Sunday, October 26, 2014

Indian Journal of International Economic Law

The Indian Journal of International Economic Law is now accepting submissions for its upcoming new volume. The Journal is an endeavour to encourage scholarship in the fields of international trade law and international economic law. Write to or for more details. 

Tuesday, October 21, 2014

Nehru's Letters to his Chief Ministers

During his term as Prime Minister, Jawaharlal Nehru wrote a remarkable set of letters every fortnight to India's Chief Ministers. In an anthology, published by Penguin and edited by me, the letters are now finally available for wide readership -- available here.

From the jacket cover:

In October 1947, two months after he became independent India’s first prime minister, Jawaharlal Nehru wrote the first of his fortnightly letters to the heads of the country’s provincial governments-a tradition that he kept until his last letter in December 1963, only a few months before his death. Carefully selected from among nearly 400 such letters, this collection covers a range of themes and subjects, including citizenship, war and peace, law and order, national planning and development, governance and corruption, and India’s place in the world. The letters also cover momentous world events and the many crises and conflicts the country faced during the first sixteen years after Independence. Visionary, wise and reflective, these letters are not just a testimony to Nehru’s statesmanship and his deep engagement with every aspect of India’s democratic journey, but are also of great contemporary relevance for the guidance they provide for our current problems and predicaments.

Wednesday, October 15, 2014

The Taming of the Tribunal

In a recent op-ed in the Financial Express, I reflect on the recent Supreme Court invalidation of the National Tax Tribunal (NTT). While some see this as payback by the judiciary against the government for unleashing the JAC bills on them, I argue that its a well reasoned decision and could not have gone any other way. I also posit that under the logic of this Supreme Court decision, a number of other tribunals will be axed as well, such as the IPAB, Green tribunal,  etc. For these are all tribunals which took over erstwhile judicial functions and the rigour of the NTT ruling applies most forcefully to them.

Issues with the IPAB (Intellectual Property Appellate Board)
In particular, I highlight the various infrastructure and competence issues with the IPAB, a tribunal against which I mounted an invalidity attack more than four years ago! Despite our best efforts, it continues to languish in the Madras High Court,  a court beset with chief justices that look for the shortest exit route after taking charge. Our latest set of applications challenging the process for the appointment of Vice Chairman is documented in this blog post here. 

For those interested (particularly those without the patience to click through on any of the links), I'm excerpting relevant portions from the Financial Express editorial. 

"The Supreme Court effectively ruled that in order to remain constitutionally valid, a tribunal tasked with adjudicating core questions of law ought to be on par with a high court in terms of independence (from the executive) and professional competence, i.e. staffed with members that have the requisite judicial qualifications to adjudicate. Under the rigour of this ruling, a number of tribunals are likely to be guillotined. And not without good reason, since the government has effectively trivialised justice through its flippant flowering of tribunals.

Consider the Intellectual Property Appellate Board (IPAB). Till date, it has not had adequate space or infrastructure. During the first few years, it was forced to beg the Indian patent office for a hearing room, an agency whose very decisions it was supposed to sit in appeal over! More egregiously, the quality of members appointed to adjudicate this complex legal terrain left much to be desired—particularly stark is the case of an alleged specialist who stated in his CV that he appeared in trademark cases as far back as 1910. Clearly, a case of reincarnation if ever there was one."

Going Forward: Policy Options?

I then conclude with outlining two broad policy options for the way forward, as excerpted below:

"How do we fix this mess? Under the logic of the NTT ruling, there are two broad policy options.

One is to redress all issues with the current set of tribunals through an umbrella legislation, free them from government influence and elevate them to a position as close as possible to the high courts. But this is a tall order. And indeed, one may ask: If a tribunal has to be on par with a high court, what is the point of having a separate tribunal at all? And this brings us to the second option: To have a specialist bench at the various high courts, staffed with those that have some prior background or expertise in the concerned subject matter (such as intellectual property or environment or tax law). Indeed, in a strange twist, the current Attorney General who batted vociferously for the NTT had, only a year or so ago, vehemently decried tribunalisation, and advocated rather forcefully that the tribunals ought to shut shop and their functions vested back in the high courts.

This second option guarantees some level of specialist expertise, but within the overall supervision and framework of the high court. As such, it appears a more workable solution than instituting a separate set of tribunals, housed independent of the high courts. It bears noting that now a Bill is pending before Parliament to regulate tribunals; unfortunately, its focus is rather limited, as it seeks to merely regulate service conditions and does nothing to redress the various constitutional flaws plaguing the current set of tribunals."

Reasons behind the Decision:

While the NTT decision is a legally sound one, following as it does, a long line of case law, it represents one of the strongest condemnation of the judiciary of the usurpation of judicial power by the executive. The reasons for this strong condemnation may have to do with an affidavit filed by the government in a related case filed by the Madras Bar Association, represented by the inimitable Arvind Datar who's been waging a war against the flippant flowering of tribunals for more than two decades now! 

I'm given to believe that, in this petition before the Supreme Court asking that the decision in L Chandra Kumar be implemented and all tribunals be brought under an independent regulatory agency, the government filed an affidavit stating that this was difficult, since the respective government departments did not wish to give up control over their tribunals. Speak about digging your own grave! 

Problems with the Decision

1. While the NTT decision is a legally sound one, it is, as with most other things in life, wanting on some counts. For one, it meanders a fair bit, citing case law and propositions endlessly without following a more coherent structure. It runs into a good 270 pages ensuring that only the most committed would wade through it in its entirety! Counsels' arguments complete with their case law citations (and long passages) are rehashed in almost 100 pages of the decision. The very same cases that counsels cite are then again reproduced in the judges' own analysis section. More problematically, long passages from ancient case law are reproduced for what are now fairly obvious legal propositions. Illustratively, a well established proposition (such as the fact that "judicial review" is now part of the basic structure) which could have been disposed in a paragraph or two is cited several times and long passages from earlier case law (Minerva mills etc) are reproduced running into almost a good 10 pages or so. A shorter and more crisper decision succinctly laying down the law would have been a delight to read. And dare I say that this might have promoted better access to law, given that shorter and crisper decisions have a great propensity of being read by the masses. 

2. Given that the NTT is a rare tribunal (tasked only with adjudicating substantial questions of law), the question arises as to whether or not the SC ruling applies to all other tribunals (even those that are tasked with factual determinations). I excerpt from the editorial:

"One may argue that not all tribunals need conform to the exacting standards laid down by the court. After all, the NTT was a rather special tribunal tasked with deciding only substantial questions of law. As such, it constituted an usurpation that was, in the words of Justice Nariman, “the ultimate encroachment on the exclusive domain of the superior Courts of Record in India.”

Unlike the NTT, most other tribunals are tasked with deciding factual issues as well, and some even decide cases at the first instance. For those tribunals, might one have a slightly different yardstick than the strict standard imposed by the NTT? A literal reading of the majority judgment may not permit this distinction, as it appears to apply to all tribunals that effectively substituted for the high courts. This is one area that the court might need to revisit in the future. For the exigencies of a modern state and regulatory apparatus demand a more flexible framework, where a wider subset of people and agencies are tasked with justice dispensation, particularly in technical and specialised areas. As the courts themselves admit, the separation of powers doctrine under the Constitution is a rather fluid one and not strictly cast in stone. As such, we should have more freedom to experiment with our justice dispensation framework. Let us hope that this decision is a starting point for that dialogue. And not the trigger for yet another turf war."

3. The NTT judges reiterate at several instances that erstwhile high court jurisdiction can be transferred to tribunals, only if the tribunal is brought on par with the high court . Under this logic, could one run an argument that tribunals such as the IPAB could never have "technical members" participating in decision making and writing judgments? If at all there is to be a technical expert on the tribunal, the said person must merely be an assistant being called on from time to time to assist judges in understanding the technical aspects thrown up by the case at hand? To this extent, the NTT ruling appears to be at odds with the earlier R Gandhi case (involving the constitutionality of the Company Law Tribunal), which suggested that disputes that involved technical aspects (such as telecom and IP) could have technical (decision making) members. 

4. I personally think Justice Nariman's judgment, taken by many to be one that concurs with the majority opinion, is effectively a dissent, on at least one court. His judgment appears to suggest that when it comes to substantial questions of law and appellate jurisdiction, our constitutional scheme does not permit any other court (other than the SC/HC) to adjudicate. Does this mean that no matter how robust the tribunal (in terms of its equivalence to the high court), it would still fall foul of the Constitutional scheme? The majority decision appears to suggest that so long as the tribunal is on par with a high court, all is well. But Justice Nariman's judgment appears a bit stronger on this count and does not appear to leave even that possibility open. I could be wrong here, and look forward to hearing from others on this list who have a more nuanced understanding of these issues. 

5. Lastly, I'm very keen on learning from those in the know as to what the exact distinction between "judicial" and "quasi judicial" is? And the difference between a "question of law" and a "substantial question of law". Is it not possible to convert almost any question of law to a substantial question of law; for almost every question of law can be said to have a bearing of some aspect of a right or duty that is called into question in the dispute. Further, within technical domains such as IP, is it not fairly easy for a crafty lawyer to convert most questions of fact into questions of law. And then to convert such "questions of law" to "substantial questions of law."?

ps: For those interested, here are some helpful links:
i) Pallavi Saluja of Bar and Bench interviewed Arvind Datar in the aftermath of the NTT ruling here. ii) Justice Prabha Sridevan (ex Chairman of the IPAB) wrote a potent piece on the dismal state of affairs at the IPAB in an editorial for the Hindu late last year
iii) Gautam Bhatia has a very helpful summary of the NTT ruling here, where he takes issue with the decision for relying on "constitutional conventions" and for holding that even normal legislation (as opposed to constitutional amendments) can be reviewed for compliance with the basic structure doctrine. 

Tuesday, October 14, 2014

India's Judicial Architecture

I recently posted on SSRN this piece on India's judicial architecture. A revised version of it will be published in the upcoming Oxford Handbook on the Indian Constitution, which will contain an impressive range of chapters on the Indian Constitution and is being edited by Pratap Bhanu Mehta, Sujit Choudhry, and Madhav Khosla. My piece is is under 20 pages and I hope it will end up being a useful introduction to the Indian judicial system to both law students and interested non-lawyers who want to learn about the judicial system's structure and functioning. I also think it includes some more nuanced points that may be of interest to practicing lawyers and legal scholars.

In the piece I lay out the hierarchies and relations between different courts and judges and explain how the judiciary coordinates its behavior through a system of stare decisis and internal administrative control. Drawing on some of my own previous work and the work of others, I argue in the piece that the Indian judicial system is particularly top-heavy, with more cases, more judges, and more administrative power located in the upper judiciary, and especially the Supreme Court, than in most other systems. This top-heaviness has a range of implications that the article explores, including leading to a more polyvocal jurisprudence and fostering a unique set of inter-judge dynamics, that while empowering the upper judiciary may also weaken the overall judiciary's ability to perform core parts of its institutional mandate.

If others have feedback - whether this is errors or what you perceive to be a grievous (or not so grievous) omission or mischaracterization - I would love to hear it either in the comments section or via email. There will be other chapters in the Handbook on judicial independence, tribunals, judicial interpretation, and jurisdiction so these topics are not covered in as much detail as they might otherwise be in my piece.   

Thursday, October 02, 2014

Pharmaceutical Patents and the Dawn of a New Era

In a piece in the Indian Express a couple of days ago, I expressed some apprehension about the latest round of licensing agreements signed between Gilead and seven Indian generic companies. And argued that since many of our generic majors are now partnering with western multinationals and foregoing the option to challenge their patents, the government must play a stronger role in public health and access. It cannot simply continuing relying on these generic majors and the competition that they helped unleash earlier through strong patent challenges. For those interested, here are excerpts from the piece. The full text is available here.
"Prime Minister Narendra Modi’s US visit is likely to throw up highly contentious intellectual property rights issues. Indeed, for the last several years, US drug majors and their European counterparts have lobbied hard to demonise the Indian patent regime. But the government must continue to defend the law and stand its ground. Particularly since our own industrial moguls have caved in and are less vocal about their opposition to a global patent paradigm scripted by Western industrial interests.
It is against this backdrop that one must view the latest deal between Gilead, a leading US pharmaceutical company, and seven Indian generic firms, to manufacture and distribute an important antiviral in several low- and middle-income countries. The deal pertains to the licencing of Sovaldi, a patented hepatitis C drug that revolutionised treatment but is priced at a whopping $84,000 for a three-month course. Faced with mounting pressure from patient groups and strong patent opposition in India, Gilead announced that it would sell Sovaldi for $900. Immediately thereafter, it announced the licencing arrangement.
The announcement of Gilead’s licencing agreement generated consternation among public health activists, who believe that its patent is vulnerable under India’s stringent patent standard, which was upheld by the Supreme Court in the famous Novartis case.
...What does all of this mean? Are we seeing a new phase in pharmaceutical history? Does this have to do with a gradual whittling away of the sharp innovator-versus-generic divide? A divide that is often considered a defining feature of the pharmaceutical industry, distinguishing it from most other technology sectors. Notably, while the high technology sector routinely sees a fluid innovator versus infringer dynamic, with Microsoft and Google suing as much as they are sued, the pharmaceutical industry is different. Patent positions are more ossified, with alleged innovators, typically MNCs, suing generic copycats, typically Indian companies. However, it would appear that this dividing line is now blurring, with generic companies aspiring to jump on to the innovation bandwagon, and drug innovators waiting to acquire generic divisions.
.....All of this means that public health and affordable access will take a severe beating. We can no longer expect our home-grown generic companies to guard this turf. Growing partnerships between them and global innovators will mean fewer patent challenges. As such, the government cannot remain content with relying on free-market competition from the generic sector to bring drug prices down. It has to play a more active role to foster affordable healthcare and revive its once-prominent public sector units. It is this new dynamic that Modi must bear in mind as he negotiates with a partner that is all too keen to collaborate on the IP front, but mostly on its own terms."
In the immediate aftermath of Prime Minister Modi's rockstar visit to the US, we've had an announcement by the Indian and US governments of a high level working group on IP.  We've also had a hard hard hitting editorial in the HT from Raj Dave and Srividya Ragavan here. Responding very well to the continued cacophonic outbursts against India's IP regime. Also some weeks ago, Yogesh Pai wrote a thoughtful piece on the likely direction of the Modi government when it comes to IP policy. Since then, the Minister of Commerce announced that an IP policy was in the offing. 

Wednesday, September 10, 2014

The JAC Bills: From Representative to Deliberative Democracy?

In a recent op-ed in the Mint, I lament the lack of public consultation in Indian law and policy making. I argue that its high time we moved from representative to deliberative democracy. I note the existence of a cabinet resolution calling for public consultation but note that it is weakly worded and that we need a stronger legal entitlement to the same. I extract some portions below. And welcome thoughts and suggestions. You can access the full piece here

Judging a Democratic Deficit: Some Excerpts

"I intend neither to praise the Bills nor to bury them, but to point to a cardinal flaw in the lawmaking process here—that the law was introduced in Parliament without any significant public consultation. And this despite the fact that the Bills related to one of the three key pillars that constitute the modern state—the judiciary. The genesis of the present set of Bills can be traced to an earlier set presented before the Rajya Sabha in 2013. Since they lapsed with the dissolution of the Lok Sabha, the government reintroduced the Bills in Parliament after taking into account most suggestions of the parliamentary standing committee. However, neither the present set of Bills nor the earlier ones was ever thrown up for public deliberation prior to their introduction in Parliament. In a country that prides itself as the world’s largest democracy, this is utterly shocking, but hardly new. One can cite numerous instances of more egregious infractions, where the public had no inkling of a new law being afoot before they read about it in the papers as having been introduced in Parliament. 

Clearly, this must change. One cannot remain content with a mere representative democracy, where the public engagement begins and ends with the casting of a vote, lasting but a few seconds (not counting the wait in the queue to get to the polling booth). Rather, one needs to move to a more direct and deliberative engagement with democracy. One way of bringing about this transition is through the fostering of public participation in law and policymaking. 

.....Interestingly enough, a cabinet resolution issued in January this year mandates public disclosure of draft Bills, but leaves the issue of consultation with key stakeholders as a discretionary power in the hands of the concerned ministry. This cabinet resolution might be the best place to start with in terms of ushering in a new era of deliberative democracy. The government should immediately make this more public, as it is conveniently hidden in one of the pages of the unsearchable ministry of law website, and solicit views to help improve it. It should then take the suggestions into account and draw up a Bill that would convert this toothless cabinet policy into an enforceable legal entitlement. More importantly, given our alleged technology leadership, it would help to first build an easy-to-navigate digital platform for eliciting public views on any new law or policy.

Opening up lawmaking in this way is likely to have other benefits as well. For one, as with open source software and the wonderful innovation that it helped unleash, an open platform benefits from the ingenuity of multiple minds and may throw up far better ideas than a closed-door setting. The challenge, of course, is to coordinate this openness in such a way that the costs do not outweigh the benefits....." 

Oxford Report on Pre Legislative Briefing

For an in-depth view of these issues and a comparative perspective on pre-legislative consultation, see this insightful report by Tarunabh and team. He'd blogged on it earlier here

Anna Hazare and Law Making:

In a piece penned around two years ago (during the height of the Anna Hazare agitation), I had reflected on a similar theme for the Times Crest and noted:

"Given this backdrop, the moral success of the Hazare agitation throws up an excellent opportunity to open up this closed law-making process and to pave the way for more deliberative discussions. Unfortunately, the Hazare movement has come across as controlled by a select few who wish to replace the government coterie with their own. 

Questionable as their means are, Hazare and club have broken new ground by gaining admission to a closed-door law making process. It would be a travesty if they now replicated the hegemony they seek to challenge. They must now leverage the moral capital gained so far and translate it to a call for wider and more informed public policy and law making. This must involve not just educating and sensitising the public, but also our ministers and parliamentarians. For, in the allegedly selfless act of starvation by an endangered Gandhian species lies the hidden potential to begin the slow process of transformation from a largely formal democracy to a more substantive and participatory one."

The Indian "Bayh Dole" Bill And Secret Law Making:

Also for those interested, this sheer lack of public consultation in law making was most egregiously witnessed during the making of a bill relating to publicly funded intellectual property. I reflect on this in this article for the Columbia Journal of Asia Studies. The full piece can be downloaded from SSRN here and the key portion of the abstract dealing with "secret" law making is as below:

"We also reflect on the “secret” history of the Bill and how it was for­ formalistically drafted without thorough study and investigation of the realities pertaining to publicly funded research and patenting activities in India. The paper will show that the passage of the Bill demonstrates non­ transparency of the highest order and lessons in he “don’ts” of lawmaking in a healthy democracy."

ps: I want to thank Arghya Sengupta, Sai Vinod and Prianka Rao for helpful inputs that went into shaping the Mint editorial. As always, grateful for reader comments and suggestions. 

Monday, September 08, 2014

The Scottish Referendum on Independence

Indian media has so far maintained a surprising silence over a remarkable event unfolding in the United Kingdom, one that any country facing secession demands should be watching very intently. Even our Foreign Minister Sushma Swaraj betrayed her complete ignorance of the issue when a British journalist asked for her comments.

Scottish voters go to polls in less than two weeks to give a yes or no answer to this question: 'Should Scotland be an independent country?' With opinion polls showing that the vote will go down the wire, the United Kingdom of Great Britain and Northern Ireland could soon see Scotland's secession, and become the United Kingdom of England, Wales and Northern Ireland (how long Northern Ireland stays within the Union is also debatable). 

Of course regions have had referenda in the past to decide questions of secession. Quebec had one. Nehru promised one in Kashmir before circumstanced changed. What is especially interesting in the debates over Scotland is the prominence of the economic issues, with nationalistic jingoism rather muted. A taste of the concerns of the voters may be had from these two guides. The pound, welfare spending, heath care, devolution--these seem to be the most important concerns of the Scottish voter. Rest of the UK seems to be offering far greater autonomy to Scotland if it chooses to stay. The main problem on these economic concerns is that Scotland has traditionally been left-wing, but much larger England often puts right-wing Tories in government, who typically like to spend far less on the welfare state than what many Scots would like. The devolution in 1998 secured many powers for the Scottish Parliament anyway. If Scotland stays, many more will undoubtedly be devolved. But the allure of Tory-free governance may be attractive to the Scots (it may also condemn the rest of the UK to a near-permanent Tory majority--it will certainly make it much harder for Labour to form government without the left-leaning Scottish MPs, at least in the medium term).

More than mere geography, the character of the nations involved is at stake. It is still remarkable that the issue is being settled without a bullet having been fired.

Friday, September 05, 2014

Former Attorney General Goolam Essaji Vahanvati -- A Junior's Tribute

Goolam E. Vahanvati does not just pass away. He stays with you.

A mentor refers to an experienced and trusted adviser. For the last four years, he has done a lot more than mentor me. He treated me, and everyone else is in his chamber, like family. Every rap on the knuckle was followed by an apology, even though the rap was occasioned by a lapse on our part. That is who he was – eager to drive his juniors on so that they excel in what they do. That is the person I know. A smile, a wink, a laugh, a hand on your shoulder.

There are people, advocates and otherwise, who have known him for a much longer period than I have. I do not have the standing as yet to comment on Boss’ court craft. But one thing I will say – when he argued, we all listened spellbound. Even though we knew exactly what his propositions were and what he was going to submit. He made every argument sound like a captivating story, with the audience wanting to know what would come next.

The amount of preparation and meticulousness that went into each submission is a lesson for one and all. I could go on, and give details of various cases he argued, but then I know he would admonish me for being verbose.

It will take us all who have worked with him months, maybe years, to come to terms with the fact that he is not physically present anymore. But the impact he has had on our lives is etched in stone. If, at the end of my career, I manage to become a fraction of the advocate he was, I will be a content person.

I would say thank you, I only wish I had got the chance. Hopefully, I will manage to show how grateful I am one day.

For every judgment I am unable to find, and for every proposition of law I have trouble developing, he will be there, telling me, in a gentle voice which is barely audible, how to do it. Like I said, he stays with you.

Keep rapping us on the knuckles Boss. We would not have it any other way.

Guest obituary by Anoopam Prasad, Advocate, who works at the former Attorney General's Chambers. 

Tributes to Vahanvati have also been paid by the present Attorney General, by Arvind Narain and Mayur Suresh, who are human rights lawyers, and by the journalist and commentator, Vikram Doctor.

Saturday, August 30, 2014

Excessive Delegation in the Judicial Appointments Bill?

We bring you a guest post from Aradhya Sethia, a very bright third year student of the National Law School, Bangalore.

The Vice of Excessive Delegation in the NJAC Bill, 2014: The Devil is in Details

The reforms on judicial appointment in India have largely focussed on the question: ‘who should select the judges?’ However, they have largely ignored the two equally, or probably, even more important questions: ‘how should the judges be selected?’ and, ‘who should be selected as a judge?’ The hastily passed NJAC Bill in the Parliament has indeed sought to substantially answer the first question i.e. who should select? The other two questions have been left completely to the Central Government and the Commission. The tussle between the judiciary and the executive has been the cornerstone of the ‘Separation of Powers’ debates surrounding the Bill. However, the Bill also poses serious questions with respect to separation between legislative and executive functions, which is manifested in the delegation of legislative powers, an issue at the heart of the separation of powers between executive and legislative. In this post, I will analyse, if such wide delegation of powers in the Bill is constitutionally sustainable.

Doctrine of Excessive Delegation

According to the doctrine of excessive delegation, if the legislature excessively delegates its legislative function to any other authority, such delegation will be held unconstitutional. This doctrine fulfils two objectives: first, it ensures democratic accountability in the laws through which the people are governed and, second, minimum delegation provides the courts with some discernible standard to judge if the rule/regulation is ultra vires the parent statute. 

However, the question that arises is: where exactly do we draw the line for ‘permissible limits’ of delegation? In Re: Delhi Laws Act [AIR 1951 SC 332], Kania C.J. stated that though legislature can confer powers to make rules and regulations for carrying the enactment into “operation and effect”, it should lay down the “policy and principles providing the rule of conduct”. The wide latitude in rule-making power to any non-legislative authority can be left only in “cases of emergency like war”. In Ajoy Kumar Banerjee v. Union of India [1984) 3 SCC 127], the court held that “declaring the legislative policy and laying down the standard with sufficient clarity” constitutes ‘essential legislative function’, which cannot be delegated. In Agricultural Market Committee v. Shalimar Chemical Works Ltd. [(1997) 5 SCC 516], the permissibility of delegation was further restricted only to ‘mode of implementation’. This brief survey of loci classici on permissibility of delegation makes it clear that the function of subordinate legislation is merely an ancillary one to make the policy functional rather than making policy choices. 

Determining Suitability Criteria is not a “procedural or administrative” function

In the NJAC Bill, there are two types of powers delegated to the Commission: The first one pertains to determining suitability criteria, which includes mainly the criteria of suitability with respect to appointment of the Judges [s. 5(2) and s. 6 (3)]. The second type pertains to procedural and administrative issues including the ‘manner of eliciting views from Chief Ministers and Governors’[s. 12(2)(e)], ‘procedure for conducting the meetings of the commission’ [s.12(2)(i)] etc. The delegation of the second type, being merely procedural and administrative in nature, can be tolerated. The problem arises specifically with respect to the first type of delegation dealing with suitability criteria. 

The ‘Memorandum Regarding Delegated Legislation’ of the Bill states that the delegation is merely ‘procedural or administrative’ in nature, and hence of normal character. The factors for selection of Judges not only reflect the kind of duties that the judiciary is expected to perform, but also embody the vision of judiciary that we envisage. Therefore, the delegation vis-à-vis determination of suitability criteria is not merely a procedural or administrative function, but necessarily involves making policy choices in tune with our vision of the higher judiciary. Therefore, such delegation falls beyond the scope of the memorandum, which is only restricted to procedural or administrative. Since the delegation in the Bill actually extends beyond procedural or administrative functions, it cannot be said to be of normal character. 

There is no policy guidance for determining Suitability Criteria

The delegation of legislative functions in the Bill is indeed very broad. However, such a broad delegation may not be problematic if the legislation itself contains sufficient principles to guide the Commission. The Statements of Objects and Reasons of the NJAC Bill seem to focus mainly on the shift of power of selection from the existing system to the Commission. There doesn’t seem to be any policy which may guide the determination of selection criteria. The only guidance in the statement of objects and reasons is that the recommendation procedure should have greater ‘transparency, accountability and objectivity’. Further, in the provision itself, the only other policy guideline is the phrase ‘ability and merit’. Any judicial attempt to construe these vague phrases as sufficient policy guideline for laying down selection criteria would result into what Mathew J., in his dissenting opinion once put as: “the hunt by court for legislative policy or guidance in the crevices of a statute or the nook and cranny of its preamble”, which, “is not an edifying spectacle” [Gwalior Rayon Co. v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660]. 

Subject matter of the legislation does not necessarily require such delegation

There have been rare cases where the courts have upheld a skeletal legislation such as this one. However, the rare cases dealt with those subject matters where, due to the element of emergency situation, leaving such broad powers to subordinate authorities was necessary. For example supply of essential commodities [Harishankar Bagla v. State of M.P., AIR 1954 SC 465] and control of import and export [Bhatnagars & Co. v. Union of India AIR 1957 SC 478]. In the landmark case of D.S. Garewal v. Union of India [AIR 1959 SC 512], the court upheld the delegation of power to lay down the selection criteria for All India Services for two reasons: the exigencies of the subject matter i.e. public services, where rules may have be changed frequently and, the Act adopted the pre-existing rules till the new rules are framed. None of these justifications apply to the Bill, as unlike public services, there are no such exigencies involved in judicial appointments. Additionally, there are no pre-existing rules or any adoption of such in the Bill. 

Unlike the cases discussed above, the NJAC Bill deals with the appointment of the Higher Judiciary, which does not involve any emergency situation. It is only in the interest of the Constitution that it is carried out after proper democratic deliberation and not in haste. 

Does the ‘Laying’ Procedure Prescribed in the Bill Provide Sufficient Procedural Safeguard? 

‘Laying’ before the legislation is an important check on the exercise of delegated powers. There are three types of ‘laying’ procedures: Simple laying, laying subject to negative resolution and, laying subject to affirmation. Simple laying is a mere formality where the parliament does not have any control over the delegated legislation, except for subjecting it to a parliamentary debate. In negative laying, the Parliament has the power to annul or modify the rules once it is put before it under this procedure. However, the actions already taken under the rules will not be affected by Parliamentary modification or annulment. In the third type of laying procedure, the draft rules are put for the Parliamentary scrutiny and they do not come into force, until the Parliament affirms them. 

Out of all the three types of laying procedures, only the third type of laying procedure (i.e. affirmative laying) is mandatory, while the others are merely directory in nature [Atlas Industries Ltd. v. State of Haryana,AIR 1979 SC 1149]. The laying procedure prescribed in the Bill [Section 13] is of the second type. It is submitted that since the Bill performs an important function of appointing the Constitution’s gatekeepers, it should have adopted the third type of laying procedure. 

Instead of passing the Bill in haste, the Parliament should have cared to include those details in the Bill itself, rather than leaving it completely to a six-member body, which is comfortably shielded from democratic accountability. It seems apt to say that this haste has lost us an opportunity of creating a definite God in detail. Instead, what we are left with is an indefinite devil in the details. 

Wednesday, August 20, 2014

Questioning the National Judicial Appointments Commission Act, 2014 -- Guest Post by Smaran Shetty

With the passage of the 121st Constitutional Amendment Bill and the attendant National Judicial Appointments Commission Bill, the collegium system of appointments, now 21 years in the making, is sought to be replaced by the newly created National Judicial Appointments Commission (‘NJAC’). Unsurprisingly, concerns over this new method of judicial appointments have been articulated both in terms of a perceived incursion into judicial independence as well as the logistical uncertainties for the NJAC, which is tasked with appointments to all courts of the higher judiciary. This stance is tempered with a candid admission as to the limitations of the collegium system, which as is argued, although imperfect, still remains a relatively better mode of appointments in comparison to the proposed NJAC.

All of these fears are valid, from a stand point of preserving a constitutional balance intended to secure an optimal degree of judicial independence as well as questions of efficacious constitutional design. I wish to however move away from these macro level concerns, voiced in terms of how the NJAC may eventually vote, the undefined criteria of appointment of “eminent persons”, the dangers of a veto and possible executive capture of the NJAC. In this post, I wish to discuss certain alarming provisions within NJAC Act, that should alert us to the possible ways in which pervasive legislative control may be exercised over the newly contemplated appointment procedure.  

The NJAC Act, 2014 is passed in pursuance of the newly inserted Article 124A and 124B which establishes and gives to the National Judicial Appointments Commission constitutional status, while at the same time describing its composition, functions and powers. Under the NJAC Act, the procedure to be followed for appointments to the High Court as well as the Supreme Court is clearly spelt out. Most importantly, in furtherance of the newly inserted Article 124C, the NJAC Act, vests both the Central Government as well as the Commission itself, with rule making power to further define the manner in which appointments are to be made. 

The rule making power of the Central Government is rooted in Section 11, which provides for the power to fix the remuneration and other service conditions for the members of the NJAC. Section 11(2)(c), in the nature of a residuary clause, considerably expands this rule making power by stating “any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules.” On the other hand, the rule making power of the NJAC itself is rooted in Section 12, and empowers the Commission to prescribe regulations for the criteria to be considered for judicial appointments, the criteria for consulting members of the bar for such appointments and other important substantive and procedural questions.

An immediate concern, given the wide and overlapping rule making power of the Commission and the Central Government, is a potential for conflicting rules, and an uncertainty as to which set of regulations would prevail, if such a conflict were ever to arise. This fear is not entirely unfounded, since the Law Ministry is actively involved in the functioning of the Commission. The Law Minister himself is a member of the NJAC, and the Ministry is tasked with promptly forwarding details as to prospective judicial vacancies, to ensure timely appointments. Considering this intimate interface between the Law Ministry and the NJAC, it would be natural to foresee a situation in which the Law Ministry seeks to regulate the functioning of the NJAC, which may potentially over lap, and worse still, conflict the rules of the Commission.

More troubling however is Section 13 of the NJAC Act, which subjects the rules, made in furtherance of this act (both by the Central Government as well as the NJAC) to alteration by both houses of parliament. Sub-ordinate legislation drafted by the executive is not subject to a uniform standard of review by Parliament, and may vary depending on the terms of the statute vesting such power. Generally however, statutes require that drafted rules be laid before both houses, and changes may be made by the parliament within 30 days of such laying (resembling Section 13 of the NJAC Act). Rarely, is the operationalization of such rules subject to prior parliamentary approval. Sub-ordinate legislation drafted by judicial bodies under the Indian constitution are qualitatively distinct, and are not subject to similar oversight. For instance, under Articles 145 and 229, the Supreme Court and High Court respectively, are granted rule-making powers for the discharge of their constitutional duties as organs of the higher judiciary.

Although the scope this rule making power varies, the purpose behind the vesting of such power in constitutional courts, is to empower them to draft such regulations as may be necessary for the proper discharge of their duties. Towards that end, as well as to further secure judicial independence, the rules drafted by the Supreme Court under Article 145 are not made subject to the Union Parliament, but instead subject to the confirmation by the President. Similarly, rules made by the respective High Courts are not subject to modification or approval by the State Legislatures, but are subject to approval from the Governor of such a state.

Considering the proposed NJAC is a constitutional body, and that it performs a vital judicial function, without however being a judicial organ, the rules made by the Commission, should not be subject to parliamentary modification. The ability of parliament to alter, in any manner, howsoever insignificant, the regulations of the commission, seriously impedes the ability of the NJAC to determine for itself, the relevant criteria to be considered for the manner and method for judicial appointments. This is not to suggest that the regulations of the NJAC would be subject to no safeguards whatsoever. Under Article 145 and 229, rules drafted by judicial organs continue to be subject to judicial review, and may be struck down if repugnant to any constitutional provision. The rules of the NJAC, should therefore be treated of such a like nature, and should be made subject only to judicial review.

Section 13 of the NJAC Act, should then alert us to the indirect, yet significant manner in which the government may continue to retain unjustified supervisory powers over the Commission. If the rationale for the creation of the NJAC is that judicial appointments must be reclaimed from the exclusive domain the judiciary, then surely, it must also be insulated from governmental interference in the finer points of its functioning and parameters of deliberation. Importantly then, is the need to debate the constitutionality of the NJAC, not merely in broad claims of judicial independence, but in the more minute details of how such functionaries are to operate and whether the intended constitutional space for such a Commission to operate in, is encumbered by unwarranted government presence.

Interestingly, Arun Jaitley (the then leader of opposition) delivered a strident and informed speech in support of the new appointment procedure. Among the many valid points he made, he called for a shift away from “impressionistic” judicial appointments towards a more objective criteria for assessing prospective judges. He illustratively stated that the proposed commission while deciding the merits of a candidate should look into his/her performance at the bar, academic and scholarly work, record of reported judgments (if any) and probity as a judicial officer. These are no doubt valid points of consideration, and will surely form the basis of further regulation of the NJAC. If these criteria are meant to substitute judicial opaqueness in appointments, which they undoubtedly should, then these criteria must equally not be subject to suspect alteration by the Union Parliament.

Thursday, August 14, 2014

New Law Commission Report on Delays, Arrears, and Adequate Judge Strength

The Law Commission has come out with its 245th Report, titled "Arrears and Backlog: Creating Additional Judicial (Wo)manpower." The Report largely reflects the submissions made by the Law Commission to the Supreme Court as per the Court's directions in Imtiyaz Ahmad v. State of UP. This case started as a petition against delays in criminal trials. The Supreme Court directed the Law Commission to study the issue and submit its recommendations on the following point:
“Keeping in view that timely justice is an important facet to access to justice, the immediate measures that need to be taken by way of creation of additional Courts and other allied matters (including a rational and scientific definition of “arrears” and delay, of which continued notice needs to be taken), to help in elimination of delays, speedy clearance of arrears and reduction in costs. It is trite to add that the qualitative component of justice must not be lowered or compromised." 
Apart from various findings on adequate judge strength for the subordinate judiciary, the report highlights the abysmal state of data available about the functioning of the judiciary, which makes evidence-based judicial reform efforts an extremely difficult task. Therefore, any numbers that get thrown around about the problem of 'pendency' are likely to be grossly off the mark. The report also advocates shifting from a focus on "pendency" of cases as the parameter to evaluate the performance of the judicial system, to focusing on those pending cases which are delayed. Currently we have no rational yardsticks by which we can measure whether a case is delayed or not. The general fall back mechanism has been to adopt ad-hoc and impressionistic timelines, which are often very unrealistic given other resource constraints. 

For me, the Supreme Court's call for "rational" and scientific" approaches to policy making for the judicial system is a much needed and a very welcome step. It remains to be seen how the government and the Court respond to the report.

Nick Robinson and I, apart from many others, contributed to the report.      

Constitutionality of the Judicial Appointments Commission Bill

Lok Sabha and Rajya Sabha have passed the Constitution (121st Amendment) Bill 2014 and the Judicial Appointments Commission Bill 2014 simultaneously. The Bill seeking to amend the Constitution makes changes to the provisions relating to judicial appointment, inter alia empowering Parliament to pass the Judicial Appointments Commission Bill.

The constitutional problem is this: the constitutional amendment still requires the consent of several state legislatures before the President can sign it into law. Thus, the two Houses of Parliament have passed the Judicial Appointments Commission Bill on dates on which the Constitution does not (yet) authorise them to do so. The point is not merely technical. If the requisite number of state legislatures do not endorse the constitutional amendment, there is no doubt that the JAC Bill will be unconstitutional. The question is, if they do endorse the amendment, what is the significance of the fact that this Bill was passed by the Houses before Parliament had the authority to do so?

One possible solution might be for the President to not sign the JAC Bill until he is able to sign the constitutional amendment Bill into law (ie after the consent of the states has been secured). This would at least ensure that the JAC Bill wasn't formally enacted until Parliament had the power to do so (remember that under Article 79 of the Constitution, Parliament consists of the two Houses and the President). 

While this would be a wise course for the President to adopt in any case, there could still be a lingering question about whether any part of Parliament is competent to even initiate legislation at a time when it lacks the authority to do so. 

Update: Apparently the Minister told the Rajya Sabha that the government will not send the JAC Bill for assent to the President until the requisite number of states have ratified the Constitution Amendment Bill and it is assented to by the President.

Monday, August 11, 2014

Guest Post: Situating the Opposition--The Hypocrisy of Misrepresentative Government

Guest post by M. S. Ganesh and Venkatesh Nayak. M. S. Ganesh is Senior Advocate, Supreme Court of India and Venkatesh Nayak is with the Commonwealth Human Rights Initiative, New Delhi.

Somebody is not telling the truth. That is not an option. Or else somebody is profoundly innocent of constitutional law, praxis, conventions and Acts of Parliament. Ignorance of law is no excuse either.

The current imbroglio on situating the Opposition and its Leader in the Lok Sabha is a pernicious and diabolic undermining of representative democracy by those in – and with – Government. Potentially it is the Fourth Reich: it would take the Svast out of Svastika.

The reported opinion of the Attorney General to the Lok Sabha Speaker’s Office is that the Leader of the Opposition (LOP) can emerge only from a party that has a numerical strength of one tenth of the total membership of the House (See Kaul and Shakdher, Practice and Procedure of Parliament, 5th edn., 2001). The sole authority cited for this opinion is a parliamentary precedent established by a ruling / direction of the Speaker way back in 1956. However, these authors point out that “from the Eleventh Lok Sabha onwards, … the practice of according recognition by the Speaker in terms of Directions 120 and 121 was done away with” (id. at page 360).

In any event, the opinion of the Attorney General is confuted by (a) the constitutional provisions, (b) the parliamentary debates, (c) the enacted statute and (d) constitutional convention as codified and crystallised in that regard.

The Constitutional Provisions
Article 118(1) empowers each House of Parliament to “make Rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business”.

It is under this explicitly qualified sanction that the Rules of Procedure and Conduct of Business in the Lok Sabha have been framed. Clearly, these Rules cannot override or be antithetical to a law enacted on the subject by Parliament itself.

The Rules of Procedure do not deal with the recognition of the LOP by the Speaker. Rule 389 merely provides that all matters not specifically provided for in the Rules and all questions relating to the detailed working of these Rules shall be regulated in such manner as the Speaker may, from time to time, direct. Necessarily, even these omnibus residuary powers have to be read “subject to the provisions of this Constitution”.

The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 (LOP Act) is traceable to Entries 73 and 74 of the Union List in the Seventh Schedule of the Constitution. Entry 73 deals with salaries and allowances of Members of Parliament (MPs) while Entry 74 deals with the powers, privileges and immunities of each House and of its Members. It would be futile and ludicrous to contend that the Speaker can ordain and observe a parliamentary practice at odds with a law enacted by Parliament. Moreover, the constitutional principle is that the donee of a limited power cannot enlarge it into an unlimited one by the exercise of that power.

The Parliamentary Debates
The Statement of Objects and Reasons of LOP Bill explicitly declared: “Having regard to the important role of the Leader of the Opposition in a Parliamentary Democracy, it is considered that the Leaders of Opposition in the House of the People and the Council of States should be accorded statutory recognition and given salary and certain other facilities and amenities to enable them to discharge their functions in Parliament”.

The definition of the LOP in the Bill made a pointed departure from prevailing parliamentary practice / the Speaker’s Directions. It confined its scope to “the party in opposition to the Government having the greatest numerical strength”, and did not relate that strength to the total membership of the House at all.

In the ensuing debate in the Lok Sabha (without any demur in the Rajya Sabha), Hari Vishnu Kamath (Janata Party) moved amendment #15 to specify that the strength should be not less than one sixth  of the total membership of the House. The amendment was put to vote and negatived.

Alternatively, Samar Mukherjee (CPI-M) sought amendment #23 that the Opposition Party must be one “recognised as such by the convention and practice of the Parliament”. That amendment too was put to vote and negatived. In the result, Section 2, as it stands today was adopted (L S Debates, Vol. VI, August 8th 1977 at cc 105-108)

It is of some moment that many Members in these debates belonged to a previous avatar of the present ruling party.

The LOP Act
Section 2 defines LOP to mean that Member who is, for the time being “the Leader in the House of the party in opposition to the Government having the greatest numerical strength and recognised as such by … the Speaker…”.  With such explicit statutory language, there can be no implied recognition or prescription of a quota, as suggested in some quarters that ought to know better. Besides, Kaul and Shakder point out: “[T]he Speaker has only those powers which are given to him by the House or the Rules. He cannot start a new procedure of his own” (op. cit., page 122).

The Constitutional Convention
Once a convention is codified and crystallised, in a statute, the enactment prevails. It cannot be coloured and obfuscated by extraneous considerations. The Speaker’s Directions nos. 120 and 121 regarding recognition of a parliamentary party / group invoked are wholly irrelevant to the terms and operation of the LOP Act.

A leading English authority was convinced that: “[N]o matter how entrenched constitutional safeguards may be, in the final analysis it is the strength of character, personal integrity and depth of commitment to the principles of independence and the impartial representation of the public interest, on the part of holders of the office of Attorney General which is of supreme importance… It is these kinds of situations that induce widespread disillusionment with the ideals associated with democratic government” (John Ll. J. Edwards, The Attorney General, Politics and the Public Interest, 1984, page 67).

It is moot whether the desiderata have been met. The alternative is to write a new canon – DisMay’s Parliamentary Practice.