Does a marriage gift constitute dowry?

This newspiece does lead to curiosity. This recent SLP admitted by the Supreme Court asks the question, "does a marriage gift constitute dowry". [click here to read the background] I am quiet unsure as to why this petition came up to be admitted for this implies there must have been a 'substantial question of law' involved in the matter, whereas Section 2 of the Dowry Prohibition Act, 1961 removes any doubts to that regard.

This Section 2 reads; "Definition of "dowry". In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by a other person, to either party to the marriage or to any other person; at or before or after the marriage us consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation I.-For the removal of doubts, it is hereby declare that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties." [click to see the entire Act]

Therefore, the gifts in cash or kind do not constitute dowry if the intention behind giving those gifts is not to secure the marriage. In an awareness-spreading note, another lawyer submits the same view point.

Nonetheless I am anticipating a legal battle for the use of term 'customary gift' may be crucial. Like, if it is a custom in the areas to give a gift at the time of the marriage and without the gift marriage cannot take place, it may well be a compulsion on the part of one family to give the gift, which should technically qualify as dowry. It would therefore be a question more of evidence than law but still, it a trial worth watching.

Tata's Rs. 1 Lakh Car: An update

The much awaited Rs. 1 Lakh car is due to be showcased at the Auto Expo in Delhi in 2008. With its arrival, one should also foresee the various issues that arise consequently.

In an interview to 'The Week' magazine in 2005, Mr. Ratan Tata, the Chairman of Tata Sons, reiterated his commitment to development of the “People’s Car”. According to him the car would be priced in between motorcycle and a car and the target market would be the lower middle class families. To families in India that use two-wheelers, with the wife holding a kid at the back of the two-wheeler, it certainly is a much safer mode of transportation. It really is a novel idea in that regard. However, the real issues arise when the car starts selling in India and other developing countries.

The strategic pricing of the car would attract two major groups of customers. The first is the category of customers who are upgrading from two-wheelers to cheap small cars and the second category is ‘First-time’ buyers. In a country like India where one of the major modes of transportation is two-wheelers, such a new category of vehicle is certainly going to have an adverse affect on domestic two-wheeler market and is also going to open up a new category in the already growing automobile market. The car is small and should be easy to drive around in city traffic and coupled with its price, it will definitely attract first time buyers as well.

From the business point of view one has to agree that such a project of developing a people’s car itself is commendable but there are opinions otherwise. Firstly, the car is surely going to sell in numbers because of all its features and more importantly the price. The more the number of cars the more congestion there is on the roads especially when every driver in every major metropolitan is starving of minimum road space.. What India should be concentrating at the moment is to develop clean and efficient Public-Mass Transport systems. Secondly, the projected sales of the car is surely going to add to the already rising pollution and CO2 levels thereby adding further burden on the environment and the economy.

My point of view however is on the technological aspect of the car. The need of the hour in the country in the backdrop of global warming is to have vehicles that run on more efficient and cleaner fuels. Many companies have launched vehicles and showcased technologies in this regard. For example, Toyota and Honda have made giant strides in bringing out hybrid cars that run both on gasoline and electric power. Some companies have also brought out electric cars. Vehicles that run on hydrogen have also been developed. These hydrogen vehicles’ only emission is water-vapour. Even vehicles that run on alternative fuels like Ethanol have also been developed. So even though the people’s car is a welcome thought, it should have been given a second thought in favour of more efficient and cleaner vehicles rather than on making a car that is sure to contribute to the already rising chaos on our roads.

WTO at 60: six decades of multilateralism

GATT/WTO at 60: six decades of multilateralism. Sounds nice indeed. But then what do be look back at? Is this video prepared by the WTO Secretariat give a correct depiction of it? Or the accompanying annual report [click here for the full text] portray the state of affairs on the right tune? I would not agree with that. In my two earlier posts [click here for Part - I ; Part - II] I had an occasion to trace the historical evolution to WTO right from GATT to the present times where the issues are really grappling and end up with more of an egoistic standing rather than logical conclusions.

But then frankly, where do we stand after 60 years of multilateralism in international trade? Director General Lamy would be quick to point out that all is not over. There is still a lot which the WTO is capable of and in fact doing with the negotiations continuing on other aspects of the matter such as anti-dumping, textiles, etc. And I would counter-argue that the success of an institution is not determined by the work it does on issues which are ancillary to the main objectives which it promotes but instead is determined by how well it pursues the main objectives which it is meant to serve and in case of WTO; free and fairer trade.

It is recognized in the WTO preamble itself [i.e. the Preamble to the Marrakesh Agreement establishing the WTO] that "relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand". But then what has it done to ensure that the developmental difference are bridged up by designing facilitating terms to trade? I am yet to find an occasion either in the texts or in practice where this has been done.

Take for example the TRIPs Agreement, which has brought to the DSB more number of countries than any other Agreement and has ensured that the countries which cannot provide food security for their citizens ensure that the IPRs of foreign authors and inventors are protected. Similar is the case with the anti-dumping Agreement whose strict rules for imposing anti-dumping duties have ensured that it such duties can be challenged at length in the DSB and thus take away a trade-protection-tool from the hands of many a countries who invoke it genuinely.

It may be a case that even developing and least-developed countries have got a tool to ensure that they can set themselves equally off with the developed countries by invoking the terms of the various agreements and getting them implemented through the DSB. But then again, the political pressures and the green-chambers have ensured that it doesn't happen that way. Had it been that way, I am sure the developing countries would not have to clout through G-110 to ensure that they are heard (mark the words 'heard') at the WTO about the ill-cries of their producers and traders who fail to get market-access in the developed countries.

It may be a good face-saving exercise to sing the saga of the 60 years gone and the achievement of the times, but then without facing the reality and the contentious future, I am not sure what purpose it serves.

Online Copyright woes

This is really an interesting piece I came across through SLAW, dealing with the copyright issues facing netizens and blogwriters. In this article, Kathy deals with the most common myths about copyright protection of material available on the net, they being;

Myth #1: It's okay to use anything that doesn't have a copyright notice
Myth #2: It's okay to use anything that's online, because if it's online, it's in the public domain and up for grabs
Myth #3: It's okay to use anything as long as I'm not making any money off it.
Myth #4: It's okay for a non-profit organization to use anything
Myth #5: It's okay to use anything as long as I give credit
Myth #6: It's okay to use anything as long as I include the creator's copyright notice
Myth #7: It's okay to use anything as long as I take it down when the copyright holder objects
Myth #8: It's okay to use something if I can't find the copyright holder
Myth #9: It's okay to use something if I asked for permission and didn't get a response

A good account indeed. [click here for the full article]

Online law resources in India

Though the IT industry came out really well from the Y2K bug, it hit the law profession really hard. And on began the profession's crusade to computerization and uprising from manual filings. Starting with the provision of select decisions being made available online [click here], later up the cause-lists [click here for the dedicated site], and court profiles [click here]. The march has really come on a long way now with exclusive website for the Supreme Court and other High Courts (though not all of them have the privilege yet).

Then we had the private players coming in the market. The first ones were really a conglomeration of various weblinks with no particular content of their own. I fail to recall those names because we never really searched through them. We used yahoo (google was yet to be born then) or other search engines. The second generation legal resource website were a bit of improvement but not all together different. They were more like newsletters which carried updates from various/select legal segments and then links for other content. Some of these which are still hosted can be viewed here; http://www.vakilno1.com/ ; http://www.helplinelaw.com/ ; http://www.laws4india.com/ ; http://www.indialawsite.com/. Then there were websites of publishers who simply were too fazed by the idea of losing out customers who looked for products online. Some of these, just to point out, can be recalled as [ http://www.cliofindia.com/ ; http://www.ebc-india.com/ ; etc.]

The third generation law resource websites, as I put them, came only with the modern lawyer's onslaught into the profession. The 5-year national law schools churning out research-freaks, knowledge hungry professionals were not satisfied with reading decade old books which gave no idea of the recent trends in the areas they researched on. Though the international law virtual libraries came to persuade them to a large extent (and still do considerably), that was not found sufficient as they simply lacked the Indian legal material which was the need of the hour.

This niche area was very well provided by manupatra. I was in my second year of law school then and simply was unsure whether such an online site would find a buyer in the market and was surprised that it not only did, it by its aggressive marketing tactics, it did become the product subscribed for by all decent sized law firms and used across the industry. Though a paid one like all international law resources, www.manupatra.com has become one essential research tool for the lawyer today.

Now even the hard-copy based SupremeCourtCases (or simply SCC) has come out with its own web version [http://www.scconline.com/]. Then there is also a new player [http://www.indlaw.com/] trying to capture the market, which really is getting cramped with discussion oriented websites [http://www.legalserviceindia.com/ ; http://www.lawentrance.com/] which offer a lot of comments but no reliable-comprehensive resources which are really required for winning cases and like.

Even then, when manupatra is the market leader in this regard, still there is a not of space for new participants and in fact an entire industry is open to development and growth. Compared to the resources which Westlaw and Lexis-Nexis offer, the online law resource market in India is yet to take off the ground.

Indian crickets to be taxed in Australia: Why the fuss?

Even before the tour of the Indian cricket team to Australia has begun, the hype has been all around. One particular news item which stuck me was that the Indian team would be taxed in Australia. The reasons that are cited relate to the change in income-tax laws in Australia which tax these fees. But then I do not understand why the fuss is all about. I will try to dealienate the income tax provisions and how they operate and that there is no reason for all this melodrama.

Firstly, the 'R' or 'Residence' test. These crickets going to Australia are no doubt Residents in terms of the Income Tax Act of 1961. Since they are performing in Australia, they would be subject to Indo-Australia Double Tax Convention. [click here for a full list of conventions to which India is a party] This Convention, notified by the Government of India in 1992, is based upon the OECD model which gives an alternative approach as regards income of sportsman.

The relevant provision of this Indo-Australia convention, Article XVII provides;

ARTICLE XVII - Entertainers - 1. Notwithstanding the provisions of Articles 14 and 15, income derived by residents of one of the Contracting States as entertainers, such as theatre, motion picture, radio or television artists, musicians and athletes, from their personal activities as such exercised in the other Contracting State, may be taxed in that other State.

It is clear from the above that in situations such as the present one, the country where the athlete (a term which includes sportsman and cricketers) performs may tax the income which arises to the athlete in respect of the performance in that country. So, Australia is legitimately entitled to tax the incomes of the Indian cricket team members for their performance and match fees in Australia. Since the Government of India has agreed to it, and that too more than a decade back, there is no reason for fuss now that income would be taxed in Australia.

Then there is another reason. Since the income would be taxed in Australia, in terms of the Indo-Australia Agreement, Indian tax authorities will not be entitled to tax the income received by the players in Australia as the same would otherwise amount to double taxation, which is categorically barred by the Agreement. In terms of Article XXIV of the same Agreement, when a Resident of India pays income tax in Australia, credit of such tax paid shall be allowed against the Income tax payable in India.

Therefore the situation is simple. If Indian cricketers pay tax in Australia, they will not pay tax in India. In any case they will have to pay tax in one country. It is no one's case that if Australia does not impose tax on them then they will not be liable to pay tax at all for their income would be taxable in India. It seems, naturally, that this hype is media-created without any rationale basis, just that there is a news item to fill the pages and slots.

Legal blogs versus legal scholarship: The ongoing debate

Just came across an interesting article on Lawyers Weekly which mulls over the possibility of looking upon legal blogs as legal scholarship. [click here for the full article] This article raise important issues relating to authenticity, substance, merit and contribution to the illuminated legal knowledge vis-a-vis blogs carrying law-related content. It evensjuxtaposes law blogs to legal articles in peer-reviewed law journals and ponders over the thought if law blogs are the new era of legal scholarship. But then the article ends without a conclusion. Having started a law blog myself, I seem inclined to pen my thoughts on the issue.

To start with, I find the comparison meaningless. Having be a vivid contributor on both sides of the legal scholarship as this article suggests, I can surely say that there is no vital nexus between the two. While legal article are meant to anlayze or criticize the advancement of law in terms of legislations or judicial decision-making, legal blogs serve a totally different purpose; they put the views of the author, definitely not as deeply researched as a legal article would require, across the legal or non-legal community for no specific reason of its own.

While a legal article requires avid research and cross-citation of other views, opinions and like, this is just to add weight, credibility and dimensions to the scope of work which the author contemplates. On the other hand, a blog is not one with more footnotes than the number of paragraphs in the main text. In fact it hardly carries any footnote. Its just a discussion of author's thoughts on a particular issue or something which is not an issue, on which he carries an opinion and wishes to put this opinion across to solicit views and comments or just for his wish to publicize his ideas.

Blogs and articles should not be compared for the very reason that they are not meant to be; both for the reason of placement-sought and the subject-matter dealt with in them. Where a blogger would never his piece to be placed in a thick-hard bound paper-book form almanac which carries a volume number and the cover page replete with experts carrying more degrees and credentials one can weight in kilos, a legal article is meant to be such; the later being designed to be understood as a participant in the theorization of legal advancement.

As regards the subject-matter, if may not be true in all cases but then most often than not, a blogger would take up issues which are purely contemporary, meant for provoking responses and opinions and seek to weigh the public opinion on the thought he penned for the blog. Whereas a legal researcher is somewhat indifferent with the public-opinion the issue he seeks to research on and is more concerned with the enunciation upon it by courts, other lumunaries, or even the scholarly content in other social sciences.

And finally, the biggest reason which I find for not comparing is the reach of the two mediums. Articles sent for submissions in heavy paper-backs like Harvard Law Journal, Yale Law Journal or even Modern Law Review and other law journals are meant to be read by legal scholars who have an interest and expertise in the issue dealt with in the article, such that the scholarly community would be able to take a stand on the issue. Blogs on the other hand are meant to be read by the common people, those connected to the net and looking at it as another medium of expression, such that issues can be discussed and opinions flouted on a much informal level and people are informed of the ongoing glitches in law, politics or even the social life.

To conclude, I would just illustrate a few blogs which I know and acknowledge to carrying good content on legal and non-legal issues, and informing the masses rather than the already well-read legal experts of the ongoing developments.

1. http://lawandotherthings.blogspot.com/

2. http://spicyipindia.blogspot.com/

3. http://indianeconomy.org/

4. http://techlawindia.com/

5. http://www.chinalawblog.com/

6. http://visalawcanada.blogspot.com/

Domestic violence: An introspect

Newspapers across the length and breadth of India are reporting almost daily more and more cases of domestic violence taking place. Surprising the enactment on domestic violence became a law only a couple of years back in 2005 but it is being used now on a fairly regular scale. Being a practitioner in the matrimonial side, I have an occasion to see through a large number of such cases on a daily basis. The rampant use and misuse of this enactment has occasioned this comment.

In my view the genesis of this problem lies inter alia in the decline of values in the society which is disturbing the family peace. The age-old concept of joint families is dwindling and nuclear families are becoming a norm, leading to absence of senior family members, carrying the experiences and wisdom to guide the just-married / recently married during conflict / problem times. It would specially be noted that these issues are arising largely amongst young couples, who are unable to find a solution to the conflicts and change in inter-personal roles arising out of the new situation they are in, one brought forth by marriage.

Causes of domestic violence, according to me, are numerous. And surprisingly illiteracy is not a cause for even well-read women, well aware of their rights and special privileges conferred by the legislation are invoking these special provisions on a daily basis just to fend their egos and satisfy the mortal selves. The notions of higher wisdom and better sense seem to have eroded and are not to be found these days.

Then the economic roles which man and woman having been playing in this country having undergone a huge change in the recent times, artificial thoughts of economic superiority are beginning to haunt the family. With differences in salaries, the higher salaried spouse is beginning to dominate the family decisions, which may not necessarily be taken in the correct perspective, leading to tensions and quarrels and even break-ups.

Then there are numerous other so-called ‘compatibility-issues’ haunting the social life of the members of the familial structures, which cannot be resolved without instilling the notions and importance of family values.

India Code: A good legal resource

Legal Researchers, looking for material upon Indian law are now really better off as far as the Indian legislation is concerned. Telling from experience, except for the paid websites which have high subscription charges, it has really been a mess finding the enactments in India. We all have had our experience with VakilNo1.com, legalserviceindia.com, ... and our own versions of finding material on Indian law.

But then this treat from the Government of India is really worthwhile and genuine. Titled the India Code [click here for the Code], it contains all Central/Parliamentary legislation in India, right from the oldest [being the Bengal Districts Act of 1836] to the latest [the Central Educations Institutions (Reservation in Education) Act], search able in easy search terms; the 'year' wise and 'free text search' being my favorites. And for non-starters, it also carries a full downloadable list of enactments both alphabetically and chronologically. There is even a link for searching the site in Hindi.

And this not just all. It carries link to other relevant sites like the Law Ministry, Law Commission, Company Law Ministry, National Human Rights Commission, to name a few. There is also a link for searching the text of the Indian Constitution.

A really good attempt at bring the law closer to the people, I will say. But then I look forward for the same treatment being given to the State enactments. No doubts a few states keep updated website with all the links but then the majority of States have simply not adopted the online-governance model and its hard to find even one legislation of their's online. I hope the people in-charge would be listening to this and working a way through.

Protecting ideas from theft ...

This article from rediff couldn't have come at a better time. Just the other day I wrote about why we need IPRs I had argued that IPRs are essential a motivating tool for showing creativity and coming out with meritorious endeavor. The example of MIT student Bose and the later pioneering Bose stereos is just an illustration to this regard. [read the rediff article here]

However, legally speaking, it is worthwhile to point out that this news-article requires two qualifications;

(1) IPR law does not protect ideas but protects expression. Therefore even if you have an idea but do not translate it into a material object i.e. a painting or a model or the actual object you are thinking about, there cannot be any protection afforded to it. So if you have a model in mind and tell if to your friend, who actually goes on to make that model even before you do, it is his model that will get protection and not yours. Be, be vigilant. Do not publicize your ideas unless you have a ready mix and concrete stereotype ready of what you have been thinking about.

(2) Secondly and unfortunately, all ideas and objects cannot be given protection under the IPR laws. As I had talked in the earlier post, these laws prescribe qualifying criteria for being amenable to IPR protection. The most common criteria being (especially as far as Patent law is concerned) is the requirement of 'industrial application' or 'utility' i.e. the stereotype you invented actually serves some useful purpose. It is only upon the satiation of this requirement that patent protection to your model may be granted.

So start thinking, invent, fulfill the criteria and be proud owners of the patent and earn money by leasing it out to giant corporations or open one yourself, like Bose did.

Prescribing a code for PILs - II

In my last post I had written about PILs and the need expressed for having a code on regulating them. But then, as usual, my friend pointed out that there was a much felt need on its improvement and so here I begin the second part. I have already dealt there with why do we need a code to regulate PILs so will work upon other issues and concerns relating to that.

Firstly, what would the code do and is it desirable?

The very purpose of bringing a code is to ensure that the PIL route to raising litigation is not abused. Therefore it would contemplate an initial screening which would be meant to prevent those petitions were serve no greater purpose rather than abuse, as the court have branded them often; 'private interest litigation' 'paisa interest litigation' etc.

This screening, I am of the opinion, will be in the manner of prescribing minimum standards or qualifications for allowing these petitions to be entertained. Like as have a very vocal Registry at the Supreme Court, which ensures that all the columns soliciting the information for filing appeals and writ petitions are fulfilled to their satisfaction before the case reaches the Bench. Similarly I believe, certain mandatory disclosure norms would be required to be filed and additional affidavits needs to be signed before a PIL would be entertained, onces these guidelines come into effect, only to ensure that only genuine petitions go through. Then the notion of costs can also be brought in, with costs being imposed on a more regular basis against frivolous PILs, something which is already in vogue in Court 4 now.

But then the problem arises only because of that. There cannot be a panacea for all cases. The very fact that normal petitions cannot be filed has left with no alternative but PIL. So if you impose too stringent a criteria, it would be killing the flower in the bud itself. Most of the petitions which require a consideration would not even be able to reach the Bench and thus the entire purpose of making a mechanism for these issues to be addressed would be frustrated. For example, the requirement to prove bona fides is in itself a subjective criterion and thus cannot be put in to closed ended answers of yes or no.

Further, by prescribing a check-list of sorts, the Court in turn would be putting its own thoughts as to what is a good 'PIL', something which looks good on the academic side but does not reconcile with the ground-realities. For example, the then Chief Justice J.S. Verma treated a simple letter sent by a grieving mother on the brutal treatment meted out to her son in police custody, we had the famous case of Nilbati Behra v. State of Orissa, which went on to lay guidelines of custodial treatment and consequences of custodial death. Now if guidelines were laid down and their strict compliance insisted, it may even be possible that such genuine cases may never be able to claim justice.

And then the important concern. Would it be possible, if stringent guidelines are imposed (as the recent trend of the Court promises) that a not-so-well-doing lawyer is able to file and pursue PILs? After all the internal politics of the courts is also a major player influencing the outcome of cases before it. When it comes to admission of matters, most of the cases are dismissed at the threshold only for the reason that there appears no Senior to impress upon the Court that there is merit in the case. Ordinary lawyers are supposed to be satisfied only with appearing during arguments stage and assisting Seniors. And this does not in any terms reward him/her for the research, investment and time spend on the preparation of the case, which a Senior doesn't. So here goes the change of not-so-well-doing lawyers to come into vogue by handling cases involving grave miscarriage of justice and raised through PIL format.

Especially when the success of legal-aid-cells in India cannot be vouchsafed with certainty, literally closing the PIL route by imposing stringent qualifying criteria for entertaining PILs is another reason why the present proposal should be handled with care and in view of the huge ramifications of the issue.

I am not suggesting here that no guidelines should be made but my only case is that while framing these guidelines enough leverage should be retained that the genuine and in-need cases are not shunted out on technical grounds.


Now for the picture part. You would be wondering whose picture it is. Well, he is one who can be rightly called as the Father of PIL in India. Registering more that an a century of PILs on his own name, he can be attributed for changing the legal and environmental scenario of India by a long way. He is no other than Mr. M.C. Mehta. A quick search on Youtube returns umpteen search video results made or dedicated upon him [click here for the videos] The CNG buses in Delhi, removal of industrial units from Agra for saving Taj Mahal, Oleum Gas leak case, and the recent Delhi Ceiling case etc. have all been due to him, thanks to his philanthropic gesture and attempt for making this country a better place to live in.

India - IAEA - Part - II

My earlier post on IAEA had evoked quiet a few responses to which I replied to as well. I think it would be in better perspective to put those comments as a seperate post in itself as they are not only a continuation of the earlier post but as well as my reflections on the issue, though not purely legal. So here goes.

Abhinav Goel said...
is this the only post u;ve written about the nuclear deal on ur blog or was there anything else i missed too..? also,the hyde act/law whatever.. doesn't that grant the US too much power to act against India if it does use the nuclear stuff for military purposes. also, if we just need to buy uranium etc, why do we have to lick US boots for that? why can;t we just buy them from iran, china, russia etc.. on the other hand, if US congress passes the deal, aren;t they afraid that india might just turn out to be another iran? how is india diff from iran such that it is granted a special status? shouldn't india thus sign the NPT to establish itself as a serious contender for nuclear energy? and how can we be sure that pakistan won't follow suit, atleast to obtain the nuclear stuff from US?sorry mate, just got tired of sitting at work and doing nothing.. :P
09 December 2007 16:29

Tarun Jain said...
hey nothing to be sorry about. in fact i really would like to give a suitable solution to your queries.

1. my earlier post was this http://legalperspectives.blogspot.com/2007/12/indian-nuclear-dilemma.html.

2. you can read the Indo-US agreement at http://www.state.gov/r/pa/prs/ps/2007/aug/90050.htm

3. the law made by US on this agreement (the Hyde Act) can be found here http://www.theorator.com/bills109/hr5682.html

4. As for the issue whether US has too much power under this Hyde Act, I do not think so. Legally, as this is based upon an international trade, US can at the most suspend the agreement or revoke it or invoke dispute settlement measures. It cannot go beyond that.

5. Even if India goes beyond the agreement and conducts nuclear tests in future, there is no right on US, under this Agreement atleast to initiate proceedings against India.

6. However, there is a right with US, being a permanent member of Security Council of the UN, to bring the matter to be decided by the Security Council (as it did in case of Afghanistan and Iraq) and deal with the matter accordingly.

7. As regards buying Uranium with other countries, most of the suppliers of uranium have signed CTBT.[check this for details], there is an agreement between the nuclear suppliers group not to supply uranium or other fissionable material to non-group members. So there is a problem obtaining nuclear material from them. Further the problem is also complimented by the fact that US as a dictator of world political power keeps a tab on these countries from supplying uranium etc. against its wishes. I don't say here that it is correct or wrong, but the fact has to be acknowledged.

8. as regards the deal, its not just the question of buying uranium, its the question of getting technological aid to develop our own nuclear reactors which can guarantee us an uninterrupted supply of energy. The issue of uranium is only a meagre one. the energy needs are the main thrust and reason for this deal.

9. as regards the fear for India turning another Iran, i think its whimsical. the trade position which India occupies and the only strategic option available with US in Asia, in case it is required to take on China and Pakistan, makes US always take a stand on the better side of India. further, the Indian lobby in the US congress is really strong. So there does not seem any possibility of such a situation.

10. as far as ur comparison of India with Iran is concerned, i think that is based upon an incorrect premise. the reason is that India is being required of to enter into the agreement with IAEA only because of the reason that it is not a signatory to CTBT. Had India been one, this IAEA requirement would not have been imposed under the US nuclear deal. But it seems like India is opposed to the CTBT because of many factors, the intricacies of which I am not sure as of now but this much is sure that India does not look forward to signing the treaty in near future. (dont ask me why, as i dont know the reason)

11. as regards ensuring pakistan not following the suit, i dont think that is legally possible. every country is sovereign and legally equaly. so to ensure that some other country does not do what we dont want it to do, is really a political and practical question, not a legal one!!!

09 December 2007 16:56

Sanatanan said...
Hi Tarun Jain, Your readers and yourself may like peruse http://sanatanan.blogspot.com/2007/09/india-and-bush-doctrine_6698.html where I have given my reasons as to why India must walk away from the deal.

Mere addition of about six or eight thousand MWe through imported reactors is not going to solve the "projected" energy problem. As many others have already pointed out, energy security does not lie in importing fuel. It only comes with technological strength - India must be able to sell nearly as many dollars worth of high-technology products as it imports.

According to me, the real reason why DAE is now pushing for the deal is that they think it might give them a way out of their inability to take indigenisation of critical equipment and items required for a modern nuclear power plant, any further than at present (when a rather "porous" technology control regime imposed by US/NSG is in force). They have shouted themselves hoarse all this while about their ability to build nuclear power plants indigenously in spite of denial of supply of critical items and technologies by the US and NSG. The real truth seems to be otherwise and so they are desperately looking to finalise this deal before the screw is tightened any further by US/NSG. If the deal goes through we may very well see that all "post-deal" nuclear power plants that India builds (including FBRs, PHWRs and AHWRs) will be "categorised" as "civilian" so as make them eligible to receive imported designs, components, equipment and systems.

The best strategy, according to me, is for India to pursue with greater vigour the pre-deal self–reliance oritented path it has followed over the last 50 or so years and stay away from the temptation to seek quick-fix solutions which are detrimental to our country's long-term interests.

Regards

Sanatanan
09 December 2007 19:52

Tarun Jain said...
well Sanathanan, really nice piece of thought on your blog. I thought of putting the reply there but since you wrote, it was in this perspective that I am replying here. Hope thats fine with you. I have a lot to say on the link you posted and also on your comment.

Firstly, i liked the title 'Views on development of technologies in India for nuclear electricity generation'. I am not much of a scientist but a lawyer and therefore not an expert on policy planning for meeting energy needs of India in the forthcoming times. I had only made a legal analysis of the agreement and its implications. but since that you have put in the practical side of things, i feel it relevant to put my thoughts on that.

i just want to put a few propositions in picture. let us say the deal was finalized with Russia instead of US. would there have been so much hullabaloo. I dont think so. since our independence most of our defense technology has been borrowed from Russia. the MIGs we fly are made with their support. the ships our navy carries is made with their aid. where was our self-pride when Nehru decided to choose Russia instead of US for a relationship, which we have been maintaining since.

And if borrowing from Russia is correct, practically speaking there should not be a problem with borrowing from US. so much for the indigenous-development argument.

further i would like to point out that the rate of growth with self-development is not the same as the rate of growth with a strategic alliance. remember India took about a decade to build a super-computer of its own. I am not against this self-development part but the thing is, I am being practical. you no doubt (I think) would agree that Indian economy is growing fast. here sitting in London I can tell that the approach to Indian markets is one of booming sector. And no doubt any nationalist would be hurt if we cannot translate our vision of India making a developed country by 2020 unless we maintain this pace of growth.

our success till date has not been by avoiding competition but by making competition as a reason to strive and go ahead. remember there was a "swadeshi-drive" long back (i suppose starting of 1990s) when we actually stopped using imported stuff etc. a way of development by confinement. but when we opened our markets, we faced competition. dwindled a bit and then came back to hit them hard. and now we have overtaken.

there is no reason to assume, therefore, that if we take aid now, we will never be able to develop in future. there is no reason to have such low faith in Indian intellect. we will learn from this interaction and support we reach and bring out our own products which will no doubt be superior. I am really proud of my country that it has suffered so much, always to come back resoundedly.

As regards as your argument of quick-fix, I don't agree with your view. The thing is, if you analyze the joint-statement and 123 Agreement correctly, there is no such commitment of part of either US or India that US will go a long way to provide assistance to India. there is no such thing in that.Its purely upon India to decide how much and when does it want what. I think we got to respect the judgment of the Indian scientist community on that, that they will act in the best interests of the country and act in a manner which is not only conducive of India's development plan but is also meeting the India's existing energy needs.

when the majority of Indian intellectual group had publicly come out in support of the deal, there is no reason for us lesser mortals (atleast in the field where they are experts and we are novices) to hold that this would be bad for India's interests. I really acknowledge that this does not mean we do not carry opinions on the issue or dont put our views on the perspective but I only mean that we do not carry the capacity to possess superior judgmental skills on that count.

as a lawyer's perspective and from a nationalist citizen(but surely not a politician), I think the deal is really a good one to go by and would only be a milestone for India's path to growth and development.
10 December 2007 00:39

ruthwik said...
Having read tarun's post and the responses entailed by the same there arise certain views of my own. There are however certain facts one needs to remind themselves of.

Firstly the cooperation between India and the US in the nuclear arena is definitely a big step forward for India especially in the backdrop of the India's nuclear tests conducted in 1998. At a time when India was heavily criticized for conducting the tests and consequently heavy sanctions imposed by several developed nations, such a deal with US is surely a turnaround for India. The need for the deal however arises from the fact that India does not have necessary reserves of Uranium and other Elements that can be used to run nuclear reactors efficiently. Hence India has to look outside its borders for fuel to run its reactors.

Secondly, if one would recollect, the deal that now has become the epicenter of discussions in the parliament, was reached after much deliberation by both India and the US. Both countries had overcome many disagreements before the actual deal was reached. One such disagreement between the parties was on the separation of nuclear plants. India at present has 22 functioning nuclear reactors many of which are used for peaceful energy needs and some used for military and strategic purposes. Some of these reactors are used both for Civilian and Military purposes. On March 03, 2006, both countries reached a deal whereby the Fast Breeder Reactor programme which India has developed indigenously and 35% of Nuclear Capacity shall be out of IAEA safeguards. IAEA safeguards are necessary because India is neither a party to the CTBT (Comprehensive Test Ban Treaty) nor NPT (Nuclear Non-Proliferation Treaty).

Another aspect that needs to be considered is that the nuclear deal in its text does not mention that India should not conduct nuclear tests or should not continue with research in the nuclear field for strategic purposes.

Keeping these points in view one cannot say that it is an agreement that acts only in the benefit of the US. And it is also not a stop-gap solution to counter problems with indigenization of technology in the country as pointed out by one of the members above. On a neutral note the agreement is surely a well conceived one and will pave way for future cooperation with other nations in the very rigid nuclear market and help India in harnessing a cleaner fuel.
12 December 2007 14:57

[the original posts can be viewed by clicking here]

Why Intellectual Property Rights?

Most of the answers to this why will be received while discussing what are IPRs. But there are other dimensions as well which cannot be contemplated in that framework. The answers to this why are more specific.

The pivotal reason for having IPRs is promotion of 'intellectual capital'. But this term I mean the collective intelligence and skill of mankind. I know that this is a very subjective generalization of concepts which evade defining but I would like to stick to the word. This is for a reason. The reason is that countries around the world are fascinated with development and growth. These terms of general and specific meaning have been dominating the creation and prosperity of a global order, known as the international institutions. Thus the creation of human capital and betterment of human kind are the basic and long term goals of all international institutions, be it the UN, WTO, IMF, IBRD or any other.

The promotion of human endeavor and skill is just one off-shoot of this greater realization for mankind. And therefore we have this concept of IPRs, which are intended to entice people in developing ideas into realizable shelves, making creativity creep the boundaries and making a new social order. This enticing is through rewards and benefits. Rewards both of monetary and non-monetary significances. Monetary because provisions are made in the legal systems to exploit the outcomes of their talents and creativity by selling them, leasing them or making use of them by whatever way or kind they may desire. Non-monetary in the sense of national and international recognition for the work they carried by a systematic organization and arrangement for such recognition (something like the Patent-Cooperation Treaty) etc.

IPRs are a series of rights designed to fit into and promote this stream of thought. They advance the legal protection to the authors and creators of inventions, discoveries, works etc., and also offer them state assistance from preventing others from misusing their works or exploiting them to their disadvantage. Thus IPRs provide a legal protection for trade secrets, industrial design, know-how, etc. On a similar standing, it provides exclusionary rights such that the author or creator of the property can enjoy the benefits of the rights by disallowing others from reaping the fruits of his labour. Patents, Copyright, TradeMarks, etc. are rights of this category, which differ only with respect to the nature and aspect of creativity involved but as far as their basis is concerned, stand on the same footing. Like Patent is used for an invention and thus is related primarily with technological innovation, whereas copyright is more related to arts, literary expressions, etc. Trademark on the other hand is a tool to keep free-riders away from sharing the fruits of your goodwill and effort which has made your brand distinct from the rest.

So we have IPRs, both to promote as well as to disassociate; promote intellectual contributions to the collective wisdom of mankind and disassociate scientific temper from acts of plagiarism from the rest of man-kind. The message simply and shortly is, don't borrow or steam, create your own.

Why IAEA is such a huge issue in India?

Once there was a time when Mumbai used to come to standstill at the roar of the tiger, Bal Thackeray. But things have not remained the same. A few days back (or even a fortnight), Mumbai halted because of El Baradei. Does that name ring any bells? Or who is he?

Well, he is the chief of the dreaded-word IAEA, which has been amidst the centre point of the ongoing controversy and drama in the Indian parliament. The Left conceptualizes him and the organization he represents as a harbinger, resounding clutches on India's progress. Why? Because he and his organization is at the centre point of the Nuclear Deal which India has signed with the United States. [click here for full list of events.]

Still no clues??? Alright, I will disclose now who he is. He is the Director General of the International Atomic Energy Agency, the UN's nuclear watchdog. And the reason why his organization is dreaded because of the Nuclear deal whereunder India agreed to allow IAEA to supervise its nuclear plants, therefore technically amounting to an external control over hitherto India's foreign-influence-free nuclear policy. This is the biggest reasons for the Left's hue and cry over the issue; that India's freedom has been restricted under the Nuclear deal and its opposition to IAEA.

But is the issue really that big to rock Indian Parliament for more than a quarter-year now??? (since August 03, remember ???) What would be the consequences if the events do lead out to an IAEA supervision on Indian nuclear reactors???

Well, under the terms of the Nuclear deal, India is obliged to use the nuclear materials etc. supplied by US only for non-military purposes (which indirectly means a ban on conducting further tests on nuclear bombs etc.) and in the event India does decide to go with the military uses, the deal would be suspended. But who decides whether India has in fact used the material for non-military purposes. Well, if the IAEA deal goes through, IAEA would be the sole determinant of this.

This would mean that if IAEA says so, India has used the nuclear material for non-military purposes even if it hasn't. The position of IAEA is singular. It reports as a special agency of the United Nations and submits reports, which are acted upon pretty quickly. (Heard about its report on Iran and the later turn of events with the US even threatening about going ahead with an exercise similar to Iraq???)

Then, further, India will be obliged to grant full access and know-how to IAEA officials of its nuclear programme, something out of the ordinary for the Indian nuclear policy. In order to fulfill its mandate, IAEA may even be required to examine the Indian civilian nuclear power plants and so goes off our vision for energy security, the Left and others cry.

So we know what are the costs of this. And proposed benefits??? Well unless India goes on to allow IAEA to have a seat and inspection rights to its nuclear reactors, the Indo-US nuclear deal will not go through. Unless the deal goes through, India will not get uranium and other nuclear-energy assistance required to go ahead with its energy programme. The entire load, therefore, will be on our indigenous energy resources (i.e. coal majorly and to some extent hydro-power), which definitely are not capable enough to meet our present energy needs, forget even contemplating about our future needs.

So what do we do? Say yes to IAEA and allow our energy requirements to be met with a contingency of foreign/external control over our works or say No and goodbye to IAEA and strive without energy to maintain a growth-rate of 8-9 percent. The answer is for you to decide. But do let me know your views on this.

What are Intellectual Property Rights?

Intellectual Property Rights or IPRs are the watch word for today, not only for the legal systems but also for the common man. Everyone seems to be gripping with the this word. So why not dwell with it here. After they are, if not the latest, one of the latest additions to law.

So what is IPR?

To be simplistic enough, IPR symbolizes Intellectual Property i.e. an outcome of intellect. But since intellect is relative or rather a subjective concept, how can there be intellectual property? Because it is not the intellect with is the subject-matter but the property element in it. Think of an artist making a portrait of a flowing river. Now anyone and everyone who passes by from the spot can see the image which the artist is seeing. But the point is that this artist puts what he sees on canvas in a manner supposedly no other person would be able to put it. Why? Because the artist is putting his intellectual abilities (also called 'skills') into usage to come up with the picture. Since this is the outcome of his intellect, the outcome is intellectual property i.e. this picture is an intellectual property. And that this intellectual property is attributable to the artist, he has got intellectual property right over it, unless he passes it on ofcourse, like by way of selling the picture etc. Similar to this, a book is the intellectual property of its author and he has rights over it.

This is how we arrive at IPRs. They are an outcome of intellectual simulation and since it takes skills, effort, investment and labour, certain rights are attributable to it. These rights i.e. IPRs are primarily conferred upon the author or creator of intellectual property such that the author or creator can exploit the intellectual property to make himself better off. Like in case of the picture, the artist has a right to sell the picture to make himself better off. Similarly the author has a right to sell his manuscript to a publisher and derive the benefits from the publication of the book (technically known as 'royalty').

But what happens if someone makes a copy of the artist's picture and sells it as his own. Similarly with the case of the author, someone makes a photocopy of the book and earns money by selling it. Is it fair and just to the author or the artist? Notions of justice demand that such situations be prevented from, as they do not allow the author and artist to realize the value of the work they have created in their fullest terms. So we have the second category of rights which are by their nature exclusionary i.e. prohibit others from making unauthorized use of the intellectual property of another. One may as well note the words unauthorized because in certain situations the author may as well transfer or sell off his right over the intellectual property and in such a case the purchaser of the property would be justly entitled to use it.

Here comes the third factor. Who ensure that a particular item is an intellectual property and that it is worth granting the protection from others? Well it is a function of the State, which defines what gives a descriptive ambit of what according to it is intellectual property, when does it qualify for protection and what are the rights associated with it. So we have various qualifying criterion such as, originality, novelity, utility etc., which are required to be satisfied before the State grants such rights over the property upon the author.

So we have IPRs, which constitute rights over intellectual property but rights of various facets such as right of paternity (i.e. to be recognized as the author or creator of the property), other moral rights (i.e. right against destruction or deprivation of one's property), exclusionary rights (i.e. right to exclude others from usage of your property against your wishes) etc.

To add a qualification, however, in cases where the State feels that it would be unjust to grant rights to an individual or group of such nature that would be harmful to the interests or a larger social group, it may as well seek to deny such rights or forcefully acquire such rights. Like the ongoing debate on the rights of the pharmaceutical companies over their products vis-a-vis the rights of the poor and suffering, poses a good illustration of this divide. In such situations it becomes a question of national or international accord as to the treatment to be meted to the circumstances but what I wish to point out is that there are negative consequences of such rights as well.

Sports Law Blog

I found a good blog on sports law. I had thought of keeping one myself but then its a specialized subject in itself and not a very developed one in India. I believe NUJS, Kolkata has one paper on that but I am not sure how far it is relevant for the context in India where sports law as such in not developed.

Then this sports blog [click here] is one devoted mostly to the US sports. Am not sure if there is any parallel in India but sure. Sounds fun !!!

Judicial activism at stake???

Recently a division bench of the Supreme Court reversed a decision of Haryana High Court. No big issue really, happens every day at the apex institution. But it created a furore and debate amongst the Constitutional experts of India. Why? Well because the Haryana High Court in its decision was dealing with temporary & casual gardeners which had been working for long and due to the inaction of the government, in regularizing their posts, were suffering for long. The High Court, in that situation, directed the government to regularize them, thereby giving them parity with the regular employees doing the same work. But then when the Government of Haryana appealed against this decision, the division bench, comprising of Justice A.K. Mathur and Justice M. Katju hailed it as an enrochment of legislative power and overturned the decision.

Why? Because according to them the function of the courts is to enforce a law and not to make it; judges cannot create a right where none exists; it is the duty of the law-makers to ensure that proper governance takes place; etc. But I do not understand that the same Supreme Court, and that to a Constitutional Bench of it, lays down the law of the land in an eleborate judgment the guidelines to be followed by executive governments while dealing with regularization of casual employees, what is wrong by the High Court following the decision and deciding accordingly, when it is bound to decide the cases in terms of the law laid down by the Supreme Court? So its just like, we tell you to do 'xyz' when but we do not want you to do 'xyz'. The issue it raises about judicial certainty etc. no one has bothered to deal with but then a furore had created that judicial credibility is at stake.

And this comes from no less terms but from a very senior and respected lawyer in the Supreme Court, Ms. Indira Jaising. She has raised important (but unconnected to this recent judgment) issues and identified a few items which according to her should be on the priority list of the judiciary. So let us start by what judicial activism per se means and then move on to whats wrong with the approach of the highest court of India.

Judicial Activism is really a big word now in India. A random search at google on it brings 103,000 results. But what is it? And why at all is it so big? Well it evidences a pro-active judiciary i.e. one which goes beyond the Austinian exposition of law. The traditional notion of the law has been that the legislature creates/makes the law, executive enforces the law and the function of the judiciary is merely to interpret laws and clarify the legal meanings they carry. Doesn't sound too big right? This is exactly why the judiciary at times has tended to go beyond. Citing the reasons of executive in-action or absence of a law altogether to deal with a particular glaring issue, the judges have gone beyond their originally prescribed function of interpreting laws and have made laws themselves. This progressive march as an institution has been tentatively described as judicial activism.

Why I say tentative because it has various fall-outs. Firstly all agree (whether constitutional experts or otherwise) that the laws enacted by the legislature are not sufficient to deal with all cases which come across the societal interactions and therefore there must be a sufficient degree of leverage available with the judges, at all times, to make an exposition of law which may not exactly be as the legislature contemplated or could not contemplate (being too busy I suppose) and therefore advance the understand and application of law further. So there is no question of judicial activism when it is always an acknowledged fact that the judiciary has to remain active beyond the confines of a statutory law in order to function effectively.

Second comes the question of drawing the line. Where and when do we say that a particular instance of decision-making is pro-active or in line with Austinian understanding? Typically when now the Constitutions across the world confer these roles upon the courts. The Supreme Court of the United States, under Chief Justice Marshall,declared two hundred years back in Marbury versus Madison that the law of the United States is what the Supreme Court says it is. Courts, internationally, have taken clue from that and have been plugging the gaps which have arisen in the absence of laws. Then the Constitution of India gives wide and sweeping powers to the Supreme Court of India in terms of Article 142 and otherwise. It provides that the Supreme Court can "make such order as is necessary for doing complete justice in any cause or matter pending before it". Now given the fact that justice is a very wide and relative term, capable of justifying almost any proposition, it is imminent that the Court can go way ahead to perform its role as the Custodian of the Constitution.

So when the Court does go beyond, why do we cry foul? When the entire country is divided in brick-bats about an issue which not only divides the country on Marxist lines of haves and have-not and provides for reservation, which is wrong with the Court contemplating the pros and cons of the matter which carries huge ramifications and puts at stake the future of the country as a whole, especially when the government is paying a deaf ear to it; yes I am referring to reservation. After all the Constitutional itself recognizes 'social justice' as an essential goal to the attained by the State.

This is just one example of course. There are so many other important matters pending before the Court at all times. As my friend as a Law Clerk to the Chief Justice of India puts it, the Court is having a busy time now, having so many sensitive and important cases pending before it that he and the judges would be working even during the vacations. This definitely is an indication that law does originate from critical thinking and awareness to the sensitivity of the problem. So if we are not sensitive to the problem, why should others not be as well.

At this point I am reminded of the selling of the Parliamentarian's votes, an incident that took place at the times Late Mr. Rao was the Prime Minister. At that time the Supreme Court refused to look at the matter, being an internal matter of an august institution of India, the Parliament. But then when the matter came up again and that was as regards the internal functioning of the Parliament, expulsion of members and other grounds, the Court was obliged to interfere to the extent of pointing out the rules of fair play and then departing with grace by leaving the matter to the wisdom of the legislature to deal with it. I do not think this is an encroachment on any one's power or domain.

Way back in 1973 when the Court laid down the 'basic structure doctrine', many experts objected to it on the grounds of legitimacy i.e. who gave the Supreme Court the power to declare that there is such thing as a basic structure in the Constitution, where there is no mention of such either in the Constitution or in the Constitutional Assembly Debates, which record the deliberations of the members of the Assembly which framed the Constitution.

But then, why do people not understand that there is a need to change with the times. Animals adopt and humans change. Then why should the law not follow the course? The Constitution is not meant to be a book which will contain the same text and same meaning even after decades and centuries. In order to make it meaning either it has to be revised or given life to by meaningful interpretation which is adaptive to life's sensitivities and the changes in human outlook and behaviour and also to conform to the aspirations that a nation carries, not to mention the national goals of growth and development.

Here I conclude, perfectly in favour of judicial activism, which in turn is cross-regulated by the legislative interventions in the form of enactments which keep coming from time to time and adapt, modify or over-rule the law laid down by the judges. Unless a path of active involvement in the national interests; unless issues plaguing huge cross-sections across the country are timely addressed (which perhaps a busy executive finds hard to keep pace with), growth and justice in the real sense of the terms cannot be achieved.