"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, June 23, 2014

The pain of 'pleasure'

Every general election and change of guard makes Governors' position volatile. Arguments and counters remain the same, only the actors switch. Different vantage points are taken to assess and analyse the claim and refusal to resign. It is looked at from legal, political, moral or historical angles. 

The colonial past of the nation and its legal system has been wrongly applied to understand an issue of constitutional democracy by those who adopt the historical angle. The doctrine of pleasure of the past and the present has nothing common, if for nothing else, history's sake. The shift from feudal understanding of crown and its actions to parliamentary sovereignty is history. Context has been changed, so has its meanings. 

Political analysis is straight forward and claim that an un-elected post like that of Governor definitely is a position of pleasure. The elected governments have the mandate of the people to unseat the Governors for reasons that Governor is the representative of the Union Government and she needs to be in sync with the policies and programmes of the Union. 

Moral argument is simpliciter,  appointment as a Governor is courtesy the relationship the appointed had with that regime. It is therefore only morally necessary to resign and correct to claim resignation, when that Government is defeated. 

Legal analysis centers around the constitutional scheme. Battling of the issue in supreme court multiple times have brought clarity in certain fundamentals. 

  1. Doctrine of pleasure cannot be read in its historical context
  2. Rule of law do not permit arbitrary actions
  3. Constitution of India provides for three different types of tenure: 
    1. Those who hold office during the pleasure of the President/ Governor
    2. Those who hold office during the pleasure of the President/ Governor, subject to restrictions
    3. Those who hold office for specified terms with immunity against removal, except by impeachment, who are not subject to the doctrine of pleasure
  4. Restricted judicial review is available in case of removal of Governors
( For detailed reading see, here, B.P Singhal v. UoI, 2010)

All these views hide within it the real, may be political argument is much more closer to the real. A Governor who is an appointee of the opposition parties 'is a pain in you know where', to put is crassly. It is necessary to have Governors who tow the line of the Union to have its designs played well in the states. Winning of general elections has clearly showed that they are favoured and have legitimate right to remove the appointees of the previous regime.  A Government in the union therefore feel justified to oust the Governors who are relics of the previous Government. Any justification given legal or otherwise is a mere eyewash.

In the ongoing scenario, feelers have already been extended multiple times to Governors to resign, as post B.P Singhal, removal will be cumbersome. It could be noticed that no official communique to resign has been issued but pressure tactic of unleashing CBI if not cowed down is played out. With skeletons in the cupboard, resignation is the logical followthrough. Only the upright can remain in the constitutional position in the given circumstances.

To me, beginning of the solution is here. Who are the appointees and on what considerations are they appointed are the fundamental questions to raise.  The pivotal position of Governor in a federal set up like that of India has been turned into a political asylum and a geriatric rehabilitation centre for the politically reject, or a gratitudinal gesture to retired civil servants, barring a numbered few. The ideal statesman Governor is missing, so also the legitimacy of these Governors to stay despite the change of Governments. They are in the position not on their merit but on considerations unjustified. 

In Indian federal arrangement, position of a Governor is vital and especially where the centre is with a party having absolute majority and the state/s with the opposition parties. The governor can and need to play a balancing act given the constitutional mandate he is veiled with. 

U.P is a classic scenario of why NDA, rather Sangh Parivar, will have a pliant Governor. A report of the fluid law and order leading to failure of the state is what BJP would want to have bye-elections in U.P. Given the right wing wave, a sweep is expected. This sweep is not just winning one more state but have more repercussions on the majority in Rajya Sabha. Yes, it resound the conversation of Shrek and the Donkey, 'party politics has layers', 'that stinks and make one cry'. 

The tenure of the Governor and the mode of removal therefore has to be seen not in mere legalistic angle. Law cannot provide imaginative answers to resolve the given problem. The solution starts at the appointing stage. It is also in their actions imbibing the Constitutional role by Governors than by being a rubber stamp of the party/ Government who appointed them.  Legal norms relating to tenure and removal only comes next to rein in arbitrary actions of a Government. The answer is in the legitimacy to be in the position.

A mere argument based on judicial decisions that Governors shall not be removed unless proper process is followed will not bring any legitimacy to a pawn appointee. On the other hand, ousting a deserving appointee will be politically costly for any Government. The answer therefore is not in law but in political culture. Else, Governors will be replaced with another of the same creed but with a difference in party allegiance and the invocation of "pleasure" will occur ad nauseam . 

Thursday, June 19, 2014

GMR v Maldives Arbitration: Tribunal Rules in Favour of GMR

A few years back GMR Male International Airport, a subsidiary of GMR, along with Malaysia Airports had entered into a concession agreement with the Government of Maldives and the Maldives Airport Company Ltd. for the development of the airport at Maldives. The Concession Agreement was a twenty five year agreement. In 2012, the Maldives Government had terminated the Concession Agreement on the grounds of frustration. GMR invoked arbitration. The arbitration took place in arbitration where the tribunal held in favour of GMR. The tribunal is yet to arrive at the damages. News reports cam be accessed from here (Business Standard), here (Business Line) and here (The Economic Times). 

Wednesday, June 18, 2014

Trade, Law and Development: Announcement

Announcement from the Journal Trade Law & Development (TL&D)

TL&D has been ranked as the best law journal in India (2013, 2012, 2011) and the tenth best law journal in the field of international trade worldwide (2013,2012) by the Washington and Lee University Law Library in its annual rankings of law journals. Since its establishment in 2009, the Journal's efforts have been recognized by the International Centre for Settlement of Investment Disputes and the World Trade Organization.
The issue and its contents can be accessed online on our website here
The Contents of this Issue are as follows:
‘Fragmentation’ and ‘Judicialization’ of International Law as Dialectic Strategies for Reforming International Economic Law
Ernst-Ulrich Petersmann

WTO at a Crossroads: The Crisis of Multilateral Trade and the Political Economy of the Flexibility Debate
Donatella Alessandrini

Development is no Excuse for Human Rights Abuses: Framing the Responsibility of International Development Agencies
Benoit Mayer

The WTO Law on Subsidies and Climate Change: Overcoming the Dissonance?
Avidan Kent
The Proposed Horizontal Mechanism: An Evaluation in Light of Existing Procedures under the Dispute Settlement Understanding
Evin Dalkilic

Aabhas Kshetarpal
Managing Editor
Trade, Law and Development