Meeting the swine flu threat

The Epidemic Diseases Act 1897 is being invoked against uncooperative swine flu patients who refuse to be segregated in a hospital to prevent its spread. The Act can be invoked using Section 188 IPC, (Disobedience to order duly promulgated by public servant). An offence under this provision can invite simple imprisonment of one month or a fine of Rs.200 or both. Strangely, Section 4 of the Epidemics Act rules out judicial review! While no one suggests that the Act is likely to be misused against non-patients who are uncooperative with the officials, is it necessary to arm the Executive with such an extraordinary power so as to rule out scope for judicial review? The ingredients of the offence under the Act include knowledge of the order which is allegedly disobeyed by the accused, even though intention to defy the order may not be present. If the accused does not know that such an order to segregate him or her at a hospital exists, there is no remedy under the Act.

It may be interesting to find out whether this Act of 1897 was invoked during the plague in 1994. Curiously enough, the phraseology of the Act may suggest that it cannot be invoked against swine flu patients. Although the Act does not define the word 'epidemic', dictionaries define the word as a widespread occurrence of a disease in a community or a region at a particular time. Considering the isolated cases in India, it is still not an epidemic. The word 'pandemic', on the other hand, refers to a disease prevalent over a whole country or the world, which is what swine flu has been declared to be by the WHO. According to Wikipedia,, a few cases of occurrence of a rare disease may be called an epidemic, but I couldn't find an authoritative definition of the word to convey that sense.

UPDATE: On the other hand, do the authorities feel that the country is threatened with the outbreak of the epidemic - a possible ground to invoke this Act? Do the authorities also find that the existing legal provisions are insufficient to ensure segregation of such patients - another requirement to justify the use of the Act? Well, there are no clear answers.

An Announcement

From now on, I've decided to post frequently on my blog, Contemporary Fascinations in order to be prolific as well as brief, and post my published writings on Delving Deeply for the sake of easy linking. I'll, of course, continue to post on LAOT, where I hope to elaborate ideas which appear to be substantive.

Appointing a PM: Is there an ideal method?

The near-clear mandate of 2009 meant that the President is free from the dilemma of whom to appoint as the PM. But the dilemma is worth addressing, if only because it is by no means certain that we will be free from fragmented legislatures either at the Centre or in the States in the future. A.G.Noorani in this review of three recent books on British Constitution (of which one is a comparative study)attempts a serious critique of the Sarkaria Commission report, the Report of the Committee of Governors, (1971), the Report of the Administrative Reforms Commission on Centre State Relations (1969) and the M.N.Venkatachaliah Commission (NCRWC). Noorani dismisses all these reports, as being incompetent. He then takes up Art.75(3). He refers to Ambedkar's view in the CAD that Ministers could belong to different parties. (I think L.K.Advani's view that the 2009 mandate favours a return to two-party system is debatable) . Noorani reveals his disagreement with T.T.Krishnamachari, a member of the Drafting Committee, who was responsible for the dropping of the Instrument of Instructions for the President (Draft Schedule III-A). Noorani claims that time has exposed the falsity of the argument that codification was unnecessary and superfluous, and that the directions to the President and the Governors really should arise out of conventions.

According to Paragraph 2 of the Instrument, the President should appoint a person who has been found by him most likely to command a stable majority in Parliament as the Prime Minister. Noorani believes that it can still be inserted in the Constitution with suitable changes. Noorani interprets the word "likely" to suggest that the President acts on a balance of probabilities, on a preponderance of party strength and he must be assured of the stability of the government. But he also cautions that stability is not to be probed into any depth in a partisan manner and that what is required is prima facie proof of cohesion, a demonstrable will to pull together in governance. He later clarifies it to suggest that the test is not necessarily an arithmetical majority but a preponderance that renders any challenge futile. (italics supplied by Noorani)

Watch this space for a discussion of his second part of the review article in Frontline, next fortnight.

Discrimination debate hots up: Government set to act

The Government appears set to legislate on the Equal Opportunity Commission. The President's address to the Lok Sabha promised to 'set up an Equal Opportunity Commission'. The Minister for Law and Justice, Veerappa Moily, mentioned the possibility of 'US-model affirmative action' provisions in the private sector, although he did not appear to have used the word 'diversity'. [Update: Here are the excerpts from the interview with Moily - he sticks to 'affirmative action', and steers clear of any talk of 'reservations'. The US reference makes it clear he had 'diversity' in mind.] The Minorities Affairs Minister Salman Khurshid, while repeating the President's promise of an EOC, also seemed aware of the distinction between 'reservations' and 'affirmative action'. Mayawati, on the other hand, has criticised the President's address for being silent on quotas in the private sector. It may be noted that Mayawati already has a policy in place which imposes contractual affirmative action obligations on companies that her government deals with, an idea very similar to the one recommended in the Diversity Bill. This concept of 'buying social justice' is discussed here.

The issue of prohibition of discrimination and diversity promotion has been discussed on this blog in the past, but given this renewed and apparently urgent focus of the government, it needs revisiting. These are encouraging soundbites, but the current draft Equal Opportunity Commission Bill (Menon Report) and Diversity Bill (Kundu Report) have some loopholes. I had made the following points in this article in the Economic and Political Weekly:

1. There is no need to for separate commissions for Equal Opportunity and Diversity. Multiple commissions will only increase turf wars between bodies dealing with related matter. There should be a single Equal Opportunity and Diversity Act.

2. Diversity and Equal Opportunity should be linked not only institutionally but also conceptually. The single Act must provide that the diversity-gap for any employer/educational institution/housing society should be relevant to (but not determinative of) complaints of discrimination against them.
[It may be noted that diversity obligations will cover only three grounds (sex, religion and caste), whereas Equal Opportunity is a broader concept applying to a much wider and open-ended list of grounds. The conceptual connection between them can therefore exist only in case of sex, religion and caste.]

3. Housing cannot be left out of the Equal Opportunity Bill, as is the case at present. This is one sector which needs urgent attention, as has been previously debated on this blog and elsewhere.

Madam Speaker's election

The election of Meira Kumar as the Lok Sabha Speaker has led to a curious debate as to whether the Congress Party's decision is an exercise in tokenism or a recognition of talent.(talent or tokenism). Whatever the reason for the decision, there are clear expectations from the office that the Speaker ought to be neutral in her conduct of the House. I was disappointed after reading the synopsis and the debates of the Lok Sabha proceedings on the election of the Speaker, that no one, including the new Speaker, made any reference, let alone lip service, to the desirable convention that the Speaker, after election, quits the membership of the party, on whose ticket she was elected to the House. The Tenth Schedule to the Constitution gives such an option to the Speaker to do so. The previous Speaker, Somnath Chatterjee, clearly rued the fact that he did not do so, and went down in history as the only Speaker to have been expelled from his party later for other reasons. He wished that his successors revived the convention of Speaker quitting the party membership, on election to the office of the Speaker.

This is not to suggest that Meira Kumar may well prove to be a partisan Speaker, because she did not quit her party. She may well satisfy the Opposition, but had she formally quit her party, it would have certainly enhanced the prestige of her office. The first Speaker of the Lok Sabha, G.V.Mavlankar, failed to follow the precedent set by his predecessor before Independence, Vithalbhai Patel, by formally resigning from the party. The convention was revived by Sanjeeva Reddy when he became Speaker in 1967, but his successors did not follow the convention. Somnath Chatterjee's problems must have convinced Meira Kumar that she must revive it. But she missed that opportunity.

*Relevant links:
*Lok Sabha debate on the election of new Speaker, June 3, 2009.
*Synopsis of the Lok Sabha debate on the election of new Speaker, June 3, 2009.

*Relevant posts:
1.Conventions on Indian Speaker
2.The Speaker has spoken
3.The Status of Lok Sabha Speaker: some questions
4.Reforming the Parliament

Justice Soumitra Sen's impeachment motion: Was it correct to include Fali S.Nariman in the Inquiry Committee?

It has now been reported that the Rajya Sabha Chairman has constituted a three-member committee to investigate the grounds on which the removal of Justice Soumitra Sen of the Calcutta High Court is prayed for. The three members are Justice D.K. Jain of the Supreme Court, Justice T.S. Thakur, Chief Justice of the Punjab and Haryana High Court, and Fali S. Nariman, senior advocate, Supreme Court. But in view of what Fali S.Nariman has reportedly said about Justice Sen's impeachment recommendation of the Chief Justice of India, should he not have recused himself from the committee?

*Relevant posts on CJI's recommendation to remove Justice Soumitra Sen

NSLR : Call for Articles

The Nalsar Student Law Review (“NSLR”) is a student initiative, the primary aim of which has been to encourage legal writing and scholarship among students. The first volume of the NSLR was released in 2005. It was intended to serve as a medium for students to express their opinions and conduct substantial analyses of contemporary and raging legal issues, an intention which has been carried forward in the subsequent three issues of the law review.

The NSLR, now in its fifth year of publication, with the next issue (Volume 5) scheduled to release later on this year is the flagship journal of NALSAR. The NSLR has been published annually. However, the Board of Editors propose to convert it into a bi-annual law review. The law review does not seek to restrict its reach merely among NALSAR students, but invites manuscripts from students across the country for publication. Besides publishing the student law review, the Board of Editors also propose to conduct other activities promoting legal scholarship among students. Some of such other activities include essay-writing competitions and contract-drafting competitions.

The NSLR, has also initiated an E-Journal, the editorial policy of which is available at the law review's website. The Board of Editors invite submissions for the E-Journal of the NSLR as well as for the fifth issue of the NSLR. Submissions for the E-Journal shall be accepted on a rolling basis. However only those entries which are received before July 15, 2009 shall be considered for the fifth issue of the NSLR. Any submission after this date shall be considered for the next issue of the NSLR; however, it shall immediately be considered for the E-Journal.