Memories Of A Surrender (2015) – reflections about the Emergency


Since the time of its inception, has worked on building a video archive of memories about India’s legal profession. In the process of interviewing some of our subjects – senior advocates and Supreme Court judges, we became aware of the immense shadow cast over the entire legal system by the Emergency.

Deep hurt about the Supreme Court’s abdication of its constitutional responsibility predominated their memories about the 21-month period between 1975 and 1977. But there was also a great deal of pride in some acts of brave dissent.

The educational potential of collective memory is immense. These memories about a dark period in our nation’s history should not fade. They should continue to influence our view of the professional and constitutional responsibilities of all lawyers.

On the fortieth anniversary of Indira Gandhi’s proclamation of Emergency, we bring you some of these memories that we were privileged to archive. Memories Of A Surrender is a short film that presents footage from interviews with former judges P.N. Bhagwati and V.R. Krishna Iyer and senior advocates Soli Sorabjee, Ram Jethmalani, Ashok Desai, and Raju Ramachandran.

History International Law

With no carrots on offer, USTR Michael Froman won’t have Crowbar Carla’s influence on Indian IP policy

PrashantReddyTwenty years ago, when India finally signed the Agreement on Trade Related aspects of Intellectual Property Rights (“TRIPS”), it did so after several years of arm-twisting by “Crowbar Carla”, as Carla Hills, the then United States Trade Representative (“USTR”) was called by the media. Ms. Hills earned the moniker “crowbar” because of her diplomatic strategy of “crowbar diplomacy”. American economic might was used as a “crowbar” to pry open the closed economies of America’s trading partners.

Those days, the American economy was in dire straits with an ever-widening trade deficit, a fact attributed to two issues. The first was the common complaint amongst Americans that the rest of the world was indulging in protectionism. The second was that a significant portion of American exports were intellectual property and that a lot of trading partners did not have laws that protected American intellectual property. “Crowbar Carla” was tasked by the then American administration to use trade weapons such as “Super 301” and “Special 301” to exert pressure on trading partners to modify their trading policies under the threat of trade sanctions. Her bigger political goal was to use these trade weapons to prod countries like India to sign TRIPS without too much fuss. To the credit of the American administration, they were aware of the limits of brute political power and sweetened the deal by throwing in the offer of allowing Indians to export more textiles to the U.S. Textiles were and continue to remain one of the most lucrative exports from India earning the country its fair share of foreign currency. Given the dire straits of the Indian economy in 1990-91, it didn’t take much for “Crowbar Carla” to convince the Indians to sign the TRIPS. The Indian delegation which finally signed the deal at Marrakesh was headed by a Union Minister called Pranab Mukherjee – today he is the President of India.

Starting with amendments in 1994 to the Copyright Act to recognise the copyright in software programs, the Indian Parliament embarked on a massive legislative agenda to introduce new intellectual property rights as was required by TRIPS. In 1999 and 2002, the NDA government amended Indian patent law. It also enacted a new law for geographical indications in 1999 and a new Protection of Plant Varieties & Farmer’s Rights Act, 2001. In 2005, it enacted the third amendment to the Patents Act, 1970 and brought back product patents for pharmaceuticals and agrochemicals after a 35-year prohibition. Each one of these new laws and amendments were a result of India signing TRIPS, an act which is directly attributable to Ms. Carla’s diplomatic prowess. With such immense powers to influence international trade policy, the USTR is certainly one of the most powerful bureaucrats in the American establishment. The question is how much has changed in the last decade? Does the incumbent USTR Michael Froman have as much power as “Crowbar Carla”?

Carla Hills (left) was the United States Trade Representative under President George H. W. Bush between 1989 and 1993. Michael Froman has held that office since 2013.

Carla Hills (left) was the United States Trade Representative under President George H. W. Bush between 1989 and 1993. Michael Froman has held that office since 2013.

Going by news reports in the recent past, it would appear that Froman has managed to extract significant concessions from India on its intelelctual property policy. Apparently Froman, in recent testimony to American lawmakers has commented that the US is making good progress with the new Modi government on the issue of IP protection. While Froman did not provide details of the actual negotiations, there has been gossip from the civil society organisations in India that the government is going to make serious concessions such as the introduction of a data exclusivity regime for pharmaceuticals apart from a possible drug-patent linkage system. The data exclusivity regime will ensure that generics cannot rely on innovator clinical trial data for a certain timespan in order to get regulatory approvals. This will delay the introduction of generics into the market. The drug-patent linkage system on the other hand is meant to ensure that the drug regulator doesn’t provide regulatory approval to those drugs which are still under patent protection. The Drug Controller General of India (“DCGI”) had planned to introduce such a system few years ago but was forced to backtrack after a serious backlash from the manufacturers of generics. They argued that the DCGI was meant to regulate only safety and efficacy and that he was neither, equipped nor required to enforce patent rights under the law.

The big question is whether the Modi government will actually concede to these demands.

Unlike in the times of “Crowbar Carla”, the current USTR has far fewer trade weapons in his arsenal, thanks to WTO laws which place restrictions on the manner in which the US can impose trade sanctions on trading partners. The favoured weapon of the Americans in the old days was hiking up tariff barriers on the imports from foreign countries but the very rationale of the WTO system is to ensure non-discrimination in tariffs between different trading partners. It is therefore questionable whether the U.S. can get away by imposing tariff barriers on imports from India. The USTR of course can embarrass India by painting a sorry picture of the country’s intellectual property policy in its Annual 301 reports – these reports are handy tools for American lobbyists to prod lawmakers in their countries to ramp up pressure for more action. However unlike the nineties, when India was promised greater access to the American market, the American establishment doesn’t appear to be offering any carrots to the Indian government. So where is the incentive for the Modi government to make concessions to the Americans? Why would Modi risk a serious backlash from the powerful combine of the generic pharmaceutical industry and patient group? Will an administration with a strong nationalist sentiment be seen as caving into American pressure in exchange for nothing? Add to this the fact that India is now a massive importer of American defence and nuclear technology and you wonder why the Modi administration would make any concessions to the Americans.

International Intellectual Property

Froman’s testimony is more likely a result of the Indians agreeing to consider the American demands. This usually means that the bureaucrats in the negotiating group will draw up notes and send them to the relevant ministries for comments. The Department of Industrial Policy and Promotion, the Health Ministry, and the Pharmaceutical Department of the Ministry of Chemicals will all express their opposition. Meanwhile, lobbyists from the generic pharmaceutical industry would have leaked the notes to the media and created a furore. The RSS and the Swadeshi Jagran Manch will register their protest. The bureaucrats in the Indo-US Trade Policy Forum will most likely cite the media furore to express their inability to accept American demands, especially when India gains nothing in return.

The cycle will then repeat itself, until the Americans find a way to actually cause economic damage to India without bombing it.

(Prashant Reddy is a Delhi-based intellectual property lawyer.)


Secularism, socialism are part of the Constitution’s basic structure and an amendment to the Preamble will not change that

SanjayHegdeIndia’s constitution, crafted to serve as a roadmap for a nascent democracy, was born at a time when the horrors of the Second World War and the accompanying Jewish holocaust had given way to the drab and earnest socialism of post-war Britain’s labour government. The horrors of the Stalinist gulags were yet to be revealed and the socialistic belief that a man could, by society and by law, be compelled to love his neighbour, was yet to be shattered by Thatcherism. India itself had emerged bisected along communal lines, but was home to a huge population of minorities that had rejected the two-nation theory. Violence during Partition had cost more than a million lives. In an uncertain hour was born that tryst with destiny, and it needed an assembly of wise men to craft a constitution for a new republic where secularism and socialism were woven into the constitutional fabric.

On November 26, 1949, the Constituent Assembly, after nearly two years of labour, built over the skeletal framework of the Government of India Act of 1935. It was fleshed out with fundamental rights, directive principles, and other provisions to produce a living and breathing constitution, among the world’s longest. The document now needed a face – a mission statement to tell posterity about the kind of republic into which the constitution makers hoped the nation would evolve to.

The original Preamble read:


When we carefully read and do not merely scan it, it is apparent that the Preamble makes no reference to God. Unlike the United States, which pledged to make “one nation under God”, the Constituent Assembly “solemnly affirmed” its resolve without seeking the munificence of any deity or supernatural power of any denomination. A solemn affirmation of the people’s resolve was sufficient to assure to its all its citizens “social, economic and political JUSTICE and EQUALITY of status and of opportunity”. A reader may well recognise in these phrases, a nascent republic intent on socialism. When the preamble further promised “LIBERTY, of thought, expression, belief, faith and worship”, it provided for the atheist, theist, and the agnostic alike. Secularism as a guiding principle was writ large.

In the Constituent Assembly, on November 15, 1949, B.R. Ambedkar, while replying to an amendment, said,

B.R.AmbedkarSir,…If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organisation in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organisation of society is better than the capitalist organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow. I do not see therefore why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves. This is one reason why the amendment should be opposed.

The second reason is that the amendment is purely superfluous. My Honourable friend, Prof. Shah, does not seem to have taken into account the fact that apart from the Fundamental Rights, which we have embodied in the Constitution, we have also introduced other sections which deal with directive principles of state policy. If my honourable friend were to read the Articles contained in Part IV, he will find that both the Legislature as well as the Executive have been placed by this Constitution under certain definite obligations as to the form of their policy. Now, to read only Article 31, which deals with this matter: It says:

“The State shall, in particular, direct its policy towards securing –

(i) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(ii) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(iii) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(iv) that there is equal pay for equal work for both men and women;….”

There are some other items more or less in the same strain. What I would like to ask Professor Shah is this: If these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be…”

It is thus certain that Ambedkar, while discussing the economic philosophy of the Constitution, felt that what was already implicit in the constitution, need not be reiterated. He took it for granted that the body of the constitution already had its guiding principles, including socialism and secularism, woven into the fabric.

It is wrong to think that it was only with the Forty-Second Amendment, which inserted the words “socialist” and “secular” into the Preamble, that these alien concepts were brought into the Constitution. The amendment only made explicit in the preamble that which was already implicit in the body. The sovereign democratic republic of India of November 26, 1949, did not on January 3, 1977, during the Emergency, morph into a secular socialist republic. Even today, merely because some government advertisements have chosen to stick to the original version of 1949, the Preamble and the Constitution have not ceased to be secular or socialist. Nor will the Constitution itself cease to be secular or socialist even if by an amendment these words are dropped again at a later date. Secularism and socialism are woven into the constitutional fabric and any effort to eradicate these principles will fall afoul of the basic structure doctrine, which is used to invalidate constitutional amendments.

Shanti Bhushan (left) with Prashant Bhushan and Atal Behari Vajpayee in 1984. Photo courtesy: Kartik Seth, an advocate practising at the Supreme Court of India.

Shanti Bhushan (left) with Prashant Bhushan and Atal Behari Vajpayee in 1984. Photo courtesy: Kartik Seth, an advocate practising at the Supreme Court of India.

After the Emergency, the Forty-fourth Amendment passed by the Janata government undid most of the damage of the Forty-second Amendment. Even this amendment however, chose to preserve the addition of secular and socialist to the Preamble. Shanti Bhushan was the Union Law Minister who piloted the amendment and among his colleagues in the Cabinet were L.K. Advani and A.B. Vajpayee.

Their inheritors today cannot presume to forget constitutional history. They cannot assume that constitutional values are just meaningless words to be redacted from a mere book. Secularism and socialism are inherent in the basic structure of the national book, and are beyond the power of transient parliamentary majorities to efface or abridge. “Insaan ko insaan se ho bhaichara” is inherent in the secular and socialist framework of rights and directive principles, which have given meaning to the Constitution all these years.

Sanjay Hegde is an advocate practicing at the Supreme Court of India.

History Uncategorized

Ringing out the old – identifying and removing deadwood from India’s statute books


India has many laws that are over a hundred years old. Several of them have lost their relevance over time for various reasons, either due to a change in circumstances, or because the original objectives that these laws served have been achieved, or because they have been subsumed under more recent legislation. The old laws however, continue to remain in the statute book, causing confusion by adding to the ever-expanding maze of statutes that govern us, and creating scope for abuse.

Weeding out obsolete laws has become a priority for the present government. In August 2014, it set up a committee to identify obsolete laws and make recommendations for their repeal. How have we fared till now and what else needs to be done to put a streamlined process in place for spring-cleaning these laws?

The age of laws in India

The list of central laws maintained by the Union Law Ministry features 1,138 current statutes without taking into account the large number of Appropriation Acts and Amendment Acts that are also part of the statute book. As estimated by the P.C. Jain Commission in 1998, there are also about 25,000 to 30,000 state laws.

An examination of the ages of the existing central laws brings out some interesting facts. Of the 1,138 listed laws, 298 date back to the pre-Independence era. 140 of them are from the 1800s. While vintage by itself does not signify redundancy – the Indian Contract Act, 1872 and the Indian Penal Code, 1860 are clear examples – it does signal a need to rethink the relevance of these laws in light of changing social and economic contexts. In the case of state laws, the absence of a comprehensive database makes it difficult to conduct a similar assessment of their number and antiquity.

Since many of the pre-Independence laws also fall under subjects that are now within the exclusive legislative competence of the states, state legislatures are responsible for their repeal. Better co-ordination is therefore required between the Union and the states on this issue.

Identifying dead wood

Of the types of laws that are in need for immediate repeal, the most obvious are the Amendment Acts, (that is, laws that were originally intended to amend or change the text of a parent statute, and which changes have already been incorporated) and Appropriation Acts (that is, laws that were meant to operate for a fixed period that has since expired).


The Law Commission has undertaken a number of exercises to help identify the ‘dead wood’ that needs to be removed from the statute book. The 1998 PC Jain Commission also made recommendations on this subject (See table below). While many of the identified laws have already been repealed, 253 statutes remain, which have been identified for repeal, but on which action is still awaited from the government (Appendix II, Law Commission of India, 248th Report).


In 2014, the Law Commission undertook the detailed exercise of classifying all laws into 49 subject-categories and then identifying those laws that were in need of repeal. The four-part series of interim reports released by the Commission identifies a total of 265 laws that need to be repealed. The image below represents for each decade, the number of existing laws and the number of laws that have been recommended for repeal by the Law Commission.

Following these reports, the Legislative Department at the Ministry of Law and Justice sought the views of various departments regarding the proposed repeals. Two Repealing and Amending Bills have already been placed before the Parliament to give effect to the repeal of 126 laws that have “either ceased to be in force, have become obsolete or their retention as separate Acts is unnecessary”. Almost all of these are Amendment Acts.

Spring-cleaning the statute book

How do we ensure that the statute book keeps pace with changing times? One option followed by countries like United States and Canada is to have a “sunset clause” which sets out upfront, an expiry date for a law. In practice however, sunset clauses are often treated as a “snooze button” with the laws being extended as a matter of course. The more immediate solution may be to mandate the Law Commission or another body to undertake a statutory review exercise on a regular basis. This is crucial for both central as well as state laws. However, our experience from the past has been that such reviews do not always lead to their logical end, mainly because of legislative inaction. While introducing any system of regular review therefore, it is necessary to ensure that central and state legislative departments are made responsible for formulating draft bills based on these suggestions. Finally, of course, it is up to the Parliament and the State Legislatures to recognise their responsibility to clear the statute book of redundant and conflicting laws.

(Sumathi Chandrashekaran and Smriti Parsheera are lawyers working in the area of public policy.)

History Uncategorized

Pugalenthi v. Ministry of Home Affairs

By Kirthi Jayakumar

The judgment of Chief Justice M.Y. Eqbal and Justice T.S. Sivagnanam of the Madras High Court, in P. Pugalenthi v. The Ministry of Home Affairs, The Unlawful Activities (Prevention) Tribunal, W.P. No. 23141 of 2010 and M.P. No. 1 of 2010, was delivered on September 30, 2010.

The petitioner had filed the writ petition under Article 226 of the Constitution of India and prayed for the quashing of an order passed by the Unlawful Activities (Prevention) Tribunal  (“the Tribunal”), on October 6, 2010, that had rejected the petition filed by the petitioner under sub-section 4(3) of the Unlawful Activities (Prevention) Act, 1967 (“the Act”). The crux of the facts were that the first respondent, namely, the Union of India, had issued a notification dated May 17, 2010 under sub-section 3(1) and the allied proviso to sub-section 3(3) of the Act, in the course of which it declared that the Liberation Tigers of Tamil Eelam (“the LTTE”) was an unlawful association. The petition claimed that the petitioner was a sympathiser of the LTTE and had a right to appear before the Tribunal. It was further contended that the Tribunal was required to adjudicate whether or not there was sufficient cause for declaring the association unlawful. It was contended by the petitioner that the Tribunal was under an obligation to give an opportunity to be heard before declaring a person or association as unlawful under the Act.
The Tribunal rejected the petition filed by the petitioner on the grounds, inter alia, that the tribunal had had occasion to consider the submissions made by other persons, including the political leader Mr. Vaiko, and none of the submissions made by the petitioner transcended the arguments advanced by Mr. Vaiko. The core contentions of the petitioner were that the LTTE itself was not present in India, but that its supporters and sympathisers were. This being a given, it was contended that notices under sub-section 4(2) of the Act should not only have to be sent to the LTTE in Sri Lanka but also to the alleged sympathisers, supporters and agents, all of whom were present in India. It was submitted by the petitioner, that unless the process prescribed under sub-section 4(2) of the Act was completed, the tribunal could not have commenced the actual process of adjudication under sub-section 4(3) of the Act.

The respondents, however, drew the attention of the court to the relevant provisions of the Act, and went on to submit that the tribunal had fully complied with all the requirements under the Act. Section 3 of the Act empowers the Central Government to declare any association to be unlawful through a notification in the official gazette, if the Central Government is of the opinion that such an association has become an unlawful association. Sub-section (2) to section 3 of the Act provides that such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary. However, the Central Government is not required to disclose any fact which it considers to be against the public interest. Section 4 of the Act provides that if any association is declared unlawful under section 3, the Central Government shall within thirty days from the date of publication of the notification, refer it to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful. The Tribunal shall then call upon the association affected by notice to show cause and then, after holding an enquiry and adjudicating upon it, either confirm or cancel the said notification.

Section 7 of the Act lays down the provisions with regard to the power of the Central Government to prohibit the use of funds of the unlawful association. According to this section, after the association has been declared unlawful by a notification issued under section 3, the Central Government may issue a prohibitory order for the use of funds of the unlawful association. Sub-section (4) of section 7 gives the right to any person aggrieved by such an order to make an application to the District Judge to establish that the moneys, securities or credits in respect of which prohibitory order has been made, are not being used or are not intended to be used for the purpose of the unlawful association. On receipt of such application, the Court of the District Judge shall decide the question.

Sub-section 8(8) of the Act makes it manifestly clear that any person aggrieved by the notification issued in respect of a place under sub-section 8(1) or by an order made under sub-section (3) of sub-section 8(4) may, within thirty days from the date of the notification or order, make an application to the Court of the District Judge for declaring that the place has not been used for the purpose of unlawful association, and the Court of the District Judge shall decide the same in accordance with law.

The Madras High Court held that the Tribunal had indeed given the petitioner a full opportunity to be heard, and it had, with due reasonableness, rejected the petition, thereby warranting no interference by the High Court. The writ petition was thus dismissed.

Although the case hinges upon an issue pertaining to natural justice, the judgment did not quite look at the merits of the case that were presented before the tribunal. In understanding natural justice, the court has not overreached itself. What natural justice mandates is the grant of an opportunity to be heard, and reasonably so. The Tribunal had, clearly, accorded that in the petitioner’s case. It is very essential that courts work in a way that is friendly to the aim of dispensing speedy justice. In keeping with this, the tribunal refused to hear the contentions of the petitioner, since they were essentially the same as those that were raised on an earlier occasion by Mr. Vaiko. The court cannot encourage the re-iteration of the same subject matter by hearing the very same line of arguments submitted in the context of the same dispute.


For Petitioner: Mr. M. Radhakrishnan

For Respondents: Mr. M. Ravindran, Additional Solicitor General of India; assisted by J.Ravindran,           Assistant Solicitor General