Diversity Act and here too it brings in the idea of Knowledge Commons. This will defeat the very purpose of Access and Benefit Sharing (ABS). Why should a prospector opt for ABS if developments based on TK must be put back in ‘Knowledge Commons’? This idea of putting back the developments based on TK into Knowledge Commons is not clear as what is meant by developments based on TK is not specified. Does it mean knowledge or does it include patents also. If it includes patents also what are the rights of the patentees. There is a direct conflict with Indian Patents Act if it includes patents. Such a rule will not be TRIPS compliant.

The left is yet to reconcile to India’s joining WTO and to the amendments to the Indian Patent Act. It views patents and MNCs with suspicion and thinks that evil forces are out there to steal TK and squeeze the livelihoods of those who depend on TK. It has no positive policy on development and utilization of TK and on protecting the rights of TK holders. These are reflected in the policy and thus it reads more like an ideological statement than a coherent policy that is sensitive to the complex nature of the TK issue. State appropriation of TK is no solution to misappropriation by others. In fact it is a solution that is worse than the problem as the holders of TK are disempowered by the state in this policy.

To sum up the policy is based neither on sound legal principles, nor on a pragmatic understanding of IPRS in India. It is based on the fears and misconceptions of the left and on a poor understanding of ideas like Commons, Knowledge Commons and Public Domain.

(The usual disclaimers apply)