"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.

Thursday, April 30, 2015

Earthquakes and Surrogacy

Nepal is hurt. The people of Nepal deserve efficient administration, swift as well as responsive relief measures and empathy. Gestures of world reaching out to Nepal are heartening, though geographical, structural and administrative challenges makes the relief measures deficient. Among the news of support pouring in from various nations, one news item caught my attention, an operation of airlifting to Israel a sizeable number infants born to surrogate mothers of Nepal. (See here, here, here for the news). Israeli military and an Insurance Company apparently were involved in the evacuation.

In the background of a shattered and traumatized nation, issues of surrogacy might sound relatively insignificant.  The images of parents stepping out of aircrafts with bundles of joy revealed another impact zone of earthquake and an intersection of law. 

Nepal, like India, has progressively become a preferred destination for surrogacy for obvious reasons. A casual net search on Nepal’s surrogacy will pop up ample amount of options catering to the need of affluent communities. The irony is that, there is yet to be a law regulating surrogacy, though it has become an accepted million-dollar industry (estimated $2 billion in India) in both the nations. India has tabled a Bill and Nepal is contemplating one.

Israel’s surrogacy law does not permit same sex couples to benefit from surrogacy services. India denying Visas to same sex couples makes Nepal the best choice for Israelis who look for inexpensive options. The quake has mooted a renewed discourse in Israel on the need to amend the surrogacy law to include same sex couples and single parents desirous of offspring within its net. The media report highlight how the natural disasters that occur in 'third world countries' pose risk to Israelis who are 'reluctant presence in such nations' but for the discriminatory practices back home. Hope on revision of law is also expressed in Times of Israel, titled Nepal quake gives birth to hopes of Israeli surrogacy reform.

It is intriguing to find how natural calamity and a remote aspect of law like surrogacy interact.  Nepal will be focusing on rebuilding in the coming days. Attention should equally be paid to build a sound legal infrastructure that is also the rightful due of its people.

Tuesday, April 28, 2015

Kill intelligence to make slaves : Silencing dissent

Fresh incidences to silence dissent and opinions, especially in South Asia are a matter of critical concern. Attempts to silence have acquired multiple faces ranging from antics of sending Dahi Misal to murder. Gruesome firing and death of Sabeen Mahmud in Pakistan followed the murder in cold blood of two bloggers in Bangladesh. In the same nation, court punishes a journalist for contempt of court for reporting and 23 others for supporting the journalist. In neighbouring Sri Lanka, poet Sharmila Seyyid is “raped and killed online” by religious fundamentalists. Back home, in India, Kamal Hassan got a reprieve from the court of law to release his film Uthama Villain, but yet to see whether the zealots will clear their censure. Perumal Murugan, a noted writer folded pen, as it was too much for him to endure the wrath of the mercenaries of faith. The number of books banned pan India and in various states since independence make an “impressive” list.

Silencing dissent is the method of the fascist and the ones with monistic worldview. History is replete with characters and movements that have attempted to quell differences. Authoritarian regimes and religious sects have always tried to control intellect and limit modes of expressions. Free expressions, opinions and thoughts are greatest enemies of religious fundamentalists and totalitarians as they set individuals free.

Every regime, be it democratic or otherwise, tries to regulate the sphere of expression and speech. The scale of control may vary according to the weightage each society accord to the value of free expression and public space. Non-governmental bodies flex their muscles to quiet voices that do not appease their programme. Governments more often stand mute spectator to violations of the rights of citizens by these thugs to carry out their agenda with impunity.

Free speech and expression is a desideratum of Indian constitution for meaningful life and an environment required for robust democracy. Having said that, Indian legal culture is replete with experiences of censor and ban. The volatile communal fault lines give the government a justification to step in at every perceived threat to communal harmony and use the tools to suit their agenda. The FIRs registered under the decommissioned Section 66A of IT Act are examples. S. 66A has been invoked for causing ‘annoyance, inconvenience etc.’ to persons like Mamata  Banerjee, Narendra Modi, Mulayam Singh, Akhilesh Yadav, Azam Khan, Karti Chidambaram to cite few.

In the judgment that annulled S. 66A of IT Act, the court discussed in detail the need of space for free speech and expression that is the foundation of a healthy democracy and a sound society.  The parochial political, sectarian and religious bigots on the other hand is turning the society into intolerant short fused mass that is self-destructive. The art of deliberation and maturity to understand others opinion, even when one might not agree to is fast loosing to our communities if not already lost.

In such communities it is easy to spread fear, distrust, make people fight someone else’s war without them realizing it. Best way to make slaves is to kill intelligence. To kill intelligence; limit thought, speech and expression. It is therefore necessary to react to provincial leaders, support voices of dissent and be the voices of difference.

Saturday, April 18, 2015

Madras High Court Arbitration Centre Rules

Three Rules have been published by the Registrar-General of the Madras High Court in relation to the Madras High Court Arbitration Centre. These Rules are as follows:
  • The Madras High Court Arbitration Centre (MHCAC) (Internal Management) Rules, 2014
  • The Madras High Court Arbitration Centre (MHCAC) (Arbitration Proceedings) Rules, 2014
  • The Madras High Court Arbitration Centre (MHCAC) (Administrative Cost and Arbitrators’ Fees) Rules, 2014
These developments are significant to arbitration in Tamil Nadu. Probably the Madras HC would go the Delhi High Court way in referring most of the disputes to the Arbitration Centre. The development is in the right direction. Readers of this blog would recollect this blawgger's article in the Economic & Political Weekly criticising the secrecy behind the nomination by the High Courts of the arbitrators in petitions under Section 11 of the Arbitration and Conciliation Act, 1996.
This development is in the right direction since the manner of appointment of arbitrators and reference is provided in detail in these Rules. Let's hope the implementation is also transparent.

Sunday, April 5, 2015

Call for Students Paper for NLSIR Symposium

Call for Student Papers from NLSIR Symposium:

Call for Student Papers: The 8th Annual NLSIR Symposium on Competition Law

The National Law School of India Review (NLSIR) is the flagship journal of the National Law School of India University, Bangalore. For more than 25 years, it has been at the forefront of legal scholarship on issues relevant to legal practitioners. As part of its increasing mandate this year, in association with Amarchand Mangaldas, it is organizing the 8th edition of its Annual Symposium on Competition Law. The Symposium seeks to engage with legal issues that have arisen in the decade-long competition law regime, especially over the past two years, and thus hopes to fill the lacunae in current analysis.

Towards this end, the NLSIR is pleased to call for Student Papers for the 8th Annual NLSIR Symposium on Competition Law. The students whose papers are selected will also get a chance to present them at the Symposium which is scheduled to be held on the 2-3rd of May, 2015 in Bangalore. The selected papers will also be published as part of Vol. 27(2) of our journal which will be a special issue on competition law.

The paper may be submitted on any one of the following themes:-

Session I: Section 3 and Determining Anti-Competitive Agreements 
Session II: The Abusive Conduct of Dominant Enterprises
Session III: Mergers and Acquisitions: Clearing the CCI Hurdle and the Competition between Regulators
Session IV: The Interface of Intellectual Property Rights and Competition Law in India

For more details please refer to our concept note, attached herewith.  

The papers should be a minimum of 3500 words, inclusive of footnotes. They are preferred in Times New Roman font, double-spaced. Main text should be in font size 12 and footnotes in font size 10. All submissions must be word processed, and compatible with Microsoft Word 2003 and 2007. The NLSIR uses only footnotes (and not end-notes) as a method of citation. Submissions must conform to the Bluebook (19th edn.) system of citation.

The papers must be emailed to mail.nlsir@gmail.com indicating the session for which the paper is intended under the subject heading. All submissions should be accompanied by a cover letter containing the name of the author, educational qualification and year of study, the title of the manuscript, and contact information. The last date for submissions is April 17, 2015.  The Editorial Board looks forward to reading your submissions.