The Uberification of the Economy- New Approaches to Regulation

I.  The Evolution of the 'Sharing' Economy

"The mind, once stretched by a new idea, never returns to its original dimensions.” - Ralph Waldo Emerson

In June 1999, a file sharing service called Napster arrived on the scene and forever changed the music industry. The MP3 format allowed for decent musical quality in a small file format and peer to peer ("P2P") technology made it easily shareable. It was a quantum leap over then existing ways in which music was shared and sounded the death knell for the coveted cassettes with fuzzy recordings that had been passed around schools and college till then. The new technology spread quickly through word of mouth.

The bells were tolling but not everyone heard them. The music industry ought to have migrated to this new standard or at least realised that the rules of the game had changed, and offered reasonably competitive alternatives. It did not do so.[1] To quote the authors of a remarkably prescient paper written in 1998[2]: 

                "The explosive growth of the PC and the Internet penetration to non-professional users changed the status quo of this industry. The advances in speed in the communications infrastructure have made information more accessible and created some of the most compelling strategic decision points. Some of these decisions will eventually restructure the value chain and reconfigure the way value is created across a broad spectrum of industries.

                One of the implications of this restructuring is the disintermediation of information industries (we should probably say re-intermediation). The Internet provides an inexpensive and immediate way to distribute information goods and to create new ways of adding value to the final consumer."

Years of litigation later, both the music and the film industry are still struggling to come to terms with this brave new world.[3] Mainstream alternatives which embrace the new paradigm have emerged in the form of Apple iTunes[4] and Netflix[5].

There is a pattern here which operates across industries. A new idea/technology emerges and spreads by word of mouth/Internet. It starts out as being illegal or unregulated. A large section of the population adopts the standard, diminishing the popularity of the older/other standard. It scales up to the point where it starts impacting the mainstream, and is noticed by established players and subjected to regulation. This has been true of Sony's VCR which was billed as the end of the movie theatre[6] and this is what is happening with respect to Whatsapp in India, with established players like Airtel seeking to charge separately for it.[7]

It may be judicially  declared illegal as  happened in the case of Grokster[8], and Napster[9]. At the time of this writing the cashless ride sharing cab service Uber which uses an app to allow non commercially licensed drivers and passengers to be matched, has been declared illegal or is facing action to determine its legality in a number of countries including Germany[10], South Korea[11] and India[12]. It is also facing a host of lawsuits  in the US  by various cities such as San Francisco[13], Los Angeles, and  Portland[14]. All of these actions  seek to regulate both Uber and the drivers who operate within its unique model.

The march of technology therefore either prompts established players to come up with similar, 'legal' models[15] or displaces/disrupts them or prompts new 'legal' startups (Itunes, Youtube, 8tracks.com).

II. The Benefits of the 'Sharing Economy'

I use the term 'sharing economy'  in this paper as an umbrella term to refer to all business models with an emphasis on decentralized, peer to peer service provision such as Uber, Lyft (ridesharing), Airbnb (holiday rentals), Spinlister (vacation cycle rentals), and Venmo (digital wallet transfers between friends).

Such models typically bring otherwise dormant economic assets into the stream of commerce. These may be seats in cars already on the road, or rooms in houses already built and otherwise vacant. They also  allow the workforce greater flexibility in defining its own hours and working environment- Uber/Lyft drivers are free to choose how many hours of the day to work[16], and anecdotally  many of them use the spare time during the day to supplement their income and are happy to do so on their own terms. Similarly, Airbnbers are free to choose when to let their rooms out. Sharing economy models arguably offer greater consumer choice and robust alternatives to top down setups. There are economic arguments to show that an aggregation of individual contractors/entities is more efficient and robust than a top down centralised system^[17].

Though this is probably a question best left to sociologists, being an active participant in a business as opposed to a passive consumer possibly also leads to a greater sense of agency and freedom, besides catering to an increasing distrust of centralised  monolithic power structures. Witness the La Louve food cooperative in the 18th arrondisement in Paris where " every customer has to work at the cooperative for three hours each month. This reduces the shop’s labour costs, and in turn, enables it to reduce the price of healthy, high-quality products by 20-40%."[18] There seems to be a broader movement where people  are trying to redefine the retail logic by consuming 'better' and from people 'like us'. The philosophical question of why we feel the need to redefine the space where an exchange is made is a fascinating one, but also one better left to disciplines other than the law.

The sharing economy may be a philosophical or behaviour response ("tired of going through normal channels, more solidarity"),  an economic one (demand is not served like in terms of taxi supply, rental supply, etc) or a regulatory gap response (the laws and regulation create gaps where this sharing economy is developing). [19] Irrespective of motivations, the need for deft handed regulation is evident as opposed to ham handed assertions of power.[20] At the same time, governments should be in a position to ensure that the new sharing economy does not have the effect of triggering a race to the bottom with regard to prices that ends up hurting the most economically vulnerable sections of society.[21]

III. Regulation

If a new technology or idea results in a paradigm shift, we need to ask if it is reasonable to apply existing legal structures to it. It may be ok to continue to define internet communications as 'telegraphs" under the Indian Telegraph Act, 1885 but is it ok to turn millions of casual downloaders/streamers into serious copyright infringers or to turn casual landlords into hoteliers or Uber drivers into commercial carriers?

Given the benefits of the sharing economy, government policy should possibly 'discriminate' and be more discerning when it come to regulating such entities and their participants. 3 levels of regulation may be advisable- the first for causal/occasional ("Level 1") participants.  The threshold can be determined similar to how the government determines whether one is a 'trader' or a mere casual 'investor' in the stock market and levies tax at a differential rate[22]- frequency  and nature of activity, amount of money earned etc.[23]

The second tier would be for full time participants ("Level 2"), and the third for the 'parent'/hub entity ("Level 3'). Divergent standards of care are not unknown to the law- in tort the duty of care owed to a business invitee v. a licensee v. a trespasser is different.  Similarly the principle of strict liability imposes differential liability based on the nature of activity and its hazardous nature.

Basic safety norms (including background checks) should apply to all 3 categories. Some variety of capped strict civil liability for the hub entity may be appropriate for cases such as the Uber Delhi Rape if it can be shown that the hub entity failed in its obligations or as a failsafe when the Level 1 participant lacks the economic resources to cover its default (the unlivable rental on Airbnb). Criminal sanctions would be inappropriate unless egregious and willful negligence or indifference to the life and property of others is demonstrated.

Norms can apply to Level 1 when they enter the stream of commerce until the time they exit. This would mean that while they would not be required to obtain a cab or hotel license, they could still be subjected to the norms governing such licenses. Courts make similar determinations when judging whether something occurred "in the scope/course of employment" already. Liability is determined differently depending on the nature of the activity. Level 2 participants should be treated on par with other commercial players. Legislation could also regulate minimum pay and work standards at Level 3 to ensure downstream compliance.

There is some evidence that  governments are already gravitating towards such models. The California legislature has passed Assembly Bill No. 2293 ("AB 2293")[24] seeking to 'Balance Consumer Protection and Responsible Innovation"[25] with respect to ride share providers which it terms 'transportation network companies' or TNCs. Commencing July 1, 2015, AB 2293 separates personal insurance from TNC insurance and mandates that TNC insurance will operate for individual drivers from the time that they receive a ride request until drop off. While TNC insurance may be either the participating driver's ("level 1/2 regulation) or the TNCs itself, the TNC is made liable as a failsafe (Level 3 regulation) under Clauses 5433 (e) and (f)[26].

The Indian Central government also recently announced that it would not seek to ban ride sharing apps outright but would instead create new models of regulation in recognition of the benefits of the sharing economy.[27] Such a model may also be appropriate for liability standard determination with respect to a news sharing economy like Twitter. Speakers who breach press reporting norms such as non identification of sexual harassment^[28] or rape victims could be held liable under such standards, while enjoying  the full protection of free speech constitutional guarantees when tweeting about the other mundane epiphanies that seem to account for the majority of traffic on that platform.^[29] Context would be key for such regulation.

The sharing economy addresses a gap in the market and has both economic and liberalist reasons to recommend it. To reap its benefits governments need to come up with balanced responses that ensure that those rather than trying to put the genie back inside the bottle.

- Chetan Gupta

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[1] http://www.npr.org/blogs/therecord/2011/03/09/134391895/the-legacy-of-the-cd-innovation-that-ate-itself?ft=1&f=100

[2] http://www-inst.eecs.berkeley.edu/~eecsba1/sp98/reports/eecsba1e/project2/report.html#WhatisMP3

[3] http://gizmodo.com/the-pirate-bay-is-back-1682968040

[4] http://allthingsd.com/20130325/itunes-not-exactly-break-even-anymore/

[5] http://www.buzzfeed.com/peterlauria/netflix-caps-flawless-year-by-adding-another-23-million-subs#.qsavzGzXv

[6] Sony Corp. v. Universal City Studios , 464 U.S. 417 (1984), available at https://supreme.justia.com/cases/federal/us/464/417/case.html#445.

[7] http://www.huffingtonpost.in/2015/03/30/trai-ott-consultation-pap_n_6966696.html. This has sparked off a massive debate on net neutrality in India as well with the Telecom Regulatory Authority of India ("TRAI") floating a a white paper which would legitimize charging extra for such services besides subjecting them to an extra layer of regulation. Details can be found at http://www.trai.gov.in/WriteReadData/WhatsNew/Documents/OTT-CP-27032015.pdf

[8] MGM v. Grokster, 545 U.S. 913 (2005), available at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-480

[9] A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001), available at https://law.resource.org/pub/us/case/reporter/F3/239/239.F3d.1004.00-16403.00-16401.html

[10] http://www.bbc.com/news/technology-31942997

[11] http://www.theverge.com/2015/3/18/8240601/south-korea-uber-charged-30-people-ceo-kalanick

[12] http://gadgets.ndtv.com/apps/news/government-mulls-pan-india-ban-of-uber-ola-and-taxiforsure-apps-678203

[13] http://www.bizjournals.com/sanfrancisco/blog/2015/03/uber-driver-safety-court-ab24-nazarian-taxi.html

[14] http://www.kgw.com/story/money/business/2015/04/06/task-force-uber-can-re-start-in-portland-with-conditions/25376969/

[15] http://www.huffingtonpost.ca/2015/03/11/beck-taxi-app-uber-toronto_n_6847552.html

[16] http://www.budgetsaresexy.com/2014/09/lyft-uber-driver-hustle/

[17] A central argument  in  Nassim Nicholas Taleb's 'Antifragile' (Random House, 2012), though he applies the idea principally to city states vs. nations. 

[18] http://www.wave-innovation.com/en/la-louve.html. La Louve was inspired by a cooperative that was founded in Brooklyn, New York, 20 years ago: the Park Slope Food Coop, now 16,000 members strong, which runs a supermarket of 1,000 square meters, open 8.00 a.m. to 10.00 p.m., 365 days a year.

[19] The authors would like to thank Ivan Rossignol for suggesting this tripartite response theory, and offering valuable comments on this paper.

[20] The French police have raided offices and seized cellphones and documents. http://www.theverge.com/2015/3/18/8240685/uber-france-office-raided-police-uberpop. Australian police have attempted to use decoy customers- http://www.abc.net.au/news/2015-01-14/uberx-outsmarts-taxi-inspectors-by-blocking-mobile-phones/6016940

[21]http://www.slate.com/articles/news_and_politics/politics/2015/01/the_upper_middle_class_is_ruining_all_that_is_great_about_america.2.html  " We often hear about how awesome it is that Uber is making taxi service cheaper and more accessible for ordinary consumers but how sad it is that they are making life harder for working-class drivers who drive traditional cabs. Notice that upper-middle-class credentialed professionals like dentists, lawyers, and doctors rarely get Uber’d to the same degree. Even when innovative services try to do things like, say, offer a free alternative to expensive insurance brokers, state and local governments will often step in to say, “Oh, no you don’t.” 

[22] Traders  are taxed on stock traded as business income while for investors profits are taxed at a far lower rate as capital gains.

[23] This distinction is not unique to India and the US uses it as well- http://www.forbes.com/sites/anthonynitti/2013/08/29/the-tax-aspects-of-day-trading-do-your-purchases-and-sales-of-stock-make-you-a-trader-or-investor/

[24] http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2293

[25] http://insurancenewsnet.com/oarticle/2014/08/29/california-legislature-approves-ab-2293-bill-balances-consumer-protection-and-r-a-549662.html#.VUmUDvmqpBc.

[26] " 5433 (e) In every instance where transportation network company insurance maintained by a participating driver to fulfill the insurance obligations of this section has lapsed or ceased to exist, the transportation network company shall provide the coverage required by this section beginning with the first dollar of a claim.

(f) This article shall not limit the liability of a transportation network company arising out of an automobile accident involving a participating driver in any action for damages against a transportation network company for an amount above the required insurance coverage."

[27] http://economictimes.indiatimes.com/news/politics-and-nation/green-signal-for-uber-ola-as-centre-rules-out-app-ban-services-to-be-regulated-under-motor-vehicles-act/articleshow/46856675.cms

[28] See for e.g. the recent identification on Twitter of the lady allegedly harassed by an AAP leader.

[29] Best burger ever!

Shades of Gray

In June this year, the US Supreme Court released an important decision on the use of race in school allocation. A 5:4 majority held that the use of race to decide school allocation fell afoul of the Equal Protection Clause. Justice Stevens and Justice Breyer entered strong dissents. The decision, the text of which is available here, makes for very interesting reading. Since a blog is meant to allow non traditional modes of expression, I am posting below the text of an email discussion on the decision with a colleague, RN, who is a keen observer of the US Supreme Court. Comments, as always, are welcome.

Dear xxxx,
Still haven’t had time to write anything but thought I would forward you some initial thoughts that I was discussing with an American friend on the race case-

Ah, RN, what can i say?! the decision was heartbreaking, yes, but far from unexpected. The doctrine has developed in such a way that the "narrow tailoring" requirement is central. Without a specific, individualized routine for making cuts, these programs just won't stand. as always, I’m impressed with how much you know about the Court here, down to the preferences of each justice and how court politics work. I’m right now at the ______. As it happens, I'm in the ______ section, so this case has a direct and not insubstantial impact on the work we do. The discussion we have about the outcome is strikingly less theoretical and doctrinal than discussions in law school; our focus on what we do from here, and how it changes the work we do, if at all (we deal a lot with districts under desegregation decrees, which means race MUST be taken into account in overcoming past de jure segregation). i'm now working on an article with a DOJ attorney, wherein we're trying to make the case that the de jure/de facto distinction is misleading and should not carry as much analytical weight as it does (cf. the better parts of what I thought was a sloppy Breyer dissent). We then want to make the argument that districts can stipulate to de jure segregation, enter in consent decrees (contracts, in essence) and work with the government to fashion race-based remedies. We’ll see. Currently, some districts are using socio-economic status to divide up children; at times, this is a good proxy for race, but at times it really isn't.

RN’s reply:

Your ideas are certainly intriguing but I dunno what kind of evidence would be needed to prove segregation by the school boards. I doubt Roberts would buy such a line, didn’t he write somewhere that the school boards have not been able to prove segregation?

Besides I think that as per Thomas, de jure segregation needs a statutory basis not mere societal practices. The way I see it, in cases of de jure segregation (in the old south for example), racial remedies are required by law as a positive duty under the equal protection amendment. In cases where the segregaton is defacto, such a positive duty does not exist (I believe the observations in Swann, Millikin etc say the same thing). Racial consciousness to remedy de facto segregation does not have a basis in the equal protection amendment. So there can never be a case arguing that the state needs to remedy de facto segregation unless it is proved beyond a doubt that the different schools for communities have unequal facilities. Since the sociological views are far from clear, I dunno how a court can so hold.

However, the state can and in my view has a strong moral obligation to ensure that different kids study together. For example, little Italian americans should study with Indian kids and explore the possibiltiies of becoming doctors, engineers and petty bourgeousie instead of pasta-makers, olive oil sellers and petty mafiosi. Snide remarks aside, the diversity rationale is a strong policy factor which can and should be taken into account by school boards and indeed the state.

It would be very difficult even for Thomas to say that a policy designed to bring people together is a goal unworthy of the equal protection clause. Indeed, the contours of the two are actually different. Actually, under the diversity rationale, black and white kids are treated equally in the sense that when each is faced with the racial tie-braker, each could loose equally. I mean black kids also have to go 10 miles like white kids. Both sides are inconvenienced by means of a necessary lottery to ensure racial diversity. In the lottery, both white kids and black kides can be inconvenienced equally to ensure the greater national good of diversity. If a method can be found by which the persons who have to go to different schools are impartially and fairly chosen, I cant see how the equal protection clause is violated. To the extent parents are denied a choice, well, national interest deprives you of certain choices, such as the choice to support communism, scream fire in a crowded theatre, etc.

If schools are equal, there is no stigma attached to any school, as there is no competitive exam to get through- the system works on a lottery, I still can't see how or why racial consciousness in the way used is wrong. The only argument I can see that it is wrong and unfair to "judge" someone on the basis of race and deny him/her the choice to go to a school closest to him for that reason-why should A go to neighbourhood school while B goes 10 miles away? the answer to that can be found if there is a way to distinguish between A and B. If you apply first you get your choice and later you take a chance or another method to ensure that the burdens of diversity are met non-arbitrarily. As regards "narrow tailoring", i cant think of how narrower tailoring is possible:

-Most kids go to neighbourhood schools.
-To ensure diversity, guided by racial composition, a few kids who apply late or are chosen for some rational reason may loose a tie breaker and go another school equal in every way except distance.

Perhaps the school board can cause a shifting of schools in some time or compensate the kids for the loss of "liberty". In the end for diversity u need to take account of color. Taking account of is not discrimination if the basis is rational and it is for a worthwhile goal. I guess, this is the argument that was defeated by the majority decision.

- RN


Dear RN,

Thanks for forwarding these. Interestingly, if you see my comments, we seem to be ad idem on quite a few aspects. I got the distinct impression from the plurality's opinions that de jure segregation requires segregation by statute. Loved the petty mafiosi line. The points you make about the impugned school system imposing equal burdens on blacks and whites alike are important ones. Theoretically, white kids could derive more benefits from the scheme than black kids, if the racial balance were to tilt that way. In India, qua 16(4), the 'adequate representation' aspect of the text of the article has been entirely ignored. Arun Shourie provides empirical data to show that some castes are in fact over represented. IF the US were to go the Indian way, 10 years later their court would hold that white/back kids who got into school on thier own merit can't be counted towards the 'diversity' figures!

Tangentially, could racist court opinions be produced as evidence of de jure segregation? The Courts are considered 'State' and opinions like Dred Scott and Plessy (or their equivalents at the states level) leave little room for doubt. And the US SC has held that federal courts are capable of, and have in the past, violated the Equal Protection Clause.

Regards,

xxxx



Dear xxxx,

When judges interpret words like liberty and equality, its almost impossible to impugn their interpretation as proof of de jure segregation. Separate but equal is a valid theoretical interpretation of the equal protection clause although one which needs to be rejected as separate is not equal. I don't know if the diversity argument works in context of Article 16(4). The justification of reservation remains the remedy of past racial discrimination while diversity has nothing to do with the past- only with the future.

My point essentially is that the fact that governments can validly choose to promote diversity and indeed there is a moral obligation in this regard. This is different from reservations and quotas which are meant as a redress for inequality. Diversity has nothing to do with inequality, or "racial aesthetics" like that idiot Thomas seems to think. I cant see how diversity causes "discrimination" in the same way segregation did. The interacting dimensions of equality and diversity come into being when diversity would harm institutions that are minority dominated and do well by themselves.

Take for example magnet schools which benefit loads of black kids. If these were made diverse the very features that cause tem to be successful would go away and the result would be unequal treatment of black persons who would not be allowed to study in conditions that are good for them. The balance would be to ensure to equal protection is not compromised by diversity. Equal protection is a constitutional obligation while diversity is a political choice and the former must win against the latter in all cases. I guess if magnet schools can be justified on the basis of equal protection, they should be allowed to stay: for them diversity could be attained by school interactions, camping trips, exchange programs etc.

My point is black and white kids should always study together until the point that equal protection is vioalted in the sense that equal opportunity is threatened. In such cases, other means can be considered. I know my thoughts sound muddled but i feel the theoretical difference between de jure and de facto segregation does cause difficulty in race policy in schools but that is no excuse for abandoning diversity.

I cannot believe smart lawyers like Roberts and Scalia could not see this. I don’t expect much from Thomas (who incidentally is the best example against affirmative action) or from Kennedy who has not got a consistent thought process. The plurality opinion relied on "ratio" rejected "dicta" and ignored the context of Justice Harlan's Plessy dissent and Brown. The high school debater points of the Swann "obiter" were outrageous and I can totally understand Breyer’s bewilderment at the same. Breyer had the better moral and legal argument although in my view, he should have tried to distinguish between diversity and the remedy against de jure segregation. Brayers dissent was long and perhaps not too well focussed but I would still prefer that over the plurality opinion.

- RN


Dear RN,

Interesting point about judgments- the breadth of meaning does cover them.

I agree that diversity is an important and desirable end by itself irrespective of past discrimination. I think the difference b/w de jure and de facto segregation is artificial, but you resolve that well by saying that while the Equal Protection Clause mandates state action to remedy the former, the diversity motive is strong enough to constitutionally sustain state action to remedy the latter. Did I understand you correctly in this? Also, Is diversity a strong enough motive to permit endless tinkering and fine tuning? Does it overcome the objection that measures based on race must have some discernible end point, or does this objection only pertain to remedial measures?

We could benefit from introducing the 2 fold (past discrimination and/or diversity) 'compelling interest' test in the context of Art. 16(4)- the art. itself only indicates it's meant to remedy 'inadequate representation' and would permit the reading in of the diversity motif, even though it was not contemplated by the Framers. Or would this just provide another tool for the politicians to chop vote banks even finer? I am told the petitioners are now arguing 'compelling interest' before our SC in the OBC matter.

Regards,

xxxx


Dear xxxx,

You got my point correctly. As regards the fact that diversity would imply "endless tinkering with race"- as a policy periodic review would be essential. When neighbourhoods stop being segregated, diversity is no longer necessary. The point is that back and white together is always important enough to meet the minimum criteria for satisfying the equal protection clause. That said I don’t think that the mere use of race for a long period is automatically in violation of equal protection.

Besides I still cannot understand the discrimination. Suppose, for example, that electricity was scarce and had to be rationed. The government decided by means of a lottery the homes where there would be no electricity for any day. Could the victims then complain that equal protection is violated because there is no difference between them and those with electricity? I hardly think so. For scarce resources, a fair test can be used to ensure that a good is available to all. I think neighbourhood schools are such a scarce commodity that would need to be so divided.

Besides like Kozinsky and all said in the federal courts, there is no discrimination and stigma involved. To answer Kennedy there is nothing that stops kids from their own concept of self etc. The policy arguments about the end of the neighbourhood and extra-curricular activities can and should be remedied by additional action. The point about an end point is with reference to past discrimination and not diversity action. Obviously, equal protection does not mean action forever unless extra-ordinary circumstances exist but diversity cannot naturally end unless it is achieved. Naturally, after desegregation is OK’ed by the courts, the counties cannot be compelled to go for diversity, but if they choose to do so, and if the program is fairly carried out, I cant see why it cannot go own forever.

- RN


Dear RN,

I don't see a problem with endless tinkering qua diversity once it's accepted as a desirable and constitutional goal in itself, de hors the past discrimination aspect.

The electricity example can also be used to demonstrate why de facto seg. is just as bad, and perhaps even worse, than de jure seg. If it was empirically found that the lottery always came out in favour of the whites, then surely a race based remedial measure would be justified, though the mechanism is facially race neutral.

I think for Roberts the 'discrimination' element lay in the fact that once the tie breaker was applied, the denial of school choice was on the basis of race. Without seeing the record, it is very difficult to tell who's telling the truth about the way in which the plans worked. Roberts and the others make it sound as if they Districts themselves weren't sure about how they were applied and were very crude, without any alternatives being explored. Breyer paints a very different picture, and leaves no doubt they were narrowly tailored and thus satisfied the compelling interest test. I think the plurality can easily be read as saying that plans based on race are not per se unconstitutional, as long as they satisfy the narrow tailoring requirement.

Are there any 'takeaways' from the judgment in the Indian context? I really liked the fact that the race criterion could cut both ways and favour both blacks and whites. If we just forget about past discrimination, and concentrate on diversity as a means of integrating OBCs/SC/STs at the primary/secondary school level, would that work? I am anyway completely against reservations beyond this level. I think more than anything else we would benefit from the importation of the 'narrowly tailored' test. Since it's empirically proven that reservations in their current form are a complete failure and a mess, that should provide an easy ground to get rid of them and hopefully get rid of all that 16(4) 'facet of equality' rubbish.

Regards,

xxxx


Dear xxxx,

My point about the lottery was refaced by the fact that it has to be fair. If it is impeachable at all then it would be unconstitutional as it would be in violation of the equal protection clause. Basically, diversity treads on a very thin line constitutionally and care has to be taken that it doesn’t fall "into the ugly abyss of racism."

Anyway, I disagree with Roberts and the plurality and don’t think denial of school choice resulted in "discrimination" in the school cases.

As regards implications for India, what our judges should realize is that 16(4) does not equal quotas. If reservations are not effective they are certainly unconstitutional and the government is obligated under 16(4) to find effective mechanisms. The positive duty in our constitution is explicit unlike in the American context. Equating reservations with social justice without seeing whether it works is plainly unconstitutional, at least in my view. Courts should compel government surveys, and evaluation as to who benefits and how much.

- RN


Dear xxxx,

One more point about the theoretical difference between de facto and de jure segregation. It’s sort of like what someone said about inequality. Don’t remember the exact context but the idea was that inequality in itself is not unfair if it is the result of processes which are fair.

The point is if the grasshopper spent the entire summer prancing about and did not follow the example of the squirrel which was hiding nuts for the winter, then the fact that the grasshopper starves in the winter is entirely a product of his own actions and he deserves no help as a right. I mean he can be helped out of charity but not out of justice.

Similarly de facto segregation simply because whites and blacks live separately due to cultural and economic reasons does not raise issues of unfairness provided that the people themselves are responsible for those cultural and economic reasons. Of course, if neighbourhoods are black because all the whites moved out to avoid the blacks or if blacks were "blackballed" by RWA's or something or if blacks are poorer due to lack of opportunity rather than a lack of hard work or talent , de jure and de facto segregation is not different and equal protection clauses then do come into play and the justification for racial classification is remedial rather than diversity.

The issue then is how objectively can the cause of segregated neighbourhoods be evaluated. Thomas and the plurality indicate judgments and legislations or a kind of historical test by which the old south is segregated by law and the rest of the country by accident. I'd say Breyer was correct here as well although the NAACP suit was never proved or established.

I guess, all in all, relying in diversity and the political process should be safer for most liberals in the US although in extreme cases the lack of difference in the de facto de jure issue I have just discussed could be brought out.

- RN


Dear RN,

Completely agree that inequality which is solely the result of lassitude should not be sought to be remedied by state action. Much sociological debate is of course possible regarding what makes a lazy bum a lazy bum. Other than that, I would agree that remedial action should be permitted for both de jure and de facto segregation, as long as the effects of both are the same. To demand that the segregation be embodied in a statute before remedial measures are permitted is just silly.

- xxxx

Holme(s)ilies from the Bench

I read about the case of State of UP v. Jeet S. Bisht here (that blog also has links to the text of the judgment). The case discuses the powers of the Supreme Court to pass directions to rectify defects in the working and adminstration of various consumer fora under the Consumer Protection Act. Katju J. , grounding his reasoning in the doctrine of judicial restraint, argues that it is improper for the Court to do so. SInha J. took a contrary view relying on recent trends in judidical activism and what he calls a move away from formalistic approaches to the law. It is rare for a 2 judges of a Division Bench to disagree in this manner. My views are stated below. This post also appears as a comment on the lawandotherthings blog.

There is nothing really novel about the arguments put forward by Katju J. and Sinha J. Both philosophies have been espoused before by the Supreme Court, albeit not in a single case.

That said, I have grave misgivings about Sinha J.'s judgment, though I have the greatest respect for his erudition. I feel that it doesn't really answer any of the criticisms levelled by Katju J. It seems to rest on the following premises-

1. It is alright to ignore constitutional and statutory provisions as long as the parties before the Court connive with the Court in doing so. A sovereign legislature cannot abdicate its powers in this manner, and the mere fact that counsels before the Court were amenable to its passing directions is no defence to the charge that the orders passed were illegal.

2. As the Consumer Protection Tribunals are judicial fora, the SC is entitled to interfere in their administration and conditions of service as the apex court. There is no constitutional provision to bear this out. This is also ignores Parliament's contrary intention as exhibited in the text of the CPA.

3. Bunging in enough foreign references (Dworkin, Bruce Ackerman et al.) is sufficient to gloss over the fact that the Court is rewriting the statute.

Sinha J. also refers to Union of India v. S.B. Vohra, an inapposite reference, since the very passage he extracts indicates that there Art. 229 entitled the HC to have a say in service conditions.

References to other SC decisions which suffer from the same defects as those pointed out by Katju J. are of no help. Constitutional courts are normally not bound by prior precedents precisely because, in their field of action, the perpetuation of errors can have dire consequences.

I am not indifferent to the argument that legislative indolence requires judicial activism. I just don't think that it justifies rewriting constitutional and statutory provisions without acknowledging this is what is being done. It is constitutional hypocrisy, which abandons the constitution to the personal predilections of judges. This trend and it's pitfalls were eloquently characterised by Alex Kozinski of the Ninth Circuit in Silveira v. Llockyer> The passage deserves to be set out in full-

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States,389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional
guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences."

Perhaps the present distribution of powers in the Constitution needs to be considered afresh in view of the degeneration of the legislative and executive organs. However, the judiciary should call for such a change openly rather than resorting to subterfuges and a creeping expropriation of legislative powers.

To end, I find Sinha J.'s criticism of Katju J. in para 43 unjustified. If the prior judgments, larger benches or not, were passed sub silentio, Katju J. was entitled to state his view. He should perhaps have considered having them placed beofre the CJ, in consequence of the view he was taking, that they may be reconsidered. As to Sinha J.'s judicial restraint jibe, perhaps he forgot that Katju J.'s brand of judicial restraint permits saying things like "people like you should be hanged from lamp posts" in open court.

My Reservations

I just finished reading Arun Shourie’s “Falling Over Backwards:An Essay against Reservations and against Judicial Populism”. I’d started reading the book earlier but quit midway because I found it repetitive. Given that the aim of the book is to make as large a swathe of the populations as possible aware of the perils of reservation, as opposed to just specialists (lawyers), the repetitiveness is perhaps excusable. In any case, I’m glad I did finish it, because Mr. Shourie has some excellent points to make and some startling data to share. Some key takeaways-

1. The Framers of the Constitution were aware of the distinction between ‘class’ and ‘caste’ and their exists both intrinsic and extrinsic evidence that the two words were not used interchangeably. From an originalist point of view, the interpretation placed upon ‘class’ by both the Supreme Court and by politicians is unsustainable.

2. The 1921 and 1931 Census Commissioners reported that various segments of society were trying to portray themselves as belonging to higher castes. There was a great degree of fluidity and it was recommended that the Caste column be done away with altogether. This upward mobility should be contrasted with the current struggle for downward mobility where each faction is keen to get itself classified as an SC/ST/OBC. The methodology and conclusions of the Mandal Commission which based itself on the 1931 data are also exposed as farcical. It’s horrifying to think that the edifice (or rather, facade of reservations) is constructed on such unsound foundations. That no better data exists is evident from the reluctance of the Govt. to place new data before the 2 judge bench headed by Justice Pasayat which stayed reservations in IITs/IIMs.

3. Reservations in promotions with consequential seniority has led to absurd results in the public services. Reservationists supersede people 10 years their senior, and most of the top posts are completely reserved for the foreseeable future. This has led to large scale demoralisation. There is absolutely no incentive to join any public service unless one belongs to the ‘right’ caste. The extent to which standards have either been abysmally lowered or altogether done away with cannot but prove detrimental to the efficiency of administration. The mandate of Art. 335 has been completely ignored.

4. Equality of opportunity has been confused with equality of outcomes. Substandard candidates are admitted and once they prove themselves to be incapable of competing with non-reservationists, this is pointed to as proof of facts that more reservations are needed and that reservations cannot be confined to the admission stage.

5. Anybody who dares to speak against reservations is branded a ‘merit-monger’ or ‘oppressor of the downtrodden’. A dispassionate and civilised debate on the issue has become impossible. Privately, many politicians are aware of the havoc wrought by reservations, but vote bank politics means that nobody can afford to speak out.

6. The ‘progressive’ judges of the Supreme Court have all too often substituted high flown rhetoric for empirical evidence when it has suited them to do so. Their ipse dixits and prejudices have all contributed to the quicksand of reservations. Timorousness and deference have prevented even those judges who do not subscribe to the progressive creed from making any impact on the course of things (witness the convoluted judgment of the Supreme Court in M. Nagraj v. UOI, the 2006 case which rejected the challenge to Arts. 16(4A) and 16(4B) and perpetuated the idiocy that these Articles are facets of equality (as opposed to deviations from the general rule of equality).

The penultimate chapter of the book, written over a year back, is prophetic. Mr. Shourie warned that the congealment of political and social interests around the canker of caste cannot but lead to communal discord. He expressly cited the example of the Gujjar’s (p. 339) and the growing unrest among them which was evident even then to civil servants in the State. Alas, Mr. Shourie is condemned to the fate shared by all wise men who have the misfortune of witnessing the decline of republics- they are condemned as Cassandras by the clamouring mob. We may commend to ourselves the words of Joseph Story “Republics fall when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.”

I also read the full text of Rajiv Gandhi’s speech in Parliament on Mandal. After reading it, I am utterly convinced that the Congress just about exemplifies hypocrisy for having the gumption to enhance reservations and justify them by pointing to the Mandal Report. Also, VP Singh should be vilified rather than being venerated like some precious political relic.


Alternatives

Mr. Shourie also points out that while economic criteria are accepted for the purposes of the PDS and for determining the creamy layer qua reservations themselves, they are mysteriously termed ‘unsuitable’ for replacing caste as the basis of reservation measures. Recent newspaper reports prove that BPL criteria are also exploited and people try and get their names on these lists by hook or crook. It was recently reported that Gopalkrishna Gandhi’s (Governor of West Bengal) name figured in one such list, an example of the ease with which they can be manipulated.

Assuming all this to be true, the adoption of economic criteria would still be the lesser of the two evils. A nation divided along economic lines must, in the last resort, be preferred to one divided along communal lines.

Illegal Trafficking

By an order which has received wide publicity, the Hon'ble Delhi High Court has recently (in effect) levied a cess of Rs. 500 (and higher) on the existing fines for traffic violations. Having been fined yesterday for allegedly crossing the 'Stop' line (in circumstances so preposterous, that that the arbitrary behaviour of the policemen would be a separate Art. 14 violation. But that's another story), I now have sufficient locus (and indignation) to comment on this.

Under the Indian constitution, legislative competence is allocated between the Union and the States as per Art. 246 r/w the Seventh Schedule, which contains a Union List, a State List and a Concurrent List. Parliament has enacted the Motor Vehicles Act, 1988 under Entry 35 of the Concurrent List i.e. 'Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.' The power to prescribe a fine presumably flows from Entry 35 r/w Entry 97 of the Union List, which allocates residuary powers to Parliament.

At best, Parliament can delegate the determination of the amount of fine to the Executive, being a matter of detail. However, last I checked, there was no 'Delhi High Court List' in the Seventh Schedule which empowered the Court to pass such orders. The Court's actions are unconstitutional, a brazen and naked usurpation of power with no constitutional justification.

The common retort to this is that where the legislature and the executive are inactive, the judiciary must fill the vacuum. In this case, the fine structure was archaic, the fines being so low that they had no deterrent effect. However, that doesn't get over the fact that such matters and determinations are exclusively within the ken of the legislature. Permitting even a creeping judicial expropriation of such powers has undesirable consequences in a country purporting to be under the rule of law. Pratap Bhanu Mehta, in a recent article, points out some defects of such judicial adventurism. I wish to add another. The judiciary has until now been widely respected by the Indian public, and by the Executive organ of the State charged with seeing it's will done. By passing such orders (the sealing proceedings are another example), the judiciary is making itself the object of public resentment. As Pratap Bhanu Mehta points out, the other organs have never attempted to ignore judicial verdicts altogether. Perhaps this is partly because they realised that an open rejection of a judicial verdict may result in a public backlash. If the judiciary is popularly viewed as just another whimsical body, this deterrent will disappear. And this may have dramatic repercussions for judicial verdicts which are legitimate but disliked by Parliament.

If the judiciary seeks to confront the Government on issues such as traffic violations and other sundry measures, genuine constitutional adjudication may be endangered. If the judicial verdict is no longer respected, there is nothing to prevent the State from riding roughshod over the FRs of citizens when convenient. Reservations are a good example. In my opinion they are one area where the fundamental principle of equality and merit is in danger of being wiped out. They are a populist measure passed by Parliament. The Court must, and has intervened, to save the people from themselves. They have discharged their role of protecting the Constitution from the fleeting passions of an age, which may inflict permanent damage to sound constitutional foundations. Imagine the consequences if the verdict could be ignored because the public would merely view it as one more unwarranted intervention on the part of the judiciary!

Legislation by way of judicial ukase cannot be a panacea for all ills. Letting traffic offenders off lightly is detrimental to public safety and road manners. But jumping constitutional stop signs imperils democracy itself. The choice should be obvious.

As an aside, a sociologist may find it interesting that while the policeman who challaned me could not spell 'violating' correctly (apparently i was 'volicating a stop line'. Sounds dirty doesn't it?), he got 'as per orders of Hon'ble Delhi High Court' absolutely correct, down to the apostrophe.
Fittingly, I was fined right outside the Supreme Court. Perhaps I should have preferred an appeal.

Torturing precedent

Some comments and questions on the recent DC Circuit op. in Lakhdar v. Bush -

1. Why examine habeas corpus as it stood in 1789? Originalism aside, as Justice Holmes put it, the framers of constitutions call into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. Courts are no strangers to imbuing FRs with new meanings and interpretations, whether found lurking in dark penumbral fringes or crafted out of thin air.

2. The opinion seems to commit the same error as the majority in ADM Jabalpur which regarded Art. 21 as the sole repository of all liberty and held it to be validly suspended.

3. Did the US Supreme Court accept a dangerous half measure by claiming habeas jurisdiction over only pending claims? Did it implicitly accept the statute’s denial of fresh cases in Hamdan?

4. It is a stretch to claim that the US does not exercise sovereignty over G'bay. It exercises at least as much sovereignty as it does over its embassy in India (which, incidentally, is also held on a permanent lease).

5. Is G'bay comparable with a US control (temp/permanent) over foreign territory? Admittedly grant of constitutional rights to all places where US forces temporarily exercise some measure of dominion could have unwieldy consequences.

6. The courts error lies in concluding that deprivation of habeas corpus does not offend the Suspension Clause. The dissent's approach of trying to distinguish individual rights as against legislative restraints is muddleheaded and unworkable. Its not surprising that most who have commented favourably on the dissent have maintained a studied silence on this aspect.

I'm beginning to understand why the Americans call it 'con' law.

Privilege as to Longwinded Judgments

The Indian Supreme Court recently handed down its decision in Raja Ram Pal v. Union of India holding that parliamentary privileges were subject to judicial review. The case was concerned with the expulsion of MPs caught on tape accepting cash for raising questions in Parliament. They were expelled after Parliamentary Committees granted them a hearing and the power of expulsion was claimed as a privilege.

It has held that under our constitutional scheme the court has to decide the scope and extent of privileges, that the power to expel formed part of the House of Commons privileges at the commencement of the Constitution, that the power to expel did not stem from the fact that the House of Commons had the powers of a Court of Record (as colonial legislatures which were not formerly Courts of Record also enjoyed this power) or from the power to determine self composition and that the power of expulsion was duly exercised in the present case (on a substantive basis, as procedural irregularities would be protected by Art. 122).

Off the top of my head-

1. The power to expel, in some cases, could be treated as obtaining on the ground of necessity as an expression of the power to punish for contempt where the Court's jurisdiction were barred by Art. 122.

2. The Court referred to the Constitutional Assembly Debates relating to Art. 122 to hold it only barred review of procedural irregularities. The same debates could also be read as implying that the Framers considered that it was well established that no Court would attempt a substantive review and the prohibition on judicial review of procedural irregularities was inserted ex abundanti cautela (Francis Bennion has an interesting article on why reference to debates is inapposite at http://www.francisbennion.com/doc/fb/1993/003/hansard01.htm).

3. The judgement continues a proud legal tradition where prolixity and tediousness are considered the hallmarks of scholasticism and learnedness. Were 200+ (MS Word) pages really needed to say all that? The concurring judgment needlessly repeats entire paragraphs from the main judgment. Part of this can perhaps be attributed to the desire of an outgoing Chief Justice to leave his mark on the law through elaborate exposition.