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  • Triple Talaq – Gender Concerns and Minority Safeguards within a Communalised Polity: Can Conditional Nikahnama Offer a Solution?

     

    Triple Talaq – Gender Concerns and Minority Safeguards within a Communalised Polity:

    Can Conditional Nikahnama Offer a Solution?

    Flavia Agnes*

     

    This article is written at a critical juncture, as we await the Supreme Court verdict on the triple talaq issue. The aim here is to trace the trajectory of this entire debate and analyse the various strands of the arguments presented before the Supreme Court. While it is anyone’s guess which way the verdict will go, this article focuses attention on the Supreme Court’s directive issued at the end of the hearing regarding the use of a conditional nikahnama to restrain husbands from pronouncing arbitrary and instant triple talaq. By placing legal developments against the political backdrop, the article attempts to comprehensively address the interplay between gender, community and law in the present with triple talaq as the context.

     

    Table of Contents

    I. Introduction

    Within a polarised environment, where ‘neutral, secular, liberal and progressive’ voices demanding justice for Muslim women are placed in opposition to the ‘bearded, misogynist and patriarchal’ Muslim clerics, it closes the space for Muslim women to express a nuanced view regarding the present controversy over triple talaq and enforces upon them an artificial identity question. B. S. Sherin, a research scholar of comparative literature in Hyderabad, articulates her concern:

     

    “It is truly unfortunate that Muslim women’s identity is highlighted only in terms of personal laws, especially after the Shah Bano case. This overarching focus on personal law presents any improvement of Muslim women’s lives as contingent only on the reform of personal laws. By raising the question of personal laws and of community-binding, the larger implications of culture, class and region on the lives of Indian Muslim women are deferred. Muslim women themselves have come out in large numbers against the present campaign on Triple Talaq to say what is much more urgently needed is empowerment and education. But their voices do not receive larger audience. The recent appearance of articulate, practicing Muslim women challenging ‘progressive voices’ has been written off as ‘motivated by patriarchal forces’ or ‘indoctrinated’.”1

     

    When and how did the issue of lack of rights of Muslim women under their personal laws come to the fore? Why did the media not publicise the gains secured by Muslim women through the process of litigation during the last three decades? Why is there an overemphasis on triple talaq today to the exclusion of all other gender concerns? Is gender a neutral terrain, which is disjunct from the contemporary political reality? Within a sharply polarised environment where gender is pitted against community rights, and there are no easy solutions, what would be the most viable strategy to ensure dignity and offer protection to Muslim women and secure their economic rights? These are some critical issues which will be untangled in the course of this paper as I explore the contentious issue of triple talaq.

     

    In this paper, I attempt to analyse the recent developments against the populist grain by clearing some of the misconceptions surrounding the rights of Muslim women under the Muslim personal law regime. Part I provides the backdrop for the litigation. Part II provides the gist of the arguments and brings into context the question raised by the Chief Justice of India towards the end of the hearing, regarding conditional nikahnama to restrain triple talaq and its implications. Part III discusses the complex terrain of personal laws in India. Part IV, examines the rising wave of Hindu fundamentalism in the country against the backdrop of the triple talaq controversy. In Part V, the non-reporting of a historic judgment, Danial Latifi v. Union of India (‘Danial Latifi’),2 and the problems it created are highlighted. In Part VI, the making of Shayara Bano v. Union of India3 and the legal precedent in Shamim Ara v. State of Uttar Pradesh (‘Shamim Ara’)4 are analyzed. Part VII summarises the various arguments advanced before the Supreme Court. Finally, in the last part, I come back to explore whether a conditional nikahnama with adequate protective clauses written into it can be a way forward from the current stalemate. I conclude by raising a contentious question – whether the campaign against triple talaq by women’s groups provided the much-needed handle for a right-wing government, with its stated anti-Muslim agenda, to bring in a statute which will change the essential character of the Muslim Personal Law which the community considers an integral marker of its identity.

     

    II. The Tightrope Walk

    The suo motu (on its own) reference to constitute a special bench to examine discriminatory practices of Muslim law such as polygamy and triple talaq, was made by a two-judge bench comprising of Justices Anil Dave5 and Arun Kumar Goel, in Prakash v. Phulawati (‘Prakash’)6 on October 16, 2015 while deciding an appeal concerning the rights of a Hindu woman to ancestral property. In an unprecedented manner, responding to stray comments by an advocate present in court and relying upon some articles in the press, the judges made a reference to the Chief Justice to constitute a special bench to examine discriminatory practices which violate the fundamental rights of Muslim women. This came to be titled as Re: Muslim Women’s Quest for Equality.7

     

    The Constitutional Bench headed by Chief Justice J. S. Khehar heard the arguments in this matter along with four other judges Justices Kurien Joseph, R. F. Nariman, U. U. Lalit and Abdul Nazeer, on the days of May 11-18, 2017 during the summer vacation. Appreciating the strategy of placing four minority-community judges on a five-judge bench, Prof. Tahir Mahmood, an expert on Islamic law, has commented that such a move was needed since the unruly media debates had given the issue the colour of a majority-minority tussle.8 In the same spirit, the bench also declined to examine polygamy and confined the arguments strictly to the question – whether instant triple talaq constitutes a core belief among Sunni Hanafi followers of Islam in India.9

     

    Tagged along with original reference were several subsequent writ petitions/intervener applications by individual Muslim women, Muslim women’s organisations including the RSS affiliated Rashtrawadi Muslim Mahila Sangh, the All India Muslim Personal Law Board (‘AIMPLB’)10 and other associate organisations such as the Jamiat Ulama-i-Hind, the All India Muslim Women’s Personal Law Board, etc.

     

    The hearing aroused a great deal of public interest, as the packed court room even while the court was on summer vacation and the extensive reporting of the case each day indicate. This is not surprising considering that the issue had received wide media publicity since the time it first hit the news headlines around two years ago when at a press conference, the Bharatiya Muslim Mahila Andholan published a study of 4710 women and came out with the press statement that triple talaq and polygamy are the primary concerns of Muslim women, not just of those who took part in the survey, but Muslim women in India, overriding concerns regarding poverty, illiteracy and marginalization.11

     

    According to Abusaleh Shariff and Syed Khalid, the publicity that the issue received is next only to demonetization which affected majority of Indians while the issue of triple talaq affected a miniscule minority of Muslims.12 A recent survey conducted by the New Delhi-based Centre for Research and Debates in Development Policy (CRDDP) and relied upon by these authors, states that out of 331 divorces from among women and men, about a quarter occurred through the intervention of religious institutions such as the qazi and darulqaza and only one respondent or 0.3 per cent of the total group studied reported oral, instant ‘triple talaq in one go’.13

     

    Commenting upon the manner in which this issue was used by the Prime Minister during the election campaign in Uttar Pradesh, the authors, relying upon the 2011 Census data brought out the fact that the number of deserted Hindu women who live in deplorable conditions, far exceeds the number of Muslim divorcees and deserted women. The numbers are staggering – out of 2.3 million separated and abandoned women, around two million are Hindus, as against 2.8 lakhs Muslims.14 And yet no attention is paid to them, even while the Prime Minister was lamenting over the plight of Muslim divorcees. They also pointed out that despite the hype, divorce among Muslims is much lower than in the majority community. However, they conceded that divorcees and deserted women face destitution, loss of rights and social stigma. However, it is not a unique problem of the Muslim community but a more pervasive social problem located within patriarchy.

     

    It needs to be emphasised here, as those who have campaigned for abolition of arbitrary triple talaq have repeatedly urged, numbers are insignificant. Even if a few women are divorced in an arbitrary manner, it still constitutes violation of their fundamental rights. What is being opposed here is the right of a Muslim husband to use his power of divorce in an arbitrary manner against a defenseless woman and the lack of a corresponding right for the woman which amounts to gender discrimination.15

     

    However, giving the issue communal flavour, the then newly appointed Chief Minister of Uttar Pradesh, Yogi Adityanath compared triple talaq to the disrobing of Draupadi.16Another one of his cabinet colleagues, Swami Prasad Maurya, commented that Muslims resort to talaq to keep "changing wives" to "satisfy their lust" and leave their wives to beg on the street which aroused the wrath of members of the Muslim Women’s Personal Law Board who demanded his resignation.17

     

    The fact that this group has also been campaigning for abolition of triple talaq and has intervened in the Supreme Court reflects the tightrope walk Muslim women who are demanding a change in their personal laws are faced with, when a right-wing anti-Muslim government is in power. In this situation, the ideal solution would be, by adopting the policy of ‘reform from within’, for the Muslim Personal Law Board to come out with a clear statement that arbitrary and instant triple talaq is unquranic and hence invalid and that all divorces must only be through talaq-e-ahasan mode.18 This would send a clear message to the entire Muslim community. The Board’s refusal to come out with such a statement has led to the current stalemate where the Supreme Court must now intervene and declare the law. The task is not easy, and as some lawyers commented during the hearing, it is like walking on a razor’s edge.

     

    III. Can Instant Triple Talaq be Restrained through a Clause in the Nikahnama, Queries the Chief Justice

    During the six day marathon hearing, everyone from the presiding judges on the bench, to lawyers who thronged the packed court hall, to reporters jostling to get an exclusive byte learnt a great deal about the pristine Muslim law sahi Hadith to unauthentic Hadith and the grammar for determining it, which English translation of the Quran was authentic and the exact Quranic verses which dealt with the procedure for talaq. It was as though everyone was in a time-warp, in seventh century Arabia. The core concerns of modern Muslim women of faith who are an integral part of their community, the marginalized and the middle class, slipped through the crevices.

     

    As against the polarities between Sunni-Hanafi Ulama of the AIMPLB, and the progressive Islamic scholars who battled it out to convince the bench of the accurate Islamic law, was the modernist approach of the attorney general, Mukul Rohatgi. He argued that the only way gender justice can be secured was to enact a law and bring all talaq (not just triple talaq) under judicial scrutiny.19 He did not pause to reflect on the situation of Hindu women under a codified Hindu law, since that was not an issue before the court.

    A surprise was in store. At the end of the marathon discourse, the Chief Justice enquired with Kapil Sibal representing the conservative AIMPLB, whether it was possible to include within the marriage contract (nikahnama) a clause stipulating that the husband shall not pronounce arbitrary triple talaq, and directed the Board to file an affidavit to this effect.20

     

    This has helped to bring the debate to the contemporary and to highlight the progressive nature of a Muslim marriage which is conceived as a contract from its very inception. Hence conditions can be incorporated into the marriage deed to secure the rights of the woman, an unequal partner within the normative patriarchal marriage. This right is not available to a Hindu woman, as despite codification, Hindu marriages continue to be viewed as sacrament with Brahminical rituals like vivaha homa,21 saptapadi22 and kanyadhan23 forming its core essentials.24 This was a welcome move for Majlis25 since our written submissions filed in court included the format of a standard nikahnama which, we felt, can go a long way in securing the rights of Muslim women.26

     

    IV.The Complex Terrain of Personal Laws in India

    Before proceeding further, perhaps there is a need to explain the complex terrain of family laws in India. Within the framework of legal plurality prevailing in India, an optional civil law of marriage coexists harmoniously with religion-based family laws and customary practices. The aspiration to bring in a secular and uniform family law is articulated in Article 44 of the Constitution – “The State shall endeavour to enact a uniform civil code” which is merely a directive principle of state policy.27 As against this, there are two contesting claims which are enforceable and justiciable fundamental rights – gender equality and non-discrimination (Articles 14-15) and right to religious freedom and cultural identity (Articles 25-30).28 The complex terrain of religion based personal laws (which govern marriage, divorce, maintenance, guardianship, adoption, succession, etc.) situated within the rubric of multiculturalism and legal pluralism, is often in conflict with notions of secularism and gender equality.29

     

    The watershed for this type of polarisation between gender equality and religious freedom is the controversial ruling in Mohd. Ahmed Khan v. Shahbano Begam (‘Shahbano’)30 in 1985. The unwarranted comments against Islam and the Prophet and the call for enacting a Uniform Civil Code (‘UCC’), while deciding the rights of a Muslim woman under a secular statute, led to a backlash within the conservative Muslim religious leadership. Relenting to the pressure mounted by the orthodoxy, the government enacted the Muslim Women's Act (‘MWA’)31 to exclude divorced Muslim women from the purview of the secular law of maintenance for destitute wives (§125 of the Criminal Procedure Code (‘Cr.PC’)). This move by the ruling Congress Party came to be viewed as a blatant violation of secular principles and gender justice in favour of sectarian ‘vote-bank politics’.

     

    The move to enact this law met with severe opposition, not only from Hindu right-wing parties, but also from secular and women's rights groups. As the debate progressed, the media projected two insular, mutually exclusive and polarised positions: those who opposed the new Act and supported the demand for a UCC were viewed as modern, secular and rational, and those who opposed the UCC as fundamentalist, orthodox, male chauvinist, communal and obscurantist. This left no space for articulating shades of grey. Muslims, in turn, were mobilised to view this as yet another threat to their tenuous identity.32 The rigid approach of the conservative Muslim religious leadership provided further fuel to Hindu nationalists in their anti-Muslim propaganda and resulted in strengthening the Muslim appeasement theory within the Indian polity.

     

    However, certain political events which occurred during the decades following the Shahbano ruling led many rights based secular groups to change their earlier demand for a UCC as a means of ensuring gender justice. The demolition of the 400 year old mosque, the Babri Masjid, in 1992 despite an assurance to the Supreme Court to the contrary, and the riots across India which resulted in loss of life and property of Muslims, the gruesome sexual violence inflicted upon Muslim women during the Gujarat carnage of 2002 where around 3000 Muslims were killed, attacks on Christian churches in tribal areas of Dang (Gujarat-2005) and Khandamal (Orissa-2008), the riots in Muzaffarnagar (U.P.-2013), the continued escalation of violence in Kashmir since 2010 where thousands of civilian lives have been lost, and the manner in which the right wing political party, the Bharatiya Janata Party (BJP) used the demand for a UCC as a stick to beat the Muslim minority with –  are major contributing factors that necessitated a re-examination of the earlier call for a UCC. Rather than an all-encompassing uniform code, concepts such as ‘reform from within’ and a gradual ‘step-by-step approach’ gained currency as a viable strategy to secure gender justice.33

     

    V.The Rising Wave of Hindu Fundamentalism

    Since the NDA coalition government led by BJP came to power dislodging the earlier UPA coalition led by the Indian National Congress (perceived by minorities as a more secular and inclusive party) in 2014, Hindu fundamentalism has escalated to a new height. The extreme right-wing outfit, Rashtriya Swayamsevak Sangh (‘RSS’) provides the present regime its ideological mooring of building a Hindu Rashtra (nation). Within this political framing, the projection of Muslim as anti-national, terrorist and enemy of the Hindu nation, has gained credence and the secular fabric of the country has been fractured. The forces of communalism have spread far and wide and have taken roots even among the middle and lower classes. The recent Uttar Pradesh elections (2017) have given a boost to the party as it gained power with a thumping majority dislodging the Samajwadi Party which gave Muslims a voice. The choice of Yogi Adityanath, a member of the RSS and an avowed Muslim hater, as Chief Minister, has served to highlight the extent to which the majority vote could be mobilised around an anti-Muslim agenda. It is interesting to note that the BJP did not field a single Muslim candidate and the number of Muslims in the state legislature reduced from seventy-four in 2012 to a mere twenty-four in 2017.34

     

    It appears that under the present regime, Muslims as a political identity have ceased to matter. The huge Muslim population of about 200 million is passing through a most difficult phase. A deluge of anti-Muslim tirades, in the form of love jihad,35 ghar wapasi36 and cow vigilantism, have been unleashed upon the largely poor, uneducated and deeply religious community. The beef ban and the more recent ban against cattle slaughter has led to the loss of trade and livelihood of large sections of Muslims. The ascendance of the holy cow into the political arena has given rise to cow vigilantism with gaurakshak squads roaming the countryside posing a grave risk to the lives of ordinary Muslims. The lynching of fifty-year old Mohammed Akhlaq at Dadri in Uttar Pradesh, by a mob of a 100 gau rakshaks just a few kilometers away from the capital city in September, 2015 and the Prime Minister’s refusal to make a public statement condemning the action of such unruly mobs came in for sharp criticism from secular sections of society.37 Since then there have been several other such mob killings in different North Indian states.38 The latest is the stabbing of a young fifteen-year old boy in the Delhi Mathura local train on June 22, 2017 during the holy month of Ramzan.39

     

    These brutal killings of Muslims by violent mobs have failed to interrupt the routine business of our legislatures. They have not stirred the collective social and political conscience of a society meant to be governed by the rule of law. According to Apoorv Anand, a human rights activist and scholar, the harsh truth is that India’s legislators and parliamentarians seem to have deserted the country’s Muslims.40 However, after the latest spate of killings, spontaneous protests were organized by secular and human rights groups in most major cities of India under the slogan, not in my name.

     

    It is against this political backdrop of Muslims being pushed to the status of second class citizens that we must examine the exaggerated interest in the issue of triple talaq by the media and the government’s eagerness to reform the Muslim Personal Law. While the lynching of Muslims did not arouse public conscience, triple talaq which hit the news headlines around the same time, witnessed unprecedented media publicity. This makes one wonder whether non-reporting of lynchings and heightened publicity given to triple talaq form two sides of the same coin, of treating Muslims as the ‘other’ which then feeds into the global phenomenon of Islamophobia.41

     

    VI.Non-Reporting of Historic Judgement – Danial Latifi

    At this point, I must come back to the controversial Muslim Women's Act ('MWA') enacted as a response to the Shahbano42 ruling. Despite its negative projection, the Act was of immense historical significance as it was the first attempt in independent India to codify a part of Muslim Personal Law. But the positions across the divide were so rigid that there was no space to reflect upon this milestone. Since it was enacted amidst protests from women’s rights groups and progressive social organisations, it was viewed with suspicion and foreboding. Hence, the first response of the protesting groups was to challenge its constitutionality, rather than examine its viability.

     

    However, while writ petitions filed by these groups were pending in the Supreme Court, the controversial Act gradually began to unfold in the lower courts. When a Muslim woman approached the court to claim maintenance under §125 Cr.PC, the usual ploy adopted by the husband’s lawyer, was to enclose a talaqnama (deed of divorce) along with the reply to the petition, under the mistaken notion that the new Act has absolved the husband of his liability of paying maintenance to his divorced wife beyond the iddat period.43 But in a curious role reversal, the courts started awarding the divorced wife a lump sum settlement as per the provisions of the new Act.

     

    The first significant order was by a woman magistrate, Rekha Dixit of Lucknow in January, 1988 when she granted Fahmida Sardar INR 85,000 (inclusive of maintenance for the iddat period, her mehr amount and a sum of INR 30,000 as “reasonable and fair provision” under the new Act).44 This was a quantum leap from the meager amount of INR 179 which was awarded to Shahbano as monthly maintenance under §125 Cr.PC.

     

    From 1988 onwards, high courts one after another upheld significant amounts of lump sum settlements awarded to wives by trial courts. Aggrieved by these orders, the husbands started filing appeals in the Supreme Court to reverse these orders. Curiously these appeals started accumulating in the Supreme Court alongside the writ petitions filed by secular groups to strike down the statute as unconstitutional.

     

    The final moment of reckoning came when the Constitutional Bench (five judges) ruling in 2001, Danial Latifi45 resolved the controversy and declared that the Act is constitutionally valid and simultaneously upheld the right of divorced Muslim women to lump sum amounts as ‘fair and reasonable settlements’ from their former husbands.

     

    In the ultimate analysis, both sides – the secular groups pleading for the Act to be stuck down as unconstitutional and husbands who sought reversal of orders passed by High Courts – lost. Divorced Muslim women who had waged a relentless battle to defend their precious economic rights from the magistrate’s court to the final authority of adjudication, the Supreme Court, emerged victorious. The Muslim woman secured for herself the right to determine her economic rights at the time of the divorce and get a lump sum settlement, a right, which is lacking in matrimonial laws of other communities.

     

    However, within the communally vitiated atmosphere prevailing in the country, the advances made by divorced Muslim women under MWA did not attract the media attention. Ignoring the historical judgment, the media continued to project the view that after the enactment of MWA, Muslim women have no rights to post-divorce maintenance/settlements. Due to this, even scholars, lawyers, feminists and activists are ignorant of the significant gains secured by individual Muslim women. This has done the greatest harm to the cause of Muslim women’s rights as lawyers kept advising their male clients that all they need to do is to draw up a talaqnama and send it by post when a deserted wife files for maintenance in a court. Most often, not just the wife’s lawyer but even the presiding judge is ignorant of the historical judgement which results in loss of rights to the aggrieved woman.

     

    VII. The Making of Shayara Bano and the Legal Precedent in Shamim Ara

    As we return to the present, it is important to analyse one of the first petitions filed by a Muslim woman, Shayara Bano who is hailed as the champion of Muslim women.

    Soon after the reference to the Chief Justice was made, a BJP activist Ashwini Upadhyay filed a petition pleading for the enactment of a UCC. When the petition came up before the bench presided over by the then Chief Justice T. S. Thakur, it was dismissed on the ground that this prayer falls squarely within the domain of the legislature.46 The Chief Justice also questioned the petitioner’s motive in filing the petition. However, the bench assured that if a victim of triple talaq approaches the court, it would examine whether instant and arbitrary triple talaq violated the fundamental rights of the wife.

    So, by the time Shayara Bano approached Balaji Srinivasan, the ground for filing the writ petition was laid and the mantle of being a crusader for the cause of Muslim women’s rights fell upon her shoulders. It is interesting to examine the background of this case. Initially, Bano’s brother had contacted a local lawyer for filing a transfer petition in the Supreme Court to transfer the case filed by her husband in the family court at Allahabad, for restitution of conjugal rights (in effect, to ask her to return to the matrimonial home - a far cry from ‘instant triple talaq’), to her native place in Kashipur, who, in turn, referred them to Srinivasan to file a transfer petition in the Supreme Court.47

    Since Bano did not want to return to her husband and instead, wanted to contest the case, to bring to an end the contentious litigation, the husband’s lawyer resorted to the frequently used device, drew up a talaqnama and sent it to Bano by post. When this was brought to the notice of Srinivasan, he advised them to file a PIL on the ground that the talaqnama violated her dignity, though Shayara Bano has consistently maintained that she does not wish to return to her abusive husband. In an interview, Srinivasan stated that while he knew it would be a big case, the publicity it received far surpassed his own expectations. However, Bano’s core concerns – protection from domestic violence, access to her children, regular monthly maintenance, and a fair and reasonable settlement for the future – issues which had to be litigated in the local court, under relevant statutes – the Domestic Violence Act and the MWA appear to have remained unaddressed.

    Subsequently, several more aggrieved women as well as various Muslim women’s organisations approached the Supreme Court. It was rather strange that during this entire period, the media continued to project that Muslim women are devoid of rights rather than dwell upon the entire judicial discourse which had held instant and arbitrary triple talaq invalid.

     

    In 2002, in a landmark ruling Shamim Ara v. State of Uttar Pradesh,48 the Supreme Court invalidated arbitrary triple talaq and held that a mere plea of talaq in reply to the proceedings filed by the wife for maintenance cannot be treated as a pronouncement of talaq and the liability of the husband to pay maintenance to his wife does not come to an end through such communication. In order for a divorce to be valid, talaq has to be pronounced as per the Quranic injunction. In the same year, a full bench in the Bombay High Court in Dagdu Chotu Pathan v. Rahimbi49 had held that a Muslim husband cannot repudiate the marriage at will. The court relied upon the Quranic stipulation: “To divorce the wife without reason, only to harm her or to avenge her for resisting the husband’s unlawful demands and to divorce her in violation of the procedure prescribed by the Shariat is haram”. All stages – conveying the reasons for divorce, appointment of arbitrators, and conciliation proceedings between the parties – are required to be proved when the wife disputes the fact of talaq before a competent court. A mere statement in writing or oral deposition before the court about a talaq given in the past is not sufficient to prove the fact of a valid talaq.

     

    These judgments in turn relied upon two earlier judgments of Justice Baharul Islam pronounced in 1981 while presiding over the Gauhati High Court – Sri Jiauddin v. Anwara Begum and Rukia Khatun v. Abdul Khalique Laskar which had declared:

     

    “The correct law of talaq as ordained by Holy Quran is: (i) talaq must be for a reasonable cause; and (ii) it must be preceded by an attempt at reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, talaq may be effected.”50

     

    Following Shamim Ara, there were a plethora of verdicts which declared instant triple talaq invalid and safeguarded the rights of women approaching the courts for maintenance.51 So this had become the settled position of law. However, the media continued to project the view that once the husband pronounces talaq, the wife is stripped of all her rights. It is due to the selective amnesia regarding the earlier struggles of Muslim women, the petition filed by Srinivasan came to be hailed as the first instance where a Muslim woman had challenged the validity of instant triple talaq.

     

    VIII. A Gist of the Various Arguments Advanced before the Supreme Court

    Against the backdrop of judicial pronouncements leading up to the present hearing, I now examine the various strands of arguments advanced before the Constitutional Bench.

    The first, as already pointed out, is the argument advanced by Mukul Rohatgi on behalf of the government seeking a total ban on all talaqs. When asked how Muslim husbands will divorce their wives, the Attorney General’s prompt response: “You ban it today, and we will bring in a new law tomorrow.”52 He argued that it was not a majority-minority issue but an intra-community gender equality issue. The government’s eagerness to abolish the prevailing Muslim law, which the community considers as a marker of its identity, and bring in a statute enacted through Parliament was clearly on display.

    The Bebaak Collective (a recent collective of secular women’s rights / feminists organisations) represented by senior counsel Indira Jaising, pleaded that all personal laws must be tested against the touchstone of fundamental rights. However, she made an attempt to distinguish her position from that of the AG representing the right wing political regime by stating that in certain aspects Muslim law is better than the Hindu law and that it is not a Muslim issue but the concern of fifty per cent of the Indian population. She argued that marriage is a status and a right in rem (against the whole world, not just a personal right against the husband) and for a woman divorce is equivalent to civil death.53 She too pleaded that all divorces must take place under “judicial oversight” and the prevailing practices of talaq and khula in informal adjudicational fora such as darul qazas must be stopped.

    Advocate Farah Faiz, President of the RSS affiliated Rashtrawadi Muslim Mahila Sangh, who appeared in person pleaded that Shariat is interpreted as per the “whims and fancies of the local ulema”.54 Women are dependent on half-baked maulanas, muftis and qazis who sort out problems in their own way.55 She demanded setting up of a high-level committee comprising of scholars and academicians, but not clergymen, to deliberate upon a new statute for addressing issues of marriage and divorce among Muslims.

    Despite their different ideological locations, the moot point argued by this group was for the enactment of a new statute to regulate Muslim marriages and divorces.

    The second position advanced by various Muslim women’s groups was to declare triple talaq as one pronouncement, as held by the Delhi high court in 2008 in the Masroor Ahmed v. State (NCT of Delhi).56 They pleaded the point, which had been advanced by me earlier since Shayara Bano had filed her petition, that the Supreme Court ruling of 2002 in Shamim Ara had already laid down the procedure for pronouncement of talaq and the same must be affirmed.57

    Mr. Arif Mohammed Khan and Mr. Salman Khurshid, experts on the pristine Muslim law argued that ‘what is bad in theology can never be good in law and cannot be considered as an integral part of Islam’ and sought judicial intervention to invalidate instant triple talaq.58 The lawyers representing Bharatiya Muslim Mahila Andolan (‘BMMA’), adopting a cautious approach of minimalist intervention argued that since the law has already been declared, the test of constitutionality is unwarranted. This was a great comedown for BMMA which had written a letter to the Prime Minister in November, 2015 asking the government to codify the Muslim Personal Law.59 Mr. M. Venkaiah Naidu,60 a cabinet colleague of the Prime Minister, in July, 2016 had relied on this letter to argue in favour of UCC.61 However, in court, they diluted their earlier position and did not plead in favour of enacting a new statute.

    The third was the argument advanced by Mr. Kapil Sibal for the AIMPLB, who pleaded that matters of faith and belief cannot be tested against Articles 14 and 15 (equality and non-discrimination) of the Constitution as they are protected under Articles 25 and 26, which are also fundamental rights. Mr. Sibal queried that when instances of arbitrary triple talaq are rare, what was the need for a suo moto reference, and pointed out that the AIMPLB had already come out with an elaborate eight-point procedure for talaq and issued an advisory to all Qazis to this effect. He concluded his arguments with the analogy of the golden eagle which flies in the Alaskan skies, preying on the little birds below. The birds protect themselves by building their little nests. He compared the minority community to these little birds which have come with great faith to the Supreme Court to protect their little nests – their tradition and culture – from the golden eagle preying upon them and permit them to bring reform from within, which is the constitutional guarantee given to them."Our faith in this court for last 67 years is fundamental and with that faith we have come here," he concluded.62

     

    The three positions can be summed up as:

     Statutory intervention – declare triple talaq unconstitutional and pave the way for the government to enact a new law.

     Judicial intervention – Uphold the Quranic procedure declared by Shamim Ara that all divorces must be through talaq-e-ahasan mode over a three month period after making attempts at reconciliation.

     Reform from within – Internal reforms through the intervention of the AIMPLB.

    The Supreme Court, in its wisdom, may arrive at solutions, which may have different permutations and combinations of the above or prescribe a totally different solution beyond the three positions mentioned above. The decision of the Constitutional Bench, is binding on all parties. However, within a communally vitiated political climate, the task of weeding out discriminatory practices of Muslim law tends to be extremely challenging and there are no easy solutions.63

     

    The demand for a new statute is problematic under the current political regime with its stated anti-Muslim agenda. In a recent article Mr. Mani Shankar Aiyar, a former Congress Member of Parliament asked a pertinent question, whether this government with the lowest Muslim representation, just 4.2%, has the moral authority to legislate on matters governing family relationships, which the community considers are important markers of its identity.64 Even if the government enacts the law, the rights would have to be secured through a lengthy process of litigation in a family court which may well be beyond the reach of most Muslim women who are poor, illiterate and marginalised.65

     

    It is also not clear whether by the word ‘ban’ or ‘abolish’ the campaigning groups are expecting an amendment to the criminal statute rendering uttering of triple talaq a criminal offence. Even here, the complainant would have to go through the rigour of a criminal prosecution to punish her errant husband and few Muslim women would have the enduring power to pursue such litigation.66 By then the marriage would have been irretrievably broken down anyway. And if deserting the wife is not a criminal offence, discarding her through triple talaq be construed as one, when the impact of both upon victims is similar?

    Even if the Supreme Court declares the law regarding the proper procedure for divorce, if the family and community believes that such a divorce is valid, it will be difficult for the woman to enforce her rights as a married woman, because she too may believe that it is haram (sinful) to continue conjugal relationships after the pronouncement of triple talaq.67

     

    Moreover, this right already exists after the Shamim Ara ruling since 2002, and every arbitrary pronouncement of triple talaq can be challenged in court, but as activists of BMMA have pointed out it is not easy for a poor Muslim woman to approach the court for enforcement of her right.

     

    Regarding the third position, I have already pointed out that the Board’s refusal to come out with a clear statement invalidating triple talaq has led to the current stalemate. The advisory issued to the Qazi may not bring the required change.

     

     

    IX. The Way Forward A Standard Nikahnama with Protective Clauses

    There are many who think that it will be a simple task for the Supreme Court to strike down triple talaq or declare it unconstitutional and change will automatically follow. However, even if the government brings in a new statute and “bans” or criminalises triple talaq, it may not be adequate to bring in reforms on the ground and reach it to the lowest social denominator. If the religious leaders reject the changes, or boycott the reforms, it will be difficult for individual women to enforce the law and the changes will remain at a cosmetic level, rendering the entire exercise futile.

     

    In order for changes envisaged at the highest level to be effective at the lowest level it is necessary to bring the religious leaders on board and make them stake holders in the process so that the impact of the changes can be more effective. It is in this context the question that the Chief Justice posed to the religious leaders to bring in change through their own internal mechanisms becomes relevant.

     

    The contractual character of a Muslim marriage permits conditions to be included in the nikahnama for protecting the rights of women specially safeguarding their economic rights, prohibiting the husband from pronouncing instant triple talaq and from entering into a bigamous marriage. According to Ameer Ali, a renowned Islamic jurist, the following agreements in a marriage contract are held to be enforceable in a court of law:

     

     The husband will not contract a second marriage during the subsistence of the first;

     The husband will not remove the wife from the conjugal domicile (matrimonial home) without her consent;

     The husband will not absent himself from the conjugal domicile beyond a certain period;

     The husband and wife will live in a specified place;

     A certain amount of dower will be payable immediately after marriage or within a stipulated period;

     The husband will pay the wife a fix sum of maintenance

     The husband will maintain the children of the wife from her former husband;

     The husband will not prevent the wife from receiving visits from her relations whenever she likes.68

    There have been several instances of such nikahnamas being used during the British period by Muslim families of repute. Even though in some cases, it was argued on behalf of the husband that such agreements are against public policy, the courts validated them and held them to be enforceable since the Muslim marriages were contractual in nature and conditions could be stipulated at the time of entering into the contract.  

    This suggestion receives support from Faizan Mustafa, where he argues that:

    “The marriage contract or nikahnama (prenuptial contracts) is the easy solution to the problems at hand — polygamy, triple divorce and halala. The historian Shireen Moosvi has collected several marriage contracts of the Mughal period which demonstrate a uniform pattern of the conditions of nikahnama.”69

     

    Since the custom of stipulating such conditions have not been in much use after independence, efforts were made by various NGOs to introduce model nikahnamas. But due to their limited reach, these private efforts have not been effective. But now, since the Board has been asked to file an affidavit to this effect, they cannot shirk away from their responsibilities and they would have to send a message to all local qazis who perform marriages that the nikahnama that will be used must essentially have the condition as stipulated by the Supreme Court or else it will amount to contempt of court.

    The effectiveness of this transformative solution will also depend upon the extent to which NGOs working on the ground are able to act as watchdogs and ensure that the local qazi abides by the advisory issued by the AIMPLB. If they don’t, it will amount to contempt of court.

     

    This is only the beginning. Once the concept of a conditional nikahnama catches up, women will be in a position to add more conditions as per their specific requirements. This will prove to be an effective mechanism to protect women against instantaneous and arbitrary triple talaq, the practice of polygamy and also protect them against domestic violence. Such a nikahnama will not violate the essential character of a Muslim marriage being a contract between two consenting parties. Adding conditions for protection of the wife during her matrimonial life does not in any way violate provision of equality under Article 14 as it is protected under Article 15(3). Such conditions were deemed to be necessary because of the overarching power a husband has, in all patriarchal cultures.

     

    Even this by itself, may not sufficiently secure the rights of a Muslim wife. For more lasting impact, along with the ‘standard nikahnama, it is important to create sufficient legal awareness about the rights of Muslim women and their ability to negotiate for these rights in judicial or non-judicial fora. The failure to create awareness about their rights renders Muslim women vulnerable to domestic violence and results in loss of crucial rights. Though there are several statutes which protect the rights of Muslim women, including divorced Muslim women, due to lack of awareness, the Muslim women from poor and marginalised sections are unable to avail of the remedies which they are entitled to.

     

    There is an urgent need to focus upon awareness of rights to ensure that important information about legal rights filters down to all women, particularly to the poor and marginalized who suffer blatant violation of their human rights and become victims of brutal domestic and sexual violence. Due to their poverty, illiteracy and low socio-economic status they become easy victims of exploitation by vested interests. Only when women become aware of their rights will they be able to protect them. Hence spreading legal awareness is critical– particularlyabout a standard nikahnama that women can use at the time of their marriage to protect them against instant and arbitrary triple talaq.

     

    X. Conclusion

    As already stated, a letter written by Zakia Soman and Noorjehan Niaz, the founders of BMMA to the Prime Minister in November, 2015, was relied upon extensively by Mr. Naidu, to support the demand for enacting a UCC, (which he referred to as ‘common civil code’, a term used by the RSS) though the letter was confined to asking the Prime Minister to codify the Muslim Personal Law as per the Quranic provisions. Below is an excerpt:

    “From Shah Bano to Shayara Bano, who recently filed a PIL in the Supreme Court, the focus has been on gender-friendly reforms of Personal Laws. With changing times, the need has arisen for having a Common Civil Code for all citizens, irrespective of religion, ensuring that their fundamental and constitutional rights are protected. […] While emphasising that the foundations of secularism would only get further strengthened by introducing a Common Civil Code, I would like to recall the words of Mahatma Gandhi: “I do not expect India of my dreams to develop one religion, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant, with its religions working side-by-side with one another. With the government seeking the opinion of the Law Commission to examine all aspects pertaining to Uniform Civil Code, the time has come for an enlightened debate in the country to arrive at a consensus at the earliest.”70

    This message of a tolerant India sounds hollow in the context of the current political reality of lynching of Muslims that occurs every other day. Neither Mr. Naidu nor any of his cabinet colleagues have come out with a clear statement condemning such acts or preventing such venom from spreading and rupturing the secular fabric of the nation.

    As mentioned in the article, soon thereafter, to test the waters, the Law Commission of India came out with a questionnaire to seek public responses to the enactment of a UCC, which was criticised not only by Muslims but also other minorities, tribals and secular groups. So the government retracted from perusing this further.71

    Thereafter, a realisation seemed to have dawned that there was no need to broach the contentious topic of UCC since gender discrepancies within Hindu laws would have to be examined, since the letter to the Prime Minister had given a handle to the government to tinker with the religious law of Muslims through statutory reform. Earlier it was perceived that this could only be done by invoking the Constitutional provision of Article 44 – “The State shall endeavour to enact a uniform civil code” and without this mandate, it would be difficult to circumvent the protection given to minorities under Articles 25-26. Since in any case, the underlying motive of UCC was to use it as a stick to beat the Muslim with, the purpose would be better served by reforming Muslim Personal Law. Since then, no BJP leader has raised the issue of UCC.

    The comments of the Prime Minister, the UP Chief Minister and other ministers clearly show how effectively BJP used the issue of triple talaq as a political agenda, and they could do it with a clear conscience. They were not doing it suo motu – the demand had come from Muslim women themselves, from within the community.

    Though BMMA diluted its position in Court and did not press for statutory reforms, this shift ceased to matter politically, since two other organisations – the RSS affiliated Rashtrawadi Muslim Mahila Sangh and the secular-feminist Bebaak Collective, though speaking from two different locations, stepped in to take its place. In fact, the Bebaak position is not just for reform of Muslim personal law but for a gender just UCC along the lines of what Mr. Naidu had stated in his article in July, 2016.

    The reference made by judges in Prakash and the PIL filed by Shayara Bano only served to further boost the BJP’s agenda and keep the issue on the boil. It is indeed interesting to read the comments by Mr. Naidu on the very next date of the conclusion of the hearing that if the Supreme Court does not strike down triple talaq the government will bring in the law.72 The Minister justified this by stating that the government was not trying to “interfere” with personal matters but trying to ensure justice to women and equality before the law.

     

    So, each one became a pawn in the hands of the anti-Muslim government, in its master plan of legislating for Muslims in the name of gender justice.

    I am reminded of Zakia Pathak and Rajeshwari Sunder Rajan’s famous essay, "Shahbano" – to justify the bizarre and sinister formulation, “Hindu men are saving Muslim women from Muslim men”,73 the Muslim woman must invariably be projected as devoid of rights and lacking agency, and the Muslim male, pre-modern, lustful, polygamous and barbaric. This formulation alone provides the moral high ground for an anti-Muslim government to adorn the mantle of saving “Muslim sisters”.74 It is this scary formulation which compelled Shahbano to relinquish her claim to maintenance in 1985 and assert her Muslim identity as opposed to her claims of gender justice. Faced with a similar dilemma, it is anyone’s guess how the ordinary burqa clad Muslim woman of faith will respond to this intervention which is being hoisted in her name. Sherin (cited above) sums up the current dilemma:

     

    “A viable feminist approach cannot de-historicize Muslim woman as a transcendental subject of gender negating her immediate religious and political realities. Gender is always contingent; located historically, materially and socially. Under the current realities of Muslim existence in India, clamour for gender justice for Muslim women cannot exclude Muslim men as part of their community identity and as equal participants in their political destiny. The faith Muslims attempt to protect is not an a historical spirituality, but the spirituality whose symbolic markers are constantly wiped out and demolished from the face of the modern nation state.”75

     

    And when the government bring in this law, as one more feather in its cap, in addition to cow vigilantism, ghar wapasi, love jihad, and lynching of Muslims, depriving the community of its last vestige of pride – its personal laws – as a feminist lawyer known for defending the rights of women, all I will be left with, is to categorically state, ‘Not in my Name’.

    1

    *Flavia Agnes is a feminist legal scholar and director of Majlis based in Mumbai which provides litigation support to victims of domestic and sexual violence. She is a proponent of legal pluralism.

    Outlook, Shortcomings in the Truple Talaq Debate, November 6, 2016, available at http://www.outlookindia.com/website/story/shortcomings-in-the-triple-talaq-debate/297366 (Last visited on July 2, 2017).

    2

    Danial Latifi v. Union of India, (2001) 7 SCC 740.

    3

    Shayara Bano v. Union of India, W. P. (Civil) No. 118 of 2016 (S.C.) (Pending).

    4

    Shamim Ara v. State of Uttar Pradesh, AIR 2002 SC 3551.

    5

    Justice Dave was a judge of the Gujarat High Court when Prime Minister Modi was the Chief Minister of the state. He retired in November, 2016. In August 2014, while he was a sitting judge, while speaking at a conference at Gujarat University made the following comment, “Had I been the dictator of India, I would have introduced Gita and Mahabharata in Class I.", which was immediately picked up by the media. See The Indian Express, If I Were Dictator, Would Have Made Gita Compulsory in Class I: SC Judge, August 3, 2014, available at http://indianexpress.com/article/india/india-others/if-i-were-dictator-would-have-made-gita-compulsory-in-class-i-sc-judge (Last visited on July 2, 2017).

    6

    Prakash v. Phulawati, (2016) 2 SCC 36.

    7

    Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015.

    8

    The Indian Express, Ball in the Supreme Court, May 15, 2017, available at http://indianexpress.com/article/opinion/columns/ball-in-the-supreme-court-triple-talaq-4655854/ (Last visited on July 2, 2017).

    9

    Times of India, Supreme Court Begins Triple Talaq Hearing, Says Won’t Touch Polygamy Issue, May 12, 2017, available at http://timesofindia.indiatimes.com/india/supreme-court-begins-triple-talaq-hearing-says-wont-touch-polygamy-issue/articleshow/58635232.cms (Last visited on July 2, 2017). It needs to be clarified that several Shia sects such as Khojas, Bohra, Ismailis, Itna Asharis etc. do not recognize instant triple talaq and have elaborate dispute resolution structures for arbitration in family matters. Even among Sunnis there are sects such as Ahl-e-Hadeez who do not instant recognize triple. However, majority of north Indian Muslim are Hanafis who recognize instant triple talaq. Also, instant triple talaq is not the only form available to a Muslim couple to dissolve the marriage. It is only one of the several forms of dissolving a Muslim marriage. The Muslim law recognizes other forms including the woman’s right to dissolve the marriage – khula, and divorce by mutual consent – mubarra.   

    10

    It is a representative body of Muslims of various denominations, however, it is dominated by clerics of Hanafi sect. Though a non-statutory body, it has great influence over matters of faith among followers of Islam in India.

    11

    TwoCircles.net, Saying Islam gave rights to women 1400 years ago, won’t solve our problems, August 20, 2015 available at http://twocircles.net/2015aug20/1440089863.html (Last visited on July 4, 2017). Also see Islamic Voice, 89% Muslim Women Call for Govt. Intervention to Codify Muslim Personal Law, September 15, 2015, available at http://islamicvoice.com/89-muslim-women-call-for-govt-intervention-to-codify-muslim-personal-law/ (Last visited on July 2, 2017).

    12

    The Indian Express, Unimportance of Triple Talaq, May 29, 2017, available at http://indianexpress.com/article/opinion/columns/unimportance-of-triple-talaq-supreme-court-muslim-law-4678304/(Last visited on July 2, 2017).

    13

    Id.

    14

    The Wire, Abandoned Women Vastly Outnumber Victims of Triple Talaq and It’s Time Modi Spoke Up for Them, December 12, 2016, available at https://thewire.in/86335/abandoned-women-triple-talaq/ (Last visited on July 2, 2017).

    15

    The Wire, Why Triple Talaq Needs to Be Abolished, June 17, 2016, available at http://thewire.in/43481/why-triple-talaq-needs-to-be-abolished/(Last visited on July 2, 2017).

    16

    NDTV, What's at Risk if Triple Talaq is Declared Unconstitutional, June 14, 2017, available at http://www.ndtv.com/opinion/triple-talaq-vs-divorce-among-other-religions-1710918 (Last visited on July 2, 2017).

    17

    News 18, UP Minister Says Muslims Use Triple Talaq to Change Wives, Satisfy 'Lust', April 29, 2017 available at http://www.news18.com/news/politics/up-minister-says-muslims-use-triple-talaq-to-change-wives-satisfy-lust-1387283.html (Last visited on July 2, 2017).

    18

    Over a three month period.

    19

    The Asian Age, Let’s talk about women’s rights, May 23, 2017, available at http://www.asianage.com/opinion/oped/230517/lets-talk-about-womens-rights.html (Last visited on July 2, 2017).

    20

    NDTV, Supreme Court Concludes Triple Talaq Hearings, Reserves Verdict, May 19, 2017, available at http://www.ndtv.com/india-news/supreme-court-concludes-triple-talaq-hearings-reserves-verdict-1695503 (Last visited on July 2, 2017).

    21

    The sacred fire at the wedding ceremony.

    22

    Seven steps round the sacred fire.

    23

    Offering of the bride to the groom; literal meaning: kanya=virgin, dhan=offering.  

    24

    For a detailed discussion on the flaws within the Hindu Law, see Flavia Agnes, Has the Codified Hindu Law Changed Gender Relationships?, 46 Social Change 4, 611 (2016) available at  http://journals.sagepub.com/doi/abs/10.1177/0049085716666635 (Last visited on July 2, 2017).

    25

    Majlis based in Mumbai, provides litigation support to victims of domestic and sexual violence and has conducted extensive research and archiving projects on women’s issues in India.

    26

    Live Law, Triple Talaq: Women’s Rights Activist Flavia Agnes Submits Model Nikahnama Before SC, June 3, 2017, available at http://www.livelaw.in/triple-talaq-womens-rights-activist-flavia-agnes-submits-model-nikahnama-sc/ (Last visited on July 2, 2017).

    27

    The Constitution of India, 1950, Art. 44.

    28

    Id., Art. 14, 15, 25-30.

    29

    See Flavia Agnes, The Supreme Court, the Media and the Uniform Civil Code Debate in India In The Crisis of Secularism in India 294 (Anuradha Dingwaney et al, 2007), for a detailed discussion on this subject.

    30

    Mohd. Ahmed Khan v Shahbano Begam, AIR 1985 SC 945.

    31

    The Muslim Women (Protection of Rights upon Divorce) Act, 1986.

    32

    The partition of the country at independence had left a violent blood bath along the Hindu Muslim communal divide. In the decades following independence, the communal gulf had widened with riots erupting in several places where Muslims had suffered greater loss to life and property. In addition, mobilization of Hindu public opinion for the demand for a Ram Mandir at the site of the 400-year-old mosque, Babri Masjid, had been a constant point of friction. These developments contributed to making the Muslim religious leadership extremely rigid about any interference in their personal laws by a secular court.

    33

    This view is also endorsed by some former High Court judges and legal scholars. See The Hindu, Uniform Civil Code Now is Not the Moment, July 13, 2016, available at http://www.thehindu.com/opinion/lead/k-kannan-on-uniform-civil-code-now-is-not-the-moment/article8840401.ece (Last visited on July 2, 2017); The Hindu, This Reform Must Begin Within, April 27, 2016, available at http://www.thehindu.com/opinion/lead/lead-article-by-syeda-s-hameed-on-public-interest-litigations-this-reform-must-begin-within/article8524648.ece (Last visited on July 2, 2017).

    34

    Faisal Fareed, Hundred Days of Yogi Adityanath and Muslims: Challenging Times Ahead, June 21, 2017 available at http://twocircles.net/2017jun21/411723.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Twocirclesnet-IndianMuslim+%28TwoCircles.net+-+Indian+Muslim+News%29 (Last visited on July 2, 2017).

    35

    The RSS has carried out a systematic propaganda campaign alleging the existence of a Muslim plot to seduce and convert Hindu girls. This term is used to foster a sense of insecurity amongst Hindus and to make ordinary Hindus suspicious against Muslims.

    36

    This term is used by RSS and Vishwa Hindu Parishad (VHP) for religious conversions of non-Hindus to Hinduism.

    37

    BBC News, Why Indian Man Was Lynched Over Beef Rumours, October 1, 2015, available at http://www.bbc.com/news/world-asia-india-34409354 (Last visited on July 2, 2017).

    38

    The Wire, Muslims Must Refuse to Be Killed, April 9, 2017, available athttps://thewire.in/122420/muslims-must-refuse-killed-cow-beef/ (Last visited on July 2, 2017); See The Indian Express, Our Own Animal Farm, May 10, 2017, available at http://indianexpress.com/article/opinion/columns/our-own-animal-farm-cow-protection-narendra-modi-yogi-adityanath-pehlu-khan-4648544/ (Last visited on July 2, 2017).

    39

    The Indian Express, 15-yr-Old Boy Killed, Brother Says Were Called Beef Eaters, June 24, 2017, available at http://indianexpress.com/article/india/18-year-old-stabbed-to-death-they-flung-our-skull-cap-pulled-beard-ballabhgarh-mathura-bound-train-4719096/ (Last visited on July 2, 2017).

    40

    The Wire, supra note 37.

    41

    A term used for prejudice or negative feelings and attitudes towards Islam and Muslims. The term gained wide acceptability in the Western world after the 9/11 attack on the twin towers of the World Trade Centre in New York in 2001.

    42

    Mohd. Ahmed Khan v. Shahbano Begam, AIR 1985 SC 945.

    43

    A period of three months after the first divorce is pronounced.

    44

    Minu Jain, Curious Role Reversal, The Sunday Observer January 24, 1988.

    45

    Danial Latifi v. Union of India, (2001) 7 SCC 740.

    46

    The Times of India, Supreme Court Leaves Uniform Civil Code to Parliament, Door Ajar on Triple Talaq, December 8, 2015, available at http://timesofindia.indiatimes.com/india/Supreme-Court-leaves-uniform-civil-code-to-Parliament-door-ajar-on-triple-talaq/articleshow/50083462.cms (Last visited on July 2, 2017) (India is governed by a constitutional scheme of separation of powers between the three arms of the State – the legislature, the executive and the judiciary. The power of the judiciary is confined to examining the constitutional validity of an act or a rule but it does not have the law making power).

    47

    The Indian Express, Shayara Banu’s Fight Against Triple Talaq, April 24, 2016, available at http://indianexpress.com/article/india/india-news-india/triple-talaq-supreme-court-ban-muslim-india-shayara-banu-2767412/ (Last visited on July 2, 2017); There is not much information available about the case filed by her husband in the Allahabad family court.

    48

    Shamim Ara v. State of Uttar Pradesh, AIR 2002 SC 3551.

    49

    Dagdu Chotu Pathan v. Rahimbi, 2003 (1) BomCR 740.

    50

    Sri Jiauddin v. Anwara Begum, (1981) 1 GLR 358; Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 GLR 375.

    51

    Parveen Akhtar v. Union of India, 2003-1-LW(Crl)115; Najmunbee v. Sk. Sikander Sk. Rehman, I (2004) DMC 211; Mustari Begum v. Mirza Mustaque Baig, II (2005) DMC 94; Shahzad v. Anisa Bee, II (2006) DMC 229; Farida Bano v. Kamruddin, II (2006) DMC 698 MP; Dilshad Begum Pathan v. Ahmad Khan Hanif Khan Pathan, II (2007) DMC 738; Riaz Fatima v. Mohd. Sharif, I (2007) DMC 261; Masroor Ahmed v. State, 2008 (103) DRJ; Shakil Ahmad Jalaluddin Shaikh v. Vahida Shakil Shaikh, MANU/MH/0501/2016.

    52

    See India Today, If Triple Talaq Declared Illegal, Will Bring in Law to Regulate Muslim Marriage, Divorce: AG Mukul Rohatgi to Supreme Court, May 15, 2017, available at http://indiatoday.intoday.in/story/triple-talaq-polygamy-nikah-halala-supreme-court-centre-mukul-rohatgi/1/954030.html (Last visited on July 2, 2017).

    53

    Huffington Post, Triple Talaq: A Ringside Look At The Proceedings In A Major Women's Rights Case, May 12, 2017, available at http://www.huffingtonpost.in/2017/05/12/triple-talaq-a-ringside-view-to-one-of-the-significant-womens_a_22082977/ (Last visited on July 2, 2017).

    54

    Bhadra Sinha,  Muslim woman advocate moves SC against triple talaq, polygamy, Hindustan Times June 2, 2016 available at http://www.hindustantimes.com/india-news/muslim-woman-advocate-moves-sc-against-talaq-polygamy/story-smV6eYolof4RvFzZ7TB6GJ.html (Last visited on July 2, 2017).

    55

    Hindustan Times, Muslim Woman Advocate Moves SC Against Triple Talaq, Polygamy, June 2, 2016, available at http://www.hindustantimes.com/india-news/muslim-woman-advocate-moves-sc-against-talaq-polygamy/story-smV6eYolof4RvFzZ7TB6GJ.html (Last visited on July 2, 2017).

    56

    Masroor Ahmed v. State (NCT of Delhi), 2008 (103) DRJ.

    57

    Flavia Agnes, Muslim Women’s Rights and Media Coverage, 51 EPW 20 (2016), available at http://www.epw.in/journal/2016/20/web-exclusives/muslim-womens-rights-and-media-coverage.html#sthash.DFL3pSfa.dpuf (Last visited on July 2, 2017).

    58

    Mandhani Apoorva, Treat Triple Talaq as one Revocable Talaq: Salman Khurshid to SC, [Read Written Submissions] May 15, 2017 available at http://www.livelaw.in/treat-triple-talaq-one-revocable-talaq-salman-khurshid-sc-read-written-submissions/ (Last visited on July 2, 2017); Arif Mohammed Khan’s position in Kaushika Pragya, Triple talaq be treated as court’s contempt: Arif Mohammad Khan, The Indian Express May 10, 2017 available at http://indianexpress.com/article/india/triple-talaq-be-treated-as-courts-contempt-4648666/ (Last visited on July 2, 2017).

    59

    DNA, Muslim Women Write to PM Modi to Make Triple Talaq, Polygamy Illegal, November 28, 2015, available at http://www.dnaindia.com/mumbai/report-muslim-women-write-to-pm-modi-to-make-triple-talaq-polygamy-illegal-2149650 (Last visited on July 2, 2017).

    60

    Minister for Urban Development and Minister for Information and Broadcasting, Government of India.

    61

    The Hindu, Why Not A Common Civil Code for All?, July 16, 2016, available at http://www.thehindu.com/opinion/lead/Why-not-a-Common-Civil-Code-for-all/article14491018.ece (Last visited on July 2, 2017).

    62

    PTI News India, Kapil Sibal Tells SC Muslims Are Like Small Birds On Which ‘Golden Eagles’ Prey, May 18, 2017, available at https://www.scoopwhoop.com/defending-triple-talaq-kapil-sibal-says-muslims-are-like-small-birds-which-need-scs-protection/#.i1wseata8 (Last visited on July 2, 2017).

    63

    It needs to be pointed out here that despite codification of Hindu laws sixty years ago, and stringent anti-dowry laws enacted nearly four decades ago, discriminatory practices and dowry related violence still persists.

    64

    NDTV, supra note 16.

    65

    The Wire, supra note 15.

    66

    Audrey D’Mello, What Is Wrong with the Demand for a Ban on Triple Talaq, Hindustan Times October 25, 2016 available at http://www.hindustantimes.com/analysis/what-s-wrong-with-the-demand-for-a-ban-on-triple-talaq/story-E3b8Y1KsTnh3BrspAPwy5J.html (Last visited on July 2, 2017).

    67

    Faizan Mustafa, Law, Morality, Triple Talaq, The Indian Express July 10, 2017 available at http://indianexpress.com/article/opinion/columns/law-morality-triple-talaq-muslim-islam-4743272/ (Last visited on July 2, 2017); Also see M Reyaz, How does government plan to implement the triple talaq ban?, DailyO, December 9, 2016 http://www.dailyo.in/politics/triple-talaq-uniform-civil-code-shariah-aimplb-bmma-patriarchy-allahabab-high-court/story/1/14477.html (Last visited on July 2, 2017).

    68

    Ameer Ali, Muslim Law Vol.2 321 as cited by Paras Diwan & Piyushi Diwan, Law of Marriage and Divorce 67 (3rd ed., 1997).

    69

    Faizan Mustafa, Remake the Marriage Contract, The Indian Express May 11, 2017 available at

    http://indianexpress.com/article/opinion/columns/remake-the-marriage-contract-4650220/ (Last visited on July 2, 2017); See also Mustafa, , supra note 67.

    70

    The Hindu, supra note 58.

    71

    The Indian Express, Looking at Reform of Family Laws Across Religions, Not Uniform Civil Code, Says Justice B S Chauhan, November 16, 2016, available at http://indianexpress.com/article/india/india-news-india/family-laws-across-religions-uniform-civil-code-says-justice-b-s-chauhan-4377676/ (Last visited on July 2, 2017).

    72

    The Indian Express, Govt May Step in and Enact a Law to Ensure Triple Talaq is Banned: Venkaiah Naidu, May 20, 2017, available at http://indianexpress.com/article/india/govt-may-step-in-to-ensure-triple-talaq-is-banned-venkaiah-naidu-4665404/ (Last visited on July 2, 2017).

    73

    Pathak Zakia & Rajeswari Sunder Rajan, Shahbano, 14 Signs: Journal of Women in Culture and Society 3 558-582 (1989).

    74

    Id.

    75

    Outlook, supra note 1.

  • Articles
  • The India – Solar Cells Dispute: Renewable Energy Subsidies under World Trade Law and the Need for Environmental Exceptions

    THE INDIA — SOLAR CELLS DISPUTE: RENEWABLE ENERGY SUBSIDIES UNDER WORLD TRADE LAW AND THE NEED FOR ENVIRONMENTAL EXCEPTIONS

    Vivasvan Bansal & Chaitanya Deshpande*

    In 2013 certain measures adopted by India under the Jawahar Lal Nehru National Solar Mission were challenged by the United States before the World Trade Organization in the IndiaSolar Cells dispute. One of the measures was the grant of long-term power purchase agreements to solar energy providers, based on domestic content requirements. Though the United States initially challenged this as violating the Agreement on Subsidies and Countervailing Measures, the Panel did not address this clam as it was subsequently withdrawn by the United States. The subsidisation of renewable energy restricts free trade, and potentially conflicts with the obligations of States under the Agreement on Subsidies and Countervailing Measures. This paper seeks to provide a justification for the potential violation of the Agreement on Subsidies and Countervailing Measures using the environmental exceptions provided under Article XX of the General Agreement on Tariffs and Trade, such that the essential balance between trade liberalisation and the right of regulation of States is maintained. For this purpose, the potential implications of the existing renewable energy subsidy policies in terms of conflicts with the Agreement on Subsidies and Countervailing Measures are examined, along with an analysis of the previous cases involving such conflicts. Thereafter, an analysis is done of the covered agreements under the WTO to which the exceptions under Article XX of the General Agreement on Tariffs and Trade are applicable, either directly or indirectly. Drawing from this analysis, it is argued that the exceptions under Article XX of the General Agreement on Tariffs and Trade should be applicable to the Agreement on Subsidies and Countervailing Measures potentially violated by renewable energy subsidies. Finally, the implications for the Indian renewable energy sector are discussed, in the event that the balance between free trade and the right of States to regulate in light of environmental concerns is maintained.

    INTRODUCTION

      Climate change is considered to be the biggest market failure caused as a result of fossil fuel usage.1 As a result of climate change, the global average temperature has risen by 0.88 degrees Celsius due to which adverse environmental effects have been caused.2 Further, forty-two percent of carbon dioxide emissions are caused by electricity generation through fossil fuels.3 Thus, to combat climate change, the usage of renewable energy to substitute fossil fuels has become increasingly prominent.4 However, as a result of high capital cost and low levels of investment as compared to fossil fuels, it is difficult for renewable energy to compete with fossil fuels.5 To solve this problem, governments around the world have tried to formulate various policies towards the development of renewable energy.6

      Governments, across the globe, are keen to develop their economies through the implementation of subsidy programs promoting renewable energy.7 Investment in renewable energy is a core strategy to combat climate change,8 and renewable energy subsidies are extremely important to address the problem of climate change. Renewable energy subsidies are one of the best ways to build a renewable energy sector that develops and implements the technologies necessary to reduce carbon emissions.9 One such renewable energy subsidy is based on domestic content requirements ('DCRs'). These requirements help in the fast and steady development of domestic industrial sectors, such as the renewable energy sector.10 For policy considerations, DCRs are effective tools to achieve both industrial and environmental objectives.11

      Under the World Trade Organisation ('WTO') regime, the Agreement on Subsidies and Countervailing Measures ('ASCM') is the main agreement that regulates subsidies. However, the ASCM does not distinguish between renewable subsidies and other subsidies.12 The WTO strictly opposes subsidies that distort trade, such as the ones based on DCRs.13 The ASCM, as it exists today does not recognise environmental interests of countries and does not provide for exceptions with regard to the environment. This means that a violation of the ASCM is found, the subsidy program in question would have to be withdrawn irrespective of the environmental benefits it has.14 In this context, leading scholar on WTO law and jurisprudence, Robert Howse notes that, "[...] simply excluding subsidies from WTO compatibility because they have industrial policy as well as environmental goals in unrealistic, especially in the current economic and financial crisis, where support for climate measures may be inadequate unless such measures also serve economic recovery or reconstruction goals."15

      An example of a country giving renewable energy subsidies to achieve both industrial and environmental objectives is India. In 2010, India had decided to give renewable energy subsidies which were contingent on the usage of domestic inputs of solar modules under the Jawaharlal Nehru National Solar Mission ('JNNSM').16 The United States of America ('USA') was aggrieved by this policy as it believed that such a policy would adversely affect its own manufacturers of solar modules. Thus, in 2013, USA challenged this policy under the ASCM and other agreements before the WTO.17 On the other hand, recently, India also challenged the subsidies of USA before the WTO on the ground that they were based on DCRs and were trade distortive.18 This demonstrates that renewable energy subsidies can come into conflict with the ASCM.

      As the ASCM does not have its own environmental exceptions, a way in which this conflict can be resolved is through the application of Article XX of the General Agreement on Tariffs and Trade, 1994 ('GATT').19 Article XX of the GATT provides a list of exceptions to the trade obligations member states have.20 Article XX recognises concerns other than trade and allows for situations in which these might take precedence over trade liberalisation.21 Under GATT Article XX, there are two exceptions particularly important for protecting environmental concerns. First, GATT Article XX(b) which allows for trade-restrictive measures that are "necessary to protect human, animal or plant life or health". Second, GATT Article XX(g) which allows for measures "relating to the conservation of exhaustible natural resources". Hence, by invoking these exceptions, members can argue that even trade-distortive measures are complaint under the GATT as they fall within the ambit of Article XX.

      In this paper, we argue that renewable energy subsidies based on DCRs potentially violating the ASCM should be allowed justification under the environmental exceptions of GATT Article XX. In Part II, we elaborately discuss the renewable energy subsidy policies based on DCRs adopted by India, and the wide range of benefits they have. In Part III, we discuss the treatment of subsidies under the ASCM, to understand how renewable energy subsidies based on DCRs can potentially violate the ASCM. Subsequently, we conduct an analysis of covered agreements22 and cases in Part IV, to ascertain the reasons and ways in which GATT Article XX exceptions have been made applicable outside the scope of the GATT. In Part V, we aim to build an argument to justify the application of Article XX exceptions to protect renewable energy subsidies based on DCRs that are otherwise incompatible with the ASCM. In Part VI, we analyse the implications of India's renewable energy subsidy policies and their conflict with the ASCM. The possible impact of allowing renewable energy subsidies on India's energy sector is also discussed. Part VII concludes.

    RENEWABLE ENERGY SUBSIDY POLICIES BASED ON DOMESTIC CONTENT REQUIREMENTS

      In this part, we will discuss important policies launched by the Government of India ('Government') to harness solar energy based on DCRs, along with the multiple benefits of DCRs. As solar energy is an extremely important source of renewable energy, it is essential to have concrete policies to harness the same. One such policy implemented by the Government is the JNNSM in 2010.23 The main aim of JNNSM is to ensure that solar power can be used on a large scale for the generation of electricity and eventually substitute fossil fuel based energy.24 The quantitative goal set by the Government was the production of 20,000 Mega Watt ('MW') energy which was increased to 100,000 MW in 2015.25

      To ensure smooth implementation, JNNSM was divided into three phases. Phase I was scheduled from 2010-2013 and its target was the production of 1,000MW energy. In this phase, there was a DCR of thirty percent as far as solar modules were concerned.26 This meant that at least thirty percent of the solar modules used by Solar Power Developers ('SPDs') had to be sourced from India. However, this was only mandated for crystalline silicon modules and not thin film ones.27

      Phase II is scheduled from 2013-2017 and is set to be completed in four parts.28 For Batch I of this Phase, the target was 750MW and till date, 718MW capacity has been commissioned.29 Additionally, the Government decided to open two separate bids, one for usage of indigenously manufactured modules and the other for imported modules.30 The first bid of375 MW mandated that crystalline technology modules as well as solar thin film technology modules must be sourced from India.31 In the other bid of 375 MW, companies could use imported modules.32 In addition to this, the Government set up a Viability Gap Fund ('VGF') which was a cash subsidy given to the SPDs to offset high costs of building solar plants.33

      Subsequently, the targets were further increased in Batch II of Phase II (15,000 MW by the end of 2019)34 and Batch III (2,000 MW).35 Batch II is divided into three tranches. This is a state-specific scheme and individual states would be selected by the Government for the implementation of the same.36 The DCR capacity shall be intimated by the Government before announcing the state-specific bid.37 There is a DCR of 250 MW out of 1,000 MW for the first part of this scheme.38 In addition to this, there is a bundling mechanism.39 However, there is no provision for VGF.

      Batch III on the other hand reserves 250 MW out of 2,000MW for bidding with DCRs (applicable to both crystalline as well as thin film modules).40 This is also a state-specific scheme and encourages development of solar projects in solar parks.41 In addition to this there is a VGF mechanism.42 However, SPDs in the DCR category are eligible to get a higher subsidy than those in the open category to offset the higher cost of procuring solar modules from India.43 Thus, the Government has formulated these policies with an objective to promote local manufacturing in India.

      In addition to the JNNSM, the Government decided to launch the Grid Connected Rooftop Solar scheme in June, 2014- another scheme which could potentially come into conflict with existing WTO obligations.44 The main aim of this scheme is to promote Solar PV plants on rooftops of residential, educational, industrial and commercial buildings. In this scheme, there is a DCR.45 However only residential, educational and government buildings can avail this DCR facility.46 Thus, to offset the cost of using DCRs, the Central Financial Assistance ('CFA'), which is thirty percent of the total cost of the project will be provided to the project developers.47 The Power Purchase Agreement ('PPA')in this case will be between the owner of the particular buildings and the distribution companies ('Discoms') or the third party and the Discoms.48

      The key feature of all these schemes under the JNNSM is the signing of a PPA, whose benefits will be enumerated in detail subsequently.49 The PPA has to be signed by the SPDs with the Solar Energy Corporation of India ('SECI'), which is the nodal implementing agency of the Government, for a period of twenty-five years (till Phase II, the same was signed with NTPC Limited).50 Under the PPA, SECI will purchase power at a fixed rate which shall depend on the bid amount quoted by the SPDs and sell it to the Discoms at a fixed rate which will depend on the particular scheme.51 For example, under Batch I of Phase II of the JNNSM, the rate is INR 5.50/KWh.52 The purpose of these PPAs is to encourage SPDs to bid for solar projects by generating a sense of security among them as the power will be bought regardless of the demand for the same.53

      While the JNNSM has already been challenged on the ground of violation of WTO rules,54 it is possible that the solar rooftop programme as well as subsequent batches of the JNNSM may also be challenged on similar grounds. Thus, we believe that it is important to justify these schemes on the ground that they will further the objective of sustainable growth in the solar sector within the framework of the WTO legal framework. Additionally, the criteria for the success of these polices will be discussed along with its application in India.

    BENEFITS OF DOMESTIC CONTENT REQUIREMENT POLICIES

      The renewable energy sector is highly capital intensive and will not be able to compete with the fossil fuel sector without proper government support.55 Such support is even more important in light of the fact that fossil fuels are largely subsidised.56 For example, in 2014 global fossil fuels subsidies amounted to USD 490 billion.57 Thus, government intervention by way of DCRs along with PPAs and other financial incentives is one possible way of helping renewable energy resources to compete with fossil fuels.

      DCR is a government policy whereby a certain percentage of inputs must be sourced locally.58 The objectives of such a policy in the field of solar energy is to promote sustainable development of the same.59 This goal can be achieved because DCRs in the long run facilitate the creation of a domestic industry, the reduction in prices of solar energy and the accumulation of technical skills in the concerned country.60 However at the same time, DCRs lead to initial short term costs due to SPDs being forced to procure relatively expensive domestic inputs.61 In the short term the government can provide subsidies, tax exemptions, infrastructure support, PPAs and other beneficial measures to mitigate the cost borne by SPDs.62 Among these measures PPAs are particularly important.63 In the PPA mechanism, a government or a government body promises to purchase power at a fixed rate.64 Such PPAs guarantee price stability and fixed demand for companies who produce renewable energy.65 This can vastly mitigate the risks associated with investing in renewable energy which can in turn enable further growth.66 PPAs are more successful when complemented by support measures such as tax deductions, soft loans and policies which support investment in renewable energy technologies.67

      DCRs allow for the protection of domestic infant industries, i.e., industries which cannot compete with foreign industries.68 This eventually allows the concerned nation to reduce the costs as well as increase sustainability of renewable energy by which it would be able to achieve grid parity and replace fossil fuels.69 Since the country will not be solely dependent on imports, it will not be subject to the fluctuations in the global market which will assure a stable supply of components required for solar power.70 This will be beneficial for developing countries who will find it costly to finance imports of such inputs on a regular basis.71 Thus, manufacturing components locally will create a stable supply for developing countries which will potentially reduce costs as compared to imports.72

      Another way in which DCRs reduce price is by way of competition.73 As a result of competition there is a further reduction in the cost of solar energy, which is essential for it to replace fossil fuels.74 Increased competition also promotes innovation which also drives prices down.75 Thus, having more sellers in the market is beneficial for the environment, and DCRs ensure that the same happens. Hence, decreased costs would bring sustainability to the solar energy sector and make solar power viable in the long run.76

      Additionally, DCRs can be instrumental in building technical expertise which is essential to maintain and sustain the use of a particular technology.77 This will happen because DCRs will compel domestic companies to source a part of their inputs domestically. On the other hand, foreign firms will have to do the same or set up their own plants.78 The latter, which is foreign direct investment, will facilitate a transfer of technological know-how.79 This technical expertise will help a country tailor the technology to its local needs.80 For example, solar plants can be established in areas having different levels of humidity and irradiation patterns with the help of local manufacturing skills.81 Thus, these positive economic as well as non-economic effects of DCR will boost the use of solar energy in developing countries.

    LIKELIHOOD OF SUCCESS OF THE DOMESTIC CONTENT REQUIREMENT POLICIES IN INDIA

      After analysing the potential benefits of DCR, we will examine the conditions which increase the chance of a DCR policy's success, in the context of India. It is important to do so because if a DCR policy has a greater chance of success in a particular country, then it will be more viable to implement it.

      Even today, the empirical evidence for the effectiveness of DCR in renewable energy is limited.82 However, the criteria laid down by Lewis and Weiser are accepted by many scholars.83 These are: market size and stability, market potential, and favourable government policies such as tax breaks, subsidies, and assistance in land acquisition.84

      Having a large and a stable market encourages businesses to invest in production inputs for solar energy locally.85 Thus, it mitigates the risk of a relatively higher cost for businesses to invest in DCR. Similarly, it also offers more avenues for learning by doing.86 Learning by doing means that firms find more efficient ways of producing technology simply by experience rather than by using superior technology.87 It is applicable in the context of DCRs, because they encourage local firms to increase production.88 Thus, gradually, firms will produce solar modules more efficiently which will lead to a reduction in costs.89

      With respect to the first criterion, it is clear that India has a large peak demand for power which is equivalent to 148,406 MW.90 On the other hand, market potential refers to the exploitable capacity of a particular resource.91 Due to its tropical location India has a significant amount of solar energy which can be utilized (amounting to 750 Giga Watt ('GW')).92 Thus, the market potential for solar energy in India is extremely high. As far as government support is concerned, there is no shortage of the same, as SPDs will get subsidies to offset their costs, long term PPAs and infrastructural support through solar parks.93 Solar power parks are essentially a concentrated zone for setting up solar power plants.94 The benefit of solar parks is that companies wanting to set up solar power plants do not have to go through the lengthy process of acquiring land.95 Instead, the state governments will lease such lands to the SPDs on which solar power plants can be built, thus speeding up the process.96 Thus, it is likely that India’s DCR policy will give an impetus to the manufacturing of technology necessary for solar power plants.

      After having described the benefits of DCRs, we will discuss the case of China97 where the criteria mentioned above were met to demonstrate the effectiveness of DCR. China is estimated to have an extremely high amount of exploitable capacity of wind energy (1,000GW to 4,000GW).98 Further, at the time of the launch of its DCR program in 1997, it had a large demand for electricity.99 There was also substantial financial support from the government to offset the cost of DCR.100 These favourable factors ultimately helped China to increase its capacity from 56.6 MW in 1997 to 145.1 GW in 2015.101 This is primarily a result of DCRs which allowed China to build a strong manufacturing base for wind energy.102 It must be noted that this program was discontinued by China in 2009, after USA raised an objection.103 However, by that time, China had already built a strong domestic industry of wind turbine manufacturing.104 Therefore, since China fulfilled the conditions under which DCRs have a high chance to succeed, its DCR policy was successful.

      Thus, after having discussed the benefits of DCR policies in the context of India, it is essential to analyse how the renewable energy subsidies based on DCRs would violate the ASCM.

    SUBSIDIES UNDER THE AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES

      After having analysed the renewable energy subsidy policies implemented by the Government, their benefits and the likelihood of success, we now examine the subsidy regime under world trade law, as laid out under the ASCM. This entails an analysis of the extent and scope of the ASCM, and the grounds on which India's policies may be challenged under the ASCM. Subsequently, we highlight the applicability of environmental exceptions to covered agreements other than the ASCM, based on which we build a case for the justification of renewable energy subsidies through the use of such exceptions.

      The ASCM aims to prohibit subsidies which can have an adverse impact on international trade.105 For that purpose it has clearly defined the extent and scope of subsidies. For a subsidy to be disciplined by the ASCM it has to be a financial contribution,106 which confers a benefit107 and is specific.108 Under the ASCM, a subsidy involves a financial contribution given by a government or any public body within the territory of a member state with an aim to confer a benefit.109 An entity which performs the duties and functions of the government will be deemed to be a public body.110 Further, the definition of a financial contribution is given in the four subparagraphs of ASCM Article 1.1(a).111 This definition is exhaustive in nature.112 However, measures which are not explicitly listed can also be included provided that they fall within the criteria mentioned in the subparagraphs.113

      Additionally, for a financial contribution to be a subsidy capable of being challenged under the ASCM, it has to confer a benefit.114 A financial contribution is said to confer a benefit if the beneficiary receives it on more favourable terms than others in the market.115 This benefit can be determined with respect to the benchmark rate, i.e., the rate prevailing in the market at which other competitors will get the same benefit.116 However, if market prices are distorted due to government regulation and intervention, it is possible to refer to a constructed benchmark or a foreign benchmark, provided appropriate adjustments are made to account for conditions in the concerned market.117

      A further requirement under the ASCM is for the subsidy to be specific. Only subsidies which are specific in nature will be subject to the ASCM.118 A subsidy is said to be specific if it is given to particular enterprises by the public authority who has jurisdiction in the particular geographical region.119 However, it is not said to be specific if the criteria under which it is received is neutral and “[...] does not favour certain enterprises over others, and which are economic in nature and horizontal in application, such as number of employees or size of enterprise.”120 Thus, a financial contribution that confers a benefit, and which is specific, can be challenged as a subsidy potentially violating the ASCM. These subsidies can be further classified into actionable and prohibited subsidies.121

      Under Part III of the ASCM, actionable subsidies are subsidies which cause adverse effects to other WTO members.122 Adverse effects are caused when the subsidies lead to serious prejudice or injury to another member123 or impair the benefits of concessions accrued under the GATT.124 Additionally, ASCM Article 6.1 lays down conditions whose presence will be sufficient to prove the existence of serious prejudice. Thus, if the subsidy purports to compensate a specific industry or an enterprise for operating losses sustained, such a subsidy will be deemed to cause serious prejudice.125 However, a one-time subsidy which is given for business development will be exempted.126 Further, complete ad valorem subsidisation of a product exceeding five percent will also be a sufficient ground for proving serious prejudice.127

      Serious prejudice may also exist if one or more of the four grounds under ASCM Article 6 are proven. The first ground is that the subsidy has to cause a loss to the exports of a like product of another member in the market of the subsiding member.128 Under the second ground, the subsidy has to cause a similar effect to another member in the market of a third country.129 Under the third ground, a significant reduction in prices has to occur as a result of the subsidy due to which loss is caused to the member country in the same market.130 The fourth ground states that, as a result of the subsidy, the world market share of the product has to increase consistently as compared to the average share of the past three years.131

      Under Part II of the ASCM, prohibited subsidies are per se invalid and no actual harm, such as serious prejudice under actionable subsidies, has to be demonstrated by the aggrieved party.132 There are two types of prohibited subsidies under this part. The first, under ASCM Article 3.1(a), is a subsidy which is contingent de jure or de facto upon export performance. The second one, under ASCM Article 3.1 (b), is a subsidy which is contingent on the usage of domestic goods over foreign ones. In Canada–Aircraft, the Appellate Body ('AB') held that ‘contingent’ means to be conditional or dependent on something else.133 However, under ASCM Article 3.1(b), this contingency is not just de jure but also a de facto one.134 This is because even if the drafters omitted to mention a ‘de facto contingency’ under ASCM Article 3.1(b), the same will not preclude it from being applied.135 Thus the AB held that the ‘de facto contingency’ mentioned in ASCM Article 3.1(a) should also apply to ASCM Article 3.1(b).136 The reason given was that governments would try to circumvent this provision and try to indirectly give such discriminatory subsidies.137 Further, if a subsidy falls under ASCM Article 3, it shall be deemed to be specific by virtue of ASCM Article 2.3.138 Therefore, for a measure to qualify as a 'subsidy', there has to be a specific financial contribution conferring a benefit. Once this is proved, it can either be challenged as an actionable or prohibited subsidy.

    AGREEMENTS AND CASES TO DETERMINE THE REASONS FOR APPLICABILITY

      In this Part, we will examine WTO covered agreements and instruments, and analyse disputes resolved to throw light on how GATT Article XX has been made directly applicable, such as the Agreement on Trade-Related Investment Measures ('TRIMs'), and China's Accession Protocol in ChinaAudiovisuals. Further, flexibilities and exceptions similar to GATT Article XX exist in the Agreement on Technical Barriers to Trade ('TBT') and the Agreement on the Application of Sanitary and Phytosanitary Measures ('SPS'). The reasons derived from this analysis will be used in the following Part to strengthen the argument for the provision of exceptions in the ASCM. Therefore, the aim of this analysis is to examine the applicability of GATT Article XX to the ASCM, such that India is able to avail the benefits of its renewable subsidy policies listed out under Part II of this paper.

    AGREEMENT ON TRADE-RELATED INVESTMENT MEASURES

      TRIMs prevents member countries from conditioning foreign direct investments and other financial resources on factors that favour domestic industry.139 TRIMs Article 2 reflects the principles set out in the GATT. According to TRIMs Article 2.1, " [...] no Member shall apply any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994", and TRIMs Article 2.2 refers to the Annex to TRIMs, which provides an illustrative list of measures that are inconsistent with TRIMs, by virtue of being inconsistent with GATT Article III:4 and Article XI:1. It is important to note that the exceptions under GATT Article XX are applicable to TRIMs by virtue of TRIMs Article 3, which states that “all exceptions under GATT 1994 shall apply, as appropriate, to the provisions of this Agreement”.140

      To understand the reasons for the applicability of the exceptions under GATT Article XX to TRIMs, it is important to understand the relationship between them. The prohibited measures listed in the Annex to TRIMs highlight the close link between foreign investment and international trade.141 The negotiating history suggests that countries favoured the invocation of the GATT exceptions because of the close link of TRIMs to the GATT.142 The close link is clearly established. This is because TRIMs interprets and clarifies GATT Article III and Article XI, which makes "The application of GATT exceptions to the TRIMs [...] a logical extension of the function of TRIMs as a clarification of GATT articles."143 It can be said that TRIMs builds on GATT Article III, requiring member countries to provide national treatment to imported products, and GATT Article XI, prohibiting member countries from imposing quantitative restrictions on the importation or exportation of goods.144 Further, In IndonesiaAutos, the Panel noted that as both TRIMs and GATT Article III prohibit local content requirements, by forbidding the conditionality of benefits on domestic sourcing of input supplies, they can be said to cover the same subject matter.145 Therefore, TRIMs and GATT Article III are closely interconnected.146

      The above analysis brings out the reasons for the applicability of GATT Article XX, which are: direct textual support, the close link between TRIMs and GATT, and the fact that TRIMs elaborates on GATT disciplines.

    AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES

      SPS establishes a framework of rules to guide the development, adoption, and enforcement of national measures to protect human, animal, or plant life or health.147 These measures are referred to as sanitary and phytosanitary measures. Countries can impose more stringent requirements on imports as compared to domestic goods for the purposes of protecting human, animal, or plant health.148 A sanitary and phytosanitary measure may fall within the scope of application of SPS, and at the same time be inconsistent with the GATT.149 In the case of a conflict between the applicable GATT rules and SPS, SPS prevails as it is lex specialis with respect to sanitary and phytosanitary measures.150 However, the chance of such a conflict is slim, as the relevant GATT rules are subsumed in SPS.151 This is because according to SPS Article 2.4, sanitary and phytosanitary measures conforming to the relevant provisions of SPS are presumed to be consistent with the relevant rules of the GATT.

      The Preamble and some other articles of SPS indicate the relationship between SPS and GATT Article XX.152 As per the Preamble of SPS, it was established to "elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)".153 This suggests that there are provisions of GATT Article XX(b) which are related to sanitary and phytosanitary measures, and that SPS elaborates these measures substantively.154 It has also been argued that the current legal position allows for the application of GATT Article XX(b) to justify a measure inconsistent with SPS.155

      In ECHormones, commenting on the relationship between SPS and GATT Article XX(b), the Panel observed that the provisions of SPS impose substantive obligations, which are significantly beyond GATT Article XX(b).156 The Panel also noted that some provisions of SPS elaborate on GATT provisions, in particular GATT Article XX(b).157 Therefore, SPS does not only explain an exception to GATT disciplines, but also creates an extensive new set of affirmative obligations for the adoption and maintenance of sanitary and phytosanitary measures.158 Additionally, SPS Article 2.3 embodies certain GATT trade disciplines, such as the non-discrimination provisions of the GATT, and the chapeau159 of GATT Article XX.160 The national treatment requirement can be said to be at the centre of SPS obligations.161

      Therefore, SPS elaborates upon and embodies GATT disciplines, and allows for a protection similar to GATT Article XX(b).

    AGREEMENT ON TECHNICAL BARRIERS TO TRADE

      TBT establishes a framework concerning technical regulations, and aims to ensure that these regulations do not create unnecessary obstacles to international trade, while recognising WTO members' right to implement measures to achieve legitimate policy objectives.162 Like SPS, TBT is lex specialis to the GATT, and acts as a specialised legal regime applying to a limited class of measures.163 However, this does not exclude the applicability of GATT, and both TBT and GATT operate apply cumulatively unless there is a conflict between them.164

      TBT Articles 2.1 and 2.2 are important for understanding the relationship of TBT with the GATT. These provisions deal with non-discrimination in respect of technical regulations.165 TBT Article 2.1 incorporates the principle of national treatment, and according to TBT Article 2.2, technical regulations should not be more trade-restrictive than necessary to achieve a legitimate objective. TBT does not contain a provision, like GATT Article XX, to justify a violation of these non-discrimination provisions. However, TBT Articles 2.1 and 2.2 have been interpreted in terms similar to GATT Article XX.166

      It has been argued that the GATT Article XX chapeau test has been used by the AB to examine a claim of discrimination under TBT Article 2.1.167 The AB has effectively added an exception to TBT by incorporating the chapeau-like test into an analysis under TBT Article 2.1.168 The use of the chapeau test can be said to be a sound legal principle because of the similar purposes of GATT Article XX and TBT.169 It is an effective way of striking a balance between trade liberalisation and regulatory protection, as it functions as an exception provision in TBT.170 Additionally, TBT Article 2.2 includes the necessity test, which is a part of GATT Article XX.171

      The relationship between TBT and GATT Article XX can be better understood through disputes decided by the AB. In USClove Cigarettes, the AB while emphasising on the balance between trade liberalisation and domestic regulatory autonomy observed that the ordinary meaning of a provision that does not provide such a balance is absurd.172 As the Preamble of TBT mentions that the drafters desired to further the objective of the GATT, the AB regarded this as suggesting that TBT and the GATT have similar objectives and are of an overlapping nature. This is in addition to the fact that TBT is a development from the disciplines of the GATT.173 The Preamble of TBT suggests that TBT expands on pre-existing GATT disciplines and indicates that TBT and the GATT should be interpreted coherently and consistently.174 The AB further noted that there is a balance indicated by the Preamble of TBT between the desire to avoid obstacles to free trade, and the recognition of the right of countries to regulate.175 This balance is the same as the balance struck by the GATT, which qualifies obligations such as national treatment (GATT Article III) by general exceptions (GATT Article XX).176 Further, it was noted that the balance is found in TBT Article 2.1, read in light of its context, and the object and purpose of TBT.177 This eliminates the need to invoke GATT Article XX as a separate defence.178 Therefore, the jurisprudence under GATT Articles III and XX was adopted and applied to TBT non-discrimination obligations.179 The AB concluded that the object and purpose of TBT is to strike a balance between the objective of trade liberalisation and the right of countries to regulate.180

      In a later dispute, the ECSeals, the AB observed that the non-discrimination obligations in the GATT are balanced by the right of countries to regulate under GATT Article XX.181 As TBT does not have an exception provision like GATT Article XX, the 'legitimate regulatory distinction' test acts as the balancing factor in TBT.182 The AB incorporated the concept of 'legitimate regulatory distinction' in TBT Article 2.1 to offer the same regulatory space provided by GATT Article XX, thereby maintaining the balance between free trade and the right of countries to regulate.183 The incorporation of the 'legitimate regulatory distinction' test introduced the GATT Article XX analysis into TBT.184

      Therefore, the AB has interpreted TBT in a manner that successfully balances the right of member countries to implement technical regulations, with the prevention of protectionism.185 Though GATT Article XX is not directly applicable to TBT, TBT allows for similar exceptions in its scheme by incorporating the chapeau test under GATT Article XX, thereby eliminating the need for the invocation of GATT Article XX.

    CHINAAUDIOVISUALS AND CHINARAW MATERIALS: THE TEXTUAL APPROACH

      The disputes of ChinaAudiovisuals and ChinaRaw Materials are important for understanding how GATT Article XX can be used to justify violations of obligations arising out of instruments other than the GATT. The textual approach was the legal principle applied in these disputes to justify the invocation of GATT Article XX.

      In ChinaAudiovisuals, China invoked GATT Article XX(a)186 to justify measures challenged as being inconsistent with paragraph 5.1 of its Accession Protocol.187 The question that arose for consideration was whether China could invoke GATT Article XX for a breach of its obligations under the Accession Protocol.188 The AB held that GATT Article XX was available outside the context of the GATT, and allowed for the application of GATT Article XX to justify the violation of paragraph 5.1 of China's Accession Protocol.189 The introductory clause of paragraph 5.1 stated, "without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement.", which the AB interpreted in a manner so as to apply GATT Article XX exceptions to China's Accession Protocol by way of incorporation.190 The applicability of GATT Article XX beyond the GATT framework was not excluded.191 A reason for this finding was the recognition by the AB of the policy consideration of respecting the inherent right of countries to regulate trade.192 The measures that China sought to justify were linked to its regulation of trade, and in light of this relationship between measures inconsistent with China's obligations and China's right to regulate trade, China could rely upon the introductory clause of paragraph 5.1 of its Accession Protocol to invoke GATT Article XX.193

      In a later dispute, the ChinaRaw Materials, a claim was brought against China for violating paragraph 11.3 of its Accession Protocol.194 China invoked GATT Article XX to defend itself against the claim.195 The Panel held that GATT Article XX could only apply to violations of the GATT, unless it is specifically incorporated into a non-GATT discipline or instrument.196 The Panel observed that GATT Article XX exceptions could be used to justify violations of non-GATT obligations only if language to that effect is incorporated in the instrument in question by cross-reference.197 The legal basis for using GATT Article XX to justify a violation of obligations other than those arising out of the GATT can only be the text of incorporation.198 There was no text in paragraph 11.3 of the Accession Protocol which could provide a basis for the invocation of GATT Article XX, because of which China could not use it as a defence.199 Therefore, the Panel based its finding of non-application of GATT Article XX on a strict textual interpretation of paragraph 11.3 of China's Accession Protocol.200

      Subsequently, the AB upheld the Panel's finding.201 As opposed to ChinaAudiovisuals, the AB did not allow for the application of GATT Article XX to justify the violation of paragraph 11.3 of China's Accession Protocol, due to the lack of specific reference to GATT Article XX, or a general reference to GATT or the WTO Agreement.202

      On a cumulative reading of ChinaAudiovisuals and ChinaRaw Materials, it becomes clear that the textual interpretation was followed in these cases, as the application of GATT Article XX to instruments other than the GATT was made contingent on the incorporation of text to that effect.203 Though the finding in the two disputes was different, the strict textual interpretation approach was applied in both of them.204

    APPLICABILITY OF EXCEPTIONS TO THE AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES

      In this part, we argue that the environmental exceptions under GATT Article XX must be applicable to the ASCM. For this, we rely on the reasons derived from Part IV, such as the ASCM being an elaboration upon GATT disciplines, close link, and textual support. Additionally, the balance between free trade and the right to regulate of member states, and the expiry of Article 8 of the ASCM, strengthen this argument.

    ELABORATION OF GATT DISCIPLINES, CLOSE LINK, AND TEXTUAL SUPPORT

      Based on an analysis in Part IV of various covered agreements and decisions of the AB to determine the reasons for the applicability of GATT Article XX, it can be argued the GATT Article XX exceptions should apply to the ASCM.

      Just like TRIMs and SPS elaborate upon GATT disciplines, the ASCM relates back to GATT Article XVI concerning subsidies.205 In the field of subsidies, GATT Article XVI together applies with the ASCM.206 As has been held by the AB on a number of occasions, the principal object and purpose of the ASCM is to augment and improve GATT disciplines regarding the use of subsidies.207 The ASCM can be seen an application or extension of GATT Article XVI, signifying the direct relationship between ASCM and GATT.208 Part III of the ASCM, which deals with 'actionable subsidies', elaborates upon GATT Article XVI:1, and ASCM Article 6 clearly defines 'serious prejudice'.209 This relationship is strengthened by footnote 13 to ASCM Article 5(c), which states that, "The term "serious prejudice to the interests of another Member" is used in this Agreement in the same sense as it is used in paragraph 1 of Article XVI of GATT 1994, and includes threat of serious prejudice.".210 Further, Part II of the ASCM, which deals with 'prohibited subsidies' also elaborates upon GATT Article XVI. On a combined reading of ASCM Articles 3.1(a) and 3.2, it becomes clear that member states cannot grant or maintain subsidies contingent upon export performance as they are prohibited. This is an elaboration of GATT Articles XVI:2, XVI:3 and XVI:4, which discourage export subsidisation. Additionally, ASCM Article 3.1(b), which prohibits the grant of subsidies which have a DCR, can be deemed to be an elaboration of GATT Article III:5.211 Therefore, there is a clear relationship between the ASCM and GATT Article XVI.212

      Therefore, because a violation of GATT Article XVI could be justified under GATT Article XX, and as GATT Article XVI is linked to the ASCM and both deal with the same matters, the exceptions under GATT Article XX should also apply to the ASCM.213 It would be odd if that is not the case.214

      Further, another argument supporting the claim that GATT Article XX exceptions should be applicable to the ASCM is built on the 'single undertaking' principle, which strengthens the close link between the GATT and the ASCM.215 According to the 'single undertaking' principle, the WTO Agreement is a 'single undertaking', with all the covered agreements under it being a part of an 'integrated' legal system.216 This implies all covered agreements are cumulative and apply simultaneously.217 Article II.2 of the WTO Agreement states that all covered agreements are an integral part of the WTO.218 The WTO is a 'single undertaking', and the GATT is clearly developed in multiple covered agreements, with the discipline of subsidies being developed in the ASCM.219 The fact that the WTO Agreement is a single treaty instrument, and has been accepted by the member states as a 'single undertaking', was affirmed by the AB in BrazilDesiccated Coconut.220 Therefore, the 'single undertaking' principle further highlights the strong relationship the GATT shares with the ASCM.

      Additionally, there is significant textual connection between the GATT and the ASCM.221 As discussed in Part IV, textual support in ChinaAudiovisuals allowed for the applicability of GATT Article XX exceptions to the China Accession Protocol. Similarly, there is also textual support for justifying the application of GATT Article XX exceptions to the ASCM. ASCM Article 32.1 provides the textual connection with GATT, stating that, "No specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement." Additionally, footnote 56 to ASCM Article 32.1 states that, "This paragraph is not intended to preclude action under other relevant provisions of GATT 1994, where appropriate". This strengthens the claim that member states should be allowed to invoke GATT Article XX as a defence to the violation of the ASCM.

    REGULATORY AUTONOMY

      An issue that has been central to the WTO regime is the balancing of the WTO's objective of liberalisation of trade against the avoidance of prejudice to the autonomy of member states, by recognising their right to regulate in order to achieve legitimate objectives.222 In principle, there is a broad consensus that WTO law should not encroach on the right of member states to enact bona fide regulatory measures.223 The need for a balance is vital because trade rules because of their nature impinge on other policy objectives of member states, whereas policies with non-trade objectives inevitably result in trade restrictions.224 A regulatory measure aimed at environmental protection has the capacity to restrict international trade, and the pursuit of trade liberalisation can restrict the freedom of member states to regulate to achieve non-economic objectives.225 The recognition of the right to regulate under the WTO regime is evinced by covered agreements and decisions of the AB.

      One such agreement is SPS, which recognises the discretion of a State to determine its own appropriate health policies by invoking the precautionary principle as an exception to risk assessment and international standards requirements.226 This is reflected in SPS Article 5.7, which allows countries to adopt precautionary measures in the absence of sufficient scientific evidence, instead of waiting for a time when the risk assessment is complete.227 The AB in ECHormones observed that SPS Article 5.7 is reflective of the precautionary principle,228 allowing the member states to determine their own optimal policies for protecting human health and environment.229 Similarly, TBT also seeks to strike a balance between the goal of international trade liberalisation and the right of member states to regulate.230 As discussed in Part IV, the AB on different occasions has interpreted TBT in a manner that allows for the same regulatory space as under GATT Article XX, by balancing free trade and the right of member states to regulate and pursue legitimate policy objectives.231

      A sweeping recognition of the member states' power to regulate is found in ChinaAudiovisuals, where the AB held that the 'right to regulate' is an inherent right enjoyed by a member's government, and not a right bestowed by international treaties, like the WTO Agreement.232 This right must be exercised in a manner which is consistent with the WTO obligations assumed by the member state.233 The AB allowed the member state to exercise its right to regulate in a manner consistent with the WTO Agreement, by allowing it to invoke GATT Article XX exceptions. The Panel in ChinaRare Earths, recognised the right of nations to regulate. It observed that:

    "[...] an interpretation of the covered agreements that resulted in sovereign States being legally prevented from taking measures that are necessary to protect the environment or human, animal or plant life or health would likely be inconsistent with the object and purpose of the WTO Agreement. In the Panel's view, such a result could even rise to the level of being "manifestly absurd or unreasonable"."234

      Further, in USGasoline, the AB recognised the regulatory autonomy of member states, and took into account the preamble to the WTO Agreement as demonstrating the importance of coordinating policies on trade and the environment. It observed that WTO Members have a large measure of autonomy to achieve environmental objectives and accordingly enact and implement environmental legislation. 235

      Therefore, in light of the recognition of regulatory autonomy under the WTO regime, exceptions for environmental protection must be allowed under the ASCM, such that the balance between the right to regulate and free trade is maintained.

      Further, we argue that subsidies best maintain the balance between the right to regulate and free trade, as they are less trade restrictive as compared to other measures adopted by countries. Subsidies are considered to be more efficient trade policy instruments.236 Measures such as total bans, tariffs, and quantitative restrictions such as quotas, are more trade distorting than domestic policy measures such as subsidies because they have an impact on both production and consumption directly.237 Subsidies are less trade distorting as they affect only production and not consumption.238 They allow for the change in production and consumption in response to world market conditions, as opposed to quantitative restrictions.239 It has been noted that a subsidy seems to the "first-best" solution which is less trade-restrictive than import prohibitions.240 Additionally, if subsidies are used well, they can correct market failures and promote behaviour that is environmentally sound.241

      The measures covered by the GATT, such as total bans and quantitative restrictions, which are widely considered to be more restrictive and trade-distorting than subsidies, can be justified for environmental protection by virtue of GATT Article XX.242 Robert Howse is of the view that if GATT Article XX is not allowed as a defence against a claim of violation of the ASCM, it would lead to an illogical result of member states having " [...] more policy space to enact much more obviously and severely trade-distorting measures, such as import bans and quotas, than what are generally understood to be less distortive measures, namely domestic subsides.".243 If measures that are more trade-restrictive than subsidies get the protection of GATT Article XX, subsidies not getting the same protection would lead to unjustified policy inconsistencies.244 This is especially true because subsidies being less trade-restrictive, would maintain the balance between regulatory autonomy and free trade better than other measures such as total bans and quantitative restrictions.

    ARTICLE 8 OF THE AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES

      It is pertinent to note that until end of 1999, ASCM Article 8 was in force, which expired due to its non-renewal by member states.245 This provision dealt with non-actionable subsidies, and recognised that certain subsidies, including environmental subsidies could not be challenged as violating the ASCM as they were overall beneficial.246 According to commentators, in spite of the non-renewal of ASCM Article 8, there is a consensus among member states that some subsidies are better not challenged.247 It is often argued that the non-renewal of ASCM Article 8 implies that the member states decided that exceptions should not exist under the ASCM.248 However, according to Luca Rubini, the expiry of the provision on non-actionable subsidies only implies that the special exceptions under the ASCM have disappeared, which has made way for the applicability of the GATT Article XX general exceptions.249 Further, he argues that assuming that there was an overlap between ASCM Article 8 exceptions and GATT Article XX exceptions, it could be argued that the role of GATT Article XX was quite limited in the presence of non-actionable subsidies under ASCM Article 8.250 However, due to the expiry of the category of non-actionable subsidies, there now exists no conflict between the GATT and the ASCM, allowing for the application of the discipline on general exceptions in the field of subsidies.251

      It is also argued that ASCM Article 8, an exception provision designed exclusively for the ASCM indicates that GATT Article XX should not apply to the ASCM.252 However, the negotiating history does not suggest that the category of non-actionable subsidies under ASCM Article 8 was supposed to be the only justification for certain subsidies, precluding the application of GATT Article XX to the ASCM.253 Additionally, the scope of ASCM Article 8 with respect to the environment was very narrow,254 because of which there was no common purpose and subject matter between the limited exceptions under ASCM Article 8, and the broad environmental exceptions under GATT Article XX.255 This leads to the conclusion that GATT Article XX could have been invoked to justify subsidies not permissible under the ASCM, even during the time ASCM Article 8 was in force.256 As a result, the non-renewal of ASCM Article 8 does not signify that the member states did not intend for the application of GATT Article XX, because of their subject matter being different. Therefore, the expiry of Article 8 reinforces the argument in favour of allowing for the application of GATT Article XX to the ASCM.257

    IMPLICATION OF INDIA'S POLICIES

      In this part, we discuss the Canada Feed-In Tariff Program case, which dealt with a challenge to a feed-in tariff ('FIT') scheme as violating the ASCM. Further discussed is the India Solar Cells dispute, in which though the USA initially challenged India's policies as violating the ASCM, it later withdrew its argument under the ASCM. The USA feared that India would also retaliate by filing a complaint against it under the ASCM for its alleged DCR programs.258 Thus, it restricted its arguments to the GATT and TRIMs. Subsequently, the policy impact on India's energy sector, in the event that it is allowed the exception under GATT Article XX, is discussed.

    APPLICATION OF THE AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES TO FEED-IN TARIFF PROGRAM AND INDIA’S DOMETIC CONTENT REQUIREMENT POLICIES

      Canada Feed-In Tariff Program is an important case which deals with the ASCM. The FIT program was a scheme implemented by the Government of Ontario to enhance the production of renewable energy in Canada which would diversify its supply mix, i.e., the proportion in which various sources of energy available to the country are used.259 FIT schemes aim to offer fixed prices over a specific period of time for energy produced from renewable energy sources.260 They aim to incentivise people to invest more in the generation of solar energy.261 Thus, the objectives of this program were to increase the capacity of generating renewable energy resources, create new jobs and further the investment in the renewable energy sector.262 Anyone participating in this program would be required to operate and build his own power plant.263 For doing this, it would receive remuneration from the Government of Ontario which would be stipulated by the terms of the contract between them.264 However, the granting of these FIT schemes itself was contingent on the usage of certain percentage of DCRs in the construction of the power plant.265

      Aggrieved by the DCR policy, in 2010, Japan and the European Union ('EU') challenged this policy at the WTO as violating TRIMS, the GATT and the ASCM. Their argument under the ASCM was that it violated ASCM Article 3.1(b). The WTO Panel decided this case in favour of Japan and the EU on claims related to the GATT and TRIMS, and it rejected their argument under the ASCM. The Panel held that the wholesale electricity market price in Ontario was heavily influenced by government intervention and hence distorted.266 It could thus not be regarded as constituting an appropriate benchmark. Further, the four alternative benchmarks proposed by Japan and the EU were not considered by the Panel because they themselves were distorted and could not accurately represent the market conditions in Ontario.267 Since the Panel could not find the appropriate benchmark, it dismissed the claim of the complainants under the ASCM. Canada appealed the decision of the Panel. The AB dismissed Canada’s appeal, but reversed the finding of the Panel with respect to the ASCM.

      It held that the Panel should have considered the solar and wind energy markets as the relevant market for determining the benchmark rate and not the wholesale electricity market.268 This is because the solar and wind energy markets would not exist if it was not for the government intervention.269 Such government intervention, on its own, cannot be inferred to be a subsidy.270 Only if in that market a government provides a specific financial contribution which confers a benefit, could it be called a subsidy.271 Thus, to determine whether the FIT scheme conferred a benefit, the terms and conditions under the competitive solar and wind energy markets should be examined.272 However, due to insufficient evidence, the AB could not determine the appropriate benchmark rate with respect to the terms and conditions in the solar and wind energy market.273 Thus, it could not determine whether a benefit was received under the FIT program.

      However, hypothetically, if the AB had completed its analysis and held that the FIT program confers a benefit, then the measure would have been declared to be a subsidy. As a result, it would have been deemed to be specific since it was contingent on the use of domestic inputs.274 Thus, by virtue of ASCM Article 3.1(b), such a subsidy would have been held to be a prohibited one and would have had to be withdrawn with immediate effect under ASCM Article 3.2.

      With respect to India, we argue that there is a possibility that the DCR schemes under JNNSM and other solar policies would be challenged under the ASCM. While Phase I along with Batch I of Phase II have been declared to be violating the provisions of the GATT and TRIMS, subsequent batches as well as phases continue to exist. As mentioned in Part II, these policies also have a mandatory DCR upon which subsidies (VGF) are contingent. Additionally, the solar rooftop programme also has DCR provisions upon which the grant of the CFA is dependent. Thus, these policies may be challenged under ASCM Article 3.1(b).

      To determine whether the financial contribution given by the Government would confer a benefit, the Panel would have to decide whether the beneficiaries are receiving this financial contribution at a better rate than the market rate. For that the Panel would have to identify an appropriate benchmark rate in the market. If the Panel is able to determine these questions affirmatively, the financial contribution of the Government would qualify as a subsidy. Consequently, under ASCM Article 2.3 it will be deemed to be a specific one as it falls under ASCM Article 3.1(b). As a result of this, the subsidy given by the Government under JNNSM will be deemed to be prohibited. Thus, India would have to withdraw its DCR policies.

      Hence, there exists a distinct possibility that India’s DCR policies may be challenged successfully in front of the WTO Panel, under the ASCM. Since a complainant can challenge a measure based on multiple covered agreements, a challenge under the ASCM serves as an attractive option due to the non-existence of environmental exceptions under the ASCM, unlike other covered agreements such as the GATT and TRIMs. A successful challenge under the ASCM will hinder India’s objective of sustainable use and production of solar energy in the long term which will ultimately benefit the environment. Thus, it is important to justify these measures under the exceptions provided under GATT Article XX, such that India is allowed to develop a strong manufacturing base for solar modules, in light of environmental concerns.

    POLICY IMPACT ON THE INDIAN ENERGY SECTOR

    In this section of the paper, we discuss how availing GATT Article XX exceptions will help India meet its policy objective of reducing its dependence on coal imports, and satisfying its electricity requirements without increasing its greenhouse gas emissions. The Cabinet Committee of Economic Affairs of India has projected that India’s peak power demand will increase four-fold by 2035.275 However, India still heavily relies on coal to meet its electricity demand.276 As of 2017, coal power plants account for about sixty percent of India's installed electricity capacity.277 To meet the aforementioned power demand, India’s reliance on coal will continue as is if left unchecked. Additionally, India is the second largest importer of coal,278 despite being the third largest producer of coal in the world.279 This is due to the fact that Indian coal is poor in quality, and hence inefficient when compared to imported coal.280 While recently, imports of coal have fallen, they are projected to rise at a rapid rate in the future.281 This will not be favourable for India as it will be dependent on the volatility of the foreign market.282

      As a result of its coal consumption, India is also the fourth largest emitter of carbon dioxide in the world after China, USA, and the EU.283 Thus, India’s emission of carbon dioxide will not be reduced if it continues to rely on thermal energy. In order to meet its power demand while trying to reduce carbon dioxide emissions simultaneously, India would necessarily have to rely more on renewable energy sources. To this effect, India has made certain international commitments. Under the Paris Agreement,284 which deals with the mitigation of greenhouse gases, India aims to produce forty percent of its electricity from renewable energy sources, out of which seventy percent should be from solar energy.285 However, as of 2016, renewable energy accounts for only about fifteen percent of the total electricity production in India.286 Out of this, solar energy accounts for only ten percent of the total renewable energy produced. Thus, the target of 2030 is clearly an ambitious one and requires a dramatic increase in the production of electricity from solar energy.

      Hence, to limit greenhouse emissions while meeting the increased demand for power, a considerable increase in renewable energy capacity is needed. In Part II of this paper, we have clearly laid down the benefits a renewable energy subsidy based on DCR can have. These include a stable manufacturing base, technical expertise and reduced costs for solar power which can allow for sustainable generation of the same. Further, the problem of setting up domestic solar power plants, unique to India, can be solved more efficiently by the use of local knowledge and manufacturing skills. This argument is further strengthened by the fact that DCR policies have a high chance of success in India, due to the factors mentioned in Part II of this paper. However, for these benefits to materialise, it is imperative that the WTO allows India to avail of GATT Article XX benefits. By being able to avail the environmental exception, India would be able to reduce its reliance on coal and thereby reduce its carbon dioxide emission, and will be able to strengthen its electricity production simultaneously.

    CONCLUSION

      The role of renewable energy subsidies based on DCRs in achieving both industrial and environmental objectives cannot be overemphasised. Renewable energy subsidies can play a vital part in giving impetus to the renewable energy sector, in turn combating the globally recognised difficulty posed by the phenomenon of climate change. Such subsidies based on DCRs are particularly important for developing nations like India, looking to build a domestic renewable energy industry for the sustainable generation of green electricity, and reap the numerous benefits associated with it. We have elaborately discussed India's solar energy policies under the JNNSM, which are especially attractive because of their likelihood of success.

      However, the ASCM, which contains the regulations governing subsidies, does not exempt measures that are beneficial for the environment, such as renewable energy subsidies. Therefore, it is likely that renewable energy subsidies based on DCRs such as those given by India under the JNNSM, are found by the WTO to be violative of the ASCM, and would have to be resultantly withdrawn. In the past, renewable energy subsidies have indeed been challenged before the WTO as violating the ASCM. To tackle this situation, the WTO must consider allowing the application of GATT Article XX to the ASCM, such that States are ensured regulatory autonomy. This argument becomes clear on an examination of various covered agreements and disputes decided by the WTO, along with the reasons derived therefrom.

      As a consequence, if the argument does find favour with the WTO, a positive policy impact on India's energy sector can be expected. It will serve to be an immense aid in assisting India achieve its twin policy objective of satisfying its domestic electricity requirement, while minimising its carbon dioxide emission because of reduced dependence on coal. Therefore, in light of there being some kind of environmental exceptions in various regimes other than subsidies, the WTO must consider the provision of similar environmental exceptions in the ASCM. This is strengthened by the fact there is a significant overlap that exists between subsidies and the promotion of environmental concerns, and the increasing use of subsidies as a tool for the promotion of renewable energy. This will ensure that the ASCM is in line with the present times, where climate change is considered to pose a severe threat to the environment.

    1

     3rd and 2nd year law students at the W.B. National University of Juridical Sciences, Kolkata. We would like to thank Mr. Aditya Ayachit for his invaluable comments and vital inputs on earlier versions of this paper, as well as for his help and guidance at every stage. We would also like to thank Mr. Sandeep Ravikumar and Ms. Ira Chadha-Sridhar for helping us conceive the paper in its initial stages. All errors, however, remain solely ours.

     The Guardian, Stern: Climate Change a 'Market Failure', November 29, 2007, available at https://www.theguardian.com/environment/2007/nov/29/climatechange.carbonemissions (Last visited on May 24, 2017).

    2

     NASA, Global Climate Change, available at http://climate.nasa.gov/vital-signs/global-temperature/ (Last visited on May 24, 2017).

    3

     International Energy Agency, CO2 Emissions from Fuel Combustion: Highlights, 2016, 12, available at https://www.iea.org/publications/freepublications/publication/CO2EmissionsfromFuelCombustion_Highlights_2016.pdf (Last visited on May 17, 2017).

    4

     Ibrahim Dincer, Renewable Energy and Sustainable Development: A Crucial Review, 4(2) Renewable and Sustainable Energy Reviews 157, 167 (2000).

    5

     Edith Kiragu, Transition into A Green Economy: Are There Limits to Government

    Intervention? 1 (World Trade Institute Working Paper Group, Paper No. 05, 2015), available athttp://seco.wti.org/media/filer_public/5b/dd/5bddb3d9-5ed8-448a-8d38-ff3325c4cd97/wti_seco_wp_05_2015.pdf (Last visited on May 21, 2017).

    6

     See, e.g., Rick A. Waltman Esq., Renewable Energy Development for WTO Member Nations, 14 Santa Clara J. Int'l L. 543 (2016).

    7

     Mark Wu & James Salzman, The Next Generation of Trade and Environment Conflicts: The Rise of Green Industrial Policy, 108 Northwestern University Law Review 401, 418 (2014).

    8

     Paolo Davide Farah & Elena Cima, The World Trade Organization, Renewable Energy Subsidies, and the Case of Feed-in-Tariffs: Time for Reform Toward Sustainable Development?, 27 The Gerogetown Int'l Envtl. Law Review 515, 518 (2015).

    9

     Id., 516; Judith Lipp, Lessons for Effective Renewable Electricity Policy from Denmark, Germany and the United Kingdom, 35(11) Energy Policy 5484, 5486-5488 (2007); Anthony D. Owen, Renewable Energy: Externality Costs as Market Barriers, 34(5) Energy Policy 633 (2006); Staffan Jacobsson & Volkmar Lauben, The Politics and Policy of Energy System Transformation — Explaining The German Diffusion Of Renewable Energy Technology, 34(3) Energy Policy 259 (2006).

    10

     Farah & Cima, supra note 8, 522; See OECD, Linking Renewable Energy to Rural Development 78 (2012).

    11

     Farah & Cima, supra note8, 519; See Aaron Cosbey, Renewable Energy Subsidies and the WTO: The Wrong Law and the Wrong Venue, June, 2011, available at http://www.iisd.org/gsi/sites/default/files/sw44_jun_11.pdf (Last visited on May 24, 2017); See also Jan-Christoph Kuntze& Tom Moerenhout, Local Content Requirements and the Renewable Energy Industry A Good Match?, May, 2013, 6, available at https://pdfs.semanticscholar.org/6872/7a8d62a9722b28a250bef0470aeb847108f9.pdf (Last visited on May 24, 2017).

    12

     Henok Birhanu Asmelash, Energy Subsidies and WTO Dispute Settlement: Why only Renewable Energy Subsidies are Challenged? 16 (Law and Economics Research Paper Series, Paper No. 5, 2014).

    13

     See Agreement on Subsidies and Countervailing Measures, April 15, 1994, 1869 U.N.T.S. 14, Art. 3 & Art. 5.

    14

     See, e.g., Appellate Body Report, Canada Measures Relating to Feed-in Tariff Program Complaint by the European Union, ¶6.2, WT/DS412/AB/R (May 6, 2013 adopted on May 24, 2013) (In this case, the Appellate Body asked Canada to withdraw its DCR measures and bring it in conformity with the WTO rules).

    15

     Robert Howse, Climate Mitigation Subsidies and the WTO Legal Framework, May, 2010, 7, available at https://www.iisd.org/pdf/2009/bali_2_copenhagen_subsidies_legal.pdf (Last visited on May 24, 2017).

    16

     Panel Report, India – Certain Measures Relating to Solar Cells and Solar Modules – Complaint by the United States,7.7, WT/DS456/R (February 24, 2016 adopted on October 14, 2016).

    17

     Request for Consultations by the United States, India – Certain Measures Relating to Solar Cells and Solar Modules – Complaint by the United States, WT/DS456/1 (February 11, 2013).

    18

     Request for Consultations by India, United States – Certain Measures Relating to the Renewable Energy Sector – Complaint by India, WT/DS510/1 (September 9, 2016).

    19

     Cite certain scholars that have argued for this as away to solve the problem? (change supra and infra accordingly) Simon Lester, Bryan Mercurio & Arwel Davies, World Trade Law: Text, Materials and Commentary (2nd ed., 2012); Luca Rubini, The Definition of Subsidy and State Aid: WTO and EC Law in Comparative Perspective (2009); James J. Nedumpara, Renewable Energy and the WTO: The Limits of Government Intervention, 16, available at https://ssrn.com/abstract=2368918 (Last visited on May 24, 2017); See Luca Rubini, The Subsidization of Renewable Energy in the WTO: Issues and Perspectives, September 23, 2011, available athttps://www.iisd.org/pdf/2011/tri-cc_conf_2011_rubini.pdf (Last visited on May 21, 2017).

    20

     General Agreement on Tariffs and Trade 1994, April 15, 1994, 1867 U.N.T.S. 187, Art. XX(a-j).

    21

     Peter Van den Bossche & Werner Zdouc, The Law and Policy of the World Trade Organization (3rd ed., 2013).

    22

     See World Trade Organization, Understanding on Rules and Procedures Governing the Settlement of Disputes, available at https://www.wto.org/english/res_e/booksp_e/analytic_index_e/dsu_01_e.htm (Last visited on May 24, 2017) (It states:

    “The ‘covered agreements’ include the WTO Agreement, the Agreements in Annexes 1 and 2, as well as any Plurilateral Trade Agreement in Annex 4 where its Committee of signatories has taken a decision to apply the DSU. In a dispute brought to the DSB, a panel may deal with all the relevant provisions of the covered agreements cited by the parties to the dispute in one proceeding.")

    23

     Govt. of India, Ministry of New and Renewable Energy, No.5/14/2008-P&C (January 11, 2010).

    24

     Id., ¶1.

    25

     Govt. of India, Ministry of New and Renewable Energy, No. 30/80/2014-15/NSM (July 1, 2015), ¶1.

    26

     Guidelines for Selection of New Grid Connected Solar Power Projects (August 24, 2011), Cl. 3.5.E. (Paragraph number?)

    27

     Id., Cl. 2.5.D.

    28

     Govt. of India, Ministry of New and Renewable Energy, No. 29/5(1)/2012-13/JNNSM (October 15, 2013), ¶1.1; Guidelines for Selection of 3000 MW Grid Connected Solar PV Power Projects under Batch-II (March, 2015).

    29

     Govt. of India, Ministry of New and Renewable Energy, No. 32/8/2013-14/NSM (March 5, 2015), Cl. 1.1.

    30

     Govt. of India, Ministry of New and Renewable Energy, No. 29/5(1)/2012-13/JNNSM, Cl. 2.6.E.

    31

     Id.

    32

     Id. 

    33

     Id., Cl. 1.3.

    34

     Govt. of India, Ministry of New and Renewable Energy, No. 32/8/2013-14/NSM (March 5, 2015), ¶1; Guidelines for Selection of 3000 MW Grid Connected Solar PV Power Projects under Batch-II (March, 2015).

    35

     Govt. of India, Ministry of New and Renewable Energy, No.32/2/2014-15/GSP (August 4, 2015), ¶1; Guidelines for Implementation of Scheme for Setting up of 2000 MW Grid-connected Solar PV Power Projects under Batch-III (August, 2015).

    36

     Govt. of India, Ministry of New and Renewable Energy, No. 32/8/2013-14/NSM (March 5, 2015), ¶2.1.

    37

     Id., ¶3.5.D.

    38

     Id.

    39

     See Cleantechnica, Solar Power Bundling Scheme And Its Impact On The Health Of The Discoms, September 13, 2015, available at https://cleantechnica.com/2015/09/13/solar-power-bundling-scheme-and-its-impact-on-the-health-of-the-discoms/ (Last visited on May 9, 2017) (In a bundling mechanism, the NTPC Vidyut Vyapar Nigam will purchase comparatively expensive solar power from the SPDs and thermal power from NTPC Limited and sell it to the distribution companies jointly at a lower rate).

    40

     Govt. of India, Ministry of New and Renewable Energy, No. 32/2/2014-15/GSP (August 4, 2015), ¶1.6.

    41

     Solar Parks are designated areas within a specific state which promote the development of solar power plants.

    42

     Govt. of India, Ministry of New and Renewable Energy, No. 32/2/2014-15/GSP (August 4, 2015); Guidelines for Implementation of Scheme for Setting up of 2000 MW Grid-connected Solar PV Power Projects under Batch-III (August, 2015).

    43

     Govt. of India, Ministry of New and Renewable Energy, No. 32/2/2014-15/GSP (August 4, 2015), ¶1.7.

    44

     Govt. of India, Ministry of New and Renewable Energy, No. 30/11/2012-13/NSM (June 26, 2014).

    45

     Govt. of India, Ministry of New and Renewable Energy, No. 5/34/2013-14/RT,3.

    46

     Id., ¶2(i).

    47

     Id., ¶2(ii).

    48

     Govt. of India, Ministry of New and Renewable Energy, No. 30/11/2012-13/NSM (June 26, 2014), ¶11.6.

    49

     See Govt. of India, Ministry of New and Renewable Energy, No. 32/2/2014-15/GSP (August 4, 2015); Govt. of India, Ministry of New and Renewable Energy, No. 29/5(1)/2012-13/JNNSM (October 15, 2013); Guidelines for Implementation of Scheme for Setting up of 2000 MW Grid-connected Solar PV Power Projects under Batch-III (August, 2015); Guidelines for Implementation of Scheme for Setting up of 750 MW Grid-connected Solar PV Power Projects under Batch-1 (October, 2013).

    50

     Id., ¶1.3.

    51

     Id.

    52

     Id.

    53

     Id.

    54

     Panel Report, India – Certain Measures Relating to Solar Cells and Solar Modules – Complaint by the United States, WT/DS456/R (February 24, 2016 adopted on October 14, 2016).

    55

     Kiragu, supra note 5, 1.

    56

     International Energy Agency, World Energy Outlook Factsheet, 2015, available at https://www.iea.org/media/news/2015/press/151110_WEO_Factsheet_GlobalEnergyTrends.pdf (Last visited on May 10, 2017).

    57

     Id.

    58

     Solar Energy Industries Association, Local Content Provisions, available athttp://www.seia.org/policy/manufacturing-trade/international-trade/local-content-provisions (Last visited on May 10, 2017).

    59

     International Renewable Energy Agency, The Socio-Economic Benefits of Solar and Wind Energy, 2014, 51, available at https://hub.globalccsinstitute.com/publications/socio-economic-benefits-solar-and-wind-energy/22-local-content-requirements (Last visited on May 10, 2017).

    60

     Luca Rubini, Ain’t Wastin’ Time No More: Subsidies for Renewable Energy, The SCM Agreement, Policy Space, and Law Reform, 15(2) J. Int. Economic Law 525, 530 (2012).

    61

     Id.

    62

     International Renewable Energy Agency, supra note 58, 75.

    63

     Id.

    64

     National Renewable Energy Laboratory, Power Purchase Agreement Checklist for State and Local Government, 1, available at http://www.nrel.gov/docs/fy10osti/46668.pdf (Last visited on May 10, 2017).

    65

     Id.

    66

     United States Environmental Protection Agency, Solar Power Purchase Agreements, available athttps://www.epa.gov/greenpower/solar-power-purchase-agreements (Last visited on May 10, 2017).

    67

     International Renewable Energy Agency, supra note 58, 75.

    68

     Gillian Moon, Capturing the Benefits of Trade? Local Content Requirements in WTO Law and the Human Rights-Based Approach to Development, 2009, 1, available at https://ssrn.com/abstract=1392049 (Last visited on May 10, 2017).

    69

     Kiragu, supra note 5, 1.

    70

     United Nations Conference on Trade and Development, Local Content Requirements and the Green Economy, 5, U.N. Doc. UNCTAD/DITC/TED/2013/7.

    71

     Id.

    72

     Oliver Johnson, Exploring Effectiveness of Local Content Requirements in Promoting Solar PV Manufacturing in India (German Development Institute, Paper No. 11, 2013), available at http://edoc.vifapol.de/opus/volltexte/2014/5039/pdf/DP_11.2013.pdf (Last visited on May 11, 2017).

    73

     Jan-Christoph Kuntze& Tom Moerenhout, Local Content Requirements and the Renewable Energy Industry - A Good Match?, September 12, 2012, 5, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2188607 (Last visited on May 11, 2017).

    74

     Cosbey, supra note 11, 2.

    75

     Id.

    76

     Id.

    77

     Id.

    78

     Johnson, supra note 71, 6.

    79

     Id.

    80

     Id.

    81

     Id.

    82

     Kuntze & Moerenhout, supra note 732, 7; See Fransisco Velo, Local Content Requirements and Industrial Development: Economic Analysis and Cost Modeling of the Automotive Supply Chain (2001)

    (unpublished Ph. D. dissertation, Massachusetts Institute of Technology) (on file with author); See Joanna Lewis & Ryan Wiser, Fostering a Renewable Energy Technology Industry: An International Comparison of Wind Industry Policy Support Mechanisms, 35(3) Energy Policy (2007).

    83

     Id., 8.

    84

     Id.

    85

     Id.

    86

     Id., 9.

    87

     Id.

    88

     Id.

    89

     Id.; Bastian Becker & Doris Fischer, Promoting Renewable Electricity Generation in Emerging Economies, May 25, 2012, 8, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025036 (Last visited on May 13, 2017).

    90

     Ministry of Power, Central Electricity Authority, Power Sector Nov-2016 Monthly Report.

    91

     Kuntze & Moerenhout, supra note 72.

    92

     Govt. of India, Ministry of New & Renewable Energy, No. 22/02/2014-15/Solar-R&D (Misc.) (November 24, 2014).

    93

     This requires citation. Guidelines for Development of Solar Parks (February, 2016), Cl. 1.

    94

     Guidelines for Development of Solar Parks (February, 2016), Cl. 1.Id.

    95

     Id., Cl. 6.

    96

     Id.

    97

     It is helpful to compare the policy of China with India because both are developing countries. India, like China had very little renewable energy capacity to begin with, when it launched the JNNSM. Similarly, India’s DCR scheme has a greater chance to succeed since it possesses the same favourable conditions which China possessed. However, China’s scheme was somewhat different because only Chinese firms or foreign firms having a joint venture with Chinese companies, firms were eligible for the subsidy programme. For a considerable period of time only joint ventures with the government were eligible for this scheme.

    98

     Global Wind Energy Council, Overview of China’s Wind Development, available at http://www.gwec.net/news/china-focus/graphs-chinese-marke/ (Last visited on May 13, 2017).

    99

     Joanna Lewis & Ryan Wiser, Fostering a Renewable Energy Technology Industry: An International Comparison of Wind Industry Policy Support Mechanisms, 35(3) Energy Policy 1852 (2007).

    100

     Id.

    101

     Global Wind Energy Council, China Wind Power Blows Past EU – Global Wind Statistics, available at http://www.gwec.net/china-wind-power-blows-past-eu-global-wind-statistics-release/ (Last visited on May 13, 2017).

    102

     Kuntze & Moerenhout, supra note 72, 12.

    103

     Id., 15.

    104

     Id.

    105

     Panel Report, Brazil Export Financing Programme for Aircraft­– Complaint by Canada, ¶7.26, WT/DS46/R (April 14, 1999 adopted on August 23, 2001).

    106

     Agreement on Subsidies and Countervailing Measures, April 15, 1994, 1869 U.N.T.S. 14, Art. 1.1(a).

    107

     Id., Art. 1.1(b).

    108

     Id., Art. 2.3.

    109

     Id., Art. 1.

    110

     Appellate Body Report, United States Definitive Anti-Dumping and Countervailing Duties on Certain Products from China – Complaint by China, ¶317-318, WT/DS379/AB/R (March 11, 2011 adopted on March 25, 2011).

    111

     See Agreement on Subsidies and Countervailing Measures, April 15, 1994, 1869 U.N.T.S. 14, Art. 1.1(a) (It states that a financial contribution shall be deemed to exist if:

    "[...] there is a financial contribution by a government or any public body within the territory of a Member (referred to in this Agreement as "government"), i.e. where:

    (i) a government practice involves a direct transfer of funds (e.g. grants, loans, and equity infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees);

    (ii) government revenue that is otherwise due is foregone or not collected (e.g. fiscal incentives such as tax credits)

    (iii) a government provides goods or services other than general infrastructure, or purchases goods;

    (iv) a government makes payments to a funding mechanism, or entrusts or directs a private body to carry out one or more of the type of functions illustrated in (i) to (iii) above which would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments.").

    112

     Panel Report, United States Measures Affecting Trade in Large Civil Aircraft Second Complaint – Complaint by the European Communities, ¶7.95, WT/DS353/R (March 31, 2011 adopted on March 23, 2012).

    113

     Appellate Body Report, Japan Countervailing Duties on Dynamic Random Access Memories from Korea – Complaint by the Republic of Korea, ¶250, WT/DS336/AB/R (November 28, 2007 adopted on December 17, 2007).

    114

     Agreement on Subsidies and Countervailing Measures, April 15, 1994, 1869 U.N.T.S. 14, Art. 1.1(b).

    115

     Panel Report, Canada Measures Affecting the Export of Civilian Aircraft – Complaint by Brazil, ¶9.112, WT/DS70/R (April 14, 1999 adopted on August 20, 1999).

    116

     Appellate Body Report, United States Tax Treatment for “Foreign Sales Corporations” – Complaint by the European Communities, ¶91, WT/DS108/AB/R (February 24, 2000 adopted on March 20, 2000).

    117

     Appellate Body Report, United States Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada – Complaint by Canada, ¶103, WT/DS257/AB/R (January 1, 2004 adopted on February 17, 2004).

    118

     Agreement on Subsidies and Countervailing Measures, April 15, 1994, 1869 U.N.T.S. 14, Art. 1.2.

    119

     Id., Art. 2.2.

    120

     Id.

    121

     See id., Art. 3 & Art. 5.

    122

     Id., Art. 5.

    123

     Id., Art. 5(a) & Art. 5(c).

    124

     Id., Art. 5(b).

    125

     Id., Art. 6.1(b) & Art. 6.1(c).

    126

     Id., Art. 6.1(c).

    127

     Id., Art. 6.1(a).

    128

     Id., Art. 6.3(a).

    129

     Id., Art. 6.3(b).

    130

     Id., Art. 6.3(c).

    131

     Id., Art. 6.3(d).

    132

     World Trade Organisation, Anti-dumping, Subsidies, Safeguards: Contingencies, etc., available athttps://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm8_e.htm (Last visited on May 15, 2017).

    133

     Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft – Complaint by Brazil, ¶166, WT/DS70/AB/R(August 2, 1999 adopted on August 20, 1999).

    134

     Appellate Body Report, Canada Certain Measures Affecting the Automotive Industry – Complaint by Japan, ¶139-143, WT/DS139/AB/R (May 31, 2000 adopted on June 19, 2000).

    135

     Id.

    136

     Id.

     

    137

     Id.

    138

     Agreement on Subsidies and Countervailing Measures, April 15, 1994, 1869 U.N.T.S. 14, Art. 2.3.

    139

     Waltman Esq., supra note 6, 554.

    140

     Agreement on Trade-Related Investment Measures, April 15, 1994, 1868 U.N.T.S. 186, Art. 3.

    141

     Arthur E. Appleton & Michael G. Plummer, The World Trade Organization: Legal, Economic and Political Analysis 123 (2007).

    142

     Multilateral Trade Negotiations: The Uruguay Round, Negotiating Group on Trade-Related Investments Measures, Submission by the Nordic Countries,30, 7, November 22, 1989, MTN.GNG/NG12/W/23 (It states: " The Nordic Countries strongly favour a close link to the GATT Agreement. This would imply scope for the invocation of many of the normal exceptions. The exceptions detailed in articles XI:2 (quantitative restrictions), XII (balance of payments safeguards), XVIII:B & C (economic development), XX (public morals, health, etc) and XXI (security) should therefore be examined for their relevance when negotiating a discipline.").

    143

     Antonia Eliason, The Trade Facilitation Agreement: A New Hope for the World Trade Organization, 14(4) World Trade Review 643 (2015).

    144

     Appleton& Plummer, supra note 137, 123.

    145

     Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry – Complaint by the European Communities, ¶14.61, WT/DS54/R (July 2, 1998 adopted on July 23, 1998).

    146

     Steve Charnovitz & Carolyn Fischer, Canada­ – Renewable Energy: Implications for WTO Law on Green and Not-So-Green Subsidies, October, 2014, 14, available at http://www.rff.org/files/sharepoint/WorkImages/Download/RFF-DP-14-38.pdf (Last visited on May 24, 2017).

    147

     Hal S. Shapiro, The Rules that Swallowed the Exceptions: The WTO SPS Agreement and its Relationship to GATT Articles XX and XXI, 24 Ariz. J. Int'l & Comp. L. 199, 203 (2007).

    148

     The WTO Agreements Series, Sanitary and Phytosanitary Measures, 11, available at https://www.wto.org/english/res_e/booksp_e/agrmntseries4_sps_e.pdf (Last visited on May 24, 2017).

    149

     Appleton & Plummer, supra note 137, 252.

    150

     WTO Agreement: Marrakesh Agreement Establishing the World Trade Organization, April 15, 1994, 1867 U.N.T.S. 154, General Interpretative Note to Annex IA.

    151

     Appleton & Plummer, supra note 137, 252.

    152

     Senai W. Andemariam, Can (Should) Article XX(b) GATT be a Defense against Inconsistencies with the SPS and TBT Agreements?, 7 J. World Investment & Trade 519, 523 (2006).

    153

     Agreement on the Application of Sanitary and Phytosanitary Measures, April 15, 1994, 1867 U.N.T.S. 493, Preamble.

    154

     Andemariam, supra note 148, 533.

    155

     Id., 535.

    156

     Panel Report, European Communities Measures Concerning Meat and Meat Products (Hormones) – Complaint by the United States, ¶8.38, WT/DS26/R/USA (August 18, 1997 adopted on February 13, 1998).

    157

     Id.

    158

     Shapiro, supra note 143, 201; Appleton & Plummer, supra note 137, 251; United Nations Conference on Trade and Development, 3.9 SPS Measures,7, available at http://unctad.org/en/docs/edmmisc232add13_en.pdf (Last visited on May 24, 2017).

    159

     The opening paragraph of GAT Article XX, laying down the conditions which have tomust be satisfied in order to get the exemptions. (Add what the chapeau states to give clarity on this to the reader)

    160

     United Nations Conference on Trade and Development, supra note 154, 11.

    161

     Yenkong Ngangjoh Hodu, Relationship of GATT Article XX Exceptions to Other WTO Agreements, 80 Nordic International Journal of Law 12 (2011).

    162

     World Trade Organisation, Technical Barriers to Trade, available at https://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm (Last visited on May 21, 2017).

    163

     Appellate Body Report, European Communities – Measures Affecting Asbestos and Products Containing Asbestos – Complaint by Canada, ¶80, WT/DS135/AB/R (March 12, 2001 adopted on April 5, 2001).

    164

     Gracia Marin Duran, Measures with Multiple Policy Objectives and Article 2.1 TBT Agreement – A GATT-like Balance, or a Likely Conflict, after EC – Seal Products? 25 (CTEI Working Paper, Paper No. 6, 2015).

    165

     Jason Houston-McMillan, A Critical Analysis of the Legitimate Regulatory Distinction test as Conceived in US –Clove Cigarettes, US – Tuna II and US – COOL, 2, available at https://www.sielnet.org/resources/Houston-McMillan%20-%20winner.pdf (Last visited on May 24, 2017).

    166

     Id., 16.

    167

     Jonathan Carlone, An Added Exception to the TBT Agreement After Clove, Tuna II, and Cool, 37(1) B.C. Int'l & Comp. L. Rev. 103, 128 (2014).

    168

     Id., 128.

    169

     Id., 136.

    170

     Id., 137.

    171

     Petros C. Mavroidis, Driftin' Too Far from Shore – Why the Test for Compliance with the TBT Agreement developed by the WTO Appellate Body is Wrong, and What Should the AB have done instead, 12(3) World Trade Review 509, 524 (2013); The necessity test is used under subparagraphs (a), (b), and (d) of GATT Article XX, which begin with the word "necessary". Other subparagraphs have different tests, such as subparagraph (g), which starts with the words "relating to".

    172

     Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes – Complaint by Indonesia, ¶169, WT/DS406/R (September 2, 2011 adopted on April 24, 2012).

    173

     Id.,¶91; See Henry Hailong Jia, Entangled Relationship Between Article 2.1 of the TBT Agreement and Certain Other WTO Provisions, 12 Chinese JIL Chinese Journal of International Law 723 (2013).

    174

     Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes – Complaint by Indonesia, ¶91, WT/DS406/R (September 2, 2011 adopted on April 24, 2012).

    175

     Id.,¶96.

    176

     Id.

    177

     Id.,¶109.

    178

     The Newjurist, A Critical Assessment of the Application of Article XX of the General Agreement on Tariffs and Trade, October 18, 2015, available at http://newjurist.com/the-application-of-article-xx-of-the-general-agreement-on-tariffs-and-trade.html (Last visited on May 24, 2017).

    179

     Houston-McMillan, supra note 161, 6.

    180

     Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes – Complaint by Indonesia, ¶174, WT/DS406/R (September 2, 2011 adopted on April 24, 2012).

    181

     Appellate Body Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products – Complaint by Canada, ¶5.118, WT/DS400/AB/R (May 22, 2014 adopted on June 18, 2014).

    182

     Id., ¶5.127.

    183

     Josephine Cutfield, Exception Measures: The Pursuit of Non-Trade Objectives in Light of the EC – Seals Products Dispute, October, 2015, 24, available at http://www.otago.ac.nz/law/research/journals/otago451220.pdf (Last visited on May 24, 2017).

    184

     Houston-McMillan, supra note 161, 16.

    185

     Carlone, supra note 163, 137.

    186

     General Agreement on Tariffs and Trade 1994, April 15, 1994, 1867 U.N.T.S. 187, Art. XX(a).

    187

     China, not being an original contracting party to the WTO Agreement, became a member of the WTO by accession, as provided under Article XII of the WTO Agreement, through the Accession Protocol. In relation to Article 15 of the Accession Protocol, there has been a recent debate about granting "market economy status" to China. See Financial Express, WTO Head says China Accession Deal must be fully applied in Market Status Debate, July 22, 2016, available at http://www.financialexpress.com/world-news/wto-head-says-china-accession-deal-must-be-fully-applied-in-market-status-debate/325542/ (Last visited on June 20, 2017); Li Yu,WTO and National Cultural Policy: Rethinking China Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products,472, available at https://ssl.editionsthemis.com/uploaded/revue/article/31849_45-3%20Yu.pdf (Last visited on May 24, 2017).

    188

     Appellate Body Report, China– Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products – Complaint by the United States,WT/DS363/AB/R (December 21, 2009).

    189

     Id.

    190

     Ilaria Espa, The Appellate Body Approach to the Applicability of Article XX GATT in the Light of China – Raw Materials: A Missed Opportunity?, 46(6) Journal of . World Trade 1399, 1408 (2012).

    191

     James J. Nedumpara, Renewable Energy and the WTO: The Limits of Government Intervention, 17, available at https://ssrn.com/abstract=2368918 (Last visited on May 24, 2017).

    192

     Appellate Body Report, China– Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products – Complaint by the United States, WT/DS363/AB/R (December 21, 2009).

    193

     Van den Bossche & Zdouc, supra note 20, 549.

    194

     Panel Report, ChinaMeasures Related to the Exportation of Various Raw Materials Complaint by the United States, WT/DS394/R (July 5, 2011). (put in para numbers when relevant of AB reports)

    195

     Id.

    196

     Id.

    197

     Id.

    198

     Espa, supra note 186, 1410.

    199

     Guan Wenwei, How General Should the GATT General Exceptions be? 3 (RCCL Working Paper Series, Paper No. 6, 2012).

    200

     Yu, supra note 183, 476.

    201

     Appellate Body Report,China Measures Related to the Exportation of Various Raw Materials Complaint by the United States, WT/DS394/AB/R (January 30, 2012 adopted on February 22, 2012).

    202

     Id. (para number?)

    203

     Yu, supra note 183, 474.

    204

     Id., 476.

    205

     Eliason, supra note 139, 649.

    206

     Bradly J. Condon, Climate Change and Unresolved Issues in WTO Law, 12(4) J. Int. Economic Law 895, 903 (2009).

    207

     Id.

    208

     Davide Soto et al., National Incentive Measures to Protect Biodiversity and Compliance with the WTO Agreements, May 3, 2009, 32, available at http://graduateinstitute.ch/files/live/sites/iheid/files/sites/ctei/shared/CTEI/Research%20Projects/Trade%20Law%20Clinic/National%20Incentive%20Measures%20to%20Protect%20Biodiversity%20and%20Compliance%20with%20the%20WTO%20Agreements,%202009.pdf (Last visited on May 21, 2017)

    209

     Tomer Broude & Mikella Hurley, The Limits of Morality: Application of the Public Morals Exception Beyond the GATT 28 (Society of International Economic Law Online Proceedings, Paper No. 43, 2012).

    210

     Agreement on Subsidies and Countervailing Measures, April 15, 1994, 1869 U.N.T.S. 14, Footnote 13.

    211

     Broude & Hurley, supra note 205, 28.

    212

     Paola Conconi & Joost Pauwelyn, Trading Cultures in The WTO Case Law of 2009: Legal and Economic Analysis 95, 105 (2011).

    213

     Soto, supra note 204, 32.

    214

     Condon, supra note 202, 903.

    215

     Luca Rubini, The Subsidization of Renewable Energy in the WTO: Issues and Perspectives, September 23, 2011, 32, available athttps://www.iisd.org/pdf/2011/tri-cc_conf_2011_rubini.pdf (Last visited on May 21, 2017).

    216

     Luca Rubini, The Definition of Subsidy and State Aid: WTO and EC Law in Comparative Perspective 195 (2009).

    217

     Bradly J. Condon &Tapen Sinha, The Role of Climate Change in Global Economic Governance xxiii (2013).

    218

     Rafael Leal-Arcas, Andrew Filis & Ehab S. Abu Ghosh, International Energy Governance: Selected Legal Issues 439 (2014);

    219

     Luca Rubini, Subsidies for Emissions Mitigation under WTO Law in Research Handbook on Environment, Health and the WTO 561, 602 (2013).

    220

     Appellate Body Report, Brazil Measures Affecting Desiccated Coconut– Complaint by Philippines, 13, WT/DS22/AB/R (February 21, 1997 adopted on March 20, 1997).

    221

     Rubini, supra note 59, 566.

    222

     Peter Govindswamy, Domestic Regulations in Services: A Chairman’s Perspective in Economic Diplomacy: Essays and Reflections by Singapore's Negotiators 103, 104 (2011).

    223

     Boris Rigod, Optimal Regulation and the Law of International Trade: The Interface between the Right to Regulate and WTO Law xix (2015).

    224

     Bregt Natens& Jan Wouters, Regulatory Autonomy Constraints from GATS' Unconditional Obligations: The Case of the European Union 24 (Leuven Centre for Global Governance Studies Working Paper Series, Paper No. 132, 2014).

    225

     Emily Reid, Balancing Human Rights, Environmental Protection and International Trade: Lessons from the EU Experience, 2 (2015).

    226

     Soyoung Jung, A State's Sovereign Rights and Obligations in the WTO to Harmonize Environmental Policies, 21(2) Michigan State International Law Review 462, 485 (2013).

    227

     Agreement on the Application of Sanitary and Phytosanitary Measures, April 15, 1994, 1867 U.N.T.S. 493, Art. 5.7.

    228

     Appellate Body Report, European Communities Measures Concerning Meat and Meat Products (Hormones) – Complaint by the United States, ¶124, WT/DS26/AB/R (January 16, 1998 adopted on February 13, 1998).

    229

     Jung, supra note 222, 485.

    230

     Gracia Marin Duran, NTBs and the WTO Agreement on Technical Barriers to Trade in European Yearbook of International Economic Law 87, 88 (2015).

    231

     Markus Wagner, Regulatory Space in International Trade Law and International Investment Law,36(1) U. Pa. J. Int'l L. 1, 61 (2014).

    232

     Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products – Complaint by the United States, ¶171, WT/DS363/AB/R (December 21, 2009 adopted January 19, 2010).

    233

     Perry Keller, European and International Media Law: Liberal Democracy, Trade, and the New Media 171 (2011).

    234

     Panel Report, China – Measures Related to the Exportation of Rare Earths, Tungsten and Molybdenum – Complaint by the United States, ¶7.11, WT/DS431/R (March 26, 2013 adopted on August 29, 2014).

    235

     Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline – Complaint by the Bolivarian Republic of Venezuela, 30, WT/DS2/AB/R (April 29, 1996 adopted May 20, 1996).

    236

     Cairn.Info, Subsidies in the Context of the World Trade Organization, 2004, 25, available at https://www.cairn.info/revue-reflets-et-perspectives-de-la-vie-economique-2004-1-page-25.htm (Last visited on May 21, 2017).

    237

     David Blandford et al., Agricultural Trade Liberalization in Agricultural Policies in a New Decade 231, 243 (2015); Soto, supra note 204, 32.

    238

     Id., 243.

    239

     Id.

    240

     Id.

    241

     Markus W. Gehring& Marie-Claire Cordonier Segger, Sustainable Development in World Trade Law 57 (2005).

    242

     Farah &Cima, supra note 8, 534.

    243

     Howse, supra note 15, 17.

    244

     Farah &Cima, supra note 8, 534; Rubini, supra note 59, 563; Conconi & Pauwelyn, supra note 208, 105.

    245

     World Trade Organization, WTO Analytical Index: Subsidies and Countervailing Measures, available at https://www.wto.org/english/res_e/booksp_e/analytic_index_e/subsidies_04_e.htm (Last visited on May 24, 2017).

    246

     Ingrid Jegou & Luca Rubini, The Allocation of Emission Allowances Free of Charge, August, 2011, 40, available at http://www.ictsd.org/downloads/2011/08/the-allocation-of-emission-allowances-free-of-charge.pdf (Last visited on May 24, 2017).

    247

     Leal-Arcas, Filis& Abu Ghosh, supra note 214, 439.

    248

     Jegou&Rubini, supra note 242, 40; Asmelash, supra note 12, 18; Id., 439..

    249

     Id.

    250

     Rubini, supra note 212, 195 (This is because assuming that both these rules regulated the same subject matter, ASCM (lex specialis) would prevail over GATT (lex generalis) in case of a conflict between ASCM Art. 8 and GATT Art. XX).

    251

     Id.

    252

     Farah & Cima, supra note 8, 534.

    253

     Rubini, supra note 59, 562.

    254

     Luca Rubini, Rethinking International Subsidies Disciplines: Rationale and possible Avenues for Reform, November, 2015, 8, available at http://e15initiative.org/wp-content/uploads/2015/09/E15-Subsidies-Rubini-final.pdf (Last visited on May 24, 2017).

    255

     Jegou & Rubini, supra note 242, 40; Rubini, supra note 59, 562.

    256

     Jegou & Rubini, supra note 242, 40.

    257

     Id., 40.

    258

     EconPlus, "Minus the Shooting”: World Trade Organisation and the Path to Legalisation, March 15, 2016, available at https://econplus.wordpress.com/2016/03/15/minus-the-shooting-world-trade-organisation-and-the-path-to-legalisation/ (Last visited on May 14, 2017); See Request for Consultations by India, United States – Certain Measures Relating to the Renewable Energy Sector – Complaint by India, WT/DS510/1 (September 9, 2016) (India subsequently challenged the measures adopted by the United States of America).

    259

     Panel Report, Canada Measures Relating to the Feed-in Tariff Program – Complaint by the European Union, ¶7.65, WT/DS412/R (December 19, 2012).

    260

     Toby Couture & Yves Gagnon, An Analysis of Feed-in Tariff Remuneration Models: Implications for Renewable

    Energy Investment, 38 Energy Policy 955(2010)..

    261

     Id.

    262

     Panel Report, Canada Measures Relating to the Feed-in Tariff Program – Complaint by the European Union, ¶7.65, WT/DS412/R (December 19, 2012).

    263

     Id.,¶7.68.

    264

     Id.,¶7.68.

    265

     Id.,¶7.68.

    266

     Id.,¶7.300.

    267

     Id.,¶7.305-7.307.

    268

     Appellate Body Report, Canada Measures Relating to the Feed-in Tariff Program – Complaint by the European Union, ¶5.185, WT/DS412/AB/R (May 6, 2013 adopted on May 24, 2013).

    269

     Id.,¶5.185

    270

     Id.,¶5.190.

    271

     Id.,¶5.190.

    272

     Id.,¶5.219.

    273

     Id.,¶5.245.

    274

     Agreement on Subsidies and Countervailing Measures, April 15, 1994, 1869 U.N.T.S. 14, Art. 2.3.

    275

     The Hindu, India’s Peak Power Demand to Jump Four-Fold by 2035-36: Draft CEA plan, January 2, 2017, available at http://www.thehindubusinessline.com/economy/macro-economy/indias-peak-power-demand-to-jump-fourfold-by-203536-draft-cea-plan/article9455467.ece (Last visited on May 21, 2017).

    276

     International Energy Agency, India Energy Outlook,2015, 25, available at https://www.iea.org/publications/freepublications/publication/IndiaEnergyOutlook_WEO2015.pdf (Last visited on May 21,2017).

    277

     Id.

    278

     Reuters, Column - India Cedes Top Coal Importer Spot Back to China as Growth Trend Stalls: Russell, January 30, 2017, available at http://in.reuters.com/article/column-russell-coal-india-idINKBN15E0JH (Last visited on May 21, 2017).

    279

     World Atlas, The Top 10 Coal Producers Worldwide, February 21, 2017, available athttp://www.worldatlas.com/articles/the-top-10-coal-producers-worldwide.html (Last visited on May 21, 2017).

    280

     The Hindu, Rising Thermal Coal Imports set to Propel India to Top Spot, April 5, 2017, available at http://www.thehindubusinessline.com/economy/rising-thermal-coal-imports-set-to-propel-india-to-top-spot/article7070717.ece (Last visited on May 21, 2017).

    281

     Livemint, India’s Oil Consumption to be Fastest in World by 2035: Report, January 26, 2017, available at http://www.livemint.com/Industry/zg7DwSctFlCdoacLLf5m6O/Indias-oil-consumption-to-be-fastest-in-world-by-2035-repo.html (Last visited on May 21, 2017).

    282

     See International Energy Agency, What is Energy Security?, available at https://www.iea.org/topics/energysecurity/subtopics/whatisenergysecurity/ (Last visited on May 21, 2017).

    283

     Environmental Protection Agency, Global Greenhouse Gas Emissions Data, available at https://www.epa.gov/ghgemissions/global-greenhouse-gas-emissions-data#Country (Last visited on May 21, 2017).

    284

     Paris Agreement, November 4, 2016, C.N.735.2016.TREATIES-XXVII.7.d.; Since USA is the second largest polluter of carbon dioxide, it will be extremely difficult to fulfil the targets of the agreement due to USA's recent withdrawal. To meet the existing targets, other countries will need to increase their commitments. See Hindustan Times, Why US exit from Paris climate deal is a tight slap for the rest of the world, June 3, 2017, available athttp://www.hindustantimes.com/opinion/why-us-exit-from-paris-climate-deal-is-a-tight-slap-for-the-rest-of-the-world/story-qwZZk1paeaKOYUGqnwlt7L.html (Last visited on June 14, 2017)

    285

     Business Standard, India's Energy Mix to have 40% Renewable Sources by 2030, September 22, 2015, available at http://www.business-standard.com/article/economy-policy/india-s-energy-mix-to-have-40-renewable-sources-by-2030-115092200057_1.html (Last visited on May 21, 2017);.

    286

     Make in India, Renewable Energy, available at http://www.makeinindia.com/sector/renewable-energy (Last visited on May 21, 2017).

  • Articles
  • Editorial Note

    Editorial Note

     

    Formalising Lobbying: A Necessity in a Democratic Setup

     

    Introduction

    Lobbying is a complex phenomenon, generally used to refer to activities related to influencing policy-making, particularly to influence a legislator’s vote to meet personal interests.1 Different countries have taken distinct approaches to understand and address lobbying.2However, conceptually lobbying has remained difficult to address, due to the difficulty in identifying those interactions with legislators that constitute lobbying and those that are merely regarded as forms of advocacy.3 However, a large part of the debate stems from the negative perception of lobbying, which arises primarily due to the lack of clarity in the type of policy that is derived from such activities.4

     

    There are many healthy forms of lobbying that thrive in democracies, such as policy advocacy done by think tanks, citizens’ groups, non-governmental organizations, etc., which has played an immensely positive role in representing the concerns of ordinary citizens before regulators and draftsmen. While earlier, corporate entities believed in maintaining a safe distance from the government, of late, they are plunging into this arena.5

     

    Colloquially and under most legal regimes, corporate lobbying refers to the communication with a legislator or bureaucrat with the motive of influencing decision-making on a policy matter.6 This is done to streamline governmental outlook on the niches of the sector/industry being regulated. There are various industrial groups that exist for this purpose – FICCI (Federation of Indian Chambers of Commerce & Industry), CII (Confederation of Indian Industry), ASSOCHAM (Associated Chambers of Commerce of India), to name a few. 

     

    In practice, lobbying is resorted to by corporates in order to protect themselves from policies that could harm their interests and by seeking competitive advantage by seeking favourable policy changes. It thus takes nefarious forms – from hiring of ex-governmental officials by corporate giants and infesting of on-going governmental discussions on policy issues to pumping of huge pay-outs into political party funding during election campaigns.7 The phenomenon is not just limited to the influence sought to be exerted by corporates on laws but also includes manoeuvring to influence governmental and ministerial positions to secure for themselves perpetual support from the incumbent governments.8For this reason, corporate lobbying has become synonymous with bribery, at least in public consciousness. Even when lobbying stays within the limits of legality, it can cause severe damage on the polity and the economy. For instance, the US experience has shown that firms leveraged lobbying to prevent regulators from enacting laws which could have controlled mortgage lending by financial institutions, thereby suggesting a link between lobbying and the consequent financial crisis.9

     

    Lobbying exists in some form or another in most countries; however, despite the ramifications it can have on the judiciousness of law-making, it is an unregulated activity in most jurisdictions.10 Among the OECD countries, lobbying regulations can only be found only in roughly one-third of the member countries.11 On the other hand, some countries such as the United States,12 Australia,13 Canada,14 Germany,15 Israel,16 Hungary,17 Taiwan,18 Poland,19 Slovenia20 and Lithuania21 treat lobbying as a legitimate activity, but regulate it through legislation. However, in the Indian context, corporate lobbying has not been subject to sufficient scrutiny. As India develops as an economy, there is a likelihood for increased pressures faced from corporate entities to influence policy in the interest of profitability.22 As pressure marks from both domestic and international entities, it becomes prudish to address the needs of all stakeholders, including the citizens of the country on the effects and impact of lobbying.

     

    It is in this context that this note aims to discuss the changes required in the current legal framework to address the menace of lobbying. In Part II, we will analyse the existing legal framework governing lobbying in India and how it has failed to address contemporary instances of lobbying and how in the long run it does not address central questions relating to lobbying. Additionally, we will contrast this position with the positions of lobbying in mandatory and voluntary regimes of lobbying regulation. In Part III, we will explain and explore the Public Choice Theory, which offers an economic-based understanding of policy-making and how policymakers, interest groups and members of the public actively engage with one another in order to create a supply and demand of policy. Based on this argument, in Part IV, we will explore how the access to information can be used to ensure thatthe public has the opportunity to counter lobby effectively by receiving fair information and having a platform to make their interests knownto policymakers. Part V contains concluding remarks.

     

    LEGAL FRAMEWORK GOVERNING Lobbying

    In this Part, we will discuss the current legal framework relating to lobbying in India. To provide a better understanding of the scope and effect of lobbying regulations, reference will be made to the position of law in the USA, whichhas a mandatory system of lobbying regulation, as well as in other jurisdictions that follow a voluntary system of lobbying.23

     

    India

    In March 2013, a bill to regulate lobbying was introduced in the Lok Sabha for the first time as a private member’s bill by a Bharatiya Janata Dal member, Kailash Narayan Singh Deo.24 The bill was introduced as a response to the NiraRadia tapes scandal,25 as well as to the disclosures made by Walmart,26 of the bribes it paid in India as part of its lobbying activities to secure access to the Indian multi-brand retail market.27 Some doubted the genuineness underlying the introduction of the Bill,28 as it sought to legalise lobbying activity defining is to mean “an act of communication with and payment to a public servant with the aim of influencing”29 a legislation, thereby blurring the lines between legitimate lobbying and grossly illegal gratification. This also stood in sharp conflict with the Prevention of Corruption Act, 1988, which prohibits a public servant from taking any gratification, other than legal remuneration, in respect of an official act.30 Nonetheless, the Bill was once again introduced in the Lok Sabha by Kalikesh Narayan Singh Deo in February 2016,31 but has failed to see the light of the day. 

     

    Absence of a regulatory regime in this area on one hand hurts the right to information of the citizens, and limits their power to critique a law due to asymmetric information. On the other, it is in conflict the goal of “ease of doing business”, which is so eulogised by the current government – this is because, while the practice is permissible in other developed jurisdictions after compliance with disclosures, it still brings connotations of corruption with itself in India, thereby making it difficult for companies from such countries to push for the requisite regulatory changes they need to establish themselves in the Indian market in a legal fashion.32

     

    USA

    USA (United States of America) is regarded as having one of the most active lobbying communities in the world, with an entire industry dedicated to affect policy-making.33The extent to which corporate lobbying is endorsed under its legal framework can be demonstrated by the case of FEC v. Citizens United.34In this case, the US Supreme Court stated that corporations, namely super PACs,35cannot be subjected to any limit on the amount spenton funding of political campaigns.36 They reserved this right, stating that it was protected by the First Amendment and hence could not be impeded by the legislature by means of a statutory enactment.37

     

    The regulation of lobbying in the US is complex, with different regulations framed by each state.38 The most significant legislation, however, is the Lobbying Disclosure Act, 1995 (‘LDA’).39The LDA requires a lobbyist making a lobbying contact to register with the Secretary of the Senate and the Clerk of the House of Representatives.40 The registration requires the lobbyist to disclose the details of its own as well as its clients’ business, besides details of any organization contributing more than $10,000 to its lobbying activities in a semi-annual period, or any organization planning or supervising its lobbying activities in whole or in part.41 The rules also require the lobbyist to disclose details of certain foreign entities which hold interest in the client.42

     

    In USA, lobbying is regarded as an inherent right under the Constitution, where even citizens have the right to lobby,in order to satisfy their interests.43 With citizens being granted such rights, public lobbyists have actively taken into consideration matters that require attention, and work to address the needs of individuals in society.44

     

    At the same time, there tends to be a very significant influence from interest groups that represent corporations.45 Data suggest that corporations tend to have a very strong grip on the legislators at various levels, resulting in policies that exclusively address the needs of corporations.46This is regarded as one of the most significant dangers of lobbying, and without any protective measures it effectively results in the diminishing of the impact of democratic institutions.

     

    Voluntary Systems of Lobbying

    Generally, legal systems that have voluntary regulation of lobbying allow lobbyists to accept a code of conduct or to register themselves with an official body that records information pertaining to their activities.47 This system has been adopted by countries like Germany.48

     

    Though in principle, voluntary systems do actively encourage the disclosure of information, lack of any concise definitions or specific obligations result in furnishing of inconsistent or very limited information by the companies engaging in such activities.49 Germany has a record known as the German Bundestag, which records the information of organisations that have volunteered to disclose their status and presently contains details of over 2000 such organisations.50 However, the information collected through such voluntary disclosures is extremely limited, and primarily includes the name and contact information of these organisations, without providing any material on the objective or the nature of lobbying activities carried on by these organisations.51A similar situation was prevalent in France, until 2016,52 where the system of voluntarydisclosures resulted in poor information and ineffective application of regulations.53As a consequence of this, the requirement of disclosure was reduced to a mere formality in these countries, perpetuating the institutional opaqueness that was prevalent even otherwise. 

     

    Therefore, countries like France have actively decided to implement mandatory regulations.54Voluntarily regimes of lobbying regulation indicate an interesting trend, whereby the lack of mandatory regulation results in the lack of sufficient information being made available to the public in order to ascertain the interests of lobbyist.This lackof disclosure does not in any way bring about any effect to assist individuals in society to identify attempts to lobby.55The vast majority of such regulations tend to request lobbyists to follow a code of conduct and register themselves, without any form of mechanism to ensure compliance.56

     

    Public Choice Theory

    Lobbying is deeply intertwined with the affecting of policy by corporations to bring about reforms that would be financially beneficial to them.57 The inter-relationship between profiteering and policy-making has led to some scholars taking an economic approach towards lobbying.58 This approach breaks down the financial benefits received by corporations as a result of policy change, while analysing the effects it has on the wider public.59 One of the methods used to understand the impact of lobbying on politics, is the public choice theory, which applies economic tools to political science and policy decision-making.60

     

    The public choice theory views the process of legislative functioning as essentially negative, where the legislature works towards the creation of laws that address matters that meet their private interests as opposed to public interests.61It is based on the premise that the members of the legislature essentially face a conflict between their personal interests, the interests of the public at large and the interests of focus groups, including corporations.62As a result, political decision-making must involve a third player, namely citizens, to represent their interests and thereby create a “demand” for policy that is created in their favour.63

     

    A presumption made when applying this theory is that politicians work to maximise voter appeasement so as to maximise their position in power.64 However, unlike other political sciences, this theory places great focus on the economy. This is because it propounds that funding economic growth directly creates tangible results that are perceived by the voters, with additional variable factors such as political rhetoric and climate.65 This gives the corporate lobbying groups the opportunity to place their agenda as the agenda of the people, even when the interests of business groupscannot always be aligned with the larger public interest.

     

    The scholars of this theory argue that it applies only in cases where there is a two-party system – this becomes problematic as most countries follow a multi-party system, where it is rare to find a single party gaining absolute or true majority.66As a consequence of this, the parties in a multi-party system serve as delegations of the people, working as decision-making bodies on their behalf.67Therefore, if constituencies demand that certain regulations be enforced, policymakers would actively work towards the implementation of such regulations, as opposed to appeasing corporations.68 However, this does not mean that regulations would only be necessary in two body systems, as in multi-party systems,the status quo may be skewed in favour of certain groups that often control the economic and social factors in society.69

     

    Thus, scholars of this theory believe that lobbying is a legitimate form of stakeholder representation and is governed by simple rules of demand and supply, as policymakers are influenced to take decisions in the interest of lobbyists if it offers them political advantage.70 Regulation merely serves as a method by which a formal structure can be provided to lobbying and policy-making.71

     

    In this process, the ratification of rules to monitor and manage policy-making per se is not hindered by the policymakers. This is because where parties have a significant majority, they continue to remain in power for longer periods and as a result, they determine the rules that would govern lobbying.72 However, complication arises in the implementation of such regulations.73The rules often relate to the disclosure of such information, along with the registration of bodies that specifically handle lobbying for organisations.74Irrespective of the nature of lobbying, the rules would only be as effective as the authorities that implement the regulations choose to give effect to it. In most situations, the judiciary is regarded as the primary body that would handle matters relating to lobbying,implementing regulations on lobbying and policy-making.By clearly defining the rules and separating the regulatory control from the policymakers, it would, in effect, create barriers to the addressing of requirements and interests of voters, by shifting the onus of responsibility from the legislators to a mandatory regime to regulate matters relating to lobbying.75

     

    Regulations of lobbyingare necessitated as a result of the “public’s choice”.76Transparency and regulation in these processes amount to the creation of barriers that allow society as a whole to create a demand for socially pragmatic policies, as opposed to financially biased regulations.77 Despite all the shortcomings, this theory offers structure in how a framework to regulate lobbying should look like and why policymakers would actively work towards creating such a regulation, in order to serve their own interests, by meeting the demands of the wider stakeholders.

     

    Countering Lobbying: Giving the Power to the People

    One of the central measures of regulating lobbying is to curb misuse by corporations to direct policy that negatively impacts society; andone methodto counter the negative effects of lobbying is to includea third-party78 in the process of collecting information about lobbying, namely the voters. With India’s rapid growth and increasingly simplified corporate regime, it becomes necessary to ensure that the public at large gets the opportunity to review policy, as corporations look like they are positioning to increase their power in the coming years.79In order to provide voters with the opportunity to make equal representations before their representativeness alongside lobbyists, the disclosure of information relating to lobbying can play a major role in the opportunities of citizens to counter lobbying and effectively express their interests.80

     

    Information and Lobbying

    Often, the danger with lobbying is lack of transparency, resulting in a situation where each player is unaware of the interests of the other. This breakdown of information and communication can result in asymmetric information, were certain limited lobbyists have access to legislators and policy decision-making .81

     

    In a system where there are three players, one of the most critical aspects for ensuring that lobbying takes place on an equitable basis is access to information.82 According to the public choice theory, politicians control the political sphere83 and decide the goals of policy making, whereas voters and interest groups create demands for a particular policy.84 Therefore, there is a need to create legislative methods by which access to information can be ensured to a wider set of people. Lobbying for policy-making can take place at two stages, i.e. prior to electionsand in the post-election phase.85 During the election period, interest groups often fund political parties which promise to address the issues that they are concerned with, which meet their political interests, thereby implicitly influencing policy to meet their interests. Post-election lobbying usually takes place during parliamentary sessions. In both stages, the impact an interest group can have could influence policy for years to come.86

     

    However, in terms of influencing policy, especially during the actual stages of policy-making, India has limited restrictions to prevent lobbying.87 Despite anti-corruption regulations,88 there is no direct restrictions on the kind of policy that can be lobbied for.89 From a public choice theory perspective, all three players– politicians, corporations and citizens – in a political scheme have to be active participants to affect political outcomes; therefore, the opportunity to identify and lobby for a particular legislation should ideally be given to focus groups and voters at the same time.90 Some scholars suggest that the process of influencing legislation in the Parliament should happen alongside the readings of the legislation.91The distinct advantage this provides is that all players are actively involved in understanding and interpreting a legislation, whereby each player has the opportunity to influence the outcome of the parliament’s decision directly. In voluntary systems of lobbying regulations, the failure to address the availability of information results in ineffective information availability and tends to be counter-productive, by strengthening the position of interest groups in favour of public lobbyists.92

     

    In order to ensure equitable and fair treatment, when receiving information about policy, voters must be given the chance to represent their interests during all stages of reading a legislation.93During the first and second readings of a legislation, representations to amend and modify it in order to satisfy the political inclinations and concerns of other Members of Parliament are generally belied. However, the access to information during this stage can prove critical to lobbyists. By statutorily ensuring that all parties involved get access to this information and have the opportunity to access their representatives, it can allow for a formalisation of the process of information simulation in the lobbying process. 

     

    The lack of any formal method to ensure access to information about policy places a dangerous precedent, whereby, certain powerful interest groups have priorities over and above the interests of the society at large. Inversely, complete prohibition of lobbying has shown indications of leading to widespread corruption, whereby corporations would take the opportunity of a completely inaccessible legislature and use underhand techniques to achieve their interests.94 In India, where levels of corruption among all levels of government have been a matter of serious concern, such a step would allowvoters to makerepresentations in their interest, rather than giving precedence to groups that enjoy monetary advantages. When these three players actively involve themselves in this process, lobbying would be an activity that is seen as an active participation of society at large to address their policy requirements, and side-by-side offer interest groups the chance to reflect alternative points of view.

     

    The Power to Counter Lobby

    Although it is desirable to allow voters the chance to counter lobby,95 especially in situations where powerful interest groups work to get laws enacted that work against the interests of the society, there arises the problem that interest groups will work to ensure that any measure to curtail their power is limited.96Interest groups are better organised and better equipped to communicate with policymakers. This results in a situation where it becomes virtually impossible to counter lobby, despite the information being accessible to voters.97

     

    Such a situation,public choice theorists98 believe, will lead to political instability. The failure of the legislature to accurately reflect the interests of the members of society would result in the assimilation of political power in the hands of a few.99 Such a power structure would ultimately result in lack of accountability tovoters.100Formalising a system to offer voters the opportunity to counter lobby, through equal representation or in some cases even formalised channels, thus becomes necessary. In the long run,regularising lobbying may offer individuals the opportunity to examine the considerations made by the government, as opposed to a situation where the functioning of the government is behind closed doors and direct lobbying has been curtailed.

     

    The need of the hour is not simple registration of lobbyists, but rather, expanding the opportunity of individuals to express their interests during the policy-making. Two interesting accounts of opportunities to counter-lobby can be seen in the USA and in the EU.

     

    In the USA, the right to lobby is seen as an extension of free speech, protected by the Constitution.101 Although, this right is recognised, counter lobbying has proved to be a relatively futile exercise, as corporations tend to have better organised systems that allow for navigation through the layers involved in accessing the legislators.102 This has resulted in the vast majority of lobbying being entirely in the interest of corporations, who use these avenues to unfairly influence policy decision-making.103 Despite having a mandatory lobbying system, the transparency has resulted in inefficient protection of individual interests.

     

    Interestingly, the EU does actively recognise the usage of lobbying.104However, in contrast,lobbying in the EU tends to take a citizen first approach. This is primarily attributed to two main factors – the lack of support for big corporations in the EU and its strong status quo maintained by regulations to protect citizens.105 This has ledtothe vast majority of lobbying done by public interest groups to have resulted in successful initiatives in the EU.106

     

    In both situations, the opportunity to counter-lobby exists, however, in the EU the power of corporations has been diminished in favour of the interest of the wider public. Strong regulations in the interests of citizens have allowed for better representation and a greater number of successful lobbying initiatives in their interest. Countries can look to possibly implement guidelines that encourage and protect lobbying by public lobbyists.

     

    Conclusion

     

    With the vast majority of countries allow some form of lobbying, creating an absolute restriction on lobbying leads to a situation wherein two players, namely the politicians and interest groups, are the only stakeholders that represent interests in policy-makingleadingto a situation of political instability. This would limit the impact of voters in policy making processes as active participants in the policy-making framework. While it cannot be said that regulation of corporate lobbying would completely save governmental policy from being infested with vested interests of corporate giants, disclosure would at least ensure that it does not evade public scrutiny. In a country where the practice of lobbying is endemic, leaving it unregulated in the grey areas of law would only open-up loopholes for abuse.  

     

    It is in this background that the public choice theory offers an understanding as to how people can go about including an additional player to offer a greater degree ofreliability to the present practice.The PCT expands political decision-making beyond merely interest groups and politicians, to even include citizens as active stakeholders. According to PCT, this results in policy considerations that tend to focus on meeting the interests of all stakeholders equally, without providing unfair advantages to certain groups, based on the demand of a certain policy.

     

    To do this information forms the bedrock for trust between the three players and ensures a degree of fair play, despite interest groups possessing better means to pushfor organised and effective schemes of lobbying. Particularly from instances like that of Walmart, it becomes more imperative to ensure that there is transparency in the dealings with corporations.While there currently exist, regulations preventing excessive political spending and corruption, one of the underlying strengths of having a concise and well-defined lobbying framework is to ensure that citizens are aware of the source of policy decisions and can make targeted efforts to protect their own interests. The vast majority of existing regulations tends to focus on holding lobbyists accountable for maintaining transparent functioning, however wider stakeholder participation would be necessary to bring about change in the existing lobbying practices. By allowing all stakeholders, in particular citizens, to represent their interests the policy implications for the public at large could allow for policy that actively takes consideration the interests of citizens, as opposed to seeing citizens as passive players.

    1

    Black’s Law Dictionary, 1022(9th ed., 2009). 

    2

    OECD,Transparency and Integrity in Lobbying,3 (2013), available at https://www.oecd.org/gov/ethics/Lobbying-Brochure.pdf (Last visited on June 17, 2017).

    3

    KlemensJoos, Lobbying in the New Europe, 15-17 (2011).

    4

    Id.; Vincent R. Johnson, Regulating Lobbyists: Law, Ethics and Public Policy, CJLPP Vol 16 Iss 1, 20-29 (2006).

    5

    See generally Lee Jared Drutman, The Business of America is Lobbying: The Expansion of Corporate Political Activity and the Future of American Pluralism (2010) (Ph. D. dissertation, University of California, Berkely), available at http://escholarship.org/uc/item/1mh761v2 (Last visited on June 17, 2017).

    6

    KaushikiSanyal&HarsimranKalra, A Case for Democratising Lobbying in India, May 28, 2013, available at https://policyblog.oxfordindiasociety.org.uk/2013/05/28/a-case-for-democratising-lobbying-in-india/ (Last visited on June 17, 2017).

    7

    Pradip Thakur, Profile of the Great Indian Lobbyist, November 28, 2010, available at http://timesofindia.indiatimes.com/home/sunday-times/deep-focus/Profile-of-the-Great-Indian-Lobbyist/articleshow/7002491.cms (Last visited on June 17, 2017).

    8

     Money Control, Should India legalize/regulate lobbying, December 11, 2010, available at http://thefirm.moneycontrol.com/news_details.php?autono=504614 (Last visited on June 17, 2017).

    9

    See generallyDenizIgan, Prachi Mishra, & Thierry Tressel, A Fistful of Dollars: Lobbying and the

    Financial Crisis(IMF Working Paper, WP/09/287, 2009)   available at http://www.imf.org/external/pubs/ft/wp/2009/wp09287.pdf (Last visited on June 17, 2017); Steven Pearlstein, Blame for financial mess starts with the corporate lobby, August 13, 2011,available at https://www.washingtonpost.com/business/economy/steven-pearlstein-blame-for-financial-mess-starts-with-the-corporate-lobby/2011/08/08/gIQA3zMlDJ_story.html?utm_term=.c00de758c150 (Last visited on June 17, 2017).

    10

     Transparency International, Controlling Corporate Lobbying and Financing Political Activities, June 2009 available at http://transparency.ee/cm/files/lisad/corporate_lobbying.pdf (Last visited on June 17, 2017).

    11

     OECD,supra note 2.

    12

     The Lobbying Disclosure Act, 1995(U.S.A.).

    13

     Lobbying Code of Conduct, 2013 (Australia).  

    14

     The Lobbying Act, 1985 (Canada).

    15

     Library of Congress, Lobbying Disclosure Laws: Germany, April 17, 2017 available at https://www.loc.gov/law/help/lobbying-disclosure/germany.php (last seen on June 19, 2017) (Germany maintains a voluntary register to identify lobbyist and does not have any official law regulating lobbying).

    16

    Knesset Law (Amendment) (Israel), 2008.

    17

    XLIX Law (Hungary), 2006.

    18

    Lobbying Act, 2007 (Taiwan).

    19

    Act 169 of 2005 (Poland).

    20

    Integrity and Prevention of Corruption Act, 2010 (Slovenia).

    21

     Law on Lobbying Activity, 2000 (Lithuania).

    22

    Vibhuti Agarwal, What Is the Future of Lobbying in India?, December 16, 2010,available at https://blogs.wsj.com/indiarealtime/2010/12/16/what-is-the-future-of-lobbying-in-india/(Last visited on June 17, 2017).

    23

     Kristina Grosek& Eulalia Claros, Regulation of Lobbying across the EU, December 2016, available at http://www.europarl.europa.eu/RegData/etudes/ATAG/2016/595830/EPRS_ATA(2016)595830_EN.pdf (Last visited on June 17, 2017).

    24

    The Disclosure of Lobbying Activities Bill, 2013, 14 of 2013. 

    25

     B.S. Arun, Radia tapes: Scandal in the media, November 27, 2010, available at http://www.deccanherald.com/content/116306/radia-tapes-scandal-media.html (Last visited on June 17, 2017).

    26

    Business Standard, Walmart paid millions in bribes in India: WSJ, October 20, 2015, available at  http://www.business-standard.com/article/international/walmart-paid-millions-in-bribes-in-india-wsj-115101900120_1.html (Last visited on June 17, 2017).

    27

    Pankaj KP Shreyaskar, To curb black money, legalise lobbying, January 6, 2015, available at http://www.thehindubusinessline.com/opinion/to-curb-black-money-legalise-lobbying/article6760702.ece (Last visited on June 17, 2017).

    28

     Bhargavi Zaveri, The Disclosure of Lobbying Activities Bill, 2013, 48(24) EPW (2013).

    29

     The Disclosure of Lobbying Activities Bill, 2013, §2(f).

    30

     The Prevention of Corruption Act, 1988, §7. 

    31

    Business Standard, Private Member Bill for Registration of Lobbyists in Lok Sabha, February 26, 2016, available at http://www.business-standard.com/article/pti-stories/private-member-bill-for-registration-of-lobbyists-in-lok-sabha-116022601101_1.html (Last visited on June 17, 2017).

    32

    Id.

    33

     Open Secret, Lobbying Database, available at https://www.opensecrets.org/lobby/index.php (Last visited on June 17, 2017)(as of 2016 the total amount spent on lobbying exceeded $3 billion).

    34

     Citizens United v. FEC, 558 U.S. 310.

    35

     David G. Savage, Supreme Court OKs unlimited corporate spending on elections, January 22, 2010, available at http://articles.latimes.com/2010/jan/22/nation/la-na-campaign-finance22-2010jan22 (Last visited on June 17, 2017) (super PACs are non-government organisations, that usually run in a charitable form, often for the purpose of funding political campaigns).

    36

    Open Secret, Campaign Spending, available at https://www.opensecrets.org/overview/limits.php(Last visited on June 17, 2017)(This is despite individuals having a limit of approximately $30,000).

    37

    First Amendment, Constitution of the United States of America: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances".

    38

     Craig Holman & William Luneburg, Lobbying and Transparency: A Comparative Analysis of Regulatory Reform, 80-82, Interest Groups & Advocacy 1.1 (2012).

    39

     Lobbying Disclosure Act, 1995(U.S.A.).

    40

     The Lobbying Disclosure Act, 1995(U.S.A.), §4(1). 

    41

     The Lobbying Disclosure Act, 1995(U.S.A.), §4 (b). 

    42

     The Lobbying Disclosure Act, 1995(U.S.A.), §4 (b)(4).

    43

     Nicholas W. Allard, Lobbying Is an Honorable Profession: The Right to Petition And The Competition To Be Right, Stan. L. &Pol'y Rev., 19, 23 (2008) available at https://web.stanford.edu/group/slpr/previous/Volume19/Allard_19slpr23.pdf(Last visited on June 17, 2017). 

    44

    Id.

    45

    Martin Gilens& Benjamin I. Page,  Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12(03), 564-581 (2014) available at https://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf(Last visited on June 17, 2017).

    46

    Id. (As stated by Gilens and Page, the impact of corporate lobbying on policy decision-making, particularly in USA, has resulted in policies that are highly skewed in the interest of corporations. In proportion, the interests of corporations when compared with the representations of citizens face a huge disparity. The lack of significant safeguards in the interests of the society at large, has resulted in the impairment of the interests of the wider public.).

    47

     Transparency International, Lobbying in Germany, 2014 available at https://www.transparency.de/fileadmin/pdfs/Themen/Politik/Lobbying_in_Germany_neu2.pdf (Last visited on June 17, 2017); Grosek& Claros, supra note 23 (several other countries like Spain, Italy, Poland and Croatia have voluntary systems of lobbying. France used to have a voluntary system, however in 2016, this shifted to a mandatory system).

    48

     OECD, supra note 2.

    49

     Holman & Luneburg, supra note 38.

    50

    Grosek& Claros, supra note 23.

    51

    Id.

    52

     Library of Congress, Lobbying Disclosure Laws: France, available at https://www.loc.gov/law/help/lobbying-disclosure/france.php (Last visited on June 17, 2017).

    53

     Holman & Luneburg, supra note 38.

    54

    Grosek& Claros, supra note 23.

    55

    Id., 2-3; Charles Borden, Lobbying The EU: New Requirements For A 'Voluntary' Regime, 2-3, May 19, 2015, available athttp://www.allenovery.com/SiteCollectionDocuments/Lobbying%20The%20EU%20New%20Requirements%20For%20A%20%27Voluntary%27%20Regime.pdf(Last visited on June 17, 2017).

    56

    Id.

    57

    Kenneth M. Goldstein, Interest Groups, Lobbying and Participation in America, 4-10 (1999).

    58

     Daniel A. Farber & Philip P. Frickey, Jurisprudence of Public Choice, 65 Tex. L. Rev. 875-876 (1986).

    59

     Encyclopaedia of Public Theory, 32 (2004).

    60

    Id., 353-355.

    61

     William N. Jr. Eskridge, Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 277 Yale Faculty Scholarship SeriesPaper 3824 (1988).

    62

     Farber &Frickey, supra note, 899-901.

    63

     Id.

    64

    Encyclopaedia of Public Theory, 16 (2004).

    65

    Steinar Strom, Measurement in Public Choice171 (2004).

    66

    Encyclopaedia of Public Theory 30-43 (2004) (Though USA does have a multi-party system, it shall be considered a two-party system owing to the dominance of the 2 major parties in the country).

    67

    Id., 815.

    68

    Encyclopaedia of Public Theory, 352-353 (2004).

    69

     Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 1002-1004 (1995).

    70

     Eskridge, supra note 61, 275-277.

    71

    Id.

    72

    Id.

    73

    Id., 347.

    74

    Anthony J. Knowes, Total Lobbying, 84 – 85 (2006).

    75

    Encyclopaedia of Public Theory, 352-353 (2004).

    76

    Knowes, supra note 74, 6-7.

    77

     Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74Va. L. Rev. 456-460 (1988).

    78

    Knowes, supra note 74, 6-7; Encyclopaedia of Public Theory, 352-353 (2004).

    79

     John Whalley, Shifting Economic Power, OECD Perspectives on Global Development (2009) (as a country begins to actively improve its economic regime, corporations look to new methods to improve profitability in that economy. In order to ensure that new policies that purely benefit corporations and work against the interests of individuals and society, there must be certain measures to protect individuals from such excesses).

    80

     Ben Lockwood, Voting, Lobbying, and the Decentralization Theorem, Economics & Politics 20.3 416-431 (2008).

    81

    Encyclopaedia of Public Theory, 352-353 (2004).

    82

     David Austen Smith, Information and Influence: Lobbying for Agendas and Votes, American Journal of Political Science799-802(1993).

    83

     Here, the political sphere means the ability of politicians to influence policy directly by casting their votes in favour of or against legislations.

    84

    Encyclopaedia of Public Theory, 352-353 (2004).

    85

     David Austen-Smith & John R. Wright, Countering Lobbying, American Journal of Political Science Vol. 38, No. 1,25-27 (1994).

    86

    Knowes, supra note 74.

    87

    See Prevention of Corruption Act, 1988.

    88

    See Part II.A.

    89

     Constitutional limitations exist and the judiciary does frequently review legislations. However, at the parliamentary level, no safeguards exist to prevent the law from being lobbied for or against.

    90

    Encyclopaedia of Public Theory, 352-353 (2004).

    91

    Mark Kober-Smith,Legal Lobbying: How to Make Your Voice Heard 79-85 (2000); Parliament of India, How a Bill Becomes an Act, available at http://www.parliamentofindia.nic.in/ls/intro/p5.htm (Last visited on June 18, 2017).

    92

    See Part II. 3.

    93

    Id.

    94

    Amy Handlin, Dirty Deals? An Encyclopedia of Lobbying, Political Influence, and Corruption, 885-886 (2014).

    95

    Lee Drutman, The solution to lobbying is more lobbying, April 29, 2015, available athttps://www.washingtonpost.com/news/monkey-cage/wp/2015/04/29/the-solution-to-lobbying-is-more-lobbying/?utm_term=.ada9f14179a0 (Last visited on June 18, 2017) (To counter lobby means to address the actions of lobbyists, primarily interest groups, by organising public lobbying organisations (or even personal means) to "counter" lobby in the interest of society at large).

    96

    Handlin, supra note 94.

    97

    Smith & Wright, supra note 85.

    98

    SeeDenizIgan, Prachi Mishra, & Thierry Tressel, A Fistful of Dollars: Lobbying and the Financial Crisis, NBER Macroeconomics Annual 26.1, 195-197 (2012).

    99

    See Kevin Albertson, How the Economics of Lobbying make Democracy About More than Votes, May 6, 2015, available at http://theconversation.com/how-the-economics-of-lobbying-make-democracy-about-more-than-votes-40394(Last visited on June 18, 2017).

    100

    Id.

    101

     Allard, supra note 3, 23-30.

    102

    Smith & Wright, supra note 85.

    103

    Gilens&Page, supra note 45.

    104

     Anthony Chambers, The Lobbying of the EU - How to achieve greater transparency, civitas (2015) 3,available at http://www.civitas.org.uk/content/files/Anthony-Chambers-EU-lobbying.pdf Last visited on June 18, 2017) (the EU only has a voluntary register to identify lobbyists and there is no mandatory system. However, it actively encourages the sharing of views by interest groups and corporations.).

    105

    Andreas Dür, Patrick Bernhagen&David Marshall, Contrary to popular opinion, business actors are less successful than citizen groups at lobbying EU legislators, February 18, 2015, available at http://bit.ly/1A4o8nW(Last visited on June 18, 2017) (these regulations do not necessarily have to address matters of lobbying but rather address the needs of citizens and solvers a bedrock to protect their interests).

    106

    Id.

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