Sex, Lies and Rape Continued: A Response

Several comments were made to the post “Does consensual sex based on false promise amount to rape?”. Recently, a detailed critique was posted by Ms. Sunanda Bharti (see comment section of the previous post). I welcome her and others to the discussion and request that she (and other readers) not take offense to my comments below if they appear a bit testy. I believe most of the points she has raised have been addressed in that blog and in other comments but nevertheless set forth here, at the risk of repetition, a specific response to her contentions.

Ms. Bharti says that the IPC does not define consent in very clear terms. This lack of definition of consent in ‘clear terms’ in section 90 is more than made up by the provisions of section 375: those are clear, concerned specifically with rape and must, applying the rules of interpretation, prevail over the general definition of consent in section 90. In regard to misconception of fact in a fully conscious state of mind and in the absence of fear, the only instance stated therein that constitutes rape is when the woman gives consent to a man wrongly believing him to be her husband.

Next, it is asked what is wrong with an enlarged interpretation if it is to fill up a ‘lacuna’ in the IPC. The problem here is that filling up ‘lacunae’ in the law is the job of the legislature, not the courts. These ‘lacunae’ are not necessarily inadvertent legislative omissions. They can equally well be by design, deliberately excluded because the legislature and society by implication does not consider those actions to constitute crime. If one concedes these arguments, there is no difference between what the law says and what it ought to say, judges are not really bound to follow firm rules of statutory interpretation but are free to get creative and give new meanings that promote their own notions of ‘justice’ in any case. Words would then mean little, enactments are easily whittled down of substance, societal preferences would hold little sanctity, citizens’ recourse to authority would have uncertain outcome and what we call ‘justice’, reduced to a product of the sensibilities of the presiding judge: in short, the rule of men, not law. Such a view is not only dangerous but can cut both ways – if it can be used to promote women’s rights, it can be equally well used to restrict them another day. Sure as highlighted, the vicissitudes of legislative passage are well-known but that indecisiveness of society is the price to pay for protection from tyranny. Being a democracy, one must accept that the wheels of change roll slowly, persuaded by the soft power of reason flowing from the opinion-maker’s pen rather than the heavy hand bringing down the gavel.

It is said that every possible scenario cannot be taken into account by the legislature. There are two answers to that. The first is that rule of law means equal justice under law for all, not justice tailored on a case-by-case basis; one does not have to take every scenario into account. All that is required of the legislature and the superior courts is for certain principles to be laid down which lower courts can apply uniformly and consistently to every situation to determine the outcome. As Cardozo puts it, “The recognition of [judicial] power and duty to shape the law in conformity with the customary morality, is something far removed from the destruction of all rules and the substitution of the individual sense of justice, the arbitrium boni viri. That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law”. The other part of the answer is that that is precisely why we have a legislature to update laws all the time rather than a one-time event like the convening of a constituent assembly which could simply produce a document and be disbanded for good when its work was done. The end of law is the promotion of justice no doubt and bridging the gap between those two is a continuous exercise which is what the legislature is supposed to do. To put it in a nutshell, these are the classic arguments advanced in favor of judicial activism and must therefore bear with the standard criticisms that the approach is vulnerable to.

Ms. Bharti argues that no ‘meeting of minds’ exists, hence no valid consent. This definition of consent does not change the question we are grappling with, i.e., what is the scope of the ‘meeting of minds’ that we are concerned about for the purpose of this provision? Related to the same point, she reiterates her notion of rape that it need not involve physical violence at all. And so, the definition of rape also includes consensual sex performed as a pleasure activity but transformed into a defiled one post facto because of a false promise. These arguments have been discussed in detail in the previous post (and comments therein), so my comments here are really redundant. Rape, in this view, requires no real experience of actual trauma, only the recollection of one. A perfectly pleasurable sexual escapade, soured by later events, can instantly transmogrify into a painful, horrific and worse, criminal act of rape! Agreed that minus the promise of marriage, the woman probably would not have consented to sex but the same thing would however be equally true if he had promised her something other than marriage – suppose he had said he would get her a car but failed to deliver or said he belonged to her caste but was really from another or that he would treat her like a queen. In being less than upfront about his caste, maybe he was thinking all along, “I have duped her into believing that I am from her caste but maybe when she gets to know me better, I can reveal the truth and she will be more willing to see the irrelevance of it”. But this would be clearly impermissible under this newly minted feminist jurisprudence – consensual pre-/extramarital sexual relationships between perfectly willing, single adults would have legal implications. The dating game would now have to adhere to the straightforward rules of old-fashioned commerce: the sex-seeker must reveal all his intentions and ‘business’ offers upfront through a declaration of truth and nothing but the truth in exchange for the sex-giver acceding to his demand in good faith, to be followed by consummation at which point, the binding nature of the former’s obligations are established. Weaving fantasy would have to be forbidden, words would have to be weighed carefully and promises spelt out would have to be kept or else, god forbid, a break-up ensues and a bitter one at that, it is payback time in court! Rape would thus be a convenient weapon of vengeance for the betrayed, the jilted and even the otherwise broken-hearted. This expanded definition, achieved through judicial sleight of hand is built on a legal foundation of quicksand, is nebulous at best, seeks to criminalize an unacceptably broad range of personal conduct through the back door and thereby casts an icy pall over a large domain of individual liberty in a free society, all done under the politically correct guise of protecting the weak and disempowered. Needless to add, I reject it categorically.

It is argued that a woman expects not sympathy but that the accused be punished. Meeting individual expectations is not the role of the criminal justice system; rather, meeting society’s expectation of justice is and the two may not coincide. A final point made is that the woman did suffer injustice, so the petition is not frivolous. Perhaps she did but no prima facie case is made out for rape, and my contention is only that this particular charge and the like are frivolous. Yes, not all of us are born with a silver spoon or manage to get into Harvard or IIT; many have had failed relationships, had their trust betrayed by friends, had colleagues spike their promotions and so forth – life is not fair but not all the injustices of life are necessarily criminal offenses or even otherwise actionable by the state. That is why people talk of ‘learning through the experiences of life’, their reference being to caveat emptor, the one rule that applies to life as much as to commerce and must govern our actions at least where we are on our own.

The Kundu Controversy: Research Ethics and Regulation

Divya Gandhi's op-ed in The Hindu last week brought to wider public focus the on-going controversy regarding manipulation in a research paper that has roiled the Indian scientific community for some time now. As pointed out therein, much has been written on it across the blogosphere and in letters to Current Science, an Indian scientific journal run in association with the Indian Academy of Sciences.

Two papers were published in the reputed Journal of Biological Chemistry (JBC) by a doctoral student Hema Rangaswami with her adviser, Gopal C. Kundu from the National Center for Cell Science (NCCS), Pune, the first in 2004 and the second in 2005. The journal, upon receipt of an anonymous e-mail sent allegedly by a former student of Kundu charging that some figures in the second paper were not from new experiments but actually plagiarized from their own previous publication, investigated the complaint and subsequently withdrew the second paper informing the authors that it contained "data that was reproduced without citation and with different labeling", an ethical violation that constituted 'deliberate misrepresentation'. The Society for Scientific Values (SSV), an organization of current and former scientists that claims the upholding of ethics in science as its primary mission and has played a key role in this issue, adds several additional details that have been quoted by other news portals as well: that soon after receipt of the allegations, an internal committee in the institute held the authors guilty and sought withdrawal of the papers and secondly, that Kundu himself, wrote to the journal initially suggesting withdrawal but later sent a second letter alleging that his previous communication was done under duress and insisting that he stood by his publication and it not be rescinded. Kundu's protestations led the Director to ask for an external committee which was then constituted by the Department of Biotechnology (DBT) and comprised of seven members headed by the former Director of the Indian Institute of Science (IISc), G. Padmanabhan. This committee concluded in a brief report (posted on the SSV website), after examining evidence presented by Ms. Rangaswami, that the allegations had no basis and that the e-mails had been sent with the 'malicious intent to spoil the reputation of NCCS'. These conclusions being contrary to the findings of the JBC and the SSV's own analyses (which have both refused to modify their own positions), the DBT demanded a second report from the committee which then compiled a more detailed one running to 118 pages upholding its previous findings. Gandhi's article states that the DBT plans to submit it to a three-member committee for another review.

Before going into the specifics, for those unfamiliar with the field, a few technical details of the science itself are in order. Protein analyses in laboratories are often done by 'blotting', a process that can be used to separate different proteins as well as to identify them individually based on their properties when they appear on the 'blot' as 'bands'. This protein profile on the blot is captured on X-ray film and constitutes the actual evidence used for analysis, also known as 'raw data'. For the purpose of publication, the film itself is photographed and the picture so obtained, edited using digital image processing software to improve clarity. Photo editing is now-a-days universally employed - few pictures that get published are un-edited and the extent of editing depends on technical factors such as visibility of the 'bands', background exposure of the film, etc. At some point, however, a line is crossed and editing can actually start to affect the evidence sought to be presented or in other words, misrepresent it. This is what journal editors are concerned about. JBC, in an editorial shortly after this incident, highlighted this problem even pointing out several types of fraud including the one alleged here that had been detected.

The full picture is not available as neither the report of the JBC's internal investigation nor the detailed report of the Padmanabhan committee appear to have been made public. Conflicting conclusions coupled with this lack of transparency appear to have fueled this controversy. Rahul Siddharthan writing in Current Science showed two blots from the two papers (which do appear identical) and suggested that it is quite implausible for two separate experiments to ever yield such identical pictures. Padmanabhan, in his response in the same issue, presented un-edited pictures of the original X-ray films handed over to the committee and pointed out the differences between the two (which are equally obvious to me). The question then, as Mr. Siddharthan raised, is whether the pictures in the paper were actually taken from the X-ray films purported to represent the original data. Padmanabhan dismissed this query stating simply that he considers such fraud improbable for no conceivable motive exists for such elaborate deception and also argues that many laboratories, running such blots routinely using the same apparatus over and over again, could quite possibly end up with pictures that appear very similar to the naked eye. Veracity of the 'raw data' has also been challenged. Apparently, the internal committee that originally looked into the matter was told that laboratory notes, which are expected to be meticulously maintained as a routine matter, were not available and yet, 'raw data' was provided by Ms. Rangaswami after her arrival. This has led to doubts whether the original data submitted to the Padmanabhan committee was indeed genuine. Padmanabhan on the other hand, blamed the internal committee for not being "a little more mature, giving adequate time and opportunity to all concerned to defend with adequate proof."

The reason for disparate conclusions appears to be the different methods and evidence being examined by different bodies. The first step to resolve this must be to make public all the details of the various investigations done so far. I agree with SSV that truth must ideally be determined from the published evidence itself. Even if the authors' data and conclusions are all fully substantiated and evidence of falsification of 'raw data' does not exist, no journal, being concerned foremost with its own reputation, can be expected to condone or overlook the practice or even to take a lenient view of the matter in light of other mitigating facts. Whether the committee has actually followed this modus operandi is unclear at this time but Padmanabhan's arguments made in his letter to Current Science based on motivation and likelihood are beside the point. However, he might well be right when he says that the truth of the allegation cannot be unequivocally determined from the figures alone. Pictures of protein blots are extensively potrayed in the literature and a determination of plagiarism or photo-fraud beyond reasonable doubt might well be impossible to show with the investigative methods available currently. That raises a significant point: what is the standard of evidence that must be demanded in deciding the issue? Should institutional committees set their own standard or simply take the cue from journal editorial boards? As a general rule, withdrawal of a publication is a serious blot on a scientist's integrity and usually ends up with expulsion from the institution. It also spells the end of his/her academic career as few others are willing to hire the person and journals will be wary of accepting his/her submissions again. Institutions are expected to act promptly and follow through with such action to safeguard their own reputation. An article in Nature on this matter posted a picture of NCCS and the caption below read, "Reputation on the line?" Such pressures usually compel them to play it safe and force the person out raising the difficult question whether institutional disciplinary boards enjoy much leeway in laying down their own rules. Seen from that perspective, the Padmanabhan committee's decision to stand up for its belief and defend the scientist is laudable but I wonder how much good that can do in the long term for either the institute or the scientists themselves.

This case must prompt editorial boards to ask how best to check such a practice. Demanding submission of all relevant original data might be a start. Calls for a formal mechanism to handle allegations of malpractice have arisen. The multitude of committees and the differences in their approaches and outcomes in this case does underline the need for a proper set of regulations governing the manner of any inquiry. N. Raghuram of the SSV talks about a national body analogous to the Office of Research Integrity in the US which lays down requirements for institutional policies and procedures and is empowered to penalize institutions that refuse to act with cuts in funding. It might also not be a bad idea to initially allow the various national institutes to set up their own procedures to deal with such issues and for a national body to be empowered only to review their actions. Comparitive assessments of their experiences might allow a better understanding of the problems and potential solutions inherent in each of them thereby allowing a more uniform and comprehensive system to evolve with time.

Update: Gopal Kundu responded today in The Hindu to the article by Divya Gandhi. He reiterates the evidence and reasons behind his exoneration by the Padmanabhan committee and also indicates that he has republished the same data in a different journal recently (Thanks to Mr. Zubaid who pointed out a significant error in this update which previously ascribed the republication to a different group; it now stands corrected).

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.

Making Sense of the Subprime Crisis: Implications for India

An oft-repeated adage in the financial markets goes, “when America sneezes, the rest of the world catches a cold”. This element of financial contagion stands out starkly in the US subprime crisis that has affected markets worldwide, and as a result hogged financial media limelight for over two months now.

A simple and reader-friendly explanation of what the crisis is all about is contained in an article titled The ABC of CDOs and the Subprime Crisis by Vinod Kothari and Rochak Agarwal that appeared in the Business Standard a few weeks ago. In a nutshell, the crisis emanated with several banks and institutions in the US lending to borrowers whose creditworthiness was suspect (a.k.a subprime borrowers). The loans were provided against mortgages of their homes. It now appears that these institutions were lax in their lending processes - primarily because it was believed that growing housing prices would leave them with valuable collateral for their loans, and hence they would always be protected against default. These banks and institutions obtained funding for providing these loans by securitizing the mortgages and repackaging them into synthetic derivative securities called CDOs (collateralised debt obligations) that were sold to investors worldwide. Banks, financial institutions, investors such as hedge funds, private equity funds and even pension funds were left holding these securities. These securities indirectly assumed the risk on the mortgages.

Contrary to the expectations of the financiers, the US housing markets began declining in early 2007, and the subprime borrowers started defaulting on their loans en masse. The pinch was felt not by the banks and institutions that had lent the loans in the first place, but by the investors who had purchased securities such as CDOs whose risks and returns were correlated to the mortgages. Therefore, what started as a localized problem in certain US states (and even neighboourhoods) spread steadfastly around the world as it was found that the CDOs were held by investors across America, Europe, Asia and Australia – just to name a few, two hedge funds floated by Bear Stearns (that have now filed for bankruptcy), Basis Capital (an Australian hedge fund that has folded up as a result), banks in the UK, Germany, France, Singapore and China, and several other investors whose identities and losses may not yet be known. This event has caused a major credit crunch in the financial markets and a crash in all major stock markets resulting in billions of dollars in losses to investors.

What are the implications for India? At first sight, it appears from media reports that none of the Indian banks or financial institutions has taken an exposure through investment in securities relatable to the US subprime markets. However, tangential impact there has been indeed. Foreign investors who had exposures to the US subprime markets have had to liquidate their positions in emerging markets like India to stave off crises overseas. This has led to volatility in the Indian stock markets.

There are lessons to be learned from this episode (that does not seem quite over yet as many pundits predict that the current crisis – or as much as is known of it - is just the tip of the iceberg). Although the Indian financial markets have steered clear of the crisis, there is no room for complacency. Increasing integration of the global markets and crises such as the US subprime markets are indication of the fact that problems emerging in one part of the world can strike the other corners too. Further, with growing sophistication of market players in the use of complex instruments such as CDOs and other derivatives, there is enhanced investor and market risk. Therefore, Indian regulators, primarily the Reserve Bank of India (RBI) and the Securities and Exchange Board of India (SEBI) need to work on adopting a clear policy stance towards dealing with such financial crises well before they strike so that the Indian markets and investors are protected from market contagion.

Originalism to the rescue: The institutional design of the Election Commission

Given the political uncertainty caused by the 'debate' over the 123 agreement, the seemingly abstract debate about the constitutional status of Election Commissioners (other than the Chief Election Commissioner) has gained new importance in view of the possibility of a mid-term poll.

R.C. Iyer, a former Chief Electoral Officer of Maharashtra, has an excellent column in today's Indian Express which sets out the background context and history of this issue succinctly, and argues for political consensus and Parliamentary initiative on the process by which an Election Commissioner can be removed. In his piece, Iyer also criticises the stand taken by Arun Jetley in an Express op-ed published on Aug 21, 2007. For further background information on this issue, see this earlier post on our blog.

The purpose of this post is to highlight the debate in the Constituent Assembly on this issue, as both Jetley and Iyer seem to indicate that the framers did not adequately provide for the existing situation. Here is how Jetley frames the issue:

"Article 324 gives administrative primacy to the CEC. The EC can consist of a CEC and such other election commissioners as may be provided from time to time. There is, however, one fundamental flaw in the Constitution. The Constitution does not provide the qualifications for appointment of an election commissioner or CEC. It merely provides that the appointment shall be made by the president, on the aid and advice of the council of ministers. Members of the EC are thus to be appointed by the political executive."

As I seek to demonstrate, the framers did debate this specific issue, but came to a solution that they thought was the right one, and which in fact guided practice from 1950 to 1989. The situation since 1989 may require us to make changes to the scheme of the Election Commission, but that does not necessarily point to a flaw in the Constitution.

The drafting history of current Article 324 is concisely covered in Justice Sawant's judgment in the Dhanoa case (SS Dhanoa v. Union of India, AIR 1991 SC 1745). The background details of this case are provided in Iyer's column, as well as in the previous blog post on this issue. I extract the relevant portions of the judgment which set out the debate in the Constituent Assembly (from paras 11 and 12 of the judgment):

"In the Draft Constitution, the present Article 324 was numbered as Article 289. It appears from Dr. Ambedkar's introductory comments on the Article (Constituent Assembly Debates, Vol. VIII p. 905) that the Drafting Committee appointed on the Fundamen tal Rights had made a report that the independence of the elections and the avoidance of any interference by the executive in the elections to the legislature should be regarded as a Fundamental Right and provided for, in the Chapter dealing with Fundamental Rights.

When the matter came up before the House, it was decided to treat it as of fundamental importance but to provide for it in some other part of the Constitution and not in the chapter dealing with Fundamental Rights. The House had affirmed without any kind of dissent that in the interests of purity and freedom of elections, the Commission should be free from any kind of interference from the executive of the day. Article 289 (now Article 324) was designed to carry out that part of the decision of the House. Explaining the provisions of Clause (2) of the Article, Dr. Ambedkar stated that there were two alternatives before the Drafting Committee, viz., either to have a permanent body consisting of 4 or 5 members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil.

The Drafting Committee had steered a middle course. What the Committee proposed by the said clause was to have permanently in office one man called the Chief Election Commissioner so that the skeleton machinery would always be available. This was felt sufficient, taking into consideration all exigencies. At the same time, it was felt that when the elections come up, the President may add to the machinery by appointing other members of the Commission.

Commenting upon Clause (4) of the then Article 289 (now Clause (5) of Article 324), Dr. Ambedkar stated as follows:

So far as Clause (4) is concerned, we have left the matter to the President to determine the conditions of service and the tenure of office of the members of the Election Commission, subject to one or two conditions, that the Chief Election Commissioner shall not be liable to be removed except in the same manner as a Judge of the Supreme Court. If the object of this House is that all matters relating to Elections should be outside the control of the Executive Government of the day, it is absolutely necessary that the new machinery which we are setting up, namely, the Election Commission should be irremovable by the executive by a mere fiat. We have, therefore, given the Chief Election Commissioner the same status so far as removability is concerned as we have given to the Judges of the Supreme Court. We, of course do not propose to give the same status to the other members of the Commission. We have left the matter to the President as to the circumstances under which he would deem fit to remove any other member of the Election Commission, subject to one condition that the Chief Election Commissioner must recommend that the removal is just and proper.(Emphasis supplied)

Prof. Shibban Lal Saksena wanted, among other things, the appointment of the Chief Election Commissioner as well as of the Election Commissioners to be confirmed by two-third majority in a joint session of both Houses of Parliament. He also wanted both the Chief Election Commissioner and the Election Commissioners to be removed by the same process, viz., in like manner and on the like grounds as a Judge of the Supreme Court, and non-variation of the service conditions of the Election Commissioners to their disadvantage as was provided for in the service conditions of the Chief Election Commissioner. This amendment was supported, among others, by Pandit Hriday Nath Kunjru. The amendments were not accepted by the House, and the distinction between the Chief Election Commissioner and the Election Commissioners with regard to the security of the service conditions and the procedure of their removal was maintained as was proposed."

It bears emphasis that Professor Shibban Lal Saxena had sought to incorporate the precise change that is now being demanded by several commentators (that Election Commissioners have the same status and removal conditions as the CEC). The reason this was rejected was more because the framers had an alternative conception of the Election Commission: they believed that the institution should have one permanent head and that others could be appointed as and when conditions so merited.

Note also that the Election Commission seems to have performed adequately for nearly four decades in that form. Indeed, when the first two Election Commissioners were appointed, there was controversy over whether the workload justified such an increase. Moreover, the first two people appointed to the post of Election Commissioners did not, through their acts, add weight to the need for such posts.

Here is what the Supreme Court concluded on the facts presented in the Dhanoa case (at para 17):

"The experience of the short period during which the petitioner and the other Election Commissioners were in the Commission ... shows that were it not for the restraint and sagacity shown by the Chief Election Commissioner, the work of the Commission would have come to a standstill and the Commission would have been rendered inactive.

... ... ...In the view that we have taken, namely, that there was no need for the posts of the Election Commissioners at the time the appointments were made and that in the absence of a clear definition of their role in the Commission, particularly, vis-a-vis the Chief Election Commissioner, the appointments were an oddity, the abolition of the posts far from striking at the independence of the Commission paved the way for its smooth and effective functioning."

At para 21, the Court addressed the issue that is at the heart of the current controversy:

"There is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be. It ill-conforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is not to come to a naught."

Jetley's argument that there is a flaw in the constitutional scheme with respect to the Election Commission betrays an ignorance of the way the framers conceived of the institution.

The Dhanoa case also reminds us that a multi-member Election Commission is not necessarily a stronger and more efficient protector of democratic values. Those who are contemplating changes to the existing set-up (or those who recommend such changes) ought to be aware of the actual reasons and motivating logic for the status quo.

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.

Justice Sabharwal replies to charges

The Times of India has carried Justice Sabharwal's response to some of the allegations levelled against him by the Campaign for Judicial Accountability and Reforms. A response from Campaign for JAR,therefore, would be in order for the readers to judge whether he stands vindicated.

Mr.Prashant Bhushan of CJAR is now on a holiday at Palampur, and has not read the article, but has been told about it. He says the basic allegation of conflict of interests has not yet been answered by Justice Sabharwal. He is of course planning a point-to-point response to Justice Sabharwal's defence.

Meanwhile, Zee News telecast a programme in which senior advocates, Harish Salve, Mukul Rahtogi, and Arun Jaitley participated. Justice Sabharal, Justice A.S.Anand (former CJI) and Shanthi Bhushan were also interviewed by the channel on the issue. The Law Minister H.R.Bharadwaj also spoke. Salve, Rahtogi, and Bharadwaj were against CJAR for making these allegations. Justice Anand essentially was critical of this campaign because it was improper to do so when the High Court was already hearing a contempt matter relating to this, and the sealing case was still being heard in the Supreme Court. Bharadwaj was worried about the impact it would have on the institutional health of judiciary, as it is easy to make such allegations against every Judge. But Arun Jaitley was for testing it out through the recently amended Contempt of Courts Act which provided for truth as a defence. "Truth must come out" he said. But this apparently is the casualty with those responsible reluctant to institute a proper inquiry.