NLSIR - Herbert Smith Freehills India Essay Competition 2013

[The following is an announcement from the National Law School of India Review (NLSIR)]

The National Law School of India Review (NLSIR) in association with Herbert Smith Freehills is pleased to announce the Herbert Smith Freehills India Essay Competition 2013. The Competition is open to undergraduate law students from NLSIU, Bangalore, NALSAR, Hyderabad, WBNUJS, Kolkata, NLU, Jodhpur, NLU, Delhi, GNLU, Gujarat, NLIU, Bhopal, NLU, Odisha, Jindal Global Law School, and School of Excellence in Law, Chennai.

The topics for this year’s Competition are:

(1) Corporate Social Responsibility in the new Companies Act: A Critical Perspective

(2) The implications of BALCO v. Kaiser Aluminium: A practitioner’s perspective

The two best essays per topic win prizes of Rs. 20,000 and Rs. 12,500 respectively along with certificates.

The winning essays will also be considered for publication in the next issue of NLSIR in accordance with the Editorial Policy of the journal.

The deadline for submission is 11.59 P.M., 29 May, 2013.

The word limit is 3000 words inclusive of footnotes but excluding the abstract and bibliography.

Joint authorship is not permitted. The entries must be accompanied by a 300 word abstract and should follow a uniform system of citation. For further details regarding the structure and evaluation criteria, please refer to the submission guidelines that have been sent to the participating colleges.

All entries are required to be submitted via e-mail as a PDF document to mail.nlsir@gmail.com.

For any further details or queries, please contact us at mail.nlsir@gmail.com.

The Paradox of the Fundamental Right to Property in the Indian Constitution

In a talk recorded in the form of a podcast on "The Paradox of the Fundamental Right to Property in the Indian Constitution", I argue that the answer to the puzzle surrounding the chequered history of the fundamental right to property in India lies in the drafting of the constitutional property clause by the Constituent Assembly, a process that occurred over a period of two and a half years and engaged the finest political and legal minds in the country. 

I go on to describe the social, political and economic conditions and the operating intellectual discourses within which the Constituent Assembly debated and drafted the fundamental right to property in the Indian Constitution and argue that it was both the lack of consensus amongst the drafters and the paradoxical nature of the constitutional property clause that were responsible for its chequered history. But because property and property law is central to the way that our economic, social and political relations are organized, in telling this story, I also try to piece together a narrative of the broader social, political and economic structure that we devised for ourselves post-independence and how that has changed with the changes that we have made to our property laws and property relations since then, including the amendments to the fundamental right to property and its subsequent abolition. 

An edited transcript of the talk is also available on mylaw.net. Previous writings on this blog on the fundamental right to property and related issues of land acquisition can be accessed here. 

New book on Nepal's constitutional journey

Constitutional Nationalism and Legal Exclusion: Equity, Identity Politics and Democracy in Nepal by Mara Malagodi

This book is a detailed case study of Nepal's post-1990 constitutional experience. It examines the complex relationship between law and politics, and emphasizes the role of cultural identity in making institutional choices relating to the framing and implementation of the Nepali Constitution. The volume also analyses the patterns of legal exclusion that resulted in the growing politicization of identity, the de-legitimization of the 1990 Constitution, and the current demand for state-restructuring based on ethnic federalism and group rights. The author, tracing the evolution of Nepal from a constitutional monarchy to a republic, analyses the drafting of the 1990 Constitution, the impact of the Maoist insurgency (1996-2006) on demands for constitutional change, the relationship between conflict and demands for recognition, and the role of Nepal's Supreme Court in the articulation of identity politics. Based on pathbreaking research, this volume would be immensely useful to scholars, teachers, and students of law, politics, and international relations.

The book is available here.

In the spring of 1990 a People’s Movement led by the underground political parties succeeded in restoring democracy to Nepal. After three decades of monarchical autocracy, the Himalayan Kingdom embarked on a delicate phase of transitional politics. A new constitution was drafted in 1990 to institutionalize the compromise between the King and the political parties. Nepal’s regime change opened a Pandora’s box of identity politics.  Demands for recognition by women, dalits, and the country’s many ethnolinguistic, regional, and religious groups featured prominently in the constitution-making debates. The 1990 Constitution, however, adopted the strategy of ‘unity in diversity’ and institutionalized ethnocultural notion of the Nepali nation revolving around historically hegemonic Parbatiya narratives: Hinduism, the Shah monarchy, and the Nepali language. The ethnocultural articulation of Nepal’s national identity in the 1990 constitutional settlement, together with its successive implementation, raised serious concerns about the legal exclusion of many segments of Nepali society. 

Adopting the approach of historical institutionalism, this volume analyses key issues in Nepali constitutional politics: constitution-making dynamics in the 1990 transition, demands for constitutional change during the Maoist insurgency (1996–2006), patterns of legal exclusion leading to a growing politicization of identity, the impact of Supreme Court–level constitutional adjudication, and current demands for State-restructuring focusing on ethnic federalism and group rights.  

A timely empirical study based on the debates of the Constitution Recommendation Commission, Nepali legal sources, and interviews with key constitutional actors conducted by the author, this volume will be invaluable for scholars, teachers, and students of law,  political science, and international relations, as well as lawyers, judges, researchers, and policymakers interested in Nepal, India, and other South Asian jurisdictions.

(Based on the flyer sent by OUP)

Diplomatic Immunity of the Italian Ambassador

Shreya Rastogi (V Year, NLU Delhi) and I co-authored an article titled 'Diplomatic immunity in peril' that appeared as the lead op-ed in The Hindu yesterday (20th March). We argue that the Supreme Court's order restraining the Italian Ambassador and the 'waiver of immunity' argument in the contempt proceedings being considered are without basis in law. The outrage at Italy's actions are undoubtedly justified but the response to it cannot be to sacrifice the commitments we have made to protect the personal safety of diplomatic agents.

Shifting the focus to the legal proceedings against the Italian Ambassador can also be seen as a convenient way out for the Government. Rather than putting pressure on the Government to take the difficult political and diplomatic decisions to address the marines issue, the focus has been successfully shifted to what the Supreme Court would do. Of course, what cannot be ignored in this entire situation is the controversy surrounding the Government of India's $750 million deal to buy helicopters from the subsidiary of Finmeccanica, Italy's largest industrial group as far as high technology is concerned.

For an opposite view on the immunity of the Italian Ambassador, please read Arghya Sengupta's article 'Lawful responses to unlawful actions' that appeared in The Hindu on 16th March.

Advocates-on-record: Name on rent - II

Guest Post by Prashant Narang*

This year, sixty six candidates cleared the AoR exam and recently on 20.03.2013 those successful candidates were designated as AoR by the Judge-in-Chamber. In my previous post on AoR system, I had argued that the AoR system creates an unnecessary cost of an intermediary who lends his name to another lawyer to file and plead on his behalf without necessarily adding any value to the process overall. However, the proponents of this system contend that the system is important for the purposes of quality and geographical proximity of AoRs to the Supreme Court.

The AoR examination requires a number of criteria for registration: geographical proximity is one of them– an office within the radius of sixteen kilometers from the Supreme Court; and minimum professional experience of 4+1 years, i.e. four years of enrollment followed by one year of training with an AoR. 

Firstly, geographical proximity is not necessarily relevant. It is true that the Supreme Court registry does not work like the High Courts - specifically the High Court of Delhi where you are given a specific date instead of “list it after two/ four/ six weeks”, an ambiguous direction which is almost meaningless – the cases usually then come up after months and sometimes after a couple of years.  It is also true that the matter may ‘reach’ any time. The immediate question is: why is the Supreme Court not more certain and precise like the High Court of Delhi? It should be. That apart, the non-AoR advocate who engages an AoR is the real person who handles the case, interacts with the client and briefs the senior counsel. He may not be in proximity of the Court and yet his presence or absence matters more for all purposes whereas AoR’s presence is irrelevant but for the rule. He can be communicated directly about the details of the matter by way of a better technology. There is nothing that stops the registry to develop a mobile app to update the lawyers on their cases, to send the respective ‘office reports’ and daily cause-lists etc. So, should such administrative or technological lag be covered up by creating geographical barriers for lawyers to practice in the Supreme Court? The absence of (or an inefficient) online communication system in the Apex Court of the nation should not be a ground of breeding an anti-competitive practice. There is no parallel probably anywhere else in the world defining an entry barrier for litigation practice in the Apex Court based on 16 km distance criteria.  

Secondly, as far as quality is concerned, there is already a double-tier qualitative check in place in form of entry requirements by the Bar Council of India. The law colleges are accredited by the Bar Council of India and secondly, there is an All India Bar Exam post-law school degree. Please note that the Supreme Court Rules are taught in LL.B. as a separate subject in the final semester in many Universities. The question is: Are these existing qualitative entry barriers not enough for the Supreme Court practice? Why another check?

Of course, the proponents may argue the existing qualitative barriers are not enough. Then, should the other Courts too not have a similar system in place? Two, why should those existing checks not be improvised and made efficient so that all Courts can have the privilege of better quality of lawyers? Third, arguendothe Supreme Court requires better quality advocates than the high courts and other lower Courts, it can be achieved by independent accreditation or certification by a private agency instead of licensure. 

Undoubtedly, this system is unnecessary and rather has negative unintended consequences for litigants and first generation young lawyers. 

(* The author is an advocate based in New Delhi.)

Case Hearing: AP Civil Liberties Committee v AP

The Supreme Court is scheduled to hear an appeal from the Andhra Pradesh High Court's judgment in the AP Civil Liberties Committee v the Government of Andhra Pradesh tomorrow (the 12th of March 2013). The case deals with encounter deaths and HC held that:

Every time a person is killed by a police officer,
1. If a complaint is made, an FIR must be registered. Judicial precedence is clear that police do not have a discretion not to register an FIR. The FIR's sincerity, veracity etc cannot be determined at the registration stage. Also, it is not necessary for the FIR to name the officers involved.
2. Once an FIR is registered, an investigation must be launched. The investigation may conclude that (a) no killing took place, or (b) that the killing was excused as an exercise of one's right to private defense, or (c) that the killing was not excused and therefore illegal.
3. The Judicial Magistrate is not bound to agree with an investigation report which concludes that the killing took place in course of the exercise of the right to private defense. The judicial discretion must be exercised independently and if the Magistrate thinks that this is not conclusively proven, she can take cognizance under section 190 fo the Code of Criminal Procedure.

This blog has discussed the case in detail previously at this link.

One hopes that the Supreme Court will uphold the very sensible judgment of the AP High Court that an unnatural death needs to be investigated. Indeed, several other jurisdictions, including those with a far more conservative tradition of judicial interpretation of constitutional rights, have held that the right to life includes a duty on the state to investigate unnatural deaths (see the European Court of Human Rights jurisprudence on the duty to investigate, for example). 

Overturning the AP ruling will be against the core values of liberal democracy.

UPDATE:  The case has been referred to a larger Bench. The latest order is here.

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.