Thursday, December 04, 2014

Review of Leila Seth's New Book

For those interested, this is my India Today review of Justice Leila Seth's new book Talking of Justice. I think one of the great roles of judges of any court is to educate citizens about the law. Too few judges I think really take this role seriously, let alone pursue it after they retire. The vigor and eloquence with which Seth does, as well as thoughtfully advocating for her own viewpoints, is commendable and heartening.

Sunday, November 23, 2014

Unwelcome Lawyers -- Guest Post by Smaran Shetty

A natural assumption regarding any judicial system that seeks to resolve legal disputes, is that lawyers would be permitted to participate in the adjudicatory process, and assist the parties they represent. This assumption is largely codified in Section 30 of the Advocates Act, 1961, which empowers advocates who fulfill the requirements for enrollment under that Act, to appear before courts and tribunals in India. Despite this general authorization for lawyers to appear before judicial fora, there are numerous instances of statutory exclusion of legal practioners. This exclusion varies from a complete ban on advocates appearing in a forum, to a more conditional exclusion where lawyers may only represent parties to a dispute with the prior permission of the court and/or the opposing side.

In this post I seek to explore this curious exclusion, and demonstrate that such exclusions are interesting, in that they perceive lawyering as detrimental to the legal process, and thereby exclude a key element of the legal process. In understanding the nature and extent of this exclusion, I do not make any normative claims regarding the justification of such exclusion as apparently aiding in the speedy resolution of these disputes, or whether lawyers should be given a carte blanche to appear before all kinds of fora, despite the peculiar needs of sensitive legal disputes.

As previously stated, Section 30 of the Advocates Act authorizes lawyers who fulfill the requirements of enrollment, and whose names appears on state rolls, to appear and practice before courts and tribunals in India. Curiously, despite the Advocates Act being enacted in 1961, Section 30 was only notified in 2011, and formally took effect from 15 June 2011. The omission to notify Section 30 has been noted in a number of judicial decisions, and culminated in the Supreme Court’s decision in Aeltemesh Rein, Advocate, Supreme Court of India v. Union of India, where the court issued a writ of mandamus directing the Central Government to consider whether the said section should be brought into force within a period of six months from the date of the decision. A copy of the belated notification can be found here, and the relevant news reports here and here.

Exceptions to the general rule contained in Section 30 can be found in range of statutory enactments. For instance, Section 36(4) of the Industrial Disputes Act, 1947 allows lawyers to appear before Labour Courts, Labour Tribunal or the National Tribunal (as the case maybe), only when the prior consent of the opposing side as well as of the Court itself, is sought and granted. The apparent conflict between Section 30 and Section 36(4) was considered in Pradip Port Trust v. Their Workmen. Even though Section 30 had not been notified at the time of this decision, the court observed that Section 36(4) of the Industrial Disputes Act was enacted for the benefit of workmen, and to ensure the speedy resolution of labour and industrial disputes. It was also noted that since the Industrial Disputes Act was a specialized statute, intended to secure the rights of a determinate class, it could reasonably depart from the general rule contained in the Advocates Act. Importantly, the court noted that the scope of Section 36(4) and 30 should not be resolved bearing in mind the apparent rights of lawyers, but the interests of the actual parties to the labour dispute.

A similar exclusion is contained in the Family Courts Act, 1984, which creates specialized Courts for the resolution of family disputes. Section 13 only allows lawyers to appear before family courts, where leave of the court has been applied for and granted by the court. The proviso to Section 13 empowers the Family Court to appoint a lawyer as amicus curiae, where the court considers such an appointment as being necessary. Provisions of the Family Court Act, including Section 13, were the subject of an unsuccessful constitutional challenge before the Andhra Pradesh High Court in R. Durga Prasad v. Union of India. Section 13, was justified on the grounds that the bar on lawyers appearing in family disputes was not absolute, and where leave of the court was applied for and granted, lawyers could plead the case of their clients, and thereby assist in the resolution of the dispute. A subsequent decision of the Kerala High Court in C.P. Saji v. Union of India, observes that the exclusion in Section 13 has now become “redundant” in view of the recent notification of Section 30.

A more recent instance of exclusion of lawyers can be found in the Prevention of Sexual Harassment at Workplace Act. Rule 7(6) notified pursuant to Section 11, prohibits any party to a sexual harassment complaint to be assisted by a lawyer before the Internal Complaints Commission. This prohibition mirrors the exclusion of lawyers from attending and assisting in internal departmental enquires. It bears noting however, that the exclusion contained in Rule 7(6) is characteristically different from the exclusions under the Industrial Disputes Act and Family Courts Act respectively. In the latter, the exclusion of lawyers operates within judicial fora hearing a legal dispute, while in the case of the former, the exclusion operates at the stage of the Internal Complaints Committee or Local Complaints Committee. These internal committees although vested with the power of civil court for the purposes of their efficient functioning, are not strictly speaking judicial fora.

Although the rationale for these exclusions vary in their context, they are seemingly justified on the premise that certain forms of lawyering can be detrimental to, and impede, the speedy resolution of sensitive legal disputes. These provisions therefore serve to exclude a key actor in the legal process, in the hope that their absence, or in some cases, permissive presence, would assist the court in resolving a claim bought by the person preferring such a legal action. It should therefore serve as a reminder of the kind of lawyering, lawyers sometime adopt while assisting their clients. Dilatory tactics, unfair representation and a host of other questionable practices, may serve the immediate needs of their clients, but seriously attack the efficacy of any dispute resolution process. These exclusions then, must form part of an important consideration while contemplating ethical and just means of advocacy, and alert lawyers to realities of their own exclusion.

Monday, November 10, 2014


There are two new books, published by the Three Essays Collective (TEC), which may be of interest to our readers.

The first book, Kafkaland:  Prejudice, Law and Counterterrorism in India , authored by academic and activist, Manisha Sethi, explores the grisly underbelly of counterterrorism, where, according to the book's blurb,  prejudice and lawlessness are the standard operating codes.  The book examines some of the most prominent terror cases to show that the hallmark of terror investigations is not simply a casual subversion of norms but cynical prejudice and brutal violence inflicted in the knowledge of absolute impunity. It also examines the disquieting trend of judicial abdication, where the courts indulgently ignore signs of torture, lack of evidence and absence of procedural norms, while trying terror cases.  Kafkaland is where impunity, bias, suspicion are sustained by laws, where erosion of constitutional guarantees is advertised as internal security, where corporate greed masquerades as national interest, says the blurb. This is the author's second book. Her first book,  Escaping the world, got criticial acclaim among scholars.

On November 15 at 6 p.m., TEC is organising a discussion on Kafkaland at Press Club of India, Delhi. Discussants include Mukul Kesavan and Yug Mohit Chaudhary.

TEC has come  out with another book,  On their watch: Mass violence and state apathy in India, which is sure to create ripples in the public discourse on the intersection between law and mass violence.
Using RTI Act, the authors of the chapters in the book dissect four worst pogroms in India - Nellie, Bhagalpur, Delhi (1984) and the 2002 Gujarat carnage.  The book has been edited by Surabhi Chopra and Prita Jha.  Surabhi Chopra is an Assistant Professor at the Faculty of Law, Chinese University of Hong Kong.  She researches transitional justice, national security and the rights of the poor.
Prita Jha is a legal activist and researcher based in Ahmedabad. She works on justice for survivors of mass violence and violence against women.

Sunday, October 26, 2014

Indian Journal of International Economic Law

The Indian Journal of International Economic Law is now accepting submissions for its upcoming new volume. The Journal is an endeavour to encourage scholarship in the fields of international trade law and international economic law. Write to or for more details. 

Tuesday, October 21, 2014

Nehru's Letters to his Chief Ministers

During his term as Prime Minister, Jawaharlal Nehru wrote a remarkable set of letters every fortnight to India's Chief Ministers. In an anthology, published by Penguin and edited by me, the letters are now finally available for wide readership -- available here.

From the jacket cover:

In October 1947, two months after he became independent India’s first prime minister, Jawaharlal Nehru wrote the first of his fortnightly letters to the heads of the country’s provincial governments-a tradition that he kept until his last letter in December 1963, only a few months before his death. Carefully selected from among nearly 400 such letters, this collection covers a range of themes and subjects, including citizenship, war and peace, law and order, national planning and development, governance and corruption, and India’s place in the world. The letters also cover momentous world events and the many crises and conflicts the country faced during the first sixteen years after Independence. Visionary, wise and reflective, these letters are not just a testimony to Nehru’s statesmanship and his deep engagement with every aspect of India’s democratic journey, but are also of great contemporary relevance for the guidance they provide for our current problems and predicaments.

Wednesday, October 15, 2014

The Taming of the Tribunal

In a recent op-ed in the Financial Express, I reflect on the recent Supreme Court invalidation of the National Tax Tribunal (NTT). While some see this as payback by the judiciary against the government for unleashing the JAC bills on them, I argue that its a well reasoned decision and could not have gone any other way. I also posit that under the logic of this Supreme Court decision, a number of other tribunals will be axed as well, such as the IPAB, Green tribunal,  etc. For these are all tribunals which took over erstwhile judicial functions and the rigour of the NTT ruling applies most forcefully to them.

Issues with the IPAB (Intellectual Property Appellate Board)
In particular, I highlight the various infrastructure and competence issues with the IPAB, a tribunal against which I mounted an invalidity attack more than four years ago! Despite our best efforts, it continues to languish in the Madras High Court,  a court beset with chief justices that look for the shortest exit route after taking charge. Our latest set of applications challenging the process for the appointment of Vice Chairman is documented in this blog post here. 

For those interested (particularly those without the patience to click through on any of the links), I'm excerpting relevant portions from the Financial Express editorial. 

"The Supreme Court effectively ruled that in order to remain constitutionally valid, a tribunal tasked with adjudicating core questions of law ought to be on par with a high court in terms of independence (from the executive) and professional competence, i.e. staffed with members that have the requisite judicial qualifications to adjudicate. Under the rigour of this ruling, a number of tribunals are likely to be guillotined. And not without good reason, since the government has effectively trivialised justice through its flippant flowering of tribunals.

Consider the Intellectual Property Appellate Board (IPAB). Till date, it has not had adequate space or infrastructure. During the first few years, it was forced to beg the Indian patent office for a hearing room, an agency whose very decisions it was supposed to sit in appeal over! More egregiously, the quality of members appointed to adjudicate this complex legal terrain left much to be desired—particularly stark is the case of an alleged specialist who stated in his CV that he appeared in trademark cases as far back as 1910. Clearly, a case of reincarnation if ever there was one."

Going Forward: Policy Options?

I then conclude with outlining two broad policy options for the way forward, as excerpted below:

"How do we fix this mess? Under the logic of the NTT ruling, there are two broad policy options.

One is to redress all issues with the current set of tribunals through an umbrella legislation, free them from government influence and elevate them to a position as close as possible to the high courts. But this is a tall order. And indeed, one may ask: If a tribunal has to be on par with a high court, what is the point of having a separate tribunal at all? And this brings us to the second option: To have a specialist bench at the various high courts, staffed with those that have some prior background or expertise in the concerned subject matter (such as intellectual property or environment or tax law). Indeed, in a strange twist, the current Attorney General who batted vociferously for the NTT had, only a year or so ago, vehemently decried tribunalisation, and advocated rather forcefully that the tribunals ought to shut shop and their functions vested back in the high courts.

This second option guarantees some level of specialist expertise, but within the overall supervision and framework of the high court. As such, it appears a more workable solution than instituting a separate set of tribunals, housed independent of the high courts. It bears noting that now a Bill is pending before Parliament to regulate tribunals; unfortunately, its focus is rather limited, as it seeks to merely regulate service conditions and does nothing to redress the various constitutional flaws plaguing the current set of tribunals."

Reasons behind the Decision:

While the NTT decision is a legally sound one, following as it does, a long line of case law, it represents one of the strongest condemnation of the judiciary of the usurpation of judicial power by the executive. The reasons for this strong condemnation may have to do with an affidavit filed by the government in a related case filed by the Madras Bar Association, represented by the inimitable Arvind Datar who's been waging a war against the flippant flowering of tribunals for more than two decades now! 

I'm given to believe that, in this petition before the Supreme Court asking that the decision in L Chandra Kumar be implemented and all tribunals be brought under an independent regulatory agency, the government filed an affidavit stating that this was difficult, since the respective government departments did not wish to give up control over their tribunals. Speak about digging your own grave! 

Problems with the Decision

1. While the NTT decision is a legally sound one, it is, as with most other things in life, wanting on some counts. For one, it meanders a fair bit, citing case law and propositions endlessly without following a more coherent structure. It runs into a good 270 pages ensuring that only the most committed would wade through it in its entirety! Counsels' arguments complete with their case law citations (and long passages) are rehashed in almost 100 pages of the decision. The very same cases that counsels cite are then again reproduced in the judges' own analysis section. More problematically, long passages from ancient case law are reproduced for what are now fairly obvious legal propositions. Illustratively, a well established proposition (such as the fact that "judicial review" is now part of the basic structure) which could have been disposed in a paragraph or two is cited several times and long passages from earlier case law (Minerva mills etc) are reproduced running into almost a good 10 pages or so. A shorter and more crisper decision succinctly laying down the law would have been a delight to read. And dare I say that this might have promoted better access to law, given that shorter and crisper decisions have a great propensity of being read by the masses. 

2. Given that the NTT is a rare tribunal (tasked only with adjudicating substantial questions of law), the question arises as to whether or not the SC ruling applies to all other tribunals (even those that are tasked with factual determinations). I excerpt from the editorial:

"One may argue that not all tribunals need conform to the exacting standards laid down by the court. After all, the NTT was a rather special tribunal tasked with deciding only substantial questions of law. As such, it constituted an usurpation that was, in the words of Justice Nariman, “the ultimate encroachment on the exclusive domain of the superior Courts of Record in India.”

Unlike the NTT, most other tribunals are tasked with deciding factual issues as well, and some even decide cases at the first instance. For those tribunals, might one have a slightly different yardstick than the strict standard imposed by the NTT? A literal reading of the majority judgment may not permit this distinction, as it appears to apply to all tribunals that effectively substituted for the high courts. This is one area that the court might need to revisit in the future. For the exigencies of a modern state and regulatory apparatus demand a more flexible framework, where a wider subset of people and agencies are tasked with justice dispensation, particularly in technical and specialised areas. As the courts themselves admit, the separation of powers doctrine under the Constitution is a rather fluid one and not strictly cast in stone. As such, we should have more freedom to experiment with our justice dispensation framework. Let us hope that this decision is a starting point for that dialogue. And not the trigger for yet another turf war."

3. The NTT judges reiterate at several instances that erstwhile high court jurisdiction can be transferred to tribunals, only if the tribunal is brought on par with the high court . Under this logic, could one run an argument that tribunals such as the IPAB could never have "technical members" participating in decision making and writing judgments? If at all there is to be a technical expert on the tribunal, the said person must merely be an assistant being called on from time to time to assist judges in understanding the technical aspects thrown up by the case at hand? To this extent, the NTT ruling appears to be at odds with the earlier R Gandhi case (involving the constitutionality of the Company Law Tribunal), which suggested that disputes that involved technical aspects (such as telecom and IP) could have technical (decision making) members. 

4. I personally think Justice Nariman's judgment, taken by many to be one that concurs with the majority opinion, is effectively a dissent, on at least one court. His judgment appears to suggest that when it comes to substantial questions of law and appellate jurisdiction, our constitutional scheme does not permit any other court (other than the SC/HC) to adjudicate. Does this mean that no matter how robust the tribunal (in terms of its equivalence to the high court), it would still fall foul of the Constitutional scheme? The majority decision appears to suggest that so long as the tribunal is on par with a high court, all is well. But Justice Nariman's judgment appears a bit stronger on this count and does not appear to leave even that possibility open. I could be wrong here, and look forward to hearing from others on this list who have a more nuanced understanding of these issues. 

5. Lastly, I'm very keen on learning from those in the know as to what the exact distinction between "judicial" and "quasi judicial" is? And the difference between a "question of law" and a "substantial question of law". Is it not possible to convert almost any question of law to a substantial question of law; for almost every question of law can be said to have a bearing of some aspect of a right or duty that is called into question in the dispute. Further, within technical domains such as IP, is it not fairly easy for a crafty lawyer to convert most questions of fact into questions of law. And then to convert such "questions of law" to "substantial questions of law."?

ps: For those interested, here are some helpful links:
i) Pallavi Saluja of Bar and Bench interviewed Arvind Datar in the aftermath of the NTT ruling here. ii) Justice Prabha Sridevan (ex Chairman of the IPAB) wrote a potent piece on the dismal state of affairs at the IPAB in an editorial for the Hindu late last year
iii) Gautam Bhatia has a very helpful summary of the NTT ruling here, where he takes issue with the decision for relying on "constitutional conventions" and for holding that even normal legislation (as opposed to constitutional amendments) can be reviewed for compliance with the basic structure doctrine. 

Tuesday, October 14, 2014

India's Judicial Architecture

I recently posted on SSRN this piece on India's judicial architecture. A revised version of it will be published in the upcoming Oxford Handbook on the Indian Constitution, which will contain an impressive range of chapters on the Indian Constitution and is being edited by Pratap Bhanu Mehta, Sujit Choudhry, and Madhav Khosla. My piece is is under 20 pages and I hope it will end up being a useful introduction to the Indian judicial system to both law students and interested non-lawyers who want to learn about the judicial system's structure and functioning. I also think it includes some more nuanced points that may be of interest to practicing lawyers and legal scholars.

In the piece I lay out the hierarchies and relations between different courts and judges and explain how the judiciary coordinates its behavior through a system of stare decisis and internal administrative control. Drawing on some of my own previous work and the work of others, I argue in the piece that the Indian judicial system is particularly top-heavy, with more cases, more judges, and more administrative power located in the upper judiciary, and especially the Supreme Court, than in most other systems. This top-heaviness has a range of implications that the article explores, including leading to a more polyvocal jurisprudence and fostering a unique set of inter-judge dynamics, that while empowering the upper judiciary may also weaken the overall judiciary's ability to perform core parts of its institutional mandate.

If others have feedback - whether this is errors or what you perceive to be a grievous (or not so grievous) omission or mischaracterization - I would love to hear it either in the comments section or via email. There will be other chapters in the Handbook on judicial independence, tribunals, judicial interpretation, and jurisdiction so these topics are not covered in as much detail as they might otherwise be in my piece.   

Thursday, October 02, 2014

Pharmaceutical Patents and the Dawn of a New Era

In a piece in the Indian Express a couple of days ago, I expressed some apprehension about the latest round of licensing agreements signed between Gilead and seven Indian generic companies. And argued that since many of our generic majors are now partnering with western multinationals and foregoing the option to challenge their patents, the government must play a stronger role in public health and access. It cannot simply continuing relying on these generic majors and the competition that they helped unleash earlier through strong patent challenges. For those interested, here are excerpts from the piece. The full text is available here.
"Prime Minister Narendra Modi’s US visit is likely to throw up highly contentious intellectual property rights issues. Indeed, for the last several years, US drug majors and their European counterparts have lobbied hard to demonise the Indian patent regime. But the government must continue to defend the law and stand its ground. Particularly since our own industrial moguls have caved in and are less vocal about their opposition to a global patent paradigm scripted by Western industrial interests.
It is against this backdrop that one must view the latest deal between Gilead, a leading US pharmaceutical company, and seven Indian generic firms, to manufacture and distribute an important antiviral in several low- and middle-income countries. The deal pertains to the licencing of Sovaldi, a patented hepatitis C drug that revolutionised treatment but is priced at a whopping $84,000 for a three-month course. Faced with mounting pressure from patient groups and strong patent opposition in India, Gilead announced that it would sell Sovaldi for $900. Immediately thereafter, it announced the licencing arrangement.
The announcement of Gilead’s licencing agreement generated consternation among public health activists, who believe that its patent is vulnerable under India’s stringent patent standard, which was upheld by the Supreme Court in the famous Novartis case.
...What does all of this mean? Are we seeing a new phase in pharmaceutical history? Does this have to do with a gradual whittling away of the sharp innovator-versus-generic divide? A divide that is often considered a defining feature of the pharmaceutical industry, distinguishing it from most other technology sectors. Notably, while the high technology sector routinely sees a fluid innovator versus infringer dynamic, with Microsoft and Google suing as much as they are sued, the pharmaceutical industry is different. Patent positions are more ossified, with alleged innovators, typically MNCs, suing generic copycats, typically Indian companies. However, it would appear that this dividing line is now blurring, with generic companies aspiring to jump on to the innovation bandwagon, and drug innovators waiting to acquire generic divisions.
.....All of this means that public health and affordable access will take a severe beating. We can no longer expect our home-grown generic companies to guard this turf. Growing partnerships between them and global innovators will mean fewer patent challenges. As such, the government cannot remain content with relying on free-market competition from the generic sector to bring drug prices down. It has to play a more active role to foster affordable healthcare and revive its once-prominent public sector units. It is this new dynamic that Modi must bear in mind as he negotiates with a partner that is all too keen to collaborate on the IP front, but mostly on its own terms."
In the immediate aftermath of Prime Minister Modi's rockstar visit to the US, we've had an announcement by the Indian and US governments of a high level working group on IP.  We've also had a hard hard hitting editorial in the HT from Raj Dave and Srividya Ragavan here. Responding very well to the continued cacophonic outbursts against India's IP regime. Also some weeks ago, Yogesh Pai wrote a thoughtful piece on the likely direction of the Modi government when it comes to IP policy. Since then, the Minister of Commerce announced that an IP policy was in the offing. 

Wednesday, September 10, 2014

The JAC Bills: From Representative to Deliberative Democracy?

In a recent op-ed in the Mint, I lament the lack of public consultation in Indian law and policy making. I argue that its high time we moved from representative to deliberative democracy. I note the existence of a cabinet resolution calling for public consultation but note that it is weakly worded and that we need a stronger legal entitlement to the same. I extract some portions below. And welcome thoughts and suggestions. You can access the full piece here

Judging a Democratic Deficit: Some Excerpts

"I intend neither to praise the Bills nor to bury them, but to point to a cardinal flaw in the lawmaking process here—that the law was introduced in Parliament without any significant public consultation. And this despite the fact that the Bills related to one of the three key pillars that constitute the modern state—the judiciary. The genesis of the present set of Bills can be traced to an earlier set presented before the Rajya Sabha in 2013. Since they lapsed with the dissolution of the Lok Sabha, the government reintroduced the Bills in Parliament after taking into account most suggestions of the parliamentary standing committee. However, neither the present set of Bills nor the earlier ones was ever thrown up for public deliberation prior to their introduction in Parliament. In a country that prides itself as the world’s largest democracy, this is utterly shocking, but hardly new. One can cite numerous instances of more egregious infractions, where the public had no inkling of a new law being afoot before they read about it in the papers as having been introduced in Parliament. 

Clearly, this must change. One cannot remain content with a mere representative democracy, where the public engagement begins and ends with the casting of a vote, lasting but a few seconds (not counting the wait in the queue to get to the polling booth). Rather, one needs to move to a more direct and deliberative engagement with democracy. One way of bringing about this transition is through the fostering of public participation in law and policymaking. 

.....Interestingly enough, a cabinet resolution issued in January this year mandates public disclosure of draft Bills, but leaves the issue of consultation with key stakeholders as a discretionary power in the hands of the concerned ministry. This cabinet resolution might be the best place to start with in terms of ushering in a new era of deliberative democracy. The government should immediately make this more public, as it is conveniently hidden in one of the pages of the unsearchable ministry of law website, and solicit views to help improve it. It should then take the suggestions into account and draw up a Bill that would convert this toothless cabinet policy into an enforceable legal entitlement. More importantly, given our alleged technology leadership, it would help to first build an easy-to-navigate digital platform for eliciting public views on any new law or policy.

Opening up lawmaking in this way is likely to have other benefits as well. For one, as with open source software and the wonderful innovation that it helped unleash, an open platform benefits from the ingenuity of multiple minds and may throw up far better ideas than a closed-door setting. The challenge, of course, is to coordinate this openness in such a way that the costs do not outweigh the benefits....." 

Oxford Report on Pre Legislative Briefing

For an in-depth view of these issues and a comparative perspective on pre-legislative consultation, see this insightful report by Tarunabh and team. He'd blogged on it earlier here

Anna Hazare and Law Making:

In a piece penned around two years ago (during the height of the Anna Hazare agitation), I had reflected on a similar theme for the Times Crest and noted:

"Given this backdrop, the moral success of the Hazare agitation throws up an excellent opportunity to open up this closed law-making process and to pave the way for more deliberative discussions. Unfortunately, the Hazare movement has come across as controlled by a select few who wish to replace the government coterie with their own. 

Questionable as their means are, Hazare and club have broken new ground by gaining admission to a closed-door law making process. It would be a travesty if they now replicated the hegemony they seek to challenge. They must now leverage the moral capital gained so far and translate it to a call for wider and more informed public policy and law making. This must involve not just educating and sensitising the public, but also our ministers and parliamentarians. For, in the allegedly selfless act of starvation by an endangered Gandhian species lies the hidden potential to begin the slow process of transformation from a largely formal democracy to a more substantive and participatory one."

The Indian "Bayh Dole" Bill And Secret Law Making:

Also for those interested, this sheer lack of public consultation in law making was most egregiously witnessed during the making of a bill relating to publicly funded intellectual property. I reflect on this in this article for the Columbia Journal of Asia Studies. The full piece can be downloaded from SSRN here and the key portion of the abstract dealing with "secret" law making is as below:

"We also reflect on the “secret” history of the Bill and how it was for­ formalistically drafted without thorough study and investigation of the realities pertaining to publicly funded research and patenting activities in India. The paper will show that the passage of the Bill demonstrates non­ transparency of the highest order and lessons in he “don’ts” of lawmaking in a healthy democracy."

ps: I want to thank Arghya Sengupta, Sai Vinod and Prianka Rao for helpful inputs that went into shaping the Mint editorial. As always, grateful for reader comments and suggestions. 

Monday, September 08, 2014

The Scottish Referendum on Independence

Indian media has so far maintained a surprising silence over a remarkable event unfolding in the United Kingdom, one that any country facing secession demands should be watching very intently. Even our Foreign Minister Sushma Swaraj betrayed her complete ignorance of the issue when a British journalist asked for her comments.

Scottish voters go to polls in less than two weeks to give a yes or no answer to this question: 'Should Scotland be an independent country?' With opinion polls showing that the vote will go down the wire, the United Kingdom of Great Britain and Northern Ireland could soon see Scotland's secession, and become the United Kingdom of England, Wales and Northern Ireland (how long Northern Ireland stays within the Union is also debatable). 

Of course regions have had referenda in the past to decide questions of secession. Quebec had one. Nehru promised one in Kashmir before circumstanced changed. What is especially interesting in the debates over Scotland is the prominence of the economic issues, with nationalistic jingoism rather muted. A taste of the concerns of the voters may be had from these two guides. The pound, welfare spending, heath care, devolution--these seem to be the most important concerns of the Scottish voter. Rest of the UK seems to be offering far greater autonomy to Scotland if it chooses to stay. The main problem on these economic concerns is that Scotland has traditionally been left-wing, but much larger England often puts right-wing Tories in government, who typically like to spend far less on the welfare state than what many Scots would like. The devolution in 1998 secured many powers for the Scottish Parliament anyway. If Scotland stays, many more will undoubtedly be devolved. But the allure of Tory-free governance may be attractive to the Scots (it may also condemn the rest of the UK to a near-permanent Tory majority--it will certainly make it much harder for Labour to form government without the left-leaning Scottish MPs, at least in the medium term).

More than mere geography, the character of the nations involved is at stake. It is still remarkable that the issue is being settled without a bullet having been fired.

Friday, September 05, 2014

Former Attorney General Goolam Essaji Vahanvati -- A Junior's Tribute

Goolam E. Vahanvati does not just pass away. He stays with you.

A mentor refers to an experienced and trusted adviser. For the last four years, he has done a lot more than mentor me. He treated me, and everyone else is in his chamber, like family. Every rap on the knuckle was followed by an apology, even though the rap was occasioned by a lapse on our part. That is who he was – eager to drive his juniors on so that they excel in what they do. That is the person I know. A smile, a wink, a laugh, a hand on your shoulder.

There are people, advocates and otherwise, who have known him for a much longer period than I have. I do not have the standing as yet to comment on Boss’ court craft. But one thing I will say – when he argued, we all listened spellbound. Even though we knew exactly what his propositions were and what he was going to submit. He made every argument sound like a captivating story, with the audience wanting to know what would come next.

The amount of preparation and meticulousness that went into each submission is a lesson for one and all. I could go on, and give details of various cases he argued, but then I know he would admonish me for being verbose.

It will take us all who have worked with him months, maybe years, to come to terms with the fact that he is not physically present anymore. But the impact he has had on our lives is etched in stone. If, at the end of my career, I manage to become a fraction of the advocate he was, I will be a content person.

I would say thank you, I only wish I had got the chance. Hopefully, I will manage to show how grateful I am one day.

For every judgment I am unable to find, and for every proposition of law I have trouble developing, he will be there, telling me, in a gentle voice which is barely audible, how to do it. Like I said, he stays with you.

Keep rapping us on the knuckles Boss. We would not have it any other way.

Guest obituary by Anoopam Prasad, Advocate, who works at the former Attorney General's Chambers. 

Tributes to Vahanvati have also been paid by the present Attorney General, by Arvind Narain and Mayur Suresh, who are human rights lawyers, and by the journalist and commentator, Vikram Doctor.

Saturday, August 30, 2014

Excessive Delegation in the Judicial Appointments Bill?

We bring you a guest post from Aradhya Sethia, a very bright third year student of the National Law School, Bangalore.

The Vice of Excessive Delegation in the NJAC Bill, 2014: The Devil is in Details

The reforms on judicial appointment in India have largely focussed on the question: ‘who should select the judges?’ However, they have largely ignored the two equally, or probably, even more important questions: ‘how should the judges be selected?’ and, ‘who should be selected as a judge?’ The hastily passed NJAC Bill in the Parliament has indeed sought to substantially answer the first question i.e. who should select? The other two questions have been left completely to the Central Government and the Commission. The tussle between the judiciary and the executive has been the cornerstone of the ‘Separation of Powers’ debates surrounding the Bill. However, the Bill also poses serious questions with respect to separation between legislative and executive functions, which is manifested in the delegation of legislative powers, an issue at the heart of the separation of powers between executive and legislative. In this post, I will analyse, if such wide delegation of powers in the Bill is constitutionally sustainable.

Doctrine of Excessive Delegation

According to the doctrine of excessive delegation, if the legislature excessively delegates its legislative function to any other authority, such delegation will be held unconstitutional. This doctrine fulfils two objectives: first, it ensures democratic accountability in the laws through which the people are governed and, second, minimum delegation provides the courts with some discernible standard to judge if the rule/regulation is ultra vires the parent statute. 

However, the question that arises is: where exactly do we draw the line for ‘permissible limits’ of delegation? In Re: Delhi Laws Act [AIR 1951 SC 332], Kania C.J. stated that though legislature can confer powers to make rules and regulations for carrying the enactment into “operation and effect”, it should lay down the “policy and principles providing the rule of conduct”. The wide latitude in rule-making power to any non-legislative authority can be left only in “cases of emergency like war”. In Ajoy Kumar Banerjee v. Union of India [1984) 3 SCC 127], the court held that “declaring the legislative policy and laying down the standard with sufficient clarity” constitutes ‘essential legislative function’, which cannot be delegated. In Agricultural Market Committee v. Shalimar Chemical Works Ltd. [(1997) 5 SCC 516], the permissibility of delegation was further restricted only to ‘mode of implementation’. This brief survey of loci classici on permissibility of delegation makes it clear that the function of subordinate legislation is merely an ancillary one to make the policy functional rather than making policy choices. 

Determining Suitability Criteria is not a “procedural or administrative” function

In the NJAC Bill, there are two types of powers delegated to the Commission: The first one pertains to determining suitability criteria, which includes mainly the criteria of suitability with respect to appointment of the Judges [s. 5(2) and s. 6 (3)]. The second type pertains to procedural and administrative issues including the ‘manner of eliciting views from Chief Ministers and Governors’[s. 12(2)(e)], ‘procedure for conducting the meetings of the commission’ [s.12(2)(i)] etc. The delegation of the second type, being merely procedural and administrative in nature, can be tolerated. The problem arises specifically with respect to the first type of delegation dealing with suitability criteria. 

The ‘Memorandum Regarding Delegated Legislation’ of the Bill states that the delegation is merely ‘procedural or administrative’ in nature, and hence of normal character. The factors for selection of Judges not only reflect the kind of duties that the judiciary is expected to perform, but also embody the vision of judiciary that we envisage. Therefore, the delegation vis-√†-vis determination of suitability criteria is not merely a procedural or administrative function, but necessarily involves making policy choices in tune with our vision of the higher judiciary. Therefore, such delegation falls beyond the scope of the memorandum, which is only restricted to procedural or administrative. Since the delegation in the Bill actually extends beyond procedural or administrative functions, it cannot be said to be of normal character. 

There is no policy guidance for determining Suitability Criteria

The delegation of legislative functions in the Bill is indeed very broad. However, such a broad delegation may not be problematic if the legislation itself contains sufficient principles to guide the Commission. The Statements of Objects and Reasons of the NJAC Bill seem to focus mainly on the shift of power of selection from the existing system to the Commission. There doesn’t seem to be any policy which may guide the determination of selection criteria. The only guidance in the statement of objects and reasons is that the recommendation procedure should have greater ‘transparency, accountability and objectivity’. Further, in the provision itself, the only other policy guideline is the phrase ‘ability and merit’. Any judicial attempt to construe these vague phrases as sufficient policy guideline for laying down selection criteria would result into what Mathew J., in his dissenting opinion once put as: “the hunt by court for legislative policy or guidance in the crevices of a statute or the nook and cranny of its preamble”, which, “is not an edifying spectacle” [Gwalior Rayon Co. v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660]. 

Subject matter of the legislation does not necessarily require such delegation

There have been rare cases where the courts have upheld a skeletal legislation such as this one. However, the rare cases dealt with those subject matters where, due to the element of emergency situation, leaving such broad powers to subordinate authorities was necessary. For example supply of essential commodities [Harishankar Bagla v. State of M.P., AIR 1954 SC 465] and control of import and export [Bhatnagars & Co. v. Union of India AIR 1957 SC 478]. In the landmark case of D.S. Garewal v. Union of India [AIR 1959 SC 512], the court upheld the delegation of power to lay down the selection criteria for All India Services for two reasons: the exigencies of the subject matter i.e. public services, where rules may have be changed frequently and, the Act adopted the pre-existing rules till the new rules are framed. None of these justifications apply to the Bill, as unlike public services, there are no such exigencies involved in judicial appointments. Additionally, there are no pre-existing rules or any adoption of such in the Bill. 

Unlike the cases discussed above, the NJAC Bill deals with the appointment of the Higher Judiciary, which does not involve any emergency situation. It is only in the interest of the Constitution that it is carried out after proper democratic deliberation and not in haste. 

Does the ‘Laying’ Procedure Prescribed in the Bill Provide Sufficient Procedural Safeguard? 

‘Laying’ before the legislation is an important check on the exercise of delegated powers. There are three types of ‘laying’ procedures: Simple laying, laying subject to negative resolution and, laying subject to affirmation. Simple laying is a mere formality where the parliament does not have any control over the delegated legislation, except for subjecting it to a parliamentary debate. In negative laying, the Parliament has the power to annul or modify the rules once it is put before it under this procedure. However, the actions already taken under the rules will not be affected by Parliamentary modification or annulment. In the third type of laying procedure, the draft rules are put for the Parliamentary scrutiny and they do not come into force, until the Parliament affirms them. 

Out of all the three types of laying procedures, only the third type of laying procedure (i.e. affirmative laying) is mandatory, while the others are merely directory in nature [Atlas Industries Ltd. v. State of Haryana,AIR 1979 SC 1149]. The laying procedure prescribed in the Bill [Section 13] is of the second type. It is submitted that since the Bill performs an important function of appointing the Constitution’s gatekeepers, it should have adopted the third type of laying procedure. 

Instead of passing the Bill in haste, the Parliament should have cared to include those details in the Bill itself, rather than leaving it completely to a six-member body, which is comfortably shielded from democratic accountability. It seems apt to say that this haste has lost us an opportunity of creating a definite God in detail. Instead, what we are left with is an indefinite devil in the details.