Something About The Law

IIM Calcutta has introduced a new course of Intellectual Property Management titled “The Business of Intellectual Property” for the the flagship PG Program in Management. Launched on 15th December 2009, the course hopes to cover the emergence of IP, a focus on the legal & regulatory systems, the transactional issues in IP and even a special focus on IPR protection in China.

Its a matter of great pride for the NALSAR community that this bold and innovative venture is being spearheaded by Prof. V.K. Unni, and the course is a fine example of how the law often blends seamlessly into the realm of public policy, especially in emerging Indian markets.

This course will cover in detail the emergence of global IP architecture represented by the WTO-TRIPS Agreement, the legal and regulatory systems dealing with patents, trade marks, copyright, designs, trade secrets etc. Another area of focus will be the transactional issues in IP dealing with assignment, licensing, competition, securitisation, due diligence, valuation and various related issues in such transactions. Since most of the IP related transactions have a global impact, the course intends to provide a comparative perspective about the IP systems of USA, EU, UK and India.

The detailed course plan and content may be found here

Law #2004-228 of March 15 2004, commonly known as the French law that bans the wearing of conspicuous religious symbols in public schools, seems to be a stale and old issue. Or is it? The answer is a NO because of three reasons:

1. Though the language of the 2004 law is neutral and applies to conspicuous symbols of any religion, popular allegations against it and some evidence of its actual implementation, to which I will come in a moment, shows that the Muslim headscarf or hijab is the actual target of the ban. This has important and controversial aspects cutting across political, social and sometimes racial dimensions considering France is home to the second largest Muslim population in Europe and some of the Muslims are immigrants from former French colonies of Northern Africa. (For a general history of the law, see here)

2.  Law relating to such a ban is not confined to France but is a Europe-wide phenomenon with similar laws in Turkey, Germany and Belgium. Most recent practices of such sort without any law to authorize the same have been observed in Canada and India.

3. Following severe criticism from all spheres of international community in the last five years, France is contemplating a separate law banning hijab and possibly the burqa.

The validity of the 2004 law has been upheld, most recently by the European Court of Human Rights in Dogru v. France and Kervancki v. France (both decided in 2008).

In one of my several attempts to find contemporary relevance of jurisprudential analysis, I find it interesting to think about the 2004 law through the minds of Pound, Habermas and other jurists belonging to the sociological school of jurisprudence. This post is thus an effort at linking up philosophy of law and the law. Lest it should read like drudgery, I will make some quick points: (lets just talk of hijab and the Muslims of France who technically constitute a religious minority)

a) According to Jürgen Habermas, laws are valid only when all affected persons are given equal opportunity of communication in the rational discourse of making the law, the discourse being public and inclusive. Irrespective of several official surveys stating that majority of the French and even Muslims perhaps supported the law, the fact remains that the Muslims did not know how the members of the Stasi Commission were chosen, only one woman who actually wore hijab, out of 120 people, was interviewed by the Commission, the French Council for Muslim Faith representing the Muslims of France was not consulted and thus no opportunity of political participation/discourse in law-making was given to a group most affected by the law.

b) Roscoe Pound, the father of sociological school, (interestingly, he turned to law after obtaining his doctorate in Botany and served as the Dean at Harvard Law School for several years), insisted upon socio-legal study in the preparation of law making and a just individualized application of the legal precepts. All seem to have gone for a toss with respect to the 2004 law. No attempt was made by the Stasi Commission to find out what wearing hijab actually means to Muslim women. It was hurriedly dubbed oppression. The social waters thus remained untested before the law was to be in place. After the law found home in the statute book, school administration went bonkers with its implementation expelling students who wore not only hijab, but also veil and the bonnet. Children, in particular the girls, were found to be in need of psychological treatment after the whole process of sort of quarantining and expulsion. (For a full report of the aftermath, read here)

c) The 2004 law is often sought to be defended on grounds that it activates a most-needed divide between the public and private sphere, particularly with respect to the constitutional principle of separation of state from church in France (also known as laïcité). Ronald Dworkin once stated that notions of public-private are flexible with changing times. What is private today may very soon be seen as public or vice versa. Muslim women find it hard to get accepted in private employment/education once they have been expelled from the public spaces for refusing to remove their hijab.

The sociological school studies the actual function of the law in its sphere of action. The actual function of the 2004 law is unknown, at least officially, since no review of the impact of the law has been carried out by the French government though the requirement of such a review exists in the 2004 law itself and should have been fulfilled in 2005. Even in its Sixth Report to the CEDAW (2009), France cited no evidence to support the claim that the law was actually working.

Several issues relating to human right violations (irrespective of the fact that E.Ct HR has upheld the 2004 law), constitutional complexities and political angles of rights of religious and racial minorities in France still persist and are bound to resurface given the latest attempt at a separate new law on the subject. However, when we examine the law through the tenets of the sociological school and nothing else for the moment, we find it fails the test in all respects.

(Neha Pathakji, Lecturer in Taxation Laws at NALSAR, writes on the proposed Direct Tax Code, and its impact on the society.)

The nation is witnessing winds of change these days, especially in the age old Tax system. Just when a new indirect tax regime is round the corner in the form of GST(Goods and service tax), likely to be implemented in April 2010; the release of brand new Direct Tax Code has leased a fresh life in the Direct Tax system. The government seems to be determined to overhaul the existing tax fabric, both direct and indirect and make it simple, transparent and broad based. This is a strong message from the government of its commitment to realign the domestic taxing architect    with internationally accepted taxing principles and practises.

The new Direct Tax Code, if passed in the Parliament, will bid adieu to more than four decade old Income Tax Act, 1961. It will become a law only in 2011, so that as a nation we still have sufficient time to deliberate upon the new Code. The Income Tax Act, 1961; often considered to be one of the most complicated piece of legislature, has given rise to lots of confusion and complexities. Thankfully the new Code has aimed to remove the ambiguity by giving a go bye to redundant provisions, organising and grouping the provisions, ensures easy language for better understanding and transparency in the administration; thereby trying to promote better compliance and understanding of the statute. It has proposed to slash down rates, both for individuals as well as India Inc., replaced the concepts of ‘assessment year’ and ‘previous year’ with a single term ‘financial year’, scrapped the exemptions and distinction between long term capital gains and short term capital gains, raise deductions levels from current 1 lac to 3 lac. For individual tax payers, the Code proposes Rs.1.6 lac tax free income, income up to Rs.10 lac taxable at the rate of 10%, up to Rs.25 lac at 20% and at 30% above Rs. 25 lac whereas corporate taxes are down from 30% to 25%.

Taking a bird’s eye view, the new Code seems to promise the aspiring individuals and middle class and at the same time woo the corporate world. While the raising of deductions from current Rs.1 lac to 3 lac will stimulate savings, interests on savings have been made taxable. However, the Code will prove to be a mix bag for salaried class. In a major departure from current position, the draft Direct Tax Code envisages EET regime i.e. exempt-exempt-tax from exempt-exempt-exempt. In simple words it means that the Code proposes to introduce exemption on investment, exemption on returns but tax on withdrawal. This has raised concerns of the salaried class and small investors. EET will have a favourable impact on the New Pension Scheme; it makes withdrawals from the PPF, GPF, RPF and EPF taxable, hitting the most where it hurts. The idea mooted is to save on tax when in employment and pay tax at retirement. But it is the retirement time when any taxpayer would least want to part with his lifelong earnings. The ones who have already opted for annuity plans and pension funds from insurance companies are sceptic. This may require amends in the investment portfolio of the small investors. Also in a major jerk to the borrowers of housing loans, the exemptions on housing loans find no mention. It is suggested that there should be some provision for standard deductions for the salaried class.

Agricultural income still remains out of the purview of tax. The business losses will be allowed to be carried forward indefinitely which is again good news for the business sector. The capital gains tax and wealth tax are also imbibed in the same statute, thereby integrating different direct taxes like income tax, corporate tax, fringe benefit tax, wealth tax and capital gains tax under one umbrella.

The new Code promises the taxpayers happy days ahead once the proposal becomes law. However, the government needs to invite suggestions and take opinions and feedback from the financial experts, chartered accountants, jurists, the academia, experts and all the stakeholders before giving a final shape to the new tax system.

In 1994 Narayan Chetnam Choudhary committed the crime of murdering five women, one of whom was pregnant and two were children with a tender age of two and a half and one and a half years. In 2000 the Supreme Court confirmed his death sentence. Nine years hence, he lies in the jail at Pune wondering of the morning on which he would be executed.

Albert Camus in the famous essay titled ‘Reflections on the Guillotine’ stated that “knowing that you are going to die is nothing”, but “knowing whether or not you are going to live, that’s terror and anguish”. The horrors of the death penalty itself are known to one and all. But to make a convict wait endlessly thinking of the day he would be executed is worse than death itself. So, has also the Supreme Court of India stated in numerous cases. Narayan’s case is not an isolated one. The National Crime Records Bureau reports that till 31^st Dec. 2005, there were 273 people sentenced to death (not clear as to by trial court or SC ) and at the same time, there has been only one execution in the last ten years. This in comparison to the fact that there were 1422 executions between 1954 to 1963 alone. I’m in no manner advocating that the execution of their sentence be carried out, but am sympathizing for one can not even imagine the plight of each of these people awaiting their sentence to be executed.

The law on this issue has been well settled by the Indian Supreme Court. The landmark case of Triveniben v. State of Gujarat stated that a delay in the execution of the death sentence is a valid ground for commutation of that sentence to a life sentence. It has been acknowledged that a receiving a sentence of death is one thing; but a death sentence followed by a lengthy period prior to execution is another. Earlier, in TV Vatheeswaran’s case, the Court stated that the question is whether in a case where after the death sentence is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, the Court can commute the sentence on that ground ?

The answer to this, affirmative as it is, lies in the rationale that after Krishna Iyer’s judgment in Sunil Batra’s case, even a prisoner has the rights guaranteed to every citizen by the Constitution. This also includes the right to life and liberty. To make the accused suffer endlessly as a form of torture till the time the execution of his sentence is carried out necessarily is a violation of this right and thus a ground for commutation of his sentence. Then why is it that so many still lie in the jails suffering such horrid moments and feelings ? Perhaps it is because the delay factor comes into play when the Apex Court pronounces its judgment on the case and other remedies exhausted. Though not in Narayan’s case ( the SC pronounced judgment in 2000 and no legal proceeding/ mercy petition since ), with the President of India sitting on 44 mercy petitions at present including the famous Afzal Guru, the State has a major role to play in factoring this delay. This is only a minor subset of the fact that thousands of poor people languish in jail awaiting a hearing in their case and not being able to afford bail. The Criminal justice system of the country is plagued by such unaddressed issues and still justifies itself as a moral institution with convictions in the Jessica Lal and Nitish Katara cases.

India shares the honor of being one of the last democratic countries in the world to keep capital punishment in its arsenal of repression. We believe that it is the right way to deter terrorism and other heinous crimes. The aspect of deterrence plays an important role then. In fact so much so, with 150 people dead in the Hooch liquor tragedy in Gujarat, the state Government is planning to introduce an amendment in the Bombay Prohibition Act so as to include the death sentence as form of punishment. If passed, it would be one of the few laws prescribing a death sentence apart from the penal code itself and would make a mockery of the requirements under the Indian Penal Code of a death sentence; act to be committed with intent to cause death or knowing that in all probability is must cause death etc… This aspect of deterrence playing a role itself is useless. For instance, various proclamations are being made to give the death penalty to terrorists. But we do know that preparing themselves to commit the most heinous of crimes also includes a preparation to die; thus minimizing the role if any, of deterrence. In fact, most death sentences or laws having a death sentence arise out of a special situation; like the one in Gujarat and to quote Camus here once again, “if, therefore, there is a desire to maintain the death sentence, let us atleast be spared the hypocrisy of a justification by example”. Read the rest of this entry »

“One of the fundamental contrasts between free democratic societies and totalitarian regimes is that the totalitarian governments rely on secrecy for the regime and disclosure for all other people, where as in the civic culture of liberal democracy, the position is approximately the reverse.”

-         Geoffrey De Q Walker

The new national ID card scheme sought to be introduced by the Government marks a movement towards this totalitarian regime referred to above. Picture ‘Enemy of the State’ and at the least harmful level, “the government knowing where youa re and what you are doing at every point of time” and then ask yourself if its allright that this be the case?

Hopefully, the answer should be a ‘no’;else you are one of those sitting in the chairs attempting to be the very puppet the state wants you to be, and not paying any heed to rights and constitutional protections.

The greatest threat posed by this scheme is that to privacy and individual liberty as a whole. That an individual can exercise his option of free will within a certain space to himself without the state knowing what he or she is doing. This also being perhaps the greatest advantages of a civil democratic society. On the other hand is the dystopic vision of a Orwellian society with the state playing the role of a “Big Brother” and watching everybody’s move. In fact, the Indian Supreme Court has said in as early as in 1964 in Kharak Singh v. State of UP, that nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.

While there may be some doubts as to the prevalence of this right under the Constitution, the movement on the other hand to legitimize other modes of surveillance and collection of evidence is also disheartening. We are one of the few democratic countries where illegally obtained evidence is still admissible and narco analysis and brain mapping practiced ‘circumstances galore’. All this is done under the garb of state security. That this is the solution for ending the search for terrorists, the problem of illegal immigrants, state enemies and the like. You sell this to the common man and Voila! You get them to sign up for a national ID card program/ scheme. Ofcourse, there are the benefits of easy distribution of ration, programmes for the poor etc… that come along; but they surely don’t mandate a card for every citizen.

It is not just an ID card, but there’s also an angle of biometrics involved. Thus, every citizen would have a number tag, his personal details and biometric descriptions like finger prints, DNA etc… attached. I couldn’t help amusing myself with this thought the moment I saw the IDEA  advertisement on the issue. The one where everybody is referred to by their phone numbers and the new government policy is highlighted in the background.

Sadly unlike the United States and the European Union, the law on privacy in India has one limitation as observed by the Court in PUCL v. Union of India,

“The Right to Privacy is subservient to the interests of the state.”

That’s how easy it is to introduce and prepare a defense around the national ID card scheme. And that’s why it would succeed and my/our concerns wouldn’t be addressed. But if there is any semblance and place for rights being used as trumps against Government power, that rights can simply not be stashed away merely because a certain section would be better off it they were; then there is some hope.

It must be remembered that what is at stake is nothing less that the nature of our society and the power and authority of the state over the individual; something that we cannot afford to lose in a democracy.