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Shot in the arm

The Supreme Court’s ruling eases the implementation of the IBC in knotty cases
Last week’s Supreme Court judgment upholding the validity of the Insolvency and Bankruptcy Code 2016 (IBC) in its “entirety” could have a major impact on the country’s economic landscape.
The fledgling IBC has been severely tested in the two years since its enactment, with the Centre being forced to amend a couple of its provisions in order to plug some loopholes that enabled defaulting borrowers to challenge the legislation.
Any law of this nature that takes over businesses and assets from defaulters and empowers lenders to change the management is bound to face legal challenges.
Borrowers were never going to take the IBC lying down, and that is exactly what happened; over the last two years, they have challenged various aspects of the law in tribunals and courts.
In the event, the apex court’s stamp of approval on the entire Code is a strong signal to borrowers and banks even as it brings a sense of relief to the Centre, which has been watching one of its better economic initiatives being stifled by vested interests.
One of the major challenges mounted against the IBC was by operational creditors, who are owed money by the company in the normal course of operations for supply of goods and services.
In the payment waterfall prescribed under Section 53 of the IBC in the event of liquidation of the company or its sale to another entity, their dues rank below those of financial creditors, workmen and employees.
This was challenged by the operational creditors, who wanted equal treatment with financial creditors in the waterfall mechanism.
Several landmark cases that were referred to the National Company Law Tribunal under the IBC remain stuck there, including that of the high-profile Essar Steel, as a result of its operational creditors seeking equal treatment.
With the Supreme Court now ruling that there are “intelligible differentia” between operational and financial creditors, an avenue that defaulters used to stymie proceedings has been closed.
Repayment of financial debt by borrowers infuses capital into the economy as lenders can on-lend the money that has been repaid to other entrepreneurs, thus aiding economic activity, the judges observed.
The apex court has also clarified that a mere relationship with an ineligible person cannot disqualify someone from becoming a bidder for a troubled asset.
It has to be proved that such a person is “connected” with the business activity of the resolution applicant.
The court used strong words: “…[T]he experiment conducted in enacting the Code is proving to be largely successful. The defaulter’s paradise is lost.” This constitutes a clear signal of its backing for the IBC which, despite all the challenges that it has faced, has been successful in sending a message to recalcitrant defaulters that there can be no more business-asusual when they default.

Capable even if disabled

An institutional display of pure and simple discrimination dressed up as legal reasoning is unacceptable
One of the darkest moments in the American disability rights movement was the American Supreme Court’s decision, in 1927, upholding the forced sterilisation of a mentally infirm woman, reasoning that it helped get rid of those who would sap the state of its strength by swamping it with incompetence.
Similarly, in India, the Supreme Court’s ruling last Tuesday, in V. Surendra Mohan v. Union of India, has to be regarded as one of the darkest in India’s disability rights movement.
The Court had to rule on the legality of the Tamil Nadu government’s policy of reserving the post of civil judge only for people whose percentage of blindness does not exceed 40-50%, resulting in the exclusion of the applicant who was 70% blind.
It held that the government’s decision was rational and reasonable.
It ruled that a judicial officer has to possess a reasonable amount of sight and hearing to discharge her functions.
It accepted the claim that impaired vision makes it impossible to perform the functions required of judicial officers, such as assessing the demeanour of witnesses and reading and analysing evidence.
It also accepted that asking a blind judicial officer to perform such administrative functions as recording dying declarations and conducting inquiries can result in avoidable complications. The judgment is problematic for four key reasons.

Examples of success

First, the view that a totally blind person cannot thrive as a judge is belied by several examples of successful judges who are blind.
One is former South African Constitutional Court judge Zak Yacoob, who has repudiated the notion that one needs to be sighted to assess a witness’s demeanour as being nonsensical, to U.S. Court of Appeals DC Circuit judge David S. Tatel, who thinks that it is neither fair nor accurate to impose low expectations on what blind lawyers can do.
There is also former San Diego County Court judge David Szumowski, who has described the view that a blind person lacks the wherewithal to become a judge as an unfair characterisation, to Yousaf Saleem who, last year, became Pakistan’s first blind civil judge.
Second, how, some contend, can a blind person be reasonably expected to thrive as a judge without being excessively dependent and inefficient?
However, as the Supreme Court itself noted in 2017, “A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well.”
Those voicing such a statement of cynicism might find it equally hard to imagine how a blind person can write an article for The Hindu, as this writer is doing, or study computer science, as many blind Indians have done or be a successful civil servant, as Beno Zephine N.L. is.
Third, the Court’s unreasoned assertion is an outcome of their ignorance about the capabilities of the disabled.
However, as Laura Wolk notes, ignorance simply cannot be an excuse in 2019.
It is simply unacceptable to condemn disabled legal professionals, possessing the intellectual wherewithal to be a judge, to the status of outcasts only because the judges delivering the judgment in this case appear simply not to have bothered to notice the competence of the millions of disabled people who inhabit this world.
As Judge Szumowski asks Indian judges, “if you went blind while on the bench, and were able to efficiently discharge your responsibility before this, how would you feel if told that you can no longer continue as a judge, even if you are able to perform your functions with some amount of retraining and adaptive tech?”

Reasonable accommodations

Fourth, as to obviating avoidable complications, the reasonable accommodations required by a blind judge may be considered irksome. However, it bears noting that “there is a distinct exhortatory dimension to be recognised in deciding whether an adjustment to assist a disabled person to overcome the disadvantage that she or he has in comparison to an able-bodied person is reasonable.” It does not lie in our mouth to say that we are truly committed to ensuring that the constitutional promise of equality is fully realised, if we lack the ability to even pay the price of making reasonable accommodations.
This is not just of academic interest for me. On my path to becoming a blind postgraduate law student at the University of Oxford as a Rhodes Scholar, I have often been compelled to engage with the cynicism of those who thought that something was simply too difficult and messy for me to do as a blind person.
And perhaps some things were, and continue to be, comparatively more difficult. But those experiences also helped me cultivate the ability to assert myself and to find ways of thriving in a world not designed for me — qualities that many able-bodied persons do not possess to the same degree and qualities which were recently recognised by a sitting Supreme Court judge in open court.
When my Supreme Court tells me that my blindness makes me intrinsically incapable of becoming a judicial officer, when it arrogates to itself the power to stamp a badge of incompetence on thousands like me about whom it knows nothing, its declaration cuts to the core of my confidence about the fairness and robustness of our judicial system.
Indeed, it is telling that even the applicant in this case took it as a given that those who are completely blind for all intents and purposes, like me, cannot become a judge; it only argued that a partially blind person can become a judge. I have never had any interest in becoming part of the judiciary. However, I earnestly believe that how we choose to respond to this institutional display of pure and simple discrimination dressed up as legal reasoning will be reflective of what kind of a society we hope to be.

Learning to probe early

Why research should be made part of UG curriculum in India
While addressing the 106th Indian Science Congress, Prime Minister Narendra Modi underscored the need for universities to get involved in research.
While India has made considerable strides in achieving a nearperfect enrolment rate in primary education, it has failed to give higher education as much attention.
As a consequence, Gross Enrolment Ratio in higher education is 25.8%, against China’s 48.44% and the U.S.’s 88.84%. Mr. Modi’s address alerts us to major lacunae in the education system that need to be looked at urgently if the higher education system is to meet the demands of today.

The importance of research

Research remains a significant weakness in India’s higher education system, traditionally cocooned in specialised institutes such as the Tata Institute of Fundamental Research (TIFR), the Homi Bhabha Centre for Science Education, and the Indian Institute of Science (IISc).
Unlike the world’s best higher education systems, there is hardly any interaction between these institutes and teaching universities.
In India, about 80% of the students enroled in higher education are concentrated in undergraduate (UG) programmes.
Research and application-oriented education can substantially enhance the quality of UG education.
While the concept of UG research is fairly new in India, it is now taken as a given in many parts of the world.
Several studies on such programmes have shown a positive impact on students, such as enhanced learning through mentorship, increased retention, increased enrolment in graduate education, more prowess in critical thinking, creativity, problem solving, intellectual independence, and understanding of research methodologies.
Research at the UG level increases the aptitude for researchoriented career options as well as the employability of students.
Based on the nature of their association and the nuances of a research programme, the faculty can also gain by sharing their research ideas with students, receive valuable feedback as well as help in the form of assistantship and apprenticeship.
Additionally, research also helps the faculty enhance their teaching abilities and content by upgrading knowledge. Introducing and sustaining the culture of research at this level can also help solve the problem of shortage of faculty, as more students will likely opt for doctoral and post-doctoral studies and teach in their home country. In any sound higher education system, research and teaching should ideally go together.
Besides, the government has also floated two ambitious projects towards internationalizing higher education in India:

Study in India’ and ‘Institutes of Eminence

Both these will need institutes to become world class and carry out high-quality research on campuses. Only then will competent faculty as well as doctoral students from across the world come to India.
Internationalisation of campuses is important if India wants to be in the global university ranking lists and this will not happen without encouraging an ecosystem that promotes high-quality research.

Some strategic steps

However, given the impediments vis-a vis infrastructure, teachers, funds and content, the government will need to take strategic steps to roll out policies to promote UG research programmes.
First, investment in education needs to meet the world standard of at least 6% of GDP, to upgrade infrastructure, labs and resources, which are essential to carry out high-quality research.
Second, the University Grants Commission and other regulatory bodies will have to come out with a priority list of reputable journals.
This will rid the country of the problem of bogus journals and publications.
Research institutes such as TIFR and IISc should mentor some of the well-performing universities and colleges till they become aware of the nuances of conducting fair and high-quality research.
Once capable, these trained institutes can then help the second rung of colleges and so on.
Third, there should be planned ways to embed research in UG curriculum.
Due to limitations in curriculum and the practice of rote learning, most students in India, even at the Masters level, graduate without having attempted an original piece of research or dissertation.
The UGC should make it compulsory for students to submit at least a 5,000-word research paper that should be assessed just as publication in serious research journals are.
Unless students are made aware of the value of research from an early stage, they will not recognise the true value of higher education.
The status quo in education has resulted in education that is not only substandard but also fails to open inquiring minds to the world of research. India must be innovative in its approch if its demographic dividend is to be tapped into. Otherwise, what Mr. Modi said will remain a quotable quote.

Natco Pharma launches heart failure drug

Natco Pharma has launched combination drug Valsartan-Sacubitriltablet in India. The product is used for certain types of heart failure and works by relaxing blood vessels, making it easier for the heart to pump blood to the body. The company on Monday said it has launched the drug under its brand Valsac at an affordable price. It is available in 50 mg and 100 mg strengths at an MRP of ₹45 and ₹55 per tablet respectively, the firm said.