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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One Rank, One Pension: Not a Pandora’s Box

by Varun Srivastava

The demand for One Rank, One Pension (OROP) has existed in various forms since 1973, when the policy was terminated by an order subsequent to the 3rd Central Pay Commission. In a significant ruling, the Supreme Court has held in D.S. Nakara & others v. Union of India that “pension is not a bounty nor a matter of grace depending upon the sweet will of the employer. It is not an ex-gratia payment, but a payment for past services rendered[1]. In taking from the essence of this judgment, the demand for OROP is a legitimate one for just payment for services that veterans have already rendered. The implementation of OROP was also recommended in 2011 by the Koshiyari Committee set by the Rajya Sabha to review the matter.

While the demand has existed for a long time, protests in the past year became increasingly vocal and vehement given that the present Government had made OROP a poll promise. In August 2015, veterans in New Delhi and across the nation were protesting against the government. They organised rallies and many went on a hunger strike with the objective of securing one pension for one rank. In February 2015, the Supreme Court had ordered the Government to enforce OROP at the earliest possible instance. However, there was a marked reluctance on the part of the Government to implement OROP. Perhaps because it came to terms with the additional 8,000-10,000 crores of financial burden which would be incurred due to revised salaries. The Government finally announced its OROP policy on 5th September, 2015. Though the veterans are still not satisfied with the announcement, with disagreements on various technical grounds such as the frequency of pension revisions, the fact remains that OROP for armed forces has been accepted in principle.

OROP requires that all retired defence personnel of the same rank with the same length of service should receive the same pension in any particular year, irrespective of their date of retirement. So, the pension received by a Jawan who retired with 15 years of service in the year 2000, should be the same as that received by a Jawan who retires today with 15 years of service. This should also ensure that no personnel of a senior rank are paid less than personnel of a junior rank. This principle was accepted by the Supreme Court and it was held that the Government should work on a pension scheme which incorporates this principle. (Union of India and another v. Major General SPS Vains (Retd.) and others)

Any fears, such as expressed by the Finance Minister that implementing OROP for the armed forces might trigger the demand for OROP for other services, are completely baseless. The recent demand for OROP by the Indian Railways’ employees should also be rejected. Granting OROP to the armed forces cannot be equated to opening a Pandora’s Box of similar policies for other government employees. The armed forces form a class of their own, and hence, a demand for OROP by other services would not stand as equality must exist among equals only (Air India v. Nargesh Meerza & Others). Even if the test of arbitrariness (I R Coelho v. State of Tamil Nadu) is applied, granting OROP only for the armed forces still stands, due to the justifications discussed below.

There is a vast difference between civilian employment and defence employment. Not only are the service conditions and regimented life of defence personnel much harsher but the length of their service is also determined by their rank. In civilian service, the retirement age is fixed at 60 years. At similar levels of seniority, the pay is higher for civil servants than in the armed forces, and promotions are faster. Even the Central Armed Paramilitary Forces (CAPFs), whose service conditions may be similarly harsh, have the benefit of a retirement age fixed at 60 years. Whether an employee is a Havildar in the CAPFs or a senior officer, the retirement age remains the same.

The retirement policy of other services should be contrasted with the Armed Forces wherein most non-commissioned soldiers retire between 35-47 years of age. Most personnel are the enlisted Jawans who retire at around 40 when their family and personal responsibilities peak. Post such retirement, they have poor employment prospects because their absorption into the paramilitary forces or other government employments becomes difficult due to bureaucratic hurdles. Their skills find little relevance in private sector employment. Thus, compulsory early retirement seriously affects the Jawans. Even officers are disadvantaged as compared to their civilian counterparts. Officers are promoted automatically till the rank of Colonel, at which stage (54-56 years) most have to retire with very few being promoted further. Thus, it is more difficult in the armed forces to reach senior positions than in other civil services. This is due to the highly pyramidal command structure and the need for a young force. This coupled with the harsh and regimented life of defence personnel results in the association of higher rank with higher prestige. Therefore, it is unjust to have older senior officers being paid a lower pension than a younger and junior officer. This principle was accepted by the Apex Court as well in the Major General SPS Vains case.

Even after retirement, officers of the Armed Forces are allowed to continue using their rank as a title according to a circular issued by the Ministry of Defence. Even Article 18 of the Constitution provides that the State can confer military titles. It is said that an officer may retire, but his rank does not retire. This means that even after retirement, the officers continue to use their rank and the privileges associated with it. This is not true for other central government employees who do not retain their designations after retirement. Therefore, the principle that it is unjust to pay older high-ranking officers a lower pension than a younger and lower-ranking officer cannot be made applicable to other services as there is no distinction on the basis of ranks once civilian employees retire. While it may be argued that judges of the Supreme Court and the High Courts too continue using the prefix ‘Justice’ after retirement, all judges have the same retirement age, whereas officers of different ranks retire at different ages. Thus for judges there is no question of senior or junior ranks as all high court judges on retirement have the same level of seniority.

It is worth noting that according to Section 47 of the Disability Act, no government employee can be discharged on the grounds of disability, regardless of how it may have been caused. However, in the armed forces, physical fitness is of primary importance and any disability may result in discharge even when caused in the line of duty. This further creates a distinction in the terms of service for civilian employees and armed forces.

It should be noted that the National Pension System (NPS) passed in 2013, even as envisioned in The Pension Fund Regulatory and Development Authority Act, is not mandatory for defence personnel. The most plausible reason again is their variable and early retirement age. The NPS moves the pension system of Central Government from a ‘defined benefit’ scheme to a ‘defined contribution’ scheme with the employees contributing 10% of their pay towards the fund which is matched by a contribution from the government. This goes on till 60 years of age which is the retirement age for most Central Government jobs. The return on this corpus, coupled with the corpus itself, provides the pension. Since defence personnel retire much earlier, their contribution is insufficient to create the requisite corpus that could provide a significant pension. Thus, this scheme is not attractive for defence personnel. They are further disadvantaged in terms of pension as compared to other government employees.

The demand for OROP by the armed forces has been around for more than 40 years. Given the various court rulings, the election promise made by the present government and the increasing impatience of the veterans in securing their demand, OROP has finally been accepted in principle. While there are differences regarding technicalities, they will hopefully be ironed out as it has been proposed that a judicial commission be set up to ensure the smooth implementation of the policy. However, as it has been shown, the armed forces are unique as employment with them cannot be equated to employment with any other central service, be it the civil service or paramilitary service. The terms of their service and retirement are both harsh and incomparable in nature. Therefore, the granting of OROP to the armed forces is completely justified. Any fears that similar policies will have to be framed for other central services should be set aside as there are constitutional, factual and logical justifications for such differential treatment.

(Varun Srivastava is an Associate Editor at the Journal of Indian Law and Society)

[1] D.S. Nakara & others v. Union Of India, 1983 AIR 130.

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Conversation with Suchitra Vijayan, Barrister-at-Law, Political Analyst and Writer

suchitra_vijayan_headshotSuchitra Vijayan is a writer, lawyer and a political theorist. She studied Law, Political Science and International relations, and was trained as a Barrister-at-Law.

She previously worked for the UN war crimes tribunal for Yugoslavia and Rwanda. She co-founded and was the Legal Director of Resettlement Legal Aid Project, Cairo that gives legal aid for Iraqi Refugees.

As a graduate student at Yale, she spent two years researching and documenting stories along the contentious Durand Line. She was embedded with the ISAF forces – 172 infantry brigade, in Paktika Province, Afghanistan conducting research on key kinetic terrains in the Afghanistan-Pakistan border. Since graduating from Yale she has been working on her first book about India’s Borders.

She regularly writes about war, conflict, politics, literature and photography and her work looks at theories of violence, war and human nature. She is a columnist at Warscapes, and writes regularly for The Hindu. Her long form essays, reviews and photo essays have appeared in Foreign Policy, Huffington Post, Himal South Asian, Africa is a Country, and The Sunday Guardian. She kindly agreed to have a chat with me [Avani Chokshi, Editor]. Following are the excerpts from the interview.

Q: Can you tell us about the insights you gained while working on the study pertaining to the Durand line and your interaction with ISAF forces in Afghanistan?

A: I started researching Afghanistan as a graduate student. I had always wanted to go to the Durand line (which is the Afghanistan-Pakistan border) because I was studying insurgency in these border areas. I was embedded with the US ISAF Forces in the 172nd Infantry in an outpost in the Paktika province. Initially, my thesis and research work was to look into why the counter-insurgency strategies had failed in these areas in spite of the amount of money spent there. I realised that my theoretical hypothesis was very different from what was actually happening. Even counter-insurgency strategies require a certain understanding of history and politics. I discovered that the way the local population had conceived itself was completely different from what the official documents contained. There can be no single format for the local population to understand or represent themselves. People’s ideas of history and family are very local; they tend to vary depending on who and where one is. Knowing that there can be no way to win in a counter-insurgency strategy when no one in the Afghan state has any idea how the people imagine themselves was, for me, the most fascinating aspect. One of the reasons for this disconnect is that the Afghanistan government has never acknowledged the Durand Line. Also, the Pashtun tribes and ethnic groups see themselves within this space very differently; they have never respected the Durand line. Going back to how Mortimer Durand derived the line, it appears that there was no actual border marker. He basically just stated that certain land would be Afghanistan, and other land would be British India. There are no signifying markers to clearly define this boundary.

This basic idea of the disconnect between how people imagine themselves to be and how the State imagines them to be became the basis of not only my studies on the Afghanistan-Pakistan border but also for my Borderlands Project. This history is often subsumed within the much larger context of politics and is never really written about.

Q: Some believe that bodies like UN war crimes tribunals are futile exercises that achieve very little. From your personal experience of working with them, do you think such tribunals can help ‘right the wrongs of history’ so to speak? Do you think an alternative framework might provide a more effective remedy?

A: It is my belief that the tribunals have been marginally effective. For instance, the tribunal in Rwanda handed the World’s First Genocide Conviction in the world. It convicted Jean-Paul Akayesu, mayor of Taba township for nine counts of genocide, crimes against humanity, and rape. A larger understanding of genocide exists because of the judgments given by the tribunal. But having said that, their effect is very marginal, because I believe that eventually there is no justice. My experiences with people in Yugoslavia and Bosnia, and with the war crimes tribunal showed me that the people do not believe that justice has been served. Their sense of justice is absolutely different from how an international convention views justice. Most war criminals are still out. Take the case of a person living in a village, whose neighbour killed her family and is now back in the same community; a body like the International War Crimes Tribunal cannot do much for her. In places like Bosnia, Serbia and Rwanda, people have a deep sense of distrust for these tribunals. They do not believe they have been served justice, which means the tribunals have not fulfilled their purpose. Where there is some sense of justice, we allow society to heal in some way and move on. Tribunals actually entrench trauma and violence and are therefore  remain ineffective.

Of course there has to be an alternative framework, because today’s system is not working. This must start with an understanding of communities. Some communities understand justice very differently from other communities. For example, the war crimes tribunal for Yugoslavia is in the Hague – very far away from Yugoslavia. The tribunal for Rwanda is in Arusha, Tanzania. There are the local Gacaca courts, but eventually the communities have to deal with it on their own. We need to have a much larger effort to ground these kinds of justice mechanisms within the community, which means that the local legislations must have some way to address this. The method of establishing any justice mechanism must depend on the circumstances because the problem with the international community and international justice is that outsiders are often given absolute control over how a local community has to survive and heal. Local communities through the local political leadership have to come together and make these decisions; it is not an outsider’s place to do this.

It is very important for us to actually decolonize ourselves from the idea that somehow there is an international form of justice – there isn’t. Our forms of justice have become highly neo-liberal. Looking at the number of people who have been indicted by the ICC one can see that there have been a disproportionate amount of African leaders on that list, but no Henry Kissinger. The problem is that the neo-liberal order punishes one kind of genocide and not the others. Even today the Armenian genocide is not termed genocide; it is very contentious. For a long time, the Clinton administration refused to call the Rwandan genocide as genocide. To believe that the international community or the international humanitarian law can actually serve justice to these local communities is highly problematic and it is something that has to be interrogated not just from people in Washington DC or Paris or Rome but from small places within Rwanda or Bosnia or Herzegovina. That is where I think an alternative mechanism has to come from and it depends on the idea that the international convention is highly problematic. When the Nuremberg trials were coming up, we were told that the crime of Holocaust was so heinous that we had to invent a new crime. I think that we have to invent new legislations for finding justice locally. I do not think that the international conventions are actually helpful or will help in the future given the position they have taken.

Q: Can you tell us more about the Resettlement Legal Aid Project, Cairo and how you came up with it?

A: I co-founded this Project with Barbara Harrell-Bond, a professor at Oxford who had also founded the Refugee Studies Department at the American University, Cairo and Jeffery Hancuff (who is now an economist and a Buddhist Monk). This was in 2008 when the number of Iraqi refugees coming into Cairo had increased. Barbara had already founded AMERA, another refugee legal aid organisation in Cairo. However, we were not sure if AMERA would continue to be able to accommodate Iraqi refugees. This was because in Egypt, while one can apply for a license to start an NGO, the authorities can shut it down anytime during the pendency of the application. Egypt has been in a state of emergency for the last 25 years. We wanted to start another NGO so that if AMERA was shut down, its work could continue. There were close to 5000 or more Iraqi families who were refugees in Egypt and required legal aid and resettlement. The Project started because there was no other space that could meet their legal needs. RLAP was started out of Barbara’s apartment in Garden city Cairo. After the first few weeks, we got a small space within a St. Andrews Refugee Services.

Q: As the founder of the NGO ‘Lines of Grey’, can you tell us about the significance of its name and the nature of work it undertakes?

Lines of Grey is an NGO only because it needed funds. It started in Arusha when I was working for the war crimes tribunal. There was a shelter for street children near by and I used to go there all the time. I wanted to teach those children photography. It started with me just taking my own money and buying these children cameras so that they could take photographs. I was just 23 years old and I had no idea about running an NGO. I do not know what the kids got out of it but I really got a lot out of it by seeing how these kids look at images visually. A lot of them had never seen themselves; they had never seen a mirror. A lot of them started taking self-portraits and that was their photograph. It was their photographic archive. Maybe if I did it now I would have done it very differently. I simply wanted to spend some time with these children and teach them. When I moved to Cairo, I did some of this with the refugee kids I was working with there. It was an opportunity for me to engage with the local community. I am a photographer; and I love to teach and children are a great way to understand the society and the community. So, Lines of Grey was less of an NGO and more of a personal experiment, which at some point in time, I did not have money to run. Giving it NGO status meant that friends could contribute, or give cameras, for it. I was able to continue till I was in Cairo but after that I could not because I had to start graduate school and since then I actually have not lived in any single place for a long time. Again I am not sure what the kids got out of it, but for me it was absolutely fascinating.

Q: Moving on to your Borderlands Project, What are the objectives you want to achieve? What have been your findings on the effects of borders on human life?

A: I started the Project because my work in Afghanistan had been fascinating, and I wanted to see how India stood up to the same kind of interrogation. I have increasingly found that India is not a state. It is a culmination of many nationalities, some of which do not prefer to be a part of India and some of which have been given ideas of what India means. In relation to this Indian imagination, it is beyond the historical narrative, it is beyond Gandhi, beyond Nehru, its beyond sensibilities of nationalist history making. Huge parts of our population, especially border population, do not imagine themselves as quite Indian because a lot of them have seen the brunt of not just violence but legal trauma and other things, and that is the reality of it. They do not imagine themselves to be Indian the way you and I imagine ourselves to be Indian, because you and I have a very different sense of belonging to the Indian Nation State. We have denied them citizenship, we deny them their rights, and the fact that they have their own right of self-determination is something that is never talked about. Talking about it is treason. Those are things that new generations of Indians should understand to interrogate. They should be given the opportunity to understand what India means – is India truly democratic and secular? If we are truly democratic and secular, would we keep many populations under the subjugation that we are keeping them in, whether it is through the AFSPA and other things or PSA in Kashmir, or anything else? Forget the border, just go to Naxalbari and Dantewada, and see what we are doing to our own people, our own subjects that we may so call, forget others who do not consider themselves a part of the Indian union whether in political imagination or social imagination. It is time; India has been independent for long enough and we are no longer a young democracy. We should be mature enough to come to terms with the idea of state formation and nation and national formation. If in some ways, my book is an attempt to opens up that space, I do not think that it will be a large one, simply because the trajectory that India is taking today is becoming deeply majoritarian. People refuse to even listen to others’ arguments; one only has to go to Twitter to understand how insensitive and majoritarian we have become. Perhaps with this book, this idea will open up a little space for people to think that there is a world beyond us, beyond this educated English speaking middle class that sees India as India Rising. I think that is the value of the book. If not, I had a jolly good time for the last three years. I have seen and done things, and made friends and did things that most people in their lives cannot dream of and I think that is enough.

Q: You have previously spoken about the India-Bangladesh Border, and the differences in the dynamics of social organisation in a village right on the border, and in one 20 miles from it towards India. Can you explain what sort of these differences actually are?

A: The villages on the border are obviously going to be in a lot more trouble and are going to be a lot more contentious as against one, which is 20 miles away. This is like trying to make a difference between Gaza and Ramallah. Both Gaza and Ramallah are in occupied territories, but obviously in Ramallah, things are slightly better. In communities that live in bordered porous territories, somebody very close to the borders has seen much larger wrath of the Governments. They have to deal with negotiating not just the militarisation and securitisation but even identity, because their family might live two miles from them, but across the border, which they have to cross all the time. Maybe somebody who lives 20 miles away might feel safer, due to slightly lesser militarisation or border fencing. But eventually these places are getting highly militarised. In India, the rhetoric is that a few million Bangladeshis are coming in every year but again we have no idea what the real data is. India is increasingly spending money on fencing and militarising these borders. Militarisation and fencing come with their own set of problems and I think social organisation is then completely based on what rights exist within the small and enclosed space. While I believe that life is definitely harder for one on the border, everything must be seen in the much larger context of militarisation.

Q: You have talked about your visit to Arunachal Pradesh for the Borderlands Projects, and you have noted that it is now becoming highly militarised. In light of this, what are your views on the India-China relationship?

A: This is a very contentious territory. How India views its history with China is very different from how China views its history with India. India sees 1962 as a key pact of the trail whereas China sees it as simply asserting what it feels is its own. So, it is very hard for two countries to come to an actual agreement when both see the histories very differently. Having said that, I think both sides committed a lot of blunders in the early years – India’s policies were ushering in things early on and China’s act of aggression (not that India has not been aggressive- it has). India’s policy has a long history of taking itself as a righteous victim and that is the reason today we feel this need to prove ourselves and these are all equally problematic. Look at China’s policy; they are highly territorial. China has acquired large parts of Central Asia simply by negotiation. What was then part of Russian territory or Central Asia is now China’s because China has done a very good post territorial acquisition because it has taken its time. It has stretched its arguments over and over. With Arunachal Pradesh (and Aksai Chin and parts of Kashmir which are also in contention), both countries will continue to militarise without actually asking the local population what they want. China will not ask what Tibetans want and India will not ask what the people in Kashmir or Arunachal Pradesh want. This is the problem which has never been discussed in the ambit of foreign policy because we do not consider the local population themselves to be active participants in foreign policy. This, to me, is highly problematic. Why are the wants of the local population completely left out of the discourse? This is never asked and its answer will affect how the military can, or does, mobilise in these areas. I think the question itself is very contentious because it takes out the people from the equation.

Q: You have previously spoken about repression and resistance in Kashmir. As a political theorist having an experience of ground realities as well as exercises in political manoeuvring, do you think that allowing self-determination of the Kashmiri people is the best way forward?

A: Absolutely! The only way forward is to recognise Kashmiris right to self-determination. I have made this position absolutely clear. There are only two positions one can take. The first position is that the Kashmiri population has historically (by historically I mean, going back 200 years) been denied both the historical agency of a right to rule themselves. They have been denied freedom and they have been sold as slaves, literally sold as slaves, from the British to the Dogra kings and to others and they have not had the right to self-determination since then. The Indian state is only a new form of the manifestation in terms of oppression. With this position, one believes this population has the right to freedom and self-determination. By freedom, I do not mean cultural freedom or freedom within the Indian Union. They have their own right to self-determination, independence and an independent state. How they conceive of that state, whether it is with India, without India, with Pakistan, without Pakistan, is their choice. That is their absolute right. The other position is the opposite position; it is that these people do not have this right and I do not take this position. There is no grey in the Kashmir issue or the Palestinian issue. One either believes that there is a group of people who have been deprived rights and they have the right to have that right and demand and fight for that right or one does not believe that.

Another thing that I find problematic is that even the very small section in India that supports self-determination for the Kashmiri population often somehow feels that it has the right to tell them what they should do and how they should do it. Our only job is to stand in solidarity. How they conceive of themselves is absolutely for them. How they imagine themselves as a nation, how they imagine themselves as a State, and if they imagine themselves as a State, whether their allegiances lie with Pakistan, whether it does not lie with Pakistan, whether it lies with us, whether it lies with someone else, that is absolutely their prerogative, and not ours. That is the position I have always been clear on and that is the only position I can take. Any other position for me is the very status position and it is absolutely an act of occupation and that is what India does. India occupies these places. Eventually it is going to degrade us and it has degraded us to a large extent. This is my answer and this is where I stand. Young India should be more vocal about this position, as well, if they believe in it because people who take the other side seem to be a lot louder.

Q: You have been extremely vocal about the constant literary censorship carried out by politically backed Hindu activists and caste groups. Do you think it is time that the Supreme Court took up this issue in light of the obvious fundamental rights violations that underlay such actions? Do you think that such a judgment would bring any real change?

A: I think the problem goes back to an origin. When Jinnah says, Muslims need parity and not partition, we did not agree with that. Yet, when Ambedkar himself later disagreed with one idea, then we were ready to bring identity and communal politics into our Constitution. Today, our Constitution has become a communal and identity based policy. The question is how do we get ourselves out of this colossal mess? The change has to be constitutional. That is, perhaps, the only way that this country can move forward. My stance does not rise out of any great faith in the Indian Constitution – I am increasingly beginning to think that our judges are puppeteers to a much larger cause. Even if we believe that the constitution is the way forward, how do we go forward? How do we make opportunities equally accessible to the most downtrodden of our country’s people and at the same time not turn it into communal casteist politics? I think the Supreme Court must intervene and should intervene because our Constitution is perhaps the only defence we have. If we believe the ideas of constitutional morality exist then it has to be the vanguard of defending those rights. But how do we go forward? I have absolutely no idea.

We have politicised and communalised our constitution, and made it completely caste-based, from the Shah Bano judgment to the judgments on extending reservations over and over. I am not a person against reservation; I am against the way reservation has been implemented politically. The idea of reservation has to be re-thought and it has to be rethought with better census figures, better figures from the creamy layer. This is not just a legal act, this is an anthropological act, this has to be a political act, this has to be a historical act in which people acknowledge where they have come forward, how far they have come and how far they have not come. All of this has to happen in tandem and that will not happen in our country simply because there are too many vested interests within the political establishment which exercises a disproportionate amount of control over our constitutional bench. If anyone today tells me that our constitution bench is not politically influenced, I will not believe it. I look at it and it is absolutely appalling. Ambedkar said that he does not trust these men to be the silent guardians of our constitution because very few of them have the kind of intellectual or the moral dignity or courage to take it forward. We are in a political mess and I have thought about it for the last 20 years of my life and I really do not know what the way forward is. But it has to be one that is done in tandem. We need to understand how caste has evolved, we need to have a better anthropological, sociological understanding of caste based incentives. We need to understand how caste based incentives affect political participation, we need to understand how political parties mobilise because of this and then we have to systematically dismantle every single one of these incentives that makes this current situation inviolable. That is the way to go forward and it will take time. Like the Civil Rights Movement, these things take generations. But who will make the start, I have no idea. I look around and I feel there is just no one to do that, intellectually or politically. I am sorry I have given more of a rant than a solution.

(Special thanks to Mansi Binjrajka (Associate Editor), Amrita Ghosh (Research Assistant), Shreya Mishra (Research Assistant), and Tejas Popat (Research Assistant) for their assistance in conducting and transcribing this interview)

Image courtesy here

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Nepal’s Constitutional Crisis

by Mara Malagodi

Nepali legislators are currently striving to promulgate the country’s seventh constitution and conclude the peace process that began in 2006 after the ten-year long Maoist People’s War. By 2001 a new constitution drafted ‘by the people’s elected representatives’ had become the Maoists’ key demand and the precondition to bring the insurgents to the negotiating table. Since 2006, radical constitutional change was deemed as the primary vehicle for state restructuring and the pillar of the peace process’ mantra of ‘nayā Nepāl banāune’ (building new Nepal). The new constitution was expected to secure by institutional means the inclusion of the country’s many marginalized groups (janajati, dalit, Madhesi, women, LGBTI, religious minorities) and further the process of democratization of the Nepali state. Almost a decade has passed, two Constituent Assemblies have been elected, and countless protests have taken place over the contents of the new dispensation, but little progress has been so far achieved in terms of significant institutional change. While the promulgation of Nepal’s new constitution seems now to be in sight, the draft tabled for approval in the Constituent Assembly on 23 August 2015 has drawn sharp criticism over many of its features, which have been deemed undemocratic and exclusionary, and has engendered violent protests with increasing numbers of casualties.

The devastating earthquakes that hit Nepal in April and May 2015 briefly obfuscated the political tensions over federal restructuring and institutional recognition that had brought the first Constituent Assembly (CA1) to collapse in May 2012 and the constitution drafting process in the second Assembly (CA2) to a standstill. Nepal’s 601-member CA1 was elected in April 2008 as part of the Comprehensive Peace Agreement of 21 November 2006 between the Nepal Government and the Communist Party of Nepal (Maoist) for a term of two years. Notwithstanding four extensions, the political fragmentation within the Assembly (where no parties commanded a majority) and bitter inter- and intra-party strife eventually led to the dissolution of the CA1 in May 2012 without the promulgation of the new Constitution. The main stumbling blocks in the negotiations over the new constitution were Nepal’s federal restructuring and form of government to be adopted. On 19 November 2013, after over a year with no legislature in place, the CA2 was elected bringing a relative majority to the centrist parties (Nepali Congress and UML). Inclusionary reforms progressively fell off the political agenda of the government and Nepal’s climate of political stalemate led to what a number of commentators have described as ‘counter-revolution by stealth’.

In the wake of the 2015 earthquakes, Nepal’s political elites, however, vowed to ‘fast track’ the drafting of the new document and finally complete the peace process. On 8 June, the main four parties (Nepali Congress, UML, Maoists, and Madhesi Forum-L) reached a political settlement known as the 16 Point Agreement, which was to form the basis of the new constitution. Significantly, the negotiations included only four of the thirty-one parties represented in the Assembly and made little effort to include representation from the marginalised groups. The Agreement featured a parliamentary form of government with a mixed electoral system and a separate Constitutional Court, but crucially sought to postpone the naming and demarcation of the federal units until the promulgation of the new constitution and the elections of the central and provincial legislatures. The postponement of the long-awaited process of federal restructuring immediately sparked protests across the country. Federal restructuring had come to represent the promise of inclusion for the marginalised groups. As a result, petitions were filed in the Supreme Court to have the Agreement declared violative of the currently in force 2007 Interim Constitution. In an unprecedented move, on 19 June, a single bench of the Supreme Court issued an Interim Order against the implementation of the Agreement’s postponement of federal restructuring. The apex Court arrived at its decision on the basis of Article 138(3) of the Interim Constitution, which mandates that ‘the final decision relating to the structure of the state and federal system shall be made by the Constituent Assembly’.

Politicians accused the Court of overreaching and the Assembly’s Constitution Drafting Committee (CDC) pressed on with the preparation of the draft on the basis of the 16 Point Agreement defying the Supreme Court’s order. In late June, a copy of the draft was leaked to Hindustan Times journalist Prashant Jha, who published a razor sharp critique of the document, while Supreme Court lawyer Dipendra Jha furthered the criticism in his ten-point analysis. On 30 June, CDC Chairman K.P. Sitaula submitted the draft constitution to the Assembly for the House to begin deliberations. Protesters took to the streets and further denunciation of the document emanated from civil society. Eminent journalist Kanak Mani Dixit described it as ‘sub-optimal’. A Kathmandu Post editorial, in line with the analysis put forward many times by prominent writer C.K. Lal, depicted the draft as an instrument to further consolidate the old power structure for instance through the attempt to remove the inclusionary provisions of the Interim Constitution. Women activists denounced the patriarchal nature of the draft, while janajati, dalit, and Madhesi activists condemned its exclusionary clauses. Seira Tamang of Martin Chautari pointedly commented: ‘the now officially public draft constitution has confirmed the fears of many. It has veered from the sentiments of the 2006 Jana Andolan and the 2007 Madhes Movement, retracted from the commitments of the Interim Constitution (2007) and largely written-over the progressive drafts produced by the most-representative elected body in Nepal’s history—the first Constituent Assembly (2008-2012)’.

Protests grew increasingly violent and the security forces’ response heavy handed, especially in the Terai, where the demands for federalism and equal citizenship have been historically the strongest. In the meantime, the Assembly opted for a fast-track procedure to pass the new constitution, allowing for a very brief period of public consultation over the draft. Amidst mounting tensions, on 8 August, the political leaders relented and inked a six-province deal on federalism. Tharu political leader Rukmini Chaudhary pointedly commented on the deal: ‘Accepting the six-state federal model is suicidal for the indigenous […] we demanded two states in the Terai: Madesh and Tharuhat. There is an incomplete Madhesh, and no Tharuhat. We said we don’t want a North-South federal model that puts the mountains and plains in the same state, but that’s exactly what they have given us. Indigenous groups have been cheated. Rai and Limbu homelands have been lumped together as in one state. Magar and Gurung homelands are also lumped together, as have Tamang and Newar homelands. There is Pahadi Brahmin-Chhetri dominance in each state’.

As protests intensified, on 21 August the Nepali Congress, UML, and Maoists agreed on a new seven-province federal deal (essentially carving out Province 7 out of Province 6 and maintaining the controversial longitudinal division of the country), while the Madhesi Forum-L did not support the scheme. On 23 August, the draft constitution (with the seven-province model) was tabled in the Constituent Assembly for approval by the House as the MPs representing the marginalized groups walked out in protest. Violent demonstrations and communal violence erupted across the Terai, leading to the death of security forces and protestors in Kailali, the imposition of a curfew, and the deployment of the Nepal Army.

It is now high time for political leaders in Kathmandu to rethink the problematic features of the draft constitution: federal arrangements (a very weak form of federalism and the controversial demarcation of the units); the removal of the adjective ‘secular’ from the Preamble (vis-à-vis the ongoing attempts to remove all references to secularism from the document and even to reinstate the Hindu Kingdom provision); the highly discriminatory citizenship provisions under which citizenship cannot be passed by Nepali mothers alone; a number of restrictions on fundamental rights; the ongoing exclusions of dalits, janajati, Madhesi, women, LGBTI, religious minorities; and many others.

The Nepali constitutional experience exemplifies the complexity of constitution making endeavours and highlights the crucial importance of the combination of an inclusive political process with far-sighted institutional design. It is to be hoped that Nepali political leaders will promulgate a legitimate and enduring document in which all Nepalis can feel included. The consequences of doing otherwise would be catastrophic at this point of the country’s history.

(Dr. Mara Malagodi is a Lecturer in Law at City Law School, City University, London. She is the author of Constitutional Nationalism and Legal Exclusion – Equality, Identity Politics, and Democracy in Nepal [OUP 2013])

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