Something About The Law

The Supreme Court on Friday rejected a petition at the admissions stage challenging the Insurance Amendment Bill, 2009. The Bill seeks to abolish the commissions paid to insurance agents and instead charges a fee on that basis.

The reason for rejecting the petition was quite simple; it is only a BILL and not a LAW yet. Only when a Bill is passed by the parliament or legislature does it become law and then only can it be challenged in a Court of law. It’s something they teach you at the first year of law school, and even if they dont teach it to you, you learnt it by yourself the moment you read Article 13.

I found it really hilarious and equally ridiculous on reading the article here. Shouldnt our lawyers know atleast this much or have the standards in the Supreme Court bar fallen this much ?

Yesterday, there were two important press conferences in India that dealt with the establishment’s view of the crisis unfolding in Dubai. One was Mr. Anand Sharma’s, where the Commerce and Industry Minister sought to allay fears of its impact on India. Around the same, there was one by Dr. Thomas Isaac, Kerala’s FinMin, who (quite surprisingly) admitted that the Dubai meltdown is going to hit Kerala pretty seriously. Well, I guess the admission may not be so surprising since the sheer influence of expatriate Gulf Malayalis on Kerala’s economic engine is near-sacrosanct.

For long, Gulf countries have been the native Keralite’s favoured professional destination – to the extent that it has been made legendary in popular culture. On the ground, remittances from the Gulf has touched INR 2.2 million, with a CDS study stating it was probably the only dynamic factor in the State’s otherwise poor show from ‘75 to 2000. By acknowledging the gravity of the crunch in Dubai at the moment, Kerala’s Finance Minister has definitely set the cat amongs the pigeons.

Kerala has many reasons to be worried about the tidings in Dubai. Its not just a question of reduction in remittances – more importantly, it is the issue of forced repatriation back to the State that scares everyone. I call it forced, not by virtue of any hostile policy on part of the Dubai authorities (though such a situation is only a matter of time, if the trajectory remains the same), but because of acute unemployment concerns in the Emirates. A significant percentage of Gulf Malayalis are employed in blue-collar or semi-skilled professions, which will be hit the most as a result of the real estate crisis in Dubai. Infrastructure, real estate and luxury tourism  has been Dubai’s USP, since the Emirate does not have oil resources like Abu Dhabi. A slowdown in construction will affect migrant labour and employment contracts, and a good chunk of the bane will be directed at the Malayali. This, in addition to the problems of illegal migration from Kerala (which the Government has been able to curb in recent years).

Even with the sizeable number of highly skilled professionals from the State working in Dubai, the picture is definitely not pretty. When we euphemistically refer to the term ‘highly skilled’, it is often in comparison to lower rungs. Malayalis in the service sector comprising professionals as educators, scientists, lawyers, HR personnel (with the exception of doctors/nurses) are a rarity in the Arabian peninsula. Instead, the top jobs have also focused on businesses relating to real estate, construction and banking.

Whether the State will witness an unprecedented return of its residents from the Gulf is yet to be known. But the picture’s not rosy, and tough times lie ahead.

(Featured picture: A poster from Mohanlal’s hugely successful ‘Varavelpu’ [Welcome], based on the tribulations of a Malayali expatriate in Kerala after he returns from the Gulf.)

Referring twice to Dick Cheney as “Darth Vader,” ElBaradei told me in an interview that “U.S. policy consisted of two mantras — Iran should not have the knowledge and should not spin one single centrifuge. They kept saying, wait, Iran is not North Korea, it will buckle. That was absolutely a mistake.”

Roger Cohen, NYT

For over a decade, the man has strode the world of nuclear security and non-proliferation like a Colossus. Before his 12-year career as the IAEA’s honcho ends tomorrow, we take a look at his contributions in turbulent times.

Its easy to think that ElBaradei’s defining moments in the IAEA came in the aftermath of the American invasion of Iraq – while it is true that he was pushed into the limelight during the time, the Director-General has made his impact through a consistent policy of pragmatism in issues otherwise dictated by fear-mongering.

Nuclear non-proliferation, as a concept, has long been considered by the developing world (including India) to be a lop-sided turf,  favouring the ‘recognized’ nuclear powers. This attitude, exacerbated by irrational claims and drastic measures (read ‘NPT’) from the West, has often resulted in straining of relationships. More importantly, the debate surrounding nuclearization has been hijacked by the threat of use of arms, as opposed to utility in civilian energy purposes.

ElBaradei, during his tenure as the world’s top nuclear policeman, was able to differentiate between both circumstances. Consequently, he rooted for removal of sanctions against India after Pokhran-II (considered unthinkable by a US-influenced IAEA) and even encouraged the nuclear framework agreement between India and the United States. Conjunctively, he agreed that Pakistan had its energy requirements, but in the light of the A.Qadir network, he would not support an n-deal with Pak until its nuclear installations and security were confirmed.

Prior to the invasion of Iraq, ElBaradei and his predecessor Hans Blix, asserted that US claims of WMD in Saddam’s hands were misplaced, and that the evidence of uranium purchase was not authentic. He strongly condemned the use of force against Iraq, alongwith Kofi Annan, and claimed the subsequent US admission of ‘no WMD’ as a vindication of his own stand. His efforts in non-proliferation were recognized in 2005 when the IAEA was awarded the Nobel Peace Prize.

ElBaradei has had an excellent insight into the functioning of the so-called ‘rogue’ nuclear states, viz., Iran and N.Korea. On the boiling Iran front, he has always called for negotiations between belligerent parties, and if talks have even considered mooting a plan for uranium exchange, its largely due to his dogged persistence on dialogue. In recognizing the power fluctuation that fall consequent to nuclear capabilities-acquisition, and the dynamics of deterrence, ElBaradei has been a stalwart of the non-proliferation movement. At a crucial juncture in international affairs, his presence and abilities will be missed, when he steps down from the IAEA on 30 November 2009.

In his op-ed on Foreign Policy, Daniel Twining speaks on the significance of considering the US’ relationship with India as a value-based interaction among the world’s largest and most populous democracies.  He criticizes the Obama Administration for attempting to engage China in a near zero-sum, interest-based relationship, one that is  myopic in nature.

Taking a similar line of argument, it is important to note the relevance of Barry Buzan’s theory of the international security community in this context – classifying regional (and to a limited extent, global) relationships in the spectrum of (1) conflict formation, (2) security regime and (3) international security community. The third phase in the spectrum, as Buzan describes in his book Security: A New Framework For Analysis, is a situation envisaged where the security interests of two or more nations are so intertwined that they cannot be realistically considered apart from one another – basically, a situation of war is inconceivable between them. Take for instance, the EU. The argument then, is that this ’secure’ community is able to facilitate economic and cultural ties between its constituent members.

Where does the U.S-China relationship figure in this scheme? Alan Collins makes an articulate case, using Buzan’s theory, on Sino-US ties – he sees it developing towards a nascent security regime, where the threat of conflict is very real (accounting for a number of factors, including Taiwan and N.Korea) but perhaps not imminent, for the parties’ own interests will then be harmed. The essay does not consider the impact of the global financial crisis (it was written a year before the meltdown) but the credit crunch has only added to Collins’ argument. This is perhaps best exemplified through Obama’s recent visit of China.

China is expected to play a significant role in leading the global economy out of recession, and American interests are heavily reliant on it. The fact of China holding billions of U.S Treasury bonds is well-known, and consequently, the US is extremely cautious about its approach to the Asian giant. Obama, evidently, is keen to appease China to sustain its interests (in the Korean peninsula as well), and this interest-based relationship is not founded on a culture of solidarity. In fact, the situation could not be more contrasting: China’s track record on democratic regimes/reform, human rights and free speech is deplorable, and has often been a cause of concern to the United States. Yet, in prevalent circumstances, the Obama administration can ill-afford to rub China the wrong way on these sensitive issues.

On the other hand, U.S Presidents (till Obama) have treated India as a ‘natural’ partner in South Asia. Democracy is a defining factor that connects India and America, in a way that is a significant buttress to US exhortations in Af-Pak and the Middle East. It is also important in the struggle against extremist activity where India and US get hurt the most. Despite sanctions imposed in the immediate aftermath of Pokhran I and II, the US has recognized India as a responsible nuclear power and has even entered into a civilian nuclear agreement.

Thus, it was not surprising that the US-China joint statement hyphenating India with the India-Pakistan problem created a furore here.

And yet, even if we were to go beyond the value-based relationship, an ideal bedrock of Indo-U.S. ties, America stands to benefit greatly from nursing Indian growth in South Asia. As Twining states, India’s stiff competition to China on economic growth and its involvement in sensitive issues such as Tibet, has greatly worried the latter. Ergo, we have the Arunachal Pradesh ruckus (part of the larger border dispute), paper-stamped visas, joint statements, hawkish press releases and what-have-you.

Admittedly, India needs to go a fair distance to catch up with China. The Chinese, at the moment, present a direct threat to American leverage in Asia-Pacific, even as its Japanese grip seems to be easing with the Hatoyama Government in place. The U.S needs a strategic partner in Asia, that can directly counter the rising Chinese tide, and the answer in plain and obvious. There can be no better rationale for partnership and co-operation with India, than the culture of solidarity that exists (almost subliminally now) between both nations.

This is the 300^th post of this blog and we have come a long way from scratch to be where we are today. The credit to this goes to support received by our readers, classmates and friends in the legal community and each of us authors as such.

I couldn’t think of a more fitting post that to tell the readers of Mr. Andhyarujina’s recent article on the Keshavananda Bharti Review. Printed in the latest SCC [(2009) 9 SCC (J) 33], many may not even be able to read this article. I had the good fortune though to get an account of this incident from Mr. Andhyarujina himself while I was interning with him in December 2007. This was perhaps one of my best internship experiences and influenced me to pursue a career in litigation.  He also gave me copies of the review transcript as appearing in Mr. Prashant Bhushan’s book.

In the Article, Mr. Andhyarujina starts off by saying that very few of us know that the momentous judgment of Keshavananda Bharti was subjected to a review in 1975. It took place during the height of the emergency when even the reporting of Court’s judgments by the press was restricted. While giving a historical account of the review and what happened by referring to the transcript in Prashant Bhushan’s book and the books of Justice Krishna Iyer and Nani Palkiwala, Mr. Andhyarujina also treads on the eloquence of Nani Palkiwala and the impact of the review on constitutional democracy.

“While the first objection of Palkhivala did not receive serious consideration, the later objections of Palkhivala had a powerful impact. Argued with great force and eloquence he held the Court and spectators spell-bound. Palkhivala was at all times a master of advocacy when he developed the unacceptable consequences of a situation in law. He did this with telling effect in this case, sometimes derisively countering the theory and its vagueness and uncertainty. Several observers, including Justice HR Khanna, who saw Palkhivala’s performance that day believe that the height of eloquence reached by him on that day will never be surpassed in the Supreme Court.”

Elsewhere, after giving an account of the two day proceedings before the bench was abruptly dissolved, he states,

“On the next day, 12.11.1975, the bench assembled to a packed Court for a resumption of arguments. Hardly had the 13 judges taken their seats when to the Surprise of all the Chief Justice stated “the Bench is dissolved”. He observed that for two days the arguments were found “to go in the air”. …..

…… The sudden end of the review hearing took everybody in the Court including Palkhivala by surprise. The reason for it has remained a mystery till now. What was the reason for it? We now have some revelations. It appears that Palkhivala’s arguments that there was no case in which the Court had found difficulty in applying the basic structure had made a big impact on some judges.”

As law students, we have always been in awe of the Keshavananda bharti judgment. I do recollect instances when most questions in the law school entrance exam hovered around the bench strength and issues in the case. So much so, quoting this lengthy judgment in a moot was like sounding a death knell. It took us a week to be taught the whole judgement by Prof. Errabi in a memorable constitutional law class. Nevertheless, most of us may never get to know of such an incident unless we read articles of the kind written by Mr. Andhyarujina.

For me, it was also a joy to read Mr. Prashant Bhushan’s book referred above titled “The Case that Shook India”. It is a book that gives a factual description of the proceedings in Indira Gandhi v. Raj Narain. Gripping as it was, it was also a refresher in the sense that it was so much more detailed than mere legal opinions as given in the case. Not surprisingly though, we do not have many books written on our landmark cases while the same are abound in other jurisdictions. The period of the 1970’s itself is one abound in Indian constitutional history and unless such articles come to the fore, we may never get a chance to know about such incidents and the historical and factual basis on which they proceeded.

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