A New Era or A False Dawn: A Comment on the Code on Wages Bill 2017

by Saurabh Bhattacharjee

Labour reforms has been a part of the election manifesto of the Bharatiya Janata Party (BJP) for several General Elections now. Not surprisingly, the BJP-led National Democratic Alliance (NDA) Government tried to flag off the process of labour reforms soon after it assumed office in 2014. As part of this process, the Labour Ministry has sought to consolidate 38 central legislation into 4 Labour Codes – on Code of Wages, Code on Industrial Relations, Code on Social Security and Code on Occupational Safety, Health and Working Conditions. While preliminary drafts of most of these Codes are still undergoing pre-legislative consultation with various stakeholders, the Code on Wages Bill was introduced in the Lok Sabha in August 2017.[1] It has subsequently been referred to the Standing Committee on Labour for its comments.

The Code on Wages Bill seeks to unify 4 laws currently in force – the Minimum Wages Act, 1948; the Payment of Wages Act, 1936; the Payment of Bonus Act, 1965; and the Equal Remuneration Act, 1976 – into a single enactment. As the Ministry of Labour and Employment has noted, such codification of 4 statutes into one Code “will remove the multiplicity of definitions and authorities leading to ease of compliance without compromising wage security and social security to the workers.”[2] As such, the introduction of the Code is a commendable step and the Ministry must be lauded for its attempt.

Towards Universality

Very critically, the Code on Wages Bill seeks to extend the application of the Minimum Wages Act (MWA) and the Payment of Wages Act (PWA). MWA, as it stands now, applies only to scheduled employment and Section 12 of the Act obliges the employer to pay minimum wages only for a scheduled employment with respect to which a notification has been issued under section 5 of the Act. As a result, and as clarified by the Supreme Court in Lingegowd Detective & Security Chamber Pvt Ltd. v. Mysore Kirloskar Ltd.,[3] there is no obligation whatsoever to pay minimum wages for non-scheduled employments. Therefore, while the Supreme Court of India had held that every citizen is entitled to minimum wages under Article 23 of the Constitution,[4] a large number of workers paradoxically remain outside the ambit of the MWA and do not have a statutory right to minimum wages.

The Code on Wages Bill dispenses away with this distinction between scheduled and non-scheduled employments and seeks to make the right to minimum wages a universal statutory right in so far as Section 5 of the Bill uses the word ‘employees’ without any qualification.  The extension of the Code on Wages Bill to all employees is a ground-breaking step and can truly translate the observation of the Supreme Court of India that every citizen is entitled to minimum wages under Article 23 of the Constitution of India into a reality.

Similarly, the PWA, a statute that deals with timely payment of wages and permissible deductions from wages, currently applies only to a limited set of establishments specified in section 1 (4) of the Act or notified by the Appropriate Government. Therefore, a significant number of workers do not have the protection of this statute. The Code on Wages Bill extends these provisions all establishments. There is no threshold clause provided for application of the Bill to any establishment. Thus, the artificial exclusion of establishments between notified and non-notified establishments is being sought to be eliminated. This will dramatically expand the number of workers who will have the benefit of wage protection laws and is a ground-breaking step that must be welcomed.

However, there are certain features in Code, most notably, its definition of employee and its silence on public works programme, that may belie the promise of universal application of wage protection laws.

Definition of Employee

The definition of ‘employee’ under section 2 (f) covers all persons employed on wages by an establishment to do any skilled, semi-skilled or unskilled, manual, operational, supervisory, managerial, administrative, technical or clerical work except for member of the Armed Forces of the Union. This definition is relatively broad since it includes managerial and administrative functions within its scope.

Nonetheless, while the terms used like ‘manual’, ‘unskilled’, ‘skilled’, ‘technical’, ‘operational’ or ‘clerical’ are very broad, they have been subjected to comparatively narrow interpretation by the judiciary in recent cases. For example, the Supreme Court has held that school-teachers are not embraced within the fold of the MWA.[5] Similarly, creative artists and professionals have been excluded from the ambit of these terms under the Industrial Disputes Act 1947. As a result, there is a danger that even though the Code seeks to universalise minimum wages by jettisoning the category of scheduled employment, a limited interpretation of definition of ‘employee’ would exclude several workers from the ambit of the Code.

It is also submitted that in so far as minimum wages has been held to be a constitutional entitlement of every worker by the Court of India,[6] imposition of a qualification on the definition of employee on the basis of nature of work defies logic. If minimum wage is indeed a matter of right for all employees, then it should be applicable to all regardless of the nature of their work. In other words, a definition similar to that provided in Payment of Gratuity Act 1972 and which covers all employees, irrespective of the kind of their work, may be more suitable of the Code on Wages has to be truly universal in its scope.

 

Application of Minimum Wages to Public Works Programmes

Application of MWA to public works programme has been a bone of contention, especially in the context of the National Rural Employment Guarantee Act (NREGA). Section 6 of that statute allows the Central Government to delink the wages under the NREGA Programme from minimum wages. In fact, a Committee constituted by the Central Government recently found that the NREGA wages were less than the prescribed minimum wages in fifteen states.[7] Further, the Committee rejected the need for revising the wages under the NREGA programme to match the minimum wages.[8]

This is in brazen disregard of the ruling of the Supreme Court which had held that non-payment of minimum wages amounts to forced labour.[9] Indeed, it has been held that the obligation to pay minimum wages extends to public works programme as well. In Sanjit Roy v Union of India, the Supreme Court held that minimum wages have to be paid for a drought relief programme and observed:

Every person who provides labour or service to another is entitled at the least to the minimum wage and if anything less than the minimum wage is paid to him he can complain of violation of his fundamental right under Article 23. . . The State cannot under the guise of helping these affected persons extract work of utility and value from them without paying them the minimum wage. Whenever any labour or service is taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least, minimum wage to such person on pain of violation of Article 23.[10]

The applicability of minimum wages law to public works programme and particularly to NREGA in the context of Article 23 of the Constitution has been reiterated by the Karnataka High Court in Karnataka Prantya Raita Sangha v. Union of India[11] and the Supreme Court in Union Of India & Ors. v. Karnataka Prantya Raita Sangha & Ors.[12]

Yet the controversy on linkage between NREGA and minimum wages has persisted. Unfortunately, the Code on Wages Bill is silent on this controversy. The Code’s failure to articulate an explicit right to minimum wages for workers under the NREGA programme undermines its stated objective of achieving universality in payment of minimum wages. A Code can scarcely be considered universal if it excludes the 10 crores workers, currently engaged by NREGA programme across the country.[13]

 

Fixation of National Minimum Wage: Undermining Federalism

One of the major changes that the Code will usher in is the introduction of statutory National Minimum Wage (NMW) for different geographical areas. Right from the 28th Indian Labour Conference onwards, a National Minimum Wage has been discussed and recommended in several National Labour Conference sessions – a forum for the Union Ministry of Labour and Employment and State Labour Ministers. The National Commission on Rural Labour (NCRL) had also recommended the adoption of a National Minimum Wage in 1991. As the Ministry has noted, “it will ensure that no State Government fixes the minimum wage below the National Minimum Wages for that particular area as notified by the Central Government” and thereby prevent a race-to-bottom. Therefore, this measure is not a day late and can strengthen the legal regime on minimum wages.

However, introduction of this statutory national minimum wages may raise legitimate concerns about impingement of federal autonomy since state’s prerogative to fix minimum wage rates would be substantially curtailed. It is undoubtedly a case of legitimate intrusion that is designed to only provide a baseline minimum below which states cannot fix the wage rate. Thus, the Code only minimally impairs and does not eliminate state’s freedom to fix the appropriate wage rate.

Nonetheless, it is important to take on board the concerns of state governments in fixation of National Minimum Wages. Section 9 (3) provides that the Central Government may obtain the advice of the Central Advisory Board. However, there is no positive obligation to consult state governments. This is a significant anomaly and goes against the principles of cooperative federalism that has shaped so many of India’s labour legislations. While introduction of national minimum wage is indeed commendable, providing for a statutory mechanism for consultation with state governments, or at the very least, State Advisory Boards contemplated under the Code would go a long way in assuaging concerns of state governments regarding erosion of federal autonomy.

 

Conclusion

The Code on Wages Bill is an impressive attempt to codify the four central statutes on wages and bonus into a uniform Code. While the discourse on labour reforms and codification of labour laws have largely centred around dilution of labour rights, the Code Bill stands out as an exception in so far as it breaks new ground in its attempt to remove threshold exclusions that apply to Payment of Wages Act and the Minimum Wages Act. Further, the introduction of national minimum wages may prevent a race-to-bottom between states to attract further investment. Therefore, the Code may expand the scope of wage security that workers in India currently enjoy. However, the deficiencies highlighted in this note are significant hurdles in this regard. Unless these are addressed by the Parliament, the objective of full wage security for workers may not be realised through this Code.

 

[This piece is based on a Comment submitted to the Parliamentary Standing Committee on Labour and Employment on the Code Wages Bill 2017]        

 

[1] The Code on Wages Bill 2017 (Bill No. 163 of 2017) available at http://labour.nic.in/sites/default/files/Code%20on%20Wages%20Bill%202017-As%20introduced%20in%20Lok%20Sabha.pdf

[2] Ministry of Labour and Employment, The Code on Wages Bill 2017, September 5, 2017, http://pib.nic.in/newsite/PrintRelease.aspx?relid=170541

[3] (2006) 5 SCC 180

[4] People’s Union for Democratic Rights v Union of India (1982) 3 SCC 235

[5] Haryana Unrecognised Schools Association v State of Haryana (1996) 4 SCC 225

[6] Sanjit Roy v Union of India (1983) 1 SCC 525

[7] Shalini Nair, MGNREGA Wages Less than Minimum Farm Wages in 15 States: Panel, Indian Express, July 10, 2017, available at http://indianexpress.com/article/india/mgnrega-wages-less-than-minimum-farm-wages-in-15-states-panel-4743412/

[8] According to Central Panel, Minimum Wages in MGNREGA Will Increase Gender Inequality, The Wire, September 11, 2017, available at https://thewire.in/176106/mgnrega-minimum-wages-women/

[9] People’s Union for Democratic Rights, supra note 4.

[10] Supra note 6, 533-534.

[11] MANU/KA/1139/2011

[12] MANU/SCOR/26392/2014

[13] Ministry of Rural Development, MGNREGA at a Glance, available at http://mnregaweb4.nic.in/netnrega/all_lvl_details_dashboard_new.aspx

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Has the ‘new’ S. 498A IPC Become Cruel to Women?

by Abhijeet Singh Rawaley

Background

In Rajesh Sharma & Ors. v. State of Uttar Pradesh & Anr., a division bench of the Supreme Court of India, comprising Justices A. K. Goel and U. U. Lalit, was asked “whether any directions… [were] called for to prevent the misuse of Section 498A, IPC.” The provision is intended to come to the rescue and aid of women who have been treated with ‘cruelty’ by their in-laws. ‘Cruelty’ is defined as any conduct which either forces a woman to commit suicide or to cause grave injury to herself or harassment with a motive to extract dowry of any property or valuable security. The cognizable, non-bailable and non-compoundable offence carries a maximum punishment of imprisonment for 3 years.

A Union Home Ministry circular has noted that S. 498A is not being used as a “shield” of defense, but as a “weapon” for attacking their husbands and his relatives by “disgruntled” wives. In this case, Justice A. K. Goel, writing for the Court, lamented the “omnibus allegations” that emerge under the garb of S. 498A against all relatives of the husband, which according to him ought not be taken at their “face value.” A.S. Nadkarni, ASG, who was assisting the court as an amicus curiae, noted (in para 7):

“…that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple.” (Emphasis supplied).

Three judgments of the Supreme Court were cited to bring home the point of judicial recognition of misuse of S. 498A (Sushil Kumar Sharma v. Union of India, Preeti Gupta v. State of Jharkhand, Ramgopal v. State of Madhya Pradesh). This was not the first time that directions or guidelines were passed to prevent the misuse of S. 498A. Other than the Supreme Court, the Delhi High Court has also issued directions in this respect. In 2014, the Supreme Court, in Arnesh Kumar v. State of Bihar, observed the casual manner in which the husband and his family members had been arrayed in the case, and directed that the police should not automatically arrest the husband or his relatives on the lodging of a complaint under S. 498A. Further, Magistrates should not authorize further detention in a callous or mechanical manner. Failure to adhere to these directions could provoke departmental action against both the actors.

I argue that the 2014 directions issued in Arnesh Kumar should be given some time to prove their efficacy and the judgment in Rajesh Sharma is a superficial, hasty and an overblown response to a problem that has been addressed already. The latest ruling creates a ‘new’ S. 498A altogether by introducing a formerly envisaged procedural impediment to accessing the substantive penal law remedy.

Issuance of Directions and Structural Re-design

The directions issued by the Courts can be classified into two types. One set of prima facie directions endeavor to recast the institutional design and structural constitution for investigating complaints alleging offence under S. 498A. Among other things, the Court has proposed to set up at least one Family Welfare Committee (“FWCs”) in every district under the supervisory control of the District Legal Services Authority (“DSLAs”). Preferably, the FWCs ought to be composed of three members out of able and willing “para legal volunteers/social workers/retired persons/wives of working officers/other citizens,” and if selected, they may be imparted additional training and paid an honorarium. All complaints under S. 498A received either by police or by magistrates must be referred to an FWC which will further confer and interact with the parties and after forming an opinion as to the facts revert to either police or the magistrate (depending on who referred the complaint to them). This has to be carried out within 30 days from the date of receipt of the complaint. As an unbinding principle, no arrests should to be effected before the receipt of this report from the concerned FWC.

The other set of directions relate to improvisation and sensitization of the existing mechanism. The Court asked for the designation of specific police officers to deal with investigations relating to commission of offences under S. 498A. Such officers may also be trained for this purpose. It was also advised that the complaints dealing with only a matrimonial discord may be compromised. Bail should be the norm, the application for which ought to be decided in one day. The district judge may also have the power to order consolidation of multiple proceedings provided that all of them relate to one matrimonial relationship. Personal appearances of family members may be dispensed with and video-conference may be adopted in appropriate cases. Lastly, the Court clarified that these directions shall not apply where the facts entail “tangible physical injuries or death.”

I attempt to primarily problematize the first set of directions as they plummet the “normative” independence of law and legal proceedings. I am in favour of only “cognitive” influences from the social world acting on the law. A normative overbearing of law with social constructions is bound to work against the interests of socially vulnerable groups such as women.

Social Facts or Perceptions Turning into Judicial Recognitions

At several points, the judgment laments the misuse of S. 498A and employs a language alien to routine adjudication. It is trite that judges speak through their judgments, and thus, we must be cognizant of what the do with what they say. The following observations by the bench are so casual that they can easily be passed off as any layman’s comment:

“This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.” (Emphasis supplied)

The patriarchy resounds itself through judicial dictum to the point where the Court, through these directions, seems to overrule and override genuine instances and complaints of cruelty under S. 498A by alluding to “violation of human rights of innocent” men. In this regard, the Court seems to have lost sense of its role as a mediator and balancer of interests in aid of justice. By placing an additional step in the whole process of prosecuting under S. 498A, the Court has, in some measure, incremented the burdensome process of invoking a criminal law remedy.

The way in which the matter has been dealt with inter alia seems to have institutionalised a perceptive presumption against women in a sense that complaints will be frivolous, trivial or vexatious unless the FWC comes to the rescue of a woman and opines otherwise. The Court also appears to have lost sight of the traumatized woman who files a genuine complaint and is left to fall apart and face not the legal and judicial officers, but the FWC which attempts to mirror social forces that may be evil or benign, but not purely legal.

Making the Law Normatively Open

A prominent contribution to sociological jurisprudence is by Niklas Luhmann according to whom while the system of law must remain ‘normatively closed,’ it ought to be open only ‘cognitively.’ It is argued that law must learn from other disciplines and knowledge systems to the extent of their worth. However, it must develop its own norms and rules and thus be in the state of “transversality” as a mode of knowledge transfers as explained further by Gunther Teubner.

The structural redesign proposed by the Supreme Court blemishes the already weak law enforcement with an additional procedural grade which the women will have to traverse in order to put the wheels of justice into motion. The Court’s call to “civil society” enjoins legal processes with social influences. Excessive social influence(s) and civil society involvement may trump the very purpose of having judiciary as an independent arbiter on complex legal questions manifesting human predicaments such as cruelty to women. The FWCs will come with their own baggage of biases, dispositions, and predilections, and it might so happen that they may mirror as constitutionally constituted modern-day “khap panchayats.

Placing an additional layer in an already insurmountable challenge to step the ladder up to Courts comes as a disappointment to most women. To some extent, the directions laid down in 2014 could have been seen as making the law “cognitively open” since they did not tamper with the judicial rubric. FWCs may open floodgates for delay and could possibly stifle the administration of justice. They may also influence the process qualitatively if their opinions venture into evidentiary processes of the court. Despite a clear direction that the police or magistrate will consider the FWC report on its own merit, the evidentiary status of this report is unclear.

The judgment relies on statistics and figures of the National Crime Records Bureau from 2012 when the directions in Arnesh Kumar had not even witnessed the light of the day. The other evidence adduced (243rd Law Commission Report and the 140th Report of the Rajya Sabha Committee on Petition) possess this deficiency as well. In these circumstances, it can be said that the Court seems to have acted in haste and has mindlessly crafted something very superficial that has the potential to undo and alter the efficacy of investigations by the police and independent adjudication by courts. Such overblown activist tendencies must be avoided especially in a scenario already covered by both legislation, and previous judicial directions. 

The Way Forward

The better part about this judgment is that the Court is not setting the directives in stone and is flexible in its approach vis-à-vis the setting up of FWCs. Setting the deadline at March 31, 2018, the NALSA has been asked to report on the functioning of the proposed system, and suggest changes if necessary, pursuant to which the matter shall be listed before the Court again. Thus, the in-built review mechanism to be carried out by the Court and NALSA kindles the hope that while the old structural design will revive, more solemn efforts shall go into making courts cognitively open through adequate sensitization and training of personnel while maintaining the “self-normativity” of juridical processes. We can hope that the ‘cruelty’ done to women by the ‘new’ procedurally burdened S. 498A shall be undone.

[Abhijeet Singh Rawaley is a third-year B.A. LL.B. (Hons.) candidate and a Bar Council of India Trust Scholar (2017-18) at NALSAR, Hyderabad]

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External Aid Of Interpreting Statutes – Speech Orated By Ministers Who Present The Bill

by Saniya Mirani

The Indian judiciary resorts to two types of aids in interpreting a statute – internal and external aids to interpretation. Internal aids include the preamble, marginal notes, and headings of the relevant statute, etc., while external aids include legislative history, and surrounding social circumstances, amongst others. The external aids are only resorted to once the internal aids fail to resolve any ambiguity. One such external aid is the speech made by a minister who moves a legislation in the parliament. In my opinion, the evidentiary importance given to such speeches by the judiciary has increased from 1950 to 2015.

In the 1950s and 1960s the apex court had expressed two positions. According to one line of cases,[1] the speech made by a sole minister is unable to capture the intent of majority vote that led to the legislation being passed.[2] Instead, the speech only indicates the minister’s “subjective intent”.[3] Therefore, these cases held the minister’s speech as inadmissible evidence in interpreting a statute. Juxtaposed against this, was the case of Chiranjit Lal Chowdhuri v. Union of India. Justice Fazl Ali in this case, expressly relied upon the speech presented by Minister for Industry who had sponsored the bill (later a legislation) in question to understand the background of the dispute. A similar position was taken by dissenting Judge Shah in Shyamlal Mohanlal v. State of Gujarat:

“In construing the words used by the Legislature, speeches on the floor of the Legislature are inadmissible. I do not refer to the speech for the purpose of interpreting the words used by the Legislature, but to ascertain the historical setting in which the statute … came to be enacted”

Thus, by end of 1960s, there existed two views. The first view, regarded such speeches to be completely inadmissible. The second view, on the other hand, regarded these speeches inadmissible for the purpose of interpreting the statute. However, the speeches were considered relevant to decipher the historical background of the statute.

In my opinion, the second opinion was the advent of a new evidentiary threshold for speeches. This threshold, nevertheless, was harmonised with the first view by ensuring that a statute was not given a particular interpretation on the basis of a single speech orated during its formation. The speech was merely used to understand the context in which a given statute was being passed. In doing so, the court always respected the reasoning given in the first line of cases that the subjective intent of one speaker should not be imposed to cut down on the generality of the statute.[4]

From 1970s, the judicial trend has favoured the second view. In State of Mysore v. R.P. Bidap Justice Krishna Iyer, speaking for the Court, stated that the first view is being whittled down and that there is no harm in admitting all extrinsic evidence that is logically relevant, though only when ambiguities exist in the plain meaning interpretation. Justice Iyer carried forward this view and explicitly held in B. Banerjee v. Anita Pan that one can no longer ignore the “voices from parliamentary debates” and that it is essential to listen to the “legislative authors when their artefact is being interpreted”. This view has been repeated in a number of judgments since then.[5] However, it must be noted that the Court has never used the speeches to directly interpret a statutory provision but only to decipher the context in which the statute was passed.[6]

On January 2, 2017, the Apex Court delivered a much-debated judgment of Abhiram Singh v. C.D. Commachen, which interpreted Section 123(3) of the Representation of People Act, 1951 (hereinafter, RPA). Section 123(3) defines a “corrupt electoral practice” as:

“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or.”

The issue before the court was whether the word “his” in the section referred to – (i) the religion of the candidate (or his agent) making the appeal, (ii) the religion of the elector, or (iii) both (i) and (ii).

Both the majority opinion[7] and dissenting Judge Chandrachud relied on the speech given by the law minister A.K. Sen when an amendment to Section 123 RPA was being passed. The majority relied on the speech to decipher the reason as to why the amendment was made.

However, upon the careful perusal of Justice Chandrachud’s opinion, it seems that he uses the law minister’s speech to interpret what the term “his” means. He states:

“The speech of the Law Minister, who moved the Bill leaves no manner of doubt that the expression ‘his’ referred to the religion of the candidate (or his caste, community, race or language) for whom votes were sought or of the candidate whose election was sought to be prejudicially affected by an appeal to refrain from voting.”

I agree that the judge later goes on to use the speech to understand the mischief that RPA seeks to resolve. However, the above-mentioned portion of the judgment, nevertheless indicates, that an interpretative activity has been undertaken by use of law minister’s speech. If that was the intention of the learned Judge, then this would further strengthen the evidentiary importance given to speeches orated by movers of respective legislations. It would mean that, from the time these speeches were held to be inadmissible, we have come to a situation wherein these speeches can be used to interpret an entire provision in case of an ambiguity.

In my opinion, such a situation would be precarious. It would amount to imposing the view of a person who sponsored the legislation on everybody else to whom the statute applies. In case of legislations passed long ago, it would result in the imposition of a view that may not hold relevance in present times. Therefore, the speeches orated by ministers should be used minimally and carefully so as to ensure that the generality of the statute is not hindered by opinions of a few.

(Saniya Mirani is an Associate Editor at the Journal of Indian Law and Society)

[1] Held in cases such as A.K. Gopalan v. the State of Madras 1950 AIR 27, State of Travancore v. Bombay Company Limited AIR 1952 SC 366, Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. 1952 AIR 369, and State of West Bengal v. Union of India (1964) 1 SCR 371.

[2] Aswini Kumar Ghosh Case, Supra note 1.

[3] Ibid.

[4] This shift has been recognised by Justice Bhagwati in S.P. Gupta v. Union of India, ¶266 MANU/SC/0080/1981. “The learned Judge clearly held that while a speech on the floor of a legislature was inadmissible in ascertaining the real meaning of the word used by the legislature, the historical setting in which the statute was passed could doubtless be admissible. This decision, therefore, make a clear departure, on the point of admissibility of historical setting, from the minority dissenting judgment of Das J. as indicated above.”

[5]Sole Trustee, LokaShikshana Trust v. Commr. of Income-tax, Mysore, MANU/SC/0273/1975; K.P. Vergese v. Income Tax Officer Ernakulam, AIR 1981 SC 1922; K.S. Paripoornan v. State of Kerala, 1995 AIR 1012; A. Manjula Bhashini and Ors. v. Respondent : The Managing Director, A.P. Women’s Cooperative Finance Corporation Ltd. and Anr., 2009 8 SCC 431.

[6] Ibid; See also, Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

[7] The one delivered by Judges Madan B. Lokur; Justice Nageswara Rao.

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Conversation with Mr. Pradeep S Mehta, Founder Secretary General of Consumer Unity & Trust Society (CUTS International).

Mr. Pradeep S Mehta is the founder Secretary General of the Jaipur-based Consumer Unity & Trust Society (CUTS International), a leading economic policy research, advocacy and networking, non-governmental group in India, with offices in Nairobi, Lusaka, Accra, Hanoi and Geneva.

In April, 2012, Mehta has been nominated to the High Level Stakeholders Panel of WTO on Defining the Future of Trade. He has been Honorary Adviser to the Commerce & Industry Minister of India and NGO Adviser to the WTO Director General from 2002 to 2005.

Recently he has been a Member of the Planning Commission’s Steering Committee on Industry and Chairman of its Task Force on National Competition Policy. Further, he has also Chaired Ministry of Road Transport and Highways’ Working Group on Road Safety Education.

A detailed profile of his can be found here.

He kindly agreed to an interview with me [Ayushi Singhal, Editor]. Following are the excerpts from the interview. Special thanks to Ms. Saniya Mirani, Mr. Ananya Kumar and Mr. Chaitanya Sundriyal (Associate Editors), for their assistance in conducting this interview.

Q:      CUTS has now been in existence for nearly 30 years, please tell us something more about it. Do you think it has been able to perform and achieve the aims you had planned for it?

A: We have been in existence for over 33 years, having been established in 1983-84. Please see our Vision Document on our website which speaks about our past and imagination for the next twenty years i.e. fifty years. Much of our growth has been organic and demand driven, rather than envisaged as such when we were founded. We have ensured that whatever we did was in harmony with our Mission and Vision Statements.

We are currently preparing a document which captures all our achievements over the past 33 years, but that will take few more weeks.

 Q:     In your opinion, is competition law in India keeping pace with the country’s economic development?

A: Yes, but the implementation could have been better. The implementing body, Competition Commission of India suffers from various handicaps. The biggest one is that it has to recruit staff from other government services, and even its members and chairman are former government servants. This affects its ability to think afresh and deal with market failures effectively.

There are other problems also, but that would need a whole chapter to detail.

Q:    The Competition Act provides for exhaustive forms of combinations under Section 5, namely, acquisition of shares or voting rights; acquisition of control; merger or amalgamation. However, we have seen in the past that the Competition Commission has included other forms of combinations such as Joint ventures and Strategic Alliances, under the said section. In your opinion, is it a step in the correct direction?

A: Yes.

Q:    The introduction of ‘data exclusivity’ in India as a separate intellectual property right from patents, forms one of the most contentious debates considering that India is one of the leading exporters of pharmaceuticals.  The precursor to data exclusivity’s introduction, Article 39.3 of the TRIPS Agreement states:

“Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.”

This protection provided in TRIPS can be interpreted in two ways. First, it can be interpreted to include a minimum standard of protection against unauthorised use or disclosure. This standard is accepted by most developing nations and the generic industries. The second interpretation includes a higher standard of introducing a ‘data exclusivity’ provision wherein even the regulatory authority cannot rely on the testing data submitted by the first applicant to approve subsequent applications, even if the latter products have equivalent chemical composition and effects in body. This interpretation is accepted by most developed countries and multinational pharmaceutical companies.

In 2007, the Satwant Committee gave its view that India needs to only abide by minimum data protection i.e. non-disclosure of test data and protection against fraudulently obtained data. With respect to higher standards, it was stated that it could be done in the longer run. Post the committee gave its views; after EU-FTA India received pressure talks and by US government as well to introduce a higher standard.

In this scenario, do you think that the recommendations given by Satwant committee for the ‘transitional period’ have been fairly implemented since then, and whether 9 years hence it is time for India to consider introducing Data Exclusivity with respect to pharmaceuticals?

A: According to a plain reading of Article 39.3 of the TRIPs Agreement, Members (read national regulatory authority) are obliged to protect against unfair competition the undisclosed test or other data, which are required to be submitted in order to obtain marketing approval for pharmaceutical (and agro-chemical) products that have utilised New Chemical Entities and origination of which has involved considerable effort. Members  are also obliged to protect such data against disclosure, except where it is necessary to protect the public, or unless steps are taken to ensure that such data are protected against unfair commercial use upon such disclosure.

In other words the Article 39.3 of TRIPs provides data protection subject to the following:

  1. Data submitted at time of obtaining marketing approval, qualifies for protection.
  2. Data should pertain to a product which utilises New Chemical Entities (NCEs).
  3. The data should be undisclosed i.e. if it is already disclosed elsewhere in the world, no protection can be provided.
  4. The origination of data should have involved considerable effort.

It is also clear that the protection of data is against “unfair commercial use” and mere reliance on the data by drug regulator to grant subsequent marketing approvals to other generic manufacturers shall not constitute breach of data protection. In India, the drug regulator (i.e. Drug Controller General of India (DCGI)) relies on bio-equivalence and bio-availability data, which cannot be termed as “unfair commercial use” in terms of Article 39.3. Therefore, Article 39.3 is virtually a non-obligation.

The ToR for the Satwant Committee says to “consider the steps to be taken by the Government in the context of the provisions of Article 39.3 of the TRIPs Agreement and to examine the issue as to whether data protection can be offered under the existing legal provisions or an appropriate new dispensation is required for this purpose”. Therefore, any recommendation by the Committee that is beyond Article 39.3, would also be beyond its mandate. Thus, with due respect, the Committee while recommending “data exclusivity” (i.e. data protection with non-reliance for a certain period) is beyond its mandate and should be treated as void ab initio.

Notwithstanding the above-said and leaving aside legal interpretations of Art39.3, India is free to adhere to data exclusivity if it wants to do so. Is the time ripe enough for India to do so?

To answer this, I would like to go with the following view undertaken by the CIPIH (Commission on Intellectual Property Rights, Innovation and Public Health) in 2006:

“Developing countries need to decide in the light of their own circumstances, what provisions, consistent with the TRIPs agreement, would benefit public health, weighing the positive effects against the negative effects. A public health justification should be required for data protection rules going beyond what is required by the TRIPs agreement. There is unlikely to be such a justification in markets with a limited ability to pay and little innovative capacity. Thus, developing countries should not impose restrictions for the use of or reliance on such data in ways that would exclude fair competition or impede the use of flexibilities built into TRIPs.”

So, in my view, before India goes for “data exclusivity” approach, it must first establish a “public health justification” for the same. This seems difficult because the ability to pay by a vast number of people still remains low; though India’s innovative capacity might have increased a bit.

Having said that, if India has to adopt data exclusivity in last resort or say because it gets a quid pro quo that is in the national interest, then care must be taken to provide some ‘safeguards’ and also to define the term “New Chemical Entity” narrowly. NCE, which is not defined either in Drugs and Cosmetics Act or the Patents Act, should be defined taking into account the spirit of S.3(d) of the Patents Act (i.e. entities that cannot be patented). In addition the definition of NCE should be ‘absolute’ in nature (i.e. chemical entity should be new to the world and not merely to India).

It would be better, however, if some novel pro-competitive methods are tried to compensate the originator of trial data instead of giving them ‘exclusivity’. For instance, the regulator while relying on originator’s data for granting approval to subsequent applicants, may ask such  applicants to pay certain amount/royalty for a fixed term so that it is not a free ride for them but that the originators could recoup some of its costs incurred in generating such trial data.

Q:      The introduction of Data exclusivity with regards to agro-chemicals was readily agreed by the Satwant committee. In furtherance of this, the government introduced the Pesticides Management Bill. Section 12(6) of the bill states

“The data submitted for the purpose of registration in respect of a pesticide under this section which has not been previously registered shall not be relied upon for grant of registration of the same pesticide in respect of any other person for a period of three years”. The standing committee has advised to increase this period from 3 to 5 years with a view that it would encourage the introduction of newer pesticide molecules in the country.

There exists an exception to this clause of non-reliance in cases of national exigency, urgency, public interest.

The bill is still pending for consideration in the Parliament. What would be your views with respect to the same?

A: The first question that arises is how India can differentiate between data protection approach in pharmaceuticals and agro-chemicals. Well, like every Member of the WTO, India also has right to implement TRIPs as per its requirements. Even USA has differential approach in data protection in pharmaceuticals and agro-chemicals.

Coming to the question, unlike the Ministry of Health, the Agriculture Ministry has been in favour of data exclusivity right from beginning either within the Satwant Committee deliberations or outside debates. Perhaps it is not damaging to agriculture sector and cost & benefit might be favouring data exclusivity. But such an approach could be detrimental to public health and Indian generic pharmaceutical industry.

One more reason could be the absence of vibrant local manufacturers of agro-chemicals, unlike that for pharmaceuticals where local manufacturers are vibrant and well organised. In addition, while pharmaceuticals are exported from India in large quantities, the same may not be true for agro-chemicals.

Q:     Based on your experiences while working with WTO and its panels, what is your opinion about India’s stand and its position in WTO? Specifically in the context of Nairobi Ministerial conference, what could have been improved on India’s end?

A: A lot has already been said about the Nairobi Ministerial. Our minister, Nirmala Sitharaman did try her best and we could not have managed a better outcome. Having said that, India must accept and acknowledge that the Doha Round is dead and let us focus on what we should do now both at the domestic level and in the international arena so that we can take stock and strategise for the future.

Going forward, India should actively engage in discussions on investment, government procurement, trade in services as joining the negotiations at inception will allow us to influence the negotiations. Importantly, we must raise our level of ambitions while negotiating trade and investment deals. At the bilateral and plurilateral level, we must swiftly conclude the negotiations with the EU, the European Free Trade Association (EFTA) and Australia, and the Regional Comprehensive Economic Partnership.

In conclusion, our international trade policy must be proactive, and not be defensive.

Q:     In your opinion, how successful Regional Comprehensive Economic Partnerships will be in mitigating India’s exclusion from other multilateral agreements like TiSA and TPP. As many negotiations are moving outside the WTO framework partly due to India’s obstruction, what else/more can India do to ensure that the stalemate in the WTO doesn’t undermine its progress in the global trade framework?

A: TiSA is not a multilateral agreement and the modalities of non-participants benefiting from the TiSA are not known yet. The agreements that are being negotiated outside the WTO are happening for many reasons, most important one being the ease of finding like-minded trading partners, or as said in trade jargon: coalition of the willing.

The mega-regional agreements like the TPP are bound to have an impact on non-members. CUTS has done a full study on the impact of such agreements on the Indian economy and it is available on our website.

To answer your question, India needs to swiftly move forward with the RCEP Agreement to reduce the impact from trade distortions, explore new markets for exports, and undertake domestic reforms to eventually comply with the high standards of the TPP. I believe that because there are seven countries common to RCEP and TPP, so gradually, the standards of TPP will creep into the RCEP.

Moreover, in the absence of RCEP concluding soon, some critical members of RCEP may get attracted to TPP and the geo-economic importance of RCEP will reduce. Given its rising clout, China may too join TPP. If that happens, then US will find it easy to attract other Eastern and South East Asian countries to join up, thus leaving India out in the wilderness. All this is subject to what the new Presidency, under Donald Trump, in the US has in mind, when it comes to power in January. 2017.

Yet, despite all these developments, India’s best interests are protected through the multilateral framework under the WTO. To keep it relevant, member countries, including India must acknowledge the changing global environment and take up issues that are important for the future and stop living in the past.

Q.     In what ways do you think trade agreements will change post-Brexit?

A: Brexit to some extent owes to the fact that the benefits of globalisation have not been distributive enough and have, in general, not reached in rural areas particularly farmers. It has also adversely affected manufacturing jobs in the west, who are no longer able to compete with imports from developing countries. It also has had some adverse effect on certain social sectors like health and environment. It calls for greater domestic reforms to ensure that the benefits of free trade are more equitably distributed in society.

It is likely that post-Brexit, trade negotiations would include social-economic agenda with more vigour and countries (including developed) demanding suitable policy space. However, we must watch the developments very closely.

Q:      The WTO is considered one of the more democratic of the International Organizations, considering it gives an equal say to all members, at least formally. This equality is often not manifested in practice, as the Western Economies get the longer end of the stick in most situations. Do you think it is possible for the WTO to be more inclusive?

A: Yes, it is true that at least formally, WTO is a consensus based, democratic organisation. The advanced economies have always tried to arm twist other countries to have their way. However, the times are changing. Countries like China and India are extremely important players in global trade and assert their relevance in every forum. WTO can be and should be more inclusive. At CUTS, we, as an organisation, have been voicing to make the system more inclusive, transparent and predictable for over two decades and will continue to do so.

In fact, after the collapse of the Cancun Ministerial in 2003, a new quad was born which included India and Brazil along with USA and EU, with China on the side but inside. This has become difficult for the US and EU to digest and hence they are trying to create a new differentiation of membership i.e. rich, emerging, developing and least developed countries. Their argument is that emerging economies like China and India should not enjoy the same privileges as  developing countries.

Q:      What is your opinion on US’ veto on reappointment of Judge Seung Wha Chang to the WTO’s dispute settlement body?

A: Vetoing Judge Chaang’s reappointment to the Appellate Body risks politicising the dispute resolution system and can endanger its independence. Many member countries, including India and the EU have rightly criticised US’ actions.

Q:     What would be your suggestions to the students planning to work for trade and competition policy related think tanks?

A: My suggestions to such students would be:

  1. To approach this subject area positively and dispassionately, and not sceptically.
  2. It is a rapidly evolving area and student must keep up with the developments to remain relevant.
  3. Visualise a multilateral competition framework arrangement that could inter alia help curb cross border market abuses and also reduce inequality between and within countries.
  4. Keep the ambition of negotiating multilateral agreement on trade & competition policy and in this regard keep drafting an agreement keeping ‘public interest’ in mind, and keep improving upon such a draft. Perhaps there could be inter/intra institution competition in such drafting.
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Remedying the Malady: Laws on Advance Directives in India

by Tejas Popat

Advance Medical Directive, (hereafter ‘directive/s’) or what is commonly known as a ‘living will’ is a document indicative of an individual’s wish to continue medical treatment or not when he is artificially kept alive.

Recently, the Health Ministry released a draft of, ‘The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill’ (hereafter ‘Terminally Ill Patients Bill’) for public comment. Section 11 of the Bill states that directives shall be void, of no effect and therefore not binding on doctors. This draft bill has been released at a time when a petition for declaring directives as legal and valid is pending before a Constitution Bench of the Supreme Court in Common Cause v. The Union of India. On the other hand, a bill which allows mentally ill patients to effect an advance directive was passed by the Rajya Sabha – the Mental Health Care Bill. It now awaits approval of the Lok Sabha. This has resulted in a contradictory position.

Presently, as mentioned above, two contrasting laws are in the pipeline. The Health Care Bill allows for Directives to be executed by an adult. This directive shall specify the way he wishes to be treated for a ‘mental illness.’ ‘Mental Illness’ has been defined in Section 2(s). On the other hand, the latest draft of the Terminally Ill Patients Bill also includes in its ambit mental illnesses. Though not individually defined, it finds place in Section 2(m) under the definition of ‘terminal illness.’  Therefore, the later law does not allow for directives uniformly while the previous one does.

Apart from that, there is an overlap in terms of its scope as both cover mental illnesses. There are no indicia for determining which bill shall make way for the other in that regard. The ‘special law’ test would also be of little help. In addition, the contradictory stand as to the validity of directives is a matter of concern as one would find justification for two exactly contrary acts, i.e. of acts under the guidance of a directive, of being bound by a directive or not and others.

The two legislations create two classes of people who are unable to give consent, one being those who would be covered under the Health Care Bill,able to execute a directive and the rest unable to do so because of them falling within the ambit of the new law. Thus, the peculiarity of a patient’s illness would allow or disallow him from exercising his right to execute a directive. In that respect, the Mental Health Care carves out an exception in the general law which would not recognize a directive. The rationale for creating an exception aren’t discernible from the draft of the bill. A challenge to the law under Article 14 then is a real possibility. In that light, a change in the draft Bill would suffice. This would not only bring the laws in conformity but also be a welcome step towards recognizing a vital right to effect advance directives. Or one could wait for the litigation to come to an end in the Supreme Court!

(I would like to thank Vasujith Ram and Ayushi Singhal for their comments and suggestions.)

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A Little (Less) Research?

by Vasujith Ram

In paragraph 160 of the judgment striking down the National Judicial Appointments Commission as unconstitutional, Justice Khehar writes:

“A little personal research, resulted in the revelation of the concept of the “legitimate power of reciprocity”, debated by Bertram Raven in his article – “The Bases of Power and the Power/Interaction Model of Interpersonal Influence” […] In addition to having dealt with various psychological reasons which influenced the personality of an individual, reference was also made to the “legitimate power of reciprocity”. It was pointed out, that the reciprocity norm envisaged, that if someone does something beneficial for another, the recipient would feel an obligation to reciprocate.”

The Justice further uses similar psychology based research by scholars Dennis Regan, Robert Cialdini and Laura Little to argue that the ‘favour’ of judicial appointment would induce feelings of ‘reciprocity’ (or loyalty) towards the executive (the person/body involved in the judicial appointment) – and hence it must be ensured that the executive has the least possible nexus with the final appointment of judges.

Here, I do not wish to point out any logical fallacy or an error in legal reasoning. Instead, I would like to highlight the use of social science research by the Supreme Court. The Courts must generally avoid the usage of social science research for two primary reasons – (i) Court are not competent to interpret and apply social science research: the simply do not have the requisite expertise; and (ii) social science research itself is constantly evolving, changing and is not completely reliable. Simply put, it is not a hard science. Recently, when a large team of international experts tried to replicate a 100 experiments published in the top psychology journals, it was found that only 36% of the studies could be replicated with results consistent with the original findings. The study was published in the prestigious Science magazine and led to considerable debate.

The Supreme Court itself has used social science to come to diametrically opposite conclusions on many occasions. In the context of commercial speech, there have been two landmark cases, Hamdard Dawakhana and Tata Press v MTNL. Both cases conceived of a democracy-based justification for free speech, and accordingly ruled on the constitutional protection available for free speech. In the Hamdard Dawakhana case, it was held that commercial speech is not constitutionally protected since it did not further democracy or any democratic ideas. The Supreme Court opined that a restriction of commercial speech was only equivalent to “depriving a trader from commending his wares” (there is contrary enormous literature, however debatable, arguing that economic freedom is useful for political freedom. In Milton Friedman’s magnum opus, Capitalism and Freedom, it is argued that strong dissenting thoughts could be disseminated only in a system with adequate resources – a market economy). On the other hand, in Tata Press v. MTNL, the Court identified advertisements as a cornerstone for a democratic market economy and opined that free flow of commercial information was crucial to a ‘democratic’ economy. It was argued that advertising revenue or subsidy was the ‘lifeblood’ for a democratic press and free media (to borrow the words of Justice Rehnquist from the Virginia State Board of Pharmacy case, the State is being asked to “hew to the teachings of Adam Smith”).

Scholarly opinion is not unanimous with respect to the use of social sciences in judgments. In the United States, ‘fact’ is classified in a twofold manner – as ‘legislative fact’ and ‘adjudicative fact’ (mentioned in Kenneth Davis’ influential article in the Harvard Law Review, ‘An Approach to Problems of Evidence in the Administrative Process’ (1942)). The latter refers to facts that pertain only to the immediate litigation or the respective parties. The former refers to facts which are used to determine broad questions of law or policy by the Courts. The argument has been that Constitutional or Appellate Courts can take ‘judicial notice’ of ‘legislative facts’ by disregarding rules of evidence. Therefore, social science material, which are ‘facts’ in one sense, could be introduced without the need to resort to traditional methods of introducing or settling facts. This theorization was in the backdrop of the introduction of the Brandeis Briefs, where the counsel (Louis Brandeis, who later became a Supreme Court Justice) introduced social science materials to justify a regulation on working hours for females.

Even in India, the issue has been debated before. Seervai famously argued that “The Constitution of India does not enact Mr. Justice Krishna Iyer’s Social Sciences”. According to Seervai, social science data was to be introduced only by way of expert testimony. Prof. Baxi, on the other hand, characterized Seervai’s model as “theoretically underdeveloped” and “misleading”. Seervai adopts the view of the legendary Justice Oliver Wendell Holmes from his decision in the 1905 case of Lochner v State of New York (the Supreme Court of the US struck down labour laws pertaining to limiting the number of working hours for bakers), where Justice Holmes held that the Fourteenth Amendment “does not enact Mr. Herbert Spencer’s Social Statistics”. Prof. Baxi relies on Justice Homes’ famous lecture from 1897, “The Path of the Law”, where he said, “the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV”.

In this blog, Senior Advocate Mr. Raju Ramachandran had opined that social sciences are an “important input” in the adjudicatory process. He however (and importantly) noted that it must be ensured that judges have a “proper and comprehensive” understanding of social science theories. This is particularly crucial since one of our basic premises here is that Courts do not have the requisite expertise to apply social science research.

Admittedly, the use of social science findings or assumptions may be unavoidable in many cases. For instance, cases dealing with socio-economic rights or discrimination as well as constitutional law principles such as narrow tailoring or proportionality usually necessitate the use of social science material.

In light of scholarly disagreement and the inevitability in many cases, a useful policy may be to evolve a doctrine of “social science avoidance”, similar to what is known as the doctrine of “constitutional avoidance” in constitutional law (see the opinion of Justice SK Das in Basheshar Nath v. CIT: “this Court should indeed be rigorous in avoiding to pronounce on constitutional issues where a reasonable alternative exists…”). In the US case of Ashvander v TVA, Justice Brandeis in his concurring opinion laid down several facets of constitutional avoidance. A key rule is that the Court is to decide a case on grounds of constitutional law only if there is no other ground on which the case can be disposed of. In case of social sciences, we may say: unless the case at hand cannot be adjudicated without reference to social science evidence, the Court must avoid recourse to social science research (or social science arguments). Moreover, if at all social science research is used, it must be done in a clear and transparent manner, such that scholars and future courts are able to critique, rebut or counter the findings or assumptions used in the judgment. To his credit, this something that Justice Khehar does in the judgment.

(I thank Upendra Baxi, Gautam Bhatia, Shambo Nandy and Sohini Chatterjee for discussions.)

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Conversation with Prof. Tom Ginsburg, Professor and Deputy Dean at the UChicago Law School

ginsburg_tomProf. Tom Ginsburg is the Leo Spitz Professor of International Law and Deputy Dean at the University of Chicago Law School as well as a Professor of Political Science at the University. He is a prominent scholar of comparative and international and has authored or edited several books, including Judicial Review in New Democracies: Constitutional Courts in East Asia (2003), The Endurance of National Constitutions (2009), and Comparative Constitutional Law in Asia (2013). He was recently in New Delhi to deliver a lecture at the University of Chicago Center on his upcoming book, Judicial Reputation: A Comparative Theory.

Prof. Ginsburg’s comparative work on judicial councils (i.e., judicial appointments commissions) has been cited by the Supreme Court in the leading opinion striking down the constitutional amendment and the statute instituting the National Judicial Appointments Commission (Supreme Court Advocates-on-Record Association v. Union of India). In an e-mail interview with me [Vasujith Ram], Prof. Ginsburg discussed the collegium and the National Judicial Appointments Commission in the light of his scholarship in the area:

Q: You have analyzed judicial councils from the perspective of law and economics, based on principal-agent theory. How would you analyze India’s collegium system of judicial appointments?

A: Judges, ultimately, are agents of society, and so should serve the public interest.  The question is how to set up a system of judicial appointments that would maximize that possibility.  The collegium system is the paradigm example of a self-appointing mechanism for judicial appointments, and so if one believes that existing judges are the highest guardians of the public interest, it is a good system.  The alternative is a system that reflect inputs from other actors, such as politicians who are also representatives of the public. Which system is better comes to down to one’s relative trust in judges as opposed to other possible appointers.

Even if one trusts the judges, there are risks that are inherent to a self-appointing senior judiciary.  The main risk is that they will not reflect changes in the society, in terms of preferences about justice or in terms of changing demographics.  The system requires that judges pay special attention to make sure they are reflecting the society, and not just appointing people who think and look just like themselves.  This would lead to a gap between the legal system and the underlying society it governs.

Q: How would you compare the (now held to be ultra vires) National Judicial Appointments Commission (NJAC) and the collegium system of appointments?

A: The NJAC would have replaced the collegium system by introducing inputs from outside the judiciary: the Law Minister and eminent persons to be appointed through a political process.  While this system was held unconstitutional in India, other countries have systems that are similar to the proposed NJAC.  This fact does not bear on the constitutionality of the arrangement, but does suggest that it might be practicable to have a different system.  Obviously the NJAC would have introduced moderate limits on the ability of the judges to control the appointment process.

Q: In your study, you find little relationship between the existence of judicial councils (or merit plans) and judicial quality. Could you elaborate? This is in light of Justice Khehar’s observation: “Judicial Commissions/ Councils created in different countries were, in their [Garoupa & Ginsburg’s] view, measures to enhance judicial independence, and to minimize political influence. It was their view that once given independence, Judges were more useful for resolving a wider range of more important disputes, which were considered essential, given the fact that more and more tasks were now being assigned to the judiciary.”

A: Yes, our study argues that, even in theory, there is no necessary relationship between judicial councils and judicial independence.  Sometimes councils are implemented to enhance independence but other times they are not implemented to reduce it and increase accountability.  We do not actually directly study the issue of judicial quality, which is of course quite difficult to measureIt is quite possible in some circumstances that greater accountability will result in an increase in judicial quality—it all depends on the particular situation of the judiciary in a given country.

Q: While the NJAC judgment notes your descriptive point that there is a growing scholarly consensus that judicial appointments ought to be insulated from partisan politics, it ignores your analytical point that this consensus is theoretical and not based on systematic evidence. In the judgment it is held, with the apparent support of your article, that the presence of the Law Minister on the NJAC is a retrograde step since the diminishing role of the executive in appointments is an “obvious reality”. What are your thoughts?

A: As a positive matter, it is not surprising that we see pressure on an activist, self-appointing judiciary to take into account a broader set of perspectives than it traditionally has. Because the judiciary matters in India, in the sense of being an important institution in constitutional government, there will be pressures from rising political forces like the BJP to have a say in the appointment process. This kind of pressure does not necessarily reduce judicial independence or quality, as I said above.  But whether it is a good thing in the particular context of India is a different matter.  It would depend on a diagnosis of the current situation of the judiciary and the quality of the proposal, which of course would require extensive study.

Q: The judgment also seems to have overlooked your findings about the need for independence even within the judicial hierarchy. With support from case studies like that of Singapore, you point out that Senior Judges may exercise considerable influence, creating institutional pressure on lower court judges. How pervasive is this problem? Is it something that ought to have been considered by the Bench hearing the case on the constitutionality of the NJAC?

A: Frankly, I think there is a problem in India that there is insufficient attention to the lower courts.  While the High Courts are directly implicated by the collegium system, in that judges and potential judges need to be known by those who will serve in the collegium, this network does not (in my limited understanding) extend to the lower levels of the judiciary.  It would be good if the country’s trial judges were more dependent on their superiors in the judiciary I think.

Q: Compared to the collegium system, how useful do you think the NJAC may have been in ensuring adequate diversity on the Bench? The collegium has been long criticized as being a modern clique.

A: Judicial appointments commissions often have a role in diversifying the judiciary, and it is important for the reputation and legitimacy of the judiciary as a whole that it reflect, broadly speaking, the diversity of the country. The Judicial Service Commission in South Africa, for example, was set up under the post-apartheid constitution to transform the judiciary, and it has done a decent job of making the judiciary more representative in terms of race and gender. In the UK, too, the judicial appointments system has been overhauled to try to ensure more women and minorities.  We don’t know how well the NJAC would have done, but I can imagine it may have been helpful in this regard.

Q: The NJAC comprised of the 3 senior most judges, the law minister and two ‘eminent persons’ (not necessarily ones with a legal background). What is your comment on this composition? Are there other instances where persons from non-legal background form part of the Judicial Councils? How have they fared?

A: It is not uncommon to include non-lawyers on judicial councils; one can think of such persons as members of the ultimate beneficiary of the judiciary, the general public.  They may be helpful in demanding more diversity, or coming up with ideas for judicial management, and they can also help to ensure that the judicial council does not itself become captured by either the judiciary or the government. On the other hand it is often difficult for non lawyers to understand the details of judging and what it requires. Judging is a really technical enterprise, and one almost needs to be a judge to evaluate how well a judge is doing.

Another thing is that the NJAC proposed that the eminent persons would be selected by politicians, including members of the majority and opposition. This is an interesting and important idea for helping to protect against the NJAC simply being used to pressure the judiciary.

The bottom line is that the NJAC was an interesting innovation and we will never know how it would have worked.  I wonder if it would have solved all the problems that its proponents identified; at the same time there are other major problems in the Indian judiciary that would have been unaddressed.  The biggest one, it seems to me, is judicial administration. The Supreme Court is so busy with its massive docket it can devote little time to improving the performance of the lower courts.  Some judicial councils have a role in this regard, but there are other solutions too. I look forward to watching the drama of the Indian judiciary play out in future years.

(Special thanks to Avani Chokshi and Mansi Binjrajka for assistance in conducting this interview)

Image courtesy: here.

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