0 The Indian Constitution: A Short Introduction

A short book of mine, The Indian Constitution (Oxford India Short Introductions), will be published by Oxford University Press towards the end of this month, and is now available for pre-order on flipkart. The books aim to introduce the Indian Constitution and ask questions about some of the most important debates that surround Indian constitutionalism. The following are details from the jacket cover:


Giving identity to over a billion people, the Indian Constitution is one of the world's great political texts. Drafted over six decades ago, its endurance and operation have fascinated and surprised many. In this short introduction, Madhav Khosla brings to light its many features, aspirations, and controversies. How does the Constitution separate power between different political actors? What form of citizenship does it embrace? And how can it change? In answering questions such as these, Khosla unravels the document's remarkable and challenging journey, inviting readers to reflect upon the theory and practice of constitutionalism in the world's largest democracy.

"Written in clear, jargon-free prose, this critical study will be a marvellous resource for lawyers and non-lawyers alike." - Justice Ruma Pal, Former Judge, Supreme Court of India

"A wonderful introduction to an exciting subject. Khosla presents an analytical and deeply insightful account of one of the landmark constitutions of our time." - Justice Aharon Barak, Former Chief Justice of Israel

"The Indian Constitution anchors India's political identity and has shaped the country's destiny-though not always in ways the founders anticipated. Yet, for all its formal centrality and its easy invocation by disparate political projects, the ambiguities of its commitments and the vicissitudes of its history remain little understood. In this remarkable book ... Madhav Khosla compels us to think seriously both about the fitful evolution of constitutional interpretation and about the place acquired by the Constitution in our democratic life. Khosla's outstanding book is far and away the most stimulating introduction to the life of our Constitution: and it signals the arrival of an important new voice in our intellectual life." - Sunil Khilnani, author of The Idea of India

1 Legal Education: Protesting the BCI's Consultative Deficit

Mainstream media has been abuzz with news of a paralytic strike by the Bar Council of India (BCI), protesting against the divestiture of their control over legal education via the proposed Higher Education and Research (HER) bill. The strike has had its fair share of critics, including a contempt petition as also a letter to the Supreme Court of India. 

Without going into the merits or otherwise of the HER bill, it is clear that the BCI has never consulted meaningfully with legal academics, despite a statutory mandate to do so under the Advocates Act. In an Indian Express editorial, I'd argued as below:

"Some say that law is an instrument of power. Little wonder then that regulating access to the corridors of legal power is lucrative business — particularly when the regulatory turf lies in the world’s largest democracy, which now boasts more than 900 law schools.

Recently, the Bar Council of India (BCI) was in the news for protesting attempts by the Ministry of Human Resource Development to usurp its superintendence of legal education through the Higher Education and Research Bill, 2011. This squabble is merely one of many in a series of turf wars between various agencies to assert their dominance over legal education.

All of this naturally raises the question: does the BCI have the competence to regulate legal education in the first place? In terms of legal competence, the answer appears to be in the affirmative. As for institutional competence, the less said, the better.

Even in terms of legal competence, there is an important caveat that seems to have been missed by the BCI in all these years of regulatory dominance. Section 7(1)(h) of the Advocates Act, 1961, requires the BCI “to lay down standards of... (legal) education in consultation with the Universities in India imparting such education”. Past records do not suggest any meaningful consultation with universities. While castigating this deficiency, the National Knowledge Commission noted that of the 10 members of the BCI’s Legal Education Committee, only one was a full-time legal academic.

The lack of proper consultation is not just anathema to the law, but has also had an impact on the quality of BCI norms... To add to its woes, the 184th Law Commission Report noted several complaints from law schools that the BCI’s directives often “tend to be arbitrary.

......the BCI would do well to keep in mind that the purpose of law schools is not to merely mass-produce technically competent lawyers ready to serve the bar. Rather, it is to cultivate critical thinkers, social reformers and creative leaders free to pursue an array of career options. Law schools must therefore be encouraged to experiment with their curricula and conceptualise courses that foster critical and creative thinking beyond the black letters of the law."


Protest Letter

In order to protest against this sordid lack of consultation, some of us came together and drafted a letter to the BCI. This letter has been signed by leading academics such as Professor MP Singh (ex VC of NUJS and current Chairman of Delhi Judicial Academy) and Professor NS Gopalakrishnan of CUSAT.


The protest letter takes issue with deplorable comments made by the BCI in its submission to the Parliamentary Committee reviewing the Higher Education and Research Bill (HER). I extract the relevant portion of our letter below:

"We take very strong exception to your statement to the Parliamentary Standing Committee as below:
  

"How the academicians can decide the curriculum of legal education? The litigants, the needy people come in contact of lawyers, explain their problems and the lawyers and judges in turn, work out the solutions. So the lawyers are well conversant with the problems, and they are the best person to decide as to what is needed for the students perusing legal education. The norms, curriculum and syllabus are thus, the domain of Advocates, so far legal education is concerned. The academics have a limited role to teach the books which are almost all authored either by noted lawyers or the Judges."

We believe this is a seriously misguided sentiment and severely denigratory of the role that legal academics have played and continue to play in legal education today. While the efforts of practising lawyers and judges are no doubt important, the primary responsibility for legal education ought to vest in those that teach law full time i.e. legal academics/educationists."

The letter also calls into question a BCI circular mandating students and law teachers to register and pay money for an alleged online portal/database.
 

If any legal academics (or researchers) are interested in signing onto this letter, please email me (shamnad@gmail.com) and I will add your name. Please mention your full name, designation and your institutional affiliation (as you would like to appear in the protest letter). Please do this within the next couple of days, since we intend to submit this to the BCI at the earliest.
 

Petition at Change.org

We would also like to solicit the support of legal practitioners, law students and others within the larger ecosystem of the "law" (which really includes any member of the public). For this purpose, we have a pithy petition at change.

0 Information Technology Act, Mandatory Disclosure, and Self Incrimination

Abhinav’s post on the scope of protection under Article 20(3) provides an extremely interesting insight into the Supreme Court’s jurisprudence. Here, I adopt those legal standards (which some clarifications) to test the validity of Section 69(2)-(3) of the IT Act – which mandates the disclosure of encrypted information by a ‘subscriber’ on the direction of the Controller.

Under the IT Act, a subscriber must extend all facilities and technical assistance to decrypt the information. A ‘subscriber’ is defined under Sec. 2(zg) as a person in whose name the Digital Signature Certificate is issued. In default, a subscriber shall be punished with an imprisonment for a term which may extend to seven years. I believe that this forced disclosure of encrypted data violates the constitutional proscription against self-incrimination under Art. 20(3). First, the term subscriber is wide enough to include individuals ‘accused of any offence.’ Second, the disclosure envisaged in Sec. 69(2) is self-incriminatory. It is in this second string that I agree with and adopt Abhinav’s reasoning.

A subscriber includes an Individual ‘Accused of Any Offence.’

Keeping in mind the broad character of the constitutional guarantee against self-incrimination, this Court has interpreted the phrase ‘accused of any offence’ to include persons other than those who are formally accused. In Shah v. Guha (AIR 1973 SC 1196), the Court clarified that an accused includes a person against whom a complaint has been lodged with the police in the form of a first information report. In fact, in Nandini Satpathy v. PL Dani (AIR 1978 SC 1025, para 46), the Court unambiguously went further to state that even those suspected of an offence may claim the privilege against self-incrimination.

A catena of cases have categorically held that Art. 20(3) extends to the anterior stages of the investigative process as well, before a case is presented to the Court. Indeed, a contrary interpretation would render the protection in Art. 20(3) rather weak. (Kathi Kalu Oghad, supra, pg. 26-28; State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005 Cri LJ 3950; Directorate of Enforcement v. Deepak Mahajan and Anr., 1994 Cri LJ 2269; and Balkishan A. Devidayal v. State of Maharashtra, 1980 Cri LJ 1424).

Accordingly, I believe than an accused, as defined above, may be a subscriber under the Act, i.e. if information pertaining to the alleged crime by the accused is contained in a digital resource protected by an encrypted key in the possession of the accused. In such cases, Sec. 69 mandates the disclosure of encrypted information by the accused himself, which clearly brings it within the ambit of Sec. 20(3).

The disclosure envisaged in Sec. 69(2) is self-incriminatory.

This section of the argument proceeds in line with Abhinav’s argument. As he points out, Article 20(3) incorporates a guarantee against testimonial compulsion (M.P. Sharma v. Satish Chandra, [1954] SCR 1077, pg. 1087-88). There, the Court noted that ‘every positive volitional act which furnished evidence is testimony’. This was met with approval in Kathi Kalu Oghad, supra, by the majority (pg. 26-28) and minority (pg. 40).

To add to Abhinav’s reasoning, I refer to the European Court of Human Rights decision in Funke v. France, ([1993] 1 CMLR 897 25) which (in a brilliantly explained judgment) specifically supported this construction - noting that the evidence must have an existence independent of the will of the suspect (Funke clarifies and follows the Saunders test).

Abhinav refers to the question of intangibility of the evidence; and the absence of an independent physical existence. To add to that, one must remember that a password or encryption key has an existence which depends upon the will of the accused, in that if he refuses to or is unable to disclose it - the password does not exist anymore. Unlike the key-drawer example, where a refusal to disclose would not render its existence defunct, a refusal to disclose an encryption key or password have a markedly different effect in fact. Indeed, many have argued for the extension of rules applicable to physical evidence in case of digital evidence as well, by analogy and implication. However, as with other areas of law, one cannot simple extend rules operating in the physical realm to digital developments given the conceptual difference – which is demonstrated here by diametrically opposite factual consequence of a failure to obey on the existence of the information itself.

Moreover, in Selvi, the Court recognized Oghad, supra, as the controlling precedent and reiterated the two main premises for defining ‘testimonial compulsion’: “The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to `personal testimony’ thereby coming within the prohibition contemplated by Article 20(3). In most cases, such `personal testimony’ can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators.” Thus, even if the password in itself is not testimonial evidence, the act of disclosing it is testimonial as it reveals the personal knowledge of the suspect, which can be distinguished from independently existing material and physical objects of facts used for purposes of comparison and identification. Indeed, this distinction between testimonial facts and physical evidence is expressly recognized by the Supreme Court in Selvi, supra, para 137, as also the American Supreme Court in Armando Schmerber v. California, 384 US 757 (1966).

Further, Sec. 69(2) mandates the disclosure of information by an accused, which may include incriminatory evidence. In this regard, I believe that the testimonial evidence in question is two-fold: First, the information itself being revealed by the accused could have a “tendency of incriminating the accused” or disclose a “guilt character” (Oghad, supra, pg. 128). In Selvi, supra, the Court noted that the relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or furnish a link in the chain of evidence which could lead to the same result. In this context, disclosure of the contents of a data resource by the accused could include incriminatory evidence. The fact that at the time of disclosure, the authorities are not aware of whether the information will be inculpatory or exculpatory is irrelevant (Selvi, para 130). This, indeed, is recognized – as Abhinav points out - in In re Boucher as well.

The operation of Article 20(3) to such forms of evidence is to be closely analyzed. Given the pervasive nature of digital information, I believe that the competing interests of self-incrimination and assistance of investigative authorities must be re-considered wholly, rather than blindly extending traditional analogies to these developments.

Raag Yadava studies law at the National Law School of India University, Bangalore

0 NLSIR: Call for Papers

(The following announcement is being posted on behalf of the National Law School of India Review)

The National Law School of India Review is now accepting submissions for its upcoming issue - Volume 25(1). The National Law School of India Review (NLSIR) is the flagship law journal of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. Over the last 20 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, Senior Counsel practicing at the Indian bar, and several renowned academics.


The most recent issue of the NLSIR, Vol. 23(2), featured contributions by Mr Aseem Chawla (former Partner, Amarchand & Mangaldas & Suresh A. Shroff & Co.),  Mr Sunil Jain  (Partner, Direct Tax, J Sagar Associates, Advocates & Solicitors) and Mr. Ravishankar Raghavan (Principal, Tax Group, Majumdar & Co., India) among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, in Action Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat's Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.

0 India's Higher Judiciary: A Male Bastion

In many ways it is not important to discuss who was appointed as the new President of the UK Supreme Court today. It is certainly more important to discuss who wasn't. The fact that Baroness Hale was one of the three shortlisted candidates but yet was not chosen as President will bring back into sharp focus the massive gender gap in judicial appointments in the UK. Baroness Hale was the only woman ever to be appointed as a Law Lord to the House of Lords and remains the only woman judge on the UK Supreme Court in its short history. An outspoken supporter of gender diversity in the judiciary, Baroness Hale has emphasised the role of gender in her judgments and perhaps never more forcefully than in her dissent in Radmacher v. Granatino, where eight (male) judges chose to uphold the enforceability of pre-nuptial agreements. She has also spoken out against her colleagues being members of the gentlemen-only Garrick Club in London. 


No Semblance of Diversity in the Indian Higher Judiciary
Gender diversity in judicial appointments in India has not received any serious attention despite the abysmal gender ratio. While the gender gap in the Supreme Court is quite visible, the situation in the High Courts is just as shocking. Thanks to some timely help from Shreya Rastogi (V Year, NLU Delhi), I was able to put together the latest numbers on the gender ratio in the various High Courts. It is a simple compilation of the latest information available on the websites of various High Courts and the document can be accessed here. Only 7.9% of the total number of High Court judges are women and the lack of urgency in addressing this problem is perplexing. Or perhaps, before we address the problem, we need to take a more fundamental step and acknowledge the scale and intensity of the problem.  Gender diversity in judicial appointments must become one of the top priorities while discussing judicial reform. 


Why Gender Diversity in the Judiciary?
Will women judges adjudicate cases differently from male judges? I don't think a strong argument can be made that they certainly will on all situations. It also runs into the strong objection based on essentialising gender and that somehow there could be this one single way in which women would adjudicate cases. This expectation that women wil adjudicate "differently" is an unfair burden and that cannot be strongest argument for demanding gender diversity in judicial appointments.

I would agree with the argument that Anne Philips makes in the context of gender diversity in legislatures in her book Politics of Presence. The justification for gender diversity in the judiciary must be rooted in concerns of legitimacy of the institution and combating what is clearly a case of structural discrimination. The push for gender diversity in the judiciary should not be based on the expectation of "feminist" judgments.

The argument might well be based on the positive impact of having women judges from a process perspective. The environment it would create for women bringing cases to the courts and for women lawyers appearing in court is critical and it would make an important contribution to establishing courts as inclusive spaces. Achieving gender diversity in judicial appointments is not just a question of tweaking the appointment procedure. It is very much about reforming the manner in which gender plays out in the Bar in terms of employment opportunities, the work culture, creation of networks of privilege, conditions at the workplace etc. The Bar must reflect on the role it has played in creating the gender deficit in the Indian judiciary, acknowledge that its structures and processes do not facilitate the bridging of the gender gap and take steps to ensure that success at the Bar is possible just as much for women as it is for men.

I am aware of the argument that we could have this discussion about other factors of diversity as well and that brings with its own complexities. However, that should not prevent us from engaging with such a stark case of exclusion, especially in an institution that is meant to safeguard constitutional values.

The Constitution Committee appointed by the House of Lords to look into 'Judicial Appointments' submitted its report in March 2012. The Committee addressed the issue of diversity in judicial appointments in Chapter Three.

0 Encryption and Self-Incrimination

Encryption of data is a means to secure and sensitive private data and prevent third parties from obtaining that information. It is a part of our everyday life, and we come across encryption each time we conduct an online transaction through our credit/debit cards, or install a new software on our computer by inserting the product key. The easy availability of such software however makes it easy to be used for a number of nefarious purposes, with "criminals including drug traffickers, pedophiles and terrorists [turning] to encryption to conceal their activities". To drive home the point of the security issue, you can see a slightly old but very compelling list of incidents involving encryption here. 
This reality has prompted States to enact key disclosure laws so that law enforcement is not crippled when faced with encrypted data, thus providing for compelling individuals to produce encryption keys. These laws pose searching questions for legal regimes which provide a right against self-incrimination, as witnessed in the U.K. and U.S.A. India also provides for compelled disclosure through s. 69 of the IT Act, 2000, but it has somehow remained under the radar for more than a decade in spite of the Constitution providing a fundamental right against self-incrimination through Article 20(3). Through this comment I seek to explore this aspect of s.69, reminding us of the challenges that the right against self-incrimination creates and faces in an era of intense security and surveillance.

Supreme Court on Self-Incrimination

It is essential to provide a background sketch of the law on self-incrimination in India today, as that will shape any interpretation which the Court adopts. The Supreme Court in the early years of independence gave many significant rulings on interpretations of Part III Articles, and one such ruling was M.P. Sharma v. Satish Chandra where the scope and extent of Art 20(3) was clarified. Speaking for a unanimous bench, Jagannadhadas, J. famously held that, “[t]o be a witness is nothing more than to furnish evidence … indeed, every positive volitional act which furnishes evidence is testimony”, making it clear that oral and documentary evidence could come within the confines of Art 20(3).

This catch-all phrase did not hold the field for long though and less than a decade later, eleven judges in of that Court in State of Bombay v. Kathi Kalu Oghad reconsidered the matter. By an 8-3 majority, the concept of “personal knowledge” as the key constituent of evidence for Art 20(3) was introduced and continues to be the test today. The scope of 20(3) was significantly restricted, and evidence such as fingerprints and handwriting exemplars were excluded from its ambit since they did not have a communicative, personal aspect, and were independent of the will of the person as such. An equal if not more important development ignored by textbooks, is the shift in the approach of the Court; from focusing on the positive volitional acts of testimony, the focus was now the testimony itself. It has remained so since.

There exist few areas of self-incrimination law where Kathi Kalu Oghad has not penetrated, and one such area is specifically relevant to this discussion. Would the power to compel production of documents or other issue a summons under s. 91 of the Code of Criminal Procedure (“Cr.P.C”) (s. 94, Cr.P.C. 1878) apply to an accused person, given the protections of Art 20(3)? A Constitution Bench answered this question in Shyamlal Mohanlal v. State of Gujarat and held that this power could not be exercised vis-a-vis accused persons, as it would violate Art 20(3). Reservations were expressed subsequently, but the decision remains good law on the specific issue outlined therein.

Why do I refer to Shyamlal as a decision of particular importance? Both s. 69 of the IT Act and s. 91 of the Cr.P.C. depend on compelling the individual to produce the necessary information. Taking the decision in Shyamlal to its logical conclusion, one would find it difficult to argue that compelling an accused to produce encryption keys or assist in decryption would not offend Art 20(3). If the Court would have been more receptive of the testimonial-physical distinction brought in by Kathi Kalu Oghad, then such an outright restriction would certainly not be the outcome.

Evidentiary Nature of Encryption Keys

Shyamlal does present a stumbling block, but not an insurmountable one. Given the almost universal acceptance of the Kathi Kalu Oghad approach and dictum, combined with a growing tendency to ease the burden on the  the prosecution in establishing its case, a reconsideration of Shyamlal today I believe would almost certainly result in a different outcome. Rather than a blanket exclusion, the matter would possibly turn on the nature and characterisation of evidence involved - only production of evidence independent of the accused's will could be compelled under s. 91. The same thus becomes crucial in context of encryption keys. English and American Courts have grappled with this specific issue already and provide valuable insight.

The English Experience

State access to keys was provided in s. 49 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) which like the IT Act only allows for decryption directions when necessary. Arguments were made that the section offends Art 6 of the ECHR, but were not given much credence at the time. These claims formed the principal arguments in R v. S and the reasoning adopted by the Court of Appeal is of particular interest. Briefly, the Police issued notices to both defendants compelling them to provide the encryption keys to the hard drives without which the data was rendered inaccessible. The defendants toed the Art 6 line. Noting the observations of the European Court in Saunders, the question became whether the key itself would be evidence dependent of the will of the accused – or testimonial evidence in Indian parlance. The Court held it did not, employing the oft-used analogy of the locked drawer: just as the key to that locked drawer exists independent of the will of the accused, so does the encryption key. The act of giving the key itself was not incriminating, but comparable to giving blood or urine samples.

The American Experience

The American judiciary first gave the notable judgment on this issue with the District Court of Vermont deciding In Re Boucher, subsequently appealed by the State. The Police when navigating through Boucher's laptop with his consent found files containing child pornography, but could not access this material later as the relevant files were protected by encryption. This required a password which only Boucher knew and for which he was subpoenaed. While the District Court held for Boucher, the Appellate Court reversed the decision allowing the subpoena. Importantly, both courts understood encryption keys analogous to a combination for a safe rather than a key to a drawer, holding it therefore to be evidence revealing the contents of Boucher’s mind and thus not independent of his will. The 11th Circuit Court of Appeals in February 2012 decided John Doe, which was very similar on facts. The Government argued the locked drawer analogy, which was rejected again. For the Court, producing the encryption key would be testimony of the accused’s “knowledge of the existence and location of potentially incriminating files; of his possession, control and access to the encrypted portions of the drives; and his ability to decrypt the files.”

Which Road to Take?

I believe, assuming the Court agrees Art 20(3) is engaged, that the American approach is theoretically and pragmatically more sound as against the English one. Analogising encryption keys to locked drawer situations would take away the fundamental nature of their intangibility, something for which the English Court has been criticised. Such evidence relies on the contents of the accused's mind and compulsion to produce it would amount to giving “personal knowledge” of the facts. Furthermore, in fact situations such as John Doe and R v. S (as per the record) the act of producing the key would not be “neutral”, and have communicative aspects as highlighted by the American courts.

Recognition of the engagement of the right against self-incrimination is followed by the next important step of balancing the claims involved. Here again American jurisprudence proves handy. In both Boucher and John Doe, the case actually turned on what is called the "foregone conclusion” doctrine. Simply put, compelling an accused to produce evidence would not engage self-incrimination rights if the existence and location of that evidence is a “foregone conclusion” by virtue of it being known to the investigating agency through other independent sources. Thus such testimony “adds little or nothing to the sum total of the Government’s information.” Indian jurisprudence has primarily focused on reliability of evidence as a rationale behind Art 20(3), which is supplemented by the concept of fairness underlying criminal trials. It is argued that the doctrine fits neatly in this framework. Not only does it augment reliability of evidence for which the sole source was otherwise the accused himself, but it also makes compulsion on the accused seem less abhorrent since he is not providing evidence to which the authorities otherwise had no access at all. It would be a mistake to criticise this position merely for it takes assistance of the accused: a high burden of proof in criminal law is not an exclusive burden upon the State forbidding assistance from the accused and mustn't be confused as such.

Thus I believe this approach offers a fitter alternative to the current position espoused by Shyamlal. It does indeed involve judicial appreciation that can turn controversial, but provides a helpful starting point nonetheless. 

Post by Abhinav Sekhri, who studies law at the National Law School of India University, Bangalore.

0 A Dangerous Precedent for the ‘Right to Information’ in India

In a grave setback for the ‘Right to Information’ movement, the Delhi High Court in the case of Registrar of Companies v. Dharmendra Kumar has ruled that the Right to Information Act, 2005 will not apply to those documents which can be accessed under existing legislation and rules.

In this particular case the documents which were requested by the RTI applicant could also be accessed by the applicant under Section 610 of the Companies Act. There are several Indian laws which have provisions similar to Section 610 i.e. a certain class of records held by the RoC are required to be open to general public inspection. The difference however between such laws and the RTI Act lies in the fact that the RTI Act guarantees access within thirty days and at a reasonable cost. As per the present Government Rules the cost of a RTI application is at just Rs. 10, while the cost of photocopying the required information or requesting for certified copies is at a mere Rs. 2 per page. Contrast this to some of the sky-high figures charged by the Central Govt. organizations like the Patent Office which charges Rs. 4000 for a certified copy of a document regardless of whether the document is 1 page or 10 pages! Most importantly the RTI Act provides the citizen with the threat of sanction against the public servant who delays providing information or provides wrong information. It is a combination of the above factors which have contributed to the success of the RTI Act in India.

The present judgment of the Delhi High Court deals with different arguments pertaining to an interpretation of Section 2(j) and Section 3 of the RTI Act. However for the purposes of this article, I would like to focus on the main issue of whether Section 22 of the RTI Act, 2005 can over-ride Section 610 of the Companies Act i.e. can a citizen demand information under the RTI Act despite the same information being accessible under a separate legislation.

Section 22 of the RTI Act reads as follows: 

“22. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

A reasonable interpretation of the above provision would conclude that the RTI Act would have effect regardless of it being inconsistent with anything contained in any other law in force. The RTI Act could be held to be consistent with the provisions of any other law only in those circumstances where the other law provided for similar if not identical rights to the citizen as provided under the RTI Act. Instead of analysing the similarities or dissimilarities between the RTI Act and Section 610 of the Companies Act, the Delhi High Court comes to the following bland conclusion:

“Firstly, I may notice that I do not find anything inconsistent between the scheme provided under Section 610 of the Companies Act and the provisions of the RTI Act. Merely because a different charge is collected for providing information under Section 610 of the Companies Act than that prescribed as the fee for providing information under the RTI Act does not lead to an inconsistency in the provisions of these two enactments.”

The above analysis completely misses the strong rights provided under the RTI Act, namely the 30 days limit and the ‘rights-based’ grievance redressal mechanism.

The judgment then goes on to state:

“Even otherwise, the provisions of the RTI Act would not override the provision contained in Section 610 of the Companies Act. Section 610 of the Companies Act is an earlier piece of legislation.”…………. “Therefore, the later general law cannot be read or understood to have abrogated the earlier special law.”

The above principle which is best captured by the Latin maxim of leges posteriors priores conterarias abrogant has been incorrectly applied by the Delhi High Court because this principle of statutory interpretation applies only when two conflicting laws make no reference to each other and where both laws have failed to provide any guidance on how to resolve the conflict. Section 22 of the RTI Act however is crystal clear that it will over-rule any conflicting legislation.

The most regrettable portion of the judgment however is where the Delhi High Court passes strictures against the Information Commissioner Shailesh Gandhi by naming him. The Supreme Court has time and again warned High Courts to be very careful while passing strictures against lower judicial officials.  In breach of the Supreme Court’s instructions the Delhi High Court states “In the present case, the Central Information Commissioner Mr.Shailesh Gandhi has also demonstrated complete lack of judicial discipline while rendering the impugned decisions.”  & “The consequence of the improper conduct of Sh. Shailesh Gandhi, Central Information Commissioner, is that there are now two sets of conflicting orders- taking diametrically opposite views, on the issue aforesaid.” 

The only fault of Shailesh Gandhi was that he disagreed with earlier ‘single commissioner’ orders of the CIC and passed a contrary order without referring the contentious issue to a larger bench of the CIC. This is not the first such incident before the CIC. Given that he’s a person without legal qualifications (something which the RTI regrettably allows) the Delhi HC could have been gracious enough to remand the matter to the CIC for a full bench hearing. Instead the Delhi High Court sat on the matter for 3 years before passing strictures against an Information Commissioner who disposed the appeal before him within a period of 1 month.

In August, the Delhi High Court is scheduled to hear yet another appeal against the order of Shailesh Gandhi in a similar case involving the Central Public Information Officer (CPIO) of the Supreme Court Registry who has been denying RTIs pertaining to judicial records on the grounds that the Supreme Court Rules already provide for a similar mechanism to access information. In that case, unlike the present case, Shailesh Gandhi passed a very detailed order. It remains to be seen whether it stands the test of an appeal before the Delhi High Court.

0 Campaign for commutation

The stage is set for a major campaign in favour of commutation of death sentences awarded to 12 convicts, with Justice Prabha Sridevan's excellent piece in The Hindu today highlighting the case of the 13 convicts, who suffered capital punishment because of erroneous Supreme Court judgments.

Of the 13, President Pratibha Patil has already commuted the sentence of one convict, Bantu in June this year. She is yet to decide the mercy petition of another convict, Saibanna, although she has received the advice from the Ministry of Home Affairs. With her term as President ending on July 25, it is likely that she may defer from taking any more decision on the pending mercy petitions, leaving them to her successor to decide.

The mercy petitions of the remaining 11 are either pending with the State Governors, or have been rejected by them, and they are likely to send their fresh mercy petitions to the President in due course.

Although Justice Prabha Sridevan has relied on the Santosh Bariyar judgment of the Supreme Court, there are several judgments post-Bariar which are still tainted, despite not being declared as per incuriam by a subsequent Bench of the Supreme Court. If the 12 convicts identified in the Bariar judgment get relief from the President, so must others who have been wrongly sentenced to death by the Supreme Court subsequent to Bariar. Therefore, it is for the Supreme Court itself to take the corrective steps, rather than leave it to the Executive to decide which are the post-Bariar cases which deviated from the Bachan Singh line, in order to exercise the President's power to commute under Article 72 of the Constitution.

0 Remembering Justice Khanna

This month will mark the birth centenary of Justice Hans Raj Khanna, one of the most important judges to have served on the Supreme Court of India. In a short piece in the current issue of Caravan, I reflect upon Khanna's legacy and judicial philosophy.

0 Chief Justice Roberts Exercises the Swing Vote as the US Supreme Court Upholds the 'Individual Mandate' in Obama's Health Care Law

The US Supreme Court handed down its decision in National Federation of Independent Business v. Sebelius yesterday and upheld the individual mandate provision of the Affordable Care Act. In this post, my attempt is to provide a clear and simple analysis of the issues involved and the opinions expressed in the case.

It would be stating the obvious to say that today's decision had tremendous institutional and political significance. The extent of its importance may be understood from the fact that the court, in a rare departure from the usual one hour of oral arguments, allocated six hours to hear arguments concerning the constitutionality of the the Affordable Care Act ('ACA'). 

There were primarily three issues for determination before the U.S Supreme Court in National Federation of Independent Business v. Sebelius:

1. Constitutionality the 'individual mandate' provision of the ACA

I am going to take the liberty of explaining the meaning of 'individual mandate' for the benefit of readers who might not have been following the details of the case. The 'individual mandate' provision of the ACA requires all Americans (except certain specifically excluded categories) to have a certain minimum level of health insurance. All individuals have to buy health insurance from private providers if they are not covered by insurance from Medicare/ Medicaid (government funded health coverage for certain vulnerable sections) or insurance provided by employers. If any individual does not have health insurance by 2014, the only consequence would be that she has to pay a 'shared responsibility payment' to the federal government, which the ACA called a 'penalty'. This penalty will have to made as an additional payment when an individual pays her taxes to the Internal Revenue Service (IRS).  

This issue had two further parts to it:

1-A: Does the 'individual mandate' amount to the federal government forcing individuals to buy a product or was it merely regulating inter-state commerce which was permitted under the Commerce Clause?

The federal government argument argued that the failure to purchase health insurance had a "substantial and deleterious effect on interstate commerce" because the costs of providing health care to those who did not have health insurance would ultimately result in higher premiums for those who did purchase insurance. This cost-shifting problem that arose failure to purchase health insurance, the federal government argued, was being remedied by the ACA. They saw it as only regulation of inter-state commerce (permitted by the Commerce Clause) and not creation of commerce.

The petitioners, however, felt that the power to regulate commerce did not include the power to create commerce. The requirement to mandatorily buy insurance, they contended, forces an individual to take up commerce on the basis that lack of insurance had negative impact on interstate commerce. They rejected the federal government's argument that not buying health insurance was the basis for exercising  the power under the Commerce Clause and argued that inaction cannot be regulated under the Commerce Clause. This was the famous 'broccoli' argument in the lead up to the judgment and whether the federal government could require the mandatory purchase of broccoli in order to address health and diet problems. The federal government's response was that health insurance was a unique product and that the individual mandate in the ACA did not mean that the federal government could mandate the purchase of broccoli or cars.

Decision on the Commerce Clause

Five judges rejected the argument that Congress had the power to bring in the individual mandate under the Commerce Clause. The opinion by Chief Justice Roberts (Part III-A, p. 22 of the document above) and the dissenting opinion (Part I-B of the joint opinion by Justices Scalia, Kennedy, Alito and Thomas at p.136) held that the precedents governing the scope and meaning of the Commerce Clause did not permit the reading suggested by the federal government. 

Four judges speaking through Justice Ginsburg's opinion (Parts I-III, pp. 67-101, joined by Justices Sotomayor, Kagan, and Breyer) were of the view that the individual mandate was a constitutional exercise of power by Congress under the Commerce Clause.

1-B: Can the 'individual mandate' be seen as an exercise of taxing powers by Congress?

This is where the opinion by Chief Justice Roberts is critical and proved to be the swing vote in upholding the 'individual mandate' of the ACA. The federal government's argument was not that the Congress was exercising its taxing powers by requiring everyone to buy health insurance. Instead, the argument was that the 'shared responsibility payment' or the penalty under ACA must be seen as a tax, which Congress could legally impose by exercising its taxing powers. Since the only consequence of not buying the health insurance is to make an additional payment when paying taxes, the government argued that the 'individual mandate' could be seen as taxing not having health insurance. In that sense, it was not a requirement to mandatorily buy health insurance. Instead, it only set a condition for the payment of tax just like earning a certain income or paying tax when buying certain products.  

Chief Justice Roberts in his opinion on whether the 'individual mandate' is a tax (Parts III-B and III-C, pp. 37-51) is of the view that 'the question is not whether that is the most natural interpretation of the mandate, but only whether is a "fairly possible" one'. For the purposes of deciding whether Congress was exercising its taxing powers, Chief Justice Roberts is of the view that the label of 'penalty' attached to the payment that must be made to the IRS cannot be determinative. Through the reasoning he offers in Parts III-B and III-C, Chief Justice Roberts come to the conclusion that the requirement of the ACA that an individual who does not have health insurance must pay a penalty to the IRS can be viewed as a tax.

The Plurality on the Tax Issue

Five judges agree that the 'individual mandate' is a constitutionally valid exercise of taxing powers and that agreement is at the heart of the court's decision to uphold the constitutionality of Obama's health care law. Even though Justices Ginsburg, Sotomayor, Kagan and Breyer were primarily of the view that the 'individual mandate' was justified under the Commerce Clause, they agreed with Chief Justice Roberts (Part-IV of Justice Ginsburg's opinion, p.102) that the 'individual mandate' could also be seen as a valid exercise of taxing powers by Congress. Justice Ginsburg, while agreeing with the Chief Justice on this issue, notes that it is surprising that while he was willing to see if it was "fairly possible" to view it as a tax, he was not willing to adopt the same approach while dealing with the Commerce Clause. 

Four judges, Justices Scalia, Kennedy, Alito and Thomas, did not find the 'individual mandate' to be a valid exercise of taxing powers by Congress. Therefore, they found the law to be unconstitutional both under the Commerce Clause and the taxing powers. 

2. The Anti-Injunction Act and the Authority of the Supreme Court to Decide the Case

Essentially, the provisions of the Anti-Injunction Act prevent any tax from being challenged in a court until the tax is paid. Since the penalty under the ACA would kick in only in 2014, it was argued that the Supreme Court could not hear the case due to the provisions of the Anti-Injunction Act. 

Here Chief Justice Roberts argues (Part-II, p.18 of the document) that the label of 'penalty' in the ACA is significant since the "Anti-Injunction Act applies to suits for the purpose of restraining the assessment or collection of any tax". Chief Justice Roberts notes that the ACA labels other payments under the legislation as 'taxes' while it is called a 'penalty' under the ACA. More importantly, the Chief Justice is of the view that since both legislations, the ACA and the Anti-Injunction Act, are legislations from Congress it is important to to determine whether it was Congress' intent to make the Anti-Injunction Act applicable to the ACA. The Chief Justice undertakes a textual analysis of the ACA to come to the conclusion that this was indeed not the case and therefore renders the the Anti-Injunction Act inapplicable to the 'individual mandate' provision. 

Justices Ginsburg, Sotomayor, Kagan, and Breyer agreed with the Chief Justice's reasoning concerning the inapplicability of the Anti-Injunction Act. However, the four dissenting judges were quick to argue that the Chief Justice was on the one hand upholding the constitutionality of the 'individual mandate' as a valid exercise of taxing powers but at the same time refusing to treat it as a 'tax' for the purposes of the Anti-Injunction Act. Having decided that the 'individual mandate' is not an exercise of taxing powers, the four dissenting judges had no trouble in holding that the Anti-Injunction Act was inapplicable to the case before them. 

3. The Expansion of 'Medicaid' under the ACA is  Unconstitutional

26 states challenged the provisions of the ACA that dealt with the Medicaid programme and one of the main reasons was the impact it would have on the federal funding they would receive under it. As it stands, States are required to cover only particular categories of people - children, needy families, pregnant women, the blind, the disabled and the elderly. However, the ACA requires States to cover, under the Medicaid programme, all individuals below 65 years whose income is below 133% of the federal poverty line. The federal government would bear the entire difference in costs until 2016 and then it would gradually reduce it to a minimum of 90% of the costs over a few years after that. This issue relates to rather intricate aspects of federalism in the US and the limits on the power of Congress in trying to get States to comply with objectives of the federal government.  The States argued that Congress was looking to force the changes in Medicaid on them by witholding the Medicaid funds in its entirety if the new expanded programme and attached conditions were not accepted.

Seven judges struck down this provision as unconstitutional. Chief Justice Roberts (Part-IV, p. 51 0f the document, with which Justices Kagan and Breyer agreed) and the four dissenting judges (Part-IV, p.154) agreed that the conditions and the manner in which these conditions were attached were in excess of the spending powers of Congress. 

Invocation of Judicial Deference

The opinions by Chief Justice Roberts and Justice Ginsburg invoke concerns of judicial deference while upholding the measure adopted by Congress. In the words of the Chief Justice: 

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices. Our deference in matters of policy cannot, however, become abdication in matters of law.

However, Justice Ginsburg finds the Chief Justice's opinion on the Commerce Clause problematic on those very grounds. She draws attention to the phase in the US Supreme Court's history when economic regulations enacted by legislators were frequently struck down in the first half of the 20th century. Referring to the Chief Justice's opinion on the Commerce Clause, Justice Ginsburg said: 

Why should the Chief Justice strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever­ developing modern economy? I find no satisfying response to that question in his opinion.

However, when the case first went to the US Supreme Court President Obama would not have considered Chief Justice Roberts to be a likely saviour and might have pinned his hopes on Justice Kennedy. Chief Justice Roberts has broken ranks with the conservative wing on the court and it will be interesting to see how that dynamic develops. Undoubtedly, the reputation of the Court was at stake given the criticism it has received subsequent to its controversial 5-4 decisions on gun control in McDonald v. City of Chicago and political spending by corporations in Citizens United v. FEC. The Chief Justice has certainly saved the day for the Court and commentators see it as the beginning of the Roberts Court, shifting the focus from Justice Kennedy who has been the swing vote on the current US Supreme Court.  We will have the chance to see the dynamics of the swing vote very soon when the US Supreme Court's hears arguments on the constitutionality of affirmative action measures in Fisher v. University of Texas at the beginning of its next term in October 2012. With Justice Kagan recusing herself from the case, all eyes will be on the swing vote as the legacy of Bakke and Grutter comes before the US Supreme Court.

 The SCOTUS blog coverage on the health care case is here: http://www.scotusblog.com/case-files/cases/national-federation-of-independent-business-v-sebelius/

0 We the People

As we know, not a great deal has been written on the founding of India's Constitution. Kalyani Ramnath, who teaches legal history at the National Law School of India University, Bangalore, has a new article on the Constituent Assembly Debates in South Asia Research. I haven't had an occasion to read the piece, though it looks very interesting. The abstract is as follows:

‘We The People’: Seamless Webs and Social Revolution in India’s Constituent Assembly Debates


Although the Preamble of the Constitution proclaims that ‘We the People’ have solemnly adopted and enacted it, there is almost no further mention of ‘the people’ in the constitutional text itself. Asking who are ‘the people’ in whose name the Indian Constitution was drafted, this article re-examines the Constituent Assembly Debates (CAD) and highlights the fragmented image of ‘the people’ as a multivocal, multivalent reflection of imaginations and expectations attributed to people within and behind the Constituent Assembly. It becomes obvious that the aspirations of the actual Constitution makers find clearer expression in the constitutional text than the perceptions of ‘the people’ in whose name such law making takes place. Using the lens of the social revolution that the Constitution was to bring about, the article clarifies the implications of this multiplicity of visions, distinguishing ‘We the People’ seeking to claim such unfulfilled constitutional promises today, on the one hand, and the functionaries obligated to translate constitutional promises into reality and to enforce them, on the other. Asking why it is that the ambitions of the latter find clearer expression in the constitutional text than those of the former, the article also poses deeper questions about representativeness of political institutions and about the strength and depth of Indian social reform agenda.

0 The Legal Context to the Supreme Court of Pakistan's Disqualification of Prime Minister Gilani

(I must thank Professor Ali Qazilbash at the Department of Law and Policy, Lahore University of Management Sciences for answering some of my basic questions concerning this controversy and constitutional law in Pakistan. Any inaccuracies, however, are my own responsibility.)

To better understand the order of the Supreme Court of Pakistan disqualifying Prime Minister Gilani, it might be useful to get a grip on the legal context in which this order was handed down. My apologies for making this largely a descriptive post but I think it might help readers better understand the complexities involved and avoid a narrow and superficial analysis like the one reflected in Justice Katju's opinion piece in The Hindu.

Pakistan's Involvement in the Swiss Case Against Benazir Bhutto and Asif Ali Zardari

The genesis of this issue can be traced back to 1997 when the Advocate General of the Nawaz Sharif government, Chaudhry Mohammad Farooq, wrote to investigating authorities in Switzerland, who were looking into bribery and money laundering charges against 2 Swiss corporations -- Cotecna and SGS -- and other individual beneficiaries, including Benazir Bhutto and Asif Ali Zardari. The Advocate General sought for the Government of Pakistan to be made a civil party in the case on the ground that it was the Government of Pakistan that should legitimately receive the money that was involved, in case the charges were proved. In August 2003, a Swiss court convicted Benazir Bhutto and Asif Ali Zardari ex parte (they refused to appear or answer questions put to them by letters rogatory) on money laundering charges and handed down a 6 month suspended sentence and an order to pay $12 million to the Government of Pakistan by way of restitution.

Musharraf's National Reconciliation Order and Pakistan's Withdrawal from the Swiss Proceedings

Benazir Bhutto and Asif Ali Zardari filed an appeal in Switzerland against the judgment of the Swiss court in August 2003 with Bhutto living in London and Dubai fearing arrest by Musharraf's government if she returned and Zardari imprisoned in Pakistan. As a result of the political churning in Pakistan between 2003-2007, Musharraf promulgated the National Reconciliation Ordinance (NRO) in October 2007 which sought to close cases of corruption filed against certain political leaders and bureaucrats within a certain period. The case against Benazir Bhutto and Zardari in the Cotecna and SGS matter also fell within the scope of the Ordinance. Following the Ordinance and Benazir Bhutto's assassination in December 2007, the then Advocate-General of Pakistan, Malik Muhammad Qayyum, sent a letter in March 2008 to the Canton of Geneva's Attorney General withdrawing the Government of Pakistan as a civil party in the case against Zardari and others.

The Supreme Court's Order in the NRO Case

In December 2009, a 17-judge bench of the Supreme Court of Pakistan, led by Chief Justice Iftikhar Mohammad Chaudhry, struck down the NRO and held that the Attorney General's letter in March 2008 was unauthorized and unconstitutional. In this judgment it also ordered the Federal Government to write to the Swiss authorities and withdraw the March 2008 letter and thereby revive the Government of Pakistan's position as a civil party in the Swiss proceeding. It is the refusal of the Government of Pakistan to send this letter that is at the heart of the current controversy. However, what has received very little attention is the fact that the Supreme Court of Pakistan issues numerous orders and summoned various bureaucrats and ministers since December 2009 in an attempt to the get the government to follow its order in the NRO case.  The Federal Government, speaking through the Prime Minister, categorically stated that it will not send the letter to the Swiss authorities until the incumbent President was in office and this finally led to the contempt petition against the Prime Minister.

The Question of Immunity u/ Art. 248 of Pakistan's 1973 Constitution


Does the order requiring the Federal Government to write to the Swiss authorities to revive Pakistan's position as a civil party in the Swiss proceedings violate the immunity available to the President under Art. 248 of Pakistan's 1973 Constitution? In April 2012, a 7-judge bench of the Supreme Court seized with the question of whether the Prime Minister was in contempt had a rather simple response. It was repeatedly argued in the contempt case that Prime Minister Gilani would not authorise the Attorney General to write to the Swiss authorities because it would violate the President's immunity u/ Art. 248 and international law generally. The Supreme Court's response was that the case against Zardari in Switzerland was initiated by the Swiss authorities and not the Government of Pakistan. The order of the court in the NRO case was only to revive Pakistan's position as a civil party in the Swiss case so that it could receive the money that was legitimately owed to it, in case the charges of money-laundering and bribery were finally upheld. Questions of immunity available to the President under Art. 248 of Pakistan's Constitution and international law generally, according to the Supreme Court, was a matter for the Swiss courts to rule upon and had no bearing upon the Government of Pakistan's obligation to write to the Swiss authorities reinstating itself as a civil party.

The Disqualification Order Puts the Supreme Court in a Tricky Situation


Despite repeatedly trying to get the Government of Pakistan to follow its order in the NRO case, the government showed no sign of relenting and this undoubtedly put the Supreme Court of Pakistan in a very difficult situation. However, by going ahead and disqualifying the Prime Minister earlier this week on the basis of his conviction in the contempt case, the Supreme Court has pushed itself into a corner with depleted options. The order in the NRO judgment was directed at the 'Federal Government' and not at the Prime Minister personally. If the next Prime Minister also refuses to write that letter to the Swiss authorities, will the Supreme Court go ahead and find the Prime Minister to be in contempt again and subsequently disqualify the next Prime Minister as well? I am not sufficiently familiar with the political situation in Pakistan to comment on the likelihood of the next Prime Minister authorising the Attorney General to write to the Swiss authorities, but the Supreme Court of Pakistan did find itself in a very difficult situation before this week and I am not sure if the disqualification order has made its position any better in the intriguing theatre of politics in Pakistan.

0 Minority Quotas: Failed Lessons

Lessons on how not to pitch for a Quota

 Reservation on the basis of religion has always raised serious constitutional concerns and recent ruling of the Andhra Pradesh High Court (which the Supreme Court refused to stay) declaring the sub-quota for minorities as unconstitutional only illustrates this constitutional tension. This is not the first time that the Andhra Pradesh High Court has declared reservations for religious minorities as constitutionally invalid. In 2005, a five-judge-bench of the Andhra Pradesh High Court struck down the Government Order giving the reservation of 5% to Muslims on the ground that it was given without consulting the Backward Class Commission. (T.Muralidhar Rao) Subsequently when the A.P. State Legislature passed an Act giving 5% reservations for Muslims, the same was struck down by another five-judge-bench, inter alia, on the ground that the said reservation was purely on religious lines and was therefore constitutionally impermissible (Archana Reddy 2007). The State legislature again passed another legislation giving reservation to specified Muslim religious group and declared them as backward class. A bench of Seven Judges of the A.P. High Court declared the legislation as constitutionally invalid on the ground that the entire exercise of investigation and identification of backwardness was done on religious lines and was also not done in a scientific manner. The string of judicial setbacks makes one wonder whether the Government is announcing minority quotas largely as a symbolic exercise with the knowledge it will not pass judicial muster. Contrary to popular perception, the Andhra Pradesh High Court struck down the minority sub-quota in admission into Educational Institutions and Central Government employment not just on religious discrimination, but also on other significant constitutional illegalities. It is important to understand and analyze the implications of each dimension on which the minority sub-quota was struck down.

First and foremost, the sub-quota violated the constitutional injunction that state action should not be based on religion alone. The High Court did not say that a sub-quota could not be created for the more backward classes among the OBC’s, including minority OBC’s. It only said that such a sub-quota cannot be created on the grounds of religion. The Supreme Court in Indira Sawhney held that further classification among backward classes based on the extent of backwardness was constitutionally permissible. In Tamil Nadu, Andhra Pradesh and various other states, backward classes are further classified into various categories based on the extent of backwardness. There are various minority backward classes which already form part of these categories based on their backwardness. If the Government had demonstrated that the minority backward classes forming part of sub-quota were more backward then the other backward classes (OBC’s), it may have been constitutionally permissible to carve out a sub-quota. However the Government just clubbed all minority backward classes into one sub-group without any material to show that the minority backward classes were more backward among the OBCs. Thus on the face of it, the sub-quota seemed to be based on religion alone. If the Central Government had placed material which showed that they evaluated the condition of minority OBCs vis-à-vis other OBCs and then carved out a sub-quota, the sub-quota may have been justified. On the contrary, as the High Court observed, the substantial variance in the economic, educational and social indicators of various minority groups itself demonstrated that the sub-quota was based only on religion and not on backwardness.

Second, the basic flaw that vitiated sub-quota in admissions to educational institutions was lack of legislative authorization. The Supreme Court in Indira Sawhney held that reservation could be made even by way of a Government Order since Article 15(4) stated that reservation could be made by a “special provision”. However, the Parliament by the 93rd Constitution Amendment introduced a new provision Article 15 (5) which mandated that reservation for admission in educational institutions could only be provided by way of a “special provision, by law”. The Supreme Court has constitutionally held that whenever constitution uses the phrase “by law”, it means a law passed by a legislature. Thus, if any rights are being curtailed, it would require legislative authorization. A quota assigned by Parliament for other backward classes enmasse as a group cannot be disturbed merely by an executive instruction. The proper course for the Central Government would have been to amend the parliamentary law providing quota for backward classes. This would have ensured that it was duly debated in the parliament.

Third, the creation of sub-quota also violated a major procedural safeguard – failure to consult the National Backward Class Commission (NCBC). Recognizing that several communities were being included in the list of backward class on extraneous grounds and not based on backwardness, the Supreme Court in Indira Sahwney case directed that any revision backward class list should be done only after a prior consultation with the Backward Class Commission and its opinion is ordinarily binding. This judicial direction of the Supreme Court was given statutory recognition by the Parliament by passing a National Commission for Backward Classes Act, 1993. However, the Central Government failed to comply with this requirement by carving out a sub-quota without consulting the NCBC. The Central Government asserted that consultation is required only when you are adding a new community and does not required when you are creating a sub-class among the existing backward classes. Not only does this assertion violate the Supreme Court’s direction, but also undermines the entire rationale for consultation with the Backward Class Commission. The Backward Class Commission was meant to be an expert body which would independently evaluate claims of backwardness and not based on populist compulsions. The NCBC as an expert body would have examined the claims of other backward classes vis-à-vis the minority backward classes. The need for consulting the NCBC was all the most justified for minority sub-quotas, since there were conflicting methodologies in determining the quantum of reservation (4.5%). Justice Lokur observed that when confronted with two conflicting methodologies, the method adopted by the Central Government may have been accepted had it consulted the NCBC before carving out a sub-quota.

Fourth, the Report of the National Commission for Religious and Linguistic Minorities (NCRLM) on which the Central Government placed extensive reliance also does not justify the creation of a sub-quota. The NCRLM is a not statutory body to investigate backwardness and neither did it investigate the backwardness of the minority backward classes vis-à-vis other backward classes forming part of the 27% quota. That function falls within the exclusive realm of NCBC, which is a statutory body to investigate backwardness. Even the NCRLM Report questioned the present OBC list as unscientific and not based on proper data and sought for an overhaul of entire OBC reservation. The NCRLM Report did recommend an 8.4% for minorities out of the 27% OBC quota in Central Government employment on the ground that 8.4% is total population of minorities with reference to the OBC population. However the NCRLM recommendation will not pass the constitutional standard since the OBC reservation was given not on the basis of population, but on the extent of backwardness. And more importantly, neither the NCLRM nor the Central Government failed to consider the issue of inadequate representation before creating a sub-quota in employment. The Constitution in Article 16(4) mandates reservation for backward classes who are “inadequately represented in the services of the State”. Merely concluding that a class is backward would not suffice. The Central Government failed to consider whether the minority religious communities forming part of the sub-quota were inadequately represented in the services of the Central Government in comparison to other backward classes. The key lesson that successive governments have failed to learn is that affirmative action programs that are narrowly tailored and ensure that benefits of quota reach the intended beneficiaries are more likely to be judicially upheld. By creating a sub-quota without following the rigorous constitutional requirements, the Government indeed has done a disservice to the minorities.

0 Opportunity for Lawyers Interested in Financial Policy

The Macro/Finance Group at the National Institute of Public Finance and Policy has work opportunities for lawyers on interesting and important policy work connected with India's economic reform. 

One of the important projects being undertaken, at present, is research support for the Financial Sector Legislative Reforms Commission (FSLRC), which involves rewriting financial sector law for India. Ajay Shah has this post on his blog with more details on these opportunities. 

If this interests you, please contact Anurodh Sharma (anurodh54 at gmail.com) with your resume by 22 June 2012, where you clearly identify where your interests and capabilities lie.

0 Courting Legal Talent: Announcing Litigation Fellowship

In a rather provocative post around two years ago, I bemoaned the fact that a disproportionately large number of National Law University (NLU) graduates opt for "corporate" careers (defined largely as jobs involving a significant dose of corporate transactional lawyering in some form, either in law firms, companies (in house) or even in LPO's). And that very few think laterally outside of this "corporate" career box, despite the fact that a law degree (and one from an alleged "island of excellence") is pliable in so many different and diverse career directions.

I'm currently co-authoring a paper that touches on this theme; the statistics we've collected so far (over the last 2-3 years) reveal that the number of students opting for the corporate sector are as high as 70-75%. While some of the recruits have a genuine feel for this kind of a job and take to it like a fish takes to water, others succumb to the herd mentality (the prestige that comes with working for a top tier firm, the desire to walk in the footsteps of their esteemed seniors etc). And yet others are financially constrained, necessitating them to take up this kind of a job to pay off hefty bank loans (given that the NLU's now charge a significantly high tuition of Rs 2 lakhs and upwards a year).

In fact, our interviews reveal a whole host of systemic issues at play driving this career choice, not least significant of which is the absolute lack of career counselling at any of the law schools. Further, the recruitment numbers by themselves may be insufficient in coming to conclusions on the latitude of career choices , as there is considerable attrition in and out of the law firms. Many graduates do around 2-4 years in a law firm and then go on to explore a host of other career options such as litigation, academia, research and policy advocacy, government service (after taking the civil services exam), working with international organisations (World Bank, UNICEF etc), NGO's (health/environmental activism etc), legal journalism and the like...in fact, some have been courageous enough to drop their legal sheen and follow their hearts' lateral bidding by whipping up culinary delights in downtown London, kickstarting sports management consultancies or even lighting up the ramp (and now the kitchen) with their elegant frames....

And all of this brings me to what I think to be an excellent initiative designed to solve one of the key systemic issues plaguing us, namely the sheer mismatch between law graduates that desire the thrill of the court and those that end up actually experiencing it (for want of godfathers, money and the like).

The Lawyers’ Welfare Awards
In order to recognize and promote young talent in the field of litigation at the Supreme Court, the Supreme Court Lawyers Welfare Trust (SCLWT) has instituted 2 annuals fellowships, known as the Lawyers Welfare Awards.

Eligibility  

The SCLWT invites applications from candidates who satisfy the following requirements:
i) Lawyers enrolled with any State Bar Council in India;
ii) Having completed a minimum of 2 years, and a maximum of 6 years practice in the courts of India;
iii) Such practice will not include non-litigation practice with law firms/individuals, judicial clerkships and teaching assignments;  

The candidates must be prepared to commit themselves to a minimum period of 2 years’ practice at the Supreme Court of India;

The Fellowship
Each selected Fellow is entitled to the following:
i) A monthly stipend of Rs.25,000 over a period of 3 years practice in the Supreme Court;
ii) A one-time subscription to SCCOnline® which will be registered in the name of the candidate.

Requirements
Interested applicants may e-mail the following documents in Microsoft Word format to the Trust at scwelfaretrust on or before 15th August 2012
i) A copy of the candidate’s latest CV  

ii) A 1000 word essay on the best case in which the candidate has been involved. Relevant documents relating to the case be annexed.

Process of Selection
A panel of Trustees will shortlist 15 candidates among the Applicants for the final round of interviews.The final interviews will be held by the Chairperson of the Trust and a few other Trustees in the first week of September 2012. The two selected candidates will be awarded the LWA fellowship, which will be with effect from 1.10.2012 to 30.9.2015.

Kudos to all those involved in setting this up, namely: 

Justice J.S. Verma, Former Chief Justice of India (Chairperson)

Justice Mukul Mudgal, Former Chief Justice, Punjab & Haryana High Court (Trustee)

M.N.Krishnamani, Senior Advocate (Trustee)

V.K.Tankha, Senior Advocate, (Trustee)  
Mamata Kachwaha, Advocate, (Trustee)  
Sadhana Ramachandran, Advocate, (Trustee) 
Gopal Sankaranarayan, Advocate, (Trustee)  
Raghenth Basant , Advocate, (Trustee)