Beyond Juristocracy: The Chief Justice of Nepal

The last two decades have seen Supreme Court in South Asia playing an extremely prominent role in everyday governance. The Chief Justices of Pakistan and Sri Lanka have emerged as figureheads of the opposition to the government. However, the action so far has largely been from the benches.

Recent developments in Nepal push us to reconsider the pattern. This week faced with a constitutional deadlock, the four major Nepali political parties invited Chief Justice Khim Raj Regmi to take over the government as interim Prime Minister and to conduct the next set of elections. Chief Justice Regmi after consideration has accepted the offer. There are some precedents for this in South Asia. In Bangladesh, Chief Justice Shahabuddin Ahmed had held the office of the Prime Minister for three months as he oversaw the transition from the dictatorship of Huseein Mohammad Ershad. The new Bhutanese constitution also provides for the possibility of the Chief Justice taking over as interim premier. However, the constitution of Nepal expressly provides that judges of the Supreme Court cannot hold political office.

While political parties and the press have largely been supportive of the Chief Justice, the Nepal Bar Association has been outraged and protested that this compromises the independence of the judiciary.Several writ petitions have challenging this appointment arguing that it vitiates against the separation of powers. Semanta Dahal, a constitutional lawyer in Nepal presents the case for the opposition here.

Interesting links

1. This op-ed by Vikram which appeared in yesterday's edition of the Hindu offers some historical perspectives on the institution of the President of India, as we head into elections for that important constitutional post later in the summer. 

2.  Jeffrey Toobin's recent article in the New Yorker on the Citizen's United case has generated considerable debate in the U.S.  This is a link to the original article, while this takes you to a careful deconstruction of the main argument offered by Toobin.  Reading Toobin's analysis as an outsider, one is struck by the power wielded by the Chief Justice of the US Supreme Court in making a difference to the final outcome through a variety of decisions. This reminded me of the argument advanced by Nick Robinson in his recent post (and article) emphasising the importance of structural issues in constitutional adjudication. 

Further analysis of the RTE judgment

Anup's stimulating post on the RTE judgment sets out some of the salient issues at stake, and has initiated a discussion on what is likely to be regarded as a significant case in Indian constitutional jurisprudence.

This post on the PRS blog provides some more basic information about the judgments delivered in the case. Today's Indian Express features a column by Pratap Bhanu Mehta which analyses the judgments in part. However, I think it fair to say that Mehta's analysis focuses less on the reasoning of the judgments, and more on the practical issues and the political economy that underlie a discussion of the legal issues at stake. Indeed, Mehta's claim is that the judgment is poorer for not focusing on the "real issues" at stake in the debate. Rajeev Dhavan's analysis on the judgment is available here on the India Today website. His reasoning seems cryptic at times, but fits with Mehta's analysis with a focus on the practical impact of contemporary policies of education.

Land Disputes, Gender and Legal History

I just wanted to flag a number of new articles that raise interesting questions that are directly relevant to our discussions on Law and Other Things.


Nivedita Menon, in the recent issue of the EPW, critically reviews the legal, political, ethical and social science debates over the Ayodhya judgment. Menon's discussion engages with several points raised on this blog by me, Tarunabh Khaitan, Arun Thiruvengadam, Aparna Chandra and through a guest post by Vikramitjit Banaji. Moreover, she incorporates the critique put forward by archeologists and historians on the use of historical evidence in a lawsuit.

Tehelka has an extensive discussion over the proposed Land Acquisition Bill that is likely to be introduced in the current session of parliament. A draft version of the Bill is here and the Rural Development Ministry is inviting comments from the public. Amongst the radical shifts in policy, it ties questions of land acquisition with resettlement and rehabilitation, defines rights of sharecroppers and makes attempts to make irrigated multi crop land immune from acquisition unless required for defence, national security of natural calamities.

Jeff Redding has a new working paper out on SSRN which engages with the Pakistani Supreme Court jurisprudence on the rights of transgendered individuals. Redding's project is interesting in part because of its subject, but also because of his methodology and the questions he asks. Like discussions on the blog, he raises questions about progressive legal judgments that emerge through a certain middle class benevolence and use of questionable categories, in this case, identifying transgenderism as a 'gender disorder'. He also attempts to provide an ethnography of a particular case, to trace how concepts and claims evolve through the course of a single litigation.

Prabha Kotiswaran exciting new book, Dangerous Sex, Invisible Labor: Sex Work and the Law in India, has been published recently. Kotiswaran challenges discourses of shame and criminalization surrounding sex work, and seeks to understand it through the lens of labour law. Methodologically, based on detailed ethnographies of the political economy of sex work in Sonagachi and Tirupathi, her work is an exciting break from a conventional theorization over crime, criminality and regulation.


Finally, a PIL filed by former intelligence bureau official and represented by Bangalore based lawyer Aditya Sondhi challenges the legality of the Intelligence Bureau itself. The Intelligence Bureau is set up on the basis of an administrative order dating back to 1887 and has not been reconstituted by a statute or recognized by the Constitution. Given that is occupies an amorphous space the PIL raises questions about its transparency, accountability and impact on rights of citizens (hat tip Prashant Reddy)

Nandini Sundar on the Salwa Judum Order

The Salwa Judum order by the Supreme Court has attracted much comment from members of this blog (see Rohit, Madhav and my reactions). Nandini Sundar, one of the petitioners in the case, has defended the order in an op-ed today. Responding to some criticism about the appropriateness of the Court's discussion of neo-liberalism, she says:

While the order has been widely welcomed, much media space has been occupied by those opposed to the judges’ framing of the problem in terms of neo-liberalism. Yet few have been able to dispute their facts — the growing inequality, the massive displacement of people from their resources, the desperation that drives people to arms. Even the home ministry’s 2006 status paper conceded: “Naxalites operate in a vacuum created by inadequacy of administrative and political institutions, espouse local demands and take advantage of the prevalent disaffection and injustice among the exploited segments of the population and seek to offer an alternative system of governance which promises emancipation.” If the judges are wrong, why the need for a food security bill, resettlement and rehabilitation bill, or an integrated action plan?

There appears to have been three kinds of criticisms of the Court's use of neoliberalism as an explanation of Maoism:

1. That the causal connection between the two is factually incorrect. This is the criticism that Nandini Sundar primarily responds to.

2. That, irrespective of the veracity of the connection, it is inappropriate for judges to comment upon it (usual separation of powers reasons relating to judicial inexpertise in polycentric cases).

3. That, irrespective of the veracity of the connection, it was unwise of the judges to make that connection because it makes an otherwise sound order unnecessarily vulnerable to criticism.

On the first criticism, I am no expert over the matter, but I suspect that there probably is at least some correlation (if not a direct causal connection) between certain economic policies and insurgency. The last two criticisms draw greater force from the fact that this discussion was thoroughly unnecessary to reach the conclusions that the Court did. On judicial propriety, I believe that there may be cases (given the nature of our Constitution) where judges are entitled to discuss economic policy--this case, however, was probably not one of them.

In the main, however, my criticism falls in the third category. When judges are writing a judgment that they know will be controversial, it is wise for them to make sure it rests on solid grounds, and does not provide easy targets (at least not unless their constitutional duty leaves them with no other option). An analogous case that springs to mind was the Supreme Court's judgment in Shah Bano case. A wiser Court could have easily achieved the same result with much less fuss (indeed, the Supreme Court has in fact achieved the same result with much less fuss before as well as after that infamous case). As Madhav points out in his piece, the rhetoric around neoliberalism in this case has unnecessarily obscured the thorough soundness of this Order.

No More State Terror: Salwa Juddam Unconstitutional

In a pathbreaking judgments, Justices Reddy and Nijhar of the Supreme Court ruled that the Chattisgarh governments arming of tribals to act as vigilantes as unconstitutional. The judgment can be found here.

I hope to analysis this at length later, and I am sure the other commentators will have much to say, but I wanted to flag some aspects of this case that were not related to the judgement.


-The petitioners, Nandini Sundar, Ramachandra Guha and EA Sarma are distinguished academics and this model of the PIL harkens back to the first public interest litigations which were filed by individuals (Sheela Barse, Olga Tellis, the early MC Mehta cases). It is in some ways a departure from the more organized generation II PILs which have been fought with the support of organizations and advocacy groups.

Perhaps an important mode of action to consider in a period when the urban middle classes claim to be politically disenfranchised.



- A number of the lawyers appearing for the petitioners (such as Menaka Guruswamy and Bipin Aspatwar) represent a new generation of the Supreme Court Bar engaged in civil liberties cases.

-The judges use diverse sources (ranging from Joseph Conrad to Joseph Stiglizt) but use them very effectively. The language of the judgment is crisp and gives no figleaf to the state to hide behind. The opening paragraphs of the order are striking

"We, the people as a nation, constituted ourselves as a sovereign
democratic republic to conduct our affairs within the four
corners of the Constitution, its goals and values. We expect the
benefits of democratic participation to flow to us – all of us
-, so that we can take our rightful place, in the league of
nations, befitting our heritage and collective genius.
Consequently, we must also bear the discipline, and the rigour
of constitutionalism, the essence of which is accountability of
power, whereby the power of the people vested in any organ of
the State, and its agents, can only be used for promotion of
constitutional values and vision. This case represents a yawning
gap between the promise of principled exercise of power in a
constitutional democracy, and the reality of the situation in
Chattisgarh, where the Respondent, the State of Chattisgarh,
claims that it has a constitutional sanction to perpetrate,
indefinitely, a regime of gross violation of human rights in a
manner, and by adopting the same modes, as done by4
Maoist/Naxalite extremists."

-I am struck by the courts use of fraternity as a constitutional principle, a angle that Tarunabh Khaitan has called to attention before

More to come.

Constitutionally Defective Tribunalisation of Justice

Aggrieved by what we saw as the establishment of a constitutionally defective IP tribunal (IPAB), we challenged it through a writ petition before the Madras High Court. On the very same day, a writ was filed by advocate Ananth Padmanabhan on behalf of SIMCA challenging the constitutionality of the copyright board.

As some of you may recall, the Supreme Court took indiscriminate tribunalisation to task when it upheld the challenge to the constitutional validity of the National Company Law Tribunal (NCLT). Abhinav had blogged some of his preliminary thoughts on this case here.

We were fortunate enough to have the same team (senior counsel, Arvind Datar and upcoming IP litigator, Anand Padmanabhan) that won the NCLT case to argue this IPAB case pro-bono for us.

Prashant Reddy has a detailed explanation of the writ that we filed here. It also finds mention here and here.

Despite clear guidelines by the Supreme Court in NCLT to ensure that tribunals are manned by independent and competent adjudicators (not those under the control of the executive), the government continues to flout these norms. A case in point is the Electricity Appellate Tribunal, the constitutionality of which was challenged by Saptak Sanyal, an ex-student of NUJS who is now clerking at the Supreme Court. This case is being heard by the Supreme Court at the moment.

Similarly, I believe the constitutional validity of the Green tribunal (discussed by Namita) was recently challenged by a law student from the Ambedkar School of Excellence in Law, Chennai. What next? The Cyber Appellate Tribunal?

US Patent Influence and the Independence of our Tribunals

A recent story in the Mint exposes a questionable letter from the US Commerce Secretary, Gary Locke to his Indian counterpart, Anand Sharma, the Hon'ble Minister of Commerce. I extract the relevant portions of this letter as produced in the Mint piece:

“Dear Minister, I look forward to meeting with you during my upcoming trip to India with President Obama. As we advance and strengthen the US-India bilateral commercial relationship with this visit, India should fully consider the requisite business climate for spurring innovation, especially with respect to intellectual property protection,” begins the letter, dated 2 November. “Therefore, I am particularly concerned that the US biopharmaceutical firm Gilead’s HIV/AIDS drug Viread receives fair consideration.”

For those interested, I've detailed out the story and its implications on SpicyIP. In particular, readers of this blog may be interested in aspects of this story dealing with the IPAB, a specialised IP tribunal and how its very structure violates constitutional canons. I reproduce relevant portions below:

"In this letter, dispatched just days prior to Obama's India visit, the US Secretary attempts, in his official capacity, to advance the corporate commercial (patent) interests of Gilead, a multinational drug corporation, in which Donald Rumsfield (ex Secretary of Defence) was rumoured to have held shares during the height of the Tamiflu controversy.

This letter deals with Gilead's pending patent appeal with the IPAB, where it challenged the rejection of its patent covering Viread, an HIV drug, by the Indian patent office. Secretary Locke asks that Gilead's case receive "fair" consideration.

In all fairness, the Secretary only asked that the case receive "fair" consideration. However, as DG Shah rightly notes:

"I doubt any other country, including the US, would entertain if the government of India takes up such corporate issues with their judiciary mechanism. Ideally, our government should have discarded the US plea immediately, saying the patent tribunal here is strong enough to decide such matters independently,” said D.G. Shah, secretary general of IPA."

Further, the fact that this letter was sent to the Minister for Commerce (who controls the patent office) raises some problematic issues with the "independence" of the Intellectual Property Appellate Board (IPAB), a specialised IP tribunal tasked with dealing with certain kinds of IP disputes.

As some of you may know, the IPAB effectively replaced the functions of the High Court, in so far as a large range of IP disputes were concerned. One would have naturally expected the IPAB to be structured as close as possible to an independent judiciary. Unfortunately, this was not to be ...and those that were responsible for drafting IPAB rules and pre-requisites for appointment ensured that they themselves and their brethren (Indian Legal Service [ILS] officers) got selected to these plum posts. Little wonder then that the IPAB is seen as just another wing of the "executive". And not as an independent tribunal functioning as an organ of the "judiciary".

Paradoxically enough, our own judiciary (Supreme Court and High Court judges) has been kept out of the process for selecting "judicial" members at the IPAB....this prerogative lies solely with the government (the executive). More problematically, while Article 217 of our Constitution recognises advocates with 10 years of practice as being eligible to be appointed as High Court judges, the IPAB does not consider them fit enough to be appointed as judicial members! Since the inception of the IPAB, only ILS (Indian Legal Service) officers with next to no IP experience have been appointed as "judicial" members, with some of them even being elevated to the exalted status of Chairman and Vice-Chairman.

All of this results in a flagrant violation of norms laid down in the NCLT judgment, where the Supremes came down harshly on tribunals that, far from being set up as "independent" organs capable of rendering impartial justice, ended up being stooges of the Executive.

Given this background, Secretary Locke may perhaps be forgiven for thinking that our Hon'ble Minister, Anand Sharma has the power to influence the working of the IPAB. In fact, the Mint report itself states that Secretary Locke's letter was forwarded to the DIPP, the executive arm of the government responsible for patent matters.

NUJS Conference on Constitutional Pluralism

NUJS is collaborating with Eurasia-Pacific Uninet and other partners is organizing an International Conference on "Constitutional Pluralism: New Challenges for Constitutional Theory" on 11th and 12th November, 2010 in Kolkata, India.

This Conference is the third in a series of Asian-European Dialogue on Comparative Constitutional Law that has been organized by Eurasia-Pacific Uninet, a network of more than 130 member institutions in Europe and Asia.
.
This Conference shall also be the first in a string of programmes in the University to celebrate the Birth Centenary Year of Dr. Durga Das Basu.

For those interested, more details available at the NUJS website (please check the right hand side of home page for conference announcements).

Neighbourhood Court Watch

I just wanted to draw the attention of our readers to some fascinating constitutional developments in our neighborhood.

1. A month ago the Sri Lankan Parliament ratified the 18th Amendment to their Constitution which ended Presidential term limits, abolished the Constitutional Council giving the President direct say about appointments to the judiciary, the Human Rights Commission, the Public Service Commission, the corruption regulatory bodies and the election commission, and gave the President power to attend and address parliament. As a semi-presidential unitary government elected through a combination of direct and proportional representation, the Sri Lankan constitution is unique to South Asia.

Sri Lanka's moves towards authoritarian government offer an interesting insight into debates over constitutional design. Harvard professor Cindy Skach has been highlighting the popularity of semi presidential forms of government in the third wave of democratization in the 1990s.This constitutional type combines a popularly elected head of state with a head of government who is responsible to a popularly elected legislature.

In her Constitutional Origins of Dictatorship and Democracy, Skach cautions against the hasty adoption of semi-presidential models due to the challenges it poses to democracy, constitutionalism and the protection of fundamental rights.


2. The Pakistani Supreme Court seems to continue to boldly go where no judiciary has gone before. As Ejaz Haider notes in the Indian Express , the Chief Justice hearing a rumor that the embattled Zardari government might attempt to remove him called a full meeting of the Supreme Court. All 17 judges issued a press communique stating that any attempt to do so would lead to the Supreme Court moving suo moto against the government under Article 6 of the Constitution i.e. charging them with high treason. Despite government denials of any such plans, the Court summoned the Attorney General and demanded a written assurance from the government.

In an unprecedented show of political unity, Prime Minister Gilani backed by the Chief Ministers of Sindh, Baluchistan and Khyber Paktunva, a senior Minister from Punjab, and the executive heads of Pakistan Administered Kashmir and Gilgit-Baltistan stated that the government respected the independence of the judiciary but the judiciary too must believe the Prime Minister when he says something. He refused to give a statement in writing arguing that the word of the Prime Minister was enough.

This is the first time that the entire political class of Pakistan has lined up against the Supreme Court (though Shahbaz Sharif, the Muslim League Chief Minister of Punjab send a deputy instead of coming himself). So far, the judiciary has always found some allies in the political class. It would be interesting to see how the Pakistani judiciary executive conflict shapes from now on.

3. On the 5th of October, the Supreme Court of Bangladesh reasserted their authority over the constitution by clarifying their decision earlier this year that had struck down the Fifth Amendment to the Constitution.

Holding that secularism was part of the basic structure of the Constitution the court ruled that "in a secular state, everybody has religious freedom, and therefore no man, woman or child can be forced to wear religious attires like burqa, cap and dhoti". The court had taken suo moto action after coming across a newspaper report about a woman's college issuing a directive prohibition women from coming onto campus without a burqa. The court also held that similiarly, no one can be prohibited from wearing a burqa if they chose too.

4. The Bangladesh Supreme Court's declaration of the Fifth and Seventh Amendments voided also opened up an interesting procedural question. Did the Court's declaration of invalidity automatically amend the constitution or does the parliament have to correct the Constitution through a further process of amendment. The law minister seems to have resolved the debate stating that the government would just reprint the Constitution without the amendments, thus in effect restoring several older provisions.

5. Bhutan's fascinating constitutional trajectory continues. Earlier this month, the government issued a ban on Buddhist and Hindu clergy from voting in the elections to keep religion and state separated. Mahayana Buddhism is officially the state religion of Bhutan and the constitution provides for a dual system of administration with the religious branch headed by a chief abbot and an administrative branch headed by the King. The King is required to be Buddhist and all parliamentary sessions concluded by Buddhist prayers. Clergy were allowed to vote in the first elections in 2007.

Interestingly, in 'secular' India the Buddhist clergy have a separate right of representation. An amendment to the Representation of People's Act in 1949 provided that one seat out of the 32 seats in the Assembly of Sikkim will be reserved for a representative of the Buddhist sangha who will be elected by a statewide constituency of Buddhist monks. To the best of my knowledge, this is one of the few examples of separate electorates in independent India. Buddhist nuns were allowed to vote as a part of this constituency for the first time in 2009

6. Meanwhile in Nepal, there has been an attempt to involve the Supreme Court in the deadlock in the interim parliament/constituent assembly. Over the last few months, the parliament has attempted eight times to elect a leader of the house and failed. The CA regulations requires a winning candidate to get 300 votes from a 599 member assembly, however it also permits MP's to remain neutral and abstain. A group of lawyers have recently petitioned the Supreme Court of Nepal asking that the 'neutrality provision' be declared unconstitutional. The Court is currently hearing the matter.

7. Finally, the Supreme Court of Maldives finds itself in midst of a deepening crisis between the President Nasheed and an opposition dominated parliament. The Constitution provides for a Presidential cabinet which is endorsed by parliament and ministers who can be summoned to appear before parliamentary subcommittees.

President Naheed had shocked the Maldivian system when he defeated President Gayoom in 2008. Gayoom had governed Maldives for thirty years. The parliament (Majlis) continues to be dominated by members of Gayoom's party. The opposition was combative and Naheed's minister's complained that they were following a 'scorched earth' policy to obstruct government. In July this year, the entire 13 member cabinet resigned protesting the behaviour of opposition MPs who they said were “hijacking” the powers of the executive and making it impossible for the cabinet Ministers to discharge their constitutional duties and deliver the government’s election manifesto. In July, Nasheed reappointed the cabinet.

However, the opposition dominated Majlis has been demanding that constitutional procedure requires them to be re-endorsed by them. Nasheed refuses to accept this process arguing that Parliamentary endorsement was intended to be ceremonial and submitting to an American style endorsement process is tantamount to permitting 13 no confidence motions against the government.

The Attorney General has moved the Supreme Court for writ to declare as null and void.

Kafila posts on Sri Lankan constitutionalism and Ayodhya

Rohini Hensman has written a thoughtful and detailed post for Kafila which explains both the background context and implications of the recent passing of the 18th amendment to the Constitution of Sri Lanka. Unusually for a blog post, she manages to provide a succinct overview of constitutional developments in the island nation over the past three decades, which helps those of us who are not fully aware of the relevant history to get a sense of the overall context of her argument. A more recent post on Kafila offers Biswajit Roy's preliminary take on the judgments in the Ayodhya case, focusing on Justice Khan's judgment in particular.

Update (Oct 18, 2010): Biswajit Roy's further thoughts on the Ayodhya case, focusing on the judgment of Justice Agarwal in particular, are available here. Somewhat coincidentally, given how the original post was framed, Rohini Hensman has subsequently written a blog post for Kafila on the Ayodhya case which is available here.

From the Cradle to...62

In this edit piece in the Times of India (September 29, 2010) I argued that the Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 (available here) deserves praise and criticism. It deserves praise because it seeks to do away with unnecessary hierarchy – the 3 year difference in the age of retirement between High Court and Supreme Court judges (SC judges retire at 65, HC judges at 62). However, it deserves criticism because, given the present policy of appointing predominantly senior judges, the 3 year age gap guarantees that Supreme Court judges will serve at least 3 years in office, since the "oldest" new Supreme Court nominee would be 61 years, 11 months and 29 days old: with 3 years and a day until retirement. If the age of retirement for High Court judges is extended to 65, then will the "oldest" Supreme Court nominee be 64 years, 11 months and 13 days old? (a risk, considering that we've had a Chief Justice with a 17 day term)

I wanted to clarify here that Supreme Court judges can also be appointed from amongst retired High Court judges (much in the same way as "distinguished jurists" can be appointed to the court). So a 64 year old retired High Court judge can also be appointed to the SC. However, in the last 25 years, this has hardly ever been done (I believe that since August 1985, Justices Saikia and Fathima Beevi were the only such examples, although Justices Ojha, Paripoornan and Balasubramanyan came ominously close to retirement). Justice Beevi also had one of the shortest natural SC tenures in office in the last 25 years.

So the question that I wanted to ask is: how does one ensure parity of treatment between constitutional court judges, and at the same time ensure adequate terms or tenures in office?

Viva Voce, Constitutionality and CLAM

Recently, the Indian Patent Office (IPO) announced the schedule for the next patent agent exam to be held on January 15 and 16, 2011.

This exam is the key filter towards the practice of "patent" drafting and prosecution in India. In other words, unless one meets the eligibility criteria (that of being a science graduate) and passing an exam, one cannot draft and prosecute patents on behalf of clients. Not even if one is stamped with legitimacy as as an "advocate" under the Bar Council rolls (lawyers are merely entitled to represent clients in patent litigation, advisory work and in hearings before the Controller of Patents).

For those interested, the results of the last patent agent exam were analysed here.

Given that one part of the exam (the viva voce) appears to suffer from a constitutional infirmity, I thought this merits a discussion on LAOT, the home to many constitutional experts.

By way of background, the eligibility criteria for taking the patent agent exam is that the person must have completed 21 years of age and must have a science, engineering or technology degree from India. Importantly, the person must also have passed a qualifying exam.

This exam tests a candidate on his/her knowledge of the patents act (Paper I) and his/her proficiency with drafting and interpreting patent specifications and other related documents (Paper II). The total marks for the exam are 300. Each of the written papers (Papers I and II) is for 100 marks. Subsequent to the written exams, a viva voce of 100 marks is also conducted.

In order to qualify, a candidate must get 50% in each individual component of the exam (Paper I, II and the viva) and shall be declared to have passed the exam only if he/she obtains an aggregate of 60% of the total marks.


Some of us are of the view that the requirement of a viva voce is unconstitutional, inherently subjective and entails significant administrative and other costs. Hence it should be done away with.

Alternatively, assuming that the viva is held legally valid in principle, the present structure of the viva is arbitrary and unconstitutional. And should therefore be changed.

In order to engender more discussion on this theme, we have thrown open this debate on two platforms. One is the CLAM platform, that had already been introduced on this blog earlier. We'd run two policy proposals on CLAM, one dealing with the copyright exception for the "disabled" and the other dealing with other copyright proposals (that were drafted in the light of the recent copyright amendment bill by the government).

All you need to do is register through a very simple process--and you can participate in CLAM by posting your comments.

Alternatively, for those of you "argumentative" folks interested in more of a "debate" style platform, we've put up the above proposals on debatepedia. Here again, all you need to do is to simply register (provide a user-name and password) and you are ready to go.

If you don't have the time and inclination to register at these sites, you can still view the proposals by simply visiting the relevant pages on CLAM and Debatepedia.

We would be very grateful if as many of you (as possible) could participate in this initiative. For one, it helps us refine the proposal and strengthen the arguments (or perhaps appreciate that the arguments are weak and we are barking up the wrong tree).

We are also hoping to improve the CLAM platform through this process. CLAM is meant to engender a more "collective' and participatory process in law making. The time is ripe for such a platform, as would enable one to present policy proposals and refine/strengthen it (or even discard it) after inputs from stakeholders and members of the public. The platform will initially start with some key IP policy proposals and then move on to cover other legal/policy areas.

The platform is not only meant for proposals on intellectual property. Rather, anyone with a carefully thought out policy proposal on any area of law can use the platform by presenting the proposal therein and seeking public input and views. Once such views are received and the issues thoroughly debated on the platform, the mover of the proposal/motion could amend their proposal in the light of such views and forward the final proposal to the government for consideration and implementation.

Unfortunately, the current CLAM platform is far from optimal. If some of you who have strong views on the legality of viva voce's (or even those of you who are interested in participatory policy making more generally), can use these platforms and come back with your suggestions on how to better it, it would help us devise a far more optimal platform than the present one.

In fact, we are also thinking of opening this to competition and offering a prize (20-25,000 Rs) for the person who designs the most optimal CLAM platform for us. Such a platform should enable the following:

i) Any person should be able to formulate a policy proposal on any area of law and throw it open to public debate and participation.

ii ) Members of the public (or any other closed group) can edit the said proposal and/or offer comments on it.

iii) Members of the public (or a defined close group) can view the proposal and all the comments pertaining to it, as also the history of the edits and comments.

iv) Members of the public (or a closed group) have the ability to add more arguments to the proposal and debate them out (much like debatopedia).

v) A general flee flowing discussion board, where folks can comment more generally on the proposal and surrounding issues, without necessarily pegging it to actual wordings of the proposal.

vi) The building up of communities and networks of interested people around specific areas of law/policy

vii) The ability to collect signatures for the final public petition that comes out of this participatory process and is sent to the government for consideration and implementation.

If any of you are interested in this platform and structuring it or collaborating on this venture, please let me know (shamnad [at] gmail.com).

Invalid Appointments and the De Facto Doctrine

A writ petition was filed recently challenging the legality of the appointment of the current chairman of the Copyright Board, Raghbir Singh. The writ came up before Justice Sikri of the Delhi High Court yesterday and notices have been issued.

I've been dealing with this controversial appointment in several earlier blog posts on SpicyIP. Since the case raises some interesting constitutional issues as well, I thought I would flag them up here on LAOT.

In one of the posts on SpicyIP, I had questioned the eligibility of the Chairman on the ground that he was 66 years old at the time of his appointment and therefore not suited to hold the office of Chairman of the Board. The Copyright act provides (interalia) that the chairman should be a person eligible to be appointed as a High Court judge.

Eligibility criteria for High Court judges find mention in Article 217 of the Constitution of India, under which a judge must necessarily retire at the age of 62. I took this to mean that no person above the age of 62 could be appointed a High Court judge. And since Mr Singh was 66 at the time of his appointment, he was not eligible to be a High Court judge. And therefore not eligible to be appointed as Chairman of the Copyright Board as well. Well, it now turns out that I was wrong.

Courts have consistently held that the retirement age of a High Court judge as stipulated in the Constitution cannot necessarily be construed as an "eligibility" criterion. I quote extracts from a recent ruling (State of Uttaranchal vs Balwant Singh), where the Supreme court approved of the ruling by a division bench of a high court as below:

"The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate General who is qualified to be appointed as a Judge of a High Court. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court "shall hold office until he attains the age of 60 years" (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years).

The Division Bench further held that the real question then was whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. It was further held that as the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court. The Court further observed that the provisions about duration in the first clause of Article 217 cannot be made applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor.

This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words "until he attains the age of sixty years". The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217."

and later:

"In view of the clear enunciation of law in the aforesaid judgments, the controversy has been fully settled that the Advocate General for the State can be appointed after he/she attains the age of 62 years. Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years. In a number of other cases regarding the appointment of other authorities, the Courts have consistently taken the similar view."

and still later:

"The controversy raised by the petitioner in this case was decided 58 years ago in the judgment of Karkare (supra) which was approved by the Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res-integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevent the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office."

Mr Singh's appointment has been challenged on other grounds as well. Assuming that Singh's appointment is held invalid on such other grounds, how would this impact the legality and tenability of the Board proceedings and its order? Under the de facto doctrine and the doctrine of necessity, courts are likely to uphold the validity of the proceedings, notwithstanding any irregularity in the appointment of members adjudicating the dispute/proceedings. In other words, even assuming Mr Singh's appointment is held illegal or irregular on some ground, this will not, by itself, vitiate the proceedings of the Copyright Board.

What if the copyright board order is appealed though? What impact will an irregular appointment have on the tenability of the order?

Would the appellate court hold that no "deference" be given to any fact finding done by the Board? Those in the know of administrative law norms may be familiar with the age old and time tested law vs fact distinction...one that I am still unable to comprehend: aren't all legal propositions really "facts", albeit of a certain specific kind. The distinction becomes particularly problematic when we consider "mixed questions of law and fact", a nebulous category ingeniously invented by lawyers to open up any factual issue that wouldn't warrant interference otherwise.

Anyway, standard admin law norms suggest that courts are to defer to agency expertise when it comes to issues of "fact, and cannot reopen them unless there is a manifest error on the face of the record. However, in so far as issues of law are concerned, courts are free to review them de novo. Given the flawed constitution of the copyright board, would the court decide to not grant any deference to issues of "fact" that have been determined at the first instance by the Board? If such facts could be reopened by counsel, would it lead to a re-enactment of the entire saga once again before the courts?

I believe there is a recent case where a TRAI order had been appealed to a court in the first instance. Since this was the first appeal, the court appears to have held that it could review both questions of law and fact afresh. I'm hunting around for this decision and will bring you more on this once I find it. Alternatively, if any of our readers are in the know of this decision, please do let us know.

As to whether or not an appellate court hearing this particular compulsory licensing matter will adopt the above ruling and reopen all issues of fact (and perhaps even remand the case to a freshly instituted copyright board for specific factual determinations) remains to be seen.

ps: many thanks to Vivek Reddy for pointers on the TRAI decision and the standard of review.

Courage Craft and Contention: Human Rights and the Judicial Imagination (Transcript of public lectures by Justice A P Shah and Prof. Baxi

On the 12th of June, the Alternative Law Forum (ALF) celebrated its tenth anniversary with a public lecture by Justice A P Shah and Prof. Upendra Baxi on the topic Courage Craft and Contention: Human Rights and the Judicial Imagination.

We are happy to share the transcript of the lectures here.

NCLT Constitutionality Case: Preliminary Thoughts

The Supreme Court’s decision dated May 11, 2010 in the case of Union of India v. R. Gandhi [MANU/SC/0378/2010] is striking for at least two reasons.

In this case, the court considered the constitutional validity of the Companies (Second Amendment) Act, 2002. In its unanimous opinion authored by Justice Raveendran, the court held that the Act which created the National Company Law Tribunal and National Company Law Appellate Tribunal has unconstitutional “defects”, which are capable of being “cured” by suitable amendment (presumably a reference to the doctrine of eclipse). However, the decision is striking for at least two reasons:

First, in emphasizing the importance of the composition of the members of the tribunal, viz. the manner of their appointment, and their qualifications, this decision continues the court’s repeated emphasis on procedural due process: i.e. not on the substance of a decision, but on the manner in which a decision is reached. The decision is founded on the philosophy that creating the appropriate procedural machinery creates the appropriate setting for substantive decisions. In its emphasis on fair process, i.e. on the institutional makeup of the tribunal, this decision emphasizes procedural due process. In this sense, this decision merely continues the traditions of “fair, just and reasonable” process, emphasized most prominently since (although the emphasis did not begin with) Maneka Gandhi’s case in 1978. The court in R Gandhi's case articulated a “right to adjudication by an independent forum”.

Second, the court emphatically held in this case that the basic structure theory could not be applied against ordinary legislation. It was argued that principles such as rule of law, separation of powers, and independence of the judiciary were violated by the Amending Act, and that the law was therefore unconstitutional. The court rejected this argument. However, it found that principles such as rule of law, separation of powers and independence of the judiciary could nonetheless be applied against legislation, since they could as easily be sourced through provisions of the constitution, notably the “essence of equality”. This case highlights very well the expansion of "equality", a trend which began in the late 1970s. However, since the case of S.R. Bommai, this is perhaps one of the most prominent decisions where the basic structure theory has been used in an analysis not concerning constitutional amendments, although the court refuses to term its analysis as such.

Request for Deferring Bar Exam and Mulling on Sudeer

I reported earlier on the prospect of an Indian bar exam in the aftermath of a Supreme Court direction in Bar Council of India vs Bonnie FOI Law College.

Kian Ganz, the dynamic founder of Legally India ran a piece a few hours back on a letter that we sent to Gopal Subramanium (Chairman of the Bar Council of India) requesting for a deferral of the proposed bar exam:

"The new bar exam for law graduates is understood to be held in late August with the Bar Council of India (BCI) set to announce the syllabus in a matter of days. Meanwhile, NUJS Kolkata final year students have petitioned BCI chairman and solicitor general Gopal Subramaniam to postpone the exam until 2011 because they argue it prejudices students and is unconstitutional without amending the Advocates Act 1961."

I reproduce the letter that we sent the BCI Chairman below. I am particularly interested in readers' views on whether or not the BCI (Bar Council of India) can introduce a bar exam without an amendment to the Advocates Act.

Dear Mr Subramanium:

My heartiest congratulations on your recent election as the Chairman of the Bar Council of India (BCI). It is rather fortuitous that you were elected to this important post soon after your had articulated your vision for an all India bar exam before the Supreme Court in Bar Council of India vs Bonnie FOI Law College.

As you are aware, during the consultative process undertaken by you in the context of Bar Council of India vs Bonnie FOI Law College, I had submitted a paper to you advocating strongly for a bar exam. I attach this again for your reference.

Needless to state, a number of us applaud your initiative and do hope that it will go a long way towards improving the quality of lawyers in India. However, we are concerned about the prospect of holding such exam at such shot notice i.e. a mere two months from now.

May we please request you to defer the proposed bar exam to next year, such that it only applies prospectively to candidates that graduate (with LLB degrees) next year?

First, as you will appreciate, effective notice of the exams came to our students (I speak of the National University of Juridical Sciences (NUJS), Kolkata where I teach) only last week. Although the exam was mandated by the Supreme Court judgment (Bar Council of India vs Bonnie FOI Law College) in December 2009, this order was not made public and is, to this day, not available on the Supreme Court website. I had posted a copy of this order on “Law and Other Things”, a blog, on 5th April 2010.

Subsequent to this blog posting, some newspapers had interviewed you and reported on the prospects of a bar exam. However, even at this stage, most students did not think that it was logistically possible to hold the exams this year. And many of them did not think that such exams could be held without a legislative amendment (in the light of the Supreme Court ruling in V Sudeer, an aspect I will dwell upon later in this letter).

It was only pursuant to my telephonic conversation with you on the 8th of May, that I understood that you were planning on conducting the exams in July-August this year. On the very same day, I announced this to our students at NUJS, who were extremely concerned at this short notice (a mere 2 months) and have requested me to forward their representation to you, which I attach with this letter.

As you will appreciate, a bar exam has never been held in this country since the 1970’s and students had a legitimate expectation that there would be no exam this year. With only a few weeks left for most students to graduate, it will inconvenience them to a very high degree. Many of them have signed contracts with law firms and lawyers and are scheduled to begin working in the months of June-July. Lawyers and law firms may have hired them on the expectation that they are ready to go on day one and not handicapped from appearing in court or practicing law, owing to a bar exam, that has been suddenly instituted after 35 years. Many other students are going abroad for jobs and higher degrees (LLM’s) and will be placed at a great disadvantage owing to this sudden announcement.

Secondly, this exam may prove logistically difficult for your team to execute at this late stage. You are of course the best judge of this, but if I may please be permitted to recount our own experience with such exams: it takes the national law schools a good 10 months’ time to plan and execute the CLAT entrance exam each year–which as you know has approximately around 15,000 candidates each year and only 11 law schools within its fold. More importantly, it already has a history (although CLAT is 3 years old, individual law schools conducted their own exams for several years prior to CLAT), whereas the bar exam that you envisage will be held for the first time in 35 years. Importantly, this exam will require immense planning and co-ordination as it is likely to have at least 45,000 candidates, if one assumes that the 900 odd law schools in the country might generate at least 50 candidates on an average this year.

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

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

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

As you are aware, the court in Lawyers Collective vs Ashurst defined the term “practice” to widely include not just the right to appear before courts, but to also include all kinds of non-litigious practice as well (transactional work and legal advise etc). Therefore divesting enrolled lawyers of the right to practice upon enrolment will have serious consequences for all law graduates this year. Rather than expending resources into the conduct of a bar exam this year and risking the wastage of resources in the event that the court strikes down the bar exam as outside of the BCI’s current competence and therefore unconstitutional, we strongly urge you to push for an amendment to the Advocates Act and conduct the exam next year.

Given all the above circumstances, I hope you will kindly consider deferring this exam to next year, such that it applies prospectively to only those law graduates that pass out next academic year. To conclude, let me please reiterate that we are very much in support of your wonderful initiative for an all India bar exam and are ready to help in whatever way you deem fit to make this a success. We however feel that rushing it through within the next 2-3 months may result in a sub-standard and badly executed exam and prove counterproductive to your vision for regulating the profession in a more optimal manner.

Warm wishes,

Shamnad Basheer

Raising the Indian "Bar": Legality and Feasibility of a Proposed Exam

Despite being passed in December 2009, a Supreme Court judgment with tremendous ramifications for the practice of law came to our notice only recently.

In Bar Council of India v. Bonnie Foi Law College, Justice Dalveer Bhandari and Justice H. L. Dattu mandated the Center to conduct bar examinations to test candidates for their suitability or otherwise for entry into the legal profession.

You heard right: current law students who expect to graduate this year may not be able to don the robes of an advocate without first clearing a bar exam.

The Supreme Court order dated on 14 December 2009, came in the light of recommendations by a special committee constituted by the court and headed by the Solicitor General, Gopal Subramanium. This committee was primarily tasked with making recommendations concerning the manner of affiliation and recognition of law colleges by the Bar Council of India.

Upon receipt of the Committee report, the Supreme Court mandated the Centre to implement the recommendations, explicitly referring to the introduction of a Bar Examination:

“The most significant achievement of this entire exercise has been the introduction of the Bar Examination. Learned Solicitor General submits that the first Bar Examination shall be conducted in July-August, 2010 by a specially constituted independent body, consisting of experts of various disciplines of national stature. In the facts and circumstances of this case, we deem it appropriate to direct the Central Government to ensure that the entire programme framed by the three-member Committee is operationalized forthwith. We further direct the concerned institutions to fully cooperate with the Bar Council of India.”

India is not new to bar exams. The Indian Advocates Act, 1961 required holders of law degrees who wished to enter practice to complete a course in practical training and also pass an examination. But, in 1973, this provision was deleted by way of amendment, and since then, a law graduate from a BCI-recognized university could directly enroll as a lawyer. The BCI attempted to introduce an apprenticeship or practical training course in 1998, whereby recently graduated law students would have to work for a year with a counsel before they could enrol as advocates. However, the Supreme Court struck it down on grounds of lack of competence (see V. Sudeer v. Bar Council of India, AIR 1999 SC 1167).

The Court held that under the prevailing statutory framework, the BCI did not have the authority to prescribe conditions for training and examinations after graduation; it would first have to amend the Advocates Act to confer such powers unto itself. Notwithstanding this, the court still went on to explicitly endorse the need for an apprenticeship and a Bar examination, albeit after appropriate statutory amendments in this regard.

In the light of the V Sudeer case, one is forced to contend with the legality of the current Supreme Court mandate in favour of bar exams. Needless to state, the Supremes are well within their right to reverse Sudeer or distinguish it, but neither of it happened in the present (Bonnie vs OUI) case. In fact, the Supreme Court was not even deciding the issue of whether or not bar council exams could be introduced by the Bar Council without an enabling amendment to the Advocates Act.

The other tricky part of this ruling is that it could be construed as a judicial mandate for legislative amendment. In effect, the Supreme Court has directed the Center to implement the Committee report and permit the holding of a bar exam by a certain date. But if such bar exam can only be legally instituted after legislative amendment, one might argue that the court has effectively directed the center to move such legislative amendment. Is this constitutionally sustainable? If such amendment is indeed part of the mandate, can the government formulate such a bill and present it before the end of this budget session to comply with the July-August 2010 date?

In fact, the report by the SG committee clearly recognizes the need for legislative amendment in this regard:

“A Bar Examination should be introduced for the purpose of admitting law graduates to the Bar: As discussed supra, the introduction of a bar examination would ensure maintenance of standards in the legal profession, as well as standardization and constant innovation in the standards of curriculum, teaching methodology etc. The Committee is, therefore, of the opinion that qualifying a bar examination should be made a requirement prior to admission to the Bar by all State Bar Councils across the country. In light of the decision of the Supreme Court in the V. Sudeer case, such a requirement may be introduced in the Advocates Act, 1961 by means of a statutory amendment."

Given that the Supreme Court was only directing an implementation of the Committee Report, one might argue that their order be construed as a mandate to the Centre to also begin the process of amending the Advocates Act. If this is so, can the Center comply with the courts time-frame to permit the Bar Council and other relevant authorities to hold such examinations by July-August 2010? The Center is already reeling under the pressure of multiple bills, some of which it now fears will not sail through as it initially expected (the one on nuclear liability limitation posing the greatest set of problems for it). Given that it is thinking of stalling some of these bills, will it take on another one at this stage and within this short time frame?

Anyway back to the report of the Committee. Prior to framing his report, the Solicitor General had solicited comments from a few of us involved in legal education. Pursuant to his request, we sent him a rather lengthy note, strongly recommending a bar exam as a potential “quality” control measure. For this interested, we’ve put up this note on SSRN (we are in the process of revising this note for the purpose of publication in a law journal).

In this piece, we specifically note:

"This note (prepared in response to a request from a Supreme Court Committee) begins by analysing the constitutional and regulatory framework pertaining to legal education in India with special emphasis on the two principal authorities in this sphere: The BCI and the UGC. It then goes on to describe ambiguities and criticism regarding the ambit of the BCI’s powers, and accreditation mechanisms in higher education in a few other countries.

It then goes on to recommend reforms, most of which can be effectuated within the corners of the existing regulatory framework, without the need for statutory reform. Others may require statutory amendments.

The principal recommendations made in this note are as follows:

i) Indian legal education ought to encompass much more than merely training students for the bar. Indeed, the aim ought to be to create an effective social engineer who is socially sensitive and uses the law in myriad ways to help better society.

ii) The Bar Council of India (BCI) has no legal/constitutional authority to regulate the full spectrum of legal education, independent of the Universities. In fact, Section 7(1)(h) of the Advocates Act clearly mentions that the BCI is to lay down standards of legal education in consultation with the Universities in India imparting such education and the State Bar Councils.

iii) An all-India Bar Entrance Examination should be introduced as a quality-control mechanism, instead of the existing accreditation system which is patently flawed, ineffective, costly and subject to abuse. It will not only ensure a qualitative check on the number of lawyers entering the Bar, but would also give the Bar Council scope to regulate legal education in a more robust manner.

iv) As a more substantive policy measure, we recommend a more thorough overhaul of the present regulatory structure pertaining to legal education in India. The BCI powers should only extend to regulating that aspect of legal education that is intrinsically connected with the practice of law at the Bar. Some of the regulatory functions that are presently being performed by the BCI, and which do not relate directly to practice at the Bar should be devolved to another authority. This authority should ideally be a standing committee on legal education under the IRAHE as proposed by the NKC."

Interestingly, the Supreme order also endorses the Committee’s recommendation for a Directorate of Legal Education under the BCI – a body meant to specifically regulate legal education within the bounds of the BCI powers. This was recently made operational, under the leadership of Prof. VB Coutinho. Rahul Singh, who taught at NLS Bangalore till recently, has been appointed as the Deputy Director. Our very best wishes as this body tries to navigate the rather challenging terrain of legal education.

By: Shamnad Basheer and Sroyon Mukherjee