Showing posts with label article. Show all posts
Showing posts with label article. Show all posts
Sunday 11 July 2021
Monday 16 December 2013
On Article 377 and The Supreme Court - The wrongness of deference
In upholding the constitutionality of Section 377 of the IPC the Supreme Court has made a judgment that is value-laden, based on a particular worldview that many disagree with
The Supreme Court, in its judgment in Suresh Kumar Koushal and another v. NAZ Foundation and others (Civil Appeal No. 10972 of 2013) upholding the constitutionality of Section 377 of the Indian Penal Code, has been widely perceived to have espoused a principle of judicial deference to Parliament. This view has forced a shift of focus amongst gay activists and right-thinking citizens to the legislature, in the hope of corrective reform. In deferring to the will of Parliament in a matter that involves testing a statute against the touchstone of the Constitution, the Supreme Court was legally wrong and disingenuous, and seemingly allowed its personal ideological views to determine the interpretation of statutory law. The only silver lining which this otherwise woeful exercise of judicial decision-making provides is an opportunity to reconceptualise the Court in the public imagination, aligning it more closely to the reality of its present functioning rather than its erstwhile glory.
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Also read
The curious case of convenient liberalism
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Three main constitutional questions confronted the Court in this case. First, whether Section 377 which criminalises “carnal intercourse against the order of nature” is discriminatory, thereby violating Article 14 of the Constitution; second, whether it violates the right of LGBT people to live with dignity, protected under Article 21 of the Constitution; third, whether criminalising private consensual acts between adults violates their right to privacy, also protected under Article 21 of the Constitution.
The Court summarily dismissed the first constitutional challenge on the ground that those who indulge in carnal intercourse in the order of nature and against the order of nature constitute different classes. This is a wholly insufficient and unreasoned justification. Instead, the key question should have been whether such classification is reasonable, an issue that the Court did not address. Using an analogy, by the Court’s logic, because men and women constitute different classes it is permissible to say that only men will be allowed to be enrolled as advocates who can practise before the Supreme Court, and not women. Such logic is as much absurd as it is incredible, coming from the Supreme Court of India — though not entirely surprising for those who closely follow the Court’s judgments.
Again, with regard to the argument based on dignity of LGBT people under Article 21, the Court holds that the purported harassment faced on account of misuse of this provision by police officials is neither mandated nor condoned by the Section itself. This is sophistry as it conveniently ignores a central facet of leading a life with dignity, that is, not being criminalised for being oneself. As far as privacy is concerned, the Court’s treatment is frankly unintelligible. It merely cites a key Supreme Court precedent laying down a right to privacy but does not even attempt to apply the law to the facts of the case.
A combination of inadequate justification, sophistry and a woeful non-application of mind makes the unfortunate conclusion inescapable that the judgment ultimately rests on a deep-seated prejudice shared by the two judges that has no place in a legal judgment. For a proper legal adjudication of the issues raised, it is imperative that a review petition is filed and taken up by the Court speedily.
Not a case for deference
Despite the questions in this case being squarely matters of constitutional law, an extraordinarily high degree of deference is shown by the Court to Parliament. This takes two forms — presuming constitutionality of the statute and suggesting that reform of the provision is the prerogative of Parliament, one that it has chosen not to exercise thus far. The former is unproblematic, an established principle of constitutional interpretation. The latter, however, is nothing short of judicial abdication of constitutional duty in the guise of deference. Deference as a principle refers to the attaching of different weights by courts to decisions of elected branches of government on grounds of legitimacy and competence. Widely used in common law jurisdictions, cases where courts defer to the government usually involve questions of government policy, or highly technical matters where the Court recognises its own limitations.
Effective legal remedy
Scarcely has it ever been accepted in a case concerning the fundamental rights of citizens. In fact, the European Court of Human Rights in Smith and Grady, a case pertaining to the United Kingdom’s policy of discharge of homosexuals in the armed forces, not only struck down the policy but found the extent of deference shown by the domestic courts to be violative of the legal requirement of providing an “effective legal remedy” under Article 13 of the European Convention of Human Rights. At the same time, never has the fact of non-reform of a law by Parliament been a reason to defer to it. This is natural since the converse would lead to an absurd proposition where the mere existence of a law creates reason to defer to Parliament thereby rendering futile the raison d’être of a Court as a counter-majoritarian institution.
The Supreme Court, by referring to the fact that Parliament has chosen not to reform the law as a factor which must “guide [their] understanding of character, scope, ambit and import” of the provisions that squarely raise purported violations of fundamental rights, has used deference to shy away from performing its own constitutional duty.
Further, such usage is entirely disingenuous. The Court’s parting words in this case, “[n]otwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 of the IPC from the statute book”, are remarkable. Though in substance a platitude, given that Parliament can legislate on whichever issue it desires without any necessity for a judicial imprimatur, it is phrased as an extraordinary concession on the part of an all-powerful Court as if Parliament were its delegate. It hardly reflects the tone of a genuinely deferential Court.
Re-engaging with the Court
This judgment has understandably caused great dismay amongst LGBT activists and advocacy groups that use judicial intervention to redress grievances against minorities of all stripes in India. Though such dismay is entirely justifiable, the extent of outpouring of rage and grief stems in some measure from the belief that the Supreme Court of India, as a respected judicial institution, would certainly rule in their favour.
Such a view, that the Court will always ‘do the right thing’, is unarguably a testament to the Court itself and its long history of rectitude and progressiveness. But over the last few years such a view has been largely based on a mythical view of the Supreme Court as an apolitical institution, acting when the recalcitrant political class fails to, saying the things that we want to hear. The widespread public support for the Court has thus been built on a combination of support for the result the Court reaches, as well as the nostalgia associated with the heady early days of public interest litigation, enshrined today in popular perception of the Court in mainstream media.
This judgment must lead to deep introspection with regard to this perception. For many years, those who follow the Court have, often privately, rued the abject deterioration of the quality of its judgments. But when a judgment so deficient in its reasoning and so sloppily formulated in a case of such magnitude is delivered, it must serve as a call to arms for all those in a position to critically engage with judicial decisions. Public criticism is the only real accountability device for an otherwise unaccountable institution. It is imperative that the Court is taken to task, not only for this decision, but for all its other decisions whose results we might agree with as citizens, but whose reasoning is inexplicable at best and absurd at worst, using methods that violate every canon of judicial discipline.
At the same time, it is equally imperative to see the Supreme Court of India, not on the basis of what it was meant to be by the framers of the Constitution or what it was in its early history, but what it has become today: an overtly political institution.
On an everyday basis, the Court adjudicates legal and moral questions that affect the lives of millions of people, it makes value judgments, uses its discretion to fill gaps in the law, makes choices in preferring one argument over another. For too long we have refrained from asking the basis on which the Court comes to these conclusions, sanguine in the antiquated and artificial view of the Court comprising a few good, apolitical men. In upholding the constitutionality of Section 377 of the IPC, the Court has made a judgment that is value-laden and based on a particular worldview that many disagree with.
By doing so, it has unarguably exercised a political choice. If it is legitimate for the Court to make such a choice, it is even more legitimate for citizens to ask: who will judge our judges? It is high time the Supreme Court reaps what it sows.
(Arghya Sengupta is founder and research director of the Vidhi Centre for Legal Policy, a New Delhi-based legal think-tank)
Tuesday 30 August 2011
Academic publishers make Murdoch look like a socialist
Academic publishers charge vast fees to access research paid for by us. Down with the knowledge monopoly racketeers
'Though academic libraries have been frantically cutting subscriptions to make ends meet, journals now consume 65% of their budgets.' Photograph: Peter M Fisher/Corbis
Who are the most ruthless capitalists in the western world? Whose monopolistic practices make Walmart look like a corner shop and Rupert Murdoch a socialist? You won't guess the answer in a month of Sundays. While there are plenty of candidates, my vote goes not to the banks, the oil companies or the health insurers, but – wait for it – to academic publishers. Theirs might sound like a fusty and insignificant sector. It is anything but. Of all corporate scams, the racket they run is most urgently in need of referral to the competition authorities.
Everyone claims to agree that people should be encouraged to understand science and other academic research. Without current knowledge, we cannot make coherent democratic decisions. But the publishers have slapped a padlock and a "keep out" sign on the gates.
You might resent Murdoch's paywall policy, in which he charges £1 for 24 hours of access to the Times and Sunday Times. But at least in that period you can read and download as many articles as you like. Reading a single article published by one of Elsevier's journals will cost you $31.50. Springer charges €34.95, Wiley-Blackwell, $42. Read 10 and you pay 10 times. And the journals retain perpetual copyright. You want to read a letter printed in 1981? That'll be $31.50.
Illustration by Daniel Pudles
Of course, you could go into the library (if it still exists). But they too have been hit by cosmic fees. The average cost of an annual subscription to a chemistry journal is $3,792. Some journals cost $10,000 a year or more to stock. The most expensive I've seen, Elsevier's Biochimica et Biophysica Acta, is $20,930. Though academic libraries have been frantically cutting subscriptions to make ends meet, journals now consume 65% of their budgets, which means they have had to reduce the number of books they buy. Journal fees account for a significant component of universities' costs, which are being passed to their students.
Murdoch pays his journalists and editors, and his companies generate much of the content they use. But the academic publishers get their articles, their peer reviewing (vetting by other researchers) and even much of their editing for free. The material they publish was commissioned and funded not by them but by us, through government research grants and academic stipends. But to see it, we must pay again, and through the nose.
The returns are astronomical: in the past financial year, for example, Elsevier's operating profit margin was 36% (£724m on revenues of £2bn). They result from a stranglehold on the market. Elsevier, Springer and Wiley, who have bought up many of their competitors, now publish 42% of journal articles.
More importantly, universities are locked into buying their products. Academic papers are published in only one place, and they have to be read by researchers trying to keep up with their subject. Demand is inelastic and competition non-existent, because different journals can't publish the same material. In many cases the publishers oblige the libraries to buy a large package of journals, whether or not they want them all. Perhaps it's not surprising that one of the biggest crooks ever to have preyed upon the people of this country – Robert Maxwell – made much of his money through academic publishing.
The publishers claim that they have to charge these fees as a result of the costs of production and distribution, and that they add value (in Springer's words) because they "develop journal brands and maintain and improve the digital infrastructure which has revolutionised scientific communication in the past 15 years". But an analysis by Deutsche Bank reaches different conclusions. "We believe the publisher adds relatively little value to the publishing process … if the process really were as complex, costly and value-added as the publishers protest that it is, 40% margins wouldn't be available." Far from assisting the dissemination of research, the big publishers impede it, as their long turnaround times can delay the release of findings by a year or more.
What we see here is pure rentier capitalism: monopolising a public resource then charging exorbitant fees to use it. Another term for it is economic parasitism. To obtain the knowledge for which we have already paid, we must surrender our feu to the lairds of learning.
It's bad enough for academics, it's worse for the laity. I refer readers to peer-reviewed papers, on the principle that claims should be followed to their sources. The readers tell me that they can't afford to judge for themselves whether or not I have represented the research fairly. Independent researchers who try to inform themselves about important scientific issues have to fork out thousands. This is a tax on education, a stifling of the public mind. It appears to contravene the universal declaration of human rights, which says that "everyone has the right freely to … share in scientific advancement and its benefits".
Open-access publishing, despite its promise, and some excellent resources such as the Public Library of Science and the physics database arxiv.org, has failed to displace the monopolists. In 1998 the Economist, surveying the opportunities offered by electronic publishing, predicted that "the days of 40% profit margins may soon be as dead as Robert Maxwell". But in 2010 Elsevier's operating profit margins were the same (36%) as they were in 1998.
The reason is that the big publishers have rounded up the journals with the highest academic impact factors, in which publication is essential for researchers trying to secure grants and advance their careers. You can start reading open-access journals, but you can't stop reading the closed ones.
Government bodies, with a few exceptions, have failed to confront them. The National Institutes of Health in the US oblige anyone taking their grants to put their papers in an open-access archive. But Research Councils UK, whose statement on public access is a masterpiece of meaningless waffle, relies on "the assumption that publishers will maintain the spirit of their current policies". You bet they will.
In the short term, governments should refer the academic publishers to their competition watchdogs, and insist that all papers arising from publicly funded research are placed in a free public database. In the longer term, they should work with researchers to cut out the middleman altogether, creating – along the lines proposed by Björn Brembs of Berlin's Freie Universität – a single global archive of academic literature and data. Peer-review would be overseen by an independent body. It could be funded by the library budgets which are currently being diverted into the hands of privateers.
The knowledge monopoly is as unwarranted and anachronistic as the corn laws. Let's throw off these parasitic overlords and liberate the research that belongs to us.
• A fully referenced version of this article can be found on George Monbiot's website. On Twitter, @georgemonbiot
Illustration by Daniel Pudles
Of course, you could go into the library (if it still exists). But they too have been hit by cosmic fees. The average cost of an annual subscription to a chemistry journal is $3,792. Some journals cost $10,000 a year or more to stock. The most expensive I've seen, Elsevier's Biochimica et Biophysica Acta, is $20,930. Though academic libraries have been frantically cutting subscriptions to make ends meet, journals now consume 65% of their budgets, which means they have had to reduce the number of books they buy. Journal fees account for a significant component of universities' costs, which are being passed to their students.
Murdoch pays his journalists and editors, and his companies generate much of the content they use. But the academic publishers get their articles, their peer reviewing (vetting by other researchers) and even much of their editing for free. The material they publish was commissioned and funded not by them but by us, through government research grants and academic stipends. But to see it, we must pay again, and through the nose.
The returns are astronomical: in the past financial year, for example, Elsevier's operating profit margin was 36% (£724m on revenues of £2bn). They result from a stranglehold on the market. Elsevier, Springer and Wiley, who have bought up many of their competitors, now publish 42% of journal articles.
More importantly, universities are locked into buying their products. Academic papers are published in only one place, and they have to be read by researchers trying to keep up with their subject. Demand is inelastic and competition non-existent, because different journals can't publish the same material. In many cases the publishers oblige the libraries to buy a large package of journals, whether or not they want them all. Perhaps it's not surprising that one of the biggest crooks ever to have preyed upon the people of this country – Robert Maxwell – made much of his money through academic publishing.
The publishers claim that they have to charge these fees as a result of the costs of production and distribution, and that they add value (in Springer's words) because they "develop journal brands and maintain and improve the digital infrastructure which has revolutionised scientific communication in the past 15 years". But an analysis by Deutsche Bank reaches different conclusions. "We believe the publisher adds relatively little value to the publishing process … if the process really were as complex, costly and value-added as the publishers protest that it is, 40% margins wouldn't be available." Far from assisting the dissemination of research, the big publishers impede it, as their long turnaround times can delay the release of findings by a year or more.
What we see here is pure rentier capitalism: monopolising a public resource then charging exorbitant fees to use it. Another term for it is economic parasitism. To obtain the knowledge for which we have already paid, we must surrender our feu to the lairds of learning.
It's bad enough for academics, it's worse for the laity. I refer readers to peer-reviewed papers, on the principle that claims should be followed to their sources. The readers tell me that they can't afford to judge for themselves whether or not I have represented the research fairly. Independent researchers who try to inform themselves about important scientific issues have to fork out thousands. This is a tax on education, a stifling of the public mind. It appears to contravene the universal declaration of human rights, which says that "everyone has the right freely to … share in scientific advancement and its benefits".
Open-access publishing, despite its promise, and some excellent resources such as the Public Library of Science and the physics database arxiv.org, has failed to displace the monopolists. In 1998 the Economist, surveying the opportunities offered by electronic publishing, predicted that "the days of 40% profit margins may soon be as dead as Robert Maxwell". But in 2010 Elsevier's operating profit margins were the same (36%) as they were in 1998.
The reason is that the big publishers have rounded up the journals with the highest academic impact factors, in which publication is essential for researchers trying to secure grants and advance their careers. You can start reading open-access journals, but you can't stop reading the closed ones.
Government bodies, with a few exceptions, have failed to confront them. The National Institutes of Health in the US oblige anyone taking their grants to put their papers in an open-access archive. But Research Councils UK, whose statement on public access is a masterpiece of meaningless waffle, relies on "the assumption that publishers will maintain the spirit of their current policies". You bet they will.
In the short term, governments should refer the academic publishers to their competition watchdogs, and insist that all papers arising from publicly funded research are placed in a free public database. In the longer term, they should work with researchers to cut out the middleman altogether, creating – along the lines proposed by Björn Brembs of Berlin's Freie Universität – a single global archive of academic literature and data. Peer-review would be overseen by an independent body. It could be funded by the library budgets which are currently being diverted into the hands of privateers.
The knowledge monopoly is as unwarranted and anachronistic as the corn laws. Let's throw off these parasitic overlords and liberate the research that belongs to us.
• A fully referenced version of this article can be found on George Monbiot's website. On Twitter, @georgemonbiot
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