Month: July 2013

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Political parties and the BCCI walk into the Right to Information Act

The definition of “public authority” in Section 2(h) of the Right to Information Act, 2005 (“RTI Act”) is elastic. Every now and then, its boundaries are stretched to bring yet another body within it. A recent order of the Central Information Commission (“CIC”) did exactly that when it directed political parties to appoint Central Public Information Officers and Appellate Authorities to respond to RTI applications. The Board of Control for Cricket in India has received a temporary reprieve, but the CIC may still decide whether the top governing body for cricket in India fits within those elastic limits.

First, let’s take a look at Section 2(h).

““public authority” means any authority or body or institution of self- government established or constituted — (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any — (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government”

Figuring out whether a particular case fits into the boundaries of statutory language is at the heart of the judicial process. Often, the answer is obvious, like the 2010 judgment of the Delhi High Court, which said that the Chief Justice of India came within the meaning of “public authority”. The case of political parties was trickier. The CIC admitted as much, when it said that they did not fit into clauses (a), (b), (c), and (d). After all, in spite of their role in the political process, political parties were quite clearly “not-government”.

Eventually, the CIC went beyond the notions of governmental origin and control and resorted to the term “substantially financed” in clause (ii). It relied on the expansive interpretation given to the term “includes” in a 2011 judgment of the Punjab and Haryana High Court, which said that non-Government organisations substantially financed by government funds was an independent category of “public authority”, distinct from those established or constituted by law made by the centre or the state.

CPIM_Congress_BJP_BCCI_PublicAuthority

When it interprets Section 2(h), the CIC is deciding on its own jurisdiction. That gives us reason to treat those interpretations with suspicion, but the provision itself is probably the clearest indication of the legislative intent to recognise a far-reaching right to information. In this context, the CIC referred to a similar provision — the definition of “state” under Article 12 of the Constitution — and said that the Section 2(h) net was intended to catch a lot more. It held that the Congress, the BJP, the CPI(M), the BSP, and the NCP have been substantially financed by the Union government. The Commission took note of the fact that all these parties had received land from the government at well below the market rate and that they could advertise for free on Doordarshan and All India Radio during election campaigns. The argument that government financing was not substantial was dismissed. “Substantial financing”, the CIC said, need not mean “majority financing”, just “not-trivial financing”. The crucial role of political parties in a democracy, and in particular, their powers under Schedule X of the Constitution, was also considered, but these were only secondary factors in arriving at the final conclusion.

The BCCI receives tax waivers, and until recently, was exempted from customs duty on the import of sports goods. Electricity and security at cricket stadiums is often subsidised, but it is not clear whether all this will amount to substantial financing. The CIC however, may not have to resort to clause (ii) of Section 2(h) because some BCCI operations can be controlled by the government. For instance, the Union government can use its power under Entry 10 of Schedule VII of the Constitution to make law on “foreign affairs; all matters which bring the Union into relation with any foreign country” and restrict the BCCI’s ability to represent India at international competitions. It can also restrict the BCCI’s ability to use the term “India” while referring to its team, under Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950.

Sports-Law On the other hand, autonomy from government is a prized virtue for sport, and the Olympic movement is unlikely to take kindly to a judicial determination that cricket’s top governing body in India is controlled by the Indian government.

 

(Aju John is part of the faculty on myLaw.net.)

Images above are from Wikimedia Commons and the first three (from L to R) have been published here under CC BY-SA 3.0, CC BY-SA 2.0, and CC BY-SA 2.0 licenses respectively.

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Apar Gupta spoke about “network neutrality”

Click here to listen to Apar Gupta speak about whether network providers should be allowed to discriminate between the information flowing through their networks.
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What is “plain English”? Why should you use it?

PlainEnglishwithTDIn last week’s edition of Plain English, I outlined some of the problems that the use of legalese creates, and argued that the use of plain language allows for much more effective communication. Many of you, however, may still be unsure about what exactly plain language, or plain English, is.

There are many definitions of plain English. This one, from the Oxford Guide to Plain English, focuses on its purpose:

“The writing and setting out of essential information in a way that gives a co-operative, motivated person a good chance of understanding it at first reading, and in the same sense that the writer meant it to be understood.”

So, writing in plain English means writing in a way that can be understood the first time by the person who is reading your document. It involves communication that is as clear and direct as the circumstances allow.

And what is plain English not? It is not a more basic, or a “dumber”, way of writing. It does not involve the use of slang or colloquial language. It may involve expressing yourself simply, but it is not simplistic. It can be as formal or as informal as the situation demands. Think about the way you would talk to someone if you were both in the same room and you wanted them to understand you—that’s probably pretty close to plain English!

Secondly, it is not a shortcut. Do not think that drafting a document in plain English will take you any less time, or care and attention, than a document drafted using legalese. In fact, expressing the kind of complex concepts that lawyers have to deal with in plain language can often be a very challenging task. But it is what we must do if we want to communicate effectively with our clients, colleagues, and decision-makers.

Thirdly, plain English writing (and speaking) need not be devoid of style. It is not necessarily boring to write in a way that ensures your audience doesn’t have to read a sentence several times to comprehend what you mean, or run to a dictionary to understand complex or obscure words. In a later post in this series, I’ll be sharing some examples of elegant and exciting plain English writing but, for now, trust me when I say that it is possible to write well in plain English, and for that piece of writing to be a joy to read.

You should take the effort to write in plain English because it is your job, as a lawyer, to communicate effectively. Your audience will thank you for making their life a little easier, and because they will be able to understand the document you have prepared. You will also reveal yourself to be a clear thinker and someone with the ability to present complicated concepts in a simple and comprehensible way, which is a very valuable skill indeed. Finally, keep in mind that writing that is clearer, and more understandable, is ultimately more persuasive too.

Remember that horrible legalese sentence from last week’s post?

“As stated heretofore, the landlord’s conduct created, caused, and resulted in serious bodily harm and massive injuries, to wit: a broken and mangled left leg, lacerations to the aforementioned leg, and several broken digits on the foot attached to said leg, in witness whereof was the spouse of the injured party.”

Legal-Writing-and-Professional-CommunicationsLet me finish off by presenting you with a plain English alternative:

“As stated, the landlord inflicted serious injuries on the tenant. The injuries included a broken left leg, lacerations to that leg, and several broken toes on the left foot. The tenant’s spouse was witness to the incident.”

Now that’s an improvement, isn’t it?

(Tennille Duffy is part of the faculty on myLaw.net.)

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SEBI and SAT enforce the new minimum public shareholdings regime.

Click here to read Deepa Mookerjee’s article about enforcing the new minimum public shareholding regime.Gillette_Minimum_Public_Shareholding

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Doping: Why it doesn’t matter whether Powell or Gay intended to break the rules

Sprinters Tyson Gay and Asafa Powell have failed doping tests. An A sample from the American Mr. Gay tested positive for oxilofrine during an out-of-competition test conducted by the U.S. Anti-Doping Agency (“USADA”). The Jamaican Mr. Powell tested positive for the same stimulant during the Jamaican championships in June.

Reacting to the positive result, Mr. Powell said:

Asafa_Powell_anti-doping_strict_liability

While his statement might provide some succor to his fans, it will not have an impact on the determination of whether there was an anti-doping rule violation. This is because “strict liability” is woven into the definitions of the relevant violation under the World Anti-Doping Code (“Code”), the document that forms the basis for the anti-doping codes of most sporting disciplines and most countries. An anti-doping agency such as the USADA only has to prove the “presence of a prohibited substance or its metabolites or markers in an athlete’s sample”. The comment to Article 2.1.1 of the Code makes it clear that the athlete’s mens rea or guilty intention is irrelevant.

“The violation occurs whether or not the Athlete intentionally or unintentionally Used a Prohibited Substance or was negligent or otherwise at fault.”

Strict liability is an exception to the principle of nulla poena sine culpa — no punishment without guilt — and has always been controversial because it is likely to have unfair consequences in several cases. A prohibited substance may have found its way into an athlete’s body, for instance, as a result of ingesting mislabeled medicines or faulty advice from a physician or a coach.

In criminal law, the principle of strict liability is restricted to some of the most serious offences. Anti-doping however, is not a part of criminal law. The entire anti-doping architecture is a product of private agreements between the governing bodies of sport. Unlike criminal law therefore, the protection of the rights of the accused is not one of the dominant objectives of anti-doping regulation. Instead, it is aimed at ensuring “clean” sport, even at the expense of the rights of accused athletes. Strict liability therefore, something of an exception in criminal law, provides the foundation for much of anti-doping regulation. The responsibility to keep the athlete’s system free from prohibited substances is placed squarely on the athlete itself.

The policy behind strict liability is a sound one, especially when the testing is conducted during a competition. Even if the prohibited performance-enhancing substance found its way into the athlete’s body accidentally, it would be unfair to other athletes in a competition to permit him to compete against them. The athlete in question would potentially have had an unfair competitive advantage over his or her opponents, and a disqualification from competition would be the most just outcome.

Sports-LawAnother consequence of an anti-doping rule violation is suspension from future competition. In such circumstances, the WADC softens its stance ever so slightly. Articles 10.5.1 and 10.5.2 of the Code, which come into operation at the at the stage of determining an athlete’s period of ineligibility, provide for exceptional circumstances where a prohibited substance entered an athlete’s system through “No Fault or Negligence” or “No Significant Fault or Negligence” on the athlete’s part. The athlete has to meet a very high standard here. To illustrate the difficulty of meeting this standard, the Code gives the example of a situation where despite all due care, an athlete was sabotaged by a competitor. The Code also states that these provisions cannot be used in situations where the prohibited substances were found in the athlete’s system as a result of mislabeled medication, or its administration to the athlete by a coach without the athlete’s knowledge, or sabotage of the athlete’s food or drink by a spouse.

(Aju John is part of the faculty on myLaw.net.)