"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.
Showing posts with label Reflections. Show all posts
Showing posts with label Reflections. Show all posts

Wednesday, September 26, 2018

Citation of the Practical Academic Blog in Journals

Readers are aware that we are doing a survey on the completion of ten years of the Practical Academic Blog. The responses so far to the survey are interesting. One of the questions asked was if the reader was aware that this blog has been cited in reputed dispute resolution journals world over and many of the responses expressed their ignorance about it. 

In this post, we provide links to some of the journal articles where the Practical Academic Blog has been cited. The list, for obvious reasons, excludes the papers of the authors of the blog.
  • ICSID Review: Loukas A. Mistelis, Award as an Investment: The Value of an Arbitral Award or the Cost of Non-Enforcement, 28 ICSID Review 64-87, 81 (2013) (link- subscription required)
  • ICSID Review: AP Karreman & K Dharmananda, Time to Reassess Remedies for Delays Breaching ‘Effective Means’, 30 ICSID Review 118-141 (2015) (link- subscription required)
  • Pepperdine Dispute Resolution Law Journal:: Jory Canfield, Growing Pains and Coming-of-Age: The State of International Arbitration in India,14 Pepp. Disp. Resol. LJ 335-353, 353 (2014) (link-pdf)
  • Singapore Law Review: N. Grover, Dilemma of the Proper Law of the Arbitration Agreement: An Approach towards Unification of Applicable Laws, 32 Sing. L. Rev 227 (2014) (link- subscription required)
  • European Scientific Journal: Dmytro Galagan & Patricia Živković, If They Finance Your Claim, Will They Pay Me If I Win: Implications of Third Party Funding on Adverse Costs Awards in International Arbitration, European Scientific Journal (2015) (link-SSRN)
 This is apart from a Cambridge University Press publication: Gary F. Bell, The UNCITRAL Model Law and Asian Arbitration Laws: Implementation and Comparison (2018), p. 52 (link) and Indian journals such as the Indian Journal of Arbitration Law, etc. 

Tuesday, September 25, 2018

Practical Academic Blog Survey

Dear Readers,

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:


Looking forward to hearing from you.

Monday, November 16, 2015

Holier than thou, cow.

Cow has become a hazardous subject to be handled cautiously, capable of igniting the frenzy of a mob to lynch or deny nationhood by being verbally deported to another nation. The image of this docile animal has been strategically used to polarize people to achieve ulterior purposes.

Cow has been historically used as an identity symbol to distinguish from Muslim rulers by the re-emerging Hindus of 19th century, who followed the consciousness of medieval period which proscribed beef eating, pertinent only for upper caste Hindus. The shift to preservation of cattle is associated with agrarian expansion of which caste Hindus where the major benefactors. The influence of Buddhist principle of ahimsa and its cooption is also argued to be another strand that endowed the moral dimension to this preservation angle. Cow protection historically therefore has less to do with ‘holiness’ of cows but more with economics. (See, ‘The Myth of Holy Cow’ by D.N Jha; W Norman Brown, “The Sanctity of Cow in Hinduism”, EPW, February 1964).

Analysis on the objective and rationale of cattle preservation/cow protection laws could provide an impassionate sense of laws logic and contrast it with the current high-pitched hyperbole on ‘holy cow.’  The legal regime is located in two major fields, Constitution of India and States laws under Entry 15 of the Seventh Schedul. There are few relevant judicial decisions connected with the prevailing issue.

Constitution of India, besides Entry 15, deals with the topic of cows in Article 48. While speaking in Constituent Assembly on current Article 48, Pandit Thakur Das Bhargava reflected the Assembly’s attitude in the following words, “[w]e have practically substituted this article for the article which other Members wanted from a religious point of view. It is now simply a utilitarian measure but still a measure in which the religious sentiments of crores of people are involved.”  The Directive Principle of State Policy urge the states to ‘endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.’ The tenor of the directive is writ large in the mandate to the states. The objectives are agriculture and animal husbandry. The prohibition of slaughter is of cattle that have one common character, productiveness. It is both arduous to locate holiness of cows in Article 48, and unreasonable to force the States to legislate to prohibit slaughter of cows because it is sacred, as Article 48 is not drafted to protect the ‘divine cow’ but an agricultural benefaction.

There is also a very plausible contextual explanation for the placement of cattle protection norm in Directive Principles of State Policy. It was a time when the demand for cow protection were gaining momentum and getting violent. Given the liberal façade of the Constituent Assembly, it was difficult to bring the non-secular cow protection directly into the basic document that they strategically positioned it in Directive Principles. Entry 15 that give the mandate of ‘preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice’ to States to legislate, leave it upon the States to decide the content of the laws in ursuance of the directive under Article 48 and within the legislative competency under Entry 15.

Out of 36 States and Union Territories of India, 29 States and Union Territories have laws prohibiting slaughter of cows. Out of which except three, Indian National Congress have prime authorship. Majority of these Act are title as cattle/animal preservation as opposed to six which have prohibition of cow slaughter in its title. The nomenclature distinction is highlighted only to augment the point of focus of these legislations.  Of all the cow related laws, it is the Delhi legislation, that was fully drafted by the Bharatiya Janatha Party, though the Rajasthan and Gujarat laws have seen amendments in respective laws during BJP regime tightening up existing laws by enhancing punishments and also prohibiting export of cows for slaughter out of state.

The Delhi legislation covers cows and calves of cows of all ages, bulls and bullocks. The law titled Delhi Agricultural Cattle Preservation Act 1994 has the declared objective to ‘provide for the preservation of animals suitable for milch, draught, breeding or agricultural purposes,’ which ostensibly stands far from the holiness of species. There are certain state laws that specifically target to prohibit slaughter of cows and not the wider range of agricultural cattle like the Punjab Prohibition of Cow Slaughter Act 1955, Uttar Pradesh Prevention of Cow Slaughter Act 1955. Both these enactments have similarly worded objectives that is, ‘to prohibit the slaughter of cow and its progeny in ...’.

The above analysis is taken up with an idea to indicate where the law stands. The cow slaughter laws may be a compromise to placate the hardliners but it has so far not endorsed the religious sentiments outwardly, nor these laws permit trading of human souls for those of cows. The laws of India so far hold the life of humans valued than cow. 

Sunday, June 21, 2015

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 5th day of 5th 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 17th 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. 

Thursday, May 28, 2015

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.


Wednesday, May 13, 2015

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.