Category Archives: Opinions

Reservations for women in Parliament

Posted on by
Reply
By Sidhartha Jatar
In a patriarchal society where women’s creativity and freedom is stifled, this top-down approach might just prove useful. It will benefit women who are capable and competent and whose talents have hitherto gone unnoticed (due to social norms) by offering them an opportunity to become drivers of economic, social and political change. So the initiative will certainly tap into this existing resource pool. However, it certainly isn’t a panacea by itself. Rather, it is only a means of uplifting the current status of women and an attempt at dislodging the existing gender stereotype. Without community support, ideological and cultural change and women’s empowerment (from bottom up: family support, economic freedom etc), the entire effort will be futile. Gender discrimination is deep-rooted in our societal system. The fact that sati still continues (and jauhar in rajasthan), dowry is still demanded (even in urban areas) and female foeticide is common practice shows how embedded the stereotyping and prejudice really is.
 
From the perspective of societal benefit, reservation (and therefore increased representation) of women in our political establishment will do wonders as long as the election to that post is genuine, merit-based and devoid of any ‘game plan’ (read proxy). Women constitute almost half of our population. By keeping them outside the political mainstream one is severely reducing the pool from which to choose leaders from (by almost 50%). It’s like not considering potential women candidates for a corporate job just because they happen to be women! So first and foremost, reservation will force people to look beyond whom they consider today as suitable candidates and will over-time help widen the ambit of choice. In turn, this will make the political system more inclusive and the need for this crutch (reservation) will have lessened. It’s important to note that the ideological debate over caste reservations should not be confused with women’s representation since in the former, the very basis for differentiation is questionable while that’s not so in the case of the latter. 
 
There is another interesting and debatable issue here. Do women bring something different onto the table? It would be interesting to look up scientific data on how gender plays a role in thought mechanism, emotions, handling of issues etc. Has the world deprived itself of a ‘different’ approach to management/politics/socio-cultural dynamics by retaining the patriarchal system? How much have we lost and what’s the future cost going to be? Scientific hypothesis on such questions might help facilitate the need for change (not just on a humanitarian basis but on a practical basis i.e. for the sake of a more inclusive, efficient and probably successful society).
 
Another major benefit of increased representation is that women’s needs will get priority. With that section of society getting more attention and benefitting from it, the cumulative benefit for society will be tremendous. Better educated women will mean better educated (and aware) children (citizens). Health, cleanliness, family planning etc will get a much-needed boost. And last but not the least, the needs of almost half the population will get represented fairly – which isn’t to say that male politicians don’t care for the needs of women currently. It’s just that the understanding of those needs is likely to improve by having more women on-board the political bandwagon.

India and Inflation

Posted on by
Reply

Inflation in Hungary, 1946With the price of virtually everything having gone up, there’s little to be said about the impact of inflation in recent times on the general Indian public that isn’t readily visible.

Inflation in India touched a thirteen-year high of 11.42 per cent in the week which ended on June 14. A far cry from the 4 percent it was at in January 2008.

The issue, as the IMF had recognised in April itself, is a ‘politically hot issue’ with General Elections being scheduled to take place early next year. If not anything else, this isn’t an ideal time for the Government to be forced to deal with popular discontent because of rising prices not just because of the direct effects of inflation but also because of the actions its been forced to take to deal with complementary problems including the rise in fuel prices.

Some of the Government’s measures such as reducing fuel subsidies almost across the board have had a direct adverse impact on individual consumers and have done nothing to create the frame of mind which the Government would presumably like to see in voters.

Individuals are not the only ones to have been affected though. The performance of nearly 38 per cent of Indian companies has deteriorated over the last six months and, for many of them, things are predicted to get quite a bit worse before they get any better.

One of the underlying problems has been the phenomenal global increase in oil prices. No one seems to be entirely certain what caused the increase and there has been little agreement on how it should be dealt with. Even leaving aside the fact that petroleum and other similar products are used to synthesize thousands of modern materials right from plastic to chewing gum, the increase has caused the cost of transporting goods to go up significantly, and consumers have had to bear the brunt of the increase. Although, in the long term, the solution is to decrease dependence on oil, short term solutions which have been suggested involve the grant of tax breaks.

Moving back to India, whether or not imported inflation is influencing the rise in domestic prices, what has become increasingly clear is that India needs to create its own comprehensive policy on how to deal with the issue.

The Raghuram Rajan Committee suggested that the Reserve Bank of India focus on controlling inflation. In Europe, the European Central Bank tried to do this by not slashing interest rates to revive growth. Some experts have, however, warned that this may not work in India considering that inflation (which, for example, in India generally rises after every draught) could well be dependent on far more than the country’s monetary policy alone.

On its part, the Government has banned the export of a number of products including non-basmati rice, pulses, edible oil and cement. However, it has refused the recalibrate the rupee in the interest of maintaining a transparent foreign exchange regime.

Only time will tell if the measures the Government has taken will help ensure that the economy doesn’t sink into a depression. What is almost certain though is that its measures will do little to stimulate any form of growth or help to immediately ease the burden which has been placed on individuals.

Selected References:

Online Privacy

Posted on by
Reply

The Judge Kozinski and the porn / non-porn / (?) mess has been all over blawgosphere. It appears that an attorney who has been widely reported to be disgruntled accessed the Judge’s family server and got the L A Times to print a story about some of its contents which were supposedly pornographic. There were also some mp3s on the server.

If this were India, there little doubt that the material would be perceived as being obscene both legally and otherwise and that there would be a massive outcry. Although, that being said, it’s somehow doubtful whether the average Indian judge would ordinarily maintain a server and, if he did, whether he would have anything worth mentioning on it.

However, considering that the content seems to have been legal in the US, the episode has raised some interesting questions about privacy. In particular, whether, if you have a server which you use for your own personal use, whether you have a reasonable expectation of privacy. Some scholars like Prof. Lessig weighed in in favour of Judge Kozinski inter alia saying that privacy is not determined technology. One can’t help but suspect that it’d probably be more accurate to say that privacy should not be determined by technology although, in reality, it is — the virtual equivalent of having someone go through what’s on your desk. If your desk is locked, it is evidently private. If it isn’t, in theory, it should ordinarily be private but there are a number of people who won’t respect that privacy.

Which brings one to whether it matters if privacy is determined by technology in that sense that if you consider something online to be private and someone, possibly by because of a superior knowledge of technology, accesses that material, has your privacy been violated? What would you need to do in order to ensure that your material was in fact private? Would you need to restrict search engine access to it or would you have to password protect it.

Some professionals do not use much (or any) technology worth mentioning to protect documents they transmit online rely instead on merely having a notice which clearly says that the contents of the document are private. In some jurisdictions, that is enough to ensure that the document is acknowledged to be private and (with some luck) respected as such. And although such notices do not prevent persons from accessing documents, they do limit liability and other similar issues.

In this case, the Judge seems to have placed material on a personal server which he seemed to have assumed was private. At first glance, his actions don’t seem to have been illegal but they do seem to have been naive. Personal material is not the same as private material and a personal server certainly isn’t the same as a private server.

However, if you have something online which you consider to be personal and someone accesses it, can any consequences follow from that person’s having accessed the material if you didn’t authorise him to access it? Presumably not.

Had this played out in India, in terms of privacy, the consequences would have been spectacularly unclear since the law on privacy is undeveloped. In terms of obscenity, however, there would have been little debate.

Indian law on the subject of obscenity is Victorian and under the Constitution, the right to free speech is not unqualified. Article 19 (1)(a) of the Constitution says that ‘all citizens shall have the right to freedom of speech and expression’. This right is then limited by Article 19 (2) lists several exceptions to the right by saying that the right can be limited by reasonable restrictions imposed by any law (either existing or in futuro) enacted in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Justice, Scalia and ‘The Merchant of Venice’

Posted on by
1

Portia ang ShylockEver since Justice Scalia’s book ‘Making Your Case: The Art of Persuading Judges’ about legal writing and advocacy which he co-wrote with Bryan A. Garner came out, I’ve read quite a few interviews with and articles about him. He’s always made me laugh.

Consider his dissenting decision in US Supreme Court case, PGA v. Martin which he didn’t think should have been brought before a court at all. While the majority held that Casey Martin, a professional golfer suffering from a degenerative circulatory condition, could use a motorized cart during tournaments under the Americans with Disabilities Act, Justice Scalia had this to say:

“It has been rendered the solemn duty of the Supreme Court of the United States to regulate Commerce with foreign Nations, and among the several States, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf. Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question. … many, indeed, consider walking to be the central feature of the game of golf—hence Mark Twain’s classic criticism of the sport: ‘a good walk spoiled’.”

More recently, speaking to the WSJ Law Blog, he referred to ‘The Merchant of Venice’ pointing out that, “[I]f you write a contract to take a pound of flesh, then obviously you take whatever blood goes with it. That’s implicit. That was terrible. But who cares! The good guy won, and the bad guy lost. And that’s basically what happens [in the press]. What we do here does not get faithfully conveyed.”

The courtroom scene in ‘The Merchant of Venice’ have always struck me as being of the ‘My Cousin Vinny’ variety: fun, easy to relate to, not difficult to understand and not entirely legally sound. However, I can’t help but wonder whether such an absurd technicality would actually have wound up defeating Shylock in Shakespeare’s play had he not been a Jew. Perhaps the Court’s acceptance of the Portia’s interpretation of the contract had less to with legal accuracy (or lack thereof) than it had to do with social acceptability and expedience.

I’m quite certain that Shakespeare’s audience would not have wanted to see a Jew ‘get the better of’ a Christian. And although I’m probably taking Justice Scalia’s comments completely out of context here, most cases, like almost all literature — not counting such books as A Hailey’s in which the nicest people always die rather pointlessly — require those who are perceived to be good or right to win. It doesn’t matter if, in reality, at worst, they are truly awful people, or if, at best, they have nothing in particular to recommend them.

Coming back to Justice Scalia though, in one of his recent interviews, he said something to the effect of ‘once you realise that good people can have bad ideas, you can get along fine with those you disagree with’. I fell in love with the thought of separating ideas from people although it’s not something which I’m particularly good at doing.

Plain Legal Writing

Posted on by
Reply

“Labelling something respectful (or lacking doubt) doesn’t make it so – and almost invariably betrays the opposite,” says Peter Wainman. I couldn’t agree more. If you want to be respectful, don’t begin by saying, ‘with all due respect’ and then proceed to annihilate the person your invective is directed at. And if you want your writing to be doubt-free, write it so that it is; there is no reason to add a two-page long sentence to remove doubts (especially if the doubts are only imaginary).

Also, if there’s one thing which really annoys me every time I read a legal document it’s that I invariably have to make my way through numerous archaic and, possibly, technical phrases which either mean very little or which have simple alternatives in contemporary English.

Kevin of Prosaic Shades of Gray says:

“That lay people ought to be given the opportunity to become better informed on said statutes and precedential opinions is an undeniable entitlement that said time-wasting, English language butchering, hide-and-go-seeking-with-the-legal-issues assholes ought to have respected in the past, and ought to respect in the present and the future. The respondee, hitherto described as KZ, does not appreciate having to spend twenty minutes reading a single page. Said respondee cannot believe that there has been a handful of judges and lawmakers in certain jurisdictions that have written clumsy opinions and statutes employing the hereinbefore described ponderous prose well into the 1950s. But respondee has over two years left of law school, so he may well eventually discover other opinions and statutes written in the manner so described that date even later than the previously mentioned date above.”

The Plain English Campaign speaks of the problem in plain English at plainenglish.co.uk/drafting.htm.

Also, the National Adult Literacy Agency, Ireland provides ‘A Plain English Guide to Legal Terms‘ which explains 1400 legal words and phrases as a free pdf document at nala.ie/publications/listing/20051101163023.html while the Scottish Government provides a booklet on plain language and legislation at scotland.gov.uk/Publications/2006/02/17093804/7.

Online Revelations and Privacy

Posted on by
Reply

The urge, especially when someone does something nasty, to bitch about them online whether on one’s own blog, on a site such as juicycampus.com, in comments to some article or somewhere else entirely can be very hard to resist.

I’m not entirely certain whether it’s a good idea though even leaving aside the legal issues: possible defamation, incitement to violence, hate speech etc. It isn’t as though once you’ve vented your feelings, you’ve vented them and that’s the end of the story: what you say could come back to haunt you years later. Search engines have particularly unforgiving memories and unless you have have a name like ‘Mary Smith’ which you share with a million other people, all it is ever going to take for someone to dig up what you’ve said (assuming you haven’t said it anonymously) is a thirty second search online, not a thirty-month long search at the archives of twice as many publications.

An example Daniel J. Solove gave in his book ‘The Future of Reputation: Gossip, Rumor, and Privacy on the Internet‘ was of a man who’d written about his ‘brush with the law’ at the age of seventeen had it follow him for the rest of his life whether at job interviews or on dates despite the fact that, officially, his record was unavailable.

I’ve come to believe that whenever one gives out personal information online, even if it is entirely in the form of a vindictive rant, it constitutes an invasion of one’s own privacy and while it certainly is sometimes productive such as when you want a company to honour a guarantee it’s made to you and your bitching online leaves them worried about their reputation being damaged, I’m not sure it’s often advisable.