Wednesday, July 23, 2014

Trade, Law and Development Journal Call for Papers

The Board of Editors of Trade, Law and Development [TL&D] is pleased to invite original, unpublished manuscripts for publication in the Winter ‘14 Issue of the Journal (Vol. 6, No. 2) in the form of Articles, Notes, Comments, and Book Reviews.

Manuscripts received by September 17, 2014 pertaining to any area within the purview of international economic law will be reviewed for publication in the Winter ‘14 issue.

TL&D aims to generate and sustain a democratic debate on emerging issues in international economic law, with a special focus on the developing world.

For more information, please go through the submission guidelines available 
at www.tradelawdevelopment.com or write to us at editors[at]tradelawdevelopment.com.
Last Date for Submissions: 17 September, 2014



Monday, July 21, 2014

Deadline reminder: Contemporary Issues in Indian Public Law

The deadline for the submission of proposals is 1 August 2014.


The Faculty of Law, University of Oxford and the Melbourne Law School, University of Melbourne are organising a workshop on Contemporary issues in Indian Public Law on the 10th and 11th of April 2015 in India.

This is a call for proposals for workshop papers on any particular aspects of the following topics (particular examples have been provided in brackets against each topic—they merely illustrate the topic and are not meant to restrict its scope):

1. General reflections on Indian constitutional law (constitutional conventions in the Indian constitution, the basic structure doctrine, the autonomy of administrative law, historical issues)
2. Citizenship (Unique Identity Cards, migration, refugees, diaspora)
3. Rights and Directive Principles (horizontality, scope, conflict of rights, emergency powers)
4. Separation of powers: 
 (a) Parliament and State Assemblies (legislative functioning, executive control, committees)
 (b) The Justice System (delays, court management, writs, SLPs, lower judiciary, tribunalisation, rule of law, police and prosecution reforms, access to courts, standing)
 (c) The Executive (impact of coalition politics, increasing powers, accountability)
5. Subsidiarity (Kashmir and North-East exceptionalism, asymmetric federalism, panchayati raj)
6. Administrative law (control of discretion, grounds of review, scope of review)

Proposals for other papers on contemporary issues in Indian public law are also welcome

A forum for high-quality Indian Public Law scholarship
We expect a close-knit group to discuss about 12-15 original unpublished papers over 2 days in the workshop. This will be followed by a conference with a larger number of participants on the 12th of April 2015. (Further information on the conference will be made available at a later date.) The papers will be published in an edited collection by the OUP. We hope this will become the first edition of ‘Contemporary Issues in Indian Public Law’, which we will hope to bring out every 4 years or so. The aim is to provide a platform for international quality research on Indian public law, which is usually published in foreign journals at the moment because of a dearth of academic-led and peer-reviewed world-class law journals in India.

Submission of proposals
The proposals should be no longer than 750 words and submitted in PDF and Word format by email to Ms Kathryn Taylor at k.taylor@unimelb.edu.au . Please put ‘Contemporary Issues in Indian Public Law Workshop’ in the subject line. The deadline for the submission of proposals is 1 August 2014.

Selection of papers
The proposals and the final papers will be reviewed blind by a panel of experts. In the unlikely event that the final submission falls far below the quality promised in the proposal, the organisers reserve the right to reject it.

Selected papers will have to be submitted by 1 February 2015 to allow discussants sufficient time to prepare a response. The aim will be to circulate all papers to the attendees at least a month before the workshop. Bursaries are available for reasonable travel and accommodation costs of contributors whose home institutions are unable to provide necessary funding.

Please address all queries to Ms Kathryn Taylor at k.taylor@unimelb.edu.au

Dr Farrah Ahmed (Melbourne Law School, University of Melbourne)
Dr Tarunabh Khaitan (Faculty of Law, University of Oxford)

Saturday, July 19, 2014

Macaulay revisited

1








. 1,Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform  edited by Wing-Cheong Chan, Barry Wright and Stanley Yeo, Ashgate, 2011. (hereafter referred to as Codification in this review).  Book details available here.

.  2.  MACAULAY: Pioneer of India’s Modernization by Zareer Masani, Random House India, 2012.Rs.450, Pages 269. (hereafter referred to as Macaulay in this review). Details here.

   3. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, As amended by the Criminal Law (Amendment) Act, 2013, 34th edition, by Justice K.T.Thomas, and M.A.Rashid, LexisNexis, 2013. Rs.650, Pages 1397. (hereafter referred to as R&D IPC in this review).  .

Reading these three books together, for the purpose of this review, has been a source of exhilaration, of one leading to the other, that is,  the three books in quick succession, not necessarily in the order, I have placed them above.  Of these, Macaulay has been with me for quite some time, but it required some compulsion to finish it, while I happened to notice Codification at a library and evinced interest in its contents, but again, for lack of compulsion, postponed reading it.  I, therefore, thank M.A.Rashid, the co-author of R&D IPC, for alerting me to the recent publication of his book, which provided me the occasion for doing justice to the other two.

Together, these three books represent a surge of interest in Thomas Babington Macaulay and his Indian Penal Code, ever since the Code completed its 150 years in 2010 – an event which went almost unnoticed and uncelebrated in India as well as on this blog.  This is not surprising as we take many things for granted, IPC included.

IPC was the first codification of criminal law in the British empire and is the longest serving criminal code in the common law world.  The editors of Codification organized a three-day symposium from June 9 to 11 2010 at the National University of Singapore.  IPC was introduced into Singapore by the 19th century British colonial administrators.  The code remains its principal criminal law statute.  Participants of this symposium included 10 specially invited international researchers from Australia, Canada, England, India and Malaysia.

I read the first chapter of Codification with interest, as it provides the justification for the book, and for the need to revitalize IPC. Readers may get a glimpse of the other chapters from the Ashgate’s website, and choose to read those which interest them, when they access the hard copy.
There are several things about Macaulay which are of interest to the readers.  He was the chairman of the first Indian Law Commission.  He lived just for 59 years, but wore several caps during his life time: author, historian, voracious reader, very affectionate sibling (he remained a bachelor) to his sisters, a representative of the British Empire, as well as its faithful critic, and a person who was deeply sympathetic to the underdog. 
Macaulay gives a fascinating account of his brief life, interspersed with Masani’s counterfactual historical comments, that is, whether Macaulay would have approved this or that aspect of our contemporary times.  Macaulay’s contribution to the making of IPC forms just one chapter in his book, (Chapter 8: The Law-giver), leaving the reader to wonder whether the author could have provided a more lengthy treatment of this phase, than what was possible in the book.  In Epilogue too, Masani skips his counterfactualism with regard to the IPC, giving more space to Ambedkar as his political heir, and to Macaulay’s possible surprise over English becoming the popular language, despite many challenges.

An interesting aspect was the fact that there was a gap of two decades between Macaulay’s writing the Code, and its actual inauguration, and that he died just one year before its enactment.   There is no doubt that Macaulay wanted to see his code being implemented during his lifetime, but would he have approved the manner, we clung to it without any major attempt to legislatively revise it in accordance with the changing times?  It is here Codification helps the reader to understand the issues at stake.  At a time when the Narendra Modi Government talks about the need to dump outdated laws, and reform the existing ones, the editors’ call for a fresh approach to understand the IPC is refreshing.  I am surprised that the book’s persuasive plea to reform the IPC has not been the subject of debate at all in India.

As Codification shows, the IPC was intended by Macaulay, to be regularly revised by legislative amendment whenever gaps or ambiguities were found.  As this did not occur, courts had largely undertaken this task, sometimes with unsatisfactory outcomes.  This was in part due to the failure of the courts to recognize or follow the drafting philosophy that underpins the IPC. 

Codification further reveals that many courts have instead been influenced by English common law developments or have followed the decisions of other jurisdictions in an inconsistent  fashion.   Legislative amendments have tended to be ad hoc and reactive, responding to local circumstances and pressing policy challenges rather than involving systematic attempts to combine local needs with attention to Macaulay’s general codifying principles, the book says.

The editors recognize that the philosophical stance and basic principles of the original IPC framers are the product of a particular time, culture and policy context.  

An interesting observation in Codification is that as a manufactured article, the IPC has not even been serviced, let alone remodeled, since leaving the codifier’s desk. As a result, the IPC struggles to remain the principal repository of the foundational principles of criminal responsibility in India and other jurisdictions like Malaysia, Nigeria, Pakistan, Singapore, Sri Lanka and the Sudan which have adopted it, having had hardly any influence on the development of subsequent penal legislation.

IPC, the editors of Codification point out, has left many unintended problems of interpretation for the courts which have had the unenviable task of finding ways, not always successful, of applying the 19th century attitudes and approaches embodied in the Code to social and moral situations in the 20th and 21st centuries.  They, therefore, suggest enactment of a General Part which will significantly revitalize the IPC and restore many of its original technical attributes. 

According to Macaulay, a good code should have the qualities of precision and comprehensibility, and should reflect legislative rather than judicial law-making, with associated features of comprehensiveness and accessibility.   The three general principles of precision, comprehensibility and active legislative lawmaking have stood the test of time and remain as progressive general aims for law reform in the 21st century.  Codification throws light on each of these principles, and it is better to their essence, as explained in the book.

Precision: While most of the provisions of Macaulay’s code have this quality, there are some which are ambiguous. The enacted version added complexities and ambiguities.  Many more gaps and inconsistencies showed up and required the attention of the courts.

Comprehensibility: IPC may have been understood by the ordinary people of Macaulay’s time who were familiar with the words used and could relate well to the many factual illustrations which he used to help explain the law.  But ever since its inception, there have been parts of the code which have necessitated clarification by the courts on account of their incomprehensibility.  There are many words or concepts which are likely to cause puzzlement: Examples are as follows: wantonly (s.153), maliciously (s.219), malignantly (s.270) common intention (s.34), unsoundness of mind (s.84), sufficient in the ordinary course of nature (s.300) and cruel or unusual manner (ex.4 to s.300).

Active legislative engagement:  Since the criminal law is arguably the most direct expression of the relationship between a State and its citizens, it is right as a matter of constitutional principle that the relationship should be clearly stated in a criminal code the terms of which have been deliberated upon by a democratically elected legislature.

The  ad hoc nature of legislative amendment, instead of systematic legislative review as contemplated by Macaulay, is illustrated in Codification.   The fact that so many parts of the IPC have been subjected to judicial interpretation and elaboration runs counter to Macaulay’s insistence that the Code should be the creation of the legislature, by those who make the law, and who must know more certainly than any judge can know what the law is which they mean to make.

Macaulay also proposed that each member of the population should be furnished with a copy of the code in their own native language. Most certainly, a person has more ready access to a copy of the Code than ever before, thanks to the internet.  But the point, as the book rightly points out, is that the Code is no longer the sole repository of the law which it purports to cover, but has to be read together with a very large body of case law.  

Any Indian criminal law commentary, for instance, no less than its counterparts from common law jurisdictions such as Australia, Canada and England, devotes more number of pages to the discussion of case law.  H.S.Gour’s The Penal Law of India (11th edn, 2000) has 4900 plus pages. R.Ratanlal and K.T.Dhirajlal, (32nd edn,2010) has 2900 pages.  Justice Thomas and Rashid’s R&D IPC has 1397 pages, but the size of the book is bigger than the earlier editions.

Codification rightly suggests that it would be an immense surprise if the many pronouncements concerning criminal responsibility in a criminal code enacted for the 19th century British subjects in India accurately reflected the values and views of Indian citizens in the 21st century.  Values, ways of thinking about criminal responsibility and policies inevitably change according to time and place, and it is incumbent upon legislative authority to keep abreast with these changes, assisted by specialist law reform commissions, in order to actively update the Code and maintain its effectiveness.

The IPC, as it stands today, fails to satisfy any of the attributes which Macaulay regarded as essential for a good code, and presents the danger of perpetuating the moral judgments, values and policies of a bygone era, Codification believes.

In line with his insistence that the Code should be the work of the legislature and not of the Courts, Macaualy proposed putting in place a revision mechanism.  It was that, whenever an appellate court reversed a lower court decision on a point of law not previously determined or whenever two judges of a higher court disagreed  on the interpretation of a provision of the Code, the matter should be automatically referred to the legislature which should decide the point, and if necessary, amend the code.  Codification regrets that this mechanism was not adopted in India or in any other jurisdictions which have adopted the Code, leaving any ambiguities in the Code to be rectified by the legislature as it saw fit, or else to be dealt with by the courts as best they could.
It deplores what  the general pattern of inattention to the IPC in India. There has been a proliferation of penal laws outside the IPC.  Most changes are the result of judicial interpretation, drawing unevenly, sometimes inappropriately and certainly contrary to Macaulay’s intent,  from precedents in other common law jurisdictions. 

Codification, however, notes some exceptions.  Constitutionalism has led to some notable striking down or judicial modification of elements of some offences, such as the decriminalization of homosexuality in relation to s.377.  Here, the book approvingly refers to the Delhi High Court’s judgment in Naz Foundation  case, and the Supreme Court’s Mithu verdict, striking down S.303.  As the book was published prior to the Supreme Court’s Kaushal decision, which restored S.377, as it originally stood, readers can only infer that the editors would have disapproved it.  Justice Thomas and Rashid, in their preface to the 34th edition of R & D IPC, however, feel it would have been more appropriate if the two Judge Bench had been persuaded to refer this momentous Constitutional question to a Bench of Five Judges.

Codification refers to the critical essays on legislative and judicial developments, first published by the Indian Law Institute in 1962, and updated in 2005. [Essays on the IPC, 2005.  Edited by K.N.C.Pillai and S.Aquil.]  While such initiatives have informed IPC amendment bills, (1972 and 1978), the bills lapsed on the dissolution of Parliament. 

Can an Indian reader take comfort from the book’s observation that this narrative of neglect and uneven amendment is a familiar one across IPC jurisdictions?  Legislatures have rarely taken the initiative to rectify defects in the Code which have come to the attention of the courts and commentators.  When they did, the results were far from satisfactory, adding further confusion or complexity.

A likely explanation which Codification offers is that the drafters of the legislative amendments have paid scant regard to the relationship between their amendment on the one hand and existing provisions in the Code and their philosophical underpinnings on the other.   Example: the word ‘rash’ in S.304A. The new provision did not define what rash meant, leaving it to the courts to define.  The legislature may be criticized for effectively handing over its democratically ordained law-making powers to the judiciary, Codification suggests.

However, Codification also defends the Judges saying they are required to handle cases where criminality has taken new forms which are difficult to cope with under old structures and under a philosophy which binds judges to a strict and literal reading of prohibition.  The judges are left entirely in the dark concerning the correct approach to take to resolve an ambiguity, gap or inconsistency in the IPC.  The current impoverished nature of the IPC cannot be rectified by the courts simply because their involvement is antithetical to the formulation of the good code.

The book is correct in its prognosis that Macaulay’s three principles, if followed meticulously by our legislature, will result in  less appeals, greater compliance and savings and prevent crime through education.  Sadly, there has been no debate about these principles within India, which only underscores our inability to identify the real reasons for the ills in our criminal justice system. 

Codification says that the IPC, when first implemented, was well ahead of its time, thanks largely to the legislative genius of Macaulay.  But like all good things which are not regularly maintained and improved, it has become a pale shadow of its former self.  Judges have not been given any guidance from the Code as to which source of law they should draw upon to resolve a problem of interpretation.  The result has been the growth of a huge body of case law on the Code, including numerous conflicting judicial rulings affecting the whole range of general principles of criminal responsibility.

According to Codification, a dedicated law reform body working together with leading criminal law academics can fulfil this role and introduce a General Part to revitalize the IPC.  Can the Indian Law Commission rise to this challenge, and do it suo motu, as it had done on many occasions earlier?
The first edition of R&D IPC was published in 1896.  Both Ratanlal and Dhirajlal were advocates of the Bombay High Court, and I have not been able to lay my hands on the first edition.  The earliest edition with the Supreme Court Judges Library is the 19th edition, published in 1956 (titled then as ‘The Law of Crimes’).  But the list of editions in the latest one shows 19th in 1948.  I am not able to explain this discrepancy, but it will be of interest, to get access to the earlier editions.

Recently, a Madras High Court Judge favoured chopping of hands of accused found guilty of  forgery.  The judge's observation drew critical comments.  Thanks to Macaulay, our Judges have not been able to play havoc with our punitive system, which is proportionate to the gravity of the crime.  I am relieved that R&D IPC, like Codification,  favours greater role by Parliament, in clarifying many provisions in IPC, which are in disarray, thanks to confusing judicial pronouncements.  R&D IPC' s reference to death penalty jurisprudence is a case in point.


Wednesday, July 16, 2014

Towards the Rule of Law: 25 Legal Reforms for India

This is a guest post by Arghya Sengupta

The Vidhi Centre for Legal Policy is releasing a Briefing Book for the new government. Titled, 'Towards the Rule of Law: 25 Legal Reforms for India', the Briefing Book looks at how to achieve principled and pragmatic legal reform capable of effective implementation. The 25 identified areas have been selected on the basis of problem areas where a legal solution is called for, and where the environment is ripe for change. The suggested reforms are in five areas: development, economy, technology and innovation, human rights, judicial process and administration.

Four broad reform actions have been suggested: Renew Basic Institutions — revitalise institutions fundamental to democracy and economic growth; Clear the Thorns — deregulate overregulated sectors with overlapping rules; Regulate the New India — update laws and provide legal frameworks to confront new challenges; and Build a Possible India — assert India’s place in the world as a model constitutional democracy.

 The Briefing Book will be released on Saturday 19th July at 6 p.m. at the Multi-Purpose Hall at the India International Centre. It will be followed by a Panel Discussion on the topic: 'How can better laws achieve better governance?'. Speakers include Justice (Retd.) Ruma Pal (Former Judge, Supreme Court of India), Harish Salve (Senior Advocate, Supreme Court of India), Sumit Bose (Former Finance Secretary, Government of India) and Uday Shankar (CEO, Star India). It will be moderated by Rajdeep Sardesai.

Entry is free and we would be delighted for anyone who is interested to attend.

Monday, July 14, 2014

Remembering Granville Austin

Here is my tribute to Granville Austin, the biographer of India's Constitution, who died last Sunday. In it, I describe how Austin researched the making of India's Constitution in late-Nehruvian Delhi. 

I must also point out the excellent obituary for Austin by Madhav Khoshla and Fali Nariman's column on Austin from last week. 

Austin's much neglected early biography is available from his website.

Monday, July 07, 2014

Granville Austin, RIP

Granville Austin, 87, the eminent biographer of India's constitution, passed away this afternoon in Washington, DC. He was surrounded by family and friends. 

Red, as he liked to be called, was a remarkable man. His books, The Indian Constitution: A Cornerstone of A Nation, and Working A Democratic Republic: The Indian Experience, reshaped our understanding of India's constitutional foundations and its democratic practice. Austin was awarded a Padma Shri in 2011 by the President of India. 

He was a great friend and mentor to me. Details about a memorial service will follow. Here is my tribute to him from a few years ago. http://www.india-seminar.com/2010/615/615_comment.htm

Friday, July 04, 2014

Legal journalism with an academic twist

In this book just brought out by LexisNexis, I revisit some of the Constitutional and legal issues which interested me both in print and on this blog, with interesting results.

I am giving below excerpts from the book's blurb, to give the readers some idea about the book. 

"This book is a fascinating account of the debates on some of the key Constitutional issues in India that engaged or failed to engage the attention of the popular media in the recent years.  Together, these issues have a bearing on the past, present and future of India’s democratic experiment, which we can ignore only to our peril. Conveniently divided into four parts, namely, powers and limitations of Parliament and the Executive, federal tensions, the scope and limits of judicial activism, and the role of the Election Commission in ensuring free and fair elections, the book offers fresh perspectives on some of the recent Constitutional questions that confronted our institutions, and the Constitutional functionaries.

The book adopts a unique approach to unravel Indian democracy and Constitutional experiment by seeking to unearth hitherto undisclosed facts under the Right to Information Act.  The questions posed to, and the answers obtained from the authorities, which constitute as many as 25 annexures to the book, are a huge contribution to the public discourse. The author’s unique skills earned during his long journalistic career, combined with his legal acumen and scholarship help him to throw fresh light on some of the complex Constitutional questions, and make them comprehensible to the average reader.  The author successfully separates facts from the factoids of some of the current legal controversies."

The book is presently available at Amazon and can be accessed here.

A Uniform Fiscal Code and the Gujarat Disturbed Areas Act

Since religious discrimination has become a moot concern after the election of the new government, the following two issues may be of interest:

1. Mani Shankar Aiyar calls for a Uniform Fiscal Code by demanding that the tax exemptions that become available to Hindus because of the recognition of the Hindu Undivided Family as a separate legal person by the Income Tax Act should be extended to all families. India effectively imposes different tax liabilities for the same income on Hindus and non-Hindus. Aiyar is no doubt being mischievous and intends mainly to make the BJP uncomfortable by exposing its hypocrisy on the Uniform Civil Code debate. But he is right in demanding principled consistency: BJP must either give up its UCC demand, or it must ensure a genuine and complete disengagement of the secular state from religious affairs (yes, that would require a genuinely Uniform Civil Code, but also the abolition of the Hindu Undivided Family as a legal person or similar recognition of the lergal personalities of all families, the state's withdrawal from temple finance management, end of all religious subsidies, prohibition of religious discrimination in housing, education and employment, repeal of the anti-conversion laws, extension of affirmative action to Dalits from any or no religion etc). Here's hoping that the latter becomes more than a liberal secularist wet dream.

2. I have followed the issue of housing discrimination assiduously on this blog. Let alone protection from housing discrimination by private parties, it seems that the Gujarat Disturbed Areas Act effectively ensures religious segregation of urban areas. An Indian apartheid?

Government's ominous signals on Whistle Blower Protection Act

Our friend, Venkatesh Nayak has brought to light a disturbing fact regarding the Government's move to amend the PIDPI Resolution, a predecessor to the Whistle Blower Protection Act, passed  (but not yet notified after the President's assent) by Parliament.  He also brings to our notice some of the other recent developments missed by the media. The following has been copied and pasted from his mail, which he wants to be widely circulated:  I have taken the liberties to edit the mail, for the purpose of this post.

A civil society activist has recently circulated a Resolution of the Government of India issued by the Department of Personnel and Training amending the Public Interest Disclosure Resolution (PIDPI Resolution). Readers will remember that the Government issued the PIDPI Resolution in 2004 to provide a mechanism for government employees to blow the whistle on corruption, in the wake of the murder of two young, honest and responsible employees - the Late Satyendra Dubey and the Late S. Manjunath who tried to expose alleged corruption in the affairs of the National Highways Authority of India and the Indian Oil Corporation, respectively . 

What is this Amendment?
The latest amendment to the PIDPI Resolution creates an internal mechanism namely, Chief Vigilance Officers (CVOs), for receiving complaints from whistle blowers in Central Government Departments and Central Public Sector Undertakings. Earlier, under the original Resolution, whistle blowers could send their complaints only to the Central Vigilance Commission (CVC). The Union Cabinet had approved this amendment to the PIDPI Resolution in August lat year.

What is wrong about this Amendment?
Parliament enacted the Whistle blowers Protection Act in 2014  after keeping it pending for almost three years. The Rajya Sabha approved this legislation on the last day of the last session of the 15th Lok Sabha. The President signed this Bill into law on 9th May and it was gazetted on 12th May this year. However the Central Government has not yet enforced this law. Readers may note that unless Parliament sets a time limit for enforcement of a law that its enacts, (as was the case with the Right to Information Act, 2005), enforcement of that law is left to the discretion of the Central Government.

Section 31(1) of the Whistle Blowers Protection Act (Whistle Blowers Act) repeals the PIDPI Resolution. So the question that arises is whether the Government can amend a Resolution after Parliament has repealed it. In theory, none of the provisions of the Whistle Blowers Act have come into force till date. So the repeal provision is also not in force. Technically, the amendment to the PIDPI Resolution may have legal cover. However Government's actions must not only be legal, they must also be legitimate. Parliament has clearly indicated its intention by repealing the PIDPI Resolution and replacing it with a comprehensive statute that contains a reasonably complete mechanism for protecting whistle Blowers. The only latitude Parliament gave to the Government was to fix the date for its enforcement after making appropriate arrangements such as notifying the Rules and Regulations under this law. However, the Government seems to be delaying the implementation of this law and instead is pushing for the strengthening of its own Resolution which in theory stands repealed.This, in my humble opinion amounts to an affront to the the dignity and will of Parliament.Constitutional experts and Parliament-watchers may point out if my view is correct and if this action of amending a Resolution which Parliament repealed would constitute a breach of privilege of Parliament.

What other option was available?
Section 2(b) of the Whistle Blowers Act empowers the Central Government to declare any authority other than the CVC and a handful of other authorities mentioned in that clause as 'competent authorities' to receive whistle blower complaints.. The Government could have enforced this law and designated the CVOs as competent authorities without any reference to the repealed PIDPI Resolution. Doing so would have been not only legal but also legitimate. 


Other Important Gazette Notifications issued during the last few weeks
1) The Central Government has issued a notification placing 'onion' and potato' in the list of commodities notified under the Removal of (Licensing Requirements, Stock Limits and Movement Restrictions) on Specified Foods Order, 2002 issued under the Essential Commodities Act, 1955. This action has been motivated by the Government's intention to check the rising prices of onion and potatoes. Contrary to popular belief, these commodities have not been declared 'essential commodities'. Instead they have been inserted in the Order mentioned above. This Order actually permits a dealer to supply, transport, stock or consume such commodities in an 'unrestricted manner'. However the application of this Order to onion and potato has been kept in abeyance for one year. So under this arrangement it is said that State Governments may take action against hoarding by unscrupulous traders. This is an interesting roundabout way of preventing the hoarding of essential commodities. I request readers well versed in the implementation of the Essential Commodities Act to enlighten us on the pros and cons of such action.

2) While civil society activists and academics are clamouring for the repeal of the Armed Forces Special Powers Act, 1958  because it has often afforded impunity to the violators of human rights in areas where it operates, the Central Government has once again declared the whole of Nagaland as a 'disturbed area' for a period of one year under this law . The Central Government has stated in the notification that it is of the opinion the entire area of Nagaland is in "such a disturbed or dangerous condition that the use of armed forces in aid of the Civil power is necessary".

3) The Central Government has constituted an Unlawful Activities (Prevention) Tribunal under Justice G P Mittal - a judge of the Delhi High court to determine whether or not there is sufficient cause for declaring the Liberation Tigers of Tamil Elam (LTTE) as an 'unlawful association' under the Unlawful Activities (Prevention) Act, 1967). The LTTE has already been declared an unlawful association in 2012. With the Central Government's renewed interest in the South Asian Association for Regional Cooperation (SAARC), it remains to be seen what action will be taken on the basis of the report of recommendation of the Tribunal- whether the decimated LTTE would continue to be declared an unlawful association or not.

Tuesday, July 01, 2014

Free Speech and Representative Democracy

Professor Robert Post, Dean of Yale Law School, will be giving a public lecture on 'Free Speech and Representative Democracy' at the Multipurpose Hall, India International Center, New Delhi on Tuesday, 8th July, 2014 at 6:30 p.m. The event is sponsored by the National Law University, Delhi and the South Asian Studies Council, Yale University.

Monday, June 23, 2014

Spring cleaning in the Raj Bhavans: deja vu with a sense of new

Guest Post by  Sujoy Chatterjee


The media has recently been abuzz with speculation regarding the fate of incumbent Governors who were either former party members of the Indian National Congress (INC) or perceived to be close to the INC (See here). Change in political guard at the Centre manifesting itself through the previous regime’s appointee-Governors’ tenures being cut short is not without precedent in India (See here). While political discussions on this issue will revolve around how the latest developments surrounding Governors is a classic case of the Bharatiya Janata Party (BJP) giving the INC a dose of its own bitter medicine, the history of 2004 has not repeated itself (at least not yet) in quite the same manner in 2014.


Rather than risking the humiliation of being removed from office before the expiry of their tenure (an ignominy which the erstwhile Governors of Uttar Pradesh, Gujarat, Haryana and Goa were subjected to on July 2, 2004), B.L. Joshi and Shekhar Dutt have pre-empted any such move by resigning (be it voluntarily or after indications to this effect from the Union Government) from the offices of Governor of Uttar Pradesh and Chhattisgarh respectively (Seehere).

Legal Precedent

Interestingly, these resignations were tendered in spite of the Governor’s tenure being secured to a certain extent by a Constitutional Bench decision of the Supreme Court (SC) in B.P. Singhal v. Union of India(2010). This judgment, the result of a public interest litigation filed against the removal of the Governors of Uttar Pradesh, Gujarat, Haryana and Goa in 2004 by the INC-led United Progressive Alliance (UPA) government, unanimously held that Governors could not be removed from office “in an arbitrary, capricious or unreasonable manner”. Speaking through Raveendran, J., the SC categorically described what would not be a valid reason for removing a Governor from office in the following words: 

A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government.”

Therefore, B.P. Singhal unambiguously precludes the BJP from using its decisive mandate in the 2014 General Elections as a valid ground for removing Governors from office.However, the SC did recognize that there are reasons based on which a Governor could validly be removed from office. B.P. Singhal enumerates some of these reasons as (i) physical/mental disability, (ii) corruption and (iii) behavior unbecoming of a Governor, while at the same time emphasizing that there could be other valid reasons as well. Rather than attempting to provide an exhaustive list of grounds on which a Governor could be removed, the SC left the issue open with the following words:

It is not possible to put the reasons under any specific heads. The only limitation on the exercise of the power is that it should be for valid reasons. What constitute valid reasons would depend upon the facts and circumstances of each case.

Political Calculations

The applicability of B.P. Singhal to the current controversy has been somewhat blunted by Joshi and Dutt’s forthright resignations. However, questions remain as to why they chose to resign. The possible thought-process behind these resignations, although overlapping in many respects, may be broadly classified into the following speculative heads:

(i)                 There was an apprehension that the Union Government would order the removal of these incumbent Governors from office unless they resigned. This apprehension could have stemmed from:

(a)                Some of the actions of the concerned Governors being interpreted by the Union Government as falling within the ambit of the three valid reasons enumerated in B.P. Singhal for removing a Governor from office;

(b)               Some of the actions of the concerned Governors falling foul of the un-enumerated yardstick which was created in B.P. Singhal for removing a Governor from office; and/or

(c)                While there were no valid grounds to remove the incumbents from office, but the Union Government would defy the principles laid down in B.P. Singhal and remove them from office as an act of political vendetta.

(ii)               The Union Government had not kept the option of forceful removal of Governors on the table, but the incumbents holding these offices felt:

(a)                The sanctity of the Governor’s office would be preserved by pre-empting a political controversy and unnecessary mudslinging; and/or

(b)               The circumstances provided the incumbents an opportunity to play the ‘victim’ card and indulge in some grandstanding.

BJP leader Sushil Kumar Modi’s comments about partisan activities being indulged in by the Governor of Bihar D.Y. Patil indicate that clauses (a) and (b) of point (i) above may have a bearing on the present controversy (See here).Similar allegations of taking politically motivated decisions may be levelled against H.R. Bharadwaj and Kamla Beniwal (the Governors of Karnataka and Gujarat respectively) as well. However, the proverbial dagger of Damocles hanging over Governor of Kerala Sheila Dikshit’s head seems to suggest that point (ii)mentioned above was the more likely consideration. Dikshit is reported to have been given a choice of either resigning on her own or be downgraded to the Raj Bhawan of ‘a smaller State’ (See here).

The corruption voodoo

The allegations of corruption against Dikshit with regard to the Commonwealth Games or the Delhi Jal Board irregularities may or may not have a bearing on her tenure as Governor, depending on which of the following schools of thought one subscribes to:

(i)                 B.P. Singhal only refers to corruption or unbecoming activities indulged in by a Governor while in office, and does not cover within its ambit actions taken by a person before he or she assumed the office of Governor;[1] or

(ii)               Dikshit’s initial appointment as Governor is itself tainted with mala fides, i.e., the intention was to shield her from any investigation or Court proceedings, and therefore she cannot be allowed to continue in office.[2]

Also in the fray is the investigation into the AgustaWestland chopper deal, where M.K. Narayanan and B.V. Wanchoo (Governors of West Bengal and Goa respectively) have so far not been interrogated because of the Constitutional posts occupied by them (See here). Narayanan and Wanchoo’s case may be slightly different from Dikshit’s though –they are at present only witnesses in the ongoing investigations and further it will be difficult to establish how irregularities in the AgustaWestland chopper deal, which came into the public domain only in 2013,had a role to play in their appointments as Governors in 2010 and 2012 respectively.

Conclusion

The long list of UPA’s ostensibly political appointee-Governors (See here) will ensure that there are many more developments surrounding the Governor’s office in the coming days. Curiously, while the BJP has unambiguously stated its desire for such Governors to vacate their offices, the Prime Minister whose election campaign was based on a social media-blitzkrieg has chosen to remain silent on this issue. Union Home Minister Rajnath Singh’s ambivalent comments have only added to the speculation and left everyone second-guessing about what the Union Government has in store for these Governors (See here). However, for those of us fence-sitters who relish the idea of a politico-legal showdown, the posturing over this issue is an encouraging sign that the Union Government intends to keep the Prime Minister’s promise of “acche din aagaye”, albeit in a very different context.




[1] By not keeping forceful demission from office as an option for Dikshit, the Union Government seems to be indicating that it subscribes to this understanding. It also gives a sense that the Union Government is not inclined towards taking the drastic step of removing Governors from office.
[2] This may very well be one of the un-enumerated grounds of B.P. Singhal for removing a Governor from office.
 [The author is an advocate based out of New Delhi.  This is his second guest post for our blog. The first one can be read here)

Sunday, June 22, 2014

Azim Premji University -- School of Policy & Governance -- Call for Law Faculty

Please see the call below from APU's School of Policy & Governance for law faculty to be part of the Masters in Law and Development.

(text provided by APU)

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The School of Policy & Governance at the Azim Premji University, Bangalore is committed to creating a leading centre for multi-disciplinary research and scholarship in the area of law, development and public policy. It proposes to launch a Masters in Law and Development (LLM 1 year) in the next academic year. Our wide ranging research publications, current course offerings and recent conferences are available at http://www.azimpremjiuniversity.edu.in/spg/.


The School of Policy & Governance is looking for law faculty. Candidates should hold a masters degree in law. Successful candidates will demonstrate a track record of high quality research and publications.
The final date for application in this round is 1 August 2014

Please visit http://www.azimpremjiuniversity.edu.in/spg/?page_id=331 or write in to gaurav.mukherjee@apu.edu.in for any further details.

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Tuesday, June 17, 2014

Crowd-sourcing research on Article 14

Dear readers,

I am working on a chapter on Article 14 for a Handbook. Trying to write a reasonable comprehensive piece on an Indian constitutional provision (rather than a focussed journal article) has been quite instructive: one is drowned by the volume of case law (even if you focus only on the Supreme Court) and the paucity of good quality secondary commentary.

Through this post I am seeking your help with the latter. Given the absence of reliable and quality law journals in India, most of the good scholarship is scattered all over the place. I have discovered some gems because some friend mentioned it to me, and there was no way I would have discovered it on my own. Hence this request: if you know any good scholarship on Article 14 of the Indian constitution (or even a lesser known but useful case), will you please leave a reference in a comment? If I use the material and if you leave a name, I will gratefully acknowledge your contribution.

I am also considering using a wiki method to crowd-source a reading list on Indian constitutional law more generally. But this larger project is for another day.

Thank you!

Thursday, June 12, 2014

Should our political parties get big money in big sums?



Guest post by Adithya Reddy

As far back as in 1963, a nine judge bench of the Supreme Court held that corporations are incapable of possessing “citizenship” and are therefore not entitled to claim fundamental rights under the Constitution.  Therefore, unlike in America where the right of a corporation to make political donations is seen as an extension of its right of speech and expression (Citizens United Vs. FEC), an Indian corporation cannot claim to be deprived of any fundamental right if prohibited from making political donations. There are many reasons why permitting corporations to make political donations may not be desirable. First, unlike in the case of a socially responsible individual, even the most socially responsible corporation cannot, legally, sacrifice its commercial objectives for political policies that may conflict with such objectives. Secondly, in case of such a conflict a corporation is always in a position to exercise greater influence on the government which is supposed to act as the arbiter in the ensuing conflict thereby distorting policy-making. Thirdly, and most importantly, it is unhealthy for any democracy to allow political parties to become dependent on a few stakeholders in society.  With lesser legal hurdles and tax implications in dealing with large sums of money, a handful of corporations will wield disproportionately high levels of influence on political policy.  

The first jurist to sound a warning bell on the issue, while ruling on Tata Iron & Steel Co’s right to amend its Memorandum of Association to make contributions to political parties in 1957, was Justice. M.C. Chagla:

 “The very basis of democracy is the voter, and when in India we are dealing with adult suffrage, it is even more important than elsewhere that not only the integrity of the representative who is ultimately elected to Parliament is safeguarded, but that the integrity of the voter is also safeguarded, and it may be said that it is difficult to accept the position that the integrity of the voter and of the representative is safeguarded if large industrial concerns are permitted to contribute to political funds to bring about a particular result.”

By expressing concern for the integrity of the voter, Justice Chagla clearly suggests that permitting political donations  encourages  wealthy corporations to try and influence political policy in favour of their commercial agenda.  Despite this advice from a court of law and similar recommendations by many expert bodies like the Santhanam Committee of 1964 and the Justice Wanchoo Committee of 1971, the newly enacted Companies Act retains a provision from the old law that permits companies to contribute to political parties. Section 182 of the 2013 Act in fact raises the cap on contributions in a financial year to 7.5 per cent of the average net profits of the last three years, from 5 per cent in the previous Act.

I am not arguing for a ban on corporate funding of political parties as that will not drastically alter the dynamics of crony capitalism or lower levels of quid pro-quo corruption between corporates and politicians. In fact, when such a ban was put in place by the Indira Gandhi government  by amending the Companies Act, many corporate big wigs were busy buying American piper planes for which Sanjay Gandhi was the agent. So, be it “black money” or “lobbying”, there are ways of corrupting politicians and that is why I believe that banning corporate financing is probably not going to make any difference.  But there is a larger and more indirect impact of such funding that needs to be discussed more seriously at a policy level.  There is a century-old ban on direct corporate funding for politics in the United States and an American Court of Appeals has found this to be good law even as recently as February, 2013 in US Vs. Danielczyk. In that case, one P. Danielczyk, Jr., Chairman of Galen Capital Corporation co-hosted a fundraiser for Hillary Clinton’s presidential campaign. He and another Galen officer allegedly had Galen reimburse attendees for $156,400 in campaign donations. Both were charged with illegally soliciting and reimbursing campaign contributions in violation of several federal statutes, including U.S.C. § 441 b(a), which bans corporate direct contributions to candidates for federal office. Danielczyk filed motions to dismiss the charges on several grounds, including arguing that § 441b(a) is unconstitutional. The District Court allowed the motions holding that “if corporations and individuals have equal political speech rights, then they must have equal direct donation rights.” In a unanimous decision, the Court of Appeal for the 4th circuit reversed the District Court’s judgment and upheld the ban on corporate donations.

 A significant rationale for this position is what the American Courts have called the “anti-distortion” principle. This principle emphasizes  the distortive effect corporate financing can have on general public discourse and government choices in matters involving conflict of interest between various stake holders. Though this rationale was rejected in a 2010 decision by the American Supreme Court (Citizens United Vs. FEC) in the context of independent corporate expenditure for political causes, it was best described by Justice Marshall of the US Supreme Court in a 1990 case as “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” The rationale is based on the incapability of an impersonal corporation to relate to larger political goals.

Recently, while upholding a statutory ban on corporate contributions to political parties and candidates, the Montana Supreme Court very interestingly relied on the report of a History Professor to find that Montana’s economy depended mainly on corporations in other states and therefore “corporate dominated campaigns will only work in the essential interest of outsiders with local interests of secondary consideration.” Wouldn’t this rationale also apply to corporate funding of a regional party ruling a state like Bihar or Orissa which has few or no large corporations within the state?

How difficult is it to envisage situations of conflict of interest between corporates and individuals or groups who would not be able to make the same kind of donations? And considering the fact that 26 of the top 50 companies which made political donations to the previous ruling party (Congress) at the centre are associated with mining of natural resources in one way or the other, how is the government going to act as a neutral arbiter in such cases of conflict? There are so many commercial ventures involving public-private partnerships which often involve negotiating terms and resolving disputes between the government-owned partner and the private company. The latter could well be a regular donor to the political party that runs the government which owns the former. Similarly, there’s little point in introducing an elaborate, pro-owner land acquisition bill when one side in the dispute is always likely to have a greater influence on the government which is the implementing authority.

There can be no greater evidence of a corporations’ inability to relate to political goals or policies than the fact that almost every corporate donor gives large funds to parties on various sides of the political spectrum at the same time. How can the same entity donate both to the ruling party and the principle opposition party whose only political goal is to unseat the former from power, during the same period? Can a corporation point to a specific policy or achievement of a political party which prompted it to make the donation? Can there be any motive other than to keep its commercial objectives hindrance-free, irrespective of the political dispensation in power?

The oft-suggested alternative to meet political parties’ large financial requirements is state funding.  While state funding is certainly a reasonable alternative, there is a genuine concern that dependence on one dominant source of funding, be it from corporates or the state, will cause political parties and politicians to remain distant from their members, cadre and the general public. In today’s situation it is difficult to say if there is any ‘cadre-based’ party left in the country. Encouraging funding from the “grass roots” has been the thrust of election financing reform in many Western Countries. Concerned about the dependence of UK’s three major political parties on a handful of large donors, in 2006 the Government ordered an enquiry by Sir Hayden Phillips, a former civil servant. One of Sir Phillip’s major recommendations was to link state funding to small donations collected by a political party from individuals. He proposed a matched funding scheme that would give parties £ 10 for each qualifying donation of £ 10 or more from any individual in any year. For a donation to be eligible for matched funding, the donor would have to be on the electoral register. In Canada, federal and provincial tax credits for political donations and legal provisions for issuing tax receipts have supported efforts to solicit small donations and have made “big money in little sums” a reality.

Alternatives and details of policy can always be discussed and debated. For instance,  financial dependence on one or a few large sources can be permitted if the interests of the recipient are so intertwined with that of the donor that there can be no scope for conflict. That such commonality of interest can never be achieved between a public figure and a corporate is best illustrated by the fact that even Mahatma Gandhi had to compromise his ideals. Gandhi was rebuffed by his mill-owner ‘patron’ GD Birla for complaining that people were buying mill-produced Khadi,mistaking it for the homespun kind/version. According to American historian Leah Renold, Gandhi did not wish to precipitate the issue because he was financially dependent on Birla.

(Adithya Reddy is a lawyer practicing before the High Court of Madras)