I am giving below the links for the stories on the bizarre case of the Judge, Justice Uma Nath Singh, of the Punjab and Haryana High Court. The links are here and here. The victim, Tahar Singh, a lawyer, has been in the forefront seeking judicial accountability. His only 'offence', which infuriated the Judge appears to be submission of a memorandum signed by over 500 advocates demanding an urgent meeting of the High Court Bar Association to discuss the perceived misconduct of the Judge. The Judge concerned, therefore, uses the power of judicial order to settle personal scores.
The Single Judge's order is patently illegal because of the following facts:
A. It calls Tahar Singh a lunatic, but does not issue notice to his guardian.
B. It directs the CBI to take him into custody and subject him to examination at a mental asylum at Agra with sophisticated equipments ;
C.The CBI plunges into action, and implements the illegal order of the Judge, without even informing the Chief Justice of the High Court;
D. Before directing the CBI to take Tahar Singh into custody, on the basis of a pending complaint to the police by his estranged wife, the Judge did not even find out from the police why action was not taken on the complaint - the fact that police delayed action because compromise was being tried by the couple was ignored by the Judge. The fact that Tahar Singh's wife is no longer keen on her complaint, filed a month earlier, against her husband, fails to convince the Judge that his order is disproportionate to the alleged offence.
E. The Judge assumed that Tahar Singh must be a lunatic - not even a doctor's certificate is insisted - and sends him to a mental asylum in Agra (of all the places! not even Chandigarh or Delhi). Tahar Singh's children and friends testify that he is not a lunatic. Tahar Singh convinces the media of his normal state of mind - all to no effect.
F. Instead of recalling this patently illegal order suo motu, the Chief Justice of the High Court waits for the agitating lawyers to plead for constitution of a Division Bench, and the Division Bench so constituted stays the Single Judge's order, and asks the petitioners/lawyers not to discuss the issue in public.
The Senior Standing Counsel for Chandigarh Administration, Mr.Anupam Gupta is asked to resign, following his participation in the lawyers' agitation against Justice Uma Nath Singh. Mr.Anupam Gupta, who faces a contempt notice against him issued by the Chief Justice in another matter, (in which the Chandigarh Administration defended Gupta's prerogative to make submissions on its behalf), quit under pressure, even though he denies any conflict of interest.
As lawyers continue to boycott Justice Uma Nath Singh's court, seeking his transfer and impeachment for his bizarre order, the reverberations of this stormy episode in Chandigarh are yet to be heard in New Delhi. As Parliament is yet to finalise the Bill on the powers and functions of the yet-to-be-formed National Judicial Council (the Bill is before the Standing Committee), it appears the first case to be decided by the NJC may well be that of Justice Uma Nath Singh.
Monday, July 30, 2007
Friday, July 27, 2007
IP AND INNOVATION: MAKING TRIPS WORK FOR DEVELOPING COUNTRIES
As a follow up to my earlier post on TRIPS and how best to use "IP" strategically to enhance technological development for developing countries, here is a post on a blog titled "Unheard Voices" dealing with issues in Bangladesh.
Intellectual Property Rights: Making Them Work For Us
Posted by Amer
"This is a somewhat dated issue, but I recently came across this wonderfully well document example by Abul Kalam Azad of how the WTO can work for developing countries like Bangladesh. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is a by-product of the WTO’s Uruguay Round that many developing countries felt was something that they had little use for.
The utility of this treaty however was fully realized by none other than our own Miles, when Anu Malik (aka the Captain Morgan of Bollywood’s music industry) tried to swipe “Phiriye Dao Amar Prem” for the Bollywood film Murder. Although it took them a while to work through the due process, Miles was eventually able to get some copyright-style justice: “As compensation for the ‘injury’ caused to the business interests of the petitioners, 50 million rupees were demanded from Anu Malik, Mahesh Bhat, Saregama India Ltd and RPG Global Music; in addition, ‘total reimbursement’ for the expenditure incurred in filing the case also was demanded.
A court order was also sought for appointing a receiver or special officer to seize the entire lot of soundtrack software from Saregama’s Dum Dum studio. Besides this, the band’s lawyers demanded that the respondents ‘should be directed to disclose upon oath details of cassettes and CDs distributed by them to various vendors and retails’.” - (Rock ‘n Roll in Bangladesh: Protecting Intellectual Property Rights in Music, Abul Kalam Azad) This just goes to show that when properly informed, countries like ours really can make the most of otherwise obtuse treaties."
The "comments" to the post are particularly illuminating--and in the same way as some of the thought provoking comments on Law and Other Things, are, in fact, better than the main post itself.
I reproduce one such comment by Mahmud Farooque and my response which attempts to highlight how the debate has played out in India:
Mahmud Farooque Says: July 22nd, 2007 at 3:55 am
"Amer, good choice for a topic.
Perhaps we ought to look at IP policy within the context of the specific industry and country in question. Strong IP does not necessarily lead to innovation. I prefer to interpret innovation a bit broadly and at the level of the firm: gaining the ability to develop a new product design or to master a new process. Once a firm can do that with respect to itself, then it can extend it to its cohorts, to the industry, the nation, etc. In other words, one has to learn to innovate first.
I don’t think a strong IP policy is always very helpful, particularly where the industry is just getting started, because innovation can happen through imitation as well. This is how first Japan, then the other South East Asian countries, and now India and China have successfully closed the technology gap between them and the industrialized countries.
Even within a given industry and country, to foster innovation, I think it pays better to use a more nuanced and pragmatic approach. If you look at the initial growth stages of the Indian Pharmaceutical sector, for the domestic market, they allowed IP protection for process, not for product. This in turn allowed local companies to make any drugs as long as they could develop it using a different method of production. Lack of IP protection in India’s case actually allowed tremendous process innovation to occur which ultimately gave its companies the ability to enter and then dominate the global generic drug market. Once they mastered the process side of things, Indian drug makers began investing more on product R&D, which is now allowing them to play with the big boys in the global markets.
Interestingly, only after its companies started to gain the ability to design their own drug molecules, did India sign the WTO agreement, which forces it to offer IP protection for pharmaceutical products as well.
I believe the Bangladeshi firms are trying to follow the same strategy because TRIPs gives an IP holiday for LDCs in the Pharma sector until 2016. So even at the WTO level, there is the recognition that a strong IP is not necessarily good policy for all countries and all industrial segments at all times."
Shamnad Basheer Says: July 23rd, 2007 at 5:35 am
"I’m inclined to wholeheartedly agree with the nuanced comments of Mohd Farooque. Innovation in many cases is likely to be preceded by imitation (after all, babies learn by copying!!)–and countries need to provide for regimes that provide some scope for imitation at the early stages. Historically, almost all countries imitated before they invented–including the US, Germany (product patents in pharma only in 1967), Switzerland (product patents in pharma only in 1977), Japan (’87) etc.
TRIPS and other international IP instruments are to be strategically used by countries and standards of protection calibrated according to thier local needs. There’s no point being hostile to TRIPS now–as most countries have signed it and are bound by it. The best you can do is to exploit “flexibilities” inherent in this international instrument and calibrate protection according to local needs.
I extract parts of a note that I am current authoring for a mainstream media publication.
“Contrary to popular perception, India did have a pharmaceutical product patent regime since 1911—thanks to the British and their propensity to gift colonies with law/policies that looked similar to theirs. And yet, this gift did not help create any indigenous pharmaceutical industry in India—not very surprising, given that most countries need to imitate first before inventing and strong IP regimes stand in the way of permitting such “imitation”. This colonial regime also resulted in extremely high drug prices—a US Committee investigating drug prices the world over found that in 1961, Meprobamate, an anti-anxiety pill cost more than twice the price in India, as it did in the US!
Independent India was therefore keen on breaking away from its colonial past and putting in place a regime that reflected “national” interest. A committee headed by a sagacious judge, Rajagopala Ayyangar undertook a quick survey of patent regimes the world over and found that most industrialized nations began by installing regimes that permitted some level of technological imitation. It also found that the chemical industry in India was reasonably strong and had the potential to reverse engineer drugs.
It therefore recommended the abolishment of product patents and the introduction of process patents for pharmaceuticals. As process patents are considerably weaker than product patents, the idea was that such patents would not prevent the domestic industry from reverse engineering existing drugs and manufacturing generic versions via alternative processes. The success of the Indian generic industry today is testimony to the far sightedness of Ayyangar’s policy. India has imitated for more than 30 years now—and quite successfully too. Its expertise at reverse engineering and finding alternative processes are more than amply illustrated by Eli Lilly’s attempt to prevent generics from introducing competing version of its anti-infective Cefaclor by patenting 56 different processes—and yet, within no time, Ranbaxy found the 57th process! The question now is: is this the right time to transition to a product patent regime? Unfortunately, India doesn’t have the luxury of asking that question anymore, since India already did so in 2005, pursuant to a TRIPS obligation. But what India can do is calibrate how much protection it wishes to grant to pharmaceutical inventions.
Section 3(d), is in many ways, an example of such calibration—and reflects India’s attempt at minimizing the impact of product patents by granting it to only those substances that are truly “inventive”. However, it uses terms such as “efficacy” that haven’t been defined. And this is why it is critical that we let the Novartis case run its course so that standards for helping interpret terms such as “efficacy” evolve. After all, Ranbaxy and Dr Reddy’s, two of our largest pharmaceutical company also file applications claiming “incremental inventions”. What we cannot afford at this stage is for our policy debates to get hijacked by emotional rhetoric and patent dogma.
India is neither “developed” nor “developing”—at least in the strict sense of the term—it is what I would prefer to call, a “technologically proficient” developing country. We’re strong in certain technology sectors and therefore need to find ways to incentivise innovation in these areas and yet, at the same time, 26% of our people live below poverty line and we are “developing” to that extent. The age old IP rules that were premised on this neat distinction between developed versus developing countries don’t fit us anymore. This calls for “new” norms—and in fact, our 2005 Act does manage to establish some new norms in parallel imports, compulsory licensing and in the patenting of biological material and traditional knowledge. In short, we need to “innovate” in our IP policy as well, without blindly copying norms created by the West.
We also need to understand that innovation is not about intellectual property alone, but is dependent on a host of other factors such as levels of skill/education, infrastructure etc. We need to therefore build a comprehensive framework for encouraging innovation. Perhaps the time is ripe to constitute another "Ayyangar" like committee to help us determine what the optimal "tautness" of our patent/innovation policy string ought to be in today’s “knowledge economy”.
Intellectual Property Rights: Making Them Work For Us
Posted by Amer
"This is a somewhat dated issue, but I recently came across this wonderfully well document example by Abul Kalam Azad of how the WTO can work for developing countries like Bangladesh. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is a by-product of the WTO’s Uruguay Round that many developing countries felt was something that they had little use for.
The utility of this treaty however was fully realized by none other than our own Miles, when Anu Malik (aka the Captain Morgan of Bollywood’s music industry) tried to swipe “Phiriye Dao Amar Prem” for the Bollywood film Murder. Although it took them a while to work through the due process, Miles was eventually able to get some copyright-style justice: “As compensation for the ‘injury’ caused to the business interests of the petitioners, 50 million rupees were demanded from Anu Malik, Mahesh Bhat, Saregama India Ltd and RPG Global Music; in addition, ‘total reimbursement’ for the expenditure incurred in filing the case also was demanded.
A court order was also sought for appointing a receiver or special officer to seize the entire lot of soundtrack software from Saregama’s Dum Dum studio. Besides this, the band’s lawyers demanded that the respondents ‘should be directed to disclose upon oath details of cassettes and CDs distributed by them to various vendors and retails’.” - (Rock ‘n Roll in Bangladesh: Protecting Intellectual Property Rights in Music, Abul Kalam Azad) This just goes to show that when properly informed, countries like ours really can make the most of otherwise obtuse treaties."
The "comments" to the post are particularly illuminating--and in the same way as some of the thought provoking comments on Law and Other Things, are, in fact, better than the main post itself.
I reproduce one such comment by Mahmud Farooque and my response which attempts to highlight how the debate has played out in India:
Mahmud Farooque Says: July 22nd, 2007 at 3:55 am
"Amer, good choice for a topic.
Perhaps we ought to look at IP policy within the context of the specific industry and country in question. Strong IP does not necessarily lead to innovation. I prefer to interpret innovation a bit broadly and at the level of the firm: gaining the ability to develop a new product design or to master a new process. Once a firm can do that with respect to itself, then it can extend it to its cohorts, to the industry, the nation, etc. In other words, one has to learn to innovate first.
I don’t think a strong IP policy is always very helpful, particularly where the industry is just getting started, because innovation can happen through imitation as well. This is how first Japan, then the other South East Asian countries, and now India and China have successfully closed the technology gap between them and the industrialized countries.
Even within a given industry and country, to foster innovation, I think it pays better to use a more nuanced and pragmatic approach. If you look at the initial growth stages of the Indian Pharmaceutical sector, for the domestic market, they allowed IP protection for process, not for product. This in turn allowed local companies to make any drugs as long as they could develop it using a different method of production. Lack of IP protection in India’s case actually allowed tremendous process innovation to occur which ultimately gave its companies the ability to enter and then dominate the global generic drug market. Once they mastered the process side of things, Indian drug makers began investing more on product R&D, which is now allowing them to play with the big boys in the global markets.
Interestingly, only after its companies started to gain the ability to design their own drug molecules, did India sign the WTO agreement, which forces it to offer IP protection for pharmaceutical products as well.
I believe the Bangladeshi firms are trying to follow the same strategy because TRIPs gives an IP holiday for LDCs in the Pharma sector until 2016. So even at the WTO level, there is the recognition that a strong IP is not necessarily good policy for all countries and all industrial segments at all times."
Shamnad Basheer Says: July 23rd, 2007 at 5:35 am
"I’m inclined to wholeheartedly agree with the nuanced comments of Mohd Farooque. Innovation in many cases is likely to be preceded by imitation (after all, babies learn by copying!!)–and countries need to provide for regimes that provide some scope for imitation at the early stages. Historically, almost all countries imitated before they invented–including the US, Germany (product patents in pharma only in 1967), Switzerland (product patents in pharma only in 1977), Japan (’87) etc.
TRIPS and other international IP instruments are to be strategically used by countries and standards of protection calibrated according to thier local needs. There’s no point being hostile to TRIPS now–as most countries have signed it and are bound by it. The best you can do is to exploit “flexibilities” inherent in this international instrument and calibrate protection according to local needs.
I extract parts of a note that I am current authoring for a mainstream media publication.
“Contrary to popular perception, India did have a pharmaceutical product patent regime since 1911—thanks to the British and their propensity to gift colonies with law/policies that looked similar to theirs. And yet, this gift did not help create any indigenous pharmaceutical industry in India—not very surprising, given that most countries need to imitate first before inventing and strong IP regimes stand in the way of permitting such “imitation”. This colonial regime also resulted in extremely high drug prices—a US Committee investigating drug prices the world over found that in 1961, Meprobamate, an anti-anxiety pill cost more than twice the price in India, as it did in the US!
Independent India was therefore keen on breaking away from its colonial past and putting in place a regime that reflected “national” interest. A committee headed by a sagacious judge, Rajagopala Ayyangar undertook a quick survey of patent regimes the world over and found that most industrialized nations began by installing regimes that permitted some level of technological imitation. It also found that the chemical industry in India was reasonably strong and had the potential to reverse engineer drugs.
It therefore recommended the abolishment of product patents and the introduction of process patents for pharmaceuticals. As process patents are considerably weaker than product patents, the idea was that such patents would not prevent the domestic industry from reverse engineering existing drugs and manufacturing generic versions via alternative processes. The success of the Indian generic industry today is testimony to the far sightedness of Ayyangar’s policy. India has imitated for more than 30 years now—and quite successfully too. Its expertise at reverse engineering and finding alternative processes are more than amply illustrated by Eli Lilly’s attempt to prevent generics from introducing competing version of its anti-infective Cefaclor by patenting 56 different processes—and yet, within no time, Ranbaxy found the 57th process! The question now is: is this the right time to transition to a product patent regime? Unfortunately, India doesn’t have the luxury of asking that question anymore, since India already did so in 2005, pursuant to a TRIPS obligation. But what India can do is calibrate how much protection it wishes to grant to pharmaceutical inventions.
Section 3(d), is in many ways, an example of such calibration—and reflects India’s attempt at minimizing the impact of product patents by granting it to only those substances that are truly “inventive”. However, it uses terms such as “efficacy” that haven’t been defined. And this is why it is critical that we let the Novartis case run its course so that standards for helping interpret terms such as “efficacy” evolve. After all, Ranbaxy and Dr Reddy’s, two of our largest pharmaceutical company also file applications claiming “incremental inventions”. What we cannot afford at this stage is for our policy debates to get hijacked by emotional rhetoric and patent dogma.
India is neither “developed” nor “developing”—at least in the strict sense of the term—it is what I would prefer to call, a “technologically proficient” developing country. We’re strong in certain technology sectors and therefore need to find ways to incentivise innovation in these areas and yet, at the same time, 26% of our people live below poverty line and we are “developing” to that extent. The age old IP rules that were premised on this neat distinction between developed versus developing countries don’t fit us anymore. This calls for “new” norms—and in fact, our 2005 Act does manage to establish some new norms in parallel imports, compulsory licensing and in the patenting of biological material and traditional knowledge. In short, we need to “innovate” in our IP policy as well, without blindly copying norms created by the West.
We also need to understand that innovation is not about intellectual property alone, but is dependent on a host of other factors such as levels of skill/education, infrastructure etc. We need to therefore build a comprehensive framework for encouraging innovation. Perhaps the time is ripe to constitute another "Ayyangar" like committee to help us determine what the optimal "tautness" of our patent/innovation policy string ought to be in today’s “knowledge economy”.
Thursday, July 26, 2007
Kalam's Presidency(Part II): Did the SC even allude to his lapse?
The Rameshwar Prasad Judgment (2006 2SCC 1) is cited by Kalam's critics to point out that it was perhaps a mild indictment of his hurried assent to the dissolution of the Bihar assembly. In my reply to Mr.Srinivasan's comments to my previous post, I have suggested that the SC held that the material on the basis of which the Union Council of Ministers advised Kalam was inadequate, and this retrospective wisdom was not available to Kalam when he assented.
Mr.Srinivasan subsequently wrote to me asking whether the Court can at all examine the advice tendered to the President, in view of the explicit bar in the Constitution. Let me explain. The Supreme Court said in the Rameshwar Prasad case as follows:
The plain reading of Article 74(2) stating that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court, may seem to convey that the Court is debarred from inquiring into such advice but Bommai has held that Article 74(2) is not a bar against scrutiny of the material on the basis of which the President has issued the proclamation under Article 356.
Justice Sawant, in Para 86 of Bommai states that :
"Although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The Courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice. The Courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. Hence when the Courts undertake an enquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. "
It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds, the court would have the jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied.
In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from material is certainly open to judicial review.
In the Bihar case, Kalam reached the conclusion solely on the basis of the Governor's reports, as advised by the Council of Ministers, and not on the basis of "otherwise" as required by Article 356(1).
How did the Supreme Court conclude that the dissolution based on the Governor's reports was unconstitutional?
Paragraph 158 of Rameshwar Prasad: "The Governor cannot assume to himself aforesaid judicial power and based on that assumption come to the conclusion that there would be violation of Tenth Schedule and use it as a reason for recommending dissolution of assembly.
We have already referred to the Governor report dated 21st May, 2005, inter alia, stating that 17 - 18 MLAs belonging to LJP party are moving towards JDU which would mean JDU may be in a position to stake claim to form the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government.
At that stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of 'assumption', or 'perception' as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party - an area wholly prohibited in so far as the functions, duties and obligations of the Governor are concerned. It was thus a wholly unconstitutional act."
Now, my question is this : The Supreme Court reached this conclusion, after elaborately hearing the parties for a number of days, and after examining the facts of the case (as even Bommai was not an exact precedent), in all its details. It required a five-Judge Constitution Bench to analyse the finer Constitutional issues involved to reach the conclusion that it did. During the hearing of the case, the Supreme Court repeatedly said this was a virgin case. But is it fair to expect Kalam to arrive at the same conclusion or even assumption, on his own or after consultation with legal experts (which legal expert's advice he must lean on? The AG will of course echo the Government's view)? If he honestly believed that the Governor was keen to prevent the violation of 10th Schedule, could he be faulted?
Rameshwar Prasad was perhaps the first case when the SC held that the Governor has no role in judging the likely violation or otherwise of 10th Schedule. The Supreme Court also found that mere assumptions that there might be horse-trading if X or Y was allowed to achieve majority strength cannot be the basis for a Governor's decision. Logically it is sound, but can anyone move beyond assumptions in such cases, and provide hard proof of allurements? If the President/Council of Ministers felt hard proof was not possible, and it would be better to prevent allurements being offered (which was very likely), rather than seek legal remedies later, could they be faulted?
Mr.Srinivasan subsequently wrote to me asking whether the Court can at all examine the advice tendered to the President, in view of the explicit bar in the Constitution. Let me explain. The Supreme Court said in the Rameshwar Prasad case as follows:
The plain reading of Article 74(2) stating that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court, may seem to convey that the Court is debarred from inquiring into such advice but Bommai has held that Article 74(2) is not a bar against scrutiny of the material on the basis of which the President has issued the proclamation under Article 356.
Justice Sawant, in Para 86 of Bommai states that :
"Although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The Courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice. The Courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. Hence when the Courts undertake an enquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. "
It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds, the court would have the jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied.
In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from material is certainly open to judicial review.
In the Bihar case, Kalam reached the conclusion solely on the basis of the Governor's reports, as advised by the Council of Ministers, and not on the basis of "otherwise" as required by Article 356(1).
How did the Supreme Court conclude that the dissolution based on the Governor's reports was unconstitutional?
Paragraph 158 of Rameshwar Prasad: "The Governor cannot assume to himself aforesaid judicial power and based on that assumption come to the conclusion that there would be violation of Tenth Schedule and use it as a reason for recommending dissolution of assembly.
We have already referred to the Governor report dated 21st May, 2005, inter alia, stating that 17 - 18 MLAs belonging to LJP party are moving towards JDU which would mean JDU may be in a position to stake claim to form the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government.
At that stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of 'assumption', or 'perception' as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party - an area wholly prohibited in so far as the functions, duties and obligations of the Governor are concerned. It was thus a wholly unconstitutional act."
Now, my question is this : The Supreme Court reached this conclusion, after elaborately hearing the parties for a number of days, and after examining the facts of the case (as even Bommai was not an exact precedent), in all its details. It required a five-Judge Constitution Bench to analyse the finer Constitutional issues involved to reach the conclusion that it did. During the hearing of the case, the Supreme Court repeatedly said this was a virgin case. But is it fair to expect Kalam to arrive at the same conclusion or even assumption, on his own or after consultation with legal experts (which legal expert's advice he must lean on? The AG will of course echo the Government's view)? If he honestly believed that the Governor was keen to prevent the violation of 10th Schedule, could he be faulted?
Rameshwar Prasad was perhaps the first case when the SC held that the Governor has no role in judging the likely violation or otherwise of 10th Schedule. The Supreme Court also found that mere assumptions that there might be horse-trading if X or Y was allowed to achieve majority strength cannot be the basis for a Governor's decision. Logically it is sound, but can anyone move beyond assumptions in such cases, and provide hard proof of allurements? If the President/Council of Ministers felt hard proof was not possible, and it would be better to prevent allurements being offered (which was very likely), rather than seek legal remedies later, could they be faulted?
Wednesday, July 25, 2007
Abdul Kalam's Presidency
As A.P.J.Abdul Kalam's eventful tenure came to an end, he seems to have generally got a very good press in terms of editorials and commentaries. Pratap Bhanu Mehta, while lauding him for crossing the class barrier, refers to his occassional lapses of Constitutional judgment, which apart from his other such blemishes, did not affect his image. His Indian express article is here.
What Mehta mentions in passing gets a specific reference in Swapan Das Gupta's article. Both obviously refer to his infamous assent, given while he was in Moscow, to the dissolution of Bihar assembly in 2005, which invited Supreme Court's strictures against the Governor, Buta Singh, because of which the latter had to quit office. Kalam, at that time, had described the Supreme Court judgment holding the dissolution as unconstitutional as a learning process. But what was his own defence of the assent?
Rashtrapati Bhavan spokesperson whom I had the privilege of talking to while writing on his first-ever use of Article 111 to return the Office of Profit Bill to Parliament for reconsideration, had this to say:
Kalam was just about to go to sleep, (at 2 a.m.) when he was shown the communication from New Delhi seeking his signature on the decision to dissolve the Bihar assembly. Did he have any option, but to sign? There were only two options: one is to give his assent. The second one is to return it to the Cabinet for reconsideration. There is no third option to the President. He could not have delayed it, or asked New Delhi to wait till he returned home.
If he has to return it for reconsideration, then he has to cite specific grounds why the Union Cabinet's advice has to be reconsidered. The proviso to Article 74, inserted by 44th Amendment in 1978, says:
"Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."
The word "reconsider" implies that there ought to be some grounds for reconsideration, some reasons, which according to the President, are weighty enough, to take this extraordinary step of reconsideration. Therefore, the words "generally or otherwise", if you apply the principle of ejusdem generis, are not vacuous words. The President who wishes the Union Council of Ministers to reconsider its advice must necessarily cite the relevant grounds or reasons for doing so, and not just for the sake of it, ask the Council of Ministers to do so.
Given this understanding, was there any reason or ground for asking the Council of Ministers to do so? The Governor, having waited for nearly six months for the political process to realign, had run out of patience, and given a report advising President's rule. Was there any ground to doubt at that time, that his report was born out of malice? There was no representation to Kalam pointing to the political situation. No one staked any claim to the Governor seeking a chance to form a Government and prove the majority. The realignment which was purportedly taking place had not yet taken shape, and things were in a flux. Had there been one definite step - of even staking a claim then there was reason to hold that the advice could have been returned for reconsideration. Only a few newspaper reports had appeared pointing to Nitish Kumar's chances of forming a Government, with splinter groups from other parties. There was no clarity in the situation. Could Kalam have returned the advice asking the Union Cabinet to "await" this, what then appeared as a never ending political drama? Can waiting for political impasse to be resolved by itself be construed as "reconsideration" in the light of a few newspaper reports?
Swapan Das Gupta writes:
The first, and relatively unpublicised occasion was his demand that the Vajpayee government resign after dissolving Parliament in 2004 and be substituted with a non-partisan caretaker regime. This was a gesture of improvisation that may have been grounded in the principle of fairness but it lacked constitutional sanction. It was a piece of adventurism that Kalam wisely didn’t persist with. (Swapan Das Gupta is factually wrong here, as I have explained in my previous post)
The second occasion was when he accepted Governor Buta Singh’s report on the constitutional breakdown in Bihar after the first 2006 Assembly election in Bihar. Kalam was probably misled by Prime Minister Manmohan Singh’s personal plea of immediacy and hurriedly signed the proclamation in Moscow. Subsequently, the Supreme Court declared the move illegal, although it refrained from being critical of Rashtrapati Bhavan. A humiliated Kalam vowed to be doubly cautious in future and to never accept the government’s advice without an independent application of mind. He learnt from his mistakes.
It is for the history to judge whether, given the circumstances, Kalam was correct on these two occasions.
:
What Mehta mentions in passing gets a specific reference in Swapan Das Gupta's article. Both obviously refer to his infamous assent, given while he was in Moscow, to the dissolution of Bihar assembly in 2005, which invited Supreme Court's strictures against the Governor, Buta Singh, because of which the latter had to quit office. Kalam, at that time, had described the Supreme Court judgment holding the dissolution as unconstitutional as a learning process. But what was his own defence of the assent?
Rashtrapati Bhavan spokesperson whom I had the privilege of talking to while writing on his first-ever use of Article 111 to return the Office of Profit Bill to Parliament for reconsideration, had this to say:
Kalam was just about to go to sleep, (at 2 a.m.) when he was shown the communication from New Delhi seeking his signature on the decision to dissolve the Bihar assembly. Did he have any option, but to sign? There were only two options: one is to give his assent. The second one is to return it to the Cabinet for reconsideration. There is no third option to the President. He could not have delayed it, or asked New Delhi to wait till he returned home.
If he has to return it for reconsideration, then he has to cite specific grounds why the Union Cabinet's advice has to be reconsidered. The proviso to Article 74, inserted by 44th Amendment in 1978, says:
"Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."
The word "reconsider" implies that there ought to be some grounds for reconsideration, some reasons, which according to the President, are weighty enough, to take this extraordinary step of reconsideration. Therefore, the words "generally or otherwise", if you apply the principle of ejusdem generis, are not vacuous words. The President who wishes the Union Council of Ministers to reconsider its advice must necessarily cite the relevant grounds or reasons for doing so, and not just for the sake of it, ask the Council of Ministers to do so.
Given this understanding, was there any reason or ground for asking the Council of Ministers to do so? The Governor, having waited for nearly six months for the political process to realign, had run out of patience, and given a report advising President's rule. Was there any ground to doubt at that time, that his report was born out of malice? There was no representation to Kalam pointing to the political situation. No one staked any claim to the Governor seeking a chance to form a Government and prove the majority. The realignment which was purportedly taking place had not yet taken shape, and things were in a flux. Had there been one definite step - of even staking a claim then there was reason to hold that the advice could have been returned for reconsideration. Only a few newspaper reports had appeared pointing to Nitish Kumar's chances of forming a Government, with splinter groups from other parties. There was no clarity in the situation. Could Kalam have returned the advice asking the Union Cabinet to "await" this, what then appeared as a never ending political drama? Can waiting for political impasse to be resolved by itself be construed as "reconsideration" in the light of a few newspaper reports?
Swapan Das Gupta writes:
The first, and relatively unpublicised occasion was his demand that the Vajpayee government resign after dissolving Parliament in 2004 and be substituted with a non-partisan caretaker regime. This was a gesture of improvisation that may have been grounded in the principle of fairness but it lacked constitutional sanction. It was a piece of adventurism that Kalam wisely didn’t persist with. (Swapan Das Gupta is factually wrong here, as I have explained in my previous post)
The second occasion was when he accepted Governor Buta Singh’s report on the constitutional breakdown in Bihar after the first 2006 Assembly election in Bihar. Kalam was probably misled by Prime Minister Manmohan Singh’s personal plea of immediacy and hurriedly signed the proclamation in Moscow. Subsequently, the Supreme Court declared the move illegal, although it refrained from being critical of Rashtrapati Bhavan. A humiliated Kalam vowed to be doubly cautious in future and to never accept the government’s advice without an independent application of mind. He learnt from his mistakes.
It is for the history to judge whether, given the circumstances, Kalam was correct on these two occasions.
:
Tuesday, July 24, 2007
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 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."
"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."
Sunday, July 22, 2007
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
What we do:
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:
What we do:
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
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.
Saturday, July 21, 2007
Responding to a comment about the Haneef case
One of our readers who identifies him(?)self as Anonymous/Raj left this in the comments section of a different post:
"Would someone care to comment on the Kafkaesque treatment of the Indian doctor in Australia! It might seem a bit early to comment; but I doubt if anybody would be forced to eat their words for criticizing the Aussie government in using an apparently innocent man to stoke up hysteria and panic before an election.
Personally, I think Indian anti-terror laws are a bit more sophisticated and evolved than those in the US, UK or Australia. It’s been a steep learning curve from the days of TADA and besides we don’t really have the element of cultural barrier in dealing with these things."
Let me quote from this article in today's Indian Express by Soli Sorabjee, who as a former law officer of the Centre at the very highest levels must have had first hand experience with several such laws, and can be considered a good authority on the subject:
"Mohd Haneef, a suspected terrorist, was granted consular access to the Indian High Commission in Australia, was allowed to speak to his wife, had the services of a competent Australian lawyer who successfully got him bail which is exceptional in Australia in case of a terrorism-related offence. If an Australian were detained in India on suspicion of terrorist activity it is doubtful whether he would have received these facilities and services. In these circumstances it was inappropriate for our foreign ministry to summon the Australian High Commissioner and lecture him about providing facilities for Haneef under Australian law. As rightly observed by the Australian High Commissioner the issue is not of racism. The problem is of terrorism which has for long afflicted our country."
For a more detailed analysis of just how "sophisticated and evolved" our anti-terror laws are (and have historically been), see the document linked in this post.
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