——————————————————————————————————-
Sent: Wednesday, December 12, 2012 5:42:09 PM
Subject: Re: Notification regarding restrictions on movement

Dear NLSIU community,
I am afraid that this latest notification comes across as a disproportionate and potentially counterproductive measure. Prof. V. Nagaraj (Registrar) had suggested the advancement of the permission time from 12:30 am to 9 pm in the faculty meeting that was held on November 8, 2012 i.e. a few days before the emergency meeting of the Executive Council on November 11, 2012. Yesterday’s notification indicates that the decision to implement this change is in pursuance of the deliberations in the Executive Council. Therefore, it would be safe to assume that both Prof. R. Venkata Rao (Vice-Chancellor) and Prof. V. Nagaraj can point to the minutes of the said meeting in order to defend this notification. However, the issue is far more complex than that.

In the faculty meeting, many of us had expressed our reservations about advancing the time for restricting the movement of students. At a very preliminary level, this measure has no rigorous causal link with the physical safety of students in general. While students have been and can be advised to avoid dangerous areas in the vicinity of the campus, imposing such blanket restrictions is an unduly paternalistic move. There have been numerous instances of sexual harassment and physical abuse of NLSIU staff and students in broad daylight. These problems cannot be eradicated with a simplistic measure such as constraining the movement of students after 9 pm. In fact such restrictions are likely to result in more students choosing to stay off-campus in the future, thereby escalating the risks to their physical safety. As the word gets out, it may also affect our attractiveness for prospective applicants, exchange students and visiting scholars among others. It is also quite foreseeable that not allowing students to enter after 9 pm may result in numerous instances where students can be left stranded in the vicinity. In addition to these practical concerns, there is a larger question of the symbolism inherent in the institution’s response. Given that these restrictions are clearly a knee-jerk response to a crime committed against one of our students, we are indirectly engaging in victim-blaming rather than addressing the root of the problem.

Another cause for worry is the opacity with which such a decision has been made. With all due respect, the members of the Executive Council are not well-informed of the ground realities of this institution. The constantly floating composition of these bodies and the relative detachment of their members is explicitly intended to ensure independent oversight over the affairs of the institution. However, they ought not to intervene in the day-to-day management of the institution. The role of the governing bodies is to make surgical interventions in case of a sustained pattern of institutional failure. Being an autonomous institution, the onus is on ourselves to keep our own house in order. In matters such as these, the leaders of the institution should have held meaningful consultations with all stakeholders, namely faculty, current students, parents and alumni before issuing such a notification. At the very least, the Vice-Chancellor and the Registrar could have explained their respective point of view in an open meeting for the NLS community. It is very easy to selectively ask a few individuals for their opinions and make sweeping decisions that have adverse consequences for the immediate stakeholders. I am afraid that this is exactly what seems to have happened in this instance.

I do realise that being in a temporary teaching position, whatever I say can be summarily brushed aside by the Vice-Chancellor,  the Registrar and the senior faculty members. The larger point worth examining at the moment is the gradual erosion of democratic practices within the NLSIU administration and faculty members. Educational institutions are not expected to be democracies in the strict sense, since the relationship between teachers and students is akin to that of trusteeship. However, there are certain norms of consultation and deliberation that should be followed among the faculty members as well as the administrative staff, irrespective of claims of seniority or past experience. The last few years have witnessed the non-continuance of weekly faculty meetings (the recent one being an exception) and an unprecedented centralisation of decision-making both with respect to academic and administrative matters.

I am not qualified to comment on administrative matters such as construction and fund-raising but I do have serious objections to the way in which the academic programs are being handled. I have already expressed my opposition to the untrammeled interference with evaluation through the Grievance Redressal Mechanism contemplated in the rules for the undergraduate program. The manner in which this provision has been interpreted and enforced over the last two academic years is a direct assault on teacher autonomy and thereby violative of the structural features of NLSIU. While there is no principled opposition to the inclusion of such a remedial power, the nature of these interventions has severely distorted the incentives for students and teachers alike to apply themselves to their expected roles. Given the absence of regular faculty meetings on academic issues (the Undergraduate Council has not met even once in the current academic year), there has been no forum to question the interpretation and enforcement of the said rule. Likewise, there seems to have been no vertical or horizontal check on teaching standards for quite a while. Several courses have more or less collapsed since they have either been allocated to instructors with no previous background in the respective fields or poorly-performing instructors have been allowed to continue in their roles on account of extraneous factors. In some cases, instructors have a self-aggrandized view of their own teaching capabilities whereas their actual performance is far below what students expect in an institution such as NLSIU. The most surprising factor is that the recommendations of administrative staff are often given more weightage in decisions about subject-allocation as opposed to the views of faculty members who are directly engaged in teaching. I can of course go on with a laundry-list of complaints, but that would detract from the issues at hand. The main point is that unless we revive the channels for deliberation that had been developed in the past, we will continue to make suboptimal and potentially harmful decisions.

I appeal to the Vice-Chancellor and the Registrar among others to prioritize the school’s long-term interests. We are of course very fortunate that the school has received UGC assistance for expanding the physical infrastructure and our leaders deserve their share of credit for the same. However, an institution such as ours has gained prestige for its academic rigour and the stimulus for self-exploration that it provides to its students. At the moment, both of these features appear to be in jeopardy.

…

—————————————————————————————-

From: sidharth chauhan <…>
Date: Fri, Mar 1, 2013 at 5:43 PM
Subject: Statement on my dismissal from NLSIU
To:  <…>

Dear NLSIU community,

As most of you would have learnt by now, my services as a visiting faculty member at NLSIU have ended. I had received a notice for termination of service on January 31, 2013 and since I was in a temporary teaching position there was no obligation on the employer to state reasons for the same. There is no administrative or legal recourse in light of the nature of the service contract. Accordingly, I have removed my personal belongings from the residential and office space that had been assigned since July 2011.

While it is open to the Vice-Chancellor to attribute my dismissal to the Executive Council, let us not keep up with any pretence. Those who were present at the emergency meeting of the Executive Council (EC) on January 13, 2013 have confirmed that there was a resolution passed in that meeting which authorised Prof. R. Venkata Rao to act as he deemed fit in my case. This was evidently in response to the tabling of the e-mails which I had sent to all of you on December 12 and 13, 2012 as well as a private e-mail sent to the Vice-Chancellor on December 17, 2012. Hence, it is not plausible to say that my dismissal is unrelated to these e-mails which were openly critical of some of the Vice-Chancellor’s decisions in the recent past. It is clearly a decision made by Prof. R. Venkata Rao in the exercise of his own judgment, albeit under the authority of the EC. Needless to say, it reflects a retrograde approach which is out of place in a 21^st century law school. Institutions such as ours have evolved in an environment of self-criticism and open dialogue, both with respect to academic and administrative matters. However, the present incumbent has refused to recognize the instrumental as well as intrinsic value of deliberative decision-making, primarily by discontinuing the established practice of weekly faculty meetings. Furthermore, my dismissal comes across as a warning meant to discourage other members of the faculty and administrative staff from asking difficult questions. The head of the institution seems to have worked out a convenient strategy. He chooses to ignore the inputs and the opinions of the faculty members by refusing to call meetings and then hides behind the authority of the EC to push through ill-considered measures. Never mind that the EC has a floating membership that largely consists of sitting justices, practicing lawyers and civil servants who visit the school twice or thrice in an academic year and hardly have the time or the inclination to understand its inner workings.   

If there were indeed some other reasons behind this decision, those reasons should at least have been informally communicated to me before the issuance of the notice. Were there serious inadequacies in my own teaching? To the best of my knowledge, the feedback received from students has largely been on the positive side. My performance in the five regular courses that I have engaged so far has not been assessed either by the Undergraduate Council or the Academic Review Committee, which are the competent bodies in such matters. The deliberate neglect of these bodies is another issue that deserves comment elsewhere. I must also reiterate that I willingly took on teaching responsibilities for two regular subjects in the July-September 2012 trimester (Legal Methods with first year students and political theory with second year students). Barring a couple of exceptions, instructors at NLSIU have not taken on such a workload in more than a decade. Perhaps I had outlived my utility and the University has identified better qualified teachers for the subjects that have been assigned to me over the last two academic years. In the interest of the learning process, I request the Vice-Chancellor to share the names of the instructors who will now fit into these roles.

As I had tried to explain in the e-mails that have ostensibly led to my dismissal, we need to address the larger questions about the core features of NLSIU and its future as a site for meaningful teaching and research. Debating these questions is doubly important since there are at least fifteen autonomous law schools that have been established on the same pattern, with more likely to be set-up in the coming years. The present administration’s emphasis on construction and publicity may create a positive impression in the minds of occasional visitors but insiders can vouch for the marked decline in the taught programs. The ordinary incentives for students and teachers to apply themselves to their expected roles have been heavily distorted by the untrammeled interference with evaluation. Under the guise of the ‘Grievance Redressal Mechanism’ introduced in 2009, the present Vice-Chancellor has used his personal judgment to change grades in almost all subjects at the end of the academic year in 2010, 2011 and 2012 respectively. While these have been described as remedial interventions, they have given short shrift to accepted considerations of process such as revaluation by instructors with experience in the relevant subject. It is now evident that most of these interventions have been made by Prof. R. Venkata Rao alone. I must highlight that he has not taught a single course since the start of his tenure in May 2009 and his second-guessing of the subject-teachers’ evaluation is even more questionable since he is not involved in reviewing their performance through any formal channels. Under these circumstances, a section of the student body has also become accustomed to the liberal use of the ‘Grievance Redressal Mechanism’ with some of them openly questioning the need to apply themselves to their studies, perhaps in the belief that the Vice-Chancellor will protect them at the end of the academic year. In short, a remedial provision has been interpreted and enforced in such a manner that it has undermined the autonomy of the teachers as well as the integrity of the learning process.

It would have been far better if the Vice-Chancellor had confined his attention to administrative matters such as the organisation of events and fund-raising while leaving the academic decision-making to those who actually teach. It is difficult for any self-respecting instructor to work in the environment that prevails at present. It has also emerged that two of our most experienced faculty members chose to leave NLSIU in the recent past since decisions made by them (while holding the Undergraduate Chair) were frequently ignored or overturned by the present Vice-Chancellor. When one faculty member privately questioned the Vice-Chancellor about the irregular interference with evaluation, he vaguely referred to some directives of higher-ups in the Union Government and went on to caution that a high rate of failure could lead to unnecessary distress among students. While I agree with the broad proposition that the existing examination rules should be interpreted in a manner that is sensitive to the needs and interests of the students, it is difficult to justify the unprecedented manner in which the judgment of subject-teachers has literally been thrown into the bin. Such reasoning totally undermines the foundational characteristics of the institution. NLSIU was designed so as to be insulated from the pressures of partisan politics and short-term thinking that could undermine academic pursuits. Its’ autonomous character not only signifies independence from undue influence by external parties but also a certain degree of autonomy for its faculty and staff. While a centralized style of functioning maybe appropriate for some settings, it has no place in an academic institution that claims to be the national leader in the field of legal education. In the school built by Dr. N.R. Madhava Menon, the faculty, staff and students have a duty to constantly ask questions about their immediate environment so as to collectively work for its improvement. Building an academic institution is an arduous process and consolidating it is even harder. In the twenty-fifth year of its teaching programmes, the school can profit from more robust questioning of its own workings. By dismissing me and seeking to silence his critics, Prof. R. Venkata Rao is desperately trying to undermine the deliberative ethos of the institution. What is even more serious is the evident lack of communication amongst the faculty members. Given the absence of regular faculty meetings, there now seems to be a presumption of distrust among several factions as well as a reluctance to collaborate in meaningful pursuits. As outlined above, this is contrary to the culture of open minded discourse that we seek to inculcate among the students.

From the perspective of students, the culture of extracting concessions from the head of the institution now includes repeated and inexplicable extensions of term paper deadlines, condonation of attendance shortages and the conduct of special repeat examinations for flimsy reasons. The easy availability of such concessions translates into shoddy classroom engagement and obvious deficiencies in writing skills, even among the students in the advanced years of their studies. Perhaps these concessions are handed out to ensure a certain degree of popularity with the student-body. However, the net consequence is a serious dilution of the quality of education that is expected by those who seek admission to the NLSIU. In the long-run, this is bound to have a negative impact on the employment prospects of students graduating from this school as well as its hard-earned reputation. While some may yet make a comprehensible argument for such populism, it is difficult to ignore the myopic thinking reflected in some other academic decisions such as those of allocating subjects to instructors with no previous background in a given area. Subject-allocation in such an inexplicable manner has adverse effects on the learning outcomes for students while also being an imposition on the hapless instructors who are forced to teach subjects that they are not familiar with. Unsurprisingly, it is younger instructors in temporary positions who usually find themselves in such situations. Such working conditions are perhaps a harsh reality in poorly funded colleges located in remote areas. However, there is absolutely no excuse for the continuance of such practices in a supposedly elite institution.     

My motivation for taking up a teaching position at the NLSIU had germinated from my own experience as a student here a few years ago. The five years spent in this school helped me to move on from past failures and opened my eyes to a culture of open dialogue and self-reflection. The opportunity to interact with immensely talented peers was truly transformational. The initial discomfort with seemingly irritating questions about one’s own interests and background can easily morph into a life-long commitment to rational argumentation and lateral thinking. Not only does every student who passes through this school learn to overcome cultural stereotypes but there is also the sometimes unconscious inculcation of respect for diversity. Ten years after having started as a student, I can claim to have visited my friends in almost all parts of the country and even beyond, learning something about their culture along the way. I had decided to pursue a career in teaching by the time I reached the final year, primarily owing to close interaction with several faculty members as an office-bearer of the student body in 2006-07 and the opportunity to act as a teaching assistant in 2007-08. Even the decision to pursue a judicial clerkship after graduation was geared towards a teaching career.

While I am thankful to Prof. R. Venkata Rao for giving me the opportunity to teach at my alma mater for the last twenty months, such gratitude cannot be inflated to blind obedience. Please note that I am not loosely invoking philosophical anarchism. As participants in institutions, we are bound to hierarchies, but they must serve constructive and beneficial ends. If hierarchies function in an opaque manner, it is our duty to ask questions of those who claim power over us. Hopefully this is not the endgame for me at the NLSIU and there will be a chance to return on the other side of a doctoral degree and more importantly a leadership change that will see the restoration of the deliberative ethos of this institution. For now, I am in talks with another institution for possible employment in the next academic year, proceeding in the hope that the idea of an autonomous law school is not a lost cause.

…

Framed as an attempt to draw a balance between press freedoms and the integrity of judicial proceedings, the judgment recognises a new remedy wherein litigants can seek postponement of the publication of news-reports about cases in which they are involved. It is clear that such orders can be sought in respect of all forms of media, be it of the print, electronic or digital kind. While explicitly acknowledging this as an act of judicial-lawmaking, it was prescribed that litigants who apprehend a ‘substantial risk of prejudice’ in ongoing trials can approach higher courts by way of filing writ petitions to seek such a postponement. The specifics of such a postponement would then be decided by the higher court, effectively allowing litigants in lower courts to seek temporary ‘gag orders’ when they apprehend prejudicial reporting. The creation of this new remedy rests on the reasoning that the ‘freedom of speech and expression’ enumerated in Article 19(1)(a) of the Constitution is not absolute and must yield to the rights of litigants to receive a fair trial, the latter derived from the open-textured protection for life and liberty enumerated in Article 21 of the Constitution. Given that the apex court was dealing with the internal tensions among two distinct fundamental rights, one would have expected some more substantiation in support of its ruling.

The relationship between the judicial process and public opinion is a complex one. At one level, one can argue that the verdicts rendered in cases that attract a lot of publicity do have a bearing on public confidence in the judicial system. In this vein, there might be something to say in favour of an approach where judges are attentive to the currents of public opinion, as expressed in the press and elsewhere. There is also an expressive value in deciding cases in a manner that can be readily understood by the layperson so as to mitigate the perception that the judicial process is elitist and disconnected from widely held beliefs. However, the requirements of ‘open justice’ do not extend to blind reliance on the transient positions of the numerical majority. Adjudication in the common-law tradition principally relies on an adversarial form of litigation, where judicial discretion is constrained by elements such as the presentation of evidence and arguments in the courtroom, the principles upheld in past decisions and in some cases higher values enshrined in sources such as a Constitution. The judicial process is consciously designed to filter out emotive and impulsive factors that often shape public opinion. Furthermore, courts in liberal democracies are expected to discharge a countermajoritarian role, wherein they are often required to go against the grain of collective interests in order to safeguard the rights guaranteed to individuals and minority groups. A judge who is excessively concerned about public approval is very likely to arrive at a decision that compromises these features. While there may be some happy coincidences where the decision arrived at inside the courtroom may be in sync with public opinion, the latter cannot be held up as a factor that shapes the outcome in the first place.

In most common law jurisdictions, such issues are unlikely to be addressed through the judicial route. The judgment can readily be criticized as an exercise in judicial overreach, especially since it imports a remedy that appears in the Contempt of Courts Act, 1981 of the United Kingdom and has no textual basis in Indian law. In fact the court was advised by several senior lawyers who had appeared in the case that the task of regulating the reporting of court proceedings merits a legislative intervention. However, the conceptual division between adjudicative and legislative functions has been frequently breached by our courts in the past and the same is often portrayed as a credible strategy to counter-act the inertia of the political branches.

If one goes by the coverage of the arguments in this case (where no gag orders were issued), the Justices’ questions touched on generic problems such as inaccurate reporting and undue sensationalisation, both of which can perhaps be seen as detrimental to the interests of litigants and contributing to the erosion of public confidence in the justice-delivery system. In light of the facts that triggered this case, one should also read in a concern about the disclosure of private correspondence between litigants, the act of publication ostensibly interfering with adjudication. However, the judgment does not explain how disclosures of this kind are likely to cause prejudice to parties in a broader sample of comparable disputes. Furthermore, there is no attempt to explain why litigants deserve confidentially in all categories of litigation, especially when publicity is also a desired value in conducting legal proceedings. The evident assumption in the judgment is that uncontrolled reporting of court proceedings in status quo is frequently causing prejudice to the interests of litigants, thereby warranting the use of the law of contempt against the press. In that sense, the new remedy of seeking postponement is described as a preventive measure that would help reporters in avoiding such harsher sanctions. This line of reasoning is not just baffling but also appears to be circular. The judgment makes the leap towards providing a preventive remedy even though the perceived cause of the harm that is sought to be avoided, namely prejudicial reporting, has not been sufficiently demonstrated. Has Chief Justice Kapadia assumed that the publication of correspondence exchanged between the litigants is going to necessarily distort the judicial process? Stated in more general terms, is there an assumption that trial judges will necessarily make bad decisions if there is intrusive, excessive or inaccurate reporting about the cases that they are hearing? Since there are no credible empirical studies to confirm or deny the presumed correlation between intrusive reporting and decision-making patterns, it might be tenable to suggest that the apex court was responding to the felt need of preventing prejudicial reporting, rather than a demonstrated one. This suggestion can of course lead us to a much broader discussion on how the personal predilections of the incumbent CJI can have a noticeable impact on decisions about the allocation of time and resources for hearing cases.

The text of the judgment even has an ornamental reference to a much-cited essay by Ronald Dworkin (‘Taking Rights Seriously’, 1977) but does not really explain why press freedoms should not be taken seriously in this context. A more persuasive line of reasoning would have framed the issue as that of a direct conflict between press freedoms and the privacy of litigants. Perhaps the court had considered this and opted not to pursue it since the precedents recognising fair trial guarantees are cast in far more determinate terms than those dealing with expectations of privacy. In a recent speech, the CJI has favoured a method of constitutional interpretation that emphasizes the underlying principles embedded in the text rather than a formalist reading. This presumably Dworkinian search for principles is not a freewheeling inquiry but one that requires a coherent reading of text, political history, precedents and publicly articulated values. If CJI Kapadia is indeed an eager follower of Dworkin, then he might have missed a trick by choosing to ignore the numerous precedents that have expanded and consolidated press freedoms in post-independence India.

Nevertheless, since the court was considering general prescriptions, we can surmise that special attention was reserved for those suspected or accused of having committed violent crimes, since their identification in the press and the publication of stories recounting the details of the alleged crimes are more likely to militate against the ‘presumption of innocence’. The need to counter-act the risk of a ‘trial by media’ playing on the minds of a judge is perhaps on a higher footing than comparable possibilities in civil cases, since the liberty of the accused is at stake. However, the newly created remedy of seeking postponement as a preventive measure is unlikely to address that problem. Attempts to regulate the reporting of what happens in criminal proceedings can be easily undone since journalists can gather information from the investigators, witnesses and other interested parties outside the courtroom. Reports and commentaries can be framed so as to avoid direct discussions of courtroom proceedings and yet disclose information that might lead to assumptions of guilt and undeserved social stigmatization of the accused. Though described as a ‘neutralizing device’, the postponement of the publication of reports about judicial proceedings will not yield any noticeable gains. It is difficult to buy the claim that this newly announced remedy will serve interests that are not being already accounted for by existing statutory provisions. For instance, in some specified classes of litigation, the trial judge has powers to order in camera proceedings so as to protect the privacy of litigants, especially in cases involving matrimonial disputes and criminal cases involving sexual offences. As suggested earlier, if the litigants’ need for confidentiality must prevail over the value of open justice in some exceptional circumstances, it is better to wait for legislative prescriptions. A foreseeable consequence of the availability of this new remedy is that it will encourage a larger number of litigants to seek protection from the higher courts, thereby exacerbating delays in the trial stage and at the same time increasing the workload of judges in the respective High Courts.

Though the scope of the judgment is confined to the problem of news-reporting or commentary that can cause prejudice to the litigants in sub judice matters, one can also reflect on a neighbouring issue, namely that of statements made by lawyers and judges being misrepresented or quoted out of context in the news-media. In some cases, inaccuracies in reporting either feed into or escalate into unsubstantiated criticisms directed against judges and their orders. Very often, selective quotations of statements made or questions asked in an argumentative capacity inside the courtroom are conflated with the final disposition of the case. Undeniably, uninformed reporting often ends up portraying the judicial process in poor light. In such circumstances, the proper response is not the impulsive use of contempt powers but institutional measures designed to reduce the likelihood of inaccuracy and misrepresentations in journalistic content. This begs the question of whether courts should be insisting on some entry-level qualifications for legal correspondents. The Supreme Court of India, acting in its administrative capacity, has already prescribed a bachelor’s degree in law coupled with seven years of previous experience in covering lower courts as a prerequisite for recognising correspondents. Many of the High Courts are gradually following suit but similar requirements are not feasible at the level of the subordinate judiciary. One can readily anticipate the objection that journalism does not necessarily require expertise in the subject-matter that is being reported or commented upon. An incremental solution is to improve information-dissemination practices in the courts so as to both avoid and respond to errors as well as mischaracterization in reporting what goes on inside the courtroom.

As far as substantive criticism of orders and judgments is concerned, there ought to be no restraints on commentary, whether in the news-media or elsewhere. Judicial decisions become a matter of public record and all citizens should be free to comment on them, irrespective of their proximity to legal practice. Should there be errors in reporting, pointed clarifications can be issued. In the face of trenchant criticism, judges worth their salt will take it in their stride. However, there is a tricky terrain when it comes to personal criticisms of judges, especially in cases of allegations about bribery, improper conduct and conflicts of interest. In such circumstances, there are remedies available to judges such as defamation suits. However, the disproportionate use of the same has provoked another debate. In any case, regulating the reporting of court proceedings is unlikely to prevent such ad hominem criticisms. In fact, even temporary ‘gag orders’ might raise further apprehensions about judicial misconduct even when there might be none. Coming to the bogey of contempt powers, it is unfortunate that a climate of fear has evolved around their very mention. Even though they have been irresponsibly used in response to personal criticism and satire directed against judges in a few instances, they are intended to be used only as a measure of last resort if there is a direct obstruction in the conduct of judicial proceedings or a refusal on part of interested parties to comply with orders. In fact the threat of contempt proceedings has often compelled governmental authorities to comply with progressive orders.

The Court’s decision to admit this case for a hearing on merits appears to have more to do with how the Justices view themselves rather than problems that have been credibly demonstrated. Perhaps their perception of inaccurate reporting has been amplified by the fact that they are shown news-coverage on the legal system on a daily basis and the same entails exposure to errors and inconsistencies in large numbers. The Justices of the Supreme Court (and to some extent the High Courts) lead fairly privileged and insulated lives. Though they do not earn as much as the leaders of the bar, they are entitled to government bungalows and a retinue of personal assistants for secretarial work and domestic help. They are treated with ceremonial respect both at the courts and at social gatherings. They wield great power as long as they are serving on the bench. In a gradually democratizing society they are among the last bastions of a privileged elite among public officials. Such a setting can easily lead one to assume a paternalistic and self-righteous stance, all the while fuelled by the failures of the elected branches. In such a scenario, there is a dichotomy at play. On one hand, the higher judiciary plays an expressive role in interpreting the rights and guarantees in the constitutional text (free speech being amongst them), while on the other hand their immediate routine betrays a meaningless adherence to hierarchy. Given their elevated position inside the courtroom, it is quite conceivable that the scores of journalists (often a generation younger than the Justices) are likened to trouble-making children who need to be monitored. In acting on their urge to mind these children, the Justices might be revealing a lot more about themselves than what is ordinarily visible to court-watchers.

From the perspective of law students, one of the main incentives for applying for clerkships is to boost their chances of pursuing higher studies at prestigious foreign universities. Some others apply with the hope that the clerkship experience will enable them to gain a better understanding of the judicial process before making a foray into litigation. While it is an oversimplification to view this option in purely instrumental terms, the above-stated motivations cannot be dismissed since pursuing a clerkship entails some opportunity costs especially when compared to other lucrative options in the legal services market. Needless to say it is up to the individuals involved to extract the most value from their short period of service. It is undoubtedly a great opportunity to observe the nuances of appellate litigation, decision-making and the institutional structure of our apex court.

At present, the clerkship system is still in a nascent stage and many of the Justices often hesitate to entrust their law clerks with substantive research tasks. While most of the Justices have started recruiting at least one or two law clerks every year, there is a widespread feeling that the roles and responsibilities of the law clerks are not sufficiently clear at the outset. While each Justice has a distinctive style of functioning, it is important for those recruited as law clerks to have a coherent idea of what they are expected to do. Based on my own experience as well as interactions with other law clerks, the main research tasks can be outlined under three categories, namely (i) preparation of briefs on facts and legal questions in freshly instituted matters, (ii) assistance with preparation of orders and judgments and (iii) preparation of speeches, articles and notes on contemporary legal developments.

Those who are familiar with the scheduling of cases in the Supreme Court are well aware of the fact that most of the Justices’ workload is attributable to the preparation required for initial hearings in cases (‘miscellaneous matters’) that are usually listed for Mondays and Fridays every week. On average, each bench has to process nearly 40-50 freshly instituted matters every week. It goes without saying that this is a laborious task that requires immense concentration and attention to detail. A large portion of the miscellaneous matters filed in the Supreme Court are dismissed at this preliminary stage, either without assignment of reasons or by way of short orders. It is only a relatively small portion of these miscellaneous matters which are admitted for a subsequent hearing on merits (‘regular hearing matters’). Even though the decision-making at this stage is made after hearing brief submissions by the lawyers appearing in Court, the Justices usually make up their minds about the merits of the case during the preparation time itself. It is in this context that the law clerks can be relied upon to prepare summaries of the materials on record and short memoranda on the contentious issues. Furthermore, the written submissions made by the parties at this initial stage are usually not very well fleshed out and hence the Justices can profit from able research assistance, especially to verify and search for applicable principles and precedents. While most Special Leave Petitions (filed under Article 136 of the Constitution) are easily dismissed for raising frivolous questions, occasionally the Justices encounter cases that frame important legal questions. It is mostly the cases of the latter variety that are admitted for hearings on merits.

In comparison to freshly instituted matters, the scope for reliance on law clerks is relatively lesser when it comes to the regular hearing matters that are usually listed on Tuesdays, Wednesdays and Thursdays. At this stage, the lawyers appearing on behalf of the interested parties are involved in extensive oral arguments before the respective benches and the same are further supported through written submissions. While this is not the proper forum to comment on the inefficiencies of the current institutional practices pertaining to regular hearing matters, it will suffice to say that Justices usually gather enough material from the submissions made by the parties. In the process of writing substantive judgments, most of our Justices are also conscious about confining the basis of their decisions to the materials submitted during the hearings. Unlike Constitutional Courts in some foreign countries, most judges in our appellate courts are less likely to pursue their own research and rely on materials other than those cited by the lawyers who have argued before them. Given the heightened importance of decision-making at this stage, the involvement of law clerks is likely to be less pronounced. However, some Justices have been known to ask their assistants to prepare first drafts or notes on contentious questions. The involvement of law clerks in the preparation of substantive judgments can prove to be a game changer since they are more likely to consult academic writings as well as precedents from other jurisdictions that might have escaped the attention of those who have argued the case. In this sense, the generational difference between the Justices and their law clerks also corresponds to increasing familiarity with a wider array of resources for legal research. Law clerks are far more likely to be adept at using electronic databases for locating commentaries and precedents. At the same time, the expansion of inputs into judgment-writing can also attract the skepticism of practicing lawyers who might feel shortchanged if judgments travel beyond the submissions and cite materials that the latter are not familiar with. Regardless of such apprehensions, it must be reiterated that while the substantive decision-making is necessarily informed by the accumulated experience of the judges in each bench, the involvement of much younger research assistants in screening documents and submissions has created considerable efficiency-gains vis-à-vis preparation time as well as disposal rates. It would indeed be futile and counterproductive to point to the involvement of law clerks as a cause for concern about the quality and integrity of decision-making by our apex court.

As outlined earlier, law clerks are also frequently asked to prepare speeches or notes when Justices are invited to make presentations at academic conferences and public lectures. Most of these extra-judicial statements tend to dwell on themes such as improving access to justice, bench-bar relations, legal aid and the promotion of dispute-resolution methods such as mediation. The channels for learning are of course not confined to the tasks mentioned above. Apart from the broader understanding of judicial process, the clerkship experience also exposes one to institutional processes such as those related to filing of cases, listing of matters, the perceived impact of bench-composition on decision-making and the different methods of case-management adopted by the respective benches. The multi-bench structure of our Supreme Court has led to the creation of institutional dynamics that are quite distinct from apex courts in other countries which either tend to sit en banc (i.e. all judges sitting together to decide a case) or have fewer panels. Furthermore, there are also numerous opportunities to observe the country’s most prominent lawyers as they present arguments.

However, this note will be incomplete if I only choose to dwell on the nature of tasks assigned to law clerks. As outlined earlier, I will now turn to some suggestions with regard to the recruitment of law clerks in the first place. One of the difficulties faced at present is that the top students from the empanelled law colleges are usually not interested in judicial clerkships since they have direct access to more lucrative career options. This disparity is even more striking when one takes note of the fact that in many foreign countries such as the United States of America, Canada, Australia and South Africa among others, judicial clerkships attract the best law graduates in spite of the availability of lucrative career options. While I understand that it may be difficult to increase the stipends paid to the law clerks (for the 2011 intake the pay is Rs. 25,000 per month) some decisive steps must be taken to convince law students that undergoing a judicial clerkship can yield benefits in the long run. For starters, the notification inviting applications can clearly mention that applicants stand to gain a lot in terms of understanding the judicial process as well as improving their prospects for higher studies and professional growth. We must remember that final year law students at most of the prominent law colleges in the country are being actively pursued by leading companies and law firms, both from India and abroad. In this setting, the Supreme Court should at least make an effort to have its presence felt so as to attract the best law students. Another suggestion is that of broadening the pool of applicants by allowing recent graduates with a few years of work-experience to apply for these positions. Their applications can be accepted on a rolling-basis throughout the year. The same practice is followed by courts in many foreign nations and there is no principled reason for confining the intake to final year students. This can be easily done by uploading a call for applications on the Supreme Court website. It goes without saying that many law graduates who are unsure about their career choices may benefit from clerking in the Supreme Court in the interim. However such an expansion of the applicant pool should not extend to those who have already worked in the chambers of lawyers who regularly appear before the Supreme Court.

Since the Justices are unquestionably overburdened with the large number of freshly instituted matters each week, there is often the risk of inadequate attention being given to the preparation of substantive orders and judgments in matters reserved after regular hearing. While this observation may perhaps not be true for all Justices, there is no doubt that Justices need to be very confident about the abilities of their law clerks before delegating important tasks such as the preparation of drafts for judgments. Needless to say, such tasks require the capacity for prolonged study and rigorous analysis. However, the present method of recruitment of law clerks does not account for these skills. It is better to recruit a few motivated and competent law clerks every year rather than recruiting a large number of applicants who may be indifferent to the tasks assigned to them. While the short-listing of candidates on the basis of their resumes is a necessary filter, it would be better if the candidates are also required to send writing samples (either a term paper or a thematic essay). Questioning on the basis of such writing samples is an effective method for testing the applicant’s familiarity with a particular topic as well as the ability to defend one’s views. Such a process will enable the Committee of Judges to conduct a more meaningful interview and accurately gauge the candidates’ capacity for research and analytical writing.

It would also be useful to hold an orientation session at the beginning of the Supreme Court’s term, i.e. during the first week of July each year. As I mentioned earlier, most of the applicants are clueless about the tasks expected from them. It is only after several weeks that they are able to work out a comfortable equation with their supervisors, often through trial and error. While the specific responsibilities will depend on the individual working style of each Justice, the law clerks should at least be given a broad idea of what to expect. This entails that the applicants must be clearly told that they will be expected to prepare briefs for freshly instituted matters as well as rendering assistance in the preparation of orders and judgments. This can be easily achieved through an interaction-cum-orientation session that can be held a few days after the fresh batch of law clerks has been assigned to the respective Justices’ offices. This session can be conducted either by an official from the Registry or by those who have served as law clerks in the past. It should also be kept in mind that the law clerks mostly work at the residential offices of the Justices and are expected to maintain a high degree of confidentiality about their involvement in pending cases. This means that they usually work in an environment of relative isolation from their immediate peers, a factor that often leads to several drop-outs from the clerkship programme. An orientation session at the beginning of the service-period will ensure that there is healthy collegiality and interaction amongst the entire pool of law clerks.

Unlike their contemporaries who begin as apprentices under established lawyers, law clerks usually do not have to face the unpredictable behaviour of clients and fellow lawyers involved in a case. While handling such uncertainties can be glorified as a rite of passage for a budding litigator, law clerks have to negotiate their way through the labyrinthine bureaucracy of the Court as they interact more closely with the personal staff at the residential offices of the Justices. Once in Court, law clerks often find themselves interacting with the security personnel and the staff at the judges’ library, often with comical consequences. Irrespective of these differences, clerkships offer the opportunity for deep and sustained engagement with cases that are heard on merits. Unlike a legal scholar who usually has to confine his/her analysis to the reading of the eventual judgment, a law clerk gets to see the records from the lower courts, the inputs made by the counsels for the interested parties, the courtroom dynamics and often gets to contribute to the decision-making process. All in all it is an experience that I would highly recommend for those interested in studying our judicial system in the long-run.

Sample Question – Issue-spotting essay

Assume that you are a resident of Flatterbhavi, i.e. a town wherein all adults participate in annual elections for constituting a Town Council. The Council is primarily responsible for maintaining civic facilities such as public transportation, street-lighting and night-shelters for the homeless as well as the provision of utilities such as electricity, water and sewage facilities for residents among other functions. The Council has also traditionally played a supervisory role in ensuring cleanliness in the streets and parks. The Council consists of members who are elected from the four main neighbourhoods in the town (i.e. Rawlsian Alley, Nozick Street, Raz Road and Simmons Circle) and there is a convention that the senior-most member (in terms of length of prior service on the Council) will also serve as the Mayor of the town. While the Council is primarily a representative body with rule-making functions, the Mayor is vested with executive powers so as to enforce these rules and act for the general welfare of the Town.

In 2011, Z. Sankata Vow is serving as the Mayor since he has previously served on the Council for six years and opted for re-election this year. As a member of the Town’s Council in the past, he has been instrumental in organising religious meetings in public places. He received accolades for designing a charitable program wherein homeless individuals who attended these religious meetings were given free food, clothes and books, over and above the access to night-shelters maintained by the Town Council. Z. Sankata Vow enjoys widespread support in his own neighbourhood (i.e. Rawlsian Alley) and even the residents of Raz Road and Simmons Circle have a favourable impression of him. However, the residents of Nozick Street have never really warmed up to him. As it turns out, most of the residents of Nozick Street are atheists and hence they detest the new Mayor’s enthusiasm for organising religious meetings in public places. Furthermore, they have objected to the charitable program by describing it as a colossal waste of public resources and a counterproductive measure that makes homeless persons dependent on the freebies handed out to them. So much so that Midhart Rowhan, a Council member from Nozick Street has repeatedly assured his constituents that he will try to persuade the Mayor to at least discontinue the religious meetings. However, he has made no promises with respect to the charitable program. Frustrated by the inability of Midhart Rowhan to exert any influence on the Mayor, some residents of Nozick Street begin a public campaign to criticise the charitable program, mainly through the local press and the distribution of leaflets.

Since this is his first term as Mayor, Z. Sankata Vow is keen on deepening his popularity among the residents of Flatterbhavi, possibly in the hope of getting re-elected next year. He decides to confront the public campaign mounted by the residents of Nozick Street by scaling up the charitable program and holding religious meetings more often than had been the practice in previous years. Eager to support their Mayor, the residents of Rawlsian Alley, Raz Road and Simmons Circle start attending these meetings in large numbers. The residents of Nozick Street are usually hesitant to attend the religious meetings but some of them decide to show up and raise slogans in protest. This disagreement plays out publicly for several months, thereby leading to the escalation of tensions.

Z. Sankata Vow realises that the scaling up of the charitable program has added to the financial burdens of the Town Council. Towards the end of 2011, he proposes to the Council that a new tax be levied in order to raise finances for the better upkeep of public streets and parks. As soon as the proposal is placed before the Council, Midhart Rowhan raises an objection by arguing that this is nothing but a disguised method for subsidizing the charitable program since the funds meant for the upkeep of streets and parks would most likely be diverted for the former purpose. Taking strong exception to these criticisms, the Mayor responds that if the Council is unwilling to endorse his proposal, he can use his executive powers to impose the new tax. The news of the proposed tax is met with disbelief by the residents of Nozick Street who not only decide to intensify their protests against the charitable program but also announce their intention to disrupt it.

How would you examine this scenario if you were in the following positions?

(A)   As a resident of Rawlsian Alley and a keen supporter of Z. Sankata Vow’s charitable program

(B)   As a resident of Raz Road, who appreciates the past efforts made by Z. Sankata Vow but does not want to see the disagreement over the charitable program escalate further

(C)   As a resident of Simmons Circle, who was initially skeptical of the charitable program but has come to support it with the passage of time, especially since the number of homeless people seen begging on the streets has drastically reduced

(D)   As a resident of Nozick Street who has actively participated in protests against the charitable program

(E)    As a homeless person who does not pay taxes but votes in the annual elections to the Council

]]> http://www.criticaltwenties.in/philosophyreligionculture/an-allegorical-tale-as-a-sample-question/feed 0 http://www.criticaltwenties.in/mediapopularculture/revisiting-the-case-for-book-piracy http://www.criticaltwenties.in/mediapopularculture/revisiting-the-case-for-book-piracy#comments Wed, 26 Jan 2011 07:39:43 +0000 Sidharth http://www.criticaltwenties.in/?p=2083 One of the unpleasant aspects of pursuing legal education in the United States is the considerable expenditure needed for procuring mandatory textbooks. Some would say that this pales in comparison to the inordinately high tuition fees that range between US$ 38,000-48,000 per annum, depending on the reputation of the law school in question. From the viewpoint of yours truly, who loudly identifies himself as a LL.M. student from a developing country, the amount spent on both semesters’ casebooks is roughly equivalent to a year’s tuition in an Indian law school. Such quantitative comparisons don’t necessarily reflect the qualitative differences between legal education in the two countries and one would need several posts to even cursorily examine the latter subject. Nevertheless, having contributed hundreds of dollars to the coffers of Aspen Publishers, Thomson West and some anonymous sellers on Amazon, I feel compelled to highlight the stark contrast with my undergraduate years in Bangalore where access to used textbooks and pirated books (of all descriptions) at throwaway prices was and presumably still is considered a matter of right. While there are several lending libraries and a few shops that trade in ‘used books’ within the immediate vicinity of the University of Pennsylvania, I am yet to encounter a first world variant of the street-side vendors who deal in unauthorised books at ‘student-friendly’ prices.

In this note, I will not ramble on about the sky-high costs of legal education in the United States. Instead, I am recycling some portions of a term paper (written in July 2006) that dwelt on how the market for pirated books works in Bangalore. After speaking with several street-side vendors in some prominent commercial areas such as the Mahatma Gandhi (M.G.) Road, Commercial Street and Shivajinagar Market, I had confidently made some sweeping comments about how the prevalence of book piracy contributes to better knowledge-dissemination in society by undoing the designs of profit-seeking publishing houses. Since copyright fundamentalists will certainly disagree with those views, I reproduce some of them here in the hope of provoking some debate.

It must be clarified that not all of the offerings of street-side vendors consist of unauthorised copies of popular titles. A significant number of them describe their businesses as that of trading in ‘used books’. Their supply is fed by contributions from local residents and discards from organised book retailers, libraries and educational institutions. I had posed some predictable questions to the vendors that I got to meet, i.e. about the volume of their regular sales, the profile of customers, the margins that they make, problems encountered in bargaining with customers and the frequency of bribes (read protection money) that need to be paid to the beat constables. A visible feature among most vendors was the mobile nature of their operations. While a few of them displayed books on carts, most of them carried books in canvas bags, ostensibly to ensure a quick getaway in case there is a raid at the behest of senior police officials. One of the vendors located on Church Street was unexpectedly cooperative and took me to the location of the printing machine that fed his supply of unauthorised copies.

The vendors are of course just the front for what can sometimes be elaborate operations. The central figure in these operations is the owner of an offset printing machine. One of the better educated agents in the racket regularly visits prominent book shops and keeps track of which titles are doing good business and getting attention. A few copies of these books are bought for making ‘positives’ and the printing machines go to work and churn out copies by the hundreds. The printer next ties up with a group of vendors who then sell the books in and around prominent commercial locations. There is a substantial initial investment in some cases with offset printing machines costing around Rs. 5 Lakhs and in the alternative, reliable photocopying machines costing approximately Rs. 1 Lakh. However, the margins being made are substantial and sufficient enough to guarantee returns on investments within a few months. The profits from sales are of course shared between the vendors and the printer with a certain amount earmarked for bribing policemen to look the other way.

There is not much security or predictability in such a business model. Each vendor’s sales ultimately depend on the location of operations and the nature of bargaining with customers. The pervasive risk of course is that of police-raids and seizure of goods. One of the vendors on Church Street admitted to paying a daily bribe of Rs. 200 to the local beat constable, irrespective of the amount of sales on a given day. Another vendor in Shivajinagar said that he paid Rs. 4,000-5,000 every month at the nearby Police station. The identification of ‘zones of tolerance’ tended to correspond with the vendors’ ability to make higher margins and consequently offer higher amounts as bribes. For example, one could see a concentration of vendors on M.G. Road and Church Street since there is a higher likelihood of making healthy profits in those areas by selling to foreign tourists who don’t bargain as hard as the locals. In comparison, the policemen are less tolerant of vendors attempting to sell off-set prints and photocopies of books in areas where they know that the vendors have smaller profit margins. The sustenance of the business is clearly dependent on the incidence of police corruption in each locality.

Some of these operations even have inter-city networks, where the flow of copies runs from bigger cities (where most of the prominent publishers are located) towards smaller towns where the assured demand for prominent books presents a business opportunity for the copiers. It is clear that the continuance of ‘book piracy’ on the streets has obvious benefits for customers by way of making available otherwise expensive books or those which have not been published in the domestic market. In some ways it is a value-addition for customers who can quickly make purchase decisions on the roadside without putting in the time needed for careful browsing in a book shop. Another way to look at a pirated books market is that the latter serves the interests of some clearly identifiable sections of society, i.e. the vendors who are mostly from low-income backgrounds as well as buyers with limited purchasing power.

Besides being a means for sellers to earn a livelihood and for readers to gain cheap access to books, a ‘grey market’ is also a site of contestation in the larger debate about the need for copyright enforcement in developing societies. Those who argue in favour of piracy often point to an alternate conception of societal legality that tolerates and sustains such markets despite their illegal status under the state-administered law. The dominant discourse emphasizes the need for stronger copyright enforcement as a necessary condition for economic advancement. The message that resonates through governmental practices, the mass media and education is that better copyright protection is essential for attracting foreign investment and the expansion of business in ‘information goods’ such as books, films, artistic works and software among others. With particular reference to the book-retail trade, the mainstream view is that more publishers will enter the market and make quality titles available only if there is a severe clampdown on the grey market of cheap offset prints and photocopies of popular titles. Rooted in international conventions this discourse filters down to localised interventions by non-state actors as well An example in the major Indian cities is the commonplace practice of law firms (mostly specialising in ‘intellectual property’) relying on private security firms (headed by retired army and police officers) who in turn aid the police in conducting raids on vendors who stock pirated movies, music, software or books.

Some scholars have described copyright infringement as a cultural problem in societies with strong communitarian conceptions of sharing information. This idea comes into a clash with the individualistic notion of authorship which is at the core of a strong ‘copyright protection’ regime. The obvious rejoinder to this reasoning is that markets for pirated goods are sustained even in developed countries which presumably have strong traditions of individual ownership over information goods. There are also some attempts to draw linkages between authoritarian governance and the extent of copyright piracy. The example of China is frequently invoked to argue that its’ government’s disregard for intellectual property rights as well as excessive censorship on personal consumption of information combine to encourage the expansion of grey markets for pirated movies, songs, software and books. A far more simpler explanation is that this phenomenon allows cheaper access to products which are otherwise not easily available or overpriced by corporate interests. As hinted earlier, a benign view is that the prevalence of piracy in information goods allows for more equitable distribution of useful information among differently placed social groups.

Defenders of book piracy can also make arguments in a historical frame. Prior to Johann Gutenberg’s invention of the ‘movable type’ in 1455, access to written works was largely confined to those with the requisite purchasing power, namely the ruling classes and the priestly classes who could also be described as the beneficiaries of an order of ‘information feudalism’. The invention of the printing press brought with it the ability to disseminate knowledge widely and the same has been improved upon for several centuries. However, in the view of the sceptics, the evolution of the modern copyright system has created a new set of barriers (such as unduly long periods of protection and repeated extensions of copyright terms), thereby reinforcing an order of ‘information feudalism’. For a sketch of these objections, a good place to start would be some articles by Lawrence Liang of the Alternative Law Forum (available here). Many of these issues have also received considerable attention in light of the Google books settlement and interested readers may want to learn more about that here.

Organised publishers and retailers continually harp on the extensive loss of earnings that is readily attributed to the markets in pirated goods. The same message is clearly conveyed in ‘Anti-piracy’ awareness campaigns where it is routinely argued that the ‘black market’ eats into the legitimate means of livelihood for authors and by extension of those engaged in organised publishing and retail. The quantum of the loss in profits is calculated while assuming that for every pirated book bought on the streets, the industry loses an amount equivalent to its regular sale price. This premise is questionable since it cannot be assumed that a customer who buys a cheap offset-print of a bestseller would have necessarily bought a legitimate copy of the same title at the regular sale price. Barring some circumstances where consumer behaviour may be driven by considerations of urgency, most book-buyers in India primarily look at the price, while being less responsive to factors such as the quality of printing and binding. In fact the rationale behind buying the cheap copy in the first place is to avoid paying the regular price or to procure a copy of a title which is otherwise not available in the local market. This simple fact about consumer behaviour casts doubts on the estimates of the loss in profits which are highlighted in Anti-piracy studies.

As far as the portrayal of the ‘suffering author’ is considered, one must first consider the profile of the book titles whose unauthorized copies are produced and sold in the grey markets In the limited sample of the street-side vendors that I had met in Bangalore, the offerings were mostly those of contemporaneous bestsellers (novels as well as non-fiction), educational text-books, preparatory books for public examinations and self-help books. These books are usually printed in large volumes and the number of pirated copies circulating in localized grey markets is marginal in comparison. Authors usually receive pre-negotiated royalties from the publishers which are usually not altered except in rare circumstances where the volume of sales exceeds expectations. Celebrity authors can dictate terms to their publishers and make sufficient earnings from legitimate sales, thereby not being affected by the marginal diversion that can be attributed to the pirated books market. On the other hand, lesser known authors are unlikely to earn beyond their fixed royalties and the purported loss of profits is primarily born by the publishers. One response to arguments in favour of protecting the author’s monetary incentives for creativity is that the stimulus for creativity could instead be based on factors like self-satisfaction and the desire for prestige and appreciation from peers. There is of course something to be said in favour of the publishers despite my grouse with overpriced textbooks in the first world. Stated briefly, the main grievance of organised publishers is that books are illegally copied even when they publish a higher number of volumes and offer lower prices. This dilutes the incentives for publishers to search for promising new authors and to expand their printing and distribution networks, thereby harming the consumers’ interests in improved access to diverse content.

Another justification that is offered for the continuance of piracy in developing countries is that it enables access to works which are otherwise not available in domestic markets owing to externalities such as import restrictions and governmental censorship. Foreign publishers may also find it unviable to expand their operations in certain countries (primarily owing to the lack of economies of scale) thereby impeding access to the latest titles in spite of considerable demand. There is also a school of thought that supports copyright piracy as an instrumentality for ensuring the availability of diverse content in a marketplace. The idea is that piracy enables obscure and lesser-known works to reach consumers even if they are rejected by mainstream publishers. Needless to say, this argument loses a lot of its force in view of the increasing reach of the World Wide Web which has made it considerably easier for creators to directly share words, images and audiovisual content with consumers. There is of course another debate about the internet’s impact in terms of the role of information intermediaries such as publishing houses, recording companies and broadcast networks. While some would argue that these intermediaries perform an essential filtering function, the contrarian view is that they are an unnecessary barrier between the creator and the consumer. If nothing else, the undoing of information feudalism also promotes creativity by making it easier for potential creators to borrow ideas and collaborate. Without digressing further into that debate, the limited point here is that book piracy can be defended as an important means of access to diverse content, especially for those who fall on the wrong side of the digital divide.

Does the prevalence of copyright piracy actually stand out as a black mark in a country’s pursuit of a development-oriented agenda? In the context of the book publishing and retail-trade, the central question is whether ‘book piracy’ actually hurts the interests of authors and publishers. The mainstream ‘Anti-piracy’ discourse would have us believe that the prevalence of these ‘grey markets’ in most of urban India acts as a strong disincentive for the expansion of the publishing industry. Nevertheless, the empirical experience has been otherwise. In recent years, the publishing industry has grown both in terms of the scale of operations of domestic publishers as well as more foreign publishers entering the Indian market and offering a wider variety of titles. Though this maybe attributed to the increase in the general literacy levels and the consequent demand for more books, one can foresee further growth if copyright protections were to be liberalised and prices were to be reduced. It must also be recognised that in some settings, piracy actually expands the growth of markets by introducing previously unknown goods in a local setting and consequently shaping consumer preferences.

One may even see the pirated books market as a necessary periphery of the organised book retail industry. It serves the interests of those at the margins of the supply chain, i.e., the unauthorised printers and the vendors, as well as consumers with lesser purchasing power. In doing so, the street-side book vendors are subjects of an alternative conception of societal legality which in theory is in direct conflict with the State-administered legality, but in practice is not only condoned but also aided by the police. As mentioned several times in this note, the availability of cheaper books actually enhances the access to information for the average buyer in a developing society. If an individual’s acquisition of information is equated with improvements in personal capabilities, then the prevalence of ‘book piracy’ possibly serves the cause of societal development as well.

It is not my intent to trivialize the gravity of the decision’s consequences that will be faced by the defendants and their families, but one can easily foresee pedagogic uses of this verdict, primarily as an example of how criminal law and procedure should not be applied and interpreted. This could be in pursuance of suggestions (made by Professor Upendra Baxi among others) that mainstream legal education in India should move away from its selective emphasis on progressive decisions rendered by higher courts which are not representative of the functioning of the judicial system as a whole. Instead, more attention should be drawn towards erroneous decisions that are routinely made by trial courts which are the first point of access for litigants. Of course, it goes without saying that Dr. Binayak Sen is no ordinary litigant. The fact that he has spent nearly three decades providing healthcare among deprived tribal communities and unorganised labour undoubtedly contributed to the widespread public criticism of his prolonged detention without bail (between May 2007 and May 2009). It will continue to be a factor in public conversations as this case proceeds to the appellate stage. While it is reasonable to say that both the conviction and the unduly harsh sentence are likely to be overturned on appeal, the high-visibility of this particular decision makes it a prime candidate for thorough discussion and dissection in academic settings. The trial judge has unintentionally (and may I say unwittingly) produced a writing sample that captures  many of the structural flaws in our criminal justice system – namely, legislative overbreadth and obsolescence in defining offences and prescribing sentences, numerous irregularities in investigation on part of the State police, a finding of guilt despite insufficient and unreliable evidence and to top it all a clear abuse of sentencing discretion.

There are of course many prominent voices that have alluded to the irony of convicting an acclaimed human rights defender for sedition at a time when numerous scam-tainted public officials go scot free, [See: Ramachandra Guha, ‘Not to question why?’, Hindustan Times, Dec. 26, 2010; Shiv Vishwanathan, ‘A case of conscience – Letter to Prime Minister Manmohan Singh on the conviction of Dr. Binayak Sen’, Posted on www.kafila.org on Dec. 28, 2010]  but that is more of a rhetorical claim which should be clearly separated from the legal considerations. To be sure, in the trial stage Dr. Binayak Sen’s defence counsel did argue that he had been falsely implicated by the State police in retaliation for his documentation and criticism of the atrocities committed by the State-backed ‘Salwa Judum’ militia which had been organised to counter-act the Naxalites. Such claims of selective prosecution are very difficult to establish since investigators and prosecutors have considerable discretion in the filing of charges and the follow-up action leading up to the framing of the charge-sheet by the trial judge. Now that the trial judge has recorded a very questionable finding of guilt, in the appellate stage the emphasis should primarily be on the quality of evidence (or the lack of it) that was relied on during trial, with the ideological overtones and comparisons with ‘prisoners of conscience’ such as Nobel Peace Prize awardee Liu Xaobo taking a backseat. [See: Vinay Sitapati, ‘Judgment that risks tainting democracy’, The Hindu, Dec. 30, 2010]

Coming to the specifics of the case, the prosecution’s chief claim was that the three defendants were involved in a conspiratorial relationship wherein Maoist ideologue Narayan Sanyal passed on some letters to Dr. Binayak Sen during their meetings in Raipur Central Jail, which were subsequently passed on to Piyush Guha, a Kolkata-based businessman for further dissemination among Naxalite operatives in Kolkata (Para. 4, 15). According to the prosecution, the genesis of the case lies in Piyush Guha’s arrest near Raipur Railway Station on May 6, 2007 after he was stopped and questioned by the police (who were apparently acting under a directive from their superiors to investigate suspicious-looking individuals in several parts of the city). It was further claimed that the incriminating letters (submitted as A-8, A-9 and A-10 during trial) and some Naxalite literature were recovered from Piyush Guha, who subsequently named Narayan Sanyal as the author of the letters and Dr. Binayak Sen as the intermediary. Even though the handwriting in the letters allegedly recovered from Piyush Guha was forensically matched with that in samples collected from Narayan Sanyal, the prosecution did not produce any credible evidence to show the fact of Dr. Binayak Sen’s involvement as a conduit. There was a plain error by the judge in applying the law since statements purportedly made by Piyush Guha during the course of custodial interrogation were relied on to implicate both him and Dr. Binayak Sen. All that the prosecution produced were testimonies by policemen (P.W. 95 and P.W. 38) and one arrest witness (P.W. 1) that they had heard Piyush Guha naming Dr. Binayak Sen as the conduit for the letters written by Narayan Sanyal. The testimony of the arrest witness (P.W. 1) is especially intriguing since he claims to have heard these incriminating statements after having accompanied Piyush Guha to the police station following the latter’s arrest on May 6, 2007 whereas the policemen testified that they heard the same during questioning by the Investigating Officer (I.O.) on May 9, 2007. Irrespective of this discrepancy, it is a settled principle in the law of evidence that statements made in custody cannot be the basis for fact-finding at trial, unless they have been made before or verified by a magistrate in accordance with statutory requirements (Sections 160-167 of the Code of Criminal Procedure, 1973). Compliance with these procedural requirements is intended to check coercive police behaviour while at the same time ensuring that statements admitted as evidence during trial are both voluntarily made and of a reliable nature. While investigators can act on the basis of statements made in custody, the trial judge is not given the same leeway. This is one of the first concepts taught in any law school class on evidence.

Further weakening the prosecution’s version is the fact that two assistant jailers who were examined as prosecution witnesses testified that the meetings between Narayan Sanyal and Dr. Binayak Sen took place under the supervision of jail officials, necessarily implying that it was unlikely that any letters would have been exchanged without the latter’s knowledge. The defence also raised doubts about the involvement of Piyush Guha by pointing out the inconsistency regarding the location of his arrest that is apparent if one compares the prosecution’s submission to the Sessions Court with the I.O.’s reply filed in a bail application instituted before the Supreme Court at an earlier point of time (Para. 98). The trial judge simply bought the prosecution’s weak claim that this inconsistency was attributable to a typing error. It must also be noted that in his defence, Piyush Guha has maintained that he was arrested without cause and kept blind-folded for several days before being forced to sign a statement to the effect that the afore-mentioned letters and some Naxalite literature was recovered from him. The prosecution’s version was further put in doubt since they maintained that Piyush Guha was arrested near the Raipur Railway Station on May 6, 2007 whereas his defence counsel asserted that he had gone missing from a lodge on May 1, 2007 thereby implying that he had been arrested on the latter date and at a different location. The owners of the two lodges where Piyush Guha had stayed were also examined by the prosecution (P.W. 2 and P.W. 9) but were declared hostile after they testified that they could not recall any meetings between Piyush Guha and Dr. Binayak Sen. Even if one were to ignore the errors and inconsistencies outlined above and assume that the letters in question were indeed recovered from Piyush Guha, there is not a shred of properly admissible evidence to implicate Dr. Binayak Sen.

The even more worrisome features of the trial court’s verdict are the illogical surmises leading up to the finding that all three defendants were involved in Naxalite activities, even though there is hardly anything on record to show specific involvement in the planning or commission of any violent or subversive acts. The one-sided tenor of the judgment is best captured by the blanket dismissal of the objections to the prosecution testimonies that were raised during the course of cross-examination. While the prosecution testimonies about the grave threat posed by Naxalite activities in general and Dr. Binayak Sen’s alleged acquaintance with several hardcore Naxalites occupy a considerable part of the decision, the defence’s objections are not even outlined and have instead been disposed off in one paragraph. It is hard too imagine how a judge can take such a one-sided view, even if it were assumed that his personal sensibilities were those of being ‘conviction-minded’ and in support of a hardline approach against Naxalite operations. As many commentators have already pointed out, political posturing and ideological beliefs can neither be a justification or a means for diverting attention away from shoddy fact-finding.

The prosecution described Piyush Guha as a ‘hardcore naxalite’ by showing that he had been among those charged in a criminal case related to an armed attack on a CRPF camp, which was pending in Purulia, West Bengal since 2005. A fact that has been omitted in the trial court’s judgment is that Piyush Guha was charged in the Purulia case on May 6, 2007 – the very same day that he was supposedly arrested in Raipur. This suggests that there might have been some collusion between police officials in the two states, possibly to fabricate charges. In any case, the fact that an individual is facing charges cannot be equated with guilt. As for Narayan Sanyal, the trial court concluded that he is a member of the politburo of the Communist Party of India (Maoist), a proscribed organisation, by simply relying on references in the pro-naxalite literature allegedly recovered from Piyush Guha as well as those in the materials seized from Dr. Binayak Sen’s residence. Even if there is a deluge of mainstream journalistic materials that refer to Narayan Sanyal as a Naxalite ideologue, it was incumbent on the trial judge to ascertain the specific nature of his involvement through some independent evidence. Instead of searching for corroboration, the trial judge simply presumes that Narayan Sanyal is involved in Naxalite activities since he is named as an accused in other cases pending in Andhra Pradesh and Jharkhand.

The findings pertaining to Dr. Binayak Sen’s alleged support for and involvement in Maoist activities are partly based on stray references to naxalite activities in magazines and pamphlets recovered from his residence and the contents of his personal computer ( including e-mail correspondence) that were transcribed and presented as evidence. Taken to the logical extreme, such an interpretation could imply that any individual could face prosecution for merely researching and documenting terrorist activities [See: Ajay K. Mehra, ‘Conviction of a Doctor: Reminiscent of the colonial treatment of the terrorist’, January 1, 2011]. Even if one gives the benefit of the doubt to the trial judge by making the reasonable assumption that the prosecution’s reliance on such references was irrelevant, one of the most startling findings is in respect of an incriminating letter (A-37) that was allegedly recovered during the search of Dr. Sen’s residence on May 19, 2007. This particular letter is purportedly sent from a functionary of the CPI (Maoist) and addresses Dr. Binayak Sen as ‘comrade’ and thanks him for his services. Apart from the fact that there seems to have been no record of this letter in the seizure memo prepared on the spot, it is inconceivable how the content of the letter by itself can be accepted as evidence of support for Naxalite activities. What adds to the comedy of errors in the prosecution’s story are the testimonies that this particular letter may have been stuck or misplaced among the other items seized during the search and hence finds no mention in the seizure memo. Like the other material inconsistencies in the prosecution version, the trial judge bought this explanation as well.

As one ploughs through the text of the judgment, what initially appears to be a bundle of errors turns into a legitimate apprehension of collusion between the prosecution and the trial judge. While some might consider this to be an unfair criticism, it is very difficult to digest the uncritical acceptance of the policemen’s testimonies about Binayak and Ilina Sen’s supposed acquaintance with several hardcore Naxalites. Both the People’s Union for Civil Liberties (PUCL) and the Rupantar Trust (the NGO through which the couple works to provide medical services and education to tribal communities) have been described as front organisations for Naxalites, without any contextual inquiry into their activities. The names of individual acquaintances have been sloppily matched with those of fugitive Naxalite leaders, again without any independent corroboration. One policeman’s testimony that Binayak and Ilina Sen regularly attended meetings with Maoist leaders in rural Maharashtra has been accepted despite no other proof of the same. This is not to say that the ‘kitchen-sink’ of allegations and charges thrown at the defendants is entirely baseless. Even on appeal, Dr. Binayak Sen’s lawyers will have to explain the implications of Dr. Binayak Sen’s acquaintance with Narayan Sanyal prior to their meetings in Raipur Central Jail.

The proverbial ‘icing on the cake’ (to use some sarcasm) lies in the sentencing decision. All three defendants have been sentenced to life imprisonment for conspiracy to commit sedition, which is the maximum prescribed sentence. This is a clear abuse of the sentencing discretion that is accorded to the trial judge for differentiating between the various degrees of culpability and the gravity of an offence. Even if one were to disregard the investigative lapses and flimsy evidence presented in this case and assume that the handing over of letters constituted a conspiratorial relationship, such conduct cannot be equated with acts of physical violence or direct incitement for the same. Instead, the sentencing transcript cites the grave threat posed by Naxalite activities in general as the basis for awarding the maximum sentence. It is unclear how the punishment will serve the ends of deterring Naxalite violence or even those of retribution if one were to take the view of hardliners. On the contrary, such an excessive sentence could serve as fodder for Naxalite propaganda and recruitment in the region.

As suggested at the beginning of this note, it would not be stretching one’s imagination too far to see this verdict as a symptom of the many woes of India’s criminal justice system. Irrespective of the divergent and sometimes polarized positions on how to tackle the Naxalite mobilization, this case is an apt illustration of why responsiveness in the framing of penal legislation as well as fairness in investigation, prosecution and adjudication matters to all citizens. For far too long, our Parliament has delayed the necessary re-evaluation of many obsolete offences that remain on our statute books. This case amply highlights the dangers of offences that are defined in a vague and overbroad manner while providing for a wide sentencing range. The trial court’s ignorance of Supreme Court precedents which restrict the definition of ‘sedition’ to direct incitement of violent acts is not a one-off occurrence of such ignorance in the lower courts. If one takes a random sample of criminal appeals in the higher judiciary, one will readily find many cases of such erroneous application and interpretation of statutory offences. The Indian Penal Code was enacted by the colonial government in 1860 and till this day it is the mainstay of substantive criminal law in our legal system. While there have been piece-meal changes from time-to-time, both in respect of prescribing ingredients of offences and sentencing ranges, there is no sustained move towards a coherent overhaul of the criminal law. In recent years, there have been some studies such as the Draft National Policy on Criminal Justice (2007) that have suggested a holistic re-examination of the scope and justifications of existing statutory offences and sentence-ranges. It must also be reiterated that several important legislative changes in our criminal justice system have been triggered by questionable verdicts. Examples that readily come to mind are the Nanavati case in the early 1960’s where an acquittal in a ‘crime of passion’ ultimately led to the legislative abolition of jury trials, the Mathura Rape Case in the early 1980’s which led to the expansion of the definition of ‘rape’ to cover custodial circumstances as well as the prohibition on references to ‘past sexual conduct’ during trial, and in more recent times the Ruchika Girhotra molestation case which finally convinced the Law Ministry to push for an expansion of the definition of ‘sexual assault’. It remains to be seen whether the regrettable verdict given by the Raipur Court will trigger at least a piece-meal legislative change such as an amendment to the definition of ‘sedition’ under the Indian Penal Code. A more likely consequence could be the judicial invalidation of some vaguely defined offences under the Chattisgarh Special Public Safety Act, 2005 provided that the defence counsels choose to attack the constitutional validity of that law before the higher courts.