Archive for the ‘Law’ Category

Debate on Lokpal

August 23, 2011

Through a colleague’s email alert, I came across this site today — which might interest some of you:

The debate surrounding the creation of the office of Lokpal at the centre has really not been a debate at all. It’s more like a battle of attrition between two entrenched, polarised positions whose proponents seem disinclined to engage in any meaningful way.

Towards creating a genuine debate, the National Campaign for People’s Right to Information (NCPRI) has circulated a letter and documents. To this end, resources relating to the genesis, contents and issues relating to the various drafts of the Lokpal Bill are linked below.

Take a look!

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Morning miscellany: Madras madness and upma puranam

February 20, 2009

Vikram Raghavan at Law and other things is upset:

Almost 100 years older than the Supreme Court itself, the Madras High Court has been a grand symbol of our country’s commitment to justice and the rule of law. As a school boy and law student, I walked through those magnificent Indo-Sarcenic hallways of the High Court that reek with history, grandeur, and tradition. Having spent formative years as a legal intern there, the court is an indelible part of my legal imagination. It has greatly influenced my pride in what I’ve always considered to be the learned and noble legal profession and, indeed, in my conception of what is just, what is fair, and what is proper. Yesterday’s violent incidents shake those long-held beliefs to the core.

The fact that Vikram is upset is also made palpable by his unconscious use of the word “reek” while referring to the history, grandeur and tradition of Madras High Court.

In the other story this morning, this post of Arun Giridhar makes me crave for the Samba ravai upma (and, the fact that I showed up at the class at 8 in the morning without breakfast does not help me either):

On a very unscientific level, I had suspected once that upma made with fine semolina was digested more quickly (and consequently felt less filling) than upma made with coarse cracked wheat. It is nice to learn that there is a scientific basis for that hypothesis.

Time for a breakfast of vada if not upma, I guess!

Investigating and judging!

February 12, 2009

From the ever informative Law and other things:

On further reflection, I find that the question of suo motu power to recommend is inextricably tied with the question whether the CEC can exercise both the power to investigate and recommend, which is against the rule of natural justice. The Constitution enables him to recommend removal of an EC, but not to investigate his so-called misconduct. The CEC ought to have entrusted the task of investigation to his third colleague, or some other neutral person or persons. The mixing up of these two roles vitiates his recommendation.

Never paid attention to this aspect of natural justice!

Pakistan as a time for reflecting on the self

November 12, 2007

Harish Khare on lessons to India from Pakistani statecraft:

It may be that India remains the only stable democracy in this part of the world, but we are obliged to remember that our democratic habits and manners are under daily assault from different sources.

Frank Rich in NY Times compares the coup within USA with that at Pakistan:

We are a people in clinical depression. Americans know that the ideals that once set our nation apart from the world have been vandalized, and no matter which party they belong to, they do not see a restoration anytime soon.

Both the links via Arun Thiruvengadam at Law and other things, who also provides a commentary, and goes on to discuss if there could be any constitutional mechanisms that can be set in motion to arrest the down slide of democratic norms and procedures.

Update: Arun Thiruvengadam’s co-blogger Venkatesan at Law and other things begs to differ with Khare’s premise and his analysis:

Although civilian incompetence (which may be to a limited extent comparable to present day India) might have been a factor, it was not a decisive factor why Army took over the reins of Government repeatedly.

The Pakistan Army, another scholar Veena Kukreja remarks in her book (Contemporary Pakistan, Sage, 2003), entered the political arena with the explicit intention to ward off challenges to its alliance with the civil services and certain dominant social and economic classes. The theory of filling up the vacuum, to explain Army take-overs, may be too tempting to adopt, but in reality, it conceals several other factors.

As Khare notes, democracy has always been a messy arrangement. In Pakistan, it was not allowed to be so from the beginning because of peculiar historical circumstances. Khare’s analysis would have been convincing had Pakistan been a continuous experiment in democracy, and suddenly collapsing under the weight of intractable political confrontation. But that has not been the case. Pakistan’s present turmoil cannot be traced to any recent betrayal of public trust by politicians: it is a product of certain historical factors. Had India faced similar factors at the time of its birth, probably we might have faced similar consequences.

Update 2: Dilip joins his co-bloggers to argue that Khare’s and Venkatesan’s points are not too different, and that there is no serious conflict between the two:

Mr.Thiruvengadam, in a previous post, brought to attention a recent op-ed in the Hindu by Harish Khare on the lessons that constitutional actors in India can learn from the recent turmoil in Pakistan. Mr.Venkatesan, in his response, noted that these happenings being deeply rooted in historical events peculiar to Pakistan, an analogy with India is inapposite and the inferences erroneous. I find Mr.Venkatesan’s arguments largely correct and convincing. However, I do not see a major conflict between his post and Khare’s article probably because I interpret the latter’s views differently. I think Harish Khare’s lessons from Pakistan are these: (1) for a country to function harmoniously, it is necessary to have strong state institutions that also stay within their boundaries (2) a culture of confrontation can weaken institutions and cause them to lose popular legitimacy (3) if the lack of popular legitimacy of one institution is sought to be used by another as a necessity or a pretext to intrude into its domain in violation of the boundaries laid down, conflict is not only likely but inevitable. The analogy ends there. There is no suggestion that excessive political partisanship or judicial activism in India is likely to lead to a putsch by the army. His article, as I see it, is primarily focused on India and he finds a similarity only to the limited extent to which he can identify like problems with political legitimacy and inter-institutional conflict.

Freedom on the internet and Indian Government: where are those extraordinary MPs?

October 19, 2007

Dina at her blog Conversations with Dina tells about the recommendations of a recent parliamentary standing committee, and how these recommendations, once again, indicate that the Indian Government does not “get” the internet. Where are those Yale returned, smart, alert and passionate MPs, when we need them the most?

What is (and why) suspended animation of assemblies

October 10, 2007

President’s rule in Karnataka; assembly kept in suspended animation

Declares the Hindu today; have you ever wondered why the President, instead of dissolving the assembly, keeps it in suspended animation? I did today, and a bit of googling got me the answer (from another Hindu group publication, the Hindu Business Line — the piece itself is a couple of years old, though) along with a bit of constitutional history (and plenty of links to online resources):

A good place to start is http://indiacode.nic.in where you have a searchable Constitution. For a friendlier interface, however, there is http://www.constitution.org. The relevant Article is 356 on President’s rule in case of failure of constitutional machinery in States.

You may not find `suspended animation’ in the text. Nor does Article 356 speak expressly of dissolution of the Legislative Assembly, notes a Consultation Paper of the National Commission to Review the Working of the Constitution on http://lawmin.nic.in. Lawmakers have stipulated approval of Parliament for the proclamation of President’s rule.

Only after such approval, it will be open to the President to dissolve a Legislative Assembly, opines the paper. Until then, he can only keep it “in suspended animation”. If the House doesn’t okay the proclamation, “the Legislative Assembly springs back to life”.

The paper cites the views of Justices P.B. Sawant and Jeevan Reddy in the S.R. Bommai case, and also suggests amendment to Article 356. “It should be provided that until both Houses of Parliament approve the proclamation issued under clause (1) of article 356, the Legislative Assembly cannot be dissolved. If necessary it can be kept only under animated suspension.” A variant phrase, that is, though it may find mention in auto reviews too.

For the law-enthusiasts, there’s the Sarkaria Commission Report that had cautioned against a liberal interpretation of article 356 which would “reduce the States to mere dependencies and would cut at the root of the democratic, parliamentary, federal form of government.”

Digging on the research working paper circuit, you’d find a March 2004 thesis by K. Jayasudha Reddy and Joy V. Joseph titled, “Executive discretion and Article 356 of the Constitution of India: a comparative critique.” It traces the origin of Article 356 to the Government of India Act, 1935, where Sections 93 and 45 gave emergency powers to the Governor General and the Governor to exercise near absolute control over the Provinces.

Rewinding by more than half a century, one learns from transcripts of Constituent Assembly debates that it was not without protest that our founding fathers provided such powers in the Constitution. They relented when Dr B.R. Ambedkar assured them: “The proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President… will take proper precautions before actually suspending the administration.” In practice, though, suspended animation is no dead letter.

Interestingly, the phrase in question is used in the medical world. For instance, an article on www.ncbi.nlm.nih.gov reads: “Suspended animation has been suggested for presently unresuscitable conditions and consists of the rapid induction of preservation (using hypothermia with or without drugs) of viability of the brain, heart, and organism (within 5 minutes of normothermic cardiac arrest no-flow), which increases the time available for transport and resuscitative surgery.” Perhaps, our democracy too needs doses of suspended animation for resuscitation.

Take a look!

Copyright as the least efficient property system

June 8, 2007

Here is Lawrence Lessing on copyright (while discussing why stealing computers is not the moral equivalent of Google indexing books) (via B-squared):

…physical property systems have a host of techniques to assure that the property system is efficient. Copyright does not. Copyright is the least efficient property system constructed by government — which is saying a lot. And rather than continue sophomoric debates about who is “stealing” what, it’s about time that policymakers — and industry leaders — took responsibility for the inefficiency that copyright is.

Unreliability of eyewitness testimony

May 4, 2007

Frontal Cortex has a nice post on the unreliability of eyewitness testimony. I think Perry Mason would have been happy to see the study and its results:

“The attendant has identified a photograph of Gilly and they are going to take him to the morgue to identify Gilly.”

Mason frowned.

“That hits you hard?” Drake asked.

“That hits me hard,” Mason said, “because it’s one of those damned things that happen when the police force an identification…

–The case of stepdaughters secret.

U S Laws pertinent to blogging

May 3, 2007

Here is a blog post listing a dozen important U S laws every blogger should know; a must-read post. Via /. There are some surprises–the legal issues behind editing/deleting comments for example:

It may come as a surprise to many bloggers, but you do not actually own the user-driven content on your site. Instead, it is actually the copyrighted property of the author. The analysis is pretty straightforward; copyright law only requires that an author create an original work and write it out in order to grant that person a copyright. The fact that you do not own the user-driven content on your site can create a number of headaches for bloggers, such as an obligation to remove a comment whenever the author requests.

But by including a terms of service which spells out that you will have a license in all content posted in the site and more specifically that you will not have a duty to modify or withdraw posts but you may do so if you choose, you can ensure that you have effective control over the user-driven content on your site even if you do not have actual ownership of the content.

The one about the duty to monitor comments, and the liabilities might also be relevant to almost all bloggers. Take a look!