Practical Academic Blog Survey

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The Practical Academic Blog is now more than ten years old. It is because of your support and encouragement that we have managed to keep writing all these years. 

At this juncture, we wish to know from you whether we were able to meet your expectations in term of content and quality. We would also like to make improvements in the blog so that it would continue to be of use and relevance for your legal research and other purposes. Kindly fill up the questionnaire you'd find in the below link, which should take not more than two minutes of your precious time:

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Is Transfer of Decrees under the Civil Procedure Code a Vestigial Requirement?

Section 38 of the Code of Civil Procedure, 1908 describes the courts can execute a decree. It states that a decree can be executed by the Court which passed it or by the Court to which the decree is sent for execution. The expression "Court which passed a decree" is explained in Section 37 of the Code. Section 38 reads: "A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution." 

One of the implications of this provisions seems to be this: say, if a decree is passed by a court in Mumbai, the decree can be executed by the Mumbai court, and if the decree-holder wants to execute the decree against the judgement-debtor who has his office, bank accounts accounts, assets, etc. at Kolkata, the decree-holder cannot directly file the decree directly in the relevant court at Kolkata for execution. The decree-holder has to file the decree in the Mumbai court for it to be transferred to the Kolkata court for execution. Section 39 of the Code states in this regard:

"(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction,-

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.

(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction."

Given the antiquity of these provisions [Section 38 and a part of Section 39 existed even under the 1877 Code (see, here)], it is possible that the requirement of transfer of decrees was laid down in a period in history when it was difficult for an executing court which did not pass the decree to confirm the valdidity of decree passed by another court, especially if the executing court was at a considerable distance from the court which passed the decree.  However, such constraints may not be altogether valid in the current times. 

Now, compare this scenario with an arbitral award. There is an arbitral award rendered, say, by an arbitral tribunal at Singapore. There is no need to file the said award in a Singaporean court for the award to be executed/ enforced in India. If the assets of the Award debtor are located at, say, Mumbai, the Award-holder can proceed to directly enforce the arbitral award in the relevant Mumbai court having jurisdiction over the Award Debtor. Similarly, an arbitral award passed in the domestic context also can be directly executed/ enforced even if the place of arbitration is not the place where execution of the arbitral award is sought (see, this post). 

Given that even arbitral awards, domestic and foreign, are directly enforceable, why shouldn't decrees be directly executable in the court within whose jurisdiction the judgement debtor or his assets are in place?

Force Majeure under Indian Contract Law: Energy Watchdog v CERC (SCI)

Recently, newspapers reported that certain power producers proposed to sell large amount of their stake in the Ultra Mega Power Projects.  The proposal to sell their stakes is a direct outcome of the recent decision of the Supreme Court of India in Energy Watchdog & Ors. v. Central Electricity Regulatory Commission & Ors. The dispute between power producers such as the Tata Power Co. Ltd. (“Tata”) and Adani Power Ltd. (“Adani”) on the one hand and the electricity regulators on the other was adjudicated upon finally by the Supreme Court by ruling in favour of the latter.

Followers of commercial law in India would be well aware of this issue on compensatory tariff allowed by the Central Electricity Regulatory Commission and the appellate proceedings thereon in the case of these power producers. The case has enormous implications on contract law, in general, and the law on force majeure, in particular. The seminal decision also impacts energy and regulatory laws. This post analyses the decision and its possible impact on contract law and the electricity sector in India.

Brief Facts

Mundra Ultra Mega Power Project (“MUMPP”) was conceived to be a huge power project which was to supply power to at least three states- Gujarat, Haryana and Rajasthan through the state power procurers. The tariff for the sale of power was to be determined through a competitive bidding process as per the electricity regulatory laws, which was undertaken. In the competitive bidding process, the bidders had the flexibility to choose escalable or non-escalable tariff (that is, tariff based on an increase in tariff formula). Both Adani and Tata quoted a non-escalable tariff. This was because the only major component that required an escalable tariff was an increase in fuel (coal) price. Since Adani and Tata had long term fuel supply agreements from coal mines in Indonesia at fixed/ predictable prices, there was no need to factor in price escalation.

Accordingly the lowest tariff was arrived at and power producers began to sell power at the said tariff after executing Power Purchase Agreements (PPAs) with the state power procurers. In two-three years after the determination of tariff, there was a massive jolt to the power producers in the form of new regulations passed by the Indonesian Government. The effect of these regulations was that the coal price under the long term fuel supply agreements  was to be benchmarked to the international prices instead of the then prevailing pricing mechanisms. This meant that the price under those agreements had drastically increased, thereby making the tariff at which these price producers sold price to the power procurers totally unviable. It may be recollected that a non-escalable tariff was quoted because of the long term fuel supply agreements.

Proceedings before the CERC and the APTEL

Consequently, Adani filed an application in 2012 with the Central Electricity Regulatory Commission (CERC) under the Electricity Act either to discharge them from performance of the PPA due to frustration of contract or to evolve a mechanism to restore them to the same economic position prior to occurrence of force majeure and/ change in law. The CERC did not accept the prayer of Adani but held in April 2013 that the CERC had the power to redress grievances of power producers considering larger public interest and constituted a committee to look into the difficulties of power producers so as a to find an acceptable solution. A Committee was constituted in August 2013 and the Committee recommended grant of compensatory tariff to Adani in its report. Consequent to the report, the CERC proceeded to grant compensatory tariff in February 2014.

Against this decision, appeals and cross-appeals were filed before the Appellate Tribunal for Electricity (APTEL). A summary of APTEL’s decision on the dispute is worth noting here:

• Performance of the PPAs was hit by force majeure under the provisions of the Indian Contract Act, 1872 (ICA).

• Changes in Indonesian law did not come within the purview of “Change of Law” clause in the PPA.

• The purported power exercised by the Commission in constituting a committee and awarding compensatory tariff was beyond the statutory mandate of the Commission and the terms and conditions of the sale and purchase of power was governed by the PPAs.

• Where there is an express or implied term of contract on force majeure, the same is covered under Section 31 of the ICA dealing with contingent contracts. Where there is no such term, force majeure is governed by Section 56.

• In Indian law, under Section 56, as held in Satyabrata Ghose v. Mugneeram Bangur 1954 SCR 310 impossibility is not simply physical or literal impossibility but means impracticability and futility in performance from the perspective of object and purpose of the parties.

• A more onerous performance method of performance or a mere rise in price would not amount to frustration.

• Application of the frustration doctrine required a multi-factorial approach and some of the factors that are to be considered are the contract itself, the context, the parties’ knowledge, expectations, assumptions and contemplations, especially as regards risk at the time of contracting which the parties could reasonably foresee.

• Application of the doctrine is not straightforward since it involves not only the contract but also an inquiry into the “contemplation of the parties”.

• The “Change of Law” contemplated in the PPA was only of Indian law and which were made by Indian Governmental Instrumentalities or Competent Courts in India.

• Certain clauses referred to the expression “Indian law” but such an expression nowhere found its place in the clause pertaining to “Change of Law”. Consequently, it would be dangerous to interpret the Change of Law clause merely on the basis of such usage in other parts of the PPA.

• For these reasons, the contention that since the PPA envisaged import of fuel, Law should also be taken to mean non-Indian law should also be negated.

The APTEL remanded the matter back to the Commission to determine the impact of force majeure so as to grant compensatory tariff to the power producers. The Commission arrived at a compensatory tariff in December 2016. 

Judgement of the Supreme Court

Appeals were filed to the Supreme Court. The Supreme Court held against the power producers on the force majeure as well as the change of law arguments. 

Summary of the judgement of the Supreme Court on contentions relating to force majeure is given below:

• The doctrine of frustration is inapplicable to the present case as the fundamental basis of the PPA remains unaltered, the PPA nowhere states that coal is to be procured only from Indonesia at a particular price, and the fuel supply agreement is only a part of the PPA to establish that fuel supply is available and is in order. When the power producers quoted the tariff, they very well knew the existence of the risk of increased prices of Indonesian coal and knowingly took it by quoting a non-escalable tariff. However, mere fact that they quoted non-escalable tariff does not mean that they would be disentitled from raising a plea of frustration if they were otherwise entitled to under law.
• Force majeure clauses are to be narrowly construed. On a construction of the force majeure clause in the PPA, “Hindrance” could mean an event wholly or partly preventing performance.
  But mere rise in prices is not hindrance, whole or part. Clause 12.4 specifically excluded rise in fuel cost or agreement becoming onerous to perform from the purview of force majeure. 
• Since Clause 12.4 specifically excluded rise in fuel cost from force majeure, since the fundamental basis of the contract was never dislodged and since alternative modes of performance were available even though at a higher price, there was no force majeure. Further, since there was a specific clause addressing force majeure, Section 56 did not have any application.

Another argument taken up by the power producers was that the change in Indonesian regulations fell within the scope of the “change of law” clause in the PPA and that they were entitled to relief under the said clause. Among other things, the PPA defined “Law” to mean “all laws including Electricity Laws in force in India… and any statute…. Or any interpretation of any of them by an Indian Governmental Instrumentality... and shall include all applicable rules… by an Indian Governmental Instrumentality…” Article 13.2 of the PPA provided that in case a party was affected by Change of Law, such party was entitled to be restored through Monthly Tariff Payments to the same economic position as if such change had not occurred. The Court dismissed the argument of the power producers and the following is a summary of the judgement on this aspect:

On facts, the court also noted that there was a Change of Law insofar as a change in India law was concerned. During the currency of the PPAs, the Ministry of Power issued a Notification in 2013, which was reflected in the Revised Tariff Policy of 2016. The Court held that if these notifications resulted in affecting Indian coal procurement, the Change of Law clause would be applicable. But change in Indonesian law affecting coal supply or prices would not amount of “Change of Law” for PPA purposes.

The Court ultimately set aside the decisions of the APTEL and the Commission and remanded the matter back to the Commission on the minor issue as to determination of effect on Change of Indian law on the power producers.

The decision of the Supreme Court clarifying the law on the issue is of fundamental importance on several counts. First, the judgement constitutes an important restatement on the law of force majeure. Second, special word about RF Nariman, J. Since assuming judgeship, he has passed several judgements clarifying and restating various aspects of commercial law thereby rendering clarity and updating various contract law concepts to the present times and breathing in fresh air to the 145 year old Indian Contract Act, 1872. Third, in the context of regulatory law, the decision offers clarity in the extent to which a tribunal/ court can go in balancing the competing interests of protecting consumers on the one hand and preserving the efficacy of the industry sought to be regulated on the other. Balancing the competing aims of preserving the efficacy of the industry by upholding the legitimate interests of the regulated on the one hand and protecting consumer interests on the other is the fundamental challenge in regulatory law. This case affords considerable clarity in the extent to which a regulator of a tribunal could or could not rewrite contractual terms between the regulator and the regulated.

The decision calls for an off-the-cuff remark. One of the arguments of the power producers was that Section 56 ICA operated de hors the force majeure clause in PPA. It may be recollected from the above analysis that the court negatived this contention. It would have been great if RF Nariman, J. referred to the concept of default rules to explain away how Section 56 operated as a default rule and how the PPA clause on force majeure eclipsed Section 56 and occupied its field instead. Even so, the effect of RF Nariman, J’s analysis remains the same.

One last remark. The decision of the Supreme Court has received considerable criticisms from the power industry. A direct result of the judgement has been that both Adani and Tata have asked the State power procurers to take control of the power projects (see here). Adani seems to have discontinued power supply from its power plant (see here). Experts also argue that the once-power surplus state of Gujarat could be facing the risk of power scarcity (See here). There is a strong argument that the power producers are to be protected considering that they had invested in public goods which was meant for consumption of the economy and that in case of failure to protect such investors, economy, and ultimately, the consumers will suffer. From the other end of the spectrum it has been argued that the power producers attempted to engage in crony capitalism by entering into unviable contracts knowing fully well that they could later demand renegotiation of the PPAs (see here). The reality, perhaps, lies somewhere in between.

Power producers have suggested two alternatives for the current arrangement. The first one is that they would forego their security deposits under the PPA and that fresh bids should be called from power generators. The second alternative is that the state power procurers should import coal directly and that the power producers would offer their power generation capacity (see here). It will be interesting how this issue would be resolved. For now, the Centre has taken a stand that the issue is for the power producers and the State power procurers to resolve but it doubtable if the stance is correct considering that the problem pertains to the nation as a whole. 

Preservation of Biodiversity & Jallikattu

Readers would be well aware of the recent massive protests in Tamil Nadu regarding the banning of Jallikattu and the subsequent events consequential to the protests, such as the promulgation of the Ordinance allowing Jallikattu and the Tamil Nadu Legislative Assembly passing of a Bill replacing the Jallikattu Ordinance. News reports indicate that certain petitioners have approached the Supreme Court seeking relief against the Ordinance and the Bill. 

One of the threads of arguments put forth by certain experts well-versed with Jallikattu and breeding of animals seems to be that Jallikattu promotes native breeding of cows and also leads to preservation of animal biodiversity. The argument seems to be that the bull which “wins” in the Jallikattu is considered as the strongest among bulls and is treated as the common heritage of the village. It also appears that the said bull is allowed to mate with cows in the village thereby producing healthy second generation of those cows. Whether this is true or not is a matter for experts on veterinary science and village socio cultural practices to comment upon. On paper, this argument seems compelling. A few recent news reports dealing with this aspect can be found here here and here.

From a perusal of the 2014 [Animal Welfare Board of India v. A. Nagaraja & Ors. (2014) 7 SCC 547] and the 2016 [Chief Secretary to the Govt., Chennai Tamilnadu and Ors. v. Animal Welfare Board and Ors. 2016 (12) SCALE 334] judgements of the Supreme Court on Jallikattu ban, it appears that the said argument (preservation of native cow breeds) was never brought to the Hon’ble Court’s attention. As to why, there could be several reasons. One of the reasons cited has been the lack of awareness of this aspect of rural practices among the mainstream population and the lack of available scientific studies documenting it. Further, it has also been argued that those who are aware of these practices could neither approach the High Court/ Supreme Court nor create awareness among others owing to their lack of economic strength.

The lack of detailed arguments before the Supreme Court (going by the judgements) on the issue is surprising considering news reports on the subject even as early as in 2014 (see here). There were a few reports even before the 2016 judgements (See the BBC report cited above and this news report)

Whether these arguments are actually true or not is for the Supreme Court to determine. Nevertheless, when far-reaching issues such as preservation of biodiversity, rural economic, socio-cultural practices, access to justice are raised, Hon’ble Supreme Court ought to deeply delve on the issues and pass judgements.

Another aspect of the matter is the statistics cited in the 2014 judgement relating to cruelty towards animals. It is well known to those well-versed with statistics is that the numbers game is dangerous in that it is extraordinarily difficult to examine the correctness of statistical data. Therefore, it is humbly submitted that whenever such studies and statistical data are relied upon, it is important to the said data to be made public and invite comments on the correctness thereof. Statistical data might, prima facie, appear forceful but there are innumerable possibilities that the statistical data and the inferences may be erroneous. [See, for instance the "elegantly” titled article by Paul F. Velleman “Truth, Damn Truth, and Statistics”, Journal of Statistics Education Volume 16, Number 2 (2008)] on the issue. Judges have to be careful about statistical data. The inferences sought to be made in statistical studies produced in courts should not only satisfy judges but should satisfy rigorous statistical standards of replication, randomization, proper sampling and others. 

Taking this issue in a larger context, it could be explored if data and studies submitted in litigation having large-scale impact on the country (such as the Jallikattu ban judgements and other PILs) represent only one side of the story or tend obfuscate truth. Unlike in typical adversarial litigation, it is possible that in PILs, studies presenting comprehensive facts / data may not be forthcoming, especially if comprehensive facts/ data are not available with the Government, in which case, the courts should tread with extreme caution. For instance, this blogger does not think that Secretaries of the State of Tamil Nadu or the Union of India was very well aware of the biodiversity related issues associates with Jallikattu (assuming this aspect was not brought to the court's knowledge).

In the context of Jallikattu, if the native breeding of cows arguments is true, then it would be in the interest of the country that the native breeds are preserved. For this purpose, it could make sense to allow Jallikattu albeit in a heavily regulated form. the larger challenge is, however, ensuring preservation of the local biodiversity.

(Edited after posting)

Is the New Arbitration and Conciliation (Amendment) Ordinance, 2015 Prospective or Retrospective?

Readers may be aware that the President of India has promulgated a new Ordinance amending the Arbitration and Conciliation Act, 1996. For those who are coming across this news for the first time, please read this post. Many of the reforms of the Law Commission of India have been incorporated while many have not been retained in the Ordinance.

One such provision which has not been retained in Section 85A (Transitory Provisions). Section 85A as suggested by the Law Commission's 246th Report reads as below:

"Transitory provisions .—(1) Unless otherwise provided in the Arbitration and Conciliation (Amending) Act, 2014, the provisions of the instant Act (as amended) shall be prospective in operation and shall apply only to fresh arbitrations and fresh applications, except in the following situations -
(a) the provisions of section 6-A shall apply to all pending proceedings and arbitrations. 
Explanation: It is clarified that where the issue of costs has already been decided by the court/tribunal, the same shall not be opened to that extent.
(b) the provisions of section 16 sub-section (7) shall apply to all pending proceedings and arbitrations, except where the issue has been decided by the court/tribunal.
(c) the provisions of second proviso to section 24 shall apply to all pending arbitrations.
(2) For the purposes of the instant section,—
(a) "fresh arbitrations" mean arbitrations where there has been no request for appointment of arbitral tribunal; or application for appointment of arbitral tribunal; or appointment of the arbitral tribunal, prior to the date of enforcement of the Arbitration and Conciliation (Amending) Act, 2014.
(b) "fresh applications" mean applications to a court or arbitral tribunal made subsequent to the date of enforcement of the Arbitration and Conciliation (Amending) Act, 2014."

Note that the aforesaid provision was clear in its retrospective operation. Hypothetically assuming Section 85A was inserted by Ordinance, if one were to pose a question whether the restricted ground of setting aside a domestic award not arising out of an international commercial arbitration would apply to pending proceedings, one would state that the Ordinance would apply only to fresh applications, that is those applications (including for setting aside such an award) which have been filed subsequent to 23 October 2015 (date of the ordinance).

Unfortunately, Section 85A has not been incorporated in the Ordinance. If so, what are the consequences? Would the restricted ground of setting aside a domestic award not arising out of an international commercial arbitration apply to pending applications?

This is really a hard case. Arguments in the affirmative and in the negative are equally convincing. But the following may be worth noting:

• Section 1(2) of the Act states that the Ordinance shall come into force immediately. 
• There are certain aspects which the Ordinance itself states it will not affect. For instance, arbitrators previously appointed (S. 9 of the Ordinance amending Section 12 of the Act). 
• In respect of most other provisions there is no express mention. 
• Considering the need for urgent reforms, one could reasonably argue that the provision is intended to apply to even to pending proceedings and applications, wherever the language of the Ordinance suggests. For instance, Section 18 of the Ordinance CLARIFIES that patent illegality would not be a ground for setting aside foreign awards. The language supports even pending applications (and possibly appeals against such applications?)
• Similarly 18(II) eliminates error of law or of fact as a ground to set aside arbitral awards. There is no mention regarding prospectivity. Even in such cases, the courts would (should) apply the Ordinance even to pending applications. The policy argument is the need for reforms and the urgency with which the same has been promulgated especially without incorporating a provision akin to Section 85A. The logical corollary of this would be that in case the language of a provision does not support application to pending proceedings, then it cannot be (and should not be) extended. For instance, 18(III) inserts the requirement that an application shall be filed only after issuing prior notice. Obviously, the act of filing an application to set aside an award would have been an accomplished fact in pending applications.

Of course, there is this well established principle of statutory interpretation that unless an Act expressly/ clearly provides for retrospective operation, it is prospective in nature. 

This issue is likely to result in different views from different courts.  Ideally, if the language of the Ordinance supports application of a provision to proceedings/ applications, it should apply notwithstanding the pendency unless it would result in manifest injustice. If the language does not support application to pending proceedings/ applications, it should apply prospectively. 

A suicide for no purpose: Beijing loyalists’ self-destructive move on electoral reform package in Hong Kong

Chinese honor the memory of Qu Yuan, a poet and political activist (3-4 Century BC) on the 5^th day of 5^th lunar month of every year. Yuan took part in a fight to save his state against hostile take over by a neighbouring state but had to retreat and be in exile owing to orchestrated maligning of his character. He wrote poetries creating a genre of political and philosophical verses. Finishing his masterpiece, he chose to give up his life by drowning than being a witness to the loss of his state. Yuan was so loved by the people that they rushed in boats to rescue him and later threw cooked rice in water that fish spares his body.  This is a popular legend of Dragon Boat festival. The festival includes dragon boat races that replicate the haste to save the life of Yuan and eating Zongzi, cone shaped sticky rice wraps. A death for a cause, well remembered after centuries.

The political suicide of pro- establishment Hong Kong legislators just three days ahead of commemorating Qu Yuan, in relation to vote on political reform, but will go down in history as a blunder that served no purpose. The run up for reform in Hong Kong with relation to universal suffrage in electing its Chief Executive has been a long strenuous period of struggle, strain, grit and grind. All collapsed in a miscalculated walkout giving advantage to none but causing severe dent to self-worth. The fate of the truncated reform proposal that offered pseudo-democracy was pre-destined; it was bound to fail but for any last minute converts from the pan-democrats.

A short background

Electoral reform to ensure universal suffrage in electing the Chief Executive of the Hong Kong SAR has been in vogue for sometime now. The debate has been centered on the details of the proposal. The reform offered all eligible a chance to vote but to candidates vetted by a committee packed with pro-Beijing sympathizers. The pan-democrats adopted a stance to veto the proposal in legislature.  The pro-Beijing camp meanwhile had steered a roadshow and campaign to garner support for the reform proposal. The tagline of pro-Beijing camp was - ‘pocket it’.  The pan-democrats were warned that by disapproving the reform package, they are holding the right to vote of the people of Hong Kong to ransom.

The reform was put to vote on 17^th of June 2015 in a legislative council of 70 members with 43 Beijing loyalists and 27 democrats, assured to vote against the motion. Statistics indicate the predictable outcome of veto, as win require 2/3 majority. The count of vote on reform proposal was an anticipated veto but the surprising element was the margin, the motion got defeated by a whooping differential; 28 nos (one unexpected vote from the block of 43 joined the democrats) and a measly 8 yes. This surprising self-goal by the pro-establishment clique happened because of an untimely and miscommunicated staging of a walkout to facilitate voting of one member who was late to report and was on his way to the House. The walkout turned out to be partial leaving quorum for voting, resulting in a loss of opportunity for the walked out to express their loyalties to Beijing.

Outcome

Fall of the reform package was inevitable. Who defeated it and how became the matter of amusement. With it crumbled the preplanned strategy of the pro-establishment in the forthcoming district election and 2016 Legislative Council elections. A major plank for them would have certainly be, how the pan-democrats snatched away the possibility to pocket the reform graciously offered by Beijing and lost an opportunity to move ahead. As a strategy to secure reform henceforward, more seats in Legislative council would have been sought. The present shoddy performance leaves less room to convincingly take out the democrats on this count.

The loyalists have exposed their political naiveté and miscalculation at a critical juncture. It shows them in poor light and cast doubt on capabilities of holding future and higher responsibilities. This also highlight that, they may be competent business people but yet to be evolved as adept politicians.

The flurry of activities that happened in the liaison office of Central Government for Hong Kong, post the fiasco clearly shows how it irked Beijing. It is sure to cost at least some their dreams of running for the post of Chief Executive or a second term in legislature.

The democrats had the last laugh. The expected defeat of the proposal was sweetened by the unanticipated gift of gaffe by the treasury benches. In long term, this episode does not contribute anything definite to achieving the ultimate aim of universal suffrage in form and substance. At the most, they might be in a position to use it as a campaign tool.  Even gaining a decisive majority in the Legislative Council is no guarantee towards democracy as it is contingent on the Central Government in China given the Basic Law of Hong Kong.

Epilogue

The debacle has changed nothing but for an exposé of inefficiency of a bunch of representatives with whom the destiny of Hong Kong is vested. This is an indication that the political system needs a serious relook as to who represents the people and how they are chosen.

In the backdrop of reform contest, a disquieting and radical trend of localism is perceived to be emerging. Asia’s world city is under a serious threat of turning into a parochial population. 

My version of democracy v. your version - the Hong Kong experience

Electoral reform is in the agenda of Hong Kong’s Legislative Assembly and is hotly debated in public sphere. Democratic assertions of Hong Kong have attracted world attention lately by the sustained occupy movement spearheaded by the youth of Hong Kong. It showcased the spirit and aspirations of a major section of the Hong Kong people and stood ground against the indomitable Chinese political heads. The movement made an indelible signature in the political and social map of Hong Kong.

The eye of the storm is the election of the Chief Executive of Hong Kong for the impending 2017 term. Article 45 of the Basic law of Hong Kong Hong Kong states that [t]he Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government.

The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. Specific method of execution of election is provided in Annexure I. Complete understanding of election process include annexures incorporating decisions of the National People’s Congress Standing Committee (NPCSC). The language of Article 45 has given enough play for the Central People’s Government to assert its intentions.

“Selected by election or through consultations held locally”- “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee” – Though there is no mandate so to say that Chief Executive is to be selected by election, NPCSC has decided that it shall be by universal suffrage. So far so good, but as it is often said, the devil is in the details, every eligible voter will have one vote but the candidates who shall be qualified to contest will be pre-screened by a nomination committee. Incidentally, the nomination committee of 1200 members is carefully packed with pro China sympathizers that the outcome of election, whether is it is A or B will be the choice of China and may not be of the people of Hong Kong.

The unrest was on this plan of the Central People’s Government to instill a political process similar to the National People’s Congress. The nomination Committee that was thought to be an interim arrangement, which progressively will give way to a wider world understanding of democracy and universal suffrage, is now here to stay. The reform proposals which were expected to bring the region closer to common understanding of democracy, on the other hand, is creating its own definitions. This realization, coupled with economic, cultural and sociological reasons that a major portion of Hong Kong sought for political self-determination in choosing their political head.

The present reform plan introduced by the Chief Secretary is fundamentally no different but with a new feature of a run off stage in the nomination committee. A candidate seeking to contest should get at least 120 endorsement of the members of the nomination committee, the endorsement may go up to a maximum of 240. Mathematically, this will limit the number of candidate between 5 to 10. There will be a run off election at this stage by secret ballot wherein the members of the nomination committee shall choose minimum two candidates who shall contest for the post of Chief Executive. They can vote for as many numbers of candidates as they wish additionally. It is only those candidates who get more than 50% of votes of the nomination committee who can contest the public election.

The mood of the public is difficult to gauge with demonstrations pro-democracy and pro-Beijing being staged alternatively in the city. One of the rally by the Beijing loyalist by conservative numbering was reported to be attended by 80000 people, but on the sidelines are stories that participants were paid, staffs of industrials houses were mandated to participate etc. The opinion polls by Joint - University Survey on 2017 Chief Executive Election Proposal show a statistics of 43.5% support for the proposal, 36.8% dissatisfied class  and 19.7% undecided group in the period between  20-24/05/2015.

The future of the proposal to be passed in the Council is grim unless the treasury bench gets the support of few from the pro democracy camp. The proposal needs two third votes to get passed. The composition of 70 members Legislative Council with 27 pro-democrats gives them a possibility of veto. A veto foreseeably will put the reform back to square one to the tune that the 2017 election will be conducted in the 2012 format. This will continue till Beijing loyalists get a clear majority in the Legislative Council to pass the reform package. A pro-democrat majority in Legislative Council in coming local body election contested on the platform of Electoral and democratic reform will be the defining moment of the popular sentiments. Nevertheless, the sectoral representation pattern of Hong Kong and the political arrangement at the hand over in 1997 will limit its self-determination to a significant extent.

Shhh… Don’t tell Maneka, I cooked my chicken for dinner

I am glad none found killing the chicken, I rear in my pen and cooking it for dinner, awkward and called for support of Maneka Gandhi to book me under Section 428 of IPC. It had all trappings of attracting the attention of animal rights activists though.

• Chicken was my pet for sometime
• It not only served me but the neighbourhood also by its wake up calls. It was useful in keeping the pests and insects somewhat under control
• I killed it
• I cooked and ate it

This is all what three students did in Bengaluru, but the species differed, it was a dog. I don’t think lack of a wagging tail should make any difference for law that booked them from sparing me.

Section 428 reads thus;

Mischief by killing or maiming animal of the value of ten rupees.—Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

I am yet to find the legal logic that is used both by the police to invoke S. 428 and the overzealous Mrs. Gandhi and the activists to convince the police to register a case and arrest selectively these three students and not the members of innumerable village households that butcher animals for eating. If chicken, pork, goat is part of diet and available in market so is dog meat in certain parts of India. Bengaluru has not become a republic still, right? Had the accused persons stole a dog and killed, the case could have been different. It is different crime under a separate section of IPC. How is killing a chicken and a dog for food becomes different but for the emotions and values attached to it?

The values that a section of society or few hold is held against the whole world as ‘the right values’. To see beyond becomes impossible for these cloistered minds. This moral self-righteousness is the dwindling point of emancipation, growth and inclusiveness.

In the context of someone killing and eating dog, two values clash. Both clamor for the superiority over other. Each value may have relevance in its own context. It is not always proper to hedge one value against the other as if they are binary opposites and there is space for only one. The society is fundamentally plural, where multiple values can and need to coexist.

Religions like Christianity and Islam, to cite two active religions in India, have done great disservice to community by preaching singular truths and 'rest all living in sin' phenomena. India on the other hand had the culture of finding one's own god and salvation through one's own acts, being responsible to oneself. It is distressing though that the new wave Hinduism is denouncing that culture and is on the path of evangelization of their own creed.

In the culture of exclusivism and self-righteousness we are loosing the capacity to accommodate and appreciate that which we do not agree and understand. Things that we do not approve are not to be invariably opposed. In a democracy one should have a space to express opinion and discontent. As long as the practices of the other do not affect the fundamentals on which the society is built, it is better left to time to mature and solidify.

Choices in food is the luxury of plenty. When starvation hits, it is food that matters not what is eaten as food. Let us stop looking into what is in the plate of neighbour to judge. Let us see that our neighbours have enough in their plates to eat.