"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.

Tuesday, September 30, 2014

Blue skies of Hong Kong - less pollution and hope of freedom & democracy in the air

The boycott of students have turned into a spontaneous "occupy central" by the last weekend. Instead of heavy traffic, pollution and commercial activities, the busy roads of central district of Hong Kong and certain outlying areas are now venues of student protest. The first night of occupation deepened the mistrust of the youth towards the administration. The images of indiscriminate use of tear gas canisters and pepper sprays on a mass of visibly unarmed students who made all efforts to convey to the police force their intention of non-violence touched the raw nerve of the community at large. 

Many whom I met on the on the streets and could strike up a conversation, overcoming the language barrier, shared the same sentiments- they could not remain at home after watching the images of use of force, students need support, we wont let them face this alone.  Most carried with them bottles of water, wet towels and food for the youngsters. This reaction might explain the complete absence of the police from the streets from day two. There were many, who were either neutral or would not have joined the protest in the streets but for the images flashed in local channels. Having said that, one cannot compare the actions of the police with the brutal force we are familiar in a country like India. That very night of standoff between police and protesters, students could be seen resting popped up against parked police vans. The next day morning Mongkok woke up to a police van sporting a flower on its front windshield with an invite to join the struggle for democracy. 

The continued siege from the next day onward show less of tension but more of responsibilities. A few ten thousands are always there on the streets, led and provided for by themselves. There is no visible leader in command, but of course the new age media is of immense help to communicate and coordinate. The occupy central leadership accept that the protest is ahead of schedule that the logistics planned are not in place. Students have organised provision supply points, first aid posts, trash collection and clearing arrangements. They manage themselves in order, at ease and in true sense of democracy. 

The values of democracy, freedom and the images of students armed with umbrellas and the resolve that cover them against the force of gas, sprays and the power have shaken up many people in various walks of life. The union of teachers of public school have declared strike, so also many other labour unions. The script of resistance so far is familiar and predictable, even the response of the administration. Chief Executive of Hong Kong have dug in heals and seems to have taken a position, let the occupation continue as long as it can last. The strategy as of now seems to be waiting for the steam to ebb out and the community to turn against the youth for disrupting daily life and livelihood.

Administration seems to sense that they were caught in the wrong foot in the use of force against the students that it brought the hitherto neutral bunch of people out into the street to rally up with the students.  Not all those who support the students stand for the cause but is touched by the media images. The wait is for the images to fade. Once media attention and interest is reduced for lack of action, sympathizers might turn around and begin to see the students as meddlers.

After the occupation, today is the first day the Chief Executive addressed the Territory. In his 15 minutes speech, he appealed the demonstrators to withdraw the illegal assembly that is causing disruption and inconvenience to the city, citizens and business. Stressed upon how this movement is affecting essential services like health, transport and ambulance. The leaders of Students Federation and Occupy Central have duly responded that they are ready to create humanitarian corridors for facilitating emergency vehicles to pass through. 

It is a stalemate. Even the Chief Executive have limited area to negotiate as strings are pulled by the Big Brother. The picture in South China Morning Post today is quiet ominous, a lone person viewing the streets of Hong Kong where protests are happening through a binocular from the People's Liberation Army Head Quarters and a series of tripods. 


Thursday, September 25, 2014

Yellow is the Colour of Democracy in Hong Kong and Youth the Image

Joshua Wong was 15 in 2011 when he started a sit-in with few of his friends in the Legislative House premises of Hong Kong to protest against pro-China nationalist education in Hong Kong. This humble beginning magnified into a movement, of a scale, never before seen by Hong Kong in recent past. It was the moment of self-realization of power within by the Hong Kong youth. The government cowed down eventually. Wong, now 17 can’t be expected to be quiet when Hong Kong is at another historical juncture. He and the group Scholarism is in the forefront of the ‘Occupy Central with Love and Peace Movement’ demanding democracy in Hong Kong.

Today is the fourth day of the boycott of classes by the university students. A group of concerned staff and members of faculty are supporting the protest. Professors are recording and uploading their lectures to make good the missing classes. Students are gathered in Tamar Park, where the central Government offices are located. Speeches, discussions, protest banners, processions- the place is buzzing with activity. Thousands of students move in and out wearing black t-shirts with slogans printed in Cantonese, sporting yellow ribbon. Yellow is the colour; of democracy, liberty, freedom, happiness and the responsibility they have shouldered.

The spark youth carries is the defining factor of society’s political health. Hong Kong youth like their counterparts in other regions have been at the receiving end of criticisms for being apathetic to social and political causes, strictly rule bound, looking west forgetting home. The 2011 incident shook up Hong Kongers to the potential of the Hong Kong youth and now it is felt that if someone can make change it is they.

Chambers of Commerce of different countries including India have issued statements against the pro-democracy protests. The billionaires of Hong Kong have lot to loose. It is anybody’s guess that status quo is the best for them that they shuttle to China to broker peace. They have business interests both in the mainland and Hong Kong. The Hong Kong government is openly pro- China and the students can't expect to have a repeat of 2011 that easily as stakes are much too high this time.

The hope but is only with the students of Hong Kong and the support that has to flow from the community. After all, it is the students of Hong Kong who reminded the administration of Chinese University of Hong Kong that universities should be places of neutrality and should demonstrate the courage to face historical facts, in their struggle to place the statue of ‘Goddess of Democracy’ commemorating the pro-democracy movement of Tiananmen Square, in the University grounds.

Tuesday, September 23, 2014

"Vote for the candidate who love the country and love Hong Kong". We give you the list who love both: University students of Hong Kong boycott classes for a week demanding right to choose

Today is the second day of boycott by the university students of Hong Kong demanding the most fundamental democratic rights, the right to choose. It is a prelude to the impending 'occupy central with peace and love' movement.  The basic law of Hong Kong holds out a promise to strive for universal suffrage. The package offered by Beijing is to freely elect from the practically vetted nominations by the Central Government. 

Thursday, September 18, 2014

Three Judge Bench of SCI Decides Comprehensively on "Court" under the Arbitration & Conciliation Act 1996

A Three Judge Bench of the Supreme Court has comprehensively decided on "court" in the Arbitration and Conciliation Act, 1996 in the case of State of West Bengal v. Associated Contractors (10.09.2014). Previously, a two judge Bench of the Supreme Court of India was to consider the question as to which court will be a Court for the purposes of deciding an application under Section 34 of the Act for setting aside arbitral awards. The same was referred to the Chief Justice of India for constituting a larger bench in view of the conflicting views of judgements.

After hearing the matter, the three judge Bench, through Rohington Nariman, J. laid down the following as regards the issues pertaining to the appropriate Court for filing application in view of Section 2(1)(e)(which defines "Court"), Section 42 and other provisions of the 1996 Act:

" (a) Section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court as "court" for the purpose of Part-I of the Arbitration Act, 1996.
(b) The expression "with respect to an arbitration agreement" makes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an Award is pronounced under Part-I of the 1996 Act.
(c) However, Section 42 only applies to applications made under Part-I if they are made to a court as defined. Since applications made Under Section 8 are made to judicial authorities and since applications Under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.
(d) Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.
(e) In no circumstances can the Supreme Court be "court" for the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil court having original jurisdiction in the district as the case may be.
(f) Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made under Part-I.
(g) If a first application is made to a court which is neither a Principal Court of original jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42. Also, an application made to a court without subject matter jurisdiction would be outside Section 42."

The decision can be downloaded from this link (pdf)

Criminals have a better chance to be a Minister in India! - Reveries

The Indian PM got his math correct; people returned 34% of the representatives with criminal records and he gave back 27% of them as their ministers. The ADR and NEW analysis shows that candidates charged with crime actually fare better at elections than ‘clean’ candidate. It is also noted that candidate with criminal cases tend to be given ticket repeatedly. (See, here, page 16) When the political and criminal graphs are intricately connected, it is better to be a criminal if not already. It was Thomas Jefferson, who said; 'The Government you elect is the Government you deserve.”

Even with NOTA, if one third of our representatives at center are with criminal records, something is seriously ailing our democracy.  The lofty eloquence of the SC in its August 27th, 2014 judgment in Narula is of little consequence. Narula poses a vital issue; does democracy means freedom to choose without restrictions. Constitution of India and Representation of People Laws places skeletal regulation on qualification to contest elections. Legislation is slightly more expressive with regard to disqualification to represent.  For being a minister, much lesser are the requirements. One need not even be a representative for the first six month of ministerial berth. Non-prescription of qualification is both liberating and a slippery slope. Perhaps the ominous disquiet expressed by Dr. Rajendra Prasad, the President of the Constituent Assembly, in the context of laying down qualification for representatives that it is impossible to articulate yardsticks for measuring moral virtues of human beings, that it will remain the short coming of our constitution remain true as ever.

The fundamental question to ask is, where in democracy shall the screening be placed? Or is it a case that we should question the basic assumptions taken. Should there be a screening of persons who shall contest election at all. Is there anything inherently evil in criminals/ people with criminal background being elected, if people prefer them to be their representatives? After all, Robin Hood was of the mass. Good and evil are always constructed on the scales we use. I leave this discussion for later.

In the circle of democracy that we practice, we have already 'democratically formed' certain rules and regulations regarding representation. These rules presently hold that person convicted of an offence of specified categories are not qualified to be representing others in legislative bodies and therefore occupy ministerial position as well (see, B.R Kapur). There is no rule prohibiting any person charged with an offense from neither contesting nor holding ministerial position.

Now the game changes into the realm of constitutional convention, implied limitation, political proprietary, trust, morality, legitimate expectation to prevent tainted from becoming a minister Most of these terms in party politics scenario is oxymoronic and call for a hearty laugh.

The central issue remains, why do people elect tainted persons? The right to information wave was a relief that it brought a hope that the flow of sunlight will be the best disinfectant. Despite that MPs with crime records increased by 4% from last House in Center. Efforts to check criminalization of politics have been perpetual. The pages written by official commissions are enough to bury the all the criminals. Law Commission in its 244th report, of which ink is yet to dry, has spent its time and energy to collate required legislative changes on disqualification of elected representatives.  In reality, Nitin Gadkari and Uma Bharati rules, so also 10 others in central government, some even with charges of murder and rioting.

It is natural then to raise questions about democracy itself. Or as frequently hear, India’s maturity to handle democracy. Often failures are blamed on democracy as a choice of governance but it is overlooked that success of democracy needs existence of collateral liberal institutions, public spaces and deliberations. Public memory is known to be short. In a nation like India where survival is the primary issue which is further complicated with boundaries set by cast, religion and region, conscious efforts need to be taken to make public memory alive.  Development of a collective consciousness is the backbone of any social co-existence and is primal for democracy.   

The deluge of “breaking news” and unreal melodramatic soap operas, which gives voyeuristic pleasure, is degenerating this public space. Social media is gradually reduced into narcissist selfies, shaping a community inept for democratic living.


Democracy is a poor system of government at best; the only thing that can honestly be said in its favor is that it is about eight times as good as any other method the human race has ever tried. Democracy's worst fault is that its leaders are likely to reflect the faults and virtues of their constituents — a depressingly low level, but what else can you expect?” (Robert A. Heinlein, in Stranger in a Strange Land ).”

Democracy is all what we have. Let us work with it. The significance of media, universities and civil society organizations are here.

Saturday, September 13, 2014

Bombay High Court Follows Swiss Timing Instead of Maestro Engineers

We had noted in a previous post (Is this the End of N. Radhakrishnan v. Maestro Engineers? Swiss Timing v Organising Committee) the decision of the Supreme Court in Swiss Timing v Organising Committee, Commonwealth Games (May 2014: SC) where a Single Judge of the Supreme Court refused to follow a decision of a Two Judge Bench of the Supreme Court in N. Radhakrishnan v. Maestro Engineers (2009: SC) on the ground that it was rendered per incuriam

Image link
Maestro Engineers was a decision by two judges of the Supreme Court while Swiss Timing was by a Single Judge. Therefore, the issue as to whether a Single Judge could effectively end the reign of a two judge precedent was expected to be canvassed while citing Swiss TimingIn Avitel Post Studioz Ltd v. HSBC PI Holdings (Mauritius) Ltd., a Division Bench of the Bombay High Court had the occasion to consider the binding force of Maestro Engineers. Therefore, the Court followed Swiss Timing and followed the ruling in Swiss Timing that Maestro Engineers was indeed rendered per incuriam despite the fact that one of the contentions was that Maestro Engineers prevailed over Swiss Timing due to the larger bench strength in Mestro Engineers. . 

It may however be noted that a Single Judge of the Calcutta High Court in Guiness Securities Limited vs Geeta Dilip Vyas has taken note of Swiss Timing but has leaned in favour of Maestro Engineers although he has not conclusively ruled on the issue. According to the Judge:

"In the instant case, there is no challenge to the existence of the arbitration agreement, or the agreement containing the arbitration clause. The arbitration is a mode of resolution of a dispute agreed by the parties. If the agreement is vitiated by fraud or by misrepresentation then it goes to the very root of the matter. Arbitration is consensual. A claim founded on the agreement containing an arbitration clause if is a product of fraud, the ratio of India House Hold and N. Radha Krishnan could apply." (emphasis supplied)

It is going to be interesting as to how the courts would deal with Swiss Timing. Going by the Supreme Court's pro-arbitration record in the past since 2012 (BALCO), Swiss Timing would probably be the end of Maestro Engineers