"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, November 22, 2018

NLSIR-Samvād Partners Symposium: on 'The Sovereign Rights Dichotomy: Exploring Migration, Refugees and Citizenship'

See the below invite from NLSIR for a symposium:

Invite for XII NLSIR-Samvād: Partners Symposium

As we live through the “century of people on the move”, several States are grappling with the challenges posed by large-scale movement of persons. Migrants moving for better opportunities, and refugees fleeing violence and persecution, are often viewed as threats to the national security of their country of destination. As a response, those who emphasize on the need for protection of human rights push for the political, social, and economic integration of these people, and the eventual grant of full membership as citizens. While this is essential, the sovereignty-rights discourse often overlooks the opportunities for economic development that are created due to these large-scale movements. The XII NLSIR Symposium attempts to discuss these challenges and opportunities in the context of India. Its legal framework governing migrants, refugees, and citizenship has become the subject of much debate in light of the changing political and legal landscape. A discussion on these issues is therefore relevant and the need to explore a viable way forward for India is indeed a pressing one. 

This Symposium is divided into three sessions. The first session places India’s migration policy in the larger context of the international legal framework governing migration. The second session seeks to highlight the position of refugees in India and explore the interplay between India’s constitutional guarantees and the obligations under international law for protection of refugees. The final session seeks to shed light on citizenship and social, political, and economic integration of persons within India. The questions here shall be viewed in the context of the ongoing National Register of Citizens (NRC) exercise in Assam and the pending Citizenship (Amendment) Bill, 2016, both of which pose crucial constitutional questions. 

We have following speakers lined up for the three sessions:

Session I: India’s Migration Policy: Institutionalized Stigma? 

Mr. Gurucharan Gollerkeri, Director, Public Affairs Centre, Bangalore. 

Ms. Hamsa Vijayaraghavan, Legal Director, Migration and Asylum Project. 

Ms. Madhurima Dhanuka, Coordinator, Commonwealth Human Rights Initiative. 

Ms. Seeta Sharma, Technical Officer, EU-India CAMM Project, International Labour 

Session II: On Shifting Sands: India’s Refugees And The Way Forward 

Dr. Ashwani Kumar, Senior Advocate, Former Union Minister of Law and Justice. 

Mr.. Saurabh Bhattacharjee, Assistant Professor, National University of Juridical Sciences, Kolkata (NUJS)

Dr. Srinivas Burra, Associate Professor, South Asian University (SAU) 

Mr. Prashant Bhushan, Advocate in Mohammad Salimullah v. Union of India 

Ms. Roshni Shanker, Founder, Migration and Asylum Project 

Ms. Cheryl D’souza, Advocate in Mohammad Salimullah v. Union of India 

Session III: Courting Issues of Citizenship 

Mr. Alok Prasanna Kumar, Senior Resident Fellow, Vidhi Centre for Legal Policy. 

Mr. Arijit Sen, Program Manager, Amnesty International India. 

Ms. Leah Verghese, Senior Campaigner & Researcher, Amnesty International India. 

Mr. Derek O’Brien, Member of Parliament, Rajya Sabha*

Dr. Ranabir Samaddar, Director, Mahanirban Calcutta Research Group*

The cost of participation will be Rs. 1000 per head which includes accommodation on 8th and 9th night, the delegate fee for the conference, and all meals during the conference. If delegates do not require accommodation, then the cost is Rs. 600 for the delegate fee for the conference and the meals during the conference. Further, we can only accommodate limited people on campus. Thus, the requests for accommodation for every delegation would be entertained on first-come-first-serve basis. We will provide individual certificates to students and a delegation certificate signifying that your esteemed university participated in the conference. 

This is also a mandatory registration form for all interested students - https://goo.gl/forms/SjyG0kWlUpMmAQz92. This form must be filled by December 1, 2018, failing which the students will not be able to attend the event.

For further information, please contact Mr. Sharan A. Bhavnani (Editor-in-Chief): +91-9686338767; Ms. Nikita Garg (Deputy Editor-in-Chief): +91-9945767507 or email us at nlsir@nls.ac.in with the subject – “Query: NLSIR Symposium”.

Thursday, November 8, 2018

Confidentiality under the Arbitration Amendment Bill 2018 & the Right to Information

The Right to Information Act, 2005 (2005 Act) is an important legislation through which transparency is ensured. It is an important tool in the fight against corruption. Reasons for non-transparency can also exist in the context of government contract and arbitration. It is precisely why the 2005 Act includes "contracts", "records", "documents", and generally "any material in any form" to include contracts, documents or records thereunder and even arbitral awards. Since public procurement in India is substantial, it is important that government actions through the records, including arbitration and court litigation, are accessible to public.

In Rama Aggarwal v. Delhi State Legal Services Authority, the Chief Information Commission held that the Right to Information Act, 2005 overrode the provisions of the Arbitration and Conciliation Act, 1996 (para 17/ 18).

This position is now likely to be upset owing to the upcoming Arbitration and Conciliation (Amendment) Bill, 2018 that is likely to be discussed in the Parliament this winter session. Section 9 of the Bill seeks introduction of Section 42A to the Arbitration and Conciliation Act, 1996 (1996 Act). Section 9 reads:

"Notwithstanding anything contained in any other law for the time being in force, the arbitrator, the arbitral institution and the parties to the arbitration agreement shall keep confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award."

A bare perusal of the proposed section conveys that the parties are mandated to keep the arbitral proceedings confidential irrespective of any law in force, except the award, which can be disclosed for the purpose of implementation and enforcement. The non-obstante clause theoretically includes the 2005 Act also. This has serious implications on transparency in government contracting and pursuit of government litigation. 

While the right to information is a constitutional right, Section 42A, if enacted in the current form, would only be a statutory right. Therefore, notwithstanding the notwithstanding form of Section 42A, courts are likely to hold that the duty of the Government to disclose the arbitral proceedings and the award overrides the duty to maintain confidentiality in Section 42A. But this is likely to take some years for the courts to decide. Meantime, the Information Commissioners will have a free ride in rejecting information relating to arbitration proceedings. 

Lawyers and others in the field need to write to the Government to exempt the Right to Information Act, 2005 from the operation of Section 42A with appropriate modifications. The provision can be modified by adding the phrase "but subject to the provisions of the Right to Information Act, 2005" in Section 42A in the following manner:

"Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of the Right to Information Act, 2005 (No. 22 of 2015) the arbitrator, the arbitral institution and the parties to the arbitration agreement shall keep confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award."

A problem with this wording would be that it could seem to allow disclosure even by the arbitrator or by the arbitral institution as well. Instead, a provsio could be added to Section 42A to the effect that: "Provided that nothing contained in Section 42A shall affect the Right to Information Act, 2005 (No. 22 of 2015)."

Readers may peruse the decision of the Australian High Court's decision in Esso Petroleum v Plowman which discusses confidentiality in arbitral proceedings and the public interest in disclosure of governmental actions.