NonAlignment 2.0

A leading group of intellectuals, analysts, and policy makers - Sunil Khilnani, Rajiv Kumar, Pratap Bhanu Mehta, Lt. Gen. (Retd.) Prakash Menon, Nandan Nilekani, Srinath Raghavan, Shyam Saran, Siddharth Varadarajan - have released "NonAlignment 2.0: A Foreign and Strategic Policy for India in the Twenty First Century". The report was released two days ago in New Delhi, and a distinguished panel of speakers and guests commented on the publication, including, Shri M. K. Narayanan, Hon’ble Governor of West Bengal; Shri Brajesh Mishra, former National Security Advisor; Shri Shivshankar Menon, National Security Advisor.

"NonAlignment 2.0 is an attempt to identify the basic principles that should guide India’s foreign and strategic policy over the next decade. The purposes of this strategy document are three-fold: to lay out the opportunities that India enjoys in the international sphere; to identify the challenges and threats it is likely to confront; and to define the broad perspective and approach that India should adopt as it works to enhance its strategic autonomy."

The report can be downloaded here: http://www.cprindia.org/workingpapers/3844-nonalignment-20-foreign-and-strategic-policy-india-twenty-first-century; as well as here: http://www.kcl.ac.uk/aboutkings/worldwide/global/indiainstitute/index.aspx

"Do Not Disagree"

I saw this well written piece by Pratap Bhanu Mehta in today's Indian Express on the Prime Minister's allegations surrounding foreign funding of NGOs agitating around Bt cotton and nuclear power. As a foreigner (and American) I do not feel I can comment on this debate much without sounding self-serving .

That said, the controversy over foreign funding of NGOs, the internet censorship debate, and the inability of the state to provide a safe space for Salman Rushdie to visit India has certainly created a mood where there is a feeling that free speech is under siege in India. This concern seems to have gained some traction within the middle class, and certainly the South Delhi consensus seems to be tilting in regard to this government. I am curious whether the Supreme Court will see this as an issue where it has new found political capital to push more aggressively as it did in the anti-corruption debate. Of course, the Indian judiciary is well known for its contempt orders to deter criticism directed at its judges, and so might not immediately be seen as a natural free speech ally. That said, recent allegations of corruption against the judiciary didn't stop the Court from entering the anti-corruption fray.

Harvard Law School Global Legal Education Forum

I wanted to bring to your attention this exciting conference at Harvard Law School later this month!

Global Legal Education Forum

Harvard Law School

March 23-25, 2012


Conference Organizers:

Harvard Law School S.J.D. Students Association


The aim of the Global Legal Education Forum is to develop a thicker understanding of
the intellectual and professional trajectories of contemporary legal education reforms,their implications for global and national elite leadership, the potential distributive effects for law schools that lack the resources to “go global,” and the distinctiveness of these reforms relative to other disciplines. The Global Legal Education Forum will convene HLS S.J.D. Alumni, law school deans, law professors, legal practitioners,law students and graduate candidates, as well as academics from other disciplines.

Themes for discussion at the Forum will include:

• What is a “global law school” and who is a “global lawyer”?
• Setting the Agenda: What is the purpose(s) of legal education?
• Teaching across systems and borders: Comparative and Transnational Business
Law, Public Law, and Private Law
• Methods of Learning and Engagement: Technology, Language and Clinical
Legal Education
• Methodologies for Global Legal Thought
• Educational Innovation in the Global South and North

Please visit the Harvard Law School SJD Association website for a complete program and speaker information: www.harvardsjd.org

For further details on the Forum, please contact: hls.sjdassociation@gmail.com

Article 19(1)(c) Amended

The text of the 97th amendment to the Indian constitution, which makes the right to form cooperative societies a fundamental right under Article 19(1)(c) [now, the right to form “associations or unions or cooperative societies” (emphasis supplied)] is now available here. The amendment also inserts a new directive principle into Part IV of the constitution, Article 43B, which reads: “The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies”. The website says that the amendment came into force on January 12, 2012 (the date of assent).

The Seniority Norm

Once appointed to the court, Supreme Court judges in India enjoy security of tenure. They cannot be removed except by a strenuously difficult impeachment process, their tenures cannot be shortened or renewed, and their salaries cannot be altered to their disadvantage. For this reason, the second and third “Judges Cases” arguably did more for the structural independence of the judiciary in the High Courts, than for Supreme Court judges. Between 1973-78, the government tried to tamper with this independence by interfering with the “seniority norm” on the Supreme Court of India and superseding judges. Supersessions were used to punish judges who had decided against the government by overlooking them for promotion to the post of Chief Justice of India. The seniority norm has been obeyed ever since, and is a vital unwritten norm which safeguards the independence of the judiciary.

In a paper published in this week’s issue of the Economic and Political Weekly, I examine the historical origins of the seniority norm, and find that there was only weak evidence of its existence before the creation of the Supreme Court of India. In the 1950s, the successive appointment of six Chief Justices of India by the seniority norm was an aberration that had little historical precedent, and the seniority norm is probably a contemporary development.

Foreign Law Firms

The order dated February 21, 2012 issued by a Division Bench of the Madras High Court, in the case of A.K. Balaji v. Government of India, spells out what foreign law firms can and cannot do in India. The court stated the issue in paragraph 44 of the order:

“[W]hether a foreign law firm, without establishing any liaison office in India visiting India for the purpose of offering legal advice to their clients in India on foreign law, is prohibited under the provisions of the Advocates Act. In other words, the question here is, whether a foreign lawyer visiting India for a temporary period to advise his client on foreign law can be barred under the provisions of the Advocates Act.” (emphasis supplied) In a nutshell, the court answered the question in the negative. In other words, foreign law firms can: (1) send their lawyers to India for temporary periods of time, (2) to advise their clients on foreign law, and (3) without establishing a liaison office in India.

What is permitted?
(1) Advice on foreign law/diverse international legal issues, while temporarily in India: “In the light of the scheme of the Act, if a lawyer from a foreign law firm visits India to advice (sic) his client on matters relating to the law which is applicable to their country, for which purpose he ‘flies in and flies out’ of India, there could not be a bar for such services rendered by such foreign law firm/foreign lawyer.” [paragraph 59] The advice could pertain to “foreign law” or to “diverse international legal issues” [paragraph 63(ii)]. This includes taking part in negotiations and settling up documents in India [paragraph 51]. “The corollary would be that such foreign law firm shall not be entitled to do any form of practice of Indian Law either directly or indirectly.” [paragraph 60].

(2) Conducting International Commercial Arbitrations: “[F]oreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.” [paragraph 51, paragraph 63(iii)]

(3) Miscellaneous: “Some of the companies have been carrying on consultancy/support services in the field of protection and management of intellectual, business and industrial proprietary rights, carrying out market surveys and market research and publication of reports, journals, etc. without rendering any legal service, including advice in the form of opinion, but they do not appear before any courts or tribunals anywhere in India. Such activities cannot at all be considered as practising law in India.” (emphasis supplied) [paragraph 51]

In short, it appears, for example, that foreign transactional lawyers can visit India temporarily and negotiate/draft share purchase agreements, or work as international counsel for securities offerings.

Delhi Law Review: Call for Papers

Delhi Law Review: Call for papers

Delhi Law Review (DLR), one of the oldest law journals in India and a publication of Faculty of Law, University of Delhi, invites articles,papers, case notes, book reviews and essays from academicians, independent researchers, practitioners and students for its forthcoming edition to be published in July, 2012. The contribution may be on any contemporary legal issue.  Biographical information of the contributor should be provided on a separate page. Regarding the style of referencing,  citations must conform to standards laid down in The Bluebook: A Uniform System of Citation (18th ed. 2005). 

A soft copy of the submission must be emailed to delhilawreview.editor@gmail.com with the subject ‘Submission for DLR 2012.’

Those contributors whose submissions are selected for publication shall be informed as soon as the selection process is completed. Contributors are requested to submit only original work which is not under consideration with any other publication.

The last date for submission is March 15, 2012. No submissions will be considered after this date.

For further clarification regarding entries for the edition or any other subject matter, please feel free to contact the Editorial Team at the previously mentioned email address under the subject 'DLR Entry Clarification'.

Guest Post by Anirudh Burman on "Nuclear regulation: Broader issues for regulation in India"

This blog recently posted an article titled “’Autonomy’ of nuclear regulator: The ideal and the reality”. The article contained an important critique of the so-called institutional autonomy of the nuclear regulatory framework in India. Some issues highlighted in the piece deserve greater consideration. This is because our nuclear regulatory framework epitomizes what is endemic to the institutional frameworks of many other regulators in India: lack of independence, accountability, and transparency.

Independence does not necessarily imply a total cleavage from the executive and legislative wings. However, I think we can agree that budgetary independence, discretionary independence, and an independent composition are minimum standards for an independent regulator. Budgetary independence assumes importance in light of the oft-debated experience of many regulatory agencies in the US where partisan legislatures keep increasing or decreasing their annual budgets. This has significant repercussions in their capacity to enforce compliance with regulations.

Discretionary independence and composition are linked to the issue of accountability as well as independence. Mr. Reddy highlights for example the fact that all members of the AERB were composed of members of the DAE and BARC. While independent composition is desirable, we must consider who it is we want regulators to be independent of. In the nuclear sector, all operators of nuclear plants are state-owned, so a case may be made for the AERB to consist of members who are not, and have not been members of the state machinery. Practically however, this outcome would be difficult to achieve given the state’s monopoly in the sector.

However, for many other regulators such as IRDA, TRAI and SEBI (civil aviation as well), it would be equally desirable to not have members of the private sector i.e. those who have conflicting interests with regulatory objectives serving on these regulatory agencies. The issue is however more complex. It can be argued for example, that a regulatory agency composed of members from the government as well as the private sector may actually be able to create a more cogent regulatory framework than one composed of members only from the government or the private sector. The issue of composition is therefore important, but having independent members does not in itself create a better regulatory framework. It may resolve conflicts of interest and satisfy precepts of natural justice, but in many cases, it may also compromise expertise.

Discretionary independence and accountability is of critical importance to a sound regulatory framework. While most legislation establishing statutory regulators detail the composition, and the powers and functions of regulators, they do not mention their relationship with the executive and the legislative wing. It is especially important to do the latter since Parliament hardly exercises any substantive policy formulation or oversight over regulatory agencies. The executive however shapes regulatory policy, often overrules decisions of regulators, and is the de facto controller of a regulator’s purse strings.

It is important that regulatory agencies be attuned to the broader policy objectives of the government and frame regulations to enforce market compliance with the same. So some amount of political accountability to the ruling government is necessary to ensure the fulfillment of a democratic mandate. At the same time, regulatory independence is necessary to ensure fair play and competition. If the relevant ministry keeps overruling a regulatory agency on individual decisions, it may induce those being regulated to indulge in rent-seeking activities, thus undermining the role of the regulator.

Lastly, who and what we want independent regulators for has to be thought about deeply. In the nuclear power generation sector, we have the AERB touted as an independent nuclear regulator. However, NPCIL, a wholly owned enterprise of the government owns and operates most, if not all the nuclear power plants in India. An independent regulator makes institutional sense if there is a multiplicity of competing players who need to be regulated to ensure the operation of an efficient, competitive and safe nuclear industry. In the absence of multiple actors, the need for an independent regulator is less clear. The IAEA may insist on an independent regulator to ensure the safety of India’s nuclear plants, and an autonomous body is essential to ensure the same. However, regulation of a sector, and ensuring safety are two very different policy objectives that need different institutional designs.

Guest Post by Anup Surendranath: Anti-Cow Slaughter Legislations: The Curious Case of the Prohibition on Possessing Beef

The recent Presidential assent for the 2010 Madhya Pradesh Govansh Vadh Pratishedh (Sanshodhan) Adhiniyam (notified on 31 December 2011 in the M.P Extraordinary Gazette No. 594 and hereinafter referred to as the ‘2010 M.P law’) has invited a lot of attention and the provisions in the Act on the burden of proof, powers of arrest and quantum of punishment particularly so.  The Frontline, in its latest edition, carries an article on the above issues and refers to Madhya Pradesh’s (M.P) legislation being unique in its ban on the consumption of beef. In this post I engage with the ban on possession and consumption of beef and will argue that M.P’s model of banning possession and consumption is likely to pass constitutional muster whereas wider bans in Gujarat’s anti-cow slaughter law and Karnataka’s draft bill might well be unconstitutional.  

 s.5 of the 2010 M.P law provides that “No person shall have in his possession or shall transport beef of any cow progeny slaughtered in contravention of the provisions of this Act.” I do not think the claim that M.P’s ban is unique is entirely accurate. s.8 of the Delhi Agricultural Cattle Preservation Act, 1994 also contains a similar prohibition on possession on flesh of cattle slaughtered in contravention of that Act.  The model of prohibition invoked in the laws legislated by M.P and Delhi is limited to possession of meat that is procured as a result of a slaughter that is in contravention of the Act as opposed to a much wider and general prohibition on beef per se. This narrower model is likely to pass constitutional muster because it is in tune with the justificatory framework for anti-cow slaughter laws accepted by the Supreme Court. States have claimed and been allowed the legislative power to prohibit cow slaughter on grounds of protecting agricultural interests in the State under List II and therefore a ban on possessing beef procured in contravention of such a legislation would seem justified.

However, what would clearly be unconstitutional is a much wider ban on the possession of beef per se as provided for in s. 6B of the Gujarat Animal Preservation (Amendment) Act, 2011 and also in Karnataka’s 2010 anti-cow slaughter bill awaiting Presidential assent. Given that main argument for anti-cow slaughter legislations has been to safeguard the right of individual States to further their agricultural interests as they deem fit, there is no reason why the people in Gujarat or Karnataka cannot possess and consume beef imported from States where cow slaughter is permitted. Since such an import of beef does not interfere with Gujarat’s right to promote agriculture by preventing the slaughter of cow within its boundaries, there is no nexus between the scope of the ban and the purpose of the legislation.

Starting with Mohammad Hanif Quareshi v. State of Bihar (1958), the Supreme Court had maintained the position that a complete ban on cows was constitutional but a complete ban on the slaughter of bulls and bullocks, irrespective of their age and utility as breeding or draught cattle was unconstitutional. The Court partially reversed this position when a 7-judge bench upheld a complete ban on the slaughter of bulls and bullocks in State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005). Despite this change in position, the agricultural interests of the State concerned remained the underlying rationale for such a ban. In all anti-cow slaughter legislation cases, there is a clear acknowledgment that States have the freedom to decide the treatment of cattle taking into account factors like availability of fodder, fodder potential of the terrain, and contribution to agriculture of such cattle. Given the geographical diversity in India, it would be absurd to imagine that all States would come to the same conclusion on evaluation of such factors and therefore the BJP’s suggestion of a national law against cow slaughter hardly makes any sense. Consuming beef procured from a State where cow slaughter is permitted cannot be seen as interfering with another State’s legitimate aim of protecting cattle for agricultural purposes.

In legal terms, no State has attempted to protect cattle as important religious symbols and the absence of such a discourse indicates the complex and problematic nature of that argument in constitutional law. The legal and political discourse on cow slaughter legislations are carried out on very different terms and using vocabularies that have very little intersection. These increasing attempts to achieve non-secular aims through secular means in the context of cow slaughter comes to a head when States attempt to prohibit possession and consumption of beef per se. It does not fit the existing constitutional discourse on the issue and a ban on cow slaughter invoking religious grounds, rather than agricultural interests, might provide a better basis to attempt a wider ban. I do not think such a ban would succeed even then but it is certainly better than relying on a stretched notion of agricultural interests. Restrictions on the sale of meat on the basis of religious sentiments alone have found favour with the Supreme Court in cases like Om Prakash v. State of U.P (2004) (upholding the ban on the sale of eggs in Rishikesh in addition to the already existing ban on the sale of meat and fish) and Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (2008) (ban on sale of meat in Ahmedabad for nine days during a Jain festival found to be constitutional).  Protection of cattle as a matter of faith is the dominant theme in the political discourse on cow slaughter and its complete absence (at least formally) in the legal discourse has led to absurd results.

NAC to consider universal health care

Tarunabh brought my attention to this article in the Indian Express indicating that two members of the National Advisory Council have initiated a proposal to provide universal health care before the NAC. This is indeed a welcome move but in no way indicates that the government will actually commit to the provision of universal health care.

The article includes the following quote from a senior Health Ministry official, “Universal health coverage as a policy decision is yet to be taken. We are ready to start it on a pilot scale whenever we get the green signal but work on a roadmap can only start seriously when we are clear about the kind of financial commitments the government is willing to make and over what period.”

In a recent post on this blog, referencing my Op Ed on this subject, I had described the current crisis of health service delivery in India and argued in favour of a system of universal health care as a means of addressing it. In the same post, I had noted that 47% of all children in India are underweight and malnourished, a fact which was recently acknowledged by the Prime Minister, though he put the number at 42%. I hope the Prime Minister's recognition of the gravity of the nutrition and health crisis in India will lead the government to act speedily in enacting and implementing universal health coverage for all.

A Dickensian View of Lawyers

An op-ed in this morning's New York Times recalls Charles Dickens' jaundiced views of the law and lawyers. Even today, Dicken's views are a sobering admonition to those of us who practice as lawyers and judges. They remind us that an unquestioning belief in the legal system may not be universally shared especially by the very litigants whose interests it is designed to serve.

Lawyers for Change Fellowships 2012-14: Call for Applications

I wanted to bring to your attention an interesting fellowship opportunity for public interest lawyers called "Lawyers for Change". Please see below information about this fellowship provided by Satyajeet Mazumdar, Programme Anchor for the fellowship.

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Lawyers for Change is a two-year fellowship programme for leadership development designed exclusively for lawyers. The programme is an initiative of Centre for Social Justice, Ahmedabad and ECONET, Pune with support from the Ford Foundation. The programme commenced in December, 2011 with 11 Fellows and is now accepting applications for the next batch scheduled to commence from June 2012.

The objective of the programme is to work with young lawyers and help them build the identity and skills required for Social Justice Lawyering. The programme provides the support and platform which a young lawyer starting practice on social justice issues often lacks. During the two years of the programme, the Fellows will be taken through an intensive capacity building process to use law for fighting exclusion, discrimination, enabling entitlements and to establish herself/himself as a leader in the field of law. This will be done through rigorous training sessions which will be conducted once in every two months. In between training sessions, the Fellows will explore possibilities for legal interventions while working with rights based organizations in different parts of the Country and be connected with the academy electronically.

Applications for the Fellowship are invited from law graduates (LL.B. – 3yr or 5yr course) of top law schools in India and from lawyers who are practicing or intend to start a practice on social justice issues. Students in their final year expected to graduate before June 2012 may also apply. All applicants must be below 32 years of age as on 25th June, 2012. The programme is open only to citizens of India.

Selected candidates will be awarded a fellowship of upto Rs. 16,000 per month. Expenses incurred on books, travel and internet connectivity will be reimbursed upto the limit of Rs. 2500 per month.

Applications for the Fellowship may be sent via email to leaders.law@gmail.com on or before 29th Feburary, 2012. CV of the candidate must be attached to the email. The ‘subject’ field of the email must mention “Application for programme”.

For more information, refer to the brochure of the programme available here or visit the Facebook page here.

SC reiterates the Vineet Narrain limit for impunity provision

In Swamy v Singh, the Supreme Court has reiterated that the 3 month time limit imposed on the grant of governmental sanction under section 19 of the Prevention of Corruption Act 1988 for prosecution of public servants for corruption must be strictly adhered to. This time limit was originally imposed in the Vineet Narrain case.  The Court also said:

27. We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter.  What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction.

This blog has previously commented upon prior sanction or impunity provisions here, here, here and here. Readers may know that although the special impunity clause in s 19 of the PCA applies only to corruption cases, there is a general impunity clause under s 197 of the Criminal Procedure Act, which requires prior governmental sanction for the prosecution of public servants for offences under the Indian Penal Code (for the useful background, see this PRS post). Of course, s 197 was not at issue before the SC, and there was no reason why the court should have extended the 3 month time limit to s. 197 of hte CrPC as well. However, it is unfortunate that in his concurring opinion, Justice Ganguly expressly distinguishes s. 19 of the PCA and s 197 of the CrPC by endorsing an earlier SC authority, which held:

3. The sanction contemplated in Section 197 of the Code concerns a public servant who “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code.

To be fair, Justice Ganguly is pointing out the distinction to repel a different argument offered by the government. But it can surely be used to argue that the 3 month time limit should apply only to corruption cases under section 19 of the PCA, not other crimes under the IPC. Thus, a police officer who is accused of murder in a fake encounter, for example, will continue to enjoy the impunity offered by s 197. Corruption, it seems, is the only crime worth fighting against these days.