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Tag Archives | Madhav Chandavarkar

The Importance of the Constituent Assembly in Framing the Indian Constitution

By Madhav Chandavarkar ( @MadChaP88)

The Constitution of India is the rule-book for democratic governance in India. It came into force on 26 January 1950 and to date remains one of the biggest milestones in the history of our country. Framing a constitution is never a simple task but it was especially hard for India given the extremely tumultuous situation at the time. A newly independent country with a highly unequal social order was a daunting challenge to deal with, especially when it was still reeling under the effects of partition.

The Constitution was framed by the Constituent Assembly established under the Cabinet Mission Plan of 1946. The 299 individuals who comprised the Constituent Assembly can therefore rightfully be termed as the founding fathers and mothers of the Republic of India. Certain members of the Constituent Assembly played a key role, the foremost of whom was Dr. B.R. Ambedkar, whose role as the Chairman of the Drafting Committee of the Assembly has earned him the popular moniker of ‘Father of the Indian Constitution’. Other Congress stalwarts like Prime Minister Jawaharlal Nehru, Dr. Rajendra Prasad, and Maulana Azad were also dominant voices in Assembly proceedings. A special mention must go to Constitutional Advisor, Dr. B.N. Rau who compiled the initial draft that the assembly debated after taking inputs from constitutional experts at home and abroad.

Challenges in framing the Constitution

The Constitution took a significant amount of time to be framed and though it continues relying on many institutions established by the British it borrows different aspects from various constitutions. However, widespread demands for an indigenous Constitution meant that a lot of the initial debates were about whether it would be wise to follow the model created by the British. Undoubtedly, the biggest challenge facing the assembly was to create a political framework that would keep the various communities and princely states happy in India and prevent Balkanisation. The members were acutely aware of this as Delhi was facing enough violence that they often needed curfew passes to attend Assembly sessions. The fact that the Assembly also functioned as an interim Parliament would have also informed the members about the scale of administrative work needed to ensure unity.

Other major challenges faced by the assembly were:

  • To frame a constitution which would uplift downtrodden sections of society. This meant providing an assurance to minorities regarding the protection of their rights as well as creating a welfare State that could improve their social and economic status.
  • To ensure democratic processes for citizens in perpetuity – the fathers wanted their vision of the country to remain after their death.
  • To frame a constitution capable of effectively handling communal violence. This was largely motivated by the violence occurring due to the partition.
  • To frame a constitution which could integrate princely states and their various demands.

At the time, the Congress party was the dominant political force in the country and was so in the Assembly as well. Yet the Congress actively sought out non-Congress luminaries such as Ambedkar to make sure that the best minds would be involved and that as many communities would be represented. There was even considerable divergence of opinions among leaders of the Congress itself. It is therefore a testament to the dedication of the constituent assembly that despite such odds, a consensus was reached.

This was perhaps the outcome of a recognition of the role unanimity in conceptualising the constitution would play in its durability and continuity. Issues were therefore debated until decisions as unanimous as possible could be made and proceedings were open to members of the public and the press. Many discussions also took place outside the halls of the Assembly in and between the various committees. These debates and committee proceedings have now been transcribed and published.

The completion and adoption of the Constitution was an historic event that was being avidly observed by the entire world. The decision to grant universal adult franchise was a tremendous gamble for the Indian State but was also one of the most transparent displays of democratic fervour.

The drafting of the Constitution is now considered a monumental feat of democracy for which the members deserve immense respect. These individuals, despite being a multicultural set of people from various communities, were collectively committed to achieving the historic task of establishing a democratic republic in India. Today, as we have entered the 70th year of our independence, our Constitution still stands as a shining beacon of democratic governance. It is because of the members of the constituent assembly that our flag flutters proudly over the Parliament in Delhi.

Madhav Chandavarkar is a Research Analyst at the Takshashila Institution. His Twitter handle is @MadChaP88

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A Socialist Justification for Market Pricing

As a socialist, welfare State, India needs to obtain the best price for distributing public property like roads


Car Parking

The average Indian is extremely reluctant to pay for parking. He will prefer parking for free on public roads rather than pay for a spot in a parking lot or mall, even if this involves the inconvenience of parking much further away, and navigating poorly lit and constructed pavements. It is a failure of the State that they are allowed to do this. Roads are public property or part of the public wealth and as such, are meant for the use and enjoyment of all, not just those who can afford their own private transport. There are many reasons to levy a fee on parking – as is the practice in many developed countries – some economic and others moral. While the one with the most popular appeal might be to reduce congestion on roads, the most important is that it is the constitutionally mandated duty of the State to do so. Article 39 of the Constitution of India (found in Part IV: Directive Principles of State Policy) declares that the State shall direct its policy towards securing:

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

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

 The current free parking system clearly violates these two provisions as the failure to distribute the material resource (roads) for the common good has resulted in the concentration of wealth (with private car owners) to the common detriment (traffic congestion). However, Article 37 also states that even though the Directive Principles are “fundamental to governance” and are the “duty of the State to apply”, they are not enforceable by courts. But this issue has been circumnavigated by the Courts in cases questioning the validity of public tenders for material resources.

In Ram And Shyam Company vs State Of Haryana And Ors, the Supreme Court held that because India is empowered to be a “Sovereign Socialist Secular Democratic Republic” by the Constitution, the property of the State is “socialist property” or community property and that every citizen has a vital interest in its effective use and legitimate disposal. The Court clearly differentiates between private property and public property and holds that India’s status as a welfare State means that the latter must be dealt with differently for the following reasons:

Public Property is held in trust

Owners of private property have complete freedom in how to dispose their property as long as they remain within the law. They may gift the property or sell it at a fraction of its full value if they so wish to. But the Court held that a “welfare State as the owner of the public property has no such freedom while disposing of the public property. A welfare State exists for the largest good of the largest number, more so when it proclaims to be a socialist State dedicated to the eradication of poverty…. public property has to be dealt with for public purpose and in public interest” It went on to argue that because the State is merely holding public property in trust for the benefit of the community it must ensure that its disposal is free of any favouritism or untowardness. The Court quoted from one of its previous cases, Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir and Anr where it had held that “the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest.”

There are already a number of judgments limiting the arbitrariness of government actions. When they are read together with the statements delivered by the Supreme Court in the Ram and Shyam case, they essentially make the provisions of Article 39 enforceable in Indian Courts. While the Court may have substituted “material resources” and “common good/detriment” with “public property” and “public interest”, the intention remains unchanged; the State must act for the largest good of the largest number, and must do so in a fair manner.

Disposal of Public Property should be done at Market Price

The Court also interpreted the phrase “public purpose” as a validation of market pricing for public property. It held that if public property was disposed of at the highest possible price, the State would be “able to expand its beneficial activities by the availability of larger funds”. As such, its intention must always be “to obtain the best available price while disposing of its property.” At this point, readers will probably be wondering how this reconciles with the Indian government’s perennial preference for subsidies as a welfare mechanism. The Court did, in fact, take this into account and held that “socialist property may be disposed at a price lower than the market price or even for a token price to achieve some defined constitutionally recognised public purpose, one such being to achieve the goals set out in Part IV of the Constitution.” But even this limitation has the following proviso: “where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy”

It has already been established that the “constitutionally recognised purpose” under the Directive Principles, if anything, requires that parking on public property should be charged at the market price. The current framework allows the rich to enjoy public wealth at the expense of those less privileged. Even a relatively small parking charge would go a long way in rectifying this situation. Take Bangalore for example, instituting a simple parking fee of Rs. 7 per hour could yield as much as Rs. 4 lakh per hour for the State exchequer. Such revenue would help finance urban infrastructure projects and result in immediate benefits for payees of the fee.

As India continues to grow and more people migrate to cities, it is imperative that the government gets its act together and charge urban space at a premium. A fear of the negative repercussions from the rich and privileged is insufficient reason for the State to shy away from instituting parking fees. The Constitution requires it, the Courts expect it and the people need it; the onus of establishing is now on the government.

Madhav Chandavarkar is a Research Associate with Takshashila Institution and can be found on Twitter on his handle @MadChap88.

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Net Neutrality: Innovation in the Age of the Internet

How the debate about Net Neutrality can learn from the successes (and failures) of Intellectual Property Rights

Net neutrality is currently a topic en vogue; various pundits, netizens and companies have weighed in on whether or not regulations are required to keep the internet open and equally accessible to all. While the debate often involves phrases like “free market”, “data discrimination” and “walled gardens”, the argument is really one about innovation. In fact, the phrase “net neutrality” was coined by Tim Wu in his paper, Network Neutrality, Broadband Discrimination, where he observed that the “questions raised in discussions of open access and network neutrality are basic to both telecommunications and innovation policy”. As such, both sides of the net neutrality debate ultimately rely on innovation as a justification for their arguments. The most popular defence for net neutrality critiques “access tiering”, where telecom providers charge web sites and application providers more for premium, high speed services. The argument is that start-ups will not be able to afford such rates and will therefore be unable to compete with established firms. This is invariably followed by the statement that the internet has had the impact that it has had because of the ability of such start-ups to distribute their new and innovative ideas on a global scale. In other words, it is not so much about the potential of access tiering to cause monopolisation as it is its capacity to hinder innovation. On the other hand, detractors of net neutrality argue that increased regulations will only hamper telecom and content providers from innovating new technologies and business models with which to operate.

Given the importance of innovation in the global debate globally it is unusual that debates in India have not discussed it more prominently. The Indian discourse on net neutrality has been characterised more by a debate about free markets vs. regulations than the composition of best innovation policy. This is unfortunate because not only is innovation supremely relevant to the discourse on net neutrality, but much can be learnt from the previous methods of promoting innovation – Intellectual Property Rights (IPR).

One such lesson is the danger of romanticising aspects of the issue. The ultimate purpose of IPR is to legally ensure the expectation of earning money from a new idea so that people have an incentive to invest their time and money to create and innovate. This purpose has been significantly buttressed by the narrative of romantic authorship. The moral argument for securing financial rewards for people who come up with brilliant new inventions, stories or songs is one that very few can counter. However, as with many other laws, the reality is different. IPR, more often than not, secures the interests of publishers and distributors, not authors. This is merely an outcome of simple economics; the people spending money on creating and distributing a product will expect a financial return regardless of whose idea it originally was. It is not to say that the romantic author does not deserve his due, merely that his importance is often overstated.

This very human tendency towards romanticism (especially when discussing human creativity and innovation) must be kept in mind when debating net neutrality as it is very easy to become detached from ground realities. A good example at the heart of net neutrality is the narrative that the internet is a network that has revolutionised society due to its non-discriminatory and open nature. While this is true to an extent, it has prevented certain realities from entering the popular discourse on net neutrality, namely that it is already possible for content providers to pay for faster content delivery. Content providers can cache their data with content-delivery networks like Akamai, who store it in servers across the world so that the travel time to end users is shorter. Akamai, obviously, charges a fee for this service. It is therefore important to be wary of placing undue emphasis on the more appealing or engaging aspects of the net neutrality debate and keep in mind the requirements of a successful internet, whatever they may be.

Another way in which IPR is relevant is the extent to which it has adapted to the internet or more accurately failed to. The world wide web is easily the most disruptive technology of our time and it will be unsurprising if future generations end up viewing the advent of the internet on par with the Industrial Revolution in terms of its impact on societies and economic activity. One of the more prominent of these impacts has been on traditional methods for the distribution and publishing of content; the internet has rendered physical book and music stores obsolete for most customers. This has occurred due to new and legal online distribution models like e-books or iTunes, as well as less legal ones like Napster or BitTorrent. Attempts by record companies to use IPR to secure their traditional distribution lines against online piracy have been unmitigated disasters. Lawsuits have been a waste of money because perpetrators are almost instantly replaced even when they are successful while some of the less successful lawsuits show a clear reluctance to accept the changing dynamics of the industry. This spectacular failure of music companies in enforcing IPR in courts demonstrated that the best solutions to adapting to the Internet might not be legal-centric.

One such non-legal solution for many businesses has been the adoption of new revenue models based on the volume of traffic on their websites. Companies measure this traffic in incredible detail and use the data collected in two ways. One is to use to it to invite ads from companies with the lure of targeted and more effective advertising. The other method is to sell the data itself to marketing companies; a great deal can be learnt about consumption habits of consumers through their online behaviour. Google was the pioneer in the first method as a majority of its early growth can be attributed to advertising revenue. Facebook is one of the industry leaders in the second model (though it does also utilise advertising) as the ubiquitousness of Facebook means that user data is a treasure trove for marketers. These new volume-based revenue models are crucial to the debate about net neutrality.

Another way in which firms have adapted to the internet is to update the age-old techniques of hostile maneuvering. Though intended to promote innovation, IPR has sometimes skewed too much in favour of securing financial returns of existing ideas. This has enabled many firms use their IP portfolios aggressively to threaten and browbeat competitors to maintain a big piece of the market. It should be pointed out that the costs of litigation can achieve this same purpose even in the presence of a balanced IP regime. The various patent battles between cell phone manufacturers are an excellent example of the aggressive use of IPR. However, as IPR has been shown to be a comparatively toothless remedy on the internet, firms needed to find alternate methods to secure their market domination.

These methods have invariably been more technical in nature than legal and capitalise either on the traffic dependence of online revenue models or the capacity requirements of data-intensiveness of services like video streaming or VoIP. Advancements in technologies like Deep Packet Inspection (DPI) have allowed companies to discriminate data in a manner not possible during the early years of the internet. Companies can now enter into preferential agreements with telecom providers to ensure that their websites run faster or cheaper than their competitors. Faster speeds attract more customers, especially with data-intensive content, and give companies a competitive advantage. Cheaper data rates for certain websites and zero rating schemes in particular, are even worse in that they can consolidate and strengthen the market share of established firms and prevent entrants from securing enough customers to make their business model operational.

It is at this stage that the last, and perhaps the most important, takeaway from IPR becomes relevant. The concept of Copyright evolved largely as a reaction to another disruptive technology: the printing press. The press drastically changed both the volume and content of books capable of being published; previously most books were biblical as they had to be labouriously and expensively hand-written by monks. Though the process of its evolution was slow, copyright was first codified by the jurisprudentially revolutionary law, the Statute of Anne. Not only was the statute the first law for copyright, it transformed copyright from a tool for monopolisation and censorship to one that encouraged education and creativity. It did this by making the monopoly over a work temporary thus creating the concept of public domain (previously all works were owned by publishers forever). To put it another way, the printing press was such a disrupting technological advancement that it forced a new type of juristic thinking. It can be argued that the internet has had as much of an impact on societies, if not more and as such, will and should lead to the creation of a new jurisprudence. This can be evidenced not only by the debate about net neutrality but also the global concern over privacy and surveillance in the post-Snowden era. It is thus imperative that regulators of the internet do not limit their perspective by willy-nilly resorting to existing models of regulation. In other words, it is hoped that regulators will follow the path laid by the Statute of Anne and themselves innovate a new body of jurisprudence in order to secure innovation on the internet.

Madhav Chandavarkar is a Research Associate with Takshashila Institution and can be found on Twitter on his handle @MadChap88. The views expressed here are personal

Other responses on Net Neutrality by the Takshashila Community:

Viability, not just Neutrality by Pranay Kotasthane

Net neutrality is like Net Neutrality by Varun Ramachandra

Using price discrimination to ensure Net neutrality by Anupam Manur

The Financial Viability of net neutrality by Devika Kher

How 2ab explains net neutrality by Karthik Shashidhar

Thoughts on Net Neutrality and Zero Rating by GK John

On net neutrality and national interest by Nitin Pai

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The Prophecies of Reason

Why the constitutional justification for the ban on cow slaughter needs to be revisited

By Madhav Chandavarkar

The Maharashtra Animal Preservation (Amendment) Bill, 1995 was recently passed by President Pranab Mukherjee. It amended the Maharashtra Animal Preservation Act, 1976 to ban the possession and selling of beef. It also extended the ban on cattle slaughter to bulls, bullocks and unproductive cows that could previously be declared fit-for-slaughter. The amendment has resulted in a wide outcry by many against what they perceive to be a majoritarian imposition of Hinduism. They call the amendment an unjust restriction of rights and say it is unconstitutional. This is however, not technically accurate; Article 48 of the Constitution of India, a part of the Directive Principles of State Policy, provides that the “State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.” It is probably surprising to most that the legitimacy of anti-cattle slaughter laws is ostensibly drawn from “modern and scientific lines” but the Constituent Assembly debates on the introduction of Article 48 throw light on this dichotomy.

Article 48 was originally tabled by Seth Govind Das, who intended it to be a part of the Fundamental Rights chapter rather than the Directive Principles. This was however, rejected by the Assembly as fundamental rights were intended to protect the rights of humans rather than animals. Pandit Thakur Dass Bhargava then proposed that it be included in the Directive Principles of State Policy (the Articles in this chapter, though un-enforceable, place a duty on the government to achieve its objectives). Bhargava, Das, and many other speakers justify the inclusion of the Article during the debate but they largely relied on poor reasoning and the religious zealotry of most of the speakers is easily apparent. The dissenting opinions given by the two Muslim speakers stand out in contrast; their pleas that the ambiguity about the religious nature of the Article be removed are grounded in reason and are eerily prescient when read today. I urge all interested parties to themselves read the full debate; it is not overly lengthy and the interjections by the Vice-President, who is the convener of the debate, will elicit smiles from some readers.

The rationale behind Article 48, as provided by Bhargava and his colleagues, is ostensibly economic. Bhargava begins by describing how agricultural production can be increased by measures such as the construction of dams, the usage of machines, and the proper utilization of water. While these seem in line with modern thinking he goes on to state that the most important measure is improving the health of cattle but fails to provide any reason why this is the case. Then, seemingly forgetting his earlier suggestions, Bhargava comes to the conclusion that “the whole agricultural and food problem of this country is nothing but the problem of the improvement of [the] cow and her breed.” He justifies the necessity of the Article by citing statistics about how the cattle population fell drastically between 1940 and 1945 but neglects to mention that this can be attributed to the need for army rations during World War II.

Seth Govind Das, the next speaker, is unapologetic in his primary motivation for tabling the Article; he readily admits that he is a “religious minded person” and has “no respect for those people of the present day society whose attitude towards religion and religious minded people is one of contempt.” However, he does attempt to also justify the Article on cultural and economic grounds. Das argues that India’s ancient history has endowed it with a culture that is impervious to the imposition of new cultures only to contradict himself by stating how this culture is in need of protection. His economic justification mirrors that of Bhargava’s but with slight alterations; Das says that cow milk is essential to removing infant mortality but only substantiates this claim with the unanswered question: “How can they [children] be saved without milk?”

Das and Bhargava were both aware that this amendment would have religious repercussions, and they both resorted to the same argument to circumnavigate them. This was to cite how the ban of cow slaughter by Mughal emperors was an example of how the Muslim community also recognised the necessity of preserving cows. This argument fails to take into account the political expediency of minority rulers acquiescing to the customs of the majority of their populace. Das, in fact, quotes Babur’s instruction to Humayun to “refrain from cow-slaughter to win the hearts of the people of Hindustan” without recognising this expediency.

The speeches of the rest of the supporters of Article 48 degenerate further into impassioned pleas and obvious zealotry, and away from reasoned arguments and logic. Only Professor Saxena acquits himself favourably in this regard, but his argument that Article 48 is needed because half of India’s national income is derived from cattle wealth is woefully outdated.

It is at this stage that the Vice-President allowed dissenting opinions to be voiced, the first of which was that of Mr. Z.H. Lari. Mr. Lari makes it clear that he neither supports nor opposes the Article, and readily admits that Islam only permits the slaughter of cows and does not necessarily require it. His primary concern is the possibility that Bakrid celebrations will be marred by arrests made as a result of this Article. In fact, Lari states that he is in favour of the Article being included as a fundamental right as that would make it clear that the Hindu majority wished to preserve cattle for religious reasons. He makes the valid point that modern and scientific agriculture would mean mechanisation, and not a blanket ban on cattle slaughter. Lari is extremely conciliatory in his language, stating that his motivations are not “anger, malice or resentment” but a “regard for cordial relations between the communities” and a desire to avoid “any misunderstanding between the two communities on this issue”

Syed Muhammad Saiadulla is the last speaker. He begins his stance by accepting and honouring Hindu sentiments regarding the slaughter of cows and states that he would not object if Hindus want to “place this matter in our Constitution from the religious point of view.” However he is wary of an economic justification and predicts that it would “create a suspicion in the minds of many that the ingrained Hindu feeling against cow slaughter is being satisfied by the backdoor.” It is safe to say that this prediction has come true, as many people, wisely or unwisely, have gone past the point of suspicion. Saiadulla then used examples from his home state of Assam to prove that “in order to improve the economic condition of the people…useless cattle should be done away with and better breeds introduced.”

Both Lari and Saiadulla’s requests to clearly state the religious motivations in Article 48 were rejected on the grounds of secularism. It seems that the Assembly’s efforts to avoid favouring one religion have been counterproductive. There is now a Constitutional justification for Hindu fundamentalists to enforce their beliefs on the population that has the cloak of economic reasoning. The Indian economy is now drastically different that the one in 1948 and the need for the prohibition of cattle slaughter must be re-examined. This revision must also include a debate about the liberties of non-Hindus and non-religious Hindus to eat and sell beef or enjoy economic activities of their choice. Bhargava mentions in his speech that he does “not want that due to its [the Article] inclusion in the Fundamental Rights, non-Hindus should complain that they have been forced to accept a certain thing against their will.” However, he follows this by opining that “there will be absolutely no difference if the spirit of the amendment is worked out faithfully, wheresoever this amendment is placed.” It is unclear as to what the spirit of Article 48 actually was and whether it was worked out faithfully, but it is clear that non-Hindus are now complaining that they have been forced to accept a certain thing against their will.

Madhav Chandavarkar is a Research Associate with Takshashila Institution. His Twitter handle is @MadChap88

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A Lacuna of Logic

Why the government’s defence in the Priya Pillai case is not only unsound, but also self-defeating

By Madhav Chandavarkar

On January 11th, Greenpeace activist Priya Pillai was prevented from flying to London by immigration officials on the basis of a look-out circular issued by the Intelligence Bureau (IB). Pillai was on her way to the UK to speak before an All Party Parliament Group (APPG) on tribal affairs about how Essar Power, a company registered in Britain, was violating the human rights of tribal peoples in Madhya Pradesh. This restriction of Pillai’s fundamental rights created a furore in the country, especially in light of the persecution faced by Greenpeace after the controversial IB report that claimed that NGOs were “actively stalling economic development”. Greenpeace immediately filed the inevitable writ petition challenging Pillai’s off-loading in the Delhi High Court. The case is currently being heard, with the bench reserving its judgment until a later date.

This post will not delve into the legal validity of the actions of the Ministry of Home Affairs (MHA) as that issue has been analysed by more able minds, and will indeed, be conclusively decided by the Delhi High Court. It instead factually and logically examines the arguments (if they can be granted such a lofty title) that the MHA put forward in its affidavit in defence of itself. It paints a ludicrous picture of global politics claiming that vested foreign interests seek to “subdue India’s increasing strength on global platforms”. The contentions raised by the counsel are rife with glaring issues; the facts are unfounded, the links drawn are tenuous, they reveal an archaic mindset, and the overall argument is self-defeating. If All India Bakchod wished to remind the country that they are more than just comedy roasters, they could simply parody the whole affair by reading out the affidavit verbatim.

The MHA’s defence, to put it in a nutshell, was national interest. It claimed that if Pillai had been allowed to “depose” before the APPG, it would have lead to reports on human rights violations in the UK (and somehow, automatically in the EU and US as well) that would have painted India in a negative light. These reports would have consequently damaged “India’s growth prospects, at a time when India is actively pursuing economic growth and development, which requires foreign direct investment and manufacturing capacity.”

Firstly, Pillai was not “deposing” as that would imply that she spoke before an official Parliament body; while APPGs are officially recognised and regulated by the UK Parliament, they are not a part of it. A simple Google search of “all party parliament group UK” links you to the page of the official website of the Parliament on All-Party Groups. You don’t even have to click on the link to read the description of them as “informal cross-party groups that have no official status within Parliament.”

Next are these reports on human rights violations that are apparently part of a “system of various ‘instruments of control’” by “some foreign nations/groups of nations” to “further their ‘core objectives of foreign policy” “masked in the cloak of protecting civil rights”. The MHA ascribes an importance to them that seems detached from reality. A negative report is painted as having as bad an effect on foreign investment as a poor rating by global credit agencies like Standard & Poor. Terming them as ‘instruments of control’, the affidavit actually refers to these reports as if they are ends in themselves. The MHA states how determined nations will use such reports to target India without describing why; the creation of these reports seems to trump other concerns like trade, security, or national interests when determining a country’s foreign policy.

The affidavit goes on to state that Pillai’s testimony would have had a “global cascading effect” as “all reports from various commissions and countries feed on each other and quote each other, thereby creating circular documentation”. The MHA seems to be under the impression that foreign governments and agencies function with the same cut-and-paste mentality of Bollywood scriptwriters, college students on Wikipedia, or even the Indian Government itself. For good measure, the MHA also states how these ‘instruments’ had been “used very recently against Iran, Russia and North Korea” because citing those countries to justify the restriction of human rights is always a valid argument.

The affidavit finally accuses Pillai of “travelling to UK with the clearly defined motive of carrying out a campaign against the Government of India in order to impact India’s image abroad” when she was actually campaigning against a British company that was allegedly violating Indian laws. It also singles her out for the ignominy of deposing before “a formal committee of a foreign parliament” when “other prominent Indian activists such as Medha Patkar, P V Rajagopal, ….. , Praful Bidwai, have never been known to have done so.” That Medha Patkar, has testified in front of the US Congress in 1989 again shows the MHA’s penchant for factual inaccuracy. The affidavit concludes by magnanimously offering to allow Pillai to travel abroad if she gives an undertaking not to express her opinions before foreign parliaments. Pillai thankfully, rejected the offer with disdain.

These are just some of the issues with the specific claims made in the MHA’s affidavit; the over-arching arguments fare much worse. As many people have already reported, the off-loading of Pillai did not prevent her from speaking before the APPG. In the modern age of the internet and Skype, a restriction on the movement of a person does not restrict the movement of their ideas. The MHA’s poor knowledge of modern communications was made more apparent when it stated that there were no restrictions on Pillai talking about the same information within India. The affidavit therefore started off on the wrong foot; it sought to justify a restriction of human rights when the purpose behind the restriction was never going to be achieved in the first place.

The second major logical flaw is in the crux of the argument itself. Let’s assume that these reports actually do directly hinder the potential of India’s economy to grow and attract foreign investment. The MHA’s proposed solution to reduce negative appraisals on the state of human rights in India is to, rather counterproductively, actively restrict fundamental rights. This bizarre strategy is a textbook example of a self-fulfilling prophecy, where attempts to avoid one’s fate end up actively taking you on a path towards it.

An appraisal of the affidavit leads to two possible conclusions; that the current government lacks either the mental capacity or the inclination to debate with dissenting points of view (both foreign and domestic in origin). Either of the two is disturbing enough, but the unfortunate reality is that it’s probably a combination of both. Also, given the mortal fear that the MHA seems to have of these reports as well as the fact that the reports cited are those that rate India low on religious freedoms, one begins to question the real nature of Obama and Modi’s supposedly bosom friendship.

Madhav Chandavarkar is a Research Associate at the Takshashila Institution. His Twitter handle is @MadChaP88

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What’s in a name?

By Madhav Chandavarkar

It is perhaps not commonly known that the majority of the sign boards of shops and establishments in Bangalore and indeed, Karnataka were illegal under Rule 24-A of the Karnataka Shops and Establishments Rules, 1963 (“the Rules”). Rule 24-A required all establishments to display their name more prominently in Kannada than in English. The Rules were originally drafted by the State Government to enforce the provisions of the Karnataka Shops and Establishments Act, 1961 (“the Act”), a legislation enacted to create a unified law protecting the rights of workers in Karnataka.

If the existence of Rule 24-A was not common knowledge it is definitely less known that as of June 5, 2009, Rule 24-A and the corresponding penalty for any non-compliance with its provisions under Rule 26 (which also provides the penalties for all other rules) are no longer applicable. These two Rules were struck down as unconstitutional by the High Court of Karnataka in Vodafone Essar South Ltd. vs. State of Karnataka & Ors., on the grounds that they did nothing to protect workers, which was the original purpose of enforcing the Act.  

Rules 24-A and 26 in their current form were inserted into the Rules by the Karnataka Shops and Establishment (Amendment) Rules, 2008 with the aim of promoting the Kannada language. The amendment was suggested by the Kannada Development Authority  after agitations by pro-Kannada activist groups such as the Karnataka Rakshana Vedike. Rule 24-A required all name boards to be in Kannada and if a version in another language was to be used, that version would have had to have been “below the Kannada version” and it further stated that the “Kannada version shall be written more predominantly by providing more space than for other languages”.

Under Rule 26, there was a separate penalty for a contravention of Rule 24-A which was vastly higher than the penalty for a contravention of any of the other rules. A first offence would have attracted a fine not more than ten thousand rupees, while the penalty for a contravention of any of the other rules couldn’t (and still can’t) exceed one thousand rupees. Furthermore, the penalty for continued offences of Rule 24-A contained no such prescription on an upper limit; Rule 26 only stated that the fine could not be below ten thousand rupees . This is normally not the case in penal provisions as it empowers the State to levy whatever fine they wish to, which can lead to an arbitrary levy of unreasonable and crippling fines.

Within two days from the notification of the amendment in the Official Gazette, various departments in the Karnataka government were directed by the Labour Commissioner to ensure almost immediate compliance with the new provisions of the Rules. Notices were then served to Vodafone by the Senior Labour Inspector requesting them to show cause as to why the penalties under Rule 26 should not be levied against them.

Vodafone responded by challenging the Rules in a Writ Petition filed in the High Court of Karnataka, largely because the operation to change the sign boards in all their stores across the State would have cost a vast amount of money. The principle argument advanced in Court by Vodafone was that Rule 24-A and 26 were unconstitutional as they exceeded the mandate of the original Act to ensure the safety and conditions of employment for workers, and could thus be declared ultra vires (a legal doctrine that allows actions done outside the scope of the legal authority to be declared as void). Vodafone argued that these Rules interfered with their right to conduct business under Article 19 by denying them the use of their recognised Trademark.

The State government countered this argument by stating that the powers of delegated legislation conferred by the Act allowed the Government to draft Rules on anything that is ‘incidental’ to enforcing the Act and as such, Rule 24-A and 26 were  not ultra vires. The State Government also contended that similar provisions existed in corresponding legislations in Tamil Nadu and Maharashtra and they had not been challenged and given that Rule 24-A had already been challenged in the Karnataka High Court (in Laxman Omanna Bhamane vs. State of Karnataka & Ors. 2002 Vol. 2 KLJ 208) the writ petition was liable to be dismissed.

The Court rejected the contentions of the State Government, pointing out, amongst other things, that a previous version of Rule 24-A had been challenged in Laxman Omanna and that too under different grounds. The Court ultimately decided that the principal issue to be decided was whether Rule 24-A was “ultra vires as beyond the delegated legislative power”. To answer this the Court first determined the purpose of the Act by examining its pre-amble as well as going into a detailed reading of the provisions of the Act and the Rules, and the penalties for contraventions under both. It came to the conclusion that the sole purpose of the Act was to provide a uniform law to ensure the safety, work conditions and conditions of service for employees in the state.

The Court next went through all the Articles of the Constitution regarding languages and found that there are no provisions allowing for a restriction of language in trade and commerce, and that at best, the Constitution empowers States to only prescribe one or more official languages for use by government agencies. The Court finally cited Supreme Court cases on the scope of delegated legislation wherein the Supreme Court had held that rules can neither widen the purposes of the Acts from which they emerge nor add new or different provisions that were excluded by the original Act itself. Reading these three points together, the Court declared that even though provisions regulating the display of name boards in Kannada may be  “laudable”, the Government did not have the power to pass such rules, and declared Rule 24-A and Rule 26 (insofar as it punished a contravention of Rule 24-A) as ultra-vires.

However, this judgment seems to have fallen under the radar; both the government as well as pro-Kannada agitators seem to be under the assumption that Rule 24-A is still in force. The government appealed the 2009 decision in a Writ Appeal to a larger bench of the High Court, but the Court dismissed the appeal on March 17, 2014. However, ultimately the case is unlikely to have a major practical effect on the ground situation. The likelihood of an establishment displaying a Kannada name board was always determined more by the number of glass panes the manager wishes to keep intact from mob violence than by any zeal for regulatory compliance and this scenario is unlikely to change.

Madhav Chandavarkar is an intern at the Takshashila Institution. His Twitter handle is @MadChaP88

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