Colombia and India: Two of the Most Similar Courts in the World?

There was a recent post on ICONnect by David Landau describing how the Colombian Constitutional Court has struck or read down several Constitutional amendments there. Perhaps even more than India's Basic Structure Doctrine the caselaw in Colombia has taken on a life of its own and been used to narrow constitutional amendments (such as those concerning drug possession or the functioning of the civil service) one wouldn't necessarily believe are core to a sound liberal-democratic constitutional ordering.

When one surveys the courts of the world, it is often those in Latin America where I at least find the most parallels to India's more activist jurisprudence. The Colombian Constitutional Court has an incredibly expansive rights jurisprudence and its orders are far more frequent and detailed in its social and economic rights cases than the Indian Supreme Court's. In this article from 2009, Bruce Wilson looks at the reasons why two courts in Latin America - those in Colombia and Costa Rica - might be as active as they are: finding that relaxed rules of standing and access (like in India) are critical to creating such active judiciaries. It strikes me these similarities are only the beginning (and much more work has been done on courts in Latin America - see for example here and here). In India, the Court has benefited not only from relaxed standing rules and wide constitutional powers, but a long period of coalition governments at the centre which makes it difficult for any one political party to easily challenge the Court's authority, and a historical narrative of distrust towards the other branches created by the history by the Emergency that the judges have used to shape and reenforce their own power. On both these fronts there seem to be some parallels in Latin America (where there are histories of dictatorship, at least competitive political parties, and perhaps the added feature of having an Inter-American Court that may help apex courts shore up and internationalize a language that justifies their power). It strikes me much fertile comparative work could be done by looking at Latin America and India in more depth. Given language barriers though it might be more likely that such work originates in Latin America or at least from those studying courts there. Then again, just another reason to learn Spanish.

Graduate Fellow Position Open at APU

The Law, Governance, and Development Initiative at Azim Premji University has a two year post open for a Graduate Fellow. Please see this link for more details. Please note that the original deadline of June 1, 2013 has been extended, but contact them soon if you are interested.

Polity in India Blog

There is a new blog up - Polity in India: Observations on Legal and Political Developments in India - that might be of interest to some readers. A number of the contributors are lawyers and several have/had a Centre for Policy Research/PRS Legislative Research connection. Do check it out as there are a number of good posts.

How the CIC missed the wood for the trees

The Right to Information Act, 2005, with its 31 sections and two schedules, is one of the outstanding legislations of Indian Parliament.   In view of its inherent potential to ensure accountability of the institutions of governance, and enhance the level of participation of citizens in the administration, there has been a natural tendency on the part of the Central Information Commission, to interpret its provisions liberally.   This has manifested in a number of pro-citizen rulings from the CIC and the appellate courts leading to a greater degree of transparency over decision-making of authorities, than what was possible earlier.

An expansive understanding of the definition of ‘public authority’ under the Act has apparently helped the CIC to bring many quasi-public authorities and private entities with substantial funding from the Government within the Act’s ambit.   As the Act requires the `public authorities’ to declare information about them suo motu, and to designate Public Information Officers to answer queries from information-seekers, the definition and interpretation of ‘public authorities’ determines the scope of the Act.

The CIC’s June 3 order bringing political parties within the ambit of public authorities, no doubt, stems from its sound objectives to make political parties, receiving substantial indirect funding from the Government, accountable, and empower citizens to use the Act to ensure it.  However, the legal reasoning adopted in the order, is vulnerable and may not stand scrutiny in the appellate courts.

The crucial question is whether a political party can be held as ‘public authority’  under Section 2(h) of the Act.  This provision deserves to be reproduced verbatim: “public authority” means any authority or body or institution of self-government established or constituted,- (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any – (i) body owned, controlled or substantially financed; (ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.”

If one reads Section 2(h) carefully, there can be no argument over its first four parts, that is, (a) to (d).  The problem arises only with regard to the use of the expression “and includes any”, followed by (i) and (ii) under (d).

The CIC relies on the Delhi High Court’s judgment delivered by Justice Ravindra Bhat in Indian Olympic Association v.Veeresh Malik and Others (January 7, 2010), wherein the Court has observed that the expression ‘public authority’ has to be interpreted liberally and not restrictively. 

In this judgment, the High Court has conceded that a facial interpretation  of Section 2(h) would indicate that even the bodies brought in by the extended definition, that is, through the use of the words “and includes any” are to be constituted under, or established  by a notification, issued by the appropriate Government. 

The court then added as follows: “If, indeed, such were the intention, sub clause (i) is a surplusage, since the body would have to be one of self-government, substantially financed, and constituted by a notification, issued by the appropriate government.  Secondly – perhaps more importantly, it would be highly anomalous to expect a ‘non-government organisation’ to be constituted or established by or under a notification issued by the Government.  These two internal indications actually have the effect of extending the scope of the definition  “public authority”; it is, thus, not necessary that the institutions falling under the inclusive part have to be constituted, or established under a notification issued in that regard....irrespsective of the constitution (i.e. it might not be under or by a notification), if there was substantial financing, by the appropriate government, and ownership or control, the body is deemed to be a public authority.  This definition would comprehend  societies, cooperative societies, trusts and other institutions where there is control, ownership,  (of the appropriate government) or substantial financing.  The second class, i.e., non-government organisation, by its description, is such as cannot be “constituted” or “established” by or under a statute or notification.” 

Note that in its list of what the definition of ‘public authority’ would include, the High Court lastly mentions “other institutions”.  Individual political parties do not qualify to be called institutions; party system does.  As party system cannot constitute an independent entity, the question of considering it a public authority does not arise.

The registration of political parties under Section 29A of the  Representation of People Act, 1951, refers to political parties before their registration, as “an association or body of individual citizens calling itself a political party”.  The implication here is that once registered, they cease to become an association or body of individual citizens, and become political parties, with certain unique rights and responsibilities, which the R.P.A bestows on them. 

Therefore, there is an element of doubt whether the “body” referred to in Section 2 (h) (i) includes or could include a political party.    The principle of ‘surplasage’, used by the High Court to give meaning to Section 2(h)(d)(i)  is a recognised rule of interpretation.  It requires that effort should be made to give meaning to each and every word used by the Legislature.  The Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons.

But the rule cannot be invoked, as the CIC has done, to interpret a provision, so as to include what the legislature did not intend to include at the time of enactment.  Otherwise, the courts may invite the criticism of wrongly resorting to casus omissus, that is, a matter which should have been, but has not been provided for in a statute cannot be supplied by courts, as to do so will be legislation and not construction. 

The Supreme Court’s constitution Bench reiterated this principle in a judgment on August 23, 2001 (Daddi Jagannathamv. Jammulu Ramulu): “Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.”

The CIC, which acts as a Court while deciding a matter before it, has not demonstrated that Parliament unintentionally omitted to include political parties under Section 2(h)(d)(i); instead, it has assumed that Parliament intended to include political parties under the provision, without making a detailed inquiry into the intention of Parliament at the time of law-making.

The RTI Bill, 2004 – which was the precursor to the RTI Act, 2005 – defined “public authority” as any authority or body constituted by the Constitution, Parliament, or notification/order by Government.   The National Advisory Council recommended to the Government that this definition  be modified to cover the States, Panchayati Raj institutions, and other local bodies.  The Parliamentary Standing Committee which considered the Bill had accepted this recommendation, and this led to the Government’s redrafting the definition as it is now found in the Act.  There is no evidence to suggest that the redrafting of the definition was prompted by the demand to include political parties within the ambit of the Act. 

The debate in both the Houses of Parliament ( Lok Sabha & Rajya Sabha) on the Bill between May 10 and 12, 2005, also does not suggest that Members had intended to include political parties within the expansive definition of public authorities.  It is unlikely that Parliament would have left it to the CIC to decide whether political parties could be considered as public authorities under the RTI Act.  The Supreme Court has held in catena of cases that if a statutory provision is open to more than one interpretation, the Court has to choose the one which represents the true intention of the Legislature. 

Arbitrariness, “Doctrinal Looseness”, and other things…

In Chapter 6 of my book, Due Process of Law (published in 2011) [p. 177-206], I had argued that the “arbitrariness” test under Indian constitutional law, famously articulated by Justice Bhagwati in the Royappa and Maneka Gandhi decisions, and its subsequent application by the Supreme Court, suffered from “doctrinal looseness”. I said that the arbitrariness test was an indefinite, unfixed standard which was applied indiscriminately in a variety of contexts. On p. 177, I argued that the terms “reasonableness” and “arbitrariness” “were used interchangeably” by the court. On p. 186, I pointed out that “In March 1996, the doctrinal looseness of the “arbitrariness” test was most visibly highlighted by the Supreme Court of India in State of A.P. v. McDowell…” I concluded, on p. 202, that “The doctrinal looseness of the “arbitrariness” standard in Indian constitutional law is apparent.” (all emphases supplied)

It has come to my attention that the Supreme Court of India agrees with this view. In the 2G Presidential Reference case decided in September 2012, a Constitution Bench of the Supreme Court of India considered the ambit of Article 14 of the constitution. In paragraph 101, the court held that “the expressions ‘arbitrariness’ and ‘unreasonableness’ have been used interchangeably and in fact, one has been defined in terms of the other.”  Speaking for the court, Justice D.K. Jain wrote, “…since Royappa’s case (supra), the doctrine (of arbitrariness) has been loosely applied. This court in State of A.P. & Ors Vs. McDowell & Co. & Ors. stressed on the need for an objective and scientific analysis of arbitrariness….Some decisions have commented on the doctrinal looseness of the arbitrariness test and tried keeping its folds within permissible boundaries.” [paragraphs 103-104]. (all emphases supplied)

There’s no reason for me to think that any of the judges on the Bench read my book (which wasn’t cited in the judgment). What’s interesting, though, is that the phrase I used in my book: “the doctrinal looseness of the arbitrariness test” was used by the court in its judgment without attribution or citation. Incidentally, a simple Manupatra search will suggest that the court has used the phrase “doctrinal looseness” for the first time in this judgment, so it’s not like the phrase has been around. Of course, I’m flattered that the view I took in my book has found favor in the Supreme Court.

Interestingly, on p. 142 of my book, I also pointed out that Justice Bhagwati’s phrase “cribbed, cabined and confined” in the E.P. Royappa case was “borrowed from Shakespeare’s Macbeth, Act III, Scene 4.” In paragraph 96 of the judgment, the court likewise pointed out that “Justice Bhagwati...borrowing from Shakespeare’s Macbeth, said that the concept must not be “cribbed, cabined and confined” within doctrinaire limits”. To my knowledge, no previous judgment of the Supreme Court (or High Court) points this out. As far as I know, Seervai does not point out the Shakespeare connection either [see H.M. Seervai, Constitutional Law of India, 3^rd edition p. 273-274, and 4^th edition, p. 437] Once again, I’m thrilled that things which piqued my interest while reading Justice Bhagwati’s judgment also piqued the interest of a judge of the Supreme Court. 

On “arbitrariness”, the McDowell view has now become the accepted view of the court (though one must remember that the 2G case dealt with “arbitrariness” in the context of a government policy, not legislation). The court concluded by holding (at paragraph 105): “From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell's case (supra) has said. Therefore, a State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of Article 14 of the Constitution of India.” The court held (at para 149) that though auctions are not the only manner in which natural resources can be alienated, the state’s methods of alienating natural resources can be tested on the touchstone of “arbitrariness”.

While we’re on the subject of the 2G case, I thought I should point out that in Center for Public Interest Litigation v. Union of India, [(2012) 3 SCC 1] decided in 2012, the Supreme Court of India called Shri V.M. Tarkunde a “former Judge of this Court”. Of course, though Shri Tarkunde would certainly have made a great Supreme Court judge, he never served as one. As far as I know, he was a Bombay High Court judge, who subsequently practiced in the Supreme Court.  

The Times Publishing House's Fight Against Free Speech

As has been reported at Spicy IP and Legally India the Times Publishing House - which owns Times of India - is threatening to sue for defamation a 22 year old student blogger for one of her posts on Spicy IP. The case, which is succinctly recounted on the above links, stems from a post in which she comments on the Times Publishing House's ongoing litigation with the Financial Times Ltd over a trademark dispute.

The NUJS student's post in question mostly just recounts articles from the Mint updating readers on the status of the litigation. Nothing sensational. (Read it). Yet, it apparently sent the Times Publishing House into a tizzy, causing them to be "shocked and surprised" as their lawyers at K Datta and Associates empathized in their notice to the college student.

This action by the Times Publishing House follows on the heals of a defamation suit by NATCO against Shamnad Basheer for a post he also wrote for Spicy IP. This trend of corportate houses trying to crack down on bloggers through defamation suits who they feel cast them in an unflattering light (or any light at all) is deeply disturbing and one of the more significant threats to free speech in India today - not to mention the development of a vibrant legal academy. The courts should send a clear signal that such intimidating tactics will not be tolerated.

Spicy IP does a good job at cataloging all the relevant material so I will let you read through their post on the matter if you like. I'll just end by saying that I was surprised to learn from the Times Group's notice to the student in para 7 that their position is that when there has been a factual inaccuracy in an article that the proper response is to "publish the true and correct facts . . . with the same prominence with which you had published the [original] impugned article." This admission I am sure will be welcome to anyone who has ever had any factual inaccuracy reported about them in the Times of India that might have caused them to be "shocked or surprised" and we can look forward to many front page above-the-fold apologies from Times of India in the future. 

Second Azim Premji University International Conference on Law, Governance and Development

Call for Papers

Second Azim Premji University International Conference on Law, Governance and Development
Right to Welfare: Education, Food and Work
The Law, Governance and Development Initiative of Azim Premji University, Bangalore is holding its Second International Conference on Law, Governance and Development on August 2 and 3, 2013. Our annual Conference aims to create a forum for academic enquiry and debate on law and its relationship to governance and development.

This year we explore empirical and theoretical questions of the right to welfare with a particular focus on the statutory rights to education, food and work in India. The theme for this year’s Conference is ‘Right to Welfare: Education, Food and Work’. The Conference is organized around a set of original research contributions, made available to all the participants prior to the Conference. A more detailed background note on the Conference and the proposed panels is attached.

Confirmed speakers include Professor Akhil Gupta, Professor Arun K Thiruvengadam, Professor Katharina Pistor, Professor Sanjay Ruparelia, Professor Siri Gloppen,

For this conference we invite contributions from scholars, graduate and post-graduate students involved with studying statutory rights to welfare in India (particularly the rights to education, food and work) which address one or more of the following themes:

·       The relationship between law and development with specific regard to rights to welfare

·       Statutory rights-based approach to welfare

·       Nature of statutory rights and obligations under the RTE Act 2009, The NREG Act, 2005 and the Food Security Bill, 2011

·       The role of courts in recognition of rights

·       The role of courts in enforcement of rights

·       Implementation of statutory rights

Please submit details of name, institution, email address, paper title and a 200-300 word abstract to lgdi@apu.edu.in by June 25, 2013. Last date for submission of the final paper is July 25, 2013. Selection of proposals will be notified by the end of June 2013. The organisers will cover costs of economy travel and accommodation for selected papers. In addition to selected papers, ten best student papers will be invited to attend the conference.

Details of the conference are available here.  

Reforming Indian Law Schools

Update: The full report is available here. It seems that this is so far in the draft stage only. Perhaps the Committee is still accepting suggestions.


Readers may be interested in an important  report that emphasises the need for our law schools to become genuine research universities, and get real autonomy. Some excerpted highlights from Pai and Ranjan's summary:

Focus of legal learning: The GNLU report notes that “(l)earning is seriously impaired in an atmosphere of mistrust between the teachers and students”.

The larger focus of legal pedagogy is on conveying information rather than on discussing ideas and cultivating the ability of critical thinking.

The curriculum is not generally rigorous or engaging in substance. The NLUs often confuse ‘learning’ with quantitative aspects like the number of classroom hours and periodic exams based on rote learning.

Very little attention is paid to assessing the cognitive abilities of students. Faculty members are burdened with excessive teaching, leaving them with little time and motivation to focus on the quality of classroom discussions that can lead to firing the imagination of young minds.

Faculty research not a priority: The brazen reality is that the NLUs function as teaching shops. The ‘workload’ of the faculty fails to factor in any research component.

The GNLU report notes the current state of poverty in contestation of ideas through high quality research. However, it fails to account for the real problems which, to a large extent, can be attributed to excessive focus on teaching and lack of adequate incentives for research.

For instance, very few NLUs have a policy conducive for research through paid sabbaticals.

In order to plug the ‘research deficit’, the GNLU commission emphasises the need to build research networks with all stakeholders and undertake research for ‘policy development’, ‘law reforms’, ‘economic growth’ etc.

However, it does not provide any rational basis for making preferences towards certain kinds of research. Why would even theoretical research on any ground-breaking legal concepts be of less value?

Further, the commission’s endorsement of setting Regional Research Centres in Law, on the model of Regional Research Laboratories for science, is ill-conceived because it divorces research from teaching. Teaching and research ultimately nourish each other. Hence the university, and not ‘isolated’ research centres, should be the fertile ground for cutting-edge research.

Lack of focus on advanced learning: The NLUs are largely devoted to undergraduate teaching without necessary focus on postgraduate studies. The GNLU commission’s recommendation for a one-year diploma course involving teaching and research for new faculty members only points to how LLMs and PhDs offered by Indian universities, the NLUs included, are viewed with greater suspicion.

It vindicates the argument that the NLUs have failed to lead as institutes of higher learning and research.

The need is to focus on how to raise the bar of LLM and PhD programmes — the training grounds for producing legal academicians – instead of simply starting new programmes.

No carrots and sticks in place: The NLUs largely suffer from a complexity of mediocrity. Merit-based faculty research and teaching is not linked to any formal means of performance appraisal.

The general sentiment is that not every faculty member can live up to higher benchmarks. Very few are self-motivated to engage in good quality research.

Not many among the senior peer group can also lead by example. The non-existence of benchmarks, coupled with a sense of indifference among the faculty, has failed to raise the NLUs to higher levels of academic consciousness.

External regulatory capture: Although autonomous in many ways, the NLUs are governed through a web of external regulatory influences of the University Grants Commission and the Bar Council of India (BCI).

The dismal state of legal education in this country basically point to the latter’s inability in ensuring quality legal education.

The BCI’s recommendations, which are religiously followed by the NLUs, are not backed by adequate research or articulation. Dominated by practising lawyers, the BCI has failed to adequately and widely consult with law universities that remain largely affected by its decisions.

Working in silos: The NLUs operate as universities in isolation through their independent campuses. The very architecture of NLUs as institutions of specialised legal learning discounts the usefulness of interaction between law and other streams.

Depending on the structure of undergraduate coursework, a rigid system of ‘integrating’ inter-disciplinary subjects, thus, remains without purpose. Very little discussion has gone into how any meaningful integration may be achieved.

An Analysis of the NAC's Proposal on the Pre-Legislative Process (Part II)

In part I of this post I discussed how the NAC has a new proposal out for changing the process by which Ministries draft rules and legislation. In the last post I examined the process proposed for rules: mainly, disclosure that rules are being drafted, a requirement of reason-giving/justification for these new rules, and consultation. For rule creation, these requirements have been introduced in many jurisdictions around the world because Parliament does not have time to closely monitor all rule-making. As such, these requirements seem like a good second-best check to create effective, non-arbitrary rules and to add some legitimacy to a largely undemocratic process.

The NAC though has also proposed ministries follow the same requirements in drafting legislation as for drafting rules. What’s going on here? Rules are created by out-of-touch administrators who never have to run for office. Legislation is passed and debated by Parliament – theoretically the central citadel in the Indian democratic system. Not only is Parliament the empowered representatives of the people, but while considering legislation Parliament often solicits outside comment through standing committees.

Should this not be enough? Doesn’t this provide legislation with adequate legitimacy? Shouldn’t Parliament be in charge of demanding proper justification and reason-giving for legislation? Indeed, does draft legislation even have to be based on sound reasoning? After all, legislation – unlike rulemaking – is often the product of compromise between different political factions. A vote is enough. No reasons necessary.

The NAC’s draft recommendations state that their proposed pre-legislative process “is not an attempt to replace the legislative Parliamentary process. . . . The pre legislative process . . . aims to democratize the process of law making in the country by strengthening the involvement of the citizen in the process of drafting and enacting legislation, without undermining the role of the executive or the Legislature.”

There is some merit to this argument. Since most legislation is introduced by the government, its drafting is generally driven by the ministries. This again puts bureaucrats in charge (although presumably legislation will usually spark more political-executive oversight than rule-making). Further, once legislation is introduced into Parliament it is often difficult to make any fundamental changes. Then isn’t it better to get more voices involved earlier and require that those drafting the legislation weigh the costs and benefits (on economic efficiency, fundamental rights, the environment, etc.) of different potential frameworks for proposed legislation?

Further, as the Draft Recommendations point out, in the 15^th Lok Sabha about a third of bills were not referred to a standing committee. In 2009, only 16% of Parliamentary time was spent on legislative business. Given this seeming breakdown in the Parliamentary process isn’t it important to make sure that participation and scrutiny is frontloaded into the process?

The worry is that the pre-legislative process the NAC proposes mirrors too much what standing committees should be doing. A cynic would say that adding these steps would unnecessarily slow down the passage of legislation and may even be a thinly veiled attempt to sidestep Parliament. As mentioned in my last post, the experience with open consultation in many countries with regards to rule-making is that it is easily captured by elites (whether corporates or civil society). Instead of focusing on the pre-legislative drafting process, creating a more robust standing committee process could be a better use of time and energy.

If one does want to focus on the pre-legislative process though it might make more sense in India’s case to think about how to get more parliamentary involvement at this earlier drafting stage. MPs (from all parties) could play an important role in giving feedback in drafting. Giving MPs adequate funding for a staff, to amongst other things give comments to ministries on proposed legislation, could enable backbenchers to have an important role in the drafting process. This seems more important than ensuring members of the public can comment on draft legislation before it is tabled in Parliament.

Finally, one notable aspect of the proposed process is that it would be imposed through Executive Order. It is interesting that the NAC is not proposing these recommendations become law through an Act. Perhaps this is simply accommodating the present political moment when not much of anything is becoming an Act. Perhaps the NAC thinks it is better to first experiment with different processes before solidifying anything into legislation – i.e. this is new stuff for India, so let’s figure out best practices through experimentation. However, not putting the proposal into an Act means that even if UPA-II accepts the recommendations tomorrow, when the next government comes in they can quickly get rid of them. Even more importantly, especially if these recommendations affect the legislative drafting process, one would think one would want the legitimacy of Parliament behind the changes. Finally, an Act would presumably make more clear what type of review, if any, courts would have on whether Ministries actually followed the proscribed procedures or whether their implementation would be entirely reliant on the government of the day.

In the end, the NAC’s recommendations are a welcome step in the right direction. The NAC is still soliciting comment and hopefully their next set of recommendations and anything adopted by the government/Parliament will be more clearly justified and detailed, particularly around the pre-legislative process for legislation and explaining whether, and how, they foresee courts enforcing the new process. The NAC should also consider what types of exemptions, if any, there might be for some, or all, of the requirements they propose.

CBI autonomy and the Courts

In this article in today's Indian Express I argue that the courts are not the answer to bringing about CBI autonomy. The initiative has to come from Parliament. 

An Analysis of the NAC's Proposal on the Pre-Legislative Process (Part I)

Last week, the National Advisory Council made a little noticed recommendation concerning what they term the pre-legislative process. The name “pre-legislative process” is a bit of a misnomer in that their recommendation concerned how ministries approach not only drafting legislation, but also drafting rules, or subordinate legislation.

For both new legislation, new rules, and amendments to either the NAC recommends that an executive order be passed requiring all central ministries put into the public domain for 45 days an announcement that it will be drafting a piece of legislation or rule. This announcement would not only lay out the essential elements of the proposed legislation/rule, but give a statement of reasons justifying the proposal and detail the broad financial implications and the estimated impact on the environment, fundamental rights, and the lives of affected people. The Ministry is also required to make the eventual draft legislation public for 90 days and reach out to the public for consultation. All feedback received about the legislation/rule must be made public, as well as the Ministry’s response to the feedback.

The general thrust of the NAC’s recommendations should be welcomed and are in many ways long overdue. Essentially, the proposal would add transparency and the requirement of reason-giving and consultation to all Ministry action concerning the creation of legislation and rules.

However, it’s worth breaking down the justification for doing this for legislation and rules separately, as they are indeed separate justifications conceptually and the recommendation concerning legislation is generally considered more controversial than concerning rules.

Let’s start with rule-making to understand what is going on here. Rules are important (if anyone doubts this consider how Indian politics would be moving forward right now if there had been, let’s say, different rules created for the allocation of coal or telecom spectrum). Crores of Rupees are often at stake or the livelihoods of thousands. Yet, rules are often created under the guidance of one Minister or even just some top-level bureaucrats. All rules are technically tabled in Parliament for a vote and there is a committee in Parliament looking at such subordinate legislation, but even committee members do not have time to examine most rules in any detail and generally just make sure that the proposed rule does not violate the constitution.

Every modern democracy faces this problem. Major decisions are being made through rules, yet representatives of the people are generally not aware of them. So what to do? One response globally is to create a requirement (often through an act) that all rules have to be tabled by ministries/agencies in advance, justification given, and some degree of consultation with the public mandated. This creates a double check. Ministries are forced to publicly think through the reasons they are creating rules. For example, if a ministry decides it doesn’t want to allocate telecom through an auction it will have to explain why in advance and can’t change its reasons later if such a decision becomes contested. Secondly, the public can act as an alarm bell for Parliament, or even others in the Executive, to flag particularly poorly designed rules. Then, if necessary, Parliament can reject a poorly designed rule or perhaps the Prime Minister can step in to see that it is changed.

Countries that have mandates like the ones being proposed for the creation of rules in India usually find such reason-giving and consultation a step-forward, even if a limited solution. Those with money (and near the capital) are in the best position to track rule-making and give input. Diffuse public interests are often not represented in the rule-making process although environmental and some civil society groups have proved savvy at shaping the process as well. In an attempt to overcome these representation problems, in the United States law firms will sometimes make comments on rules with the public interest in mind as a pro bono service. In South Africa, comments are often made by government created institutions like human rights commissions that attempt to serve as a proxy for the broader public interest. Still, special interests are often in the best position to give comments. 

The second challenge countries with such mandates for consultation and reason-giving face is getting the government to follow the process. For a responsive government, not all rule making should require such long drawn-out public input.  However, in the US the government has often cited exemptions built into the Administrative Procedure Act to get around publishing rules in advance even for rule-making that is important (see this GAO report for more details about how agencies in the US did not follow the pre-publication requirement for about 35% of major rules between 2003-2010).

Reason-giving for rules – i.e. a justification and cost-benefit analysis – can seem like a pure good and step forward. Who wouldn’t want rules that hadn’t been thought through? Yet, even here the challenge is finding the balance between meaningful due diligence and the costs of such reflection. For example, what would constitute an adequate assessment of the impact of a proposed rule on fundamental rights? Is it just a bureaucrat thinking about it for a few moments at her desk and then writing down whatever she thinks? Or would it require an expensive study from an outside group that included large surveys of the impacted population? Likely, the answer is somewhere in between.

Given the blurriness of what is effective consultation and reason-giving the most difficult challenge is enforcement. In particular, what redress do parties have if they claim the government has not gone through the required process? Can they go to court? If so, by what standard will a court judge whether there has been effective consultation or reason-giving, and if the court finds it has been lacking will the judge actually strike down the rule, even if millions of people have already relied on it?

Much of administrative law is about trying to force the state to think in certain ways - taking on board multiple interests and shared values. As Jerry Mashaw has written in one of my favorite adlaw essays, administrative law is the embodiment of the enlightenment project - - the triumph of public reason over cloistered thinking, prejudice, and arbitrariness. Yet, given the messiness of what constitutes "reason" and the limited avenues of influence on the state, it structures a process that can get us only so far.

All in all, the NAC proposal on rule-making is a step in the right direction, even if there are many unanswered questions about enforcement or on the mechanics of implementation. In Part II of this post, I will discuss the more controversial proposal to have a similar process for the drafting of legislation by ministries, as well as some reflections on the proposal to push these reforms through an executive order rather than an act.

A Police Brutality Incident and Theories of Change

Nazdeek has a new video and press release out today on a police brutality incident in West Delhi that happened late last month. The Times of India also covered the events shortly after they occurred in this article. Police brutality is such a part of the normal background situation in India we often forget about the very real and individualized impact it has on people's lives. This incident in many ways wasn't particularly remarkable. It involved a woman (and two men) being beaten by the police - and so perhaps attracted more attention given the media's current focus on rape cases and gender violence in North India. It also involved a policeman biting one of the victims (yes, biting) and so there is a bizarreness factor. Otherwise, a foot was fractured. No one ended up dying. The victims were poor. The entire thing would likely not have made any news at all if it wasn't for the fact that the community was already fairly mobilized because of a previous slum demolition, so had the sense to record some of the incident and wasn't easily intimidated afterwards. They were also connected with a couple workers from NGOs outside the community that had access to wider media networks and the ability to put together a video like this and explain in clear terms to the media (and soon to the High Court) what happened.

In my experience, the number of lawyers and social workers who actually do day-in-day-out on-the-ground work that allows them to respond to individual incidents like this is very small. It takes significant time, dedication, and capacity. Yet, I personally think it is in response to specific incidents - as opposed to broader petitions or reports calling for legislative changes - that is likely to have the greatest impact in changing police behavior.  Broader structural reforms are clearly needed, but they are more likely to gain traction when police officers are punished individually for specific actions they took. Such a strategy will empower voices for broader reform both inside and outside the police. Well done investigations and prosecutions of such incidents take significant time and resources - you want to clearly detail for everyone what exactly happened, who was responsible, and not blame people who were not responsible. I think sometimes there is a cost-benefit analysis done by reform minded advocates both inside and outside the government that such a strategy is not worth it. The logic goes that there are too many similar incidents - why focus on this one, given the number of incidents it is not possible to expend a comparable amount of resources investigating each one, such investigations come at the cost of other efforts, and so why not focus on training, or simply publicizing these incidents and hoping to change the broader discourse.

Such arguments to focus on calling for reforms in the system, and not on prosecuting the individualized case have some merit (you have to focus somewhere). I'm not sure what strategy the lawyers will take in this case in the Delhi High Court, but I noticed it seems that they are asking both for the officers to be punished and for the Court to intervene to make some broader structural changes. My sense though is that the actual punishment of the responsible police officers through a fair and public process is actually more important for systemic change then calls for reform from the Court. If you are thinking about how to allocate scarce resources - and no matter how much we may hope that more resources were dedicated to this problem for the foreseeable future we have to imagine we are operating in a reform climate of deep scarcity - then two or three thorough and successful prosecutions of police officers linked to specific incidents may be more useful than two or three commissions meeting to draft recommendations on the topic or broader calls by the Court for reform. Of course, you need both types of work being done. I just think sometimes individualized prosecution is undervalued as a key to a successful reform strategy and so not enough resources are dedicated either by NGOs or the government. Successful prosecution (i.e. thoroughly gathering evidence, clearly identifying the culpable parties, and appropriate sanctioning) messages to others in the police what behavior will and will not be tolerated, while giving the ordinary police officer confidence that they will not be scapegoated and only responsible parties will be punished.  The multiplying effect of successful prosecution is spread even further if the media can be leveraged to spread the story of the prosecution more widely.

Hopefully in wealthier environments like Delhi enough resources will be available to the reform community to pursue both strategies. Yet, given the scope of the problem and the limited current capacity to address it, it's worth weighing the pros and cons of different paths forward. After all, there are only so many minutes in the day.

Vidhi Centre for Legal Policy: Call for Applications

The Vidhi Centre for Legal Policy (VCLP) (formerly Pre-Legislative Briefing Service) is an independent legal think-tank comprising legal academics from leading universities around the world and practising lawyers based in India. Its mission is to impact legislative design and policy-making in India by conducting high-quality, analytical, evidence-based research across a range of thematic legal topics. It aims to advise government on proposed legislation and its drafting, provide critical analyses of bills and rules before Parliament and state legislatures, draft bespoke reports on specific legal issues of public concern and offer independent policy guidance to the government with a view to creating sound legal and policy frameworks in India. It has worked in the legislative space in India for the last two-and-a-half years and is in the process of establishing itself as a full-time institution based in New Delhi from November 2013.

In keeping with its objectives, Vidhi is currently looking to fill two positions:

1. The Vidhi Fellow of Law and Policy (see eligibility, process and remuneration- here)

2. Vidhi Junior Research Fellow (see eligibility, process and remuneration- here)

If you're interested, do follow the instructions in the documents. In case of any queries, feel free to write to arghya.sengupta@gmail.com. In case you want to know more about Vidhi, do visit its website: www.vidhilegalpolicy.in

Bhullar and Due Process on Death Row

Earlier this month, the Supreme Court gave a disturbing judgment in Devender Pal Singh Bhullar v. NCT, Delhi, stating in essence that "terror" convicts on death row have fewer or lesser due process rights than other death row convicts, at least when it comes to deciding clemency petitions. Last week I wrote this piece titled "Bhullar, the Bogey of Human Rights, and the Death of Due Process,"  in which I critiqued the  Court's decision. Anup Surendranath's analysis of the case is available here. Vrinda Bhandari's critique is available here.        

Obituary of Justice Verma

Here is my obituary of Justice Verma in today's The Indian Express. (This is the another link). Express also carried this obituary by Soli Sorabjee and another by Seema Chishti