International Law

India and the new aggression – Part 1

Sanhita Ambast writes about international law and international relations.Map Reproduction Courtesy of the Norman B. Leventhal Map Center at the Boston Public Library.

Map Reproduction Courtesy of the Norman B. Leventhal Map Center at the Boston Public Library.

An extremely interesting enquiry today is the Indian state’s engagement with international law. Despite its growing stature in the international community, India is still not signatory to several important international instruments and does not implement several other treaties that it is signatory to. This exceptionalism warrants examination, especially when India’s oft-stated reason for not signing and complying with international law is the regime’s inherent politicisation and prevalent hypocrisy. The contest between international law and international politics is not new, and recent developments – from the war against Iraq to the failure of the Bashir arrest warrants – raise the following crucial question: is there really an international law distinct from international politics?

I hope to explore both these questions –of India’s engagement with international law and of the line between international law and politics – in a series of pieces dedicated to the result of the recent Review Conference on the Rome Statute of the International Criminal Court (ICC) which took place in Kampala, Uganda earlier this year. Here the international community, by consensus, adopted a definition for the crime of aggression and agreed to a plan for its implementation. Resultant notable amendments to the Rome Statute include the definition of a ‘crime of aggression’ being linked to an ‘act of aggression … constituting a manifest violation of the United Nations Charter’ [article 8 bis]; the ability of the ICC to prosecute aggression independent of the Security Council in certain circumstances [article 15 bis]; more leeway to states in terms of accepting ICC jurisdiction and an increased role for the prosecutor.

It is interesting that that these amendments impact India’s four reasons for not signing the Rome Statute, which are explained here. First¸ India has been concerned about the wide range of powers conferred on the Security Council in the Rome Statute and the control a political body will exercise on what should be a purely legal process. This, prior to the Review Conference, included the Security Council’s monopoly over acts of aggression and article 16 of the Rome Statute (which allows the Security Council to delay ICC prosecutions indefinitely). Second, India is opposed to certain crimes under the jurisdiction of the Rome Statute – in 1998, the Rome Statute did not criminalise the use of nuclear weapons and other weapons of mass destruction. Furthermore, crimes against humanity and war crimes were defined too broadly for India’s liking and included ‘internal’ matters that should fall within the ‘domestic’ jurisdiction of states. Linked to this is India’s third objection to the Rome Statute, the idea of complimentarity and the jurisdiction of the ICC to decide when a country was ‘able and willing’ to prosecute (article 17, Rome Statute). And finally, India is suspicious about the strength of the office of the prosecutor as this power may be used in a politically motivated, arbitrary and unfair manner.

While I shall address the various impacts of the Kampala amendments in subsequent pieces, the same broad argument will run through all of them. The landscape of public international law, international humanitarian law, and international criminal law has evolved in the past decade. As a result, many of India’s concerns regarding the ICC have changed, have become irrelevant, or would be better served by engagement not boycott. This is not to say that India must sign the Rome Statute. Instead, the recent amendment to the Rome Statute, read with legal developments in the past decade, provides an important opportunity for India to reassess its policy towards the ICC, attempt reframing its objections in a more contemporary language, and consider engaging more actively with it.

Supreme Court of India

Competition Commission v. SAIL (2010) – Comment

On 9th September, a landmark judgment was passed by the Supreme Court on the Indian Competition Act pointing out that the primary objective of competition law – promotion of economic efficiency through competition in the market – cannot be attained unless matters related to contravention of the Act are dealt with in an expeditious and time bound manner. In the event of a delay, the very purpose and object of the Act would be frustrated, as greater damage would be caused to the market and the country’s economy.

The Indian Competition Act, which recently came into force, prohibits anti-competitive practices, abuse of dominant position and combinations which result in distortion of the market. To look into violations of the Act, the Competition Commission of India has been established, a body vested with wide powers – inquisitorial, investigative, regulatory, adjudicatory, and to some extent, even advisory. Appeals from directions, decisions or orders of the Commission lie before the Competition Appellate Tribunal.

In October 2008, Jindal Steel and Powers Ltd. informed the Competition Commission that Steel Authority of India (SAIL) had entered into an exclusive supply agreement with Indian Railways for the supply of rails. SAIL being a key player in the Indian steel market was alleged to have abused its dominant position in the market in contravention of Section 4 (1) of the Act, and also acted in contravention of Section 3 (4) of the Act which prohibits certain exclusive supply agreements. On registering the information, the Commission directed SAIL to submit its comments. When SAIL failed to do so within the stipulated time, the Commission formed the opinion that a prima facie case existed against SAIL and passed an order directing the Director General to start investigation into the matter. The Commission also granted liberty to SAIL to file its comments before the Director General during the course of the investigation.

This order was challenged by SAIL before the Competition Appellate Tribunal on grounds, inter alia, that the order was contrary to the principles of natural justice as the Commission did not give SAIL extension of time to file its reply and denied the latter of its right to be heard.

In a decision of significant ramifications for the growth of Competition law in India, the Appellate Tribunal, on 15th February, 2010, stayed the Commission’s order and also dismissed the Commission’s application for impleadment in the appeal, stating that the Competition Commission was neither a necessary party, nor a proper party in appellate proceedings before the tribunal.

The Supreme Court in its judgment of last Thursday corrected what would have otherwise been a grave error in interpretation of the law, by ruling, inter alia, that:
•    All orders passed by the Competition Commission are not subject to appeal. Only orders specifically made appealable under the Act. [Section 53 A (1) (a)] will be treated as such. An order of this nature (forming a prima facie case and directing the Director General to start investigation) is a direction simpliciter, NOT an appealable order.

•    At the stage of forming a prima facie case, there is NO statutory duty on the Commission to give notice or grant hearing to any party. There is also no need to record any detailed reason while passing such an order for starting investigation, though keeping in mind the principles of natural justice, some minimum reasons should be recorded.

•    The Commission, in cases where an inquiry has been initiated suo motu, shall be a necessary party, and in all other cases, a proper party in proceedings before the Appellate Tribunal.

This judgment goes a long way in reinforcing the legislative intent behind the enactment of the new Competition Act. A mere direction to start investigation, like in the instant case, is not one which determines any right or obligation of the parties involved in the dispute. The Supreme Court, by declaring that such orders are not appealable has ensured a more effective and expeditious functioning of the new law. When it comes to a law on competition, delay can be fatal to the market. Further, by including the Competition Commission as a party in proceedings before the Tribunal, the Apex Court, apart from the reinforcing the Commission’s legal right has also ensured that the expertise of the latter would be available on all matters in dispute. This is also crucial in view of the nascent stage the law is in. Commendable first steps indeed!

(Tilottama Raychoudhary is an Assistant Professor at WBNUJS, Kolkata.)


Forward Defence

When the Fake IPL Player became a household subject in April of 2009, few were aware that the blogger who emerged a few weeks ago from behind the name, Anupam Mukerji – a Bangalore-based marketing consultant, was preoccupied with protecting himself legally. In fact, the surge in attention after the first few posts even prompted a temporary hiatus from blogging while he thought about how to protect himself from the powerful feathers he may have ruffled.

Even before he started blogging on, Google’s blogging platform, while the concept was just a knot of ideas, the word “Fake” found its way into the name to replace “Faceless” because of advice from friend and Rainmaker co-founder Bhavin Patel. In fact, it was Bhavin who also advised him to get a disclaimer for the blog and to stick to nicknames and descriptions of the teams, players and owners that were the subject of his acidic humour.

Another Rainmaker co-founder, Sachin Malhan, was not as enthusiastic, and almost convinced Anupam to kill the blog. Later, seeing that the Fake IPL Player was not about to roll over meekly, Sachin introduced Anupam to Sajan Poovayya, the Managing Partner at Poovayya & Co. in Bangalore, and took him over for a meeting.

At the Poovayya office, Sajan and his team of lawyers pointed out that some of the nicknames could be construed as defamatory. “Paedophile Priest” was one. “Appam Chutiya” was another. Anupam agreed to stop using the former, but said he would have to continue using the latter, as it had become key to the blog’s popularity.

Sajan’s other major concern was the “one per cent chance” of someone filing a police case. According to Anupam, Sajan said that if someone were to file a police case, Google would be forced into revealing the IP address of the owner of the blog and he would be arrested. Sajan said he would then have to file a bail application and get him out, but also cautioned him. “If you’re lucky, you will be out of jail in one day, if you’re unlucky, three days”. Anupam felt that three days was a reasonable risk for the fun that he was having, and continued blogging to a breathless audience!

Aju John is part of the faculty on

Litigation Uncategorized

Good design and law courts

(Prof. T. Oommen)

Court buildings are mostly monumental in character and designed in modern or traditional styles. Famous examples are the Supreme Court at New Delhi in the traditional style and the High Court at Chandigarh, which is modern. Despite the difference in architectural styles, both are built on a monumental scale. The association with the institution of law and its importance as one of the pillars of civilized society drive architects to conceive the exterior in awe inspiring form. Even the interior spaces of these buildings such as the entrance lobbies, the halls and the court rooms match the exterior in monumentality to enhance the feeling of reverence that is thought to be appropriate.

Photo: The Punjab and Haryana High Court at Chandigarh, by robespiero.
Photo: The Punjab and Haryana High Court at Chandigarh, by robespiero.

Questions of style in court buildings are not entirely simple, but the proper organisation of interior spaces to make it functional, convenient and comfortable for users is most complex and likely to extract all the skills of an experienced architect.

There are generally five categories of users for a court building: (1) the visiting public (for purposes of litigation or for attending court sessions, (2) court officials, (3) attorneys and their aids, (4) judges and (5) detainees or prisoners and their security guards (according to the type and level of the courts).

Great care and skill in planning is required to segregate the circulation of these different categories of users so that they do not unnecessarily come in contact with each other unless required. This is of special importance when terror and security are such a major concern. Good design can reduce the massive commotion and associated security threats in the court precincts and can efficiently keep high profile defendants and their lawyers secure while entering the court and attending proceedings.
For example, the circulation routes of the visiting public, whether their purpose of visit is to transact official business with the court or a casual one to the public gallery of a court hall, must be planned and segregated in such a way that the public do not casually come across judges and their office rooms. Again, the category of detainees and criminals, who are brought to appear in the court, has to be amply protected and segregated from the public areas. Any contact of this category with the circulation of other ones will obviously be highly inappropriate and dangerous. At the same time, detainees and criminals may require secure facilities for consulting their attorneys in private. Thus all the five categories and their sub categories have to be provided with appropriate segregation in circulation and controlled meeting points for the discharge of court functions.

The close involvement of judges and administrators of the court building for determining these requirements of segregation and meeting points is absolutely essential to the design process.

The detailed needs and requirements for each category of court users tend to be so special and different that planning the building becomes quite complex.  A common approach to the problem of segregation, separation of movement routes and workspaces and security needs is grade separation by levels. For example, spaces for the detainees and prisoners can be provided in the basement floor. They would be escorted down in to the basement from closed vehicles and be brought to the courtroom directly from there. The spaces for guards and policemen would also be provided in the basement and so would consultation facilities with attorneys. Facilities for judges may be provided at the highest level with separate entries – perhaps separate lifts and exits and direct routes of entry to the judges podium in the courtrooms.

In such a set up, courtrooms would be at the middle level. The public may be provided access at the ground level due to their large numbers and for their ease of use. Further, each of the categories would require their necessary service spaces like toilets or mechanical equipment rooms.  A meticulous listing of conveniences and services for each category in an inventory list, and cross checking them out in the final scheme will be necessary for good results.
There can be no great disagreement that courthouses need to be monumental, impressive and overpowering like the institution of law. However, there can be much debate about the specific architectural style of court buildings among legal professionals, the public and especially among architects themselves.

Proponents for traditional styles would argue that each society has to reach back to great moments in its history and evoke memory and pride in its unique culture thus creating a continuum with its ancient history. Modernists would argue that the technology of the 21st century and the needs of the building should play the primary role in determining the form, that architecture must reflect “the spirit of the age” – our technological and societal progress rather than tradition. There can be no conclusive architectural argument for either position but like the debate between tradition and modernity it is perhaps the dialectic between the two that is most important in creating innovative designs.

Many of the above arguments were made after Independence when the decision to construct the capitol complex of Chandigarh in the most avant-garde version of modern architecture was made. The massive, sculptural High Court was and still is the most famous building in this architecturally world famous project. For many including Prime Minister Nehru, it represented India’s release from the burden of tradition, but one of his remarks on the subject is particularly interesting.   “It hits you on the head and makes you think. You may squirm at the impact, but it has made you think and imbibe new ideas, and the one thing which India requires in many fields is being hit on the head so that it may think”.

The spirit of his remark seems to be to not lose sight of what is most important in that particular project – its symbolism and impact. It begs us the questions of what message our courthouse buildings convey today. The answer is fairly obvious. Too many of them are decrepit and crumbling old facilities that do not address security issues, efficiency or ease of use, let alone instill any sort of sense of civic pride and reverence for the institution. It is therefore imperative that architectural design must address not only the creation of impressive monumental form, but also equally impressive planning in the organization of spaces to create efficient, functional courthouses.

Good design must not be a luxury or an afterthought, but an indispensable starting point in creating respect for the institution of law and a belief in the efficiency of our legal system.