Saturday, March 31, 2012
Friday, March 30, 2012
Governance and much more in Modern India
A simply fascinating lecture on governance and much more in modern India by Pratap Bhanu Mehta.
Part I: http://www.youtube.com/watch?v=mySuXPtAMm4
Part II: http://www.youtube.com/watch?v=y9BRYePpqkc
Part I: http://www.youtube.com/watch?v=mySuXPtAMm4
Part II: http://www.youtube.com/watch?v=y9BRYePpqkc
Monday, March 26, 2012
Corruption and Constitutionalism in South Asia
I recently had an article I co-authored with Nawreen Sattar come out in the Fordham International Law Journal entitled, "When Corruption is an Emergency: 'Good Governance' Coups and Bangladesh". With all the talk of corruption in India, I think it is important to remember that many other countries in South Asia, and around the world, have faced similar challenges. Yet, constitutional systems have responded quite differently depending on a number of factors, including the political strength of their military. I do think any understanding of South Asian constitutionalism will eventually have to have a theory of corruption, and anti-corruption efforts, as central to it. That though is another paper. The abstract of this one is below:
The fight against corruption is central to the good governance agenda of development organizations around the world. However, this article argues that anti-corruption efforts in countries with politically active militaries present a paradox: Corruption clearly can undermine democratic institutions, but so can anti-corruption campaigns. Both domestic and international actors are hesitant to point out corruption in the military due to its revered status as the protector of the country. Yet, in not criticizing they help perpetuate an asymmetry in which politicians are seen as corrupt and incompetent, while the military is viewed as disciplined and incorruptible.
This article uses the case study of the Bangladesh 2007-08 military coup–and to a lesser extent, similar recent coups in Pakistan and Thailand–to show how militaries have not only justified “good governance” coups on anti-corruption grounds, but used charges of corruption to carry them out. It further argues that although good governance rhetoric is potentially destabilizing to democracy in these countries, it can also empower the judiciary, as the military seeks out judicial validation to show that it is providing better, and in many ways more “legal,” governance than civilian politicians. The article ends by calling on anticorruption advocates to adapt a more politically savvy strategy that does not ignore military corruption and focuses on institutions, processes, democratic elections, and consistent prosecution of low-level actors.
The fight against corruption is central to the good governance agenda of development organizations around the world. However, this article argues that anti-corruption efforts in countries with politically active militaries present a paradox: Corruption clearly can undermine democratic institutions, but so can anti-corruption campaigns. Both domestic and international actors are hesitant to point out corruption in the military due to its revered status as the protector of the country. Yet, in not criticizing they help perpetuate an asymmetry in which politicians are seen as corrupt and incompetent, while the military is viewed as disciplined and incorruptible.
This article uses the case study of the Bangladesh 2007-08 military coup–and to a lesser extent, similar recent coups in Pakistan and Thailand–to show how militaries have not only justified “good governance” coups on anti-corruption grounds, but used charges of corruption to carry them out. It further argues that although good governance rhetoric is potentially destabilizing to democracy in these countries, it can also empower the judiciary, as the military seeks out judicial validation to show that it is providing better, and in many ways more “legal,” governance than civilian politicians. The article ends by calling on anticorruption advocates to adapt a more politically savvy strategy that does not ignore military corruption and focuses on institutions, processes, democratic elections, and consistent prosecution of low-level actors.
Friday, March 23, 2012
India's First Compulsory Licensing Order
India's first compulsory licensing order in the post TRIPS patent era garnered more attention than one might have expected.
The NY Times reported it, as did a host of other renowned papers, journals and periodicals.
KEI (Knowledge Ecology International) has a very useful web page documenting its take on the decision, as also all articles/pieces that have reviewed the decision so far. Jamie Love, the founder of KEI had filed a very potent affidavit before the Controller General of Patents poking several holes in Bayer's estimated cost of 1.8 billion dollars for its patented cancer drug (Nexavar).
The Hindu ran an excellent editorial on the issue by Ananthakrishnan, where he notes:
"Mere application of the test of reasonable price in a country with a weak social health insurance infrastructure provides a strong argument for compulsory licensing in the case of Nexavar, the patent for which is held by the German multi-national company, Bayer. At present a month's treatment regime of 120 tablets costs Rs.2.84 lakh, but manufacture under compulsory licensing will slash it to Rs.8,880. The Indian applicant has been granted the licence till the expiry of the patent in 2021.
The use of compulsory licensing is bound to raise the temperature in the pharmaceutical industry and be dubbed a move that will stifle innovation. But that would be ignoring the point that it is perfectly legal, and is in fact provided for in the patents regime to balance public interest and corporate profits."
I summarised the text of the 63 page order in this piece in the Indian Express and extract the key portions below:
"In August 2011, Natco, an Indian generic manufacturer, had applied for a compulsory licence in respect of Bayer’s patent covering an anticancer drug, sorafenib tosylate, meant for patients with advanced kidney and liver cancer.
A compulsory licence is a legal instrument designed to force intellectual property owners to license out their statutorily granted right to interested third parties capable of manufacturing the patented product at cheaper prices.
....Constituting what many regard as a textbook case for compulsory licensing, Controller General of Patents P.H. Kurian found that all the grounds prescribed in Section 84 of the Indian Patents Act for the issuance of a compulsory licence had been met:
One, Bayer supplied the drug to hardly 2 per cent of approximately 88,000 patients who required the drug. Therefore, the reasonable requirements of the public with respect to the patented drug (Nexavar) were clearly not met.
Two, Bayer’s pricing of the drug was excessive and did not constitute a “reasonably affordable” price. It charged Rs 2.8 lakh for a month’s supply of the drug, whereas Natco was willing to supply the same quantity at Rs 8,800 a month.
Three, since Bayer did not manufacture reasonable quantities of the drug in India, it could not be said to have complied with the “working” requirement under the Indian Patents Act.
...The order marks a watershed in the history of Indian patent law and in many ways represents a “middle path” in the debates surrounding pharmaceutical patents and access to affordable drugs. Patents may now be more palatable to critics, if their worst monopoly effects can be successfully moderated through instruments such as compulsory licensing.
....Although this order marks an important victory for patients and activists who are fighting on their behalf, it is only the beginning. Much more needs to be done, particularly by the Indian government.
For one, the government cannot simply sit back and let innovators and generics slug it out, hoping that lower generic prices would necessarily redress our public health concerns. Illustratively, one simply needs to turn to the fact that Natco’s version of Bayer’s patented drug will sell at Rs 8,800 per month. Given that a sizeable proportion of Indians live below poverty line, how many of our patients can afford even this lower generic price?
The government must step in and take proactive measures to ensure accessible healthcare for all. It should facilitate robust insurance schemes, where health coverage extends to the poorest of the poor. Only then will our right to good health translate from paper to practice for the aam admi."
The NY Times reported it, as did a host of other renowned papers, journals and periodicals.
KEI (Knowledge Ecology International) has a very useful web page documenting its take on the decision, as also all articles/pieces that have reviewed the decision so far. Jamie Love, the founder of KEI had filed a very potent affidavit before the Controller General of Patents poking several holes in Bayer's estimated cost of 1.8 billion dollars for its patented cancer drug (Nexavar).
The Hindu ran an excellent editorial on the issue by Ananthakrishnan, where he notes:
"Mere application of the test of reasonable price in a country with a weak social health insurance infrastructure provides a strong argument for compulsory licensing in the case of Nexavar, the patent for which is held by the German multi-national company, Bayer. At present a month's treatment regime of 120 tablets costs Rs.2.84 lakh, but manufacture under compulsory licensing will slash it to Rs.8,880. The Indian applicant has been granted the licence till the expiry of the patent in 2021.
The use of compulsory licensing is bound to raise the temperature in the pharmaceutical industry and be dubbed a move that will stifle innovation. But that would be ignoring the point that it is perfectly legal, and is in fact provided for in the patents regime to balance public interest and corporate profits."
I summarised the text of the 63 page order in this piece in the Indian Express and extract the key portions below:
"In August 2011, Natco, an Indian generic manufacturer, had applied for a compulsory licence in respect of Bayer’s patent covering an anticancer drug, sorafenib tosylate, meant for patients with advanced kidney and liver cancer.
A compulsory licence is a legal instrument designed to force intellectual property owners to license out their statutorily granted right to interested third parties capable of manufacturing the patented product at cheaper prices.
....Constituting what many regard as a textbook case for compulsory licensing, Controller General of Patents P.H. Kurian found that all the grounds prescribed in Section 84 of the Indian Patents Act for the issuance of a compulsory licence had been met:
One, Bayer supplied the drug to hardly 2 per cent of approximately 88,000 patients who required the drug. Therefore, the reasonable requirements of the public with respect to the patented drug (Nexavar) were clearly not met.
Two, Bayer’s pricing of the drug was excessive and did not constitute a “reasonably affordable” price. It charged Rs 2.8 lakh for a month’s supply of the drug, whereas Natco was willing to supply the same quantity at Rs 8,800 a month.
Three, since Bayer did not manufacture reasonable quantities of the drug in India, it could not be said to have complied with the “working” requirement under the Indian Patents Act.
...The order marks a watershed in the history of Indian patent law and in many ways represents a “middle path” in the debates surrounding pharmaceutical patents and access to affordable drugs. Patents may now be more palatable to critics, if their worst monopoly effects can be successfully moderated through instruments such as compulsory licensing.
....Although this order marks an important victory for patients and activists who are fighting on their behalf, it is only the beginning. Much more needs to be done, particularly by the Indian government.
For one, the government cannot simply sit back and let innovators and generics slug it out, hoping that lower generic prices would necessarily redress our public health concerns. Illustratively, one simply needs to turn to the fact that Natco’s version of Bayer’s patented drug will sell at Rs 8,800 per month. Given that a sizeable proportion of Indians live below poverty line, how many of our patients can afford even this lower generic price?
The government must step in and take proactive measures to ensure accessible healthcare for all. It should facilitate robust insurance schemes, where health coverage extends to the poorest of the poor. Only then will our right to good health translate from paper to practice for the aam admi."
Monday, March 19, 2012
The Julian Assange Case: Assessing the Respondents' Narrative - II
[Continued from Part I]
II. The Context
1. A Dilemma
At the outset we are confronted with a dilemma of sorts: given that our primary focus is on the legal case against Assange, how much weightage should we give to Assange's and Wikileaks's ongoing political battle with the US administration, the outermost layer so to speak? There are some who argue that the two are not connected, and that Assange's persecution derives exclusively from his alleged sexual misconduct. This view is shared by even those who style themselves liberals, such as Kevin Huffman of The Washington Post. Responding to Michael Moore's $20,000 contribution towards Assange's bail, he writes, "Moore asserts that Assange is under attack solely because he had the courage to expose American war crimes . . .. Well, that and allegedly assaulting innocent women (one awake and one asleep)." In the very next paragraph, he goes on to say:
The problem here is that it is inaccurate on two major counts. Assange has not been accused of rape in any formal sense: not till date, and certainly not in 2010 when the article was written (the author himself betrays some confusion on the point, since in the preceding paragraph he describes Assange as allegedlyassulting women). Furthermore, when was the last time America started a "unilateral war" (whatever that means) because its efforts at diplomacy were frustrated by document leaks? Thus Huffman's perspective fails as a general critique of Assange and also, and more important to us, as a justification for separating the legal aspects of the Assange case from the political. In fact he achieves the opposite of what presumably he had set out to do: he focusses attention on the shortcomings of the views he espouses. If the legal basis of the action against Assange is so tenuous, then why at all has it been undertaken? Is it to satisfy objectives that lie beyond the legal, perhaps even in the realm of the political? And equally pertinently, why is there so much misinformation spread about Assange? The very existence of these issues urges a closer look at the political background, if only to serve as the context in which the legal issues should be examined.
2. Official and Unofficial US Stances
The role Assange and his Wikileaks team has played in procuring and disclosing top-secret information in the public interest is well known. By revealing hidden truths on the "war on terror", he inflicted on the American military, security and political establishment arguably more embarrassment than it has ever had to face. The establishment's response has been one of unprecedented ferocity. In 2010, President Obama declared Assange's actions to be "deplorable". Robert Gibbs, then the White House Press Secretary, went on recordsaying "Wikileaks and people that disseminate information to people like this are criminals" (as the reporter wryly pointed out, this amounted to declaring Assange guilty even before charges have been framed). At a press briefing, P. J. Crowley, then Assistant Secretary at the State Department, accused him of pursuing a hidden political agenda and trying to undermine international cooperation. (Ironically, in 2011 Crowley himself resigned as State Department spokesperson over the harsh treatment of suspected Wikileaks source Bradley Manning.)
Not surprisingly, Republican leaders have been even more scathing in their criticism. Newt Gingrich has claimed he is engaging in terrorism; Muke Huckabee reportedly demanded he be given the death penalty. Sarah Palin seems to have gone a step further. According to the Christian Science Monitor, her tweets described Wikileaks's acts as "treasonous", and suggested the administration use "all necessary means to respond to and defeat WikiLeaks." It is not clear whether she considers "all necessary means" to include extra-legal measures such as kidnapping or assassination; however, the statement is certainly suggestive. But this is not to say such egregiousness is restricted to Republicans alone. Without doubt the finest gem I have encountered so far is a statementmade on the Fox Business Show by Bob Beckel, a Fox News analyst close to the Democratic Party: "This guy's a traitor, he's treasonous, and he has broken every law of the United States. And I'm not for the death penalty, so...there's only one way to do it: illegally shoot the son of a bitch." It is difficult to say which idea is more amusing: that illegally killing a person is the right way to deal with a person who has supposedly broken "every law of the United States", or that the moral repugnance associated with lawful execution does not apparently extend to illegal assassination.
In contrast to the strong, at times over-the-top, reactions seen, the response of the US government appears surprisingly low-key. So far, its most visible actions are the dubious expedient of extra-judicially coercing banks and credit card companies into rescinding their contracts with Wikileaks. I had briefly referred to a prevalent contention that even the extradition case comprises a questionable tactic of this nature: the rape and other charges against him are a mere pretext to get him to Sweden, from where he can be extradited or "temporarily surrendered" (or some other euphemism-ed) to the United States. Extradition law experts such as Julian Knowles QC consider this possibility unlikely for a variety of reasons, including procedural issues and the overriding application of Article 10, ECHR and the First Amendment to the US Constitution. Regardless, the question still remains: why would US resort to such underhand tactics in the first place? If its case is anywhere near as strong as the statements in the previous paragraph suggest, then surely it can prosecute its interests in a legitimate manner?
Actually no, that is precisely where the US stance falters. Assange's guilt is still a matter of conjecture. Palin's and Beckel's claims of treason against America are clearly invalid, because treason can be committed only against one's own country, and Assange is a citizen of Australia (even the Christian Science Monitor report on Palin's tweets points this out). A Washington Post articledating back to 2010 points out that prosecution under the Espionage Act, 1917 will be difficult, since subsequent to its passing several Supreme Court decisions have expanded the ambit of First Amendment protections. Secondly, the documents leaked by Wikileaks have been published in several mainstream newspapers: hence "How do you prosecute Julian Assange and not the New York Times?" Notwithstanding these problems, the Post article reports several sources including Attorney General Eric H. Holder as saying investigations are ongoing and charges could be filed under the 1917 Act. That was two years ago. Till date, the US administration has neither formally instituted proceedings against him, nor even issued any authoritative statement as to which legal provisions he is supposed to have violated.
Recent reports, however, indicate US government lawyers have not only prepared a secret indictment, but have also convened a secret grand jury (see Dorling, Suroor). (Ironically, this information comes to us through further Wikileaks revelations.) If true, it only makes us wonder what purpose this cloak-and-dagger act is intended to serve. A possibility is that the indictment is based on grounds so weak that straightforward extradition requests based on it might not succeed. It might be speculated that this is also the reason behind the extraordinarily convoluted strategy of extraditing Assange first to Sweden and then to America, and then finally prosecuting him. Possession is truly nine-tenths of the law. In any case, the secrecy behind the indictment only succeeds in lending credence to theories that the rape charges are actually intended to get him to the United States.
3. The Justifications
From this increasingly murky scenario, we can identify two different sets of claims. The first restricts itself to the parameters of the law. It seeks that Assange should be executed, or at least severely punished; this necessarily presupposes Assange's acts are punishable under US law. The second postulates that regardless of what the law says, whatever Assange has done is just plain wrong, and he should be punished for it even if it means going beyond the ambit of the law. Though the two appear distinct, the space between the two is filled with several intermediate positions, comprising blends of the legal and the extra-legal in varying proportions. The preparation of a secret indictment suggests rendering Assange to US through indirect means, and then prosecuting him under law once he arrives in America. A variation on this theme entails trying him in secret, where he may possibly be denied certain due-process rights defendants are usually invested with in criminal trials. How far this is possible is a moot question, since Assange is not a member of the US military, and is therefore subject to the jurisdiction of civilian courts.
The character of the claims determine the justification they require. Those claims that restrict themselves to within the law must derive justification through the law. Those that recommend extra-legal measures must establish that the concerned acts are so heinous as to render extra-legal measures ethically and morally acceptable if legally doubtful. This may be applied mutatis mutandis to hybrid claims also; each separate element within the claim will then need to be justified according to its legal or extra-legal character. It is not necessary to go into the specifics of this issue. All we need to acknowledge is that justifying any action against Assange comprises an onerous task. And secondly, notwithstanding these difficulties, it is necessary in the interests of free society for state and international agencies to justify their actions in this manner. Doing otherwise will only validate Pilger's comment on descending into totaliarianism.
As against this, how much substantiation has actually been provided in the Assange matter? Here we encounteer several problems. How do you justify secret indictments or extradition arrangements? Official sources cannot do so, for they are, well, secret and hence cannot be acknowledged. Others are also handicapped by this secrecy, because they must justify not only the indictments and other measures, but also the secrecy behind them. Official and independent commentators alike are impeded in justifying legal measures generally: one cannot justify legal action unless it is known what crime Assange is charged with. Attempts like Marc Thiessen's 2010 article are typical. He begins by asserting: "Let's be clear: WikiLeaks is not a news organization; it is a criminal enterprise." Just two sentences later the assertion trails off into weasel-words and equivocations: "These actions are likely a violation of the Espionage Act, and they arguablyconstitute material support for terrorism." (emphasis added)
Then come justifications rooted not in law but in certain facts perceived as wrongs in themselves regardless of legal backing. Of them, the most reiterated equates Assange to a terrorist waging a cyber-war against US (McFarland, Sarah Palin quoted in Beckford). Another popular conjecture is that these leaks are jeopardising America's relations with other countries (see Huffman, Collins). Theissen's article suggests the murder of valuable collaborators, by revealing their identity, which extrapolates into a threat to the "War on Terror" in general. The problem with all these is that they are either so far-fetched as to not merit any serious consideration (example: cyber-terrorism) or mere conjectures which are yet to be verified in any meaningful sense of the term. Another class of justifications gather around the notion that harm caused to US interests constitute ipso factoa cause of action. This rather uninformed thinking fails to distinguish between legitimate and illegitimate threats to national interests. The first is indistinguishable from the facts-perceived-as-wrongs-in-themselves class of justification. And the second is no justification at all; one might as well declare China a threat to US economic interests merely because it produces goods cheaply.
To conclude, then, we find that there has been serious attempt made to justify projected US actions. This remains true notwithstanding that justifications are essential to the 'free world' of which America claims to be a leading member. It is against this backdrop that we must examine the legal issues involved in the Assange case.
[Continued in Part III]
At the outset we are confronted with a dilemma of sorts: given that our primary focus is on the legal case against Assange, how much weightage should we give to Assange's and Wikileaks's ongoing political battle with the US administration, the outermost layer so to speak? There are some who argue that the two are not connected, and that Assange's persecution derives exclusively from his alleged sexual misconduct. This view is shared by even those who style themselves liberals, such as Kevin Huffman of The Washington Post. Responding to Michael Moore's $20,000 contribution towards Assange's bail, he writes, "Moore asserts that Assange is under attack solely because he had the courage to expose American war crimes . . .. Well, that and allegedly assaulting innocent women (one awake and one asleep)." In the very next paragraph, he goes on to say:
I'm not sure which piece of the whole episode offends me the most: Putting up bail money for an accused rapist you don't know simply because you like his politics? Defending the release of documents that harm confidential American diplomacy (i.e. the very efforts that may help keep us from entering unilateral wars in the first place)? Or the crushing blow this strikes against my deeply held belief that the far right is crazier than the far left?
The problem here is that it is inaccurate on two major counts. Assange has not been accused of rape in any formal sense: not till date, and certainly not in 2010 when the article was written (the author himself betrays some confusion on the point, since in the preceding paragraph he describes Assange as allegedlyassulting women). Furthermore, when was the last time America started a "unilateral war" (whatever that means) because its efforts at diplomacy were frustrated by document leaks? Thus Huffman's perspective fails as a general critique of Assange and also, and more important to us, as a justification for separating the legal aspects of the Assange case from the political. In fact he achieves the opposite of what presumably he had set out to do: he focusses attention on the shortcomings of the views he espouses. If the legal basis of the action against Assange is so tenuous, then why at all has it been undertaken? Is it to satisfy objectives that lie beyond the legal, perhaps even in the realm of the political? And equally pertinently, why is there so much misinformation spread about Assange? The very existence of these issues urges a closer look at the political background, if only to serve as the context in which the legal issues should be examined.
2. Official and Unofficial US Stances
The role Assange and his Wikileaks team has played in procuring and disclosing top-secret information in the public interest is well known. By revealing hidden truths on the "war on terror", he inflicted on the American military, security and political establishment arguably more embarrassment than it has ever had to face. The establishment's response has been one of unprecedented ferocity. In 2010, President Obama declared Assange's actions to be "deplorable". Robert Gibbs, then the White House Press Secretary, went on recordsaying "Wikileaks and people that disseminate information to people like this are criminals" (as the reporter wryly pointed out, this amounted to declaring Assange guilty even before charges have been framed). At a press briefing, P. J. Crowley, then Assistant Secretary at the State Department, accused him of pursuing a hidden political agenda and trying to undermine international cooperation. (Ironically, in 2011 Crowley himself resigned as State Department spokesperson over the harsh treatment of suspected Wikileaks source Bradley Manning.)
Not surprisingly, Republican leaders have been even more scathing in their criticism. Newt Gingrich has claimed he is engaging in terrorism; Muke Huckabee reportedly demanded he be given the death penalty. Sarah Palin seems to have gone a step further. According to the Christian Science Monitor, her tweets described Wikileaks's acts as "treasonous", and suggested the administration use "all necessary means to respond to and defeat WikiLeaks." It is not clear whether she considers "all necessary means" to include extra-legal measures such as kidnapping or assassination; however, the statement is certainly suggestive. But this is not to say such egregiousness is restricted to Republicans alone. Without doubt the finest gem I have encountered so far is a statementmade on the Fox Business Show by Bob Beckel, a Fox News analyst close to the Democratic Party: "This guy's a traitor, he's treasonous, and he has broken every law of the United States. And I'm not for the death penalty, so...there's only one way to do it: illegally shoot the son of a bitch." It is difficult to say which idea is more amusing: that illegally killing a person is the right way to deal with a person who has supposedly broken "every law of the United States", or that the moral repugnance associated with lawful execution does not apparently extend to illegal assassination.
In contrast to the strong, at times over-the-top, reactions seen, the response of the US government appears surprisingly low-key. So far, its most visible actions are the dubious expedient of extra-judicially coercing banks and credit card companies into rescinding their contracts with Wikileaks. I had briefly referred to a prevalent contention that even the extradition case comprises a questionable tactic of this nature: the rape and other charges against him are a mere pretext to get him to Sweden, from where he can be extradited or "temporarily surrendered" (or some other euphemism-ed) to the United States. Extradition law experts such as Julian Knowles QC consider this possibility unlikely for a variety of reasons, including procedural issues and the overriding application of Article 10, ECHR and the First Amendment to the US Constitution. Regardless, the question still remains: why would US resort to such underhand tactics in the first place? If its case is anywhere near as strong as the statements in the previous paragraph suggest, then surely it can prosecute its interests in a legitimate manner?
Actually no, that is precisely where the US stance falters. Assange's guilt is still a matter of conjecture. Palin's and Beckel's claims of treason against America are clearly invalid, because treason can be committed only against one's own country, and Assange is a citizen of Australia (even the Christian Science Monitor report on Palin's tweets points this out). A Washington Post articledating back to 2010 points out that prosecution under the Espionage Act, 1917 will be difficult, since subsequent to its passing several Supreme Court decisions have expanded the ambit of First Amendment protections. Secondly, the documents leaked by Wikileaks have been published in several mainstream newspapers: hence "How do you prosecute Julian Assange and not the New York Times?" Notwithstanding these problems, the Post article reports several sources including Attorney General Eric H. Holder as saying investigations are ongoing and charges could be filed under the 1917 Act. That was two years ago. Till date, the US administration has neither formally instituted proceedings against him, nor even issued any authoritative statement as to which legal provisions he is supposed to have violated.
Recent reports, however, indicate US government lawyers have not only prepared a secret indictment, but have also convened a secret grand jury (see Dorling, Suroor). (Ironically, this information comes to us through further Wikileaks revelations.) If true, it only makes us wonder what purpose this cloak-and-dagger act is intended to serve. A possibility is that the indictment is based on grounds so weak that straightforward extradition requests based on it might not succeed. It might be speculated that this is also the reason behind the extraordinarily convoluted strategy of extraditing Assange first to Sweden and then to America, and then finally prosecuting him. Possession is truly nine-tenths of the law. In any case, the secrecy behind the indictment only succeeds in lending credence to theories that the rape charges are actually intended to get him to the United States.
3. The Justifications
From this increasingly murky scenario, we can identify two different sets of claims. The first restricts itself to the parameters of the law. It seeks that Assange should be executed, or at least severely punished; this necessarily presupposes Assange's acts are punishable under US law. The second postulates that regardless of what the law says, whatever Assange has done is just plain wrong, and he should be punished for it even if it means going beyond the ambit of the law. Though the two appear distinct, the space between the two is filled with several intermediate positions, comprising blends of the legal and the extra-legal in varying proportions. The preparation of a secret indictment suggests rendering Assange to US through indirect means, and then prosecuting him under law once he arrives in America. A variation on this theme entails trying him in secret, where he may possibly be denied certain due-process rights defendants are usually invested with in criminal trials. How far this is possible is a moot question, since Assange is not a member of the US military, and is therefore subject to the jurisdiction of civilian courts.
The character of the claims determine the justification they require. Those claims that restrict themselves to within the law must derive justification through the law. Those that recommend extra-legal measures must establish that the concerned acts are so heinous as to render extra-legal measures ethically and morally acceptable if legally doubtful. This may be applied mutatis mutandis to hybrid claims also; each separate element within the claim will then need to be justified according to its legal or extra-legal character. It is not necessary to go into the specifics of this issue. All we need to acknowledge is that justifying any action against Assange comprises an onerous task. And secondly, notwithstanding these difficulties, it is necessary in the interests of free society for state and international agencies to justify their actions in this manner. Doing otherwise will only validate Pilger's comment on descending into totaliarianism.
As against this, how much substantiation has actually been provided in the Assange matter? Here we encounteer several problems. How do you justify secret indictments or extradition arrangements? Official sources cannot do so, for they are, well, secret and hence cannot be acknowledged. Others are also handicapped by this secrecy, because they must justify not only the indictments and other measures, but also the secrecy behind them. Official and independent commentators alike are impeded in justifying legal measures generally: one cannot justify legal action unless it is known what crime Assange is charged with. Attempts like Marc Thiessen's 2010 article are typical. He begins by asserting: "Let's be clear: WikiLeaks is not a news organization; it is a criminal enterprise." Just two sentences later the assertion trails off into weasel-words and equivocations: "These actions are likely a violation of the Espionage Act, and they arguablyconstitute material support for terrorism." (emphasis added)
Then come justifications rooted not in law but in certain facts perceived as wrongs in themselves regardless of legal backing. Of them, the most reiterated equates Assange to a terrorist waging a cyber-war against US (McFarland, Sarah Palin quoted in Beckford). Another popular conjecture is that these leaks are jeopardising America's relations with other countries (see Huffman, Collins). Theissen's article suggests the murder of valuable collaborators, by revealing their identity, which extrapolates into a threat to the "War on Terror" in general. The problem with all these is that they are either so far-fetched as to not merit any serious consideration (example: cyber-terrorism) or mere conjectures which are yet to be verified in any meaningful sense of the term. Another class of justifications gather around the notion that harm caused to US interests constitute ipso factoa cause of action. This rather uninformed thinking fails to distinguish between legitimate and illegitimate threats to national interests. The first is indistinguishable from the facts-perceived-as-wrongs-in-themselves class of justification. And the second is no justification at all; one might as well declare China a threat to US economic interests merely because it produces goods cheaply.
To conclude, then, we find that there has been serious attempt made to justify projected US actions. This remains true notwithstanding that justifications are essential to the 'free world' of which America claims to be a leading member. It is against this backdrop that we must examine the legal issues involved in the Assange case.
[Continued in Part III]
Thursday, March 15, 2012
NUJS Summer School Certificate Programme 2012
The W.B. National University of Juridical Sciences, Kolkata announces, in association with Professors from the National University of Singapore, its inaugural Summer Law School Programme to be conducted in June 2012 at the Rajiv Gandhi Indian Institute of Management Campus, Shillong.
This Summer Law School Programme offers the unique opportunity to receive intensive legal training on diverse subjects of global and comparative concerns from academics of international repute and eminence.
Course Structure
The Programme shall include courses on
1. Modern Indian Penal Code (2 credits) by Professor Stanley Yeo, NUS, Singapore
2. Mergers and Acquisitions (2 credits) by Dr. V. Umakanth, NUS, Singapore
3. Corporate Governance (1 credits) by Dr. V. Umakanth, and
4. Comparative Family Law (2 credits) by Associate Professor Wing Cheong Chan, NUS, Singapore
The outlines for these courses are available on www.nujs.edu
Each two-credit course shall have a total of six four-hour classes and the one-credit course would have 12 teaching hours in total.
Students have to complete at least 3 credits for completion of the programme. However, no student shall be permitted to take more than 4 credits.
Duration
This Programme shall be held over two weeks from Monday, June 4, 2012 to Saturday, June 16 2012. Accommodation for selected students shall be organised at the Rajiv Gandhi Indian Institute of Management Campus, Shillong. It shall be a fully residential programme.
Eligibility Criteria
The program is open to outstanding students, enrolled in any 5-Year LL.B. Programme in India or any comparable programme abroad, and who would have completed their second year studies by May 31, 2012.
Students registering for Modern Indian Penal Code must have completed Criminal Law. While there are no prerequisites for the other courses, basic understanding of corporate law would be helpful in partaking the full benefit of the courses on Mergers and Acquisitions and Corporate Governance.
Fee Structure
Tuition Fees: Rs. 20,000 Fees for Accommodation and Food: Rs.20, 000.
The entire fees for the programme would have to be paid at the time of the confirmation of admission
Procedure for Application
The application form and the necessary instructions can be obtained from summerschool.nujs@gmail.com
Applicants are required to mail the completed form, along with:
(i) A Letter of Recommendation from an academic referee,
(ii) an official statement of their current grades/marks
(iii) A Demand Draft of Rs. 550/- [non-refundable application fees]drawn in favour of “WB NUJS, Kolkata”, payable at Kolkata
to The Registrar, W.B. National University of Juridical Sciences, Dr. Ambedkar Bhavan, 12, LB Block, Sector III, Salt Lake City, Kolkata.
Applicants are also requested to email the completed form to summerschool.nujs@gmail.com
The last date for receipt of the form and other documents is April 2, 2012. NUJS-NUS Summer Law School Certificate Programme 2012 must be written in Block Letters on top of the Envelope
Selected candidates would be informed of their selection by April 10, 2012 and we plan to complete the admission for the programme by April 22, 2012.
For further details, please contact: summerschool.nujs@gmail.com
Monday, March 12, 2012
The Julian Assange Case: Assessing the Respondents' Narrative - I
I. Introduction
The problem with attempting a legal analysis of Julian Assange's case is that one does not know quite where to start. If I resort to a little fanciful imagery, the facts and issues involved appear to be arranged in several concentric layers. At the outermost layer stands Assange's and Wikileaks's work as activists/journalists, particularly the truths they have revealed about the US-led "War on Terror"; for this they have been both acclaimed as crusaders and reviled as anarchists and cyber-terrorists. At a deeper layer lie the charges of rapefiled against him in Sweden. Nested within this are the proceedings instituted on the basis of these charges for extraditing him from UK to Sweden. This engenders at a technical level several subsidiary issues such as whether the extradition order (or to be precise the European Arrest Warrant or EAW) was appropriate given the prima facieminimal evidence on record; whether the EAW should have been issued when Assange had not even been formally charged with any offence; whether the proceedings were otherwise motivated, and so on.
All these issues were adjudicated upon, and dismissed, by several UK courts. Finally, the sole point on which proceedings at the Supreme Court were grounded must constitute the innermost layer of all: the question whether or not a Swedish prosecutor satisfies the requirements of the term "judicial authority" and is thus qualified to issue an EAW. Construed according to its common law meaning, the term excludes prosecutors from its ambit and thereby invalidates the EAW, whereas a wider reading in accordance with the practice of civil law countries enables the Warrant to remain valid and thus enforceable. In other words, this entire episode ultimately comes to rest on the single question whether "judicial authority" ought to be construed according to its common law or civil law meaning - "which is to be master - that’s all", as Humpty Dumpty famously declared in Through the Looking-Glass.
Or is that all? Perhaps not. For one, commentators such as John Pilger suggest that pervasive links exist across the layers; specifically, the rape and other charges are a device to get him to Sweden, from where he can be further extradited to the United States. And we cannot ignore how the interpretation of "judicial authority" will impact on issues as diverse as free speech, the "war on terror", the right to information, the law of rape, and extradition. Moreover, and much more significantly in my opinion, when the issue is subjected to a close examination a pattern appears to replicate across all the layers. At stake in each layer is the question whether or not one or more civil or political right of the individual ought to be diluted in consideration of "larger" interests - at times national, at times transcending even that. The Wikileaks issue can be construed as an attack on free speech as well as the right to information and transparent governance, particularly in regard to the "War on Terror". While the Assange rape allegations may be perceived in terms of a feminist vindication in some quarters, to my mind the hard core of the issue lies not the offence of rape per se, but rather in the question whether an EAW may be legitimately issued merely for questioning a suspect very early on in the investigative process (and that too by ignoring exculpatory evidence), and whether it amounts to a denial of the accused's due-process rights. This renders into a straightforward individual-versus-the-state conflict which bears little connection to the issue of rape.
The interpretation of "judicial authority", our "innermost layer" so designated, might be considered the apotheosis of this tendency. In the common-law, the appellation "judicial" is invested with considerable significance. Authorities designated as such are invested with discretionary powers denied to other authorities. Consequently, as a safeguard against the arbitrary exercise of such powers, they are accountable not only to norms of legality and reasonability in common with other authorities, but also to more rigorous standards such as fairness and natural justice. These safeguards do not figure in the civil law conception of the term, which is considerably wider. Thus construing "judicial authority" in accordance with its meaning in civil law will surely erode much of the protection and safeguards the common law conception of the term extends to individuals.
Thus we see that arguments favouring these "larger interests" raise perturbing concerns. To begin with, is all this legally valid, that is, do our legal systems permit such extensive scaling-back of civil and political rights? Even if its validity is not in question, what is the rationale behind, say, issuing an EAW and a red-corner Interpol notice within two months of reopening investigations, and that too without formally charging Assange as an accused? Even if it is conceded that Swedish authorities have the power to do so, have they, or anyone else, ever contended it was the right, or even an appropriate thing to do? And if so, on what grounds? Similarly, as it is the EAW system has been heavily criticisedbecause of the arbitrariness it has sustained in the past. Widening the ambit of judicial authority in this fashion will erode the protection the common law conception confers on individuals, and thereby render them further vulnerable to the caprices of any and every EAW Framework Decisionmember-state. Beyond considerations of expediency as defined by the need for an efficient Europe-wide system of extradition, what purpose will such widening serve?
Examining the outermost layers reveals that at least attempts have been made to project the "War on Terror" as reason or purpose. The inner layers, entailing issues predominantly legal in character, do not even aspire to such justifications. According to Pilger, the consequences of Assange's deportation "lie not in Sweden but in the shadows cast by America's descent into totalitarianism." In the sense that once Assange reaches Sweden he becomes vulnerable to be extradited further to US, Pilger is of course entirely right. However, it is equally true that the legalconsequences of the entire episode will be borne not so much by America as the law of Sweden, of UK, even EU law as a whole. And if the scaling-back of rights is anything like what is envisaged here, then surely developments here will impact on the entire "free world" as we know it. Suffice it to say, therefore, that a re-appraisal of what I refer to as the respondents' narrative (i.e.the gamut of arguments ranged against Assange) is urgently called for. It entails implications so far-reaching that regardless of the ultimate outcome of the case (that is, whether or not finally Assange is extradited to US), it needs to be ascertained what this narrative really stands for (legally and in the larger context), what its long-term consequences are and, most crucially, what it means for the individual.
To this end, I undertake here a scrutiny of three specific aspects of the extradition proceedings against Assange. First, tenability: This aspect addresses issues such as whether the arguments in favour of extradition are based on a valid or acceptable interpretation of laws, and also in this connection, whether the involved facts have been construed in a proper manner. Specifically, can scaling back civil and political rights on the scale contemplated be sustained under the very laws that recognised these rights in the first place? Second, justifications: Whether or not the respondents' stated positions lie within the letter of the law, civil and political rights are surely matters so consequential that abridging or curtailing them should be undertaken only for good reasons. So what kind of reasons have the respondents adduced in their favour? Is it their contention that the issue is of little consequence as such? Or that the law already has in place safeguards to replace the ones taken away? Or that even if no such alternate safeguards exist, nevertheless curtailing existing rights and protections is desirable for the greater common good, particularly in the context of the "War on Terror". Such justifications demand close scrutiny, because it is within them that the larger intentions and purposes of the respondents' position are embedded. Third,consequences: An issue of this magnitude is bound to bear multiple consequences, both intended and unintended. This holds particularly good for issues of interpretation. How will construing "judicial authority" according to its civil law meaning affect the EAW system? Will it aid or hinder the system's original aims and objectives?
In addressing these issues, I initially focus on the interpretation of "judicial authority", i.e.the innermost layer. This is for the simple reason that all the High Court had dismissed all the other issues raised, including whether an EAW could be issued merely for questioning a suspect, whether EAWs are appropriate for the offences alleged, and so on. I strongly disagree with this conclusion. In my view, these issues are not only of themselves of great significance, but also still formally relevant in the sense that they play a role the construction of "judicial authority". Hence the scope of this article ultimately extends to them also, albeit in an indirect manner.
[Continued in Part II]
Friday, March 9, 2012
Socio-Legal Review Essay Competition
The Socio-Legal Review, the student edited peer reviewed journal of the National Law School of India University, Bangalore is holding the 2nd Annual SLR Essay Competition.
Students from law schools and other undergraduate courses in India and around the world can participate and submit their essays on the topics mentioned below.
1. Emergent Civil Society: Redefining or negating participative democracy?
2. Rule of Law in Fledgling Societies: Is parliamentary democracy still the best solution? Discuss and highlight possible alternatives in light
of the Arab Spring and Occupy Protests.
3. Freedom of Speech and Role of the Media: To what extent can and should the Press Council of India regulate content and reduce sensational
journalism
Word Limit: 2,500 to 3,000 words (exclusive of footnotes) and the essay is to be submitted via email to sociolegalreview.nls@gmail.com and the deadline for submissions is 30th April, 2012
The essay competition is supported by a trust floated by Smt and Sri S.V.Joga Rao (visiting professor, NLSIU) In memory of their parents.
Tuesday, March 6, 2012
Report on the Impact of the Naz Foundation Judgment
The Centre for Health Law, Ethics and Technology, headed by Dipika Jain, at Jindal Global Law School has a new report out on the Impact of the Naz Foundation Judgment. Through a set of interviews it examines the impact of the 2009 Delhi High Court's judgment reading down article 377. It finds that after the judgment members of the LGBT community perceive greater self-acceptance and confidence, reduced police harassment, and increased societal acceptance. Perceptions were more mixed when it came to how, if at all, the judgment affected acceptance by respondents' families. The report has been filed as part of the Naz Foundation appeal, which is currently being heard in the Supreme Court.
It is great to see more empirical work being done on the impact of judgments. Although this study does not take in a large sample set, it's more qualitative results are quite telling, and I think particularly useful when wanting to show more concretely how the Naz case has affected people's lives.
It is great to see more empirical work being done on the impact of judgments. Although this study does not take in a large sample set, it's more qualitative results are quite telling, and I think particularly useful when wanting to show more concretely how the Naz case has affected people's lives.
Dignity as an Expressive Norm: Neither Vacuous nor a Panacea
In this article published in the recent volume of the Oxford Journal of Legal Studies (unformatted SSRN version available here), I have discussed the role of the concept of dignity in human rights law. This piece is an intervention in a debate where on the one hand the proponents of dignity see it as a useful tool which solves the most important (if not all) of the practical and theoretical problems in human rights law. Arguing against this sympathetic position on the other side of the debate are the sceptics, who have raised troubling questions about dignity’s alleged indeterminacy, as well as about the illiberal role that it has allegedly played in certain contexts. In this article, I argue that designing a defensible and useful conception of dignity which is distinguishable from other values such as equality and autonomy may be possible, but not without addressing some genuine infirmities that the critics have pointed out. If there is indeed such a defensible conception of dignity, it is likely to be ‘expressive’ in character. I therefore argue that the legal ideal of dignity is best understood as an expressive norm: whether an act disrespects someone’s dignity depends on the meaning that such act expresses, rather than its consequences or any other attribute of that act.
Sunday, March 4, 2012
Harvard Law School Global Legal Education Forum Doctoral Workshop: Call for Applications
In celebration of the 100th year of the S.J.D. Programme at Harvard, the Harvard Law School S.J.D. Association is organising the Global Legal Education Forum where professors and S.J.D. alumni from all over the world will meet to debate and discuss challenges, opportunities and innovations relating to legal education. The Forum will be kicked off by the Global Legal Education Doctoral Workshop.
Please see below for details about this workshop and the call for participants.
Call for Participants
Global Legal Education Doctoral Workshop
Harvard Law School, March 23, 2012
9:00am-4:00pm
The Harvard Law School SJD Association warmly invites applications from students writing doctoral dissertations in law - or related fields such as education and globalization studies – to participate in the Global Legal Education Doctoral Workshop, to take place at Harvard Law School on March 23, 2012, from 9:00am-4:00pm. This Doctoral Forum is designed to set the stage for the Global Legal Education Forum, on March 23-25, 2012 at Harvard Law School. Ideally, Workshop participants should plan to attend both events.
The goal of the Doctoral Workshop is to identify and foster an academic community of emerging scholars and professionals interested in legal academia, private practice or policy work with a global component, and to frame the key questions and modes of analysis to be pursued in the Forum. The Workshop will engage doctoral students interested in a wide range of questions emerging from the ‘turn to the global’ in legal education. Among others, the Workshop will substantively address the impact of globalization on the following questions: What are the challenges to legal education in the 21st century? What role will doctoral studies in law play in the future of law teaching and law practice? Legal education is currently said to be in ‘crisis’; do the reforms taken under the guise of ‘global legal education’ meet these challenges? What is the emerging place of interdisciplinarity, comparative, transnational and ‘global’ methodologies in the legal academy? What can doctoral students do to initiate and foster institutional changes in their law schools?
Doctoral students will be active participants in a one-day workshop. The day will open with a breakfast and welcome from the Harvard Law School SJD Association. The Doctoral Workshop will consist of three main parts. The first will be a roundtable reaction session where students will present and debate their ideas on the most pressing challenges to global legal education in the 21st century, in response to previously distributed written and visual materials. In the second part, Professors David Wilkins (Harvard Law School), Charles Sabel (Columbia Law School) and Roberto Unger (Harvard Law School) will present their agendas for the future of legal education, followed by an open discussion. Finally, doctoral students will work in break-out groups to devise concrete initiatives – operative within legal academia and beyond - to respond to the challenges identified in the previous sessions.
Interested students should submit a brief statement of interest (approximately 250 words). Students who wish to more actively participate in the Workshop, particularly by giving a brief presentation (7 minutes) at the roundtable session, are encouraged to submit more detailed abstracts (up to 600 words) outlining their work and how they see themselves contributing to the Workshop; creative proposals for participation are encouraged! Students should provide statements of interest and abstracts when they RSVP; no later than March 15, 2012.
Because this is a student-organized event, we unfortunately do not have funding to cover participants’ travel expenses. We will make our best efforts to organize student-hosted accommodation for participants who request this in their RSVP submission.
Please register at this link.
If you have further questions, please email us at hls.sjdassociation@gmail.com.
Please see below for details about this workshop and the call for participants.
Call for Participants
Global Legal Education Doctoral Workshop
Harvard Law School, March 23, 2012
9:00am-4:00pm
The Harvard Law School SJD Association warmly invites applications from students writing doctoral dissertations in law - or related fields such as education and globalization studies – to participate in the Global Legal Education Doctoral Workshop, to take place at Harvard Law School on March 23, 2012, from 9:00am-4:00pm. This Doctoral Forum is designed to set the stage for the Global Legal Education Forum, on March 23-25, 2012 at Harvard Law School. Ideally, Workshop participants should plan to attend both events.
The goal of the Doctoral Workshop is to identify and foster an academic community of emerging scholars and professionals interested in legal academia, private practice or policy work with a global component, and to frame the key questions and modes of analysis to be pursued in the Forum. The Workshop will engage doctoral students interested in a wide range of questions emerging from the ‘turn to the global’ in legal education. Among others, the Workshop will substantively address the impact of globalization on the following questions: What are the challenges to legal education in the 21st century? What role will doctoral studies in law play in the future of law teaching and law practice? Legal education is currently said to be in ‘crisis’; do the reforms taken under the guise of ‘global legal education’ meet these challenges? What is the emerging place of interdisciplinarity, comparative, transnational and ‘global’ methodologies in the legal academy? What can doctoral students do to initiate and foster institutional changes in their law schools?
Doctoral students will be active participants in a one-day workshop. The day will open with a breakfast and welcome from the Harvard Law School SJD Association. The Doctoral Workshop will consist of three main parts. The first will be a roundtable reaction session where students will present and debate their ideas on the most pressing challenges to global legal education in the 21st century, in response to previously distributed written and visual materials. In the second part, Professors David Wilkins (Harvard Law School), Charles Sabel (Columbia Law School) and Roberto Unger (Harvard Law School) will present their agendas for the future of legal education, followed by an open discussion. Finally, doctoral students will work in break-out groups to devise concrete initiatives – operative within legal academia and beyond - to respond to the challenges identified in the previous sessions.
Interested students should submit a brief statement of interest (approximately 250 words). Students who wish to more actively participate in the Workshop, particularly by giving a brief presentation (7 minutes) at the roundtable session, are encouraged to submit more detailed abstracts (up to 600 words) outlining their work and how they see themselves contributing to the Workshop; creative proposals for participation are encouraged! Students should provide statements of interest and abstracts when they RSVP; no later than March 15, 2012.
Because this is a student-organized event, we unfortunately do not have funding to cover participants’ travel expenses. We will make our best efforts to organize student-hosted accommodation for participants who request this in their RSVP submission.
Please register at this link.
If you have further questions, please email us at hls.sjdassociation@gmail.com.
Thursday, March 1, 2012
Guest Post by Shraddha Chigateri on "Now you see it, now you don’t...’ Hindu sentiment and the legal discourse on cow slaughter"
Anup Surendranath’s recent post on the Madhya Pradesh anti-cow slaughter law is an interesting and timely intervention on the nature of the broader legal discourse on cow slaughter. It provides us with tiny glimmers of light (of legally protecting the diversity of food consumption practices in India) in the overarching darkness of the recent legal and judicial developments on the regulation of cow slaughter. Surendranath argues that the bans on the possession of beef per se, as opposed to the bans on the possession of beef obtained through slaughter in a state that prohibits such slaughter, have no constitutional basis, even within the logic of the jurisprudence on cow slaughter. The argument that he makes is that the constitutional discourse upholding state bans on cow slaughter and ancillary activities, including possession and sale of beef, is based on the ‘agricultural interests’ of the state, and these are not contravened when beef is imported from another state.
Several interesting issues are raised by Surendranath’s post, which are about the broader legal discourse on cow slaughter- what is the purpose of the laws on cow slaughter? Are the cow slaughter bans constitutional? On what basis do we assess the constitutionality of the bans? Surendranath’s argument is that the ‘agricultural interests’ of states provides the underlying rationale for the bans. This is also what demarcates, for him, constitutional bans from unconstitutional bans. While he recognises that non-secular aims are achieved through secular means, his argument is that the constitutionality of the laws banning cow slaughter is dependent on the notion of ‘agricultural interests’. Surendranath’s arguments on ‘agricultural interests’ are not unjustified. The Supreme Court pronouncements on cow slaughter have repeatedly invoked Art 48 of the Constitution of India which speaks of the scientific organisation of agriculture and animal husbandry to justify the bans on cow slaughter. I would argue however, that each reiteration of the scientific rationality of the bans, whether in be in terms of ‘agricultural interests’ or in terms of the organisation of animal husbandry obfuscates more than it reveals.
Article 48, as I have argued elsewhere, was written into the Constitution to protect ‘Hindu sentiments’, but in the language of the scientific organisation of agriculture and animal husbandry. The Article in effect speaks through both sides of its mouth, so to speak. It masquerades as one thing while doing something quite different. The Article and the jurisprudence that has flown from it, create a chimera where Hindu sentiments on cow slaughter come into view at certain moments and then they disappear. Surendranath locates a disjunction between ‘agricultural interests’ and religious sentiments in the concomitant disjunctions between the legal and political discourses on cow slaughter. I would argue instead that there is a sleight of hand wherein ‘agricultural interests’ serves as an emperor’s clothes’ style legal fiction both within the parameters of legal discourse as well as in wider politico-legal discourse. This legal fiction creates a myth that Art 48, the laws based on it and the attendant jurisprudence on cow slaughter are not about religion at all, but about the scientific organisation of agriculture and animal husbandry. In wider politico-legal discourse, the legal fiction of ‘agricultural interests’ serves to constitutionally legitimise the Hindu right’s more brutal interventions in the regulation of cow slaughter, whilst reassuring their political base of their Hindu credentials.
There are consequences to this legal fiction, the most egregious of which is that the jurisprudence on cow slaughter falls far short of the constitutional ideals of secularism. The courts, since the decision of Mohd Hanif Quareshi and others v State of Bihar, have subjected both the Muslim professions associated with cow slaughter, as well as the Muslim practice of sacrificing cows on Bakr Id to critical scrutiny, but they have not turned their critical gaze to an evaluation of the Hindu belief in the sacredness of the cow. They have instead accommodated this belief either implicitly or explicitly. Moreover, the fiction of the scientific rationale of Art 48 has allowed the courts to employ the ‘usefulness of cattle’ as a framework for regulating the slaughter of cattle. But this has not been done with any serious engagement with, or recognition of, the diversity of perspectives on the ethical, ecological, cultural and economic relationship with cattle when arriving at their preferred science. This meant that for the longest time, the cow was declared as useful for all its life, and that bulls and bullocks could be slaughtered past their usefulness. This is despite the Supreme Court itself recognising in Hanif Quareshi that the cow’s more humble cousin, the buffalo, was by far the more productive. In 2005 in the State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat and Ors, the Supreme Court went much further and upheld the constitutionality of a total ban on the slaughters of cows and her progeny. Some might argue (as the court does in its reasoning), that this judgement merely extended a 40 year old jurisprudence on the usefulness of cattle. In fact the consequence of the judgement was to overturn 40 years of compromise (in effect, if not in reasoning) between divergent conceptions of the ecological and economic relationship with cattle.
What is interesting about Surendranath’s post is that it gets us thinking about how best we may proceed in the legal story on the regulation of cow slaughter. Are we to look for glimmers of light within the jurisprudence of Art 48? It might seem that all is not lost when the Supreme Court proclaims in Akhil Bharat Goseva Sangh v State of AP and Ors that the decision in Mirzapur did not mean that the slaughter of cattle by itself is unconstitutional. However, the narrowing of spaces for dissent and diversity within the logic of Mirzapur as well as the many more strident enactments since Mirzapur provides a cautionary tale. If we are to take seriously the idea that there are diverse perspectives on the economic, cultural, ethical relationship with cattle- including dalit, Muslim and dominant caste Hindu- all of which have to be taken into account and balanced in the regulation of cow slaughter, we might well start with unmasking the anti-secular legal fiction inherent in the jurisprudence on cow slaughter. The question is not whether the laws on cow slaughter are constitutional because they conform to the varying interpretations of Art 48, but whether they are unconstitutional because they repudiate the fundamental principle of secularism underpinning the Constitution itself.