Friday, June 29, 2012

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:

Friday, June 22, 2012

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.

Thursday, June 21, 2012

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.

Sunday, June 17, 2012

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 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 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.

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.


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)

Saturday, June 2, 2012

0 What's with this Kolaveri about John Doe Injunctions?

What's with this Kolaveri about John Doe Injunctions

On 29 March 2012, at the instance of a firm called Copyright Labs, the Madras High Court issued an injunctionintended to prevent the illegal copying and distribution of the film "3", perhaps best known for it song "Why this kolaveri (killer rage)".  Those interested may read the order for themselves, (courtesy of the BGR blog); as injunctions go it was certainly a most unusual one. It was ex partein nature, that is, it has been issued by hearing only one side. Moreover, it was in the nature of a "John Doe injunction", that is, it applied to any and all persons, even unknown ones. The plaintiffs used this feature to persuade ISPs to altogether block access to both P2P sites and video sharing sites like Vimeo and Dailymotion, regardless of whether or not they actually contained or gave access to the concerned material. Predictably, this caused outrage and confusion in equal measure. Even to someone like me who can claim some connection with the law for the last seventeen years, the incident did not make sense. How could an ex parteJohn Doe injunction of such sweeping ambit be ever contemplated? And how can an injunction to prevent piracy apply to ISPs and video sharing sites anyway?

To understand the facts better, perhaps the quickest strategy is to fall back on beer, the law student's time-tested analytical tool. Consider a situation (needless to say, completely hypothetical), where United Breweries discovers some enthusiasts brewing, on a limited scale, a beer near-identical to Kingfisher Ultra. Its purveyors have no intention of passing it off as genuine KF. Neither is this fauxKF sold or transacted for material gain, but only "shared" amongst its (re)creators. At the same time, the purveyors are open about their product's resemblance to the genuine KF, and indeed their declared intention has been to recreate its taste and colour. Over time this community of enthusiasts starts cutting into UB's revenue, or at least UB claims so. The company tries to approach law courts, but it turns out  that the places where the sharing takes place lies beyond the the courts' jurisdiction. UB then takes out a court order forbidding anyoneto help these exchanges. 'Anyone' means literally just about anybody. It includes not only sharing venues, but also certain clubs or societies where microbrewery enthusiasts gather to discuss and sample (not consume) each other's products. Since these sampling clubs also lie outside the court's jurisdiction, the injunction does not help UB much. Now what does it do? It goes and informs bus and taxi companies that the terms of the court order are so wide as to cover them also. Hence they are prohibited from carrying passengers to the sharing venues and sampling clubs. This prohibition extends even to passengers who have no interest in KF, but want to go to a sampling club to taste brews that have nothing at all to do with UB.

The natural response to this admittedly absurd scenario is that beer (and likewise chocolate, toothpaste or shoe polish) are inherently different from films or audio recordings. Replicating beer entails a process not only skilful but also cumbersome and expensive, which tends to restrict such not-for-profit endeavours to "small beer", literally. This is one major flaw in our above example: it is very difficult to sustain volumes large enough to dent UB's profit margins unless one resorts to outright fakery and passing off. In contrast, films can be easily copied and distributed over the internet at little to no cost.

But should this difference alone justify such sweeping injunctions and render plausible in respect of films what we just acknowledged as absurd in the case of beer? In other words, can certain procedures otherwise uncalled for be justified merely because the subject matter concerns intellectual property? This means the matter pertains not so much to copyright as it does to civil procedure and how it is to be applied to enforce rights deriving from intellectual property laws. This is a vast issue, well beyond the scope of this article.  Here I shall only raise a few points that I consider germane.

Protecting intellectual property, and particularly copyrights, presents an unprecedented challenge to legal systems the world over. Advances in digital technology has made it possible to copy and distribute over the internet music recordings, films and even books with unprecedented speeds and reach. Despite many efforts, no satisfactory legal response has been devised so far. "Satisfactory" is a loaded term, so it is perhaps a good idea to specify what exactly I mean by it. First, it must bear strong connections with the idea of efficiency, that is, securing the objective with minimal wasted effort and "collateral damage". The last is particularly significant. Applied to the present context, it means simply that the measure must (a) be effective in restricting piracy, and (b) cannot be so broad in its ambit as to encroach upon individuals' legimitate interests. This includes the various fair use rights recognised under S. 52 of the Copyright Act; the right to access on Vimeo and Dailymotion videos that have been legally uploaded there; and even the right to distribute over BitTorrent material whose copyright status is not in dispute (I myself have used BitTorrent on several occasions to download software like Ubuntu Linux). Which means that expressed in simple terms, an effective remedy must also incorporate elements of balance - a balance between various differing, and at times mutually inconsistent, individual and social interests.

In this light, let us examine the nature of the present injunction. First, it was ex partein character. Since such orders override a fundamental principle of natural justice that all parties should be given a fair hearing, they are to be issued with much restraint, and only in exceptional situations (such as when the other party persistently fails to appear, or when any delay will lead to significant injustice).

Secondly, the only specific parties the order names (at p. 3-4) are some fifteen India-based ISPs, whom it proceeds to restrain "from in any manner infringing the applicant's copyright in the cinematographic film/motion picture '3' . . .." No mention is made of any P2P or even video sharing sites, whose direct involvement in infringing the plaintiffs' copyright is much more feasible and also likelier. As a Medianama report correctly points out, ISPs are only intermediaries, and cannot by themselves infringe an copyrights. (It also says the order makes ISPs responsiblefor infringing copyright. Admittedly it does refer to certain other suit documents which are not in my possession right now, and hence whose content cannot be verified. However, to my mind there is nothing in the order at least that holds ISPs responsible for copyright infringement. It is as absurd as holding taxi drivers responsible for infringing UB's intellectual property merely by driving passengers to beer sharing venues.)

But it is the third characteristic of the order that makes it so remarkable. Apart from the ISPs mentioned, it specifies five other parties all denoted by the fictitious name "Ashok Kumar", and then also "other unknown persons", against whom the injunction applies. In many legal systems, particularly western ones, this is known as a "John Doe" order. Its use in India is rare. Even in the west it remains something of a novelty, but its use there is certainly more frequent than in India. As a result some jurisprudence has developed around around it, mainly in the nature of safeguards preventing it from arbitrary application. The question that arises naturally here how the present injunction fares when evaluated against these safeguards.

The most frequent use of the John Doe concept is not really relevant to us. It is when fictitious names like John Doe or Jane Roe are used to mask the identity of parties who cannot be named for concerns of privacy or other legal factors: examples include victims of rape or other sexual offences, parties who are underage and so on. More applicable to our case are instances when an injunction or some other relief is sought in regard to a person or persons unknown. This is gaining popularity internationally in intellectual property cases. An interesting example concerns Harry Potter books. The release of each volume in the series was greated with much public frenzy and, inevitably, media hype. This resulted in at least two separate cases of pre-publication copies being stolen with the intention of leaking to the tabloid press. On both occasions, an injunction was issued prohibiting person or persons unknown from "disclosing any information concerning the book or dealing in any way with any copies of the book or disclosing any part of any copies they might have to any third parties . . .." The first time it happened, before the launch of "Harry Potter and the Order of the Phoenix" (volume 5), the injunction pertained specifically to the unidentified individuals who had offered the illicit copy to the Sun, the Daily Mail and the Daily Mirror. When it happened again with the next volume "Half-Blood Prince", the resultant injunction covered "any person or persons who have or have had physical possession of a copy  . . . or any part thereof without the consent of the claimants." What is significant here is that such injunctions have always been issued with a great deal of caution. Even the second Potter injunction was very specific in its application (i.e.the content of "Half-Blood Prince"); entailed a clearly defined  timeframe (from 3 June 2005, when the threat of leakage was detected, till 12.01 AM on 16 July, when the book was released); and pertained to individuals, albeit unknown, whose actions amounted to a direct and tangible copyright breach.

Similarly, take John Doe subpoenas popular in US, which are designed to compel disclosure of parties' identities, and are popular in cases of online defamation as well as copyright infringement. Since the net provides considerable scope for anonymous libel, obtaining the perpetrator's identity is usually a complicated process that involves first securing a court order (specifically, a subpoena) directing the hosting website to disclose the IP address from which the defamatory statement was made, and then securing another order this time directing the ISP that owns the address to reveal which account used that address at the time the statement was made.

This process is not only cumbersome, but also potentially infringes the privacy of the unnamed person. Consequently, courts have always been careful about issuing such subpoenas, and in various judgments formulated different tests and criteria to ascertain if a subpoena is appropriate. In Sony Music Entertainment Inc. v. Does 1-40(326 F. Supp. 2d 556 (2004)), which in fact concerned copyright infringement through p2p networks, a New York district court held that a subpoena to disclose the identity of the file-sharers can be issued only if a prima facie case is made out against specific persons, no other means of obtaining their identity is possible and so on. This apporoach was followed in Doe v. Cahill(884 A.2d 451 (2005)), a Delaware Supreme Court concerning online defamation. Here the court ruled that no subpoena may be issued unless the plaintiff first demonstrates that the impugned comments can be "capable of a defamatory meaning". Subsequent cases have held that even after this prima facie test is satisfied, the plaintiff's interests must be balanced with those of the anonymous defendant. In Mobilisa, Inc. v. Doe(170 P. 3d 712 (2007)), the Arizona Appellate court followed Cahill and the older New Jersey decision of Dendrite International v. Doe No. 3 (A-2774-00T3 (2001)) to conclude that that even after the plaintiff establishes a prima facie case, a further set of five criteria must be fulfilled. For example, the plaintiff must make reasonable efforts to inform the anonymous party that a request to disclose anonymity exists; the intimation must be made through the same medium as the statement imputed to be defamatory, and so on.

All this serves to illustrate one crucial point: In jurisdictions where the law of copyright is much more matured as compared to India, John Doe injunctions are issued very judiciously, and by balancing the interests of all parties concerned - even the anonymous ones. Moreover, in most of the cases we saw, John Doe injunctions are issued subsequent to the commission of a legal wrong, not to pre-emptively restrain persons from committing them. In exceptions to this (such as the Harry Potter case), the terms of the injunction are tightly defined. These characteristics do not hold true for India. Once earlier also, the Delhi High Court had issued a similar John Doe injunction blocking the illegal distribution of the Reliance Big Pictures' film Singham before its official release . Since the injunction was not targetted at any specific individual, Reliance interpreted it to mean it could serve notices to anyone it wanted. So it went about serving cease and desist notices on both ISPs and torrent sites directly. The latter strategy did not work, since most of them lay outside the jurisdiction of Indian courts. The owner of BitSnoop, for example, made it clear that he had every intention to ignore the notice. Hence, presumably, when Copyright Labs decided to obtain a John Doe injunction, it made specific mention only of ISPs, who at worst can only aid the infringement of copyrighted materials by allowing subscribers to access them.

To conclude, let us revert to the question posed much earlier: can certain procedures otherwise uncalled for be justified merely because the subject matter concerns intellectual property? While it is manifest that the differences between beer and cinema call for dissimilar treatment, our above exegesis makes it equally clear that regardless of the nature of the subject, a balance must be maintained between different legitimate interests. Harish Ram, CEO of Copyright Labs, has claimed that ISPs had misinterpreted the order, and that the Labs' intention was only to block specific URLs. This explanation does not hold water. The ISPs acted not directly on the court order, but on the legal notice based on it that the Labs had sent them. It was therefore incumbent on the latter to be clear about what they were seeking.

Then again, perhaps questions like what the notice actually contained and whether or not the misunderstanding on the part of the ISPs was caused by ambiguities in the legal notice, do not really matter. Even if the wording of the notice contains no shortcomings, one grave issue still remains. It is respectfully submitted that by granting injunctions of such width, the Delhi and Madras High Courts have not taken due regard of this balance. To the extent that they have granted to the plaintiffs what amounts to a carte blancheto send cease and desist notices to anyone they fancy.  A strategy that upholds one interest to the exclusion of others is necessarily flawed. And that is why, given the way in which sites were blocked, the Kolaveri generated by the entire episode was perhaps inevitable.

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