Monday, April 25, 2016

Hingorani Foundation Pegasus Scholarship for Indian Lawyers

This programme is being run in collaboration with the prestigious Pegasus Scholarship Trust. The programme is intended to provide young lawyers in India with a first-hand experience of the workings of the legal system in England and Wales over a period of eight weeks, while young legal practitioners from England and Wales will be provided an opportunity to witness the Indian legal system on a reciprocal basis.
The Foundation will award one young Indian lawyer The Kapila & Nirmal Hingorani Foundation Pegasus Scholarship (KHFPS) 2016. The scholarship will entail spending three to four weeks at each of two different sets of barristers' chambers in London that practice in the candidate's preferred areas of law. These placements would usually involve opportunities to see advocacy in action, and the scholar will typically be asked to assist with research and/or drafting, the idea being that the scholar will gain an insight into how these areas of law are dealt with in England and Wales. In addition to spending time in barristers' chambers, the scholar would also visit various institutions such as the Supreme Court, the High Court and the Old Bailey, where the scholar would be looked after by a Judge of that court for the day.
The scholar will be provided with a stipend to cover the living costs and will be also given assistance in securing accommodation in London. Air fare, travel insurance and visa fee are not part of the scholarship. The scholar should:
  •  be a citizen of India
  •  be a practising lawyer in India
  •  have been in practice for less than seven years on the date of submission of the application.
Young legal practitioners in the U.K. who are interested in applying for The Kapila Hingorani Foundation Pegasus Scholarship to spend eight weeks in India are advised to contact the Pegasus Scholarship Trust. Click here for more details

Thursday, April 21, 2016

DAKSH & NLU-D Access to Justice Conference on April 23 at IIC, Delhi

DAKSH’s Access to Justice Survey is the first systematic study in India to explore the needs and expectations of the users of the judicial system—the litigants. The survey was conducted across 305 lower courts across the country and interviewed more than 9000 litigants. 
The survey maps litigants’ perceptions on several issues relevant to their experiences in the judicial system, such as the factors that influence the ease with which they can access the system, their ability to use the court system to resolve disputes effectively, and the socio-economic fallout of judicial delay. The survey has gathered essential information about the background of litigants, nature of cases they are involved in, relationship between opposing litigants, and previous litigation experience.
We will share the results of this survey at the DAKSH – National Law University (Delhi) Access to Justice Conference in Delhi on 23 April 2016. Details of the event are here. If you are in Delhi, please attend.

GJ and Others: The UK Upper Tribunal on Post-Civil War Returnees to Sri Lanka


The Immigration and Asylum Chamber of the United Kingdom Upper Tribunal (“UKUT”) can issue ‘country guidance’ decisions, which guide (and, in most circumstances, bind) government decision-makers in assessing conditions in particular countries in determining whether asylum seekers are entitled to protection in the UK. The UKUT’s decision in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (“GJ and Others”) provides country guidance on ‘the current categories of persons at real risk of persecution or serious harm on return to Sri Lanka’. (All paragraph references in [square brackets] are to the decision.) Even though the decision was reached in 2013 (and therefore predates the incumbent Sirisena administration in Sri Lanka), GJ and others remains current as ‘country guidance’ in the UK.

The UKUT’s decision in GJ and Others represents an important and influential perspective on contemporary human rights developments in South Asia. This post examines the conclusions reached in GJ and Others and the decision’s salience for India.


In GJ and others, three asylum seekers (“GJ”, “NT” and “MP”) appealed to the UKUT against decisions to refuse each asylum in the United Kingdom. GJ claimed that his family had been loyalists of the Liberation Tigers of Tamil Eelam (“LTTE”), that his sister had served as medical adviser to LTTE leader Prabhakaran, and that he himself had served as a member of the LTTE from May 2007 until the end of the Sri Lankan Civil War in May 2009. NT claimed to have worked for the LTTE at a checkpoint at Puthukudyiruppu for two years, to have been re-recruited to the movement in 2008 and to have dug bunkers and transported casualties until surrendering at the end of the Civil War. MP claimed to have been involved with the LTTE in 1995-1997. All three had previously been detained and tortured in Sri Lanka.


Prior to GJ and others, the UK’s previous governing country guidance decisions on Sri Lanka were TK (Tamils, LP updated) Sri Lanka CG [2009] UKAIT 00049 (“TK”) and LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“LP”). LP identified various potential ‘risk categories’ for returnees to Sri Lanka, including ‘Tamil ethnicity’, ‘[p]revious record as a suspected or actual LTTE member or support’, ‘[i]llegal departure from Sri Lanka’, ‘[h]aving made an asylum claim abroad’ and ‘[h]aving relatives in the LTTE’. Each of these risk factors were to be considered ‘individually and cumulatively’. TK reaffirmed these categories several months after the end of the Sri Lankan Civil War.

GJ and others, by contrast, was handed down in July 2013, four years after the Civil War, and departed from the approach set down in TK and LP, replacing ‘all existing country guidance on Sri Lanka’. The UKUT acknowledged the mass internment of Tamils in IDP camps near Vavuniya after the end of the Civil War (at [298]), the detention of suspected LTTE cadres and supporters in ‘rehabilitation’ camps (at [298]-[300]), the militarisation of Sri Lanka’s Northern Province (at [305]), [328], [342]), the abuse of some individuals with former LTTE links upon return to Sri Lanka (at [311]) and continuing ‘white van’ abductions (at [343]). The UKUT concluded, however, that the Sri Lankan government’s contemporary concern ‘is not with past membership or sympathy [with the LTTE], but with whether a person is a destabilising threat in post-conflict Sri Lanka’ (at [311]), with particular regard to diaspora activism (at [354]). The UKUT did not accept ‘that previous LTTE connections or sympathies (whether direct or familial) are perceived by the [Government of Sri Lanka] as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka’ (at [325]), although the decision cautions that the extent to which such links will inform the Sri Lankan government’s actions ‘will always be fact specific’. Personal histories, including histories of separatist sympathies, will be relevant only to the extent that these sympathies are perceived by Sri Lankan authorities ‘as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government’ (at [356(8)]).

In GJ and others, the UKUT set out a number of new ‘risk categories’ (at [356(7)]); the decision has been interpreted as effectively closing the door to those who do not fall within’ these categories. Several categories are relatively specific: journalists; individuals who had given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan authorities in alleged war crimes; and persons listed on computerised “stop” lists accessible at Sri Lanka’s international airport. The only other listed risk category, the first and broadest, has attracted particular contention in its application: ‘[i]ndividuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have[,] a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka’.

The resolution of the appeals before the UKUT provides some indication of what this category means. The UKUT allowed GJ’s appeal, finding that ‘his significant involvement in the LTTE’s finance wing and its fuel supply’, his sister’s close connections to Prabhakaran, his ‘pro-Tamil separatism activities in the United Kingdom’ and enquiries made by the Sri Lankan authorities about him since his departure from that nation, in combination, indicated that GJ was perceived ‘as having a significant role in relation to post-conflict Tamil separatism within the diaspora’ (at [397]). The UKUT dismissed MP and NT’s appeals, although it found that NT’s severe post-traumatic stress disorder, depression and suicidal ideation would cause his removal to Sri Lanka to breach the UK’s obligations under article 3 of the ECHR.

Challenges to the Decision

GJ and others’ analysis of Sri Lankan government policy circa 2013 differs substantially from the analyses of other observers. The UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (21 December 2012) (“Guidelines”), for example, identify ‘persons suspected of certain links with the [LTTE]’ as a continuing ‘risk profile’ in contemporary Sri Lanka, finding that ‘previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case’. The Guidelines lack GJ and others’ substantial focus upon activism within the diaspora, instead emphasising the significance of antecedents (and ties to the LTTE) as a source of continuing risk in themselves in Sri Lanka. The decision’s take on the contemporary salience of past ties to the LTTE is also at odds with other reports from governments and NGOs.

A challenge to the country guidance established in GJ and others was rejected by the UKUT in KK (Application of GJ) Sri Lanka [2013] UKUT 00512. MP and NT appealed to the Court of Appeal of England and Wales, partially on the allegation that the UKUT did not give appropriate weight to the UNHCR Guidelines. In MP and NT (Sri Lanka) v SSHD [2014] EWCA Civ 829, the Court of Appeal found that the UKUT had adequately justified its adoption of a more restrictive (‘less generous’) standard for who would be at risk upon return to Sri Lanka than that of by the UNHCR. NT’s appeal was allowed (and his case remitted to the UKUT) on the basis of the UKUT’s inappropriate consideration (and lack of consideration) of various facts specific to his particular case, while MP’s appeal was dismissed.

Implications of the Decision

GJ and others has been extensively cited in refugee status determination internationally, both by advocates and by decision-makers (for example, by Australia’s former Refugee Review Tribunal). This is significant because, as noted above, the UKUT adopted a different (and narrower) view of which individuals were at risk in Sri Lanka circa 2013 than that of other sources at that time and since. The decision represents a substantial divergence between observers as to the extent and nature of human rights abuses in Sri Lanka.

This is not only significant for Sri Lankan citizens seeking asylum abroad. Human rights and the treatment of Tamils in Sri Lanka are perennial political issues in Tamil Nadu and in India more broadly. India is home to more than 100 000 Tamil refugees from Sri Lanka (with many Sri Lankan Tamil refugees subsequently travelling from India to other nations), and the treatment of Tamils in Sri Lanka has frequently provoked political comment and controversy in India (particularly in Tamil Nadu). An increasing shift among other nations towards the view that only individuals (like GJ) with substantial ties to the LTTE (sufficient, in their extent, to prompt contemporary perceptions of risk to Sri Lankan national unity) are threatened in Sri Lanka limits India’s ability to push for enhanced protections of the rights of Tamils in Sri Lanka. Similarly, the removal of Sri Lankan asylum seekers back to Sri Lanka increases the likelihood that such individuals may, if still at risk in their home country, try to find safety in India.

Tuesday, April 05, 2016

Research Position on Indian Law at Melbourne


Australia India Institute, Melbourne Law School
Salary: $64,863* - $88,016 p.a. (*PhD entry Level $81,998 p.a.) plus 17% superannuation  
The Melbourne Law School (MLS) and the Australia India Institute (AII) are looking to recruit an excellent scholar in the broad field of 'Law and India' to undertake three years of policy-relevant research on contemporary India as part of a new network of thinkers across Australia. In collaboration with the Director and CEO of the Australia India Institute, Professor Craig Jeffrey, the Director of Research and Academic Programmes of the Australia India Institute, and the Director of the Asia Law Centre (Melbourne Law School) or her nominee, the New Generation Network (NGN) scholar will assist in the research initiatives of the MLS and AII. The appointee will be provided with the opportunity and mentorship to build his or her own research profile. In addition the NGN scholar will collaborate in publications and be involved in AII and MLS research and engagement activities. The scholar will also assist with the co-ordination of relevant symposia and engage in public outreach for MLS and AII. There is an expectation that the NGN scholar will be involved in some Honours / postgraduate teaching, for example in the Asia-focused subjects offered by MLS in its masters and Juris Doctor programs.
The Australia India Institute, established by University Council in 2008, is a national centre of excellence on India-related matters. In the seven years since its establishment, the Institute has wielded significant influence in reshaping and developing relations, perceptions and scholarship opportunities between the two countries. The Institute has developed a strong reputation in foreign policy, research, education and the arts.
The New Generation Network scholar in Law and India reports to the Director of Research and Academic Programmes of the Australia India Institute and to the Director of the Asian Law Centre or her nominee.
The Melbourne Law School is a leader and innovator in legal education, and is a vibrant place of learning that values ideas, excellence and intellectual exchange. Its rich history spans over 105 years.
Close date:  11 May 2016

Tuesday, March 15, 2016

Secretly Signing Away Patent Safeguards: Whither Constitutionality?

A huge controversy has broken out in the Indian patent and public health space. Apparently, the Indian government offered an alleged under-the-table assurance to USIBC (and other US industry groups) that it will not invoke compulsory licenses (CL’s) anymore, save for public non-commercial use. If true, we have a lot to worry about!
Particularly since a CL determination vests largely with the Controller off Patents, a statutory functionary tightly controlled by the government.
I've reflected on this development in the Indian Express (reproduced below). I make the argument that we need to constitutionalise the Patent Office, and ensure that it is vested with enough adjudicatory competence and independence. As also put in place a mechanism for gathering more health/drug data, rather than leaving the onus on compulsory licensing applicants. The piece below benefited greatly from discussions with Balaji Subramanium, Rupali Samuel, Vaneesha Jain, Prashant Reddy and Vivek Reddy. So many thanks to all of them!
Here goes:
“In a dramatic development, US industry groups recently claimed the Indian government offered them a “private” assurance that compulsory licences will not be issued, save in emergencies and for non-commercial purposes.
Needless to state, such an assurance flies in the face of the Patents Act and the public health safeguards enshrined in it. Illustratively, Section 84 mandates that a compulsory licence be granted in favour of third parties, if the patented invention (such as a drug) is excessively priced or not available sufficiently. Relying on this, Natco, an Indian generic manufacturer, applied for India’s first compulsory licence some years ago and convinced the patent office that Bayer’s patented drug for kidney cancer, Sorafenib Tosylate, was excessively priced and available to hardly 2 per cent of patients. In sharp contrast to Bayer’s Rs 2.8 lakh per month price tag, Natco offered to sell its version of the drug at Rs 8,800 per month.
The controller of patents granted a licence upon the payment of a 6 per cent royalty rate to Bayer, ensuring this was not a zero-sum game but one that could potentially benefit the patent owner as well, given Natco’s knack of selling in markets beyond the ordinary purview of the high-priced patented drug. Upon appeal by Bayer, the patent office decision was validated, with some minor modifications in royalty rates. Unfortunately, despite this excellent start to the invocation of an important public health safeguard, no other licence has been granted since.
World over, compulsory licensing is largely a matter of government discretion to be invoked at the government’s pleasure. However, in India, Section 84 makes clear it’s a legal entitlement that cannot be pimped away through private assurances to foreign friends. Rather, the government is obliged to adjudicate each application on merit, donning its robe as a quasi-judicial authority. The patent office must, therefore, be equipped with personnel vested with a fair degree of adjudicatory competence and independence. Unfortunately, the functioning of regulatory authorities, such as the Drug Controller General of India (DCGI), suggests our government’s record in ensuring its statutory agencies’ independence has been far from fair.
In view of the fact that our government is yet to issue a public clarification on this private assurance, one is not sure if it intended to cover compulsory licensing as a whole. Or meant to restrict it to Section 92, a provision enabling the government to notify compulsory licences (of its own accord) on grounds of national emergency, extreme urgency or public non-commercial use. As such, this licensing is distinct from Section 84, and vests the government with considerably more discretion. However, “discretion” doesn’t mean the government can choose to ignore circumstances that warrant the exercise of discretion.
Unfortunately, while the first kind of licence (Section 84) was granted at least once in the past, the government has yet to issue any notification under Section 92. Even as the health ministry appeared keen on triggering this safeguard for a range of cancer cures, the commerce ministry played spoilsport. It sent a long list of questions asking for “data” on various aspects of the cancers/ numbers of patients, etc.
This seemingly sound list belies a glaring gap in our public health machinery. A lot of health data is difficult to come by, given that they reside in the sole possession of private parties like hospitals, pharmacies and drug companies. Consider cancer, a near epidemic now. Till date, there’s no Central law mandating disclosure of data on patients, treatment methods, drug pricing, etc.
Interestingly, the same data deficit was used by the government to deny the most recent compulsory licensing application under Section 84 to Lee Pharma, which bid for a licence against AstraZeneca’s Saxagliptin, a patented anti-diabetic drug. One finds it paradoxical that the only authority with the legal legitimacy to collect and publish health data transfers this onus to private applicants.
If serious about its constitutional commitment to good health, the government must immediately formulate a legal framework to compel private parties to disclose drug and disease data. More importantly, it must ensure quasi-judicial authorities (the patent office) remain relatively independent and are infused with sufficient training to ensure a fair, impartial and competent dispensation of justice.
Unfortunately, this government appears more keen on the private than the public, preferring trade to health, nepotic control over regulatory independence, and American patents over Indian patients. It’s a trade-off likely to only create more misery in India.”
ps: For more reading on this, see Amit Sengupta’s powerful and well researched piece here.
pps: Image from here

Sunday, March 06, 2016

(Re)Booting the Bar: Barbs, Bribes and a Bar Exam

In a post some years ago, I reproduced a letter that I'd written to the then Chairman of the Bar Council, Gopal Subramanium (a leading senior counsel, whose prodigious talent I had the great privilege of witnessing first hand in the hugely controversial DU Photocopying case). 

I noted then that the Bar Exam (about to be unleashed for the first time on unsuspecting law students) was on shaky legal ground, given that it lacked statutory backing. Here are some extracts:

"Thirdly, and perhaps most importantly, the V Sudeer case (V. Sudeer v. Bar Council of India, AIR 1999 SC 1167) does not appear to permit a bar exam by the BCI (Bar Council of India) without an amendment to the Advocates Act. In Sudeer, the court categorically held that any additional eligibility criteria for the practice of law over and above what was mentioned in Section 24 of the Advocates Act was unconstitutional. Particularly if such additional criteria amounted to either a bar exam or a training of some sort, since the power to mandate such exams/training was expressly taken away via an amendment in 1974 to the Advocates Act. As you are no doubt aware, in the light of the 1974 amendment, once a student legitimately cleared his or her exams at a recognized University, he/she was entitled to enrol in a state bar council and practice before any court of law, without having to undergo training or take an exam of any sort.

Therefore, if such an exam needs to be conducted by the BCI, it can be done only through a legislative amendment. The court in Sudeer stressed that an enrolment comes with an automatic right to practice—subject to conditions of practice framed by BCI, High courts and the Supreme Court.

Therefore, the BCI cannot, in my personal view, attempt to pass off a bar exam as a “condition of practice”, since such an exam would effectively emasculate the concept of enrolment i.e. enrolment is meaningless without the right to practice. In short, the court is likely to see this cleverly crafted condition of practice as nothing more than a camouflaged “pre-enrolment” condition, a condition that the BCI has no authority to impose under the present statutory scheme."

Livelaw now reports that this issue has returned to haunt us, with the Supremes casting some doubt on the legality of the exam. They've appointed KK Venugopal as amicus curiae (a leading senior counsel and one of our finest; fortunate to have him represent me in the CLAT reformation PIL, which unfortunately has been at the receiving end of delays, and demoted by the SC registry several times in the recent past to future "listing" dates. Strange really, given that the court was initially keen on expediting the matter).

The challenge to the legality of the bar exam is not a new one. Indeed, the present proceeding at the Supreme Court comes out of a challenge filed way back in 2008 in the Bonnie FOI case (see this piece in Legally India that documents the various proceedings that led up to the present Supreme Court hearing).

However, what has changed are the circumstances, thanks to an allegedly anti-national barb by Kanhaiya Kumar and the barbaric booting he consequently bore at the hands of supposedly nationalistic lawyers. In the true spirit of realist jurisprudence, this has no doubt impacted the courts' perception of the profession and the need for robust entry level filters such as the "bar exam". My own guess is that courts may have been reluctant to block the bar exam earlier, owing to the stellar status of Gopal Subramanium and the gravitas that he commanded. However, now that our beastly bar has kicked Kanhaiya and his kin and lowered itself in the eyes of the court (and the country), the court may not defer as much. Add to this other factors such as bribes and a dodgy tender by the Bar council to conduct the Bar Exam and you can see why "deference" to a learned Bar will be the least of the courts' worries/constraints. 

Striking down the legality of the exam will not however mean that the court offers a free run for all 50,000 law graduates from the 1000 odd law schools each year. Far from it! From the nature of oral arguments in court this past week, it is clear that the court is keen on formulating an optimal entry level filter for the profession. As noted in this Livelaw piece:

"What has happened to the noble profession and the lawyers? Fall in standards is visible. It is time we introspect, raise the standard, look what is happening around us..Some advocates are agitating, some are stoning, some are firing and very few are arguing” the CJI said in an apparent reference to the violence indulged in by lawyers recently at the Patiala House Courts on two days when JNU sedition case accused Kanhaiya Kumar was being produced."

At this stage, one is not sure as to how the court will canvass this concern for cleaning up the profession, while being mindful of the potential illegality of the present bar exam. If it does find the exam to lack statutory backing, could it direct the government to amend the Advocates Act? Or may it only suggest so? 

The time is also ripe for bringing back our discussion on the competence of the Bar Council to regulate legal education, something that has generated a fair bit of controversy in the past. 

In a rather dry and elaborate paper, I've argued (along with Sroyon Mukherjee) that the BCI has no competence to regulate legal education as a whole, but should restrict itself to the narrow space that lies at the interface of legal education and the practice of the profession i.e. aspects of legal education that are intrinsically connected with the practice of law at the Bar (the "bar exam" would nicely fall into such a slot).

In a previous post on this blog, Nick Robinson, while highlighting an op-ed by Sudhir Krishnaswamy, rightly noted that a Bar Exam may in fact offer more freedom to law schools to avoid the stranglehold of BCI interference. 

Interesting times ahead for the regulatory landscape around Indian legal education and the profession! Watch this space for more!

ps: image from here.

Friday, March 04, 2016

Does Sympathy Colour (Judicial) Policymaking and the Rule of Law?

Identified Lives versus Statistical Lives

In Andy Weir’s book, The Martian (recently adapted into a Ridley Scott movie, starring Matt Damon), the lead character, an astronaut named Mark Watney, is stranded alone on the planet Mars. Back from planet Earth, the National Aeronautics and Space Administration (NASA) coordinates the rescue effort. Mark Watney wonders: “The cost for my survival must have been hundreds of millions of dollars. All to save one dorky botanist. Why bother?”. Good question! The same hundreds of millions of dollars could have been used in a more cost-effective manner, to save thousands of other lives. The answer is in a classic essay entitled “The life you save may be your own” (1968), where Tom Schelling quipped:
“Let a 6-year-old girl with brown hair need thousands of dollars for an operation that will prolong her life until Christmas, and the post office will be swamped with nickels and dimes to save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will deteriorate and cause a barely perceptible increase in preventable deaths - not many will drop a tear or reach for their checkbooks.”
The 6-year-old brown haired girl is an “identified” life, and the lives of those in the hospitals are “statistical” lives. In other words, the United States Government (and the NASA) fell victim to the identified life bias: where humans are inclined to favour or assist identified lives over statistical lives although the latter may face similar or greater harm. This bias operates at every level of policymaking and social planning, to such an extent that the implications are labelled “statistical murder”. It leads to a focus on treatment instead of prevention, ignorance of high opportunity costs, and sub-optimal allocation of resources. Psychological research has shown that the bias stems from sympathy.

The Identified Life Bias in Litigation

In this essay, I will focus on the application of the identified life bias in litigation, more specifically in cases of social rights enforcement. In a recent book, Identified versus Statistical Lives: An Interdisciplinary Perspective, a chapter on identified lives and statistical lives in US civil litigation by Professor Glenn Cohen argues that doctrines such as standing and ripeness in US procedural law have excluded statistical lives from the litigation space. ‘Standing’ requires the plaintiffs to show that an ‘injury in fact’ has been suffered. In City of Los Angeles v. Lyons, for example, an African-American plaintiff sought an injunction on the use of chokeholds by the police except in cases of imminent danger. The plaintiff had been choke held before; and was seeking an injunction with respect to future cases. The Court held that the plaintiff lacked standing. In other words, although “he was an identified victim of the past chokehold, he was only a statistical victim of the future one”. Same is the result with respect to cases of environmental law protection. The ‘ripeness’ requirement is such that Courts do not adjudicate cases unless the facts have sufficiently matured. This again tends to exclude statistical lives since such cases are usually speculative and probabilistic in nature. Professor Cohen argues that class action suits are a middle-ground where an identified life litigates on behalf of himself or herself, as well as on behalf of a number of statistical lives. The message is simple. The judiciary, also a policymaking institution, is biased in favour of identified lives by virtue of the rules of litigation procedure.

In India, at least in the superior judiciary, the scenario is different. The reason is that rules of standing in the constitutional courts have been significantly relaxed owing to the evolution of Public Interest Litigation (PIL). The evolution of PILs in India have led to relaxed rules of standing, which enables public spirited citizens to file cases on behalf of “marginalized and deprived” sections of society for the enforcement of their fundamental rights. By its very nature, the PIL system brings cases of statistical life into its inclusionary fold.

The Bias as Applied in Social Rights Adjudication

My argument is this essay pertains more specifically to cases of social rights. As opposed to civil-political rights, social rights involve judges making decisions regarding resource allocations. Judges then play a role that is markedly similar to that of a planner and policymaker.  Since the State has only limited resources to be allocated, they must essentially be rationed to all members of the State. In case of constitutionalized or statutory social rights, petitioners can directly approach the constitutional courts to question (or seek) resource allocation decisions. Let us take an example. In Mohd. Ahmed (Minor) v. Union of India, the Delhi High Court was approached by a minor child. The issue was:
“whether a minor child born to parents belonging to economically weaker section of the society suffering from a chronic and rare disease, gaucher, is entitled to free medical treatment costing about six lakhs per month especially when […] there is every likelihood of petitioner leading a normal life”.
This is a classic case of a litigation involving an identified life. The Court, being sympathetically moved by the identified life (akin to Schelling’s example of a 6-year-old brown hair girl), is likely to opt for a rescue intervention while disregarding or not considering the high opportunity cost (the same amount can be used for more cost effective preventive measures).[1] This was precisely the result: the Court directed the Delhi Government to provide the treatment free of charge.

This case is illustrative of a broader problem in social rights adjudication. As C├ęcile Fabre points out, it is “virtually impossible” to determine whether an individual’s social right has been violated: judges are not competent (term of art) to compare different permutations and combinations of resource allocations. Assuming limited availability of resources, the Delhi High Court’s decisions may well have denied another party (not before the Court) the benefit of the directed resources. This problem is profound. As Frank Cross argued, since litigation is costly and time-consuming, the “economics of rights enforcement” is such that “haves” and “repeat players” have a distinct advantage over “have-nots” and “one-shotters”. In such a situation, the identified life bias has the potential to cause deep injustices. Thus, a middle ground solution, as Fabre suggests, would be to allow only group actions[2] in social rights cases. This will ensure that the identified life bias does not cause social rights violation towards the vast statistical lives.

Summing Up

To sum up: the identified life bias affects all humans, including policymakers. Judges are also important policymakers. The procedural rules of litigation compound this bias by excluding statistical lives. In India, PILs have, to an extent, corrected this problem by bringing statistical lives into the litigation fold. This leeway created by PILs may valuably utilized in social rights cases, where the identified life bias is especially bound to cause pervasive (and unseen) injustices.

A general caveat is that this is analysis follows only one analytical approach, and is only one view of the cathedral. I acknowledge that there are several competing considerations that may affect resource allocations.

[1] In the United States of America and the United Kingdom, for instance, there is plenty of debate regarding the funding of cancer death postponing drug Ipilimumab, which costs the Government huge amounts of money.
[2] One alternative would be to allow individual actions, but group remedies or two-track remedies (i.e., individual relief as well as a group remedy). But even this might tie judges to an identified life bias and may affect the given remedies.