Dwindling number of Parsis

The National Minorities Commission 's Report on the dwindling number of Parsis in India provides very useful statistical evidence to show that there is a problem. What is disturbing is its prescription for remedying the problem.

The Report clearly shows that there is a consistent fall in birth rate over the last seven years amongst the Parsis. An instinctive reaction is one of concern, but I wonder what is the root cause of our concern?

The question becomes important because one of the reasons identified by the Report for the falling birth rates is 'out-marriages' - mapping the liberal-conservative debate within the Parsi community over whether to recognise children born out of 'mixed' marriages. And hence the question's importance - should our concern be preservation of Parsi cultural heritage (which is not necessarily threatened by recognising children of mixed marriages as Parsis) or preservation of the purity of blood and gene pool of an ethnic group. The conservative 'argue that they have a religious duty to preserve what onepriest called their “genetic distinctness”. “If the trend (i.e. outmarriages) continues, you won’t be able to recognize a Parsi.”'

The Report recognises this as the root of the debate, but more importantly, appears to take a stand in favour of the conservative position:

'What the liberals don’t understand is that even if we take in children with Parsi mothers and non-Parsi fathers, it does not solve their concern about declining Parsi numbers. We may increase the religion but not the community and until now both the ethnic and religious
identity has been seen as part of an indistinguished whole identity.'

The stand is reiterated in this news-report and in its final recommendation:

'The above study will be worth its value, if Parsi Community Leaders get together to resolve the problems enumerated which cause the birth rate to slow down, namely, Late and non-marriages, Fertility decline, Emigration, Out-marriages and Separation--divorces.

All these causes are well known and some steps are taken to reverse the trend, but not enough is done, as seen from the Project Report. The important factor is the confidence and consciousness among Parsi Youth to be aroused, to remain bonded together. The Parsis have all the resources at their command and also endowed abilities to rise above the situation. What is lacking, is the zeal of entrepreneurship, early employment and strengthened family ties to live together and lead the Zoroastrian way of life knitted in good thoughts, good words and good deeds, in this materialistic and glamorous world. Youth and parental counselling are absolutely essential (in the myriad opportunities and teeming millions around) to keep their goals well defined and strive to live up to the expectations of ancestral goodwill and heritage of which, they are the
proud beneficiaries.'

I have three problems with this report - first, clearly the 'problem ' exists because many Parsi individuals are taking an autonomous decision whether and whom to marry. Any progressive society should welcome the institutionalisation of choice on the question of choosing one's life partner rather than see it as a negative trend. Inter-faith and inter-caste marriages have in fact been seen as the solution to many of India's problems, with Dr. Ambedkar among its strong proponents.

Secondly, there seems to be a gender dimension to this issue. The Report appears to suggest that only a marriage between a Parsi woman and a non-Parsi man is an 'out' or 'mixed' marriage. I am not entirely sure if this also applies to a Parsi man marrying a non-Parsi woman, but this qutoe from the Report suggests that the prohibition is not gender-neutral:

'Liberals further want that children of Parsi mothers and non-Parsi fathers also to be included within the fold which is however vehemently opposed by the conservatives who see it as an act of conversion.'

If this interpretation is true, the genetic purity argument cuts even less ice - how is a child of mixed marriage with a Parsi man genetically 'pure', but not one whose mother alone is Parsi?

Finally, as an institution of the state, the role of NCM in giving this advice is even more precarious. As a general rule, the state should keep out of the business of telling consending adults whether, when and whom to marry. As the old saying goes, 'jab miyan bibi raazi, to kya karega kaazi'?

SLAPPs

Strategic Lawsuits against Public Participation is a well researched and analysed concept in the US. Sunita Narrain discusses its use against activists in India in this article which raises several other important issues:
'the pesticide industry through its associations has filed countless cases against activists and scientists, but with an important difference. These cases derive from what is known in the us as slapp —acronym for ‘strategic lawsuits against public participation’. These are ‘different’ because the corporation (or its front organisation or lawyer) uses it not to get justice, but to threaten, intimidate and gag. The cases are filed not against institutions that can defend their interests but carefully target individuals and, in particular, professionals who refuse to prostitute their science to suit industry. The companies who file slapp cases rarely win in court, but make the defendants spend a huge amount of time and money running to the courts to fight the case. This harassment discourages others from petitioning government on public issues. Industry’s business is served.'

Rajeev Dhavan also discusses SLAPPs in this article. I have written about multiple litigation merely as a tool for harrassment on this blog and elsewhere in the context of artistic freedom - but the basic idea is the same. The cases are filed not to secure any result, but use the process as punishment.

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).

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.

Discrimination by housing societies - need for legislation

The recent case of a majority-Jain housing society in Mumbai denying the only Muslim family living there power and water is not the only one of its kind. Since the Mumbai bomb-blasts in 1993, Muslims in particular, but 'meat-eaters' and 'drikers' as well, have been denied housing in the city. One wonders what the situation might be in post-Godhra Gujarat, and even rest of the country.
Surprisingly, the trend received endorsement from the Supreme Court in its decision in Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies (2005), where it allowed a housing society to rent and sell accommodation only to members of a particular religious community (in this case, Parsees) citing the freedom of association under Article 19(1)(c). The Court held that the co-operate was not 'State' under Article 12 and therefore was not bound by the duty not to discriminate on the ground of religion under Article 15. [Sushant, thanks for clarifying this point.]
Be that as it may, a national legislation prohibiting discrimination by public and private housing societies on Article 15 grounds, as well as other grounds like food preference, disability, sexual orientation, age, gender identity, HIV-status and such other grounds is imperative. Surely such legislation aimed at securing one of the primary constitutional goals of equality will be a reasonable restriction on the freedom of association.
PS - Similar arguments can be made for prohibiting discrimination on such grounds in private employment, but that is for another post.
PSS - A passing reference is in order for the latest SC judgment in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (decided on 14.03.2008). The Court agrees (para 26) that the right to eat what one wants is protected by Article 21. Yet, it upholds a Gujarat government ban on selling meat for nine days, surprisingly citing similar bans by Akbar in the past. Can protection of religious sentiments of vegetarian religious groups be a legitimate and important enough state purpose to violate fundamental rights, howsoever slightly? Isn't there also an issue of discriminating on the basis of food-preference, which is indirect discrimination on the ground of religion and caste? I am not arguing that the state can never prohibit certain types of food, but the reasons for doing so must be secular and important enough to curb fundamental rights. [The judgment is not available online yet, but I have a copy - if you want it, email me at tarunabh at gmail dot com.]
PSS - This is a news story about ghettoised housing in Gujarat post 2002. Talha, thanks for the link.

Opposing editorial analyses of the scrapping of SEZs in Goa

As we await further developments on the Goa Government’s decision to scrap SEZs in the state, two prominent dailies have issued contrasting editorials. Yesterday, the Hindu’s editorial team weighed in, speaking out in favour of the Goa government’s stance. The Hindu editorial views the decision as responding to the public protests in the state against SEZs, and advises the Central Government to “respect this democratic outcome and help the State government speedily resolve all remaining issues, especially the question of how land already allotted to private parties in the three notified SEZs will be recovered.”

In making its case, the Hindu editorial focuses on the following points:

A coastal State with an area of 3,700 square kilometres and a population of about 1.4 million, Goa has always been extremely sensitive to the impact of unrestrained economic development. The upsurge of public activism against the setting up of Special Economic Zones, which eventually forced the State government to announce the scrapping of all 15 such projects, is an impressive case in point. Early last year, a similar agitation coerced the government into calling for a re vision of the Goa Regional Plan 2011, a controversial document that opened up large swathes of land, including green belts and coastal stretches, for construction. The broad-based agitation against SEZs has demonstrated the power of popular protest in the State. Those opposed to the projects had questioned the propriety of the government acquiring large tracts of land and then selling them to promoters at low prices. There were also suspicions that some of the SEZs were real estate speculative plays, fronts for the entry of big construction companies.

The Express editorial, which is featured in today's issue, draws attention to the overall policy implications for SEZs in general, and urges the Central government to “stand firm in rejecting the decision” of the Goa Government. Here are the details it relies upon:

Of the 15 proposed SEZs three have already been notified by the Centre after the state government earlier recommended them. The other 12 SEZs too have been recommended by the state government but remain to be notified. However, the land has been formally allotted in the case of all the SEZs. In the case of SEZs already notified construction is under way and investments worth Rs 500 crore are in the pipeline. Equipment has already been imported at zero duty by one of the SEZs being set up by a well-known pharmaceutical company. The company also has other non-SEZ operations in Goa where the bulk of the people employed are locals. The Centre will have to decide whether it wants to generate more employment or let rent seekers have their way.

Addressing the legal issues involved, the Express editorial avers:

Legally, the state government just cannot cancel SEZs which have already been notified and where work has started. The courts may not allow that. However, since land use is a state subject, the Goa government will try to cancel the SEZs which have not been notified. Technically they can do so. It is here that the Centre must stand firm. Technical arguments will not help restore the credibility of the UPA if it gives in to pressure from the Goa Chief Minister Digambar Kamat.

The Express editorial ends by making a pitch for the “integrity of the process” of national policy-making:

The country has gone through a fairly robust debate on the feasibility of SEZs. Several modifications to policy have been made in the area of land acquisition. Even within the UPA it is now accepted by all that SEZs are indeed desirable to drive development. It is of paramount importance that India moves large sections of its population from low-yielding agriculture to industry within a democratic framework. That is precisely what the SEZ policy seeks to do. The UPA must do everything to maintain the integrity of this process.

In my view, these contrasting editorials do a decent job of representing the diverse policy issues involved. One can, however, quibble with particular arguments made by each editorial. The Hindu may be emphasizing ‘people power’ to the detriment of other factors, such as the problems involved when governments go back on policy decisions, thereby adversely affecting investors who have acted on such undertakings. The Hindu also ignores the messy political calculations involved, and its act of commending the current leaders, who were party to all the overruled decisions, seems a bit much. The Express editorial, on the other hand, makes the mistake of overemphasizing the “integrity” of the policy debate over SEZs. In particular, its claim that “the country has gone through a fairly robust debate” over SEZs seems particularly misplaced. When exactly did such a debate take place? Were all stakeholders party to such a debate, and how do we know that all the legal and policy implications were discussed?

These problems aside, the editorials do set up the policy dilemmas involved in debating SEZs reasonably well. Together, they point to the many challenges involved in crafting a balanced policy towards SEZs.

Update, 2 pm: In the comments section, Dilip provides links to two papers by Aradhna Aggarwal which provide very useful background context, facts and statistics, and analysis. I am providing links to those documents in the text of this post: those interested getting a deeper understanding of this issue will benefit from reading these two pieces. This is a shorter EPW piece, while this is a longer working paper under the institutional aegis of ICRIER.

The Khurana case and predictable views of the media establishment on regulation

Today's papers are full of editorials and op-eds on the Uma Khurana case. As Barkha Dutt fairly concedes in her column:

"The timing could not have been worse. On a day when television journalists were all set to wrestle the government to the ground over its imperious and inane Broadcasting Bill, along comes our own moment of ignominy and shame."

Both the Indian Express and the Hindustan Times have editorials where, quite predictably, the actions of the TV channel are criticised, but the Broadcast Bill is also condemned. Their solution: self regulation by the media. This is also the response that Barkha Dutt proposes:

"Before the government uses the exception to thrust its own set of motivated rules on us, let us in the industry admit that we need a code of conduct that we can all agree upon, and one that we draft ourselves. (Thanks, but no thanks, is what we need to tell the I&B Ministry).

It’s something I have long argued in favour of on these pages. We must be ready for the scrutiny we subject others to. Because when the reporter becomes the story, the news takes a backseat."

Dutt's closing sentences make the appropriate noises, but notice that she seems to rule out anyone but the media being involved in such regulation.

The only print column I have been able to locate so far that goes beyond this limited claim is a column in the Express by Amrita Shah, who is identified, rather tellingly, as a "commentator on media and society." This is her proposed response:

"A workable solution would need the active involvement of consumers of the media, for it is they who can arrest falling standards by choosing what to patronise. In a market-driven environment it will have to be the responsibility of the media and citizens both to create a society where the rule of law is less casually flouted."

I am surprised by the media's seeming blindness to the glaringly obvious problem with such arguments. Of late, the media has been trying to highlight problems within among other institutions, the judiciary, arguing that self-regulation is not a workable or defensible mechanism for the many woes that afflict that and other institutions in India. Yet, when it comes to setting its own house in order (and one didn't need the Khurana case to point to the dire need for this), the people who constitute the media establishment can only offer defensive explanations, talk of this being an 'exception', and propose the blandest of solutions: self-regulation.

One does not have to choose between the alternatives of the Broadcast Bill and self-regulation by the media: both appear unacceptable. It is upto the media to come up with more credible alternatives, if it wants to drum popular support against measures such as the Broadcast Bill. That some kind of regulation is in order is clear: as Amrita Shah points out, this is not an exception, and there are several such instances which have happened in the recent past. If the media doesn't budge, then measures such as the Broadcast Bill may be supported even by those who currently oppose it.

The limits of public participation in policy-making?

The purpose of this post is to make a somewhat obvious and trite point, which, however, seems to be worth reiterating in current times. Kaushik Basu has a recent column in the HT which articulates this very well:

"Democracy runs on participation, and we Indians are good at that — argumentative, demanding and, should the need be and, at times, even if the need should not be, disruptive. But surely there can also be something called over-participation. In many policy matters there is a fine balance between articulating preferences and taking decisions in hand. Take for instance the Indo-US nuclear agreement 123. This is a matter of great complexity and one has to commandeer a lot of information before one digs in one’s heels. It is clearly not a matter that should be decided by popular support.

This is a problem that economists have to contend with more often than other professionals, such as engineers. No one would suggest designing a plane by taking into account majority preferences. But when it comes to designing an industrial policy or setting a target exchange rate or adopting a currency convertibility system, everybody feels that he or she has an opinion that ought to count.

Drawing a line where mass participation should end and expertise take over is not an easy matter. To have everybody participate is to risk a policy hodge-podge. To leave it all to the expert is to risk policies being hijacked by small interest groups that the expert may, openly or covertly, be a part of. I do not know what the right solution is, but feel that we human beings would contribute to saner decision-making if we entertained a little bit of scepticism — an awareness of how little we know. We would have fewer fundamentalists if we could be modest enough to admit that the world is full of unknowns and wonders, and realistic enough to know that there is no book of the ultimate secrets of life.

... ... ... Of course, we have to express opinions (and I will in this column) and take decisions, but those opinions and decisions would be much better and more dependable, if underlying them was an awareness of the ultimate uncertainty of nature."

Clearly, this is a problem that lawyers, especially constitutional lawyers, also have to deal with. Basu's exhortation seems very relevant to the constituency of this blog as well.

Further details about the implementation of the NREGA

Following up on his recent piece in the Hindu on the implementation of the National Rural Employment Guarantee Act (see this earlier post for a link and some basic facts about the NREGA), Jean Dreze has a more elaborate piece on the issue in the latest issue of Frontline. Written with a different co-author, Drez's Frontline piece has an interesting opening statement:

"THE National Rural Employment Guarantee Act (NREGA) has been a subject of lively debate in the past two years or so. Unfortunately, the factual basis of this debate has been, so far, rather thin. This has made it possible for extremist positions to flourish without being put to the test of careful evidence. While the Act is regularly pilloried in the corporate-sponsored media as an "expensive gravy train" (as a former Chief Economic Adviser described it), the government gets away with extravagant claims of success.

Fortunately, the scope for informed analysis is rapidly growing as reports are beginning to pour in from various parts of the country. "

The rest of the piece consists of fairly close analysis of the statistics available on the NREGA website maintained by the Ministry of Rural Development. The authors note that the website and the data it provides have problematic aspects, but parse it nevertheless to come to interesting conclusions about the relative progress achieved in different states. Some of these would appear to go against conventional wisdom, such as the following bit:

"Is NREGA doing better in States ruled by particular political parties? No obvious pattern emerges in this respect. Nevertheless there is a hint that, if any national political party is taking the NREGA seriously, it is the Bharatiya Janata Party (BJP). Indeed, among the major States, the four best performers in terms of employment generation under NREGA are Rajasthan, Assam, Madhya Pradesh and Chhattisgarh, all of which, except Assam, had BJP governments in 2006-07. As it happens, Assembly elections are due relatively soon in Chhattisgarh, Madhya Pradesh and Rajasthan. One wonders whether active implementation of the NREGA in these States is part of a deliberate electoral strategy of the BJP. It would be a cruel irony if the BJP were to reap the political benefits of a programme initially championed by the Congress and the Left parties."

This is how the authors conclude:

"It would be naive to think that the long history of fraud in public works programmes has already come to an end. But recent experience shows that it is possible to remove mass corruption from NREGA. This calls for strict implementation of the transparency safeguards, as well as firm action whenever corruption is exposed. In these simple steps lies the future of the Act, and of all those for whom it is a new ray of hope."

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PRS Legislative Research : An excellent resource on the Indian Parliament's legislative output and functioning

While hunting for a specific post in the archives of this blog, I began to classify the types of blog posts that I found there, and realised that very few posts have actually focused on legislation, or on the functioning of Parliament. Tarunabh's recent post about the Broadcast Regulation Bill is quite an exception. The bulk of posts on our blog have focused upon judicial decisions, while the posts which generated the greatest debates involved those focusing on particular Supreme Court decisions. In this, the posts on this blog reflect larger trends in Indian legal scholarship, as well as in Indian legal education, where the focus invariably is on courts.

Looking back at my own legal education in India, I have to accept that a focus on judicial decisions, particularly those of the Indian Supreme Court, was the predominant feature of much of the curriculum. There were no courses on Legislative Drafting (though my batch was fortunate enough to have one offered as an optional course, even as, reflecting the perceived practical utility of such a course, there were few takers for the course). Most of us were briefly exposed to the stages of enactment of a Bill when we dealt with the constitutional provisions in this respect, but this was done very cursorily, and I suspect that most law students do not have a good understanding of exactly what happens in the process by which a Bill becomes a duly enacted statute. The mandatory course on Statutory Interpretation that I studied focused more on the perspective of practicing lawyers and judges who have to interpret enacted statutes. A cursory glance at the present curriculum adopted at NLS, Bangalore and NALSAR, Hyderabad indicates that not much has changed since the mid-1990s in this respect.

This is indeed unfortunate, because, as all of us are aware, legislative activity accounts for some of the most important developments in our legal system. Academics who focus on India's legal system have long pointed to the large number of obsolete laws on our statutory rolls. Attention has also been drawn towards the fact that even recent statutes have problems embedded in the language in which they are drafted, as well as their inherent structure. Yet, this has not been accompanied by rigorous thinking (and teaching) about the kind of changes we should be incorporating in our drafting methods. The one Indian legal academic that I am aware of who focused on these questions extensively in his writings is P.M. Bakshi (at least some of his scholarship is available in the pages of the Journal of the Indian Law Institute).

In some respects, this is a malaise which affects many countries which adopted the common law system. Fellow graduate students from civil law jurisdictions would often point out to me that their legal education focused extensively upon legislative activity, and that several of them underwent extensive training in legislative drafting. Academics from civil law jurisdictions also tend to focus upon legislative reform, and legislative developments quite extensively and naturally. In some other common law systems, however, the situation is not as bad as in India, and law schools in particular have made efforts to focus on the issues highlighted here.

Reverting to the situation in India, research and teaching focusing on legislation is hampered by the fact that we do not have the tools to conduct proper research or develop teaching modules around the issue. For those interested in this isssue, some hope is now at hand. I recently came across the excellent website of the PRS Legislative Research team. Here, from their website, is some information about the team and their mission:

"PRS Legislative Research is an independent research initiative that aims to strengthen the legislative debate by making it better informed, more transparent and participatory. PRS is the first initiative of its kind in India. India is on the threshold of a major leap forward. At this juncture, it is critical to get a robust process of law making into place – a process which not only deepens that quality of deliberation in Parliament, but also welcomes inputs from those outside government

What we do:

PRS produces easy to understand 4-6 pages long Legislative Briefs on a range of Bills. These Briefs are sent to all MPs in both houses of Parliament, about 1200 NGOs across the country, and the top 500 companies. We also email our Briefs to more than 600 people in the media.

The Post Session Summary is a synopsis of all the legislative business that has been transacted in a Parliament session. The Pre-Session Alert is a summary of the legislative business that is likely to be transacted in the forthcoming session of Parliament. One page Bill Summary is a unique offering from PRS. Often Bills introduced in Parliament are long and complex. PRS summarises the contents of the Bill into one page, so the busy user can get a quick snapshot of the main features of a Bill. Feedback from stakeholders on Bills is critical. PRS will send your inputs and suggestions in Your Opinion Matters to the relevant government agencies. PRS also takes up Commissioned Research projects on issues pertaining to legislation and Parliament. "

The website of PRS has different sections which provide links to the full text of the following:

Bills Pending in Parliament

Recent Acts

Draft Bills

Bills Passed

For many of the specific entries, PRS provides short and helpful 'Legislative Briefs' which allow readers to get a quick sense of the proposed law. The archives date back to 2004, allowing researchers and students to study some of the most significant laws passed in recent years. In a section called "Vital Stats", the website provides interesting analysis of statistical data, which enables readers to monitor the activity of Parliament and get a sense of, for instance, the attendance record of MPs. The main page of the website also has a useful section which tracks news stories related to laws and disputes about laws, broadly defined. As of today, the website features legislative briefs about important bills such as the Competition Amendment Bill and the Microfinance Bill.

Some members of the Core team of PRS have been reaching out to mainstream publications to air their research findings. Indeed, reports by MR Madhavan and Priya Parker (on the Maintenance of Parents Bill, 2007) that appeared in newspapers and online magazines have been featured on our blog as well. Clearly, the members of PRS are seeking to highlight these issues and cause national opinion to focus upon the often pressing issues that they work upon.

I for one will be revisiting this website often to get a sense of important policy changes that are being proposed in Parliament. I suspect the site will be very useful to law students, scholars and practitioners in general.

Defining Minorities in India

Today's edition of the Hindu features an article by Professor Zoya Hasan, who teaches at JNU, and is a member of the National Commission of Minorities (click here for her profile as well as those of other members of the current Commission). Her article argues against the prevailing consensus among the three wings of government (reflected in the reported Cabinet approval of the new policy in May 2007, which is itself based on recent Supreme Court decisions) on the proper approach to defining minorities in India. Here are extracts from the article highlighting the persuasive arguments advanced by Professor Hasan:

"The Constitution (103rd Amendment) Bill, 2004 to grant constitutional status to the National Commission for Minorities envisages a change in the way minorities are specified. The Cabinet has reportedly approved a proposal (May 2007) to define minorities State-wise in line with several Supreme Court judgments, most notably that in T.M.A. Pai. For the purpose of this legislation, minority will be specified as such in relation to a particular State/Union Territory by a presidential notification issued after consultation with the State Government; this will be in addition to the five minorities (Muslims, Christians, Sikhs, Buddhists, and Parsis) referred to in the NCM Act, 1992. The new approach is not consistent with the understanding developed in the Constituent Assembly on the protection of minorities and the constitutional compact between the State and minority groups.

Although the Constitution does not define a minority or provide details relating to the geographical and numerical specification of the concept, it is clear that the constitutional scheme envisages this to be determined at the national level. Periodic judicial interventions and categorisation has had major repercussions. Over the years, judicial pronouncements have sought to give a restricted meaning to minority rights by limiting them to education and defining minorities at the State level in terms of protection under Article 30 which provides religious minorities the right to set up educational institutions of their choice. The legitimation of a restrictive conception of minority rights can also be noticed, in this context, in the Central Government’s proposal to adopt a State-specific notion of minorities.

... ... ... At the heart of the current controversy is confusion about which groups qualify as minorities and regarding the nature of the unit of determination under this rubric. However, internationally, some agreement exists. Commonly cited characteristics that make groups distinctive and expose them to discrimination include religion, language, culture, and gender. There is also a unanimous opinion that the term ‘minority’ refers to a power relationship. In this, the size of a group may bear some relation to the degree of power it wields, but presumably because other factors are also involved in the equation, the relationship of group size is not all that significant.

Contrary to this widely accepted perception of minorities, the Government’s new proposal for State-specific minorities is driven by a statistical or numerical approach. The size of the group is not what should concern our policy-makers or those committed to eradication of inequity, prejudice, and discrimination. This is because numbers per se merely quantify and describe the proportion of a group in a population; they do not tell us anything about whether a particular minority group is powerful or powerless, advantaged or disadvantaged, represented or under-represented. A more meaningful conception of minority status would include sections of people who, on account of their non-dominant position in the country as a whole (not a specific State), and because of their religion, language, caste or gender, are targets of discrimination and therefore deserving of special consideration. The statistical approach disregards the crucial qualitative condition of vulnerability and disadvantage.

... ... ... In the circumstances, defining and confining the category ‘minority’ to States is not the best way forward; it would be far more helpful to recognise the comprehensive character of minority rights, in consonance with the demands of substantive equality, to include them by revisiting the concept of affirmative action. This would be in step with the slew of policies and measures currently under consideration to address the economic, social, and educational deprivation that minorities experience."

Assessing the implementation of The National Rural Employment Guarantee Act:

Today's Hindu carries a piece by Jean Dreze and Siddhartha Lal where they narrate their field experiences in Rajasthan on a trip that was undertaken to assess the implementation of the NREGA. While there was a lot of debate about the policy behind the Act when it was introduced, not much attention has been focused on the implementation of the law - a trend that is sadly quite common in India. While the Dreze-Lal piece is not a systematic empirical study, and only describes the result of a two day stint in one district in Rajasthan, their mixed findings do give some sense of the problems being faced in implementing the law, while also focusing on its positive aspects.

For those interested in some more details about the issue, here is the Wikipedia entry on the NREGA; here is the link to the official website of the Union Ministry of Rural Development which provides details about the implementation of the NREGA; and here is a set of basic FAQs compiled by rediff.com.

The debate over St. Stephens' new policy

Reading Dilip's stimulating post on the judgment recently delivered by Justice Dhanapalan of the Madras High Court, and his discussion of the Pai and Inamdar rulings, reminded me that some of the same issues come up in the debate over St. Stephens' recently announced policy of quotas for Christians, and Dalit Christians in particular. (The debate has been meticulously chronicled by Nanopolitan, and some of the links provided in this post are from the archives of his blog).

The basic facts at the heart of the debate are set out in a punchy HT editorial authored by Barkha Dutt, an alumna of St. Stephen's:

"Under a new officer on special duty (Valson Thampu, my old teacher), the college has increased the overall Christian quota to 40 per cent, of which 25 per cent will be kept aside only for Dalit Christians. A certificate from a church will determine who is a Dalit Christian, and all such applicants will be measured against a cut-off of 60 per cent marks, irrespective of which subject they want to study (students competing in the general category for a seat at St Stephen’s usually need anything upwards of an 85 per cent score.) If you add the seats reserved for Scheduled Castes and Scheduled Tribes and those kept aside for the sports quota, only four out of every 10 seats will now remain genuinely competitive. Christian students and SC/ST candidates already apply at a cut-off that is 15 per cent lower than that for the general category."

Other alumni of St. Stephen's have protested against the new policy. (Ramachandra Guha's spirited response is available on Outlook, but viewing it requires a free subscription: a brief discussion of his views is available at this post on Nanopolitan's blog). Vir Sanghvi, while weighing in on the issue (and clarifying that he is not an alumnus of the college), called for a national debate over the issue. His editorial also examines some of the reasons behind the furore over the issue, focusing on the high status enjoyed by St. Stephen's college among educational institutions in India.

The current Principal of St. Stephen's has responded to these criticisms in a series of op-ed articles. Here is a link to his op-ed in the Times of India, dated June 29, 2007. A few days later, he wrote this op-ed in the HT. And this is his editorial in today's issue of the Hindu.

While others have focused on the prudential and normative basis of the policy, I hope we will be able to discuss the legal arguments for and against the policy. In her passionately argued piece, Barkha Dutt alludes to the fact that the college may have a sound legal basis for its new policy, but disputes its soundness on other grounds:

"St Stephen’s College is legally within its rights as a minority institution to bring in these new quotas (despite the fact that 95 per cent of its expenses are met by the University Grants Commission). But the college that taught us all to never accept inherited wisdom must now turn its innate questioning spirit to itself. It must answer why it has chosen to self-destruct and walk down a path that will kill the very liberalism that has defined it for decades."

Focusing on the Principal's latest response in today's Hindu, he too raises both normative and legal arguments to back the new policy. Among other policy-based arguments, he focuses on what he sees as the basic problem with higher education in the country today:

"The foremost tragedy in this country is not illiteracy. It is a system of education — from the primary level to higher and professional education — that perpetuates the status quo, aggravates social cleavages, obstructs national integration, and shuts the door on the hopes and aspirations of the poor. A veneer of legitimacy is cast over this systemic injustice with the label of ‘merit.’ Merit, as an American billionaire said some years ago, often implies little more than the accident of being “conceived in the right womb.” The time has come for us to make a distinction between ‘individual merit’ and the merit of a society. A meritorious society is one in which the hidden merit of all its members is enabled and expressed fully. Seen in this light, we are an ‘anti-merit society.’ Our very notion of merit militates against merit in the social sense. It is high time we shifted from a hierarchic to a democratic and socially pro-active idea of merit, the sort of merit that would have found favour with the Father of the Nation."

He then provides the legal basis for the new policy:

"What holds the field in the domain of minority rights today is the 2002 judgment of the Supreme Court of India’s 11-judge bench in T.M.A Pai Foundation & Ors. vs. the State of Karnataka and Ors. This judgment holds: “ ;To effectuate Article 30(1), minority educational institutions, while giving preference to students of that community, may admit students of non-minorities up to 50% . . .” It is thus obvious that admission from all other communities and categories to a minority educational institution should not exceed 50 per cent. This is so because, as the Supreme Court acknowledges, admissions have a shaping influence on the character of an institution. A minority institution loses its minority character when the minority community becomes a minority in that institution. Article 30(1) is meant, primarily, to enable religious and linguistic minorities to meet their educational needs.

According to the Guidelines for Admission 2007-2008, 40 per cent of the seats in St. Stephen’s are set apart for Christian applicants and an equal percentage for non-minority applicants. Both admissions are done strictly on the basis of inter se merit. Of the remaining 20 per cent of seats, 5 per cent is meant for sports admissions and the remaining 15 per cent accommodates social justice (SC/ST students). It is out of the 40 per cent seats for Christian applicants that 25 per cent (or 10 per cent of the total seats) is set apart for Dalit Christians. The admission of Christians from socially degraded backgrounds, or Christian Dalits, does not therefore affect the interest of non-minorities in any way."

Convinced of the legal soundness of his position, Principal Thampu expresses concerns that that by itself may not be enough to ensure that the new policy is allowed to be implemented:

" .... I am a law-abiding citizen, first and foremost. The dilemma I face is whether or not I am free to obey the law of the land within the matrix of prestige in education. Respect for the rule of law is, sadly, not a strong point in our society yet. Not infrequently, people showcase their clout by defying the law. The verdicts of the Supreme Court have the effect of ‘law declared.’ They are binding on citizens, regulatory authorities, and governments. As a law-abiding citizen of India, I am bound by the pronouncement of the Supreme Court of India to which I have to give effect, whether or not it humours certain lobbies.

It will be frightfully embarrassing if teachers and other self-styled custodians of excellence in education cry wolf against implementing the law of the land. Nobody has said yet that the Admission Guidelines for 2007-2008 fall foul of law. It is only assumed tacitly that the prestige of St. Stephen’s exempts it from the pronouncements of the Supreme Court regarding the rights and responsibilities vis-À-vis minority rights. That is dangerous and unacceptable.

The proposed national debate should not mistake a tree for the forest. It should not be about a few seats this way or that in St. Stephen’s. It should be about the mythology of higher education in this country and the operative socio-political consensus that conspiratorially excludes the vast majority of young men and women from the fruits of national development and material progress. Only 7 per cent of India’s children in the corresponding age group can, as of now, afford the luxury of higher education of any sort. The discourse on 9 per cent GDP growth needs to be humanised and humbled with the corollary as to who is benefiting from it and what needs to be done, via education, to ensure that economic development is coupled with distributive justice and human dignity. “A system that enables,” wrote President Lyndon Baines Johnson in the 1960s, “a man born of a poor peasant as I was some sixty years ago to become the President of the U.S. is the system that deserves to be ranked among the best philosophies of the world.”"

Those who have followed the complicated trajectory of the rights of minority educational institutions will be aware that St. Stephen's College was earlier involved in litigation that resulted in an important judgment delivered by the Supreme Court in 1992. There are thus any number of reasons why legal scholars and experts must focus on this current debate, which has the potential to lead to a rethinking of the existing law on the issue. This issue, like the ruling of the Madras High Court discussed by Dilip in the previous post, will require a close study of the TMA Pai ruling (2002) and may involve an analysis of the Inamdar case (2005). For a quick primer on what these cases held, I provide links to V. Venkatesan's reports on the cases, taken from the archives of Frontline. See this concise summary of the Pai case (which also includes a brief discussion of the St. Stephen's ruling). And, click here for the report on the Inamdar case.

A detailed examination of issues relating to Retail in India

Continuing the trend set by Umakanth of updating issues previously explored on the blog, those who followed the brief discussion about the debate over whether and how foreign retailers should be allowed within India, would be interested in the latest issue of Frontline. The issue dated June 30-July 13 features the issue as its cover story. The lead story provides many of the factual details that discussants on the blog had enquired about. Another story focuses on the regulatory issues involved. Other stories focus on particular cities and the challenges they face in respect of retail. In all, the stories provide a lot more factual information on the issue, which should be helpful for those interested in taking the debate forward, even if they disagree with the analysis.

Madras High Court ruling on quotas in unaided educational institutions

Today's Hindu is reporting a ruling by the Madras High Court which, if carried to the Supreme Court (a course of action that seems inevitable, given the issue), has the potential to cause a re-examination of the current jurisprudence on quotas in unaided professional educational institutions. Here are extracts from the report:

"The Madras High Court on Monday upheld the constitutional validity of a State legislation and a consequent Government Order directing the unaided professional colleges to surrender a certain percentage of seats to the State quota and also to follow centralised counselling for admission for management quota seats.

Justice V. Dhanapalan, dismissing a batch of writ petitions filed by various associations of self-financing professional colleges, said the Tamil Nadu Admission in Professional Educational Institutions Act 2006 had been given effect to “taking note of the local needs and, specifically, larger interest and welfare of the student community and to promote merit, achieve excellence and curb malpractices.”

The petitions challenged three specific clauses of the Act relating to the surrender of 65 per cent of the total seats to Government by non-minority institutions and surrender of 50 per cent of seats by minority institutions; admission of students for management quota seats through the centralised counselling or single window system (SWS); and admissions on the basis of marks obtained in the qualifying examinations alone."

A critique of the Maintenance of Parents Bill 2007

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

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

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

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

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

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

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

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

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

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

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

Practical problems with the Special Marriages Act

Coomi Kapoor has a column in today's Indian Express which draws on her experiences to highlight serious problems with the implementation machinery of the Special Marriages Act, as well as the mindset of those who are charged with enforcing it. Her arguments are compelling and the entire piece makes a convincing case for reform. Here are extracts from the piece:

"In a conservative society like ours mixed marriages generally raise hackles and bring out society’s bestial side. Primeval passions are aroused when people are led to believe that one religion is asserting hegemony over another. Every now and then one reads about eloping couples who opt for conversion in order get married, leading to heightened communal tensions. The way it works in our country is that if a marriage has to be solemnised speedily and without red tape, both bride and groom have to be of the same religion. Conversion is an easy way out. At times, for convenience, both even convert to a third religion.

So why don’t couples from different religions apply to get married under the Special Marriage Act 1954, which was specifically drafted with people like them in mind? I am something of an expert on the way the legislation works, having gone through the cumbersome procedure twice for my two daughters, who chose partners from different faiths. Even in the national capital, the act is administered in a manner so that as many obstacles as possible are placed in the way. You either end up hiring a lawyer familiar with the working of the marriage office or muster enough determination, time and patience to go through the lengthy rigmarole.

... ... ... At the marriage offices in Delhi it is usually the clerks who interpret the law since they have been at the desk much longer than the young IAS officers who are additional district magistrates and burdened with numerous other duties, from riot control to elections. The trick in getting your way is not to be intimidated by the clerk, but to out-shout and out-reason him, quoting the relevant law. ... ....

When applying for permission to get married under the act, you have to work against a deadline, so that the considerable paper work is completed in at least a month, and not more than three months, before the scheduled date of the wedding. Be prepared to be scrutinised and sneered at by sceptical clerks and marriage officers who believe that there has to be something dubious about your intentions or you would not be in their office in the first place. A colleague recalls how minutes before her wedding the marriage officer called her aside, bolted the door and told her she was making a terrible mistake. He laboured under the delusion that his role was that of a marriage counselor, not a marriage officer. When I presented my daughter’s fiancé’s documents with the column for religion left blank, the marriage officer took great offence and snapped that he had never heard of anyone doing such a thing in all his years.

One of the most retrograde provisions of the act is the column enquiring about religious affiliation. Since the entire form — with addresses, photographs and religious affiliation of the couple — is pinned on the notice board for a month, couples from different religions become easy prey for fundamentalist outfits who demonstrate outside their homes shouting slogans. The need for publicising the details a month in advance is so that anyone can voice objection to the marriage. In contrast, for a religious ceremony no notice whatsoever is required. And no elementary verification is considered necessary of the pundits, maulvis and granthis who officiate. The provision (19) in the Special Marriage Act, which states that those who marry under it, whether Hindu, Sikh, Buddhist or Jain, will effectively be severed from their families, implies that they are to be penalised for marrying outside their religion.

Bigotry and religious prejudice can be eradicated from society only when the government leads the way. But when the guardians of the law themselves have ambivalent feelings on the subject, is it any wonder that eloping couples almost invariably keep their distance from the marriage office and the Special Marriage Act?"