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Impose costs on legislative obstruction

The Lok Sabha lost thirty per cent of its plenary time to disruptions in 2011 according to statistics from PRS Legislative Research. In an article titled, “The Real Price of Parliamentary Objection” published in Seminar magazine in February 2013, Tarunabh Khaitan, a fellow at Oxford’s Wadham College, has analysed the implications of frequent obstructions of legislative business in India. He spoke with us about the article.

Edited extracts from the transcript of Mr. Khaitan’s talk.

Rule compliant

Tarunabh Khaitan

Tarunabh Khaitan

Mr. Khaitan said that we could look at legislative obstruction from three broad viewpoints. The first is whether the obstruction was rule-compliant. The filibuster rule in the United States, which is accommodated by the procedural rules, is an example of a rule-compliant obstruction. Parliamentary rules in India clearly prohibit the noise, din, and commotion seen during legislative paralysis. In fact, several amendments have made the rules increasingly stringent. “There is absolutely not doubt therefore that the kind of obstructions that we see in India are rule violating and against the rules of Parliamentary procedure.”

Obstruction without cost

The second aspect, Mr. Khaitan said, is to see if there are any costs that the obstruction imposes on the obstructing MP or group of MPs. “Obviously, if the costs are low, the incentive to obstruct will be greater. In the case of a filibuster, the actual cost is only physical. It is physically demanding for the Senator to speak for several hours, which is the mode in which a filibuster is done. In India, the physical costs of making a lot of noise are not that many. There are no legal costs either.” Even though the rules prohibit it, the offices of the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha are politically too weak to make the interventions that the law requires them to make. There are no political costs either because every party uses obstruction as a tool for legislative business. “If the party is in the opposition, it will use it, if it is in government, it will call it illegitimate. In some cases, the government even uses friendly opposition parties to block their own motions that they don’t want passed.” Moreover, an obstruction receives more media coverage than a fruitful intervention in Parliament. Obstruction therefore, has become a very attractive means to make a mark in Parliament. “Thus, not only is there no cost to obstructing, there can be positive benefits to obstructing as well.”

Unsustainable solutions

Given that the problems of obstruction in the Indian Parliament are insurmountable, the Indian government has taken to pushing Bills through in the middle of the noise and the commotion. “[We] have seen a couple of instances where several bills have been passed in a matter of a few minutes. These bills don’t get any legislative attention, they are not scrutinised. It is probably an example of the remedy being worse than the disease.”

Lok Sabha Obstruction Speaker, Meira Kumar

Lok Sabha Obstruction Speaker, Meira Kumar (top left)

“Plenary bottleneck”

The combination of the factors outlined above — rule-violating obstructions that have no political or legal costs and may even be beneficial, lead to a plenary bottleneck, where plenary legislative time becomes a very scarce resource.

This legislative bottleneck has three features. Firstly, every member’s ability to block legislation is far greater than the ability to push it through. Secondly, it establishes a de facto unanimity rule. “Normally, the constitutionally mandated rule in our legislative bodies is a majority rule. However, obstructions give even small parties an effective veto over [a] bill. Therefore, only those bills that effectively have unanimous support across the political spectrum will be passed. This also means that any trading between the government and the Opposition parties becomes extremely difficult because parties don’t know whether they can trust each other and even if a deal is brokered between say, the Congress and the BJP, the Opposition knows that its not within the powers of the government to get it through. There is no reason for the BJP, even if it trusts the intentions of the governing party, to believe that the Congress will be able to keep its side of the bargain. Therefore, there is no incentive to negotiate so that the government’s bills are passed as long as the Opposition’s compromises are supported. It becomes particularly problematic in a multi-party system.” The last feature of a plenary bottleneck is that every member has an incentive to consume plenary time to pursue publicity. This not only encourages intransigent minorities, it also encourages the status quo. Positive measures are not adopted. There is a strong inertia towards de facto conservatism, which is quite a problematic position politically in a radically unequal society like India. “It doesn’t matter what the affiliations of the party power are, it is likely to be a conservative government.” Voter choice therefore, becomes less relevant. “If every party is going to be status quoist, there is very little in terms of legislative choice.” Further, it affects the separation of powers. The executive and the judiciary become powerful because they fill the legislative void left by the Parliament. Separation of powers goes out of the window. “The voter is interested in who forms the executive but less interested in the local MP.” Legislators also exercise executive functions using the local area development funds.

Reduce strain on plenary time, impose automatic and collective costs

“The first measure is to expand the plenary bottleneck. Reduce the number of motions that need to go through the plenary session of Parliament.” Currently, Parliament makes all its decisions in the plenary session. Committees can take certain decisions instead, Mr. Khaitan suggested. “Decisions such as under what rule a standing motion should be discussed, there is no reason that should be discussed in a plenary session.” However, since democracy requires that every substantial decision must be made in a plenary session, there is a limit to what can be done on committees.

The additional measure would be to increase the costs of obstruction. Since obstruction is already not rule compliant, new rules prohibiting obstruction are not going to help. Mr. Khaitan suggested that costs however, could be increased through rules that are automatic. This means that no action is required on the part of the offices of the Speaker and the Chairman of the Rajya Sabha for the costs to kick in. Secondly, the costs should be collective since the Speaker’s office may not be willing to identify MPs. Examples include withholding the daily allowance of every MP on days where proceedings have been obstructed and attaching consequences such as a general election if Parliament does not function a certain number of qualifying days in a year. Mr. Khaitan acknowledged that these solutions have to be thought through to ensure that they are not manipulated.

 

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

Written by myLaw

“Is India at its progressive moment?”

On November 26, 2011, Pratap Bhanu Mehta delivered the first Constitution Day lecture organised by Daksh, a Bangalore-based N.G.O, that has been in the news recently for its efforts to evaluate the performance of legislators in Karnataka. Mr. Mehta, the President of the New Delhi-based Centre for Policy Research, has held various positions at Harvard University and the NYU Law School. During the event held at Bangalore’s National Gallery of Modern Art, he spoke on the subject, “Is this India’s Progressive Moment”. Harish Narasappa, one of the founders of Daksh, said that the lecture series was started “to raise questions about how our Constitutional democracy has performed and to come up with new ideas for the future”.

Edited extracts from the transcript of the lecture

Mr. Mehta said that the term “progressive moment” in the title of the lecture was derived from analogies with U.S. history but warned that those analogies were only meant to be heuristic aids to thinking. Ashutosh Varshney and Jayant Sinha had argued that the previous five to seven years had been India’s version of the ‘gilded age’, a term that indicated a period of rapid growth, increasing urbanisation, and a growing middle class, but at the same time, extraordinary rent-seeking and an unprecedented nexus between business and politics.

The argument is in the United States, the gilded age was followed by a progressive movement as a reaction against the excesses of the gilded age. “Now, at one level, this comparison between U.S. and India strikes us as very odd since the historical circumstances are very different and so are the social circumstances and our conceptions of national identity. But if you were taking a strictly policy-wonkish view, it is not an entirely outrageous comparison.”

Pratap Bhanu Mehta Image above is from Wikimedia Commons. This image, but not the rest of the article, has been published under a Creative Commons Attribution-ShareAlike 2.0 Generic License.

Pratap Bhanu Mehta
Image above is from Wikimedia Commons. This image, but not the rest of the article, has been published under a Creative Commons Attribution-ShareAlike 2.0 Generic License.

Constitutional morality

Mr. Mehta said he wanted to begin by going back to the founding movement and the Constitution of India. The fact that our constitutional transformation did not fail was in itself a remarkable achievement, made possible not just by the text of the document but also by the surrounding circumstances in political culture. “If you were to ask most people who engage themselves with the Constitution, ‘What does the Constitution mean to you now’ or ‘How has the Constitution acquired a place in our national life, what sustains it?’ I suspect you would get two contrasting answers.”

The idealist view would be that the Constitution was a semi-sacred text, “the lode star of our political existence which has given the basic frame work and underwritten the basic social contract of our society.” He said that the term ‘constitutional morality’ had been used a lot in this context. B.R. Ambedkar made an extensive reference to the term in the Constituent Assembly Debates. He was not talking about the text but “the underlying sensibility, an appreciation for plurality, the spirit of the Constitution that sustains that text.” Mr. Ambedkar quoted extensively from George Grote, a great nineteenth century Greek political historian who described constitutional morality in these words, “Constitutional morality is a paramount reverence for the form of the constitution, enforcing obedience to authority and acting under these forms, combined with the habit of open speech subject only to particular legal control but unrestrained censor of those authorities as to all their public acts.” Ambedkar emphasized the phrase, “unrestrained censor of all those acting in the name of public power”.

Ambedkar also made the remarkable claim that one of the great features of the Indian Constitution was that no part of government or no entity could claim monopoly in representing the people. “His idea was that, people in that sense cannot be represented; no institution can stand up and say we are the sole repositories of what the people mean. The conception of what the people want and require is a conception that emerges through open speech and discussions and debate. In that sense, Ambedkar’s vision of constitutionalism was firmly rooted in the influence of his teacher John Dewey, one of the great thinkers of the progressive era. This is sort of one version of the Constitution – a constitution that facilitates a kind of democratic experimentalism by consensus.”

On the practice of constitutional morality, most people, Mr. Mehta argued, would agree with Heinrich Meier’s view of the Roman constitution. Meier had written that Caesar, unable to see them as autonomous entities, was insensitive to political constitutions and the way they operated. “He could see them only as instruments in the interplay of forces. He had no feeling for their power but concerned himself only with what he found useful or troublesome about them.

Mr. Mehta said that there was therefore the idealist or normative promise of constitutional morality and the reality of using the constitution as a tool by which to knock other people on the head rather than viewing it as a set of norms that we all internalise and share. “I think the struggle for the soul of Indian politics is which version of constitutionalism will triumph?”

From the old order to the new

Our constitution has been a huge success in its instrumentalist version. “It has fragmented power in a way that has produced its own stability. But the question is, can we make the transition from the Constitution being simply an instrument in the interplay of forces, convenient in the hands of some to beat up another?” Mr. Mehta said that a contemporary version of this philosophical dilemma was playing out in Indian politics. “I think one of the hopes that India is at its own progressive moment comes from the fact that there seems to be widespread consensus that the old principles on which the Indian state administered the country are on the verge of breaking down or have broken down irrevocably, and this breakdown is all for the good.” The old principles, embodied in the Government of India Act, 1935, were the vertical organisation of power, the association of power with secrecy, wide discretion that was not subject to public reason, the centralised state, and the relatively simple identities of actors within this polity.

“Now, the revolution that we are undergoing is that it is very clear that no government can hope to run India if it now organises governance on any of these principles. Secrecy is gone, and by secrecy I don’t mean the RTI kind – that is only one element, it is also the generation and production of information about social working. If the government doesn’t tell you that your air is polluted, then some nice N.G.O. in Bangalore will tell you that it is. So there has been a sort of relative shift in power.”

“Vertical accountability is gone thanks to the dispersal of power within the institutions of Indian state and outside, like what Daksh is doing — holding legislators accountable by examining their records. We have seen different examples of this in the C.A.G., media, all kinds of institutions. A state official simply cannot say I have done my bit to be accountable if I have satisfied my boss, which is really the way in which the principle of accountability operated in practice in the past. Centralisation is clearly unsustainable to the extent that the Indian state exercises.”

According to Mr. Mehta, the important questions were what would replace the old principles and what pre-conditions would enable a more successful transition to a new order based on more horizontal accountability, decentralisation, open transparent government, and government by public reason and discussion rather than arbitrary power? “It is in this context that the analogy with the US progressive movement is often invoked: if we had a progressive movement of the kind that the US had in its revolt against the gilded age, we would be successful.” He also added that India’s dilemma was not unique. “Almost every developing country – Brazil, China – in different ways are also facing the same structural dilemma.” In India however, he said that the transition would be more difficult than anywhere else.

 

From left to right, Mr. B.N. Harish, former Chief Justice of India M.N. Venkatachaliah, and Mr. Pratap Bhanu Mehta.

From left to right, Mr. B.N. Harish, former Chief Justice of India M.N. Venkatachaliah, and Mr. Pratap Bhanu Mehta.

Closed political system

The first reason was that even though India was a democracy, its ruling order was one of the most closed that any modern democracy has seen. “To put it provocatively, we have one national party which is a kind of quasi-monarchy legitimised by democratic mandates and another party which is a quasi-church and a pretty dysfunctional one at that. You have to go back to 1840s’ France to think of these analogies: so, a party of a monarchist legitimate order and a party of a decaying corrupt obnoxious church are your two national parties. As with any old legitimist order involving a party of the monarchy and another of the church, they have been in collusion with each other.” Mr. Mehta said that both parties subscribed to Heinrich Meier’s description of what the Constitution meant to them. “For both, the Constitution is an instrument for governing, not the source of norms. Both are in collusion in the sense that ninety per cent of those members of the church and monarchical party could have easily been members of the other party, if you take the ten per cent fanatic right out of the picture. But interestingly, what has emerged very powerfully in the last two years (and this has shocked me) is that, both of them have an interest in subverting or not appropriating the anti-corruption agenda that is sweeping through society.” He said that competition, the mechanism that democracy relies on for accountability, was not working. “No political party is willing to articulate or stand up and say, this is our vision for transition from the old order to the new order. By accident, some have subscribed to elements of this but you do not have the emergence of a political structure that can actually make this transition.”

“In comparison to other democracies, because power in political parties is so centralised, we don’t get these natural openings at the top that other political systems do — either because of term limits or Presidential forms of government. In a Parliamentary federal system, the entry barriers to politics are also going to be high. I don’t mean entry barriers at a local level, but entry barriers in terms of being able to generate sufficient nationwide momentum to form an alternative to these monarchical and church parties are much higher because there is no natural locus of political mobilisation. So, we must acknowledge, despite India’s openness, it has a much more closed political system at the top than in any other contemporary democracy that I can think of.”

Privatised middle class

“The second feature which I feel will make the struggle harder in India has to do with the character of the Indian middle class.” Historically, middle classes have played an important role in this transition for a variety of reasons such as education and a different kind of engagement with the state. For Mr. Mehta, the most important dynamic of a growing middle class was that while a small group is engaged with the state at a high level of abstraction, most citizens rarely engage in the ordinary politics of survival and the State creates structures of patronage to keep them that way.

The Indian middle class was distinctive because it was the most ‘privatised’ sociologically. “Take any attribute, such as primary school enrollment: urban India is soon going to approach sixty to seventy per cent (in population), which is unprecedented in historical terms. If you take consumption of two-wheelers, the consumption graph looks very nice but the fact that in India, even the lowest twentieth decile has to have a two-wheeler to be able to get around is actually a very bad sign. On any index of engagement, therefore, education, health, water, sanitation, transport and possibly even energy and electricity, it is the most historically privatised middle class that I have seen in comparative development literature.”

“Now, the jury is out on what this extent of privatisation of the Indian middle class will actually do to the race between its exit and its demand for accountability. I don’t want to go into whether this exit was justified or what created it or whether this was a rational response to the way that the state delivered goods and services, but once you are locked in to an exit mode of coping – for example, the Indian middle class doesn’t have a stake in public schools, public hospitals, water, transport – even with the best of intentions, is it going to be the site for that kind of democratic experimentalism with institutions of the state which Ambedkar and Dewey hoped and talked about?”

“One thing that I find amazing about the Indian middle class is that it is attuned to thinking of itself as a pure meritocracy – which is a middle class that has risen by dint of its own talent. Again, sociologically speaking, for the politics of common good and experimentalism, a meritocratic society is about the worst form you can imagine, because meritocrats feel that whatever privileges they have got are the ones that they are actually entitled to.”

Whither bilingual politicians?

Mr. Mehta referred to something Ramchandra Guha had pointed out in recent writings — the death of the bilingual intellectual. Even fifteen or twenty years ago, India had genuine bilingual intellectuals who could bridge the politics of the vernacular with larger cosmopolitan concerns and social changes. Now, Mr. Mehta said, we are also witnessing the death of the genuine bilingual politician — a politician who is both embedded enough in society to perform the function of social mediation and yet connect that arm to a larger national or international narrative.

Except for one or two politicians at a leadership position at the state level, such as Mamata Bannerjee, Jayalalithaa, Narendra Modi, or Naveen Patnaik, there are no politicians beneath them who actually come to Parliament commanding a social base of any kind. This diminishes the capacity of political parties to perform any kind of social mediation. Further, most of the new breed of urban politicians in cities like Mumbai and Hyderabad, are actually contractors. “It is an extraordinary social profile. It shows that we have moved away from the idea that politics as a form of social mediation to a much more deepening of the idea that politics is really about an access to instrumental growth.”

Genuine decentralisation?

Mr. Mehta said he would caution against over celebrating leaders like Naveen Patnaik and Nitish Kumar. “Most of them have been able to create their legitimacy in the last eight to ten years based on two cardinal facts. One, which is very important for the politics of accountability, is that the scale of the Indian State has changed enormously. I think one of the most under-examined things in the study of Indian politics is the fact that, by and large, between 1975 and 2000, most state governments were either relatively bankrupt or grew at an incremental rate. Even the best performing state leader at that time had small marginal impact on his population.” The scale of the state was transformed by growth and debt restructuring in the late 1990s and 2000. This allowed some good Chief Ministers to use that scale to create an alternative basis for legitimacy. It rested principally on bypassing their political parties. “So the common refrain is that Nitish has successfully insulated the bureaucracy from his party as has Modi in a very different way, as has Naveen Patnaik. The question with all of these states is, can they make the transition from this sort of low-hanging Neo-Keynesian expansion to a more genuinely participatory form of state? The fact that they are all resisting decentralised modes of governance makes you feel as if you are in Bismarckian Germany in these states – so, you will have this moment where an individual does very well for ten years but the underlying structures do not quite change dramatically.”

Mr. Mehta said that in spite of the fact that power had moved to the states, it was too premature to say there was genuine decentralisation. “In this context, one thing that you have to say in favour of India Against Corruption, whether you agree or disagree with a lot of what they do, is that they have brought about a couple of things in common with the progressive movement in the U.S. One is the politics of muck-raking (the term muck-raker was actually invented during the Progressive Movement when intrepid journalists simply held press conferences every month exposing one form of corruption or the other); the second, for which you have to give them credit, is that they are the first to have actually placed decentralisation, front and square, on the political agenda.”

The equilibrium of the old order

“The last and final difficulty which I will present is the following: the old system for all its faults had a certain equilibrium. We had all adapted to it. It made us complicit in it but we had accepted that’s how the state runs and that adaptive equilibrium worked at all levels of society. Big business knew how to operate that state and there was also lower level complicity in corruption.”

The difficulty is that during a transition to new rules, there would be a great danger of choking off small freedoms of the old order. “When you move from zero or weak enforcement to mild enforcement of rules, the first thing that would expect to happen is that most people, particularly those who invest and not just big investors, will stand back and say, ‘We don’t know what the new rules of the game are going to be.’ This is true at all levels of society.”

Mr. Mehta said that one of his consistent critiques of Indian liberalisation has been that it was for big business only. “It facilitated all the exit options for big business in terms of preferential credit. However, what it also did was, in a sense, make life difficult for small business for whom life had always been difficult. But right now India is in this very precarious position, where nobody knows what the new rules of the game are going to be.” He said the transition was creating more uncertainty than is necessary because the old system was still too entrenched, “still using every trick that it can of the old order to try and subvert the seeds of the movement”.

“The danger in this situation is that, if growth slips as a result, then all bets are off on this moment of Indian revolution.” Growth was the single most unsettling and potentially revolutionary fact about modern Indian history, particularly after 1998-99. It unsettled social relationships at so many different levels.

Mr. Mehta listed the different elements of required for progressive politics.

1. An emphasis on growth and macro-economic stability.

2. A form of inclusion, both in a social sense (where you can actually speak the vernacular language to create a political culture and make people feel a part of that political culture) as well as in an economic sense.

3. A commitment to radical decentralization, which allows a form of experimentalism to emerge, without which we cannot survive.

4. A premium upon innovation, knowledge, and productive energies.

5. A transition of the state from a hierarchical to the horizontal order.

The trouble with the Indian political landscape, Mr. Mehta said on a concluding note, was that there was no political formation where all of these elements went together. Given the structure of Indian politics, the only thing that is clear is that the climate is propitious for the muck-rakers to really take up the battering ram and try and break down both the monarchy and the church.

 

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

Written by myLaw

Can live updates from a cricket match be proprietary?

In November 2012, Justice Valmiki Mehta of the Delhi High Court ruled in Star India Private Limited v. Piyush Agarwal and Others that Star India could not claim copyright over cricket-related updates by virtue of its contract with the Board of Control for Cricket in India (“BCCI”). Star India is the exclusive media rights holder for the BCCI’s international and domestic cricket matches. The court ruled that while the BCCI might have copyright claims over audio and visual recordings of a cricket match, it does not have any copyright over information pertaining to the match once it comes in the public domain.

Ananth Padhmanabhan

Ananth Padhmanabhan

“After two minutes, the content or information in the broadcast can be commercially exploited by any person”, the court had held, determining when these updates would enter the public domain. Further, in the case of “crucial momentary events” like the fall of a wicket, the information enters the public domain within seconds. The case is now being argued before a Division Bench of the Delhi High Court. Ananth Padmanabhan, a Chennai-based advocate and the author of Intellectual Property Rights – Infringement and Remedies, spoke with us about the case.

Edited extracts from the transcript of the conversation.

Ananth Padmanabhan said that there was no copyright protection for live scores because copyright only protected expression. “So if you are asserting copyright, you have to see if there is any particular way in which you are presenting the scores. For instance, if Wisden comes out with a book which combines the scores by certain players and has a certain rating based on that etcetera, that is a different story altogether and you can get copyright protection to the limited extent of the specialised or the particular kind of expression in that book. Now that’s not the case here.”

Instead of looking at the case from the perspective of copyright, it had to be seen in terms of what the BCCI and Star Cricket contend to be “mobile rights”. He recalled that a situation of this nature had come up before the Madras High Court in 2005, when he was an intern with Senior Advocate Arvind Datar. The only difference was that the cricket series was happening in Pakistan and that the Pakistan Cricket Board (“PCB”) had administered the mobile rights, which were nothing more than giving a telecom operator, the right to disseminate live scores by S.M.S.

“Of course people are interested in live sports but here we need to make a distinction between proprietary value of information and the mere fact that people are interested in something.” Mr. Arvind Datar was appearing on behalf of the telecom operator licensed by the PCB to administer the mobile rights. To defend protection for live scores and to stop other operators from disseminating such scores, they used the concept of “hot news”, a judicially fashioned property right.

The term was first used by the Supreme Court of the United States in International News Service v. Associated Press, 248 U.S. 215. The facts in that case were that due to the time difference, the agents of one of the newspapers on the coast that was behind on time, would procure the news papers that had already been released on the other coast and relay it to them by telephone. “So you basically get a time advantage because otherwise you would only know what had happened on the other coast, twelve or eight hours later. So you make use of the fact that this information has now been already published by someone and you get the information because it is out in the public domain and now you of course commercially exploit it. That’s the key part here, the commercial exploitation part”.

The argument was that “hot news” was information which had commercial value and which was sought to be exploited by a competitor. The U.S. Supreme Court recognised this right and granted an injunction — a time-bound restraint on newspapers on the other coast from publishing such information. This doctrine evolved in United States in various contexts but most importantly in the context of sports. There are decisions relating to golf associations and golf publications.

Proprietary information? Image above is from Wikimedia Commons. This image has been published under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

Proprietary information?
Image above is from Wikimedia Commons. This image has been published under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

The single judge, Justice Bhanumati, who is now a fairly senior judge of the Madras High Court, rejected the argument but was impressed with the arguments on “hot news” — especially those made by Mr. Bharat Raman, who had appeared for the BCCI. Finally, the injunction was denied on the narrow grounds that since it was a series lasting a mere two weeks, the grant of interim relief would have amounted to the grant of final relief.

The case before the Delhi High Court, pending before a Division Bench now, is similar. “Justice Valmiki Mehta’s order is a very well-reasoned one. One of the criticisms has been that he has not considered the implications of quasi property while adjudicating this matter. The judgment does not extensively deal with the point of hot news.”

Mr. Padmanabhan said that the case was interesting because it was very conceptual and went to the very basis of property rights. The court will have to decide on the basis of the meaning of property. “Is property something that is recognised by law or something that is recognised by business? Today, Star’s argument primarily seems to indicate the latter — that mobile rights are a business practice and people are acquiring them for substantial sums of money. As a result of such activity, it must be protected as property.”

“Coming back to common law, my understanding of property rights is that you can’t ascribe proprietary value to something merely because there is economic value. There must be something beyond that. Generally, you don’t ascribe the character of property under common law to any kind of good.” Finally therefore, Mr. Padmanabhan said, you have to examine the intangible goods that are recognised and protected as property. “We recognise protection for certain rights which are mentioned in the different IPR statutes, and maybe in some cases, we recognise protection for goodwill in some cases. So there are a few of these intangible property rights that the law recognises.” He said that he instinctively felt that the claim would, for a start, need to establish that it fell within these brackets. If not, courts would be reluctant to grant an interim injunction. “Courts will be reluctant to award interim relief on the argument that because people are investing so much, you ought to protect it.”

 

(Audio transcribed by Sohini Singh.)

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

 

Written by myLaw

Criminalising speech under the Atrocities Act

Asish Nandy found himself in hot water after certain comments he made at the Jaipur Literature Festival about Scheduled Castes and Scheduled Tribes and their propensity to corruption. K. Vivek Reddy, a Hyderabad-based advocate, spoke with us about the criminalisation of speech under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and how those statutory provisions have been balanced with the fundamental right to speech.

Vivek Reddy

K. Vivek Reddy

Edited extracts from the transcript of the conversation:

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“the Act”) was enacted pursuant to a constitutional mandate. Article 17 of the Constitution of India clearly declared untouchability illegal. That broad constitutional mandate applies not just with regard to the state, but also applies with regard to citizens. Most constitutional rights are vis-a-vis the citizen and the state but when it came to untouchability, they made it illegal and unconstitutional as a broad constitutional mandate itself. There is also a Directive Principle mandating the state to protect the weaker sections. As a consequence, to enforce this mandate, the Parliament enacted several laws. In 1989, this legislation came about as a response to the documentation of a series of abuses.

It is important to note that unlike the United States and several other countries, we don’t have an express statute to protect civil liberties. The United States has a statute for the protection of civil rights, which ensures that civil rights of individuals are protected not just vis-a-vis the state but also vis-a-vis private individuals. In many ways, this statute was the first time a statute protected the civil rights of individuals vis-a-vis private individuals. In many ways, it imposes constitutional obligations on other citizens not to violate the civil rights of the Scheduled Castes and the Scheduled Tribes. In accordance with that, they have imposed a broad set of obligations to protect the interests of the weaker sections and these are fairly specific. “So, if you undertake any action or if you insult them, or cause violence to them because of their status as Scheduled Castes or Scheduled Tribes, then it makes it a punishable offence.”

The precise provision of the Act penalising speech is Section 3(1)(x). If anyone, with the intent to insult a member of a Scheduled Caste or a Scheduled Tribe, makes a statement that is humiliating in nature, then he commits an offence for which the punishment is six months imprisonment, which can extend to five years. We need to pay attention to the words of the statute because it is a penal statute. “If two individuals abuse each other, that does not automatically attract the provisions of the Act. X must say something to Y, with [the] intent to humiliate him since he is a member of a Scheduled Caste or a Scheduled Tribe. This intent is a condition precedent for invoking this provision.”

Asish Nandy   Image above is from Wikimedia Commons. Image has been published under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

Asish Nandy
Image above is from Wikimedia Commons. Image has been published under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

Nonetheless, this provision punishes speech. This statute however, is not the only one where speech is per se a punishable offence. The Indian Penal Code, 1860 for instance, under which trying to incite religious hatred is criminalised, falls in this category. Unlike some other jurisdictions, defamation is a criminal offence in India. “Certainly, these provisions are valid on paper but the way they are being applied raises constitutional concerns. The difficulty is that unlike the United States, India does not have expansive free speech rights.”

There is however, a key point in Article 19. Unlike other Article 19 rights such as the freedom of movement and business, the legislature cannot restrict free speech rights on the ground of ‘public interest’. This issue as to whether free speech rights should be restricted on grounds of public policy arose in the Constituent Assembly and was extensively discussed. In Article 19(2), ‘public interest’ was consciously omitted. “In other words, you cannot restrict free speech on the grounds of public interest.” Nehru argued that the entire point of the free speech clause was to enable the expression of opinions that were against the general consensus. The other ground on which free speech can be restricted is ‘public order’ and that is how all these legislations are justified. However, even though the legislation may be valid, the manner in which it is implemented can raise constitutional concerns. In technical terms, it can amount to an “unconstitutional application of a statute”. “The Act therefore, while being constitutional, can be unconstitutionally applied to cases like Asish Nandy and some of the cartoonists we have come across.”

The United States is not a comparable example because the First Amendment is absolute. The scope of free speech is absolute. “They have even gone to the extent of saying that flag burning comes within the four corners of free speech.” One doctrine that the United States has evolved, which the Indian courts have inconsistently applied, is the doctrine of “clear and present danger”. This doctrine means that speech can only be criminalised if there is a clear and present danger to the safety and security of the community. Without a “clear and present danger”, you cannot restrict free speech. That is a very high threshold. The other doctrine that is useful here is the doctrine of “chilling effect”. This means that if free speech were restricted, it would “chill” the speech of people who would want to say the same thing. By restricting someone like Asish Nandy, the rights of other people are restricted.

The courts have interpreted Section 3(1)(x) to apply only if the speech in question is directed to a specific member of a Scheduled Caste or Scheduled Tribe. In the case of Asish Nandy, his speech was not directed at a specific person. He was articulating a general view. The second requirement of the statute is that the speech has to be in the presence of that member of the Scheduled Caste or Scheduled Tribe. On these clear technical grounds alone, the prosecution cannot sustain.

 

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

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A brief history of the rules of war

By Kirthi Jayakumar

 

Grotius, Montesquieu, and Rousseau Images above are from Wikimedia Commons. The image on the left has been published under a Creative Commons Attribution 2.0 Generic License.

Grotius, Montesquieu, and Rousseau
Images above are from Wikimedia Commons. The image on the left has been published under a Creative Commons Attribution 2.0 Generic License.

In the Mahabharata, the eighteen-day war at Kurukshetra between groups of cousins to succeed to the throne of Hastinapura had rules of engagement. Fighting was not to begin before sunrise and had to end exactly at sunset. More than one warrior could not attack a single opponent and a warrior was not allowed to kill an opponent if the latter had surrendered. A surrendered warrior would become a prisoner of war and would then have certain protections. Unarmed or unconscious warriors, women, and people who were not taking part in the war were not to be killed or injured. Unfair warfare was prohibited. Battles were fought with maces, bows and arrows, and swords and there were rules specific to each weapon.

In the Hebrew Bible, soldiers were prohibited from destroying fruit-bearing trees in hostile lands, breaking vessels, tearing clothing, wrecking that which was built up, stopping fountains, or wasting food in a destructive manner. Even the needless killing of animals or poisoning water meant for livestock was forbidden. Besieging a city was acceptable only if whoever wished to flee had a path to do so.

The ideas of Grotius

The regulation of warfare through rules is not a modern idea. The first instance of “legal codification” (of sorts) however, came about through the Dutch philosopher, Hugo Grotius. De Jure Belli Ac Pacis (On the Laws of War and Peace), his immensely influential work from 1625, argued that there was a system of natural laws independent of any individual state’s legal system that should prevail even during hostilities.

Several scholars built upon Grotius’ ideas during the next two centuries and argued against the violations of basic rights during war. Montesquieu made a case against the killing of prisoners of war and Rousseau said prisoners of war had a right to receive humane treatment and to be freed after hostilities ended, instead of being enslaved. Many of these ideals became a significant part of treaties and friendship pacts between nations after wars, and were then carried forth into manuals that were issued to soldiers.

The revolution in warfare and the birth of the Geneva Conventions

However, the industrial revolution brought with it innovations in weapons. This led to “total war”, where besides incomparable battlefield suffering, there was a mandatory exaction of unconditional surrender from the defeated party. Combat was redefined and was deadlier than before. During the Crimean War fought from 1853 to 1856, with Russia on the one side and England, France, Turkey, and Sardinia on the other, the death toll was one lakh mostly from epidemics that raged during the war. The Crimean war saw the use of rifled muskets, among other percussion guns and rifles. Between 1861 and 1865, the American Civil War resulted in the death of six lakh soldiers.

Henry Dunant, a gentleman of Geneva.

Henry Dunant, a gentleman of Geneva.

In 1863, five men recognised the devastating effects of war on people and countries and met at Geneva. One of them was Henry Dunant, a local. He had authored and published A Souvenir Solferino, a book that made the case for improved care for soldiers who were wounded during war. His experiences with war persuaded him to seek the establishment of a permanent relief agency for humanitarian aid in times of war and the adoption of an inter-governmental treaty recognising the neutrality of the agency and allowing it to provide aid in war zones. In 1864, the International Committee of the Red Cross (“ICRC”) was born. Soon after, the committee brought together the governments of twelve European nations in Geneva and persuaded governments across the world to adopt a treaty that would mandate armies to care for wounded soldiers irrespective of what side they were on. This was the first Geneva Convention, that is, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field and was signed on August 22, 1864. The treaty mandated that all ambulances and hospitals were to be regarded as neutral; that people who worked as hospital workers and patients they tended to were not to be molested; that wounded or sick soldiers would receive medical care regardless of their loyalties; and that the Red Cross could freely travel through combat zones to aid the wounded. This Convention marked the first of several treaties that would go on to establish laws whose violations would be deemed war crimes. Over the next fifty years, the ICRC began active field operations and established national societies.

The last czar of Russia and his foreign minister.

The last tsar of Russia and his foreign minister.

On August 29, 1899, the erstwhile Russian Tsar, Nicholas the Second, with his foreign minister, Count Mikhail Nikolayevich Muravyov, proposed the first in a series of conferences. It took place at The Hague on May 18, 1899, the Tsar’s birthday. The conference officially took place on May 18, 1899, the birthday of the Tsar. It resulted in the passage of the Hague Convention of 1899, which sought to ban the use of certain types of modern technology in war, such as bombing from the air, chemical warfare, and hollow point bullets. Meanwhile, the 1864 Geneva Convention was soon adapted to include warfare at sea, leading to the adoption of the second treaty, namely, the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies at Sea, 1906.

The second Hague Conference was held between June 15 and October 18, 1907. While most historians consider it a failure, a few major decisions emerged. Convened at the suggestion of American President Theodore Roosevelt, war between Russia and Japan postponed the conference. It sought to expand upon the text of the original Hague Convention, seeking modification of some parts and additions to others. The focus was on naval warfare. England tried to ensure that there would be an imposition of limitations on certain armaments, but the move was defeated by the other governments present at the meeting – especially Germany, which appeared wary of a British attempt to stop the growth of the German naval fleet. Proposals for compulsory arbitration were also opposed by Germany, leading to the adoption of the alternative: enlarged machinery for voluntary arbitration. The conference finally established conventions regulating the collection of debts, the rules of war, and the rights and obligations of neutrals vis-a-vis war. The agreement entered into force on January 26, 1910.

While there were gaps that needed attention, the Geneva Conventions and the Hague Conventions came together to form a comprehensive body of wartime rules. They were the most authoritative rules governing conduct in war towards opponent soldiers, civilians, hospital assistants, and the wounded. Put together, these treaties required that prisoners receive decent food, shelter, and clothing; that guerrillas and other citizen-soldiers obey the same laws as official military personnel; that combatants respect institutions devoted to religion, charity, education, art, and science; that surrendering enemies not be killed or injured; that defenceless towns or buildings not be attacked; and that soldiers not pillage or confiscate property. The use of some weapons was also restricted.

The growth of international humanitarian law through the two World Wars

With the advent of the First World War, new methods of warfare that included trench warfare and the use of poison gas caused a very high death toll and exhibited the inadequacy of the extant rules. In 1925, the Geneva Protocol banning the use of poison gas and biological weapons was passed. At the end of the war, the Kellogg-Briand Pact of 1928 was signed by most of the world’s major powers. Leading to the establishment of the League of Nations, the pact witnessed the renunciation of war as a tool of policy among the leaders of the warring factions. The Geneva Convention relative to the Treatment of Prisoners of War was concluded in July of the next year and entered into effect on June 19, 1931. It sought to improve rules on the treatment of prisoners of war and the wounded. However, the state of unstable peace was short-lived. With Germany violating international law, the Second World War began and brought with it, untold savagery and brutality.

At the end of the Second World War, the United Nations was established and the Universal Declaration of Human Rights was adopted. In the same year, a separate convention outlawed genocide. The trials at Nuremberg also revealed the grave situation that prevailed on every war front. In a bid to avert or at least streamline conflict, a series of conferences were held in 1949. They reaffirmed, expanded, and updated the three prior Geneva Conventions. A fourth was added — the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949. The Geneva Conventions were also made applicable at times of war and armed conflict, to the territories of all governments that had ratified its terms.

The four conventions contain two common articles — Articles 2 and 3. Article 2 explains that the Geneva Conventions applies to all cases of international conflict, where at least one of the warring nations has ratified the Conventions. It applies to all cases of declared war between signatory nations and all cases of armed conflict between two or more signatory nations even in the absence of a declaration of war. It also applies to a signatory nation even if the opposing nation is not a signatory if the opposing nation “accepts and applies the provisions” of the Conventions. Article 3 relates to non-international armed conflict, and states that certain basic rules of war applied to armed conflicts that were not of an international character, but contained within the boundaries of a single country.

Humanitarian law after the World Wars

Although the Geneva Conventions were comprehensive in their own right, the changing nature of conflict in the aftermath of the Cold War revealed the need for a more dynamic legal system. After the Cold War, most armed conflicts were internal wars, or civil wars. The development of technology also lent some asymmetry to armed conflict as there was a higher toll of dead civilians. In 1977, considering the need to provide civilian persons and objects sufficient protections during combat, two Additional Protocols were adopted. They extended the terms of the 1949 Conventions with additional protections.

Protocol I affirmed the original Geneva Conventions of 1949 but added clarifications and new provisions that accommodated developments in warfare since the Second World War. It outlawed indiscriminate attacks on civilians, the destruction of means of survival, and attacks on dams, dikes, nuclear generating stations, and places of worship. It provided for separate protection for women, children, and civilian medical personnel, and measures of protection for journalists. Besides this, it prohibited the conscription of children below fifteen into armed forces, clarified the military status of members of the guerrilla forces, and banned weapons causing superfluous injury or unnecessary suffering and warfare capable of causing widespread, long-term, and severe damage to the natural environment. Protocol II amended the Geneva Convention to provide better protection for victims of internal armed conflicts that take place within the borders of a single country. However, these laws have a limited scope of application because of respect for sovereignty of the member countries.

Despite the fact that the nature of war has changed considerably since the creation of the Geneva Conventions in 1949, they are still considered significant, and constitute the body of rules that are commonly called International humanitarian law. The treaties found application in recent armed conflicts. As it stands however, the lack of an international court with enough power to enforce the laws of war is a huge drawback. Furthermore, their non-implementation notwithstanding, these legal provisions are not enough. As war continues to evolve and non-state actors also participate, there has been a blurring of lines between combatants and civilians. The birth of drone attacks, the participation of enablers (people, corporations, and governments that make war possible by abetment through monetary, strategic, or infrastructural aid), and the involvement of non-state actors are concerns that need to be addressed.

 

Sources

Bernadotte E. Schmitt, “The Diplomatic Preliminaries of the Crimean War”, American Historical Review, Vol. 25, No. 1 (Oct., 1919), pp. 36–67.

Dunant, Henry, A Memory of Solferino; Ronald Roxburgh, International Law: A Treatise, 1920, p.707; Andre Durand, History of the International Committee of the Red Cross: From Sarajevo to Hiroshima, (Geneva: ICRC, 1984), p. 147.

Francios Bugnion, “The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millennium”, International Affairs, pp. 41–51.

Giri Deshingkar, “Strategic Thinking in Ancient Indiaand China: Kautilya and Sunzi”.

Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

Hudson, Manley O, “Present Status of the Hague Conventions of 1899 and 1907”, American Journal of International Law, 25, pp. 114–117.

James C. Bradford, A companion to American military history, 2010, Vol. 1, p. 100.

Jean Jacques Rousseau, The Social Contract or Principles of Political Right, Chapters 1 to 5.

Mark W. Janis, Religion and International Law, 1999, p. 121.

Michael J. Broyde, Fighting the War and the Peace: Battlefield Ethics, Peace Talks, Treaties, and Pacifism in the Jewish Tradition, 1998, p. 1.

Montesquieu, The Spirit of Laws: Book XV.

Walther Schücking, The international union of the Hague Conferences, Clarendon Press, 1918, p. 10.

William Abresch, “A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya”, European Journal of International Law, 16(4).

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A plea to the Saket Bar

 By Tennille Duffy

 

For several days, protestors gathered in parts of central Delhi. Photographs by Shilpi Boylla

For several days, protestors gathered in parts of central Delhi.
Photographs by Shilpi Boylla

Two days before charges were presented in the new fast-track District Court at Saket in New Delhi, the Saket District Bar Council announced that its advocates would refuse to represent the accused in the Delhi gang rape case. The accused will still receive representation by way of lawyers appointed by the government, but the representatives of the Saket Bar miss the point when they argue that their boycott will help ensure speedy justice in the case. The absence of a good and vigorous defence may contribute to a speedy trial, but in no way can it ensure justice. A good defence is one of the most vital ingredients in the criminal justice system and it is essential for ensuring that the justice that everyone in the nation is, rightly, screaming for, is done.

Doing justice is not just about locking people up after a show of a trial. Real justice is done when all parts of the system come together and work properly. This means that all the attendant checks, balances, and protections — including a proper defence — must come into play. It is the professional obligation of members of the Bar to uphold the system. Does the Saket Bar think that it only needs to operate some of the time? Is their faith in the very system they work within, so weak that they refuse to take part in it?

The truth is that India has, for better or worse, inherited an adversarial system of criminal justice from the British legal tradition. Two parties — the prosecution and the accused, represented by their lawyers — come together, in front of an impartial judge, and argue the case. In this system, lawyers defend people accused of both petty and heinous crimes every day. That is their job and it plays a vital part in ensuring the guilty are punished. Perhaps it’s not always a pleasant job, but it is an important one.

Indeed, the tradition of the Bar is to see it as a mark of the honour of the profession that advocates conduct themselves dispassionately and that everyone has access to representation, without fear or favour. One of the first lawyers to breathe life into this principle was John Cooke. Courageously, he agreed to conduct the prosecution of King Charles I in 1649 for crimes of high treason related to the English Civil Wars. A monarch had never been tried before a court of law before – this was a monumental moment in legal history, and in the history of the Bar. In the end, John Cooke paid for his principles with his life. He was charged with regicide under Charles II, and hanged, drawn, and quartered in 1660.

John Cooke paid with his life for prosecuting the King. Image above is originally from Wikipedia Commons.

John Cooke paid with his life for prosecuting the King.
Image above is originally from Wikipedia Commons.

The modern value of the defence lawyer’s job is reflected in rules of advocacy that exist around the world. In particular, there is an obligation upon an advocate — provided they have the time and expertise — to take any case. Taken from the long-standing English ‘cab rank’ rule, it is adhered to in jurisdictions from Canada to Australia, and reflected in Rule 1 of the “Rules on an Advocate’s Duty Toward the Court” in the Bar Council of India Rules. This Rule reads, in part, “An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise.”

The Indian legal system requires proof beyond reasonable doubt, and holds to the presumption that people are innocent until proven guilty. This is spoken of as the ‘golden thread’ that runs through the criminal justice systems of the common law world, thanks to the House of Lords judgment in Woolmington v. DPP, [1935] UKHL 1. The often-repeated maxim to justify these principles is that ‘it is better that one hundred guilty men go free than one innocent man go to gaol’.

Another way to think about this maxim is perhaps more appealing to the demands for justice being made in India right now. Suppose the police were to get it wrong, and the mistake was not picked up because an innocent accused did not receive a proper defence. The consequence is not just that an innocent man might go to gaol. Another terrifying consequence is that the truly guilty man would still be out there.

We know enough about the police in India to know that they sometimes get it wrong. Sometimes, they frame people and leave the real culprits free. Sometimes, even judges are subject to improper influences. A fiercely independent Bar that provides a vigorous defence to everyone helps ensure that the real culprits are brought to justice.

It also helps to ensure that the trial is conducted smoothly and that the chances for an appeal are limited. Indeed, a good defence lawyer will provide clients with realistic advice about the strength of the case against them. This improves the chances that a guilty accused will plead guilty. A good defence lawyer will abide by the rules of advocacy and evidence and not make a mockery of court proceedings, nor allow their client to. A good defence lawyer is not interested in ‘getting their client off’ at all costs, but in representing their client fairly and within the bounds of the law. This should not impede the guilty being found guilty and being appropriately punished.

As with most worthwhile things in life, there is no short cut in this case, or any other criminal trial. Justice must be reached through the proper process and if a good defence is provided, we can all be much more certain that the right man, the guilty man, is behind bars and not still living free, having escaped the consequences of his horrendous acts.

So I make this plea to the Saket Bar – please do not boycott these accused, or any accused. Instead, work to make sure that every accused before the courts has the best defence possible. Campaign for the improvement of legal aid in India. Recognise your professional responsibility to uphold and improve this system of justice as best you can. Not necessarily because these accused deserve it, but because in this and in every single case, the citizens of India deserve the best criminal justice system possible.

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The lawyer behind the Mahatma

The Man before the Mahatma, M.K. Gandhi, Attorney at Law is a new book that has taken a close look at a phase in Mohandas Gandhi’s life that has not received the serious attention of scholars. Between 1893 and 1914, Gandhi practiced law in South Africa, honed his political skills by agitating against a racist government, and developed his philosophy and practice of civil disobedience. Charles DiSalvo, the author of the book, is the Woodrow A. Potesta Professor of Law at West Virginia University where he teaches civil disobedience. We spoke with him about the themes he explores in his book.

Edited extracts from the transcript of the conversation

While “legal training” is the phrase that everyone would use, Mr. DiSalvo said responding to a question about Gandhi’s legal education, it did not involve much training. “He went to England in 1888 and joined the Inns of Court there and at that time, legal education was much different from what we know today. Essentially, he had to undergo a series of examinations but he did not have the benefit of lectures or regular contact with teachers.” Students were expected to read and pass the examination on their own. The only requirement was something called “keeping terms”.

Charles DiSalvo

Charles DiSalvo

Gandhi, like all law students of the time, was required to attend a certain number of dinners that his Inn sponsored each term. Gandhi and his fellow students would eat with senior members of the Bar but there was no legal instruction. “It was just a formal, sort of social thing that everyone was required to participate in. This was because the stress was on turning people into mannered gentlemen rather than giving them practical skills they can use as barristers and solicitors.” Three years spent in this manner was the extent of Gandhi’s legal education.

This had an immediate impact on his ability to practice law when he arrived back in India in 1891. He failed in his attempt to set up a practice. “One of the reasons I think he fails is because he has no practical skills.” All he had was book learning that he gave himself. Describing one of his initial cases, Gandhi said that when he stood up to examine a witness in court, the room started spinning, he became incredibly dizzy, and had to sit down and give the job to someone else. “This is because he was so afraid. He had been always, timid about public speaking from the time he was a young man and he continued to be afraid of public speaking up until this point when he tried to establish a practice in India. One of the interesting things about South Africa is that it gives him another chance to succeed.”

The first Indian lawyer in South Africa

Gandhi in London in 1906 Image above is from Wikimedia commons.

Gandhi in London in 1906
Image above is from Wikimedia commons.

Gandhi’s choice to go to South Africa was unusual. “He was the first Indian lawyer in South Africa. In the 1890s, there was a very, very large population of Indians in South Africa because there were tea and sugar plantations along the coast. The British, who ran those plantations in the colonies in which they were situated, were unsuccessful in convincing native people to work in these rather labour-intensive plantations. So they made an arrangement with another English colony, India, to bring indentured servants over to work the plantations. So tens of thousands of these people came over, and when they did, Indian merchants followed to service their needs. And where there are merchants, there are going to be lawyers. The Indian merchants initially limited themselves to high-earning white European lawyers in South Africa.”

“There was a large commercial dispute between two prominent Indian merchants in South Africa, both of them from Gujarat, and so Gandhi was brought over to essentially be, a translator and a kind of a glorified paralegal to be truthful about it.” That was Gandhi’s occasion for going to South Africa. He saw it as an opportunity to make some money, which he was not doing in India. He did not consider South Africa as a long-term project.

“He went there for a year to work on this case – that was the contract. Then, toward the end of the year, after the Indian community in South Africa became familiar with Gandhi, the Indians in South Africa approached him to stay. Why did they do that? The British, who were controlling that part of South Africa at that time, were very, very jealous of the success that Indian merchants were having. The Indian merchants were actually encroaching — in the Europeans’ view — what the Europeans considered their business territory.”

Gandhi with non-violent resistors in South Africa Gandhi with other leaders of the non-violent resistance in South Africa. Image above is from Wikimedia Commons.

Gandhi with non-violent resistors in South Africa
Gandhi with other leaders of the non-violent resistance in South Africa.
Image above is from Wikimedia Commons.

The Europeans decided to put the Indians out of business and introduced provisions designed to make life in South Africa as hard for them as possible, including depriving them of the vote. At this point, the merchants approached Gandhi to stay and fight for Indian rights and Gandhi agreed to do that for a short period of time. “Eventually, Gandhi realised that it was not a fight that could be won in a month or a year, so he took out his law licence in South Africa, set up a practice in Durban, and stayed. Interestingly, the arrangement he made with the merchants gave him an instant law practice.” When they approached him initially, they wanted to hire him to do their political work. Gandhi said that he could not be paid for that because it was public work. However, he said that if the Indian merchants gave him their legal business, he would do the public work for free. “So they did, and overnight, he had a stable of clients and an immediate commercial law practice, representing the biggest Indian merchants in South Africa.”

The convergence of Gandhi’s political and professional lives

Gandhi practiced law until 1911 and Mr. DiSalvo has divided that time into three phases. At the beginning, there is a very clear separation between his life as a lawyer and his public life. “None of the legal work that he does involves Indian rights. The political work that he does, does not involve the law. Principally, what he does during this first phase, is petition the government. He is looking for the redress of Indian grievances, particularly with regard to the right to vote. He files petition after petition — endless number of petitions — and these petitions have a couple of things in common. On the one hand, Gandhi believes that every single one of them works, on the other hand, none of them do. So he eventually gives up on petitioning and enters into a second phase of practice in which there is a greater relationship between his practice and his politics.”

Gandhi started doing some pro bono cases, often along with a European colleague named Frederick Locke. In the 1890s, the European authorities in the Natal province decided to crush Indian businesses and erected a licensing scheme that had few standards to determine whether a licence ought to be given. Gandhi started litigating against what was known as the Dealers’ Licenses Act, thus devoting a portion of his practice to his political cause.“While this is going on, he is still conducting a very, very successful, busy, prosperous commercial practice.”

The third phase occurs after he moves his commercial practice to Johannesburg. “He gradually transforms himself into a lawyer whose political work and professional work become identical. This was brought about by the effort of the Transvaal government.” The government wanted not only to drive Indian businesses, but Indians, out of the Transvaal. “They concocted a registration scheme that required fingerprints from Indians. Gandhi and his compatriots looked upon it as the Europeans treating them as criminal. And so they resisted, and Gandhi called for widespread resistance. When the Europeans responded by arresting Gandhi and some of his colleagues, Gandhi represented not only himself, but a fair number of other resistors. This begins the period of Gandhi’s work where he does almost nothing but resistance work. He is representing people who are resisting registration schemes, all over the colony of the Transvaal.”

“At this point of time, there is an identity between his professional work and his personal work. And I think that this integration of his professional practice on the one hand and his political, moral, and spiritual beliefs on the other […], that’s the most important thing he takes back from South Africa, after the development of his philosophy and practice of civil disobedience.” This integration lifted Gandhi to a new level, which permits Gandhi to deal with the racism that he confronts in South Africa and to deal with some of the hardships he had to undergo in India.

Gandhi’s associates

Gandhi with some associates in Johannesburg. Image above is from Wikimedia Commons.

Gandhi with some associates in Johannesburg.
Image above is from Wikimedia Commons.

Gandhi first worked with European lawyers as an understudy. Later, when he decided to set up practice in South Africa, he looked for someone to associate with because he had “no skills to speak of”. It made sense for him to look for a veteran attorney to work with. Eventually, he came into contact with a lawyer named Percy Coakes, who had been practising law for seven or eight years when Gandhi met him. They negotiated an agreement for Gandhi to come on board with Coakes and Gandhi drove a really hard bargain. “Coakes offered him very modest terms and Gandhi said no, I’ve got to have more. And when Coakes wouldn’t budge, Gandhi let it be known that he was going to move on. And when Coakes heard that, he caved in and gave Gandhi the terms that he was looking for.” Not long after Gandhi started practice with Coakes however, the latter got into ethical trouble and was suspended from the Bar. Without an associate, Gandhi came into contact with a lawyer named Oswald Asew, another European lawyer who had been friendly to the Indian cause. Gandhi does not stay with him for too long and he eventually started his own law office in Durban along with associates like H.S.L. Pollock and F. Khan, the second Indian lawyer in South Africa. By this time, Gandhi’s practice had grown. There is a tremendous amount of office work for his Indian merchant clients and quite a bit of court work. This continues to be the setting he works in Johannesburg and up to the very end of his practice in South Africa, when he turned his office over to a person named Louis Rich, who had worked in Gandhi’s office previously, and had been a key player in the Indian cause. Gandhi recommended him to all of his clients.

Arguing civil disobedience

Mr. DiSalvo also said that Gandhi’s philosophy about non-violence grew out of his law practice. “He first starts calling for civil disobedience in 1904. The community pledges in 1906 to disobey the law. […] Then the first arrests take place in 1907. When Gandhi is first tried for civil disobedience, along with his colleagues who had refused to register […], Gandhi grows through some growing pains in terms of learning how to defend folks who are accused of not registering. At the beginning of 1908, Gandhi is the first one to be tried, and he gets up and he pleads guilty. After that, he attempts to explain how his conscience prohibits him from registering to make the argument that he was at least morally justified in what he was doing and the judge just cuts him off, won’t let him speak. So the next case is on the very same day, immediately after Gandhi’s. Gandhi is representing other folks who refused to register, and he pleads them not guilty so that he can come up on the stage and attempt to ventilate the argument against registration. It is the history of defendants in civil disobedience cases across the world that judges are very reluctant to permit civil disobedience defendants to air out the conscientious bases for their refusal to follow the law. Most judges don’t see that, unfortunately, as relevant. So from 1908 till the time Gandhi finishes his practice in 1911, it is a constant battle with judges to get them to entertain arguments based on conscience. It is not much of a surprise that those arguments are generally unsuccessful for Gandhi.”

Spiritualism and Gandhi’s law practice

Spiritualism was a part of Gandhi’s life as a professional in South Africa as well. “In 1905, he was really struggling with his identity, both as a lawyer and as a moral agent. He is thinking about how important it is to be detached from material possessions, because at that time, he was making a lot of money, and he was worried about what it was doing to him. So he is fighting with himself about this notion of detachment from material possessions when he thinks about something that he had read as a law student in London, a book called Snell’s Equity, in which the concept of trustee is explained. Gandhi actually writes this: ‘My study of English law came to my help. Snell’s discussion of the maxims of equity came to my memory. I understood more clearly, in light of the Gita teaching, the implications of the word ‘trustee’. My regard for jurisprudence increased. I discovered it in religion. I understood the Gita teaching of non-possession to mean that those who desired salvation, should act like the trustee who, though having control over great possessions, regards not an iota of them as his own.’ Gandhi gave huge sums of his income away on a regular basis to the Indian cause in South Africa, but I think the more interesting point is that his spirituality develops the integration between the political and professional sides of his life.’

 

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

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Problematic cut-and-paste approach

Charles Maddox Image above courtesy Mr. Maddox

Charles Maddox
Image above courtesy Mr. Maddox

Recently, an article in the Economic and Political Weekly studied the influence of South African legislation on the Indian Mines and Minerals (Development and Regulation) Bill, 2011 (“the MMRD Bill”) and revealed the perils associated with transplanting legal and regulatory frameworks from one global South jurisdiction to another (known as the ‘horizontal learning approach’) without taking the underlying social and political policy motivations for the model legislation into account.

Charles D. Maddox, Assistant Professor and Assistant Director of the Centre for Global Corporate and Financial Law and Policy at the Jindal Global Law School and one of the authors of the article, spoke with us.

Akshay Sreevatsa for myLaw.net (ML): What was the motivation behind this article? How did it come about?

Charles Maddox (CM): This article originally came out of a bigger piece on horizontal learning that we presented at an academic conference in Wisconsin a little over a year ago. At first, it was one of two examples of south-south policy inspiration—the other example was India’s Chinese inspired SEZ policy.

In the end, we decided to take the material on SEZ policy and use it to tell a broader story about the India-China relationship. We’re still finalising that article but in the meantime we felt that the mining example was an interesting story to tell so we refocused it into the slightly shorter EPW piece on the Mining Bill.

ML: What is the “horizontal learning” paradigm, and why is it important?

CM: Horizontal learning, inspired by the work of Professor David Trubek, is essentially a process-based approach to policy development within the emerging world. It puts particular emphasis on the promotion of a policy dialogue between similarly situated countries as opposed to a Washington Consensus type approach in which countries like India look to the developed world for policy inspiration.

Our university is actively engaged in what could be termed exercises in horizontal learning. For example, in December, 2012, we will be hosting an international conference in partnership with Getulio Vargas Foundation (“FGV“) Law School, one of Brazil’s leading law school, entitled ‘Managing growth in a changing world: What lessons can the BRICS learn from each other?’ This conference is designed to further the successful dialogue that was started at the ‘Law and Development in Brazil in a Global Context’ conference funded in part by the Brazilian government and held at FGV in Sao Paulo in November of 2010.

ML: Why did you choose the Indian mining industry specifically to illustrate the problems associated with the “horizontal learning” paradigm?

CM: First, we’re certainly not in opposition to horizontal learning—in fact, there is tremendous value in understanding how similarly situated countries are dealing with similar problems. We’re arguing instead that, regardless of the source of inspiration, a ‘cut-and-paste approach’ to policy formation can often be very problematic.

As for mining, I was already familiar with this story due to a short piece that I had written on the topic for a publication on Indian Infrastructure put together by IDFC. Pragmatic reasons aside, this seemed, superficially at least, like a great example of horizontal learning. After all, like India, South Africa is a diverse democracy and emerging economic power. It is also a country with a tremendously successful mining sector. Presumably, India, as a similarly situated country, could learn a lot from the South African experience.

ML: Please explain how your study proceeded and the methodology you used – and the problems, if any (were there any difficulties in gathering data, for instance?).

CM: For the original larger piece, in addition to standard legal research, we did do a media content analysis. My colleague, Jonathan Burton-Macleod, has done a great job using this methodology for data gathering—it’s particularly helpful when trying to understand the political rhetoric surrounding the formation of a law. Most of what made it into the final EPW piece, however, has come out of a more traditional legal research and analysis process.

ML: Take us through the processes in South Africa as compared with India, in reference to their respective mining and related legislation (in light of the importance of mining to each country and the socioeconomic problems).

CM: India’s mining sector has tremendous potential but at this point it is under-invested and underdeveloped. South Africa, in contrast, has one of the world’s most developed mining sectors.

The Red Cap Party (top) a group of British fortune hunters and former soldiers, are credited with discovering the Kimberly diamond deposits in 1871. The second photograph shows a group of Chinese and white labourers in a South African gold mine. Images above are from Wikimedia Commons and Flickr respectively.

The Red Cap Party (top) a group of British fortune hunters and former soldiers, are credited with discovering the Kimberly diamond deposits in 1871. The second photograph shows a group of Chinese and white labourers in a South African gold mine.
Images above are from Wikimedia Commons and Flickr respectively.

Mining, being arguably the most critical industry in South Africa, has played an important role in the country’s history of racial segregation. The twenty-six per cent equity participation clause that was the inspiration for India’s now vastly modified twenty-six per cent provision, was put in place to give historically disenfranchised South Africans an equity stake in what had traditionally been an industry owned and controlled by white South Africans.

India, in contrast, is not seeking to re-balance ownership of a critical industry. Instead, India is trying to find a way to better compensate people who are either displaced or are members of a community that has been impacted by the development of a new mine.

ML: What is your take on the profit sharing clause in the MMDR Bill? Your article has argued that India has not paid sufficient heed to the historical and political factors behind this clause in the South African law, and has transplanted it without paying due consideration to the needs of India specifically. Please elaborate on this, and the lessons we can take away from this experience.

CM: The adoption of this provision was somewhat ham-handed and seems to suggest a limited understanding of what the South Africans were really doing. Unfortunately, this starting point has framed the debate surrounding the Bill. It might have been more constructive for the debate to have been based on determining, first, an internationally competitive overall tax rate and then, second, deciding what portion of that revenue should be earmarked for local communities. Instead, everything seems to have focused on this now somewhat arbitrary twenty-six per cent number.

ML: What are the conclusions you have drawn from your case study, and what suggestions do you have to offer?

CM: First and foremost, it is critical to frame the issue properly. There is a lot that India can learn from South Africa and vice versa but when trying to understand whether a particular legislative solution might work on foreign soil, it is absolutely essential that the parties understand not just what the particular provision does but why it does it. It doesn’t particularly matter whether the potential transplant is coming from the U.K. or Brazil—what really matters is whether the underlying reasons for the policy lead themselves well to the Indian context.

 

(Akshay Sreevatsa is a Features Writer at myLaw.net.)

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A fearless and powerful dissent

Rajaji is seen in the photo above, presenting his first budget in 1937, as Chief Minister of the Madras Presidency. Image above is from Wikimedia Commons.

Rajaji is seen in the photo above, presenting his first budget in 1937, as Chief Minister of the Madras Presidency.
Image above is from Wikimedia Commons.

Rajaji was a disciple of Gandhi. I use the term “disciple” in its purest form because he was possessed of too powerful an intellect – arguably the most insightful among that galaxy of unusual talent – to be anyone’s servile follower. Indeed, the Mahatma even referred to him as his conscience keeper. At one time, many considered him the logical heir to Gandhi who even had to clarify publicly that “Jawaharlal, and not Rajaji, would be my political heir.”

First published on August 15, 1961 after the dedicated efforts of a few well-wishers including Khasa Subba Rao, a close friend of Rajaji and the editor of Swarajya, and T. Sadasivam, the freedom fighter who is known to many as the husband of the great M.S. Subbulakshmi, Satyam Eva Jayate (download the first volume here) was a bugle call that went unheeded. It was an amicus curiae brief to India’s leaders of the day on the dangers of statism, the licence-permit raj (a term he is credited with coining), the destruction of federalism, the dangers of socialism and the corruption it would engender, the importance of a credible opposition, the need for electoral reform to stem unaccounted party funding, and several other issues.

He also offered solutions. Sample the following excerpt from “Passivity will not do”, a moving essay.

Those who are interested in the future of our liberties and who feel that the various curbs and restrictions imposed by the present government are unwise and should in the interests of progress be done away with, who feel that we need a polity of liberty as opposed to a state-regulated economy based on a bias against private enterprise and private management and on faith in the public management of all trade, production as movement, must realize that the simple truth that we cannot get rid of government control by supporting the same government, but only by opposing it.

This did not come from an octogenarian preaching out of habit. Well into his eighties, Rajaji created, mentored, and campaigned for the Swatantra Party. After three years of tireless campaigning, the party entered twenty-five Members of Parliament into the Third Lok Sabha. As a member of Nehru’s Cabinet noted, the success of the Swatantra Party was largely due to the rallying power of the “personality of Rajagopalachari”.

These electoral battles were not fought for power or office but out of the understanding that Nehru and India needed a strong opposition, the kind that had been provided by Sardar Patel in the early years of Independence as part of the unique diumvirate fashioned and preserved by Gandhi’s dying wish. Gifted with political foresight unmatched by any of his contemporaries or his successors, he could not keep quiet. “The strength of a regime based on public opinion is the passivity of the victims. Once the passivity is replaced with manly protest, the regime topples down.

Rajaji's portrait above was unveiled in the Parliament by the then President of India, Dr. Neelam Sanjiva Reddy on August 21, 1978. Image above and on article thumbnail is from the website of the Rajya Sabha.

Rajaji’s portrait above was unveiled in the Parliament by the then President of India, Dr. Neelam Sanjiva Reddy on August 21, 1978.
Image above and on article thumbnail is from the website of the Rajya Sabha.

Because I was often troubled in mind and spirit I came to you and sought your advice and I always found it very helpful. And so when the time comes for you to go away from here there is a feeling of a slight emptiness in me.

In his reply, Rajaji, conscious of the fact that after the Mahatma, he was probably the only person who could presume to speak to Nehru and Patel as an elder brother added:

The Prime Minister and his first colleague, the Deputy Prime Minister, together make a possession which makes India rich in every sense of the term. The former commands universal affection, the latter universal confidence. Not a tear needs to be shed for anyone as long as these two stand four square against the hard winds to which our country may be exposed.

Rajaji’s life was the story of the good fight initiated by the mere presence of injustice and oppression. Satyam Eva Jayate, a clarion call of reason, marks a fearless and powerful dissent of Nehruvian politics and economics. If the test of courage and integrity is to talk truth to power, then the two volumes stand testimony to Rajaji’s personal integrity, courage, and incredible foresight. Rajaji’s opposition was not for its own sake, but was meaningful, honest, reasoned, and issue-based, and sought to persuade rather than derail. There is no shortcut to bringing about meaningful change. There is a lesson in there for India’s current civil and Parliamentary opposition.

 

(Suchindran B.N. is an advocate at the Madras High Court.)

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Jesse Choper on the judgment upholding the Affordable Care Act

Professor Jesse Choper The image above is from the website of Berekely Law.

Professor Jesse Choper
The image above is from the website of Berekely Law.

The Supreme Court of the United States recently upheld the Affordable Care Act, 2010 (“the Affordable Care Act”) in National Federation of Independent Business v. Sebelius. The Affordable Care Act, regarded as a significant piece of Congressional legislation, aimed to make the purchase of health insurance compulsory on citizens of the U.S. and imposed a penalty upon those who did not purchase it. Professor Jesse Choper, the Earl Warren Professor of Public Law at the University of California, Berkeley, School of Law (Boalt Hall), recently spoke with us on the subject.

Edited extracts from the transcript of the conversation:

Mr. Choper said that Congress passed the healthcare law with great difficulty. “It was extremely controversial, extremely close in both Houses of Congress and very much criticised by the very conservative wing of the Republican Party. There were immediately lawsuits filed to say it was unconstitutional and it reached the Supreme Court pretty quickly for a decision.” The most controversial and publicly discussed issue he said was the “individual mandate”, which provided that anyone who did not buy health insurance would have to buy health insurance.

The individual mandate

“[T]here were all sorts of qualifications for people with difficulties in terms of financing it and so forth, and if you were poor, you got government assistance in doing this, but everyone who did not have health insurance had to buy it. That is, they were mandated to do this by the statute.”

“Why did they do it this way? Because they did many other things with the healthcare law, the biggest of which was to provide that insurance companies could not deny coverage for pre-existing conditions. That is a major cause of considerable expense for the insurance companies, and in order to make the insurance companies not raise rates terribly, they gave them a lot more income by having everyone buy from them, and the assumption was this would largely be healthy people. They’re the ones who didn’t buy health insurance. They didn’t think they needed it. Well, they needed it now, and if they didn’t buy it, there would be a penalty.” The amount would be determined by considerations that were very similar to those that determined income tax and it would be collected by the Internal Revenue Service. “That is to say, there was a graduated rate – wealthy people paid more, poor people paid less, you got exemptions for your dependants and so on and so forth.”

“The great argument in the case was that Congress does not have power under its authority to regulate interstate commerce (known as the Commerce Clause) to force someone to enter a market to buy insurance.” While they could regulate the rates at which you bought insurance, they could not force people to buy something that they didn’t want to buy (“enter commerce if you will”), because the insurance industry in the United States was a national commercial enterprise with ramifications throughout the country.

“No one questioned that, and they said you can do anything you want once you buy insurance, but you cannot force someone to buy it. And the parallel was that next, Congress would force everyone to eat broccoli. It’s one thing to say that Congress can regulate foods, the safety of foods, can forbid you to buy foods, as we do, such as marijuana or things of that sort, but they cannot require you to do something.”

The lower courts were split on that issue and when it came up before the Supreme Court, the majority of the Supreme Court, held that Congress did not have the power under the Commerce Clause to force someone to enter a market. Chief Justice Roberts wrote for himself and the four other conservative Justices.

Taxing power

However, the Supreme Court, Mr. Choper continued, had long held that the constitutional power of Congress to tax and spend for the general welfare is an independent power. Simply because a tax had some regulatory impact and may cause people to do different things, it does not mean that because the Congress does not have the power to regulate something, it does not have the power to tax it. “Because a tax is a tax and a regulation is a regulation.”

“I’m sure in your country as well as our country, people try to guide their conduct so as not to pay taxes. If you’re taxed for holding stocks, shares or property only for a short period of time, and then selling it, which we call a short term gain, the tax rate is much higher than if you hold the property for a year. That being the case, a lot of people will delay selling something at a big profit, because if you can hold it for a year, it’s called a long term gain and it is taxed at a substantially lower rate. So, it was always agreed that Congress had the power to tax independent of what it could regulate, and that the tax might affect people’s conduct. But the Court also said that this didn’t mean it wasn’t a tax; it only becomes a regulation if it had too many things that looked like a regulation and not a tax.” Mr. Choper gave the example of marriage and children. If a couple had had three children, it paid less tax than if they had no children. Married couples could file a joint return and pay much less tax than if they filed (their returns) separately.

The Supreme Court held that it was a tax and not a regulation, because it is enforced by the Internal Revenue Service. “It is called a penalty but it is really a tax, it is paid on your income tax return, and the other things that made it look very much like a tax… [T]hey said this penalty raises a lot of revenue. It is estimated by an independent government agency that it would raise U.S.D. 5 billion in its first year, and so they upheld it under the taxing power.”

Medicaid expansion

Another really important provision was a very large expansion of Medicaid – not a federal program but a federal-state program. “It didn’t require anyone to do anything, but Congress appropriated big money to states to share the costs of providing a limited form of medical assistance to people who were poor or very old (above retirement age) and disabled people. In the 2010 statute, they expanded this greatly to cover a great many more people of lower income. It was a voluntary program. The states could, if they wanted to, have their citizens take advantage of this. Or, if they didn’t want to, they would turn down the federal money and they wouldn’t have to increase the coverage of Medicaid.”

Mr. Choper said that the Supreme Court had never before struck down a spending programme in seventy-five years. “The Court recognised that programs like this induce or tempt or persuade states to go along. And, after all, they are getting all the benefits for the people in the states and they were paying a relatively small amount of money. So, every state had gone along with the Medicaid program to this point. But, on this Medicaid expansion in 2010, they didn’t want to commit themselves to great future costs. There was great controversy about this, and the Court had always said that you could induce, tempt, or persuade states to do this, but they could not be coerced or forced into doing so.

“And for the first time ever, the Court found that a spending program was coercive because the normal consequence of a state turning it down is that they simply turn down the additional money. Here, they would have to turn down not only the additional money, but all other money that they were presently getting for Medicaid. Statistics showed that this was such a large program even back then, that it accounted for ten per cent of the average state’s budget. Here, once again the Court, by a seven-two vote (two of the liberal Justices joined Chief Justice Roberts, and the four conservative justices didn’t join his opinion, but agreed with the end result), said that the program was coercive.”

The way the Justices voted

President George W. Bush signs the commission appointing John Roberts as the seventeenth Chief Justice of the United States. The image above is from Wikimedia Commons.

President George W. Bush signs the commission appointing John Roberts as the seventeenth Chief Justice of the United States.
The image above is from Wikimedia Commons.

The big question in the media after the decision was why Chief Justice Roberts (well identified as part of the conservative wing of the Court) changed his vote and only on one provision – the taxing power. On that point, the other four conservative judges had dissented very strongly. Chief Justice Roberts was joined by the four liberal judges, so it was a five-four decision under the taxing power and the individual mandate.

“That really was the key, operationally, in terms of the implications going forward (upholding the individual mandate and striking down the Medicaid expansion). So, the question of why Chief Justice Roberts did this is very difficult. There was some speculation, supposedly inside information, which is extraordinarily rare in the United States, to have a leak from the Court about how they decided and how people voted, and why they voted. I don’t know that it’s happened more than two or three times, certainly not more than twice in my professional life, and never right after the case. Sometimes, fifteen years later, someone writes a book about what happened, but that’s another matter. And later, after everyone has died, you do get things like that put out, but not then (immediately after the case). And the story was that Roberts originally voted one way and he changed his mind. I don’t know how he originally voted, and I have some questions as to whether other people really know as well.”

“I had predicted earlier that they would uphold the mandate and that Chief Justice Roberts would vote in favour of it, but my prediction was that he would not be the fifth vote to do so, but the sixth. And one of the other least conservative leaning Justices, Justice Anthony Kennedy, would have voted for it (to uphold the mandate) and Roberts would have voted then to make it more than a five-four ideologically split Court. And I think, maybe that’s what he did here. That even if he had to cast a deciding vote, he didn’t want the Court’s five conservative Justices to strike it down over the strong dissent of the Court’s four liberal Justices and make the Court seem like it is too attuned to politics.”

Implications

“Let’s take the Commerce Clause. They struck this down – Congress doesn’t have the power to force someone to enter commerce. They said that this was unheard of for Congress to have ever done this, since the beginning, over its 215 years. So, I would say that it was quite unusual, and therefore I don’t think it has much significance – it says you cannot force someone to do something, and Congress virtually never does that anyway. So far as the taxing power is concerned, I think that was the most conventional interpretation of any of the Constitutional provisions they gave.”

“So, it is not very clear as to when a regulation becomes a tax. They have a number of criteria. I myself think that the most important criteria is that it doesn’t raise any money. If it doesn’t raise any money, it’s a regulation and not a tax. And if you think about that for a moment, it’s simple. Why would a tax raise no money? It was because it was so high that everyone avoided it by altering their conduct. Then, it didn’t simply alter conduct and give people some free choice – it gave people no choice, no realistic choice. This one raised lots of money.”

“I think the most important Constitutional provision was the Spending Power. This was the first time that they ever found that a federal expenditure was coercive, that it forced individuals to do something to get the benefit of the subsidy, or that it forced states to do so. And I think that this is a fairly limited precedent. But you just don’t know because coercion doesn’t lend itself to a precise definition, it’s a matter of judgment. I did think, that this was quite coercive, that is, if a state didn’t participate, it lost all of its Medicaid, ten per cent of their budget. This, I think, was pretty plainly coercive. And doctrinally, it had some potentially important implications, but it was nothing like the case, for example, that said a woman has a constitutional right to terminate her pregnancy. That affected thousands, hundreds of thousands, maybe millions of women every year, for whom abortion was illegal.”

 

(Akshay Sreevatsa is a Features Writer at myLaw.net.)

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