Opinion: “Will the American Chicken Cross the Road”- Analysis of India’s Latest Non-compliance of the WTO Rules

Background

On October 14th, 2014 the WTO dispute panel ruled that India had violated the WTO rules by not allowing the US poultry and other farm products to be marketed in India due to unsubstantiated fears of bird flu.

While India argued that its action were backed by international laws on animal health, the panel didn't find any merit in the arguments and it agreed with the US that Indian actions were discriminatory in nature and were based on insufficient scientific evidence.

India further argued that several measures of Indian laws viz. Indian Livestock Act, 1898 and a number of other orders which are issued by department of animal husbandry of Government of Indiawould be violated if the US poultry products are allowed in India

On the other hand, US argued that by imposing the ban India acted inconsistently with inter alia Article 2 (because the measures were arbitrarily and unjustifiably discriminate between members where identical conditions prevail and are applied in a manner which constitutes a disguised restriction on international trade), Article 3 (because the measures were not based on relevant international standard) ,Article 5 (because they were not based on a scientific risk assessment and that the measures were more trade restrictive than required to achieve India's appropriate level of protection) of the SPS(Sanitary and Phyto-Sanitary) agreement. SPS recognizes the right of the member states to make regulations to protect human, animal or plant health or life and also ensure at the same time that regulations must not be veiled form of protectionism.

In response India argued that its measures conformed to the international standard pursuant to Article 3.2 of the SPS agreement. Moreover it was argued that India was not obligated to provide scientific risk assessment report as its measure were based on scientific principles.

Analysis

This case did manage to stir up the debate about whether India used this ban as a thinly veiled protectionism and hence a political bargaining chip.The fact that the other developing nations like China, Argentina, Brazil, Colombia, Vietnam etc. became third parties in the case brings to the fore one question: Do import bans by developing countries against the products from developed countries reflect the succumbing to domestic political pressures or something more.

This judgment puts the policy ball clearly in India's court as it remains to be seen how India responds to such arguments. Either it can change the measures to comply with the WTO rules within a reasonable period of time or it has the option to appeal in 60 days under the WTO rules.

  

Opinion: Leader of Opposition and Case Laws and Directions of Speaker in 1956- Part II

The Present Part of the Post deals with the Case Laws, Constitutional Assembly Debates and The Much Cited Directions of the Speaker in 1956 (famously the ‘Malvankar Rule’)

The post is a brief part of the paper published in Economic and Political Weekly, Volume 49, Issue 37, 2014 (September 13) accessible at http://www.epw.in/commentary/10-rule-and-lop.html. with an addition of addressing the Speaker's directions 120 and 121 made in 1956.

Some Relevant Cases on the Issue of Leader of Opposition in High Courts

In the case of AK Subbaih v. Karnataka Legislature Secretariat,[1] the Karnataka High Court held that convention of having a leader of opposition whose party has secured minimum 1/10^th of the effective strength of the House, is for the House to continue to adhere to or depart from it and the Court will have no jurisdiction to entertain any petition regarding this issue.[2] In the case of the Kailash Nath Singh v. Speaker,[3] the Allahabad High Court opined that even in the absence of the any guideline on how to accord the recognition to member as a leader of the opposition, it must be done as per the prevailing practice and convention. In this case, petitioner was selected to be the leader of opposition when his party secured 92 seats. But due to a split in the party, two groups were formed, where the group with more number of members voted for respondent no. 2 to be selected as the leader of the opposition. The Speaker recognized the respondent no. 2 to be the new leader of opposition. The Court held that the principle adopted by the Speaker that the party in opposition with the largest numerical strength can chose a leader of opposition, was consistently followed by him when the recognized the petitioner and then respondent no. 2 as leader of oppositions and hence the speaker acted within his jurisdiction.

The Patna High Court was presented with the issue as to whether there is requirement of 10% rule. § 2 of the Bihar Legislature (Leaders of Opposition Salary and Allowances) Act 1977 that required for a person to be leader of opposition to be (i) leader of a party having the greatest numerical strength, and (ii) be recognised as such by the Speaker. The Court held that if the Speaker recognises any person who is the leader of a party in opposition having greatest numerical strength as the leader of opposition, he is doing so on the basis of the practice prevailing and, therefore, has to follow the other requirements of such practice and convention, since there is no provision in the Act which enjoins the Speaker to recognise the leader of a party having the greatest numerical strength, to be the leader of opposition.[4]

Constitutional Debates on Requirement of Leader of Opposition

During the Constitutional Assembly Debates one Mr. Z.H. Lari proposed an amendment to Draft Article 86, which dealt with the allowances to the members of legislatures after the commencement of the constitution, that the Leader of the Opposition should be entitled to get salary payable to a Minister without Cabinet rank.[5]The speaker had highlighted the importance of the leader of the Opposition, that such person shall make the party government realize that they have to face public opinion whenever they take policy and administrative decisions by contending the opposing views and the amendment moved must be crystallized in the constitution to erode the psychological impression that there is only one party rule.

No member whether it spoke for or against the amendment argued that there is no need of opposition. In fact, the reason why the amendment was not accepted is because (i) the opposers[6] thought that merely recognizing the ‘leader of opposition’ does not mean that it shall be able to organize a party on its own, (ii) there is no embargo on the Parliament in future to provide for salary to the leader of opposition and recognize a leader of opposition, if it deems it fit to do so in future.[7]

It is clear that objection (i) does not imagine the situation where the leader of opposition is selected from a party in minority in the assembly (which is the current practice), rather it thinks of a leader of opposition being recognized firstly, then, that leader would organize a party in opposition and objection (ii) is upheld by the enactment of the Act 1977.

Malvankar Rule and its Binding Value

There has been much citing here of the directions 120 and 121 framed by the speaker GV Mavlankar in 1956 to hold the binding value of 10 % requirement for the post of leader of opposition. Apart from the fact that post- these directions there is an express statute in context of Leader of Oppositions in 1977, not expressly crystallizing the 10% requirement, after the addition of Tenth Schedule and since the 11^th Lok Sabha, there is no need of speaker’s recognition of parliamentary parties and groups since that was accorded on the basis of an ascertained minimum strength in the Parliament.[8] So, it is submitted that now the directions of 120 and 121 are not in practice and any party with even a single MP can be a parliamentary party in the Parliament.

                                                                   Conclusion

It is submitted that the decisions of the High Court would not be helpful since in the (i) Subbaiah case no provision was produced, while the (ii) Kailash Nath case had a provision that had defined the Leader of opposition as the Member of the Assembly who is for the time being recognized as such by the Speaker but did not provide for any other criteria for according such recognition, (para 17 of the case) and (iii) Kapoori case, it is submitted that (a) if the speaker is allowed the power to recognize, then it can not allow leader of opposition to be selected even if the largest minority has more 10% seats and (b) allowing such power to speaker to be exercised undermines the qualification of maximum minority, so that even if the party is the largest minority it still cannot be recognized. In my view, the recognition of speaker is only to put an official authorization to the selection of the leader of the opposition and as seen in the debates to the Constituent Assembly, where no one objected to there being a leader of opposition but preferred that the Parliament can provide for Salaries to them in future. So, the Act 1977 cannot be meant to only provide for salaries and not recognize the requirement for a leader of opposition.

---

[1] ILR 1993 Karnataka 1137. (Full Bench)

[2] Ibid, ¶¶ 4, 5.

[3] AIR 1993 All 334.

[4] Karpoori Thakur v. State of Bihar and Anr., AIR 1983 Pat 86, ¶ 11.

[5] Constitutional Assembly Debates, Vol VIII, Friday, the 20th May 1949

http://164.100.47.132/LssNew/constituent/vol8p5.html, accessed on 28^th May 2014 at 9:54 AM.

[6] Shri T.T. Krishnamachari, Dr. Ambedkar and Shri M. Ananthasayanam Ayyangar.

[7] Constitutional Assembly Debates, Vol VIII, Friday, the 20th May 1949.

[8] Kaul and Shakdher, “Practice and Procedure of Parliament”, 6^th edn., 2008, p. 386.

Opinion: Leader of Opposition and the Speaker's Decision- Part I

Office of the Leader of Opposition and the 10% Rule

The post is a brief part of the paper published in Economic and Political Weekly, Volume 49, Issue 37, 2014 (September 13) accessible at http://www.epw.in/commentary/10-rule-and-lop.html.

Introduction

The conclusion of 16^th General Elections with the Bhartiya Janata Party securing a clear majority with 282 seats,[1] and forming an NDA Government at the Centre, led to a great deal of interest in seats secured by other parties.[2] That interest is astonishingly with respect to a legal question as to whether the Congress party that secured the next highest number of seats in the Lok Sabha,[3] i.e. 44 can provide for a leader of opposition on its own, since it is debated that the requirement to make a leader of opposition requires a minimum of 10% seats of the lower house to be secured by a political party. The office of Leader of opposition is not a Constitutional office in the sense that it has not been created by the Constitution and owes its existence to Parliamentary convention according to which he is Leader of the largest recognized opposition party in the House.[4]

In this blog, I would analyse the decision of the current speaker on the issue and whether the previous conventions are relevant in light of an express provision.

I. Indian Central Law Pertaining to Leader of Opposition

Until 1969, the practice followed in the Rajya Sabha was to call the Leader of the party in Opposition having the largest number of the members as the Leader of the Opposition, without according him any formal recognition, status or privilege.[5] Prior to the 1977 General Elections to the Lok Sabha, except for a brief spell of one year (December 1969- December 1970), there had been no official ‘Opposition’ in the sense the term is used in the parliamentary system of Government.[6]

But since the enactment of Salary and Allowances of Leaders of Opposition in Parliament Act 1977 (hereinafter “the Act”), the Leaders of the Opposition in the Rajya Sabha and the Lok Sabha are now accorded statutory recognition and given salary and certain other facilities and amenities,[7] which defines “Leader of Opposition” as that member of the Lok Sabha or Rajya Sabha as the case may be, who is for the time being the Leader in that House of the party in opposition to the Central Government having (a) the greatest numerical strength and (b) recognised as such by the Speaker of the House of People or the Chairman of the Council of States as the case may be.[8]

II. Speaker’s Decision

The address the issue, the speaker of the current Lok Sabha Sumitra Mahajan decided that the appointment to the position of the leader of opposition requires the 10 percent rule.[9] The Speaker is right in noting the precedents of 1980 and 1984 Lok Sabha, which did not have a leader of opposition, since the second largest party in 1980 being the Lok Dal (Janata Secular) and in 1984 being the Telegu Desam Party secured 41 and 30 seats respectively.

Can Conventions Supersede the Statutory Provision

The decision of the speaker raises another question that can the above- mentioned instances be termed as conventions and what would be their scope in the presence of the express provisions of the Act? Conventions are non- legal rules regulating the way in which legal rules shall be applied.[10] In Supreme Court AoR Association,[11] the Court explained the scope of convention (in context of the Constitution) as to fill up the gaps, solve problems of interpretation since a great deal may be left unsaid. Therefore, conventions are to supplement the legislation for convenience,[12] and cannot supplant it, and holding tradition of 10 percent rule to be mandatory is tantamount to supplanting the express provision of greatest numerical strength in the Act, since in case there is less than 10 percent MPs of largest opposition, the greatest numerical strength provision is rendered redundant.

Conclusion

While the central law defining the ‘leader of opposition’ is specific with respect to who is to be accorded such status, it is submitted the argument that there is 10 % rule is not substantiated by any such inference from these laws. The Leaders and Chief Whips of Recognized Parties and Groups in Parliament (Facilities) Act 1998 does not explicitly mention about any such 10% rule and the fixed minimum number to required to accord the status of a ‘recognized party’, i.e., 55 has nothing to do with the definition of leader of opposition in the Act 1977. The Act crystallizes what the framers of the Constitution contemplated that the provision of salaries can be made whenever the need for opposition is recognized. The provision of recognition by the speaker is pertinent to be satisfied, but it is submitted that the satisfaction of the 10% rule is something that may be merely, at most, a convention not binding on the Speaker, which in light of the necessity of opposition in Assemblies should be not adhered to.

It is submitted that (a) if the speaker is allowed the power to recognize, then it can not allow leader of opposition to be selected even if the largest minority has more 10% seats and (b) allowing such power to speaker to be exercised undermines the qualification of maximum minority, so that even if the party is the largest minority it still cannot be recognized. In my view, the recognition of speaker is only to put an official authorization to the selection of the leader of the opposition and as seen in the debates to the Constituent Assembly, where no one objected to there being a leader of opposition but preferred that the Parliament can provide for Salaries to them in future. So, the Act 1977 cannot be meant to only provide for salaries and not recognize the requirement for a leader of opposition.

In the words of Mills, “there is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation.”[13] Since, it is the duty of governments, to form opinions to take actions, the only way they can know that their opinion is right is if complete liberty of contradicting and disproving the opinion is given and is there is any error it can be corrected only by discussion and debate, for the purposes of which the office of Leader of opposition assumes extreme importance.

---

[1] http://eciresults.nic.in/, accessed on 26^th May 2014 at 2:51 PM.

[2] http://timesofindia.indiatimes.com/home/lok-sabha-elections-2014/news/Taking-a-dig-at-Congress-Modi-says-non-NDA-parties-may-have-to-form-alliance-for-opposition-status/articleshow/35270766.cms, accessed on 24th May 2014 at 12:03 PM.

[3] http://eciresults.nic.in/, accessed on 26^th May 2014 at 2:51 PM.

[4]Kailash Nath Singh Yadav v. Speaker, Vidhan Sabha, Lucknow and Anr, AIR 1993 All 334.

[5] http://rajyasabha.nic.in/rsnew/council_state/council_state.asp, accessed on 26^th May 2014 at 6:51 PM.

[6] http://164.100.47.132/LssNew/our%20parliament/Folder01.pdf, accessed on 26^th May 2014 at 7:51 PM.

[7]Salary and Allowances of Leaders of Opposition in Parliament Act 1977 §§ 3 and 4.

[8]Ibid, § 2.

[9] http://timesofindia.indiatimes.com/india/Speaker-rules-out-leader-of-opposition-post-for-Congress-in-Lok-Sabha/articleshow/40447372.cms, accessed on 23^rd August 2014.

[10]  Prof. K.C. Wheare, “The Statute of Westminster and Dominion Status” (4^th edition).

[11] Supreme Court Adovcates on Record Association and Ors. v. Union of India, JT (1993) 5 SC 479.

[12] SR Bommai and Ors v UOI, AIR 1994 SC 1918, ¶ 311.

[13] John Stuart Mill, ‘On Liberty’, Chapter 2.

Opinion: State Dinners & Summons- Mr. Modi's Trip to New York

Post from Kanwar Vivswan, IV Year Student, National Law University, Delhi.

Kanwar Vivswan (member team, runners up at North India Rounds Stetson International Environment Law Moot) has an avid interest in International Law and is giving his opinion on what could be the legal position in the present case where summons have been issued against the Indian PM Narendra Modi during his visit to US as a State Guest.

Background

In 2005, the United States denied Mr. Modi a visa whilst he was Chief Minister of Gujarat. Today, Mr. Modi, as the Prime Minister of India, being a state guest of the United State of America still faces challenges in the land of the free. Amidst the preparations for the Indian PM's visit, news reports came that a New York federal District Court has issued summons to Mr. Modi on 25^th September, 2014. The summons were issued pursuant to a complaint by the American Justice Centre [AJC], an American NGO, that sought compensatory and punitive damages for “crimes against humanity; cruel, inhuman, or degrading treatment or punishment; extrajudicial killing; wrongful deaths; negligence; public nuisance; battery; and intentional infliction of emotional distress” allegedly perpetrated by Mr. Modi.[1]

The complainant states that under international law, Mr. Modi can be prosecuted for the said crimes in the US under the principle of universal jurisdiction, whereby a state may exercise jurisdiction over serious crimes (such as genocide, torture and war crimes) even if there exists no connection, based on territory or nationality.[2]

 In this post it will be argued that the complainant has failed to establish in the lawsuit whether civil universal jurisdiction (under which damages are being claimed in this case) has the same scope as criminal jurisdiction in enforcing these international law norms. In this regard, we argue that the summons against Mr. Modi is not sustainable under international law because of the following reasons:

A. Alien Tort Statute

The present suit has been filed under the Alien Torts Statute [ATS] which provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[3] Passed as a part of the Judiciary Act of 1789, the ATS in the early 1980s was read by the US courts to cover cases involving violations of universally recognized obligatory norms of international law.[4] The United States Supreme Court recently reexamined the ATS in Kiobel.[5] Noting that all laws had a presumption against extra-territoriality,[6]the Court concluded after looking at the history[7] and text of the statute,[8] that there exists no evidence to rebut that presumption in the case of the ATS.[9]The ATS was enacted for protection against three primary offences as identified by Blackstone: the violation of safe conducts, infringement of the rights of ambassadors, and piracy.[10] The negative policy implications of extra-territorial application of the ATS was highlighted by states such as UK, Australia and Switzerland who cautioned that broad assertions of extra-territorial jurisdiction under ATS would expose foreign nationals to uncertain and costly proceedings in foreign courts.[11]

Some believe that universal civil jurisdiction may become a rule of customary international law in due course of time. But it has not yet done so and therefore cannot be accorded the same status as universal criminal jurisdiction. Hence, Mr. Modi can’t be prosecuted under the ATS.

B. Torture Victim Protection Act

The complainant has also claimed jurisdiction under the Torture Victim Protection Act [TVP Act]. The TVP Act was enacted in 1992 shortly after the ATS. It provides civil remedies only for two international law torts viz. torture and extra judicial killings. The United States enacted this law in order to fulfill its obligations under the Convention against Torture which requires states to prosecute suspected torturers found within their territory. The TVP Act allows for exercise of jurisdiction without the traditional requirement of proving a nexus with the United States.

The application of the TVP Act would be untenable in this case. The Act clearly requires that first, the suit should not be time barred and secondly, the complainant must exhaust local remedies before pursuing a suit in U.S. courts. In the instant case both these requirements have not been fulfilled.

The complaint concerns the role of Mr. Modi in 2002 riots whereas they have brought forth the complaint after 12 years, in September, 2014.  The suit is time barred and hence not maintainable because the TVP Act explicitly provides that-“No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.”[12]

On the second point the relevant provision of the Act states that:

“A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.”[13]

It is to be noted that the Special Investigation Team which was constituted by the Supreme Court of India, had concluded that it had not found sufficient evidence to justify placing Modi on trial. Zakia Jaffri a long standing activist, who lost her husband in the riots, placed an application before the Gujarat High Court protesting the conclusions made by the report as well as its validity. The matter remains sub-judice. Therefore, the available remedies in the place in which the conduct has occurred have not been satisfied.

C. Immunity as a UN Delegate

Section 11(a) of the Convention on the Privileges and Immunities of the United Nations makes it clear that while performing mandated functions and during the journey to and from the place of meeting, the representatives of members to the UN shall enjoy immunity from legal process of every kind including arrest or detention. Section 14 of the convention explains that the rationale behind such immunity; is to safeguard the independent exercise of the functions of representatives. Therefore, Mr. Modi being a delegate of a member state of the UN will be cloaked under this convention’s immunity. The United States Government confirmed its commitment to this stance, when it said that delegates to the UN General Assembly enjoy immunity while in New York to attend the UN event.[14]

D.  Immunity as a State Head

Immunity from prosecution is available to heads of states under customary international law. There are two types of immunities available: ratione personae and ratione materiae. Ratione personae provides civil and criminal immunity to heads of state for acts done in both, a private as well as official capacity.[15]It is available irrespective of whether the acts were performed before or during the term of office. Since ratione personae is based on the office of the individual concerned, it is only available for the duration of the individual holding office. Whereas, in case of ratione materiae, immunity the protection is available even after the person ceases to perform acts of the state provided that the acts were done in an official capacity. The implication of this is that even when an individual ceases to hold a post he loses his immunity ratione personae but is still protected under the ratione materiae immunity. However, it is to be noted that there has been an evolving rule of customary international law that excludes the application of ratione materiae in the case of international crimes.[16]

As was noted by the ICJ in its decision in Yeodia/Arrest Warrants,[17] heads of state enjoy personal immunity from being tried in foreign courts on the ground that the immunity ratione personae bars all criminal and civil proceedings. Further, there is a general acceptance that the heads of the governments also enjoy the same kind of immunity as the head of the states..[18] Therefore, the summons is in violation of Mr. Modi’s ratione personae immunity.[19]

Conclusion

In our opinion, the issuance of the summons by the Federal Court of New York is not only sans jurisdiction, but also precluded by the immunities afforded to Mr. Modi. However, the summons and its accompanying rejection by the United States Government, is particularly interesting considering the United States in 2005 denied Mr. Modi a visa on similar grounds. This entire episode sheds light upon the pressures of international relations, and how international relations interact with international law.

The author would like to thank Sanjeevi Seshadri, his batchmate, for giving his invaluable insights on the topic.

---

[1]http://thediplomat.com/2014/09/us-federal-court-issues-summons-against-narendra-modi/

[2] http://www.thehindu.com/multimedia/archive/02126/Class_lawsuit_agai_2126838a.pdf

[3]28 U.S.C. § 1350

[4]Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

[5] 133 S.Ct. 1659 (2013)

[6]P.2, Supra 5.

[7]P.8, Supra 5.

[8]P.9, Supra 5.

[9] P.4,P.13,Supra 5.

[10]P.8 Supra 5.

[11]Sosa v. Alvarez-Machain542 U.S. 692 (2004).

[12]§ 2(c)28 U.S.C. § 1350 (2006).

[13]§ 2(b)28 U.S.C. § 1350 (2006).

[14] http://www.telegraphindia.com/1140927/jsp/frontpage/story_18878344.jsp#.VC6MZmeSw7U

[15] Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26

[16] Prosecutor v. Al Bashir (PTC Decision Pursuant to Article 87(7) of the Rome Statute) ICC-02/05-01/0 9 (12

December 2011).

[17] 2002 I.C.J. 3

[18] Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26

[19] http://www.telegraphindia.com/1140927/jsp/frontpage/story_18878344.jsp#.VC6MZmeSw7U