Thursday, April 29, 2010

Khushboo v Kannaiammal (Supreme Court of India)

The recent judgment of the Supreme Court in Khushboo v. Kannaiammal upholds the right to freedom of speech and expression. Khushboo's right to freedom of speech was violated by the institution of multiple criminal cases against her in various courts across the country and consequent harassment that she suffered. The judgment comes after the Delhi High Court judgment in MF Husain v Ram Kumar Pandey in 2008, which also dealt with the procedural loophole in s 177 of the Criminal Procedural Code which allows multiple cases to be filed, even though they have the same subject matter. The Supreme Court has now given an important direction to Magistrates which should curb abuse of the criminal process:

28. We are of the view that the institution of the numerous criminal complaints against the appellant was done in a mala fide manner. In order to prevent the abuse of the criminal law machinery, we are therefore inclined to grant the relief sought by the appellant. In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the‘freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused.

Also worth noting in the judgment is the emphasis on personal autonomy, especially relevant given our developing post-Naz jurisprudence:

29. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive.

Bar Exam Coaching Already?

For those of us harbouring notions that Indians aren't entrepreneurial enough, think again. Previous posts highlighted an Indian bar exam in the offing. Despite the lack of any indication from the Bar Council as to what form such exam would take and the likely timelines for its implementation, we already have websites that are beginning to offer coaching for potential bar aspirants!

With coaching centres mushrooming this early in the game, we can be sure that is the next big money spinner in the "legal" arena.

The advent of such coaching centres ought to alert us to the fact that a bar exam cannot be a proxy for effective regulation and accreditation of proper law schools/colleges. For students would simply focus on such bar training through centres, without bothering about the quality of legal education that they receive from the various law schools/colleges.

Secondly, a bar exam simply tests one for his/her capability to practice the law (whether in a court room or in an advisory capacity). A good legal education on the other hand ought to do much more in terms of encouraging one to think critically, drive social change etc . Lastly, the pass or fail rates at the bar exam may not be much of an indication for how good the candidates' law school or college is. Rather all it might tell us is how good or bad the particular bar exam coaching centre (that the candidate went to) is!

Entrance Examinations and Access to Legal Education

The Law Minister recently announced that all law schools and colleges would have a common entrance test (CET) to admit candidates. Given that there around 900 law schools and colleges throughout India, I'm not entirely sure if such a common entrance test is a feasible option...illustratively, how would one rank the various colleges for the purpose of student choice and allotment of seats etc?

Further, an exclusive entrance based test to filter candidates for admissions comes with its own set of problems.

CLAT And "Access" Issues

I reflect on the above ministerial announcement in this Indian Express piece here, where I review the problems with a common entrance examination (CLAT) already conducted by a group of law schools commonly referred to as the "National Law Schools". The main thrust of the piece is on access to legal education and I note that:

"In 2009, it was abruptly decided that “legal reasoning” would be dropped from the ambit of the CLAT paper. This jaw-dropping initiative by NALSAR, a Hyderabad-based law school, turns the concept of a legal entrance exam on its head. Wouldn’t “legal reasoning” be the most important test of legal aptitude and potential for study at a law school? Interestingly however, the paper that year had a separate section on “legal knowledge” testing candidates on their specific knowledge of court cases and legal doctrines. This section constituted 25 per cent of the total marks!

One wonders why law aspirants ought to come pre-loaded with the knowledge of the law. Shouldn’t they be tested instead for analytical abilities and legal aptitude, that is, a potential for the study of law?

By testing prior knowledge of the law, CLAT 2009 may have admitted students adept at cramming copious amounts of legal maxims in expensive coaching centres, but not necessarily those with demonstrable legal aptitude.

Most problematically perhaps, an exam that tests a candidate’s prior knowledge of the law ends up disadvantaging certain sections of society that may not have ready access to such sources of knowledge.

One is not suggesting that the standard of the exam be lowered to cater to such entrants, but merely that the nature of questions bear a rational nexus to one’s intrinsic potential for the study of law, without in any way discriminating against those from certain strata of society that are not “culturally” exposed to certain kinds of knowledge.

Illustratively, a student may be stumped by a question that assumes prior knowledge of “hole in one”, a golfing term likely to be most familiar to the urban elite.

Apart from a worrying lack of consistency and external review, the current CLAT process exacerbates existing inequities. For one, the cost of a CLAT application is Rs 2,500 for all students, with no concessions in favour of poor students. Given that the CLAT process is likely to have yielded more than Rs 4 crore last year, reducing these fees will not seriously bankrupt the CLAT collegium. Second, copies of past exams are only available at the law schools for a fee. In this day and age of open access, one wonders why such papers are not available for free download on the CLAT website.

Third, CLAT has no documented policy on access to disabled students, despite the promise of 3 per cent reservations at most law schools for this sector. And last, CLAT does not make any concession to those from vernacular-medium schools who may be blessed with exceptional legal aptitude but cannot compete on a level playing field with those educated in English-medium schools."

IDIA: Increasing Diversity by Increasing Access to Legal Education

I also mention very briefly a project that we've just initiated to redress some of the problems with lack of access to quality legal education:

"A current initiative of which I am part seeks to redress this “access” issue to some extent. At its very core, the IDIA (Increasing Diversity by Increasing Access to Legal Education) project seeks to find ways to reach out to hitherto under-represented groups, sensitise them to law as a career option and help those interested in acquiring admission to these law schools by imparting intensive CLAT training, including English training.

One hopes that the law ministry will give some serious consideration to this “access” issue, as they set about conceptualising an optimal model to screen potential students for the study of a socially transformative instrument called “law”.

For those interested, more details on the IDIA project can be found here. Although this project grew out of NUJS, it is a pan India project and we encourage maximal participation from all law students, lawyers, alumni of national law schools and other interested folks interested in this vision. Legally India covered this project in this article here.

Tuesday, April 27, 2010

India's "Gripping" Tryst with TRIPS

April 26th is celebrated each year as the World IP Day. For those interested, I penned a short piece for the Mint on this momentous day, reflecting on Indian IP policy and the progress since the advent of TRIPS 15 years back. I extract a few paras below:

"....The stage had been set and India was on its way to mastering the nuances of “TRIPS flexibilities”, a term best articulated in 2002 by Murasoli Maran, who in his avatar as the then commerce minister, famously remarked: “We are all aware that the text of TRIPS is a masterpiece of ambiguity, couched in the language of diplomatic compromise, resulting in a verbal tightrope walk, with a prose remarkably elastic and capable of being stretched all the way to Geneva.”

...India’s stand is, however, more nuanced than a simple objection to the upward ratcheting of global IP standards. Indeed, it advocates higher standards when its national interests so demand: Geographical Indications, or GIs, are a good example in this regard, and India is fighting to have reputed global brands such as basmati rice and Darjeeling tea enjoy the same level of heightened international protection as European wines. Similarly, it is pushing for an international agreement on the protection and utilization of traditional knowledge, particularly that is connected with its biodiversity.

In the 15 years that have elapsed since 1995, India has learnt the ropes and progressed from “tripping” over TRIPS to a more strategic “gripping” of it, wherein this contentious international instrument has been interpreted and leveraged to suit India’s national interest.

However, India must be careful not to conflate “innovation” policy with intellectual property policy. It must look for ways to incentivize innovation in its own right. In particular, much like the US, a National Inventors’ Hall of Fame to celebrate India’s most well-known inventors would be an excellent start. Similarly, we also ought to award national medals to our most promising innovators. Such awards are statutorily mandated in the US through the America COMPETES Act, passed in 2007. Although the Indian government appears to have drawn inspiration from this Act in framing a recent Innovation Bill, it has surprisingly left out this important feature.

Only a conscious effort at romanticizing innovation will help us leverage the one advantage that we have over the rest of the world: a large and creative workforce. Bollywood has already taken the first step in this direction by giving us an “idiotic” hero who makes innovation look cool. Can we now leverage this sentiment to ensure life imitates art?"

Sunday, April 25, 2010

On the Solicitor-General's brief

A good story on the Solicitor-General, Gopal Subramanium's U.S. visit on the Headley trail.

The interesting question is whether the SG violated Section 8 (1)(e) of the Law Officers [Conditions of Service]Rules, 1972, notwithstanding the soundness of his legal advice to the Home Ministry on the Headley extradition issue. As the link shows, the 1972 Rules have been superseded in 1987, while Section 8 (1) (e) restricting the SG from advising any Ministry without the proposal or reference from the Ministry of Law Justice, DLA, seems to have been inserted in 2005.

Friday, April 23, 2010

WRB: The logic behind the seemingly illogical demands

The Women's Reservation Bill and the controversy surrounding it have invited many comments and counter-proposals. Some observers, for instance, have supported the proposal for amending the R.P.Act to force the political parties to nominate a certain number of women candidates in the elections, failing which they would lose their recognition. Critics of this proposal are concerned that this may not guarantee 33% seats in Parliament and state assemblies for women. The proponents of 'Let the parties reserve tickets for women' suggest that we could, while amending the R.P.Act for the purpose, require the parties not to field candidates from the same constituencies from which they were fielded last time, in order to not restrict women candidates to losing seats. They also suggest that the parties may be required to ensure that 38 per cent of their candidates are women, so that at least 33 per cent get elected. Interesting as these proposals are, they miss the logic behind the demand for 33%.

Proponents of 33% quota for women defend their demand on the ground that women have been deprived of sufficient representation for several decades, and therefore, the demand for 33% seats for women, is justified. The alternative proposals ask them to hope and experiment, instead of looking for guarantees, whereas the proponents of 33% see merit only in guaranteed representation. Alternative proposal-makers don't understand the obsession with 33 per cent. They may well be correct. But so have been many events in our history. Why did the British and the Indian nationalists choose August 15, 1947 as the Independence Day? Indeed, there is an interpretation that had we accepted Independence in 1948, we could have avoided the Partition riots. Take another instance. Our Constitution guarantees many rights, which could well have been left to chance and circumstances. But based on historical experience, our Constitution-makers and subsequently the Judiciary which expanded these rights, believed they were basic rights, and could not be left to the mercies of the state and non-State actors. Or take the question of 22% quota for SC/STs in education, jobs and representative bodies, fixed at the time of founding the Republic. The figure could well have been attacked as an irrational obsession. But we needed to arrive at some figure, based on the collective understanding of the extent of discrimination they suffered historically, and the nature of compensatory regime required to uplift them. Again, this could not have been left to chance, or hope that parties would field more SC/ST candidates out of benevolence.

The understanding of the proponents of undiluted 33% quota is also flawed. They assail the demand for sub-quota within 33% because they suggest that the compulsions of competitive politics will do justice to those who demand sub-quota. They may well be correct in their understanding of the political reality. But the proponents of sub-quota also demand guarantees, like the proponents of 33%. Well, an aspiration for guarantee can be denied on the ground that it could expressly violate the provisions of the Constitution. The answer is to reach a consensus on the required amendments, rather than fail to notice the force behind the rising aspirations among the hitherto excluded sections for representation through guaranteed quota.

Thursday, April 22, 2010

Why police and judiciary have taken Siras's side

AMU's gay lecturer Ramchandra Siras, was first illegally filmed in a compromising position with another man, then suspended by AMU. Though reinstated by the Allahabad High Court, he was found dead -- in suspicious circumstances -- soon after. The police have now arrested those responsible for the filming and are pursuing AMU officials. In this opinion piece in today's The Indian Express (see here, with a powerful illustration) I argue that Officialdom's unprecedented, if belated reaction, has something to do with the Delhi High Court's judgment last year decriminalising homosexuality (discussed extensively on this blog here.)

[For a signed statement on the events surrounding his death, see here .]

Wednesday, April 21, 2010

Guest Post: Bringing transparency and efficiency in Government functioning

The following is a guest post from Sushant Sinha, the person behind Indian Kanoon.

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While the Right to Information (RTI) Act empowers Indians to obtain any
information about government functioning, it is still mostly reactive in
nature. People have to ask for specific information which will be furnished
only with in a specific time frame. In the age of information technology such
delays are of astronomical order. Making information proactively
available to people can significantly improve government delivery of services
by providing transparency in government functioning. Imagine an ordinary Indian
citizen that can browse, search, plot and compare all government contracts with
a few clicks. How fantastic would that be?

Some government departments and agencies have starting providing information
proactively about their activity. However, it is not quite clear as to why many
departments are still trailing in providing the information. The potential is
widely subdued. One important problem is that the software used by government
departments is mostly in house developed and in a very bureaucratic fashion.
They are not usually not answerable to any citizen about how fresh and complete
the data is. Unfortunately, the software developers can control all these
decisions without being answerable. And many times it is not clear whether
government department is not providing the data or the software is hiding the
information.

What is needed is to open up the software that government is going to use. Some
citizens can easily look into why certain things are behaving the way they are
and educate others. Other citizens can contribute the features that they think
are important. Hence, the software that controls the government information
would be accessible to everyone for criticism and contribution.

Beside transparency issue, Government will also benefit by leveraging community
support for its software development projects. This will also speed up
development and bring e-services much quickly to the people.

Finally the question is how we can accomplish this idea. If government is ready
to open up its software development agencies, well and good. Otherwise we
should start CodeForIndia (very similar to the organization
http://codeforamerica.org/). This can operate independent of government and be
supported by other organizations interested in government transparency and
efficient delivery of services. The organization should compete then with
existing government agencies for software development for India.

Anonymous question (edited):

Is the idea to open up even more information on government functioning,
possibly all? Is that even practically or legally possible? How could
government function by opening up everything?

My Reply:

Of course there is some level of confidentiality required in government
functioning. I think it is legislature's job to clearly demarcate what is not
public information. Currently, RTI draws that line. I am only arguing that the
information that can be obtained by public using a petition should be
"proactively" available. And the objective of this effort should be to enable
government agencies/departments to proactively share it by providing
technological help. A lot of that is missing which limits government agencies
in sharing the data. And government benefits by zero cost in implementation.

Tuesday, April 20, 2010

From the latest Frontline....

The latest Frontline carries the cover story on the Dantewada massacre, analysing what has gone wrong with the Government's strategy. My article, Reluctant Reform, sums up the findings of the CAG's report on the modernisation of state police forces, and points to some lessons.

For those following the Justice Dinakaran affair, my Question of Propriety explains what is wrong with the Collegium.

Guest Post: The Equal Opportunity Commission Bill

Following is a guest post from Rahela Khorakiwala, who completed her LL.B. from Government Law College, Mumbai and is currently doing her LL.M. at NYU School of Law.

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The key concepts of the Equal Opportunity Commission Bill proposed by the Madhav Menon Committee are contained in the terms ‘equality’ and ‘development’. What is equality in this context? Equality here is a legal understanding of the term, as mentioned by the Commission in its Report. However, it is submitted that the concept of equality and inequality goes beyond a mere legalistic analysis. Equality should be understood not as something that can be conferred through an Article in the Constitution. Equality has to come from within society. It is only then that equality, as incorporated in the Constitution, can be truly realised. There is a need to change the societal understanding of the position of a person to make that person an ‘equal’ in society. Thus the question to be asked, when analysing the Bill of 2008, is whether it can truly manage to achieve this objective.

In this regard I have three main observations. One, that the institutional approach adopted by the Bill of 2008, may not be able to achieve the objective of truly guaranteeing equality in the sense that this papers talks of. Two, we need to problematise the notion of equality itself, as understood by the Statement of Objects and Reasons of the Bill, and analyse whether it can achieve this objective. Three, in any event, the Bill of 2008 takes a compartmentalising sector approach, which is problematic.

The institutional approach that the Bill of 2008 takes is a top-down approach as it does not have provisions for the involvement of extra-State actors like civil society. Therefore it is the State that plays the role of deciding what is ‘equal’ and which group of people need to be treated equally. Only the State can decide what equality is and there is no discussion amongst members of civil society or the people who are actually affected by the inequality. This is where the Equal Opportunity Commission must differ. It must evolve with the participation and input of civil society members, if it truly wishes to understand the deeply embedded discrimination in our society.

The role of the Commission will be more effective if it integrates the unequals of civil society into mainstream development instead. The Bill of 2008 puts the concepts of ‘equality’ and ‘development’ together. Therefore, the Bill suggests that in order to achieve equality, all persons must be integrated and assimilated into defined notions of equality and development – the concept of assimilating ‘them’ into ‘our’ perception of development. The question here is, is this a true guarantee of equality? For instance, when Mahatma Gandhi spoke of the caste system, he did not advocate abolishing the caste system, or assimilating the ‘untouchables’ into mainstream society. Instead, he renamed the caste group as Harijans and asserted that they should be treated equally in their present status – without any change. The differences, as he said, should be celebrated and not discriminated against. It is one thing to be different and another to be discriminated on the basis of that difference. The role of the Commission would be to prevent this discrimination as it exists today.

In the case of the Narmada Bachao Andolan, there is a similar issue at hand. The government is willing to rehabilitate the people and provide employment and some form of compensation for their displacement. But that is not what the people want. They want their forest land, for the forest is linked to their culture and identity. Thus for them, equality is not being assimilated into society and being given employment in the development and industrial projects established on their land. Equality for them is being allowed to be different from the mainstream, and not being discriminated against for such difference.

A third perspective on the Bill of 2008 is that it compartmentalises its reach to the fields of education and employment, thus taking a sector approach. This paper submits that such an approach is not necessarily beneficial. It channelizes its efforts into a narrow form instead of tackling the larger issue at hand. As per the Statement of Objects and Reasons, the Bill of 2008 should identify the problem areas at large and give recommendations for what can be done to uplift the citizens and integrate them into mainstream society – and modify this need based on the given set of circumstances.

Thus, the Commission needs to analyze the underlying social structure in which inequality is embedded. For example, the caste system is inherently discriminatory and is still strongly practiced across India. Minority discrimination is also rampant. The Commission needs to question these inherently discriminatory actions that create a group of unequals in society.

This can be a challenging task as the Commission is a government body and a large part of discrimination does occur through the government. Therefore, the Commission, being recommendatory in nature, is not bound by the governmental sanctions and restrictions. It has the potential to permeate through this societal structure by creating awareness of this discrimination. Not only will it create awareness, but it will give the unequals in society a voice to express their concerns.

India’s inherent discrimination – the same factors that created the Constitution with caveats to reservation and equal status and opportunity – explicitly illustrates the need for the formation of this Commission. However, it needs to be broader in its understanding of the notion of equality. All the approaches to equality thus far have been strongly legal, and the Commission needs to break away from this and understand the approaches to integration that can tackle these issues. The Commission needs to understand that assimilating unequals into mainstream society in the name of development is not the answer to the problem of discrimination. The Commission needs to integrate those discriminated against by maintaining their unique identities – a task that I believe a Commission of this stature has the potential to achieve.

Further, if the Commission does indeed achieve all its objectives, it still needs to debate on what actually is ‘equality’. Is it assimilation in society? Or is it the integration of different castes? Or does it mean reservation in the public and private sector? Or the widening scope of Article 14? As the Commission caters to unequals, it will soon realise what ‘equality’ means in context and how that largely differs from the basic concept as understood in Article 14.

The Commission needs to work on the recognizing of different identities and facilitate the process of making the marginalized (“them”) into the equals (“us”), while maintaining difference, yet removing discrimination.

Friday, April 16, 2010

Centre for Disability Studies

Centre for Disability Studies – NALSAR University of Law, Hyderabad



Internship Programme for Law Students



The Centre for Disability Studies, NALSAR University of Law invites applications for its summer internship programme from interested undergraduate and postgraduate law students. The Centre headed by Professor Amita Dhanda is geared to generate legal knowledge on disability issues and to promote a rights based discourse on disability. The Centre is engaged in research-based activities to catalyze State and civil society understanding on disability rights along with documenting current developments in disability law and policy.



The Centre for Disability Studies functions through the following five wings (a) Teaching and Training; (b) Awareness Building and Sensitization; (c) Litigation and Conveyancing; (d) Research and Publication and (e) Documentation.



Currently, the Centre is involved with the following activities –



(1) Preparing the Country Report on the UN Convention on the Rights of Persons with Disabilities (UNCRPD)

(2) Proposing Amendments to the National Trust Act of 1999 in order to bring it in conformity with the CRPD

(3) Documenting the lived experience of persons with disabilities placed under legal guardianship

(4) Devising Customized Capacity Building Programs for Non-Governmental Organizations on the UNCRPD to enhance their community based initiatives on disability rights.

(5)Curriculum Development for an Awareness Raising Distance Education Program



The Centre will accept applications for a period of four to six weeks for the months of May, June and July. Applicants must state whether they are applying for a full-time internship based in Hyderabad or a part-time research internship. The part-time research internship will require students to conduct research and gather information about the state of the rights of persons with disabilities based on their location during the internship period for preparation of the Country Report on the UNCRPD. For effectively documenting the rights status of persons with disabilities in every part of the country, students based in the north-eastern states, hilly regions and rural areas are encouraged to apply. The centre is also keen to engage students with disabilities in various activities of the Centre. Internship applicants should submit an updated resume together with a one page personal statement, on interest in human rights generally and disability law and rights more particularly. The application must highlight the specific areas of interest of the applicant so as to facilitate the placement with a particular wing/current task of the Centre. Applications will be considered on a rolling basis. Applications, nominations and enquiries should be addressed to the Head of the Centre for Disability Studies at internships.cds@gmail.com

Thursday, April 15, 2010

NAC-II: Why we must oppose it, and what is the alternative

The National Advisory Council is being reconstituted. Its previous avatar saw a vigorous debate on its constitutional illegitimacy, one that is completely absent this time around. There is a sense that NAC-I did good things (RTI, NREGA), so why oppose it? PB Mehta wrote one of the more critical pieces on NAC-II, but even he focussed only on the lack of clarity over its 'mandate and priorities', rather than its fundamental illegitimacy.

I believe there are good reasons why it was a good thing NAC-I died abruptly, and why NAC-II should not be brought into existence. The critique is familiar: NAC is an undemocratic, unaccountable, constitutionally illegitimate body which must not be supported for strategic/pragmatic reasons. We are setting a dangerous precedent that will come back to haunt us -- how difficult is it to imagine a future government instituting an NAC packed with cultural-nationalists who direct the policy agenda of the country? No one will be able to object to it because no one is objecting to NAC-II. Its legitimacy appears to have been established. And it is not supposed to be democratic or accountable anyway - so who then can question its composition? On what grounds? The current balance of power may have induced some liberals and democrats to accept the NAC, but balance of power changes. We will come to regret having cheered NAC-II just as some of us came to regret having cheered judicial self-empowerment in the '80s. This is always a danger when we compromise on principles for short-term 'pragmatic' gains.

One way to understand the NAC is to see it as a unique institution made necessary by a unique set of circumstances where the leader of the party in power is not the Prime Minister. But political parties tend to have internal processes to influence governmental policy in any case: the letters exchanged between the Congress Party President and the Prime Minister over the last few years and made public recently suggest that this government is no exception. At any rate, the Cabinet, on the whole, reflects the Party leadership. The Party does not need an NAC to influence government policy. The real strength of NAC-I was in bringing in inputs of those who are engaged in non-electoral/civil society politics into governmental policy-making. Although government-appointed ad hoc commissions comprising experts and academics have always advised on policy, NAC is unique in being an official, apparently permanent, policy-proposing body with potentially limitless agenda, and whose members are hand-picked by the President of the ruling party.

While NAC-I may have been productive, this institutional arrangement remains a misguided response to an important and legitimate question: how do we make governmental policy-making consultative, where stake-holders, interest groups and experts are involved in the process. Our mid-20th century political institutions envisage political parties as the only actors in the polity, who make policy indirectly through control of the executive and the legislature. But politics and society have changed since then. NGOs, civil society, interest groups, academics, think-tanks and other experts have become important players in policy making, whose contribution is usually productive. But most of these actors tend not to seek or desire membership of legislatures.

A far better way to accommodate non-party-based democratic voices in the policy-making process is by reforming our legislative processes. Currently, draft Bills are publicly circulated only in an ad hoc fashion by the concerned Ministry. This news item suggests that even Opposition parties find it difficult to access draft Bills (See also, these opinion pieces calling for more transparency in law-making: I and II). Nothing stops the government from introducing a Bill and getting it passed by Parliament within a matter of days. Institutionalising pre-legislative processes where draft Bills are routinely made public, circulated and scrutinised before their introduction in Parliament will be a good start. Legislatures elsewhere have evolved mechanisms whereby their Committees regularly invite experts, academics and grassroots activists for giving evidence on policies being considered. Our parliamentary committees, on the other hand, still hold closed door meetings. Indeed, our system disincentivises even MPs from participating in policy-making. We burden our legislators with administrative duties, requiring them to disburse MPLAD funds. We offer them no research assistance. We do not even allow them to speak their minds and vote according to their conscience. All this needs a serious rethink.

The solution to the need for a more consultative, democratic policy-making lies in strengthening and adapting parliamentary procedures, rather than creating alternative power centres like the NAC that may come to challenge and discredit parliamentary authority. If Ms Gandhi still finds the NAC helpful, let it be a non-governmental think-tank. A democratically-elected Parliament (and state legislatures) must remain the only official fora where policy is discussed, scrutinised and finalised.

Wednesday, April 14, 2010

Are Independent People's Tribunals a farce?

Have written an opinion piece in today's The Indian Express, critical of the three-day Independent People's Tribunal on Tribals, land grab and Operation Greenhunt. Would be glad to know of informal, civil-society 'tribunals' around the world, and what procedure they follow. Which are the ones that have come to earn respect? What did they do right?

Tuesday, April 13, 2010

Legislating Rights: Parliament, Courts and Separation of Powers

In an interesting column in the Indian Express, Mihir Sharma ponders over 'The Four Rights that millennial India has promised its people — to information, to food, to education, and to (rural) employment' and notes that they 'aren’t just remarkably ambitious for a state that has never impressed with its efficiency. They also represent a shift in how we think about governance'. He claims that this is not a partisan agenda driven by 'Congress-under-Sonia': instead, he suggests that a BJP government would have done little different. We can only speculate on this claim, given that our Opposition parties mostly remain reactive to government policy - very rarely do we see them initiating policy debates proactively between elections.

But we can consider Sharma's other controversial suggestion that this move to constitutionalise socio-economic rights is a largely-judicial reaction to poor governance by other branches of the government (a phenomenon, he suggests, that can be seen globally rather than just in India). At least in the contemporary Indian context, this claim needs to be nuanced. While it is true that the constitutionalisation of socio-economic rights was driven by judicial pronouncements in the 1980s and the 90s, what we are witnessing in this century is something quite different. Unlike broadly-worded, unenforceable declaratory orders that courts made in recognising a constitutional right to food, shelter, employment, information etc, most of the current initiatives are legislative. They usually come complete with attention to details regarding enforcement, budgets and individual entitlements. The probable exception is the Right to Food case where the Supreme Court has tried to mirror a legislative intervention by not merely declaring a constitutional right to food, but identifying details of entitlements and overseeing implementation. But the right to food case is exceptional, and so it should remain (it appears, at any rate, that Parliament will take over the right to food agenda from the courts before too long). A deliberative legislative process is usually a much-better way of attending to details of entitlements and enforcement, even when they concern positive rights. That Parliament has finally decided to take this role seriously needs to be noted and commended.

This is not to suggest that the courts did not play their part. Perhaps judicial declarations of these goods as 'rights' laid the necessary groundwork for Parliament to build upon two decades later. Surely, it mattered that what was being legislated upon was not state largesse but a constitutional right. One has only to compare the usually top-down 'welfare' legislation of the pre-Emergency era which betrayed remarkable faith in honest implementation by benign bureaucrats with the broadly victim-driven, state-sceptic 'rights' legislation we now have. This claim regarding the movement from 'welfare' to 'rights' and the attendant difference in enforcement mechanisms, is, admittedly, based on generalisation and intuition rather than any serious research. But I suspect there might be some truth in it. At any rate, any story on these new social rights cannot afford to ignore the very important role that Parliament is playing in shaping and delivering them, even when it rightly acknowledges the courts for initiating the process.

Two implications follow. First, legal academics not only need to acknowledge, perhaps even celebrate, a resurgent Parliament, the often-ignored legislative process now deserves critical scholarly attention. This task has mostly been left with broadcast media, which loves noisy scenes in Parliament but has no time for MPs questions or work done in committees. State legislatures fare even worse in attracting legal scholars. Academic attention to the functioning of the legislative committees, to MPs/MLAs questions, to lack of transparency and consultation in the pre-legislative process, to private members' bills, to anti-defection laws, to executive non-notification of legislative acts etc is urgently needed. The folks at PRS have begun taking the legislatures seriously, but much more needs to be done by many more people.

Secondly, if my above-mentioned intuitions regarding the realisation of social rights in India are true, the traditional view of separation of powers where different branches of government battle it out for supremacy is too simplistic. Practice suggests a two-way conversation: not only does Parliament take more seriously what the courts declare as a 'right', constitutional courts often invite policy suggestions from executive and legislative wings of government and incorporate them in their orders. Co-operative and/or dialogic accounts of separation of powers might provide a better account of practice and make more sense normatively.

Bar Council Election and the Prospects of an Indian Bar Exam

Gopal Subramanium, the current Solicitor General was recently elected as the Chairman of the Bar Council of India. We wish him the very best as he pilots this body and the profession that it represents to new heights.

In an earlier post, we highlighted a Supreme Court ruling that relied extensively on a report by Mr Subramanium and mandated the conduct of bar exams this year. Now that he has been elected as the Bar Council Chairman, the prospects of such an exam in the near future seem real.

Thursday, April 08, 2010

Naz Foundation case: A response to K.V.Dhananjay

My last post reproducing K.V.Dhananjay's view that the SLPs in the Naz Foundation case do not survive after the Supreme Court's judgment in the Laloo Prasad case has led to an interesting discussion in the comments section of that post. In this post, we are publishing a critique of Dhananjay's view from a reader:

The contents of this post should have been verified. Lalu Prasad's case was decided by a 3 judge bench with R.M. Lodha, J. delivering the verdict. The question turned on the interpretation of clauses (1) and (2) of Section 378 of the Code of Criminal Procedure. There was no general prescription about limiting the right to appeal which is anyway subject to statutory controls. The Court held that the State government cannot appeal against an acquittal by a CBI Court in a case which was investigated by the CBI in its entirety. I fail to see how this can be extrapolated to argue that private parties cannot file SLPs in a matter where the validity of a legislative provision is in question. Lalu Prasad and Naz foundation are two distinct types of cases.

The real point of concern is the intrusion into states' rights in the criminal justice system. In the Lalu Prasad case the Court has adopted a strict textual reading of the savings clause in Section 378(1) of the CrPC. This should be seen in conjunction with the recent constitution bench judgment authored by D.K. Jain,J. wherein it was held that the writ courts can order CBI probes without the consent of
State governments. So in effect the agency of the State Governments has been diluted both with respect to conducting investigation and subsequently filing an appeal against a finding of acquittal by CBI Courts.

Insulation, Judicial and Otherwise

1. In this piece in the Economic and Political Weekly, I analyze what I term (for lack of better terminology) the “democratic” and “political” insulation of India’s constitutional judiciary.

2. In this piece in the Economist, one reads of the insulation of Arunachal Pradesh, where you need an “inner line permit” for entry. There are tensions between cultural preservation and national integration, between Article 19(1)(d) and Article 29(1). Constitutionally speaking, the "marketplace of ideas" concern encapsulated in Article 19 is sometimes sacrificed for the preservation of some ideas, understood as linguistic and cultural identities. Under our constitution, the freedom to move freely throughout the territory of India is subject to “reasonable” restrictions in favor of the “general public” and “scheduled tribes”. Some cultures require insulation for preservation – in other words Article 19(1)(d) must be subordinated to Article 29(1). The question is, where does one draw the line: how do we distinguish the notorious linguistic chauvinist of Maharashtra from those wary of cultural dissipation in the north east? (Again, questions asked, but no answers offered)

Wednesday, April 07, 2010

Justice A.P.Shah's inspiring legacy

Marking the retirement of Justice A.P. Shah as Chief Justice of the Delhi High Court and recognizing his judicial legacy characterized by his consistent sympathy for the rights of the poor, the weak and the marginalized, an umbrella of 15 human rights organizations, people’s movements and academic/cultural institutions organised a Panel address on the issue of Sensitizing the Judiciary to the Rights of the Poor – The Judicial Legacy of Justice A.P. Shah. The Panel address was held at the Nehru Memorial Museum and Library (Main Auditorium), Teen Murti House, New Delhi on the 6th of April 2010 at from 4:30p.m. – 7:30p.m.

The address was an occasion to focus on the judicial responses towards the poor spanning the 70s and the 80s when liberal judges in the Supreme Court like Justice Krishna Iyer, Justice P.N. Bhagwati and Justice Chinappa Reddy et al. expanded the rights of the poor by liberally interpreting the fundamental rights to bring them in tune with the other guiding principles of the Constitution, namely, the directive principles of state policy. Thus Article 21 of the Constitution was interpreted to include the right to food, the right to health care, the right to shelter, the right to education, the right to a healthy environment, etc.

Beginning with the 90s however, one began to see a reversal of this trend, not so much by way of overruling the previous judgements by giving a more conservative interpretation of rights, but by way of refusing to implement these rights as declared by the court itself. Thus, workers rights liberally interpreted in the 70s and 80s were rendered nugatory by the Supreme Court refusing to implement the Contract Labour (Regulation and Abolition) Act and the Industrial Disputes Act in dozens of cases. One began to see the High Courts and the Supreme Court itself ordering demolition of jhuggis without rehabilitation, removal of hawkers from streets without an alternative space for hawking, removal of rickshaw pullers from the streets without an alternative livelihood option – and thus violating their Article 21 rights. All this was usually done on the ostensible basis of a clean and health environment. Thus the homes of more than a 100, 000 people were ordered to be demolished on the Yamuna Pushta on the basis that they were polluting the Yamuna which was an eco fragile zone. It is in these dark judicial times for the poor that Justice A.P. Shah’s judicial legacy stands out by contrast and comes as a breath of fresh air. Throughout his career as a Judge, Justice Shah has delivered several landmark and progressive judgements. However what sets him apart is his consistent sensitivity to the rights of the poor, the weak and the marginalised.

Eminent panelists, who have been involved in and have been speaking out on these issues included Mr. Anil Divan (Senior Advocate), Mr. Shanti Bhushan (Senior Advocate), Swami Agnivesh (Human Rights Activist), Prof. Upendra Baxi (former VC, Delhi University), Mr. Shekhar Singh (RTI Activist), Ms. Madhu Kishwar (Prof. CSDS and founder Manushi), Prof. Babu Mathew (Director, Action Aid), Mr. Miloon Kothari (Former UN Special Rapporteur on Adequate Housing), Mr. Prashant Bhushan (Advocate), Mr. Dunu Roy (Director , Hazard Centre) and Mr. Gautam Bhan (Sexuality Rights Activist). The address was attended by over 200 people including social activists, academicians, people’s movement’s representatives, lawyers, students, etc.

Senior advocate and former law minister, Mr. Shanti Bhushan, set the tone for the discussion by highlighting the four qualities of a good judge, all of which he stated were present in full measure in Justice A.P. Shah, namely, integrity, knowledge of the law, sensitivity towards the poor and basic courtesy. Justice Shah with his extraordinary sensitivity towards the poor stands out as an exception to the rather callous attitude of the judiciary towards the rights of the weak and marginalised.

Renowned human rights activist Swami Agnivesh reiterated Justice Shah’s exceptional sensitivity towards the poor but cautioned that an exception like Justice Shah did not clear the judiciary of its tarnished reputation as being unaccountable and unresponsive to the common segment of society. He recalled his experience with fighting the Bandhua Mukti Morcha case in mid-1980s, and how the SC's judgment, authored by Justice P.B.Bhagwati, remained to be enforced. His experience with Justice Bhagwati who did not ensure its enforcement, before his retirement, made him pessimistic about the role of the Judiciary and the media in subsequent years.

Senior advocate Mr. Anil Divan emphasised the need to keep up the fight against judicial corruption and unaccountability and highlighted the failure in the system of judicial appointments, citing as example the case of the appointment of Justice Ashok Kumar as permanent judge of the Madras High Court in Febuary 2007, without any consultation with the collegium of judges as required by the law laid down by the Supreme court and despite his not being confirmed earlier on grounds of integrity. He also referred to the murky Ghaziabad Provident Fund scam where several judges of the High Court and a Supreme Court judge were named as beneficiaries of the illegal withdrawals. He emphasised the importance of the pressure of public opinion in the fight towards reclaiming the judiciary for the people in a democratic state like India.

Ms. Madhu Kishwar, Prof CSDS and founder Manushi, demonstrated the depth of Justice Shah’s understanding of the needs of the common citizen by citing his exceptional judgment in the rickshaw pullers case in which he not only held as unconstitutional the licence quota on rickshaw plying but also de-legitimised the owner-puller policy, which in the garb of being pro-poor played much to the detriment of the average rickshaw puller. The judgement further ordered the Chief Secretary of Delhi to constitute a task force to review the cycle rickshaw policy as well as equitable road space sharing, all of which is to be monitored by the Hon’ble court itself. She recalled that the Judges who heard the case before Justice Shah showed indifference and disdain to the petitioners in this case. She said Justice Shah listened carefully to the arguments,and never played to the gallery. He was never guilty of knee-jerk responses, typical of many Judges who do so, in order to make it to the newspapers. Great thought went into each one of his orders, she said.

Mr Miloon Kothari, former UN Special Rappoteur on Adequate housing, detailed Justice Shah’s judgements which came as a breather for the mass slum dwellers in the city as he order the right to humane relocation in case their lands are required for public purposes and the rights of the homeless to night shelters.

RTI Activist Shekhar Singh highlighted the absurdity of the whole judges’ assets controversy with the Supreme Court now in appeal before itself from the full Bench decision of the Delhi High Court as well as the judiciary’s constant struggle to shield itself from the full application of the Right to Information law.

Prof. Upendra Baxi, former Vice Chancellor Delhi University, defined Justice Shah and those who honour his legacy today as “Part IV A citizens” of the country emphasising the need for all to focus on their fundamental duties as embodied in the Constitution of India. The other categories of citizens, in terms of the Constitutional scheme, are Part III, Part IV, Article 311 and Part V. Justice Shah redefined “dignity” in many of his judgments with his humane understanding of the plight of the weaker and poorer sections of Indian society. Developing “Citizen Justices” like Justice Shah with an equally responsible “Citizen Bar” would pave the way towards a systematic renovation of the judicial system.

Drawing a parallel with the creeping in of neo liberalism in the 1990s with the peaking of the tremendous process of social exclusion, Prof. Babu Mathew brought out a realistic picture as he stated that there has now been increasing consensus among the academic and social thinkers that nearly half of India’s population falls within this excluded category. He pointed towards the need to draw lessons from Justice Shah’s legacy that used law as an appropriate means of social change. His judgments came as a moral booster that further enables people to better rally and organise themselves with this new ray of hope.

Mr. Gautam Bhan, sexuality rights activist, brought forward Justice Shah’s inclusive understanding of the rights of every citizens as was reflected in his courageous and reasoned S. 377 judgment upholding the rights of sexual minorities and his interpretation of “constitutional morality”. From the decline in the attitude of the Judiciary towards the rights of the poor in the 90s, panellists took note that with exceptions like Justice AP Shah becoming a role model for the judiciary to emulate, we may begin to see a reversal of this declining trend in the years ahead.

Justice Shah’s retirement from the judiciary marked an important occasion to focus on the role of the judiciary as protectors of the rights of the weak and marginalized section of Indian society and the panellists were unanimous in emphasising the importance of a Judiciary that is a truly people’s judiciary, responsible and accountable to the people of this country.

The panel concluded with the hope that Justice Shah’s legacy will become a beacon for the judiciary in this country to emulate so that we can again reclaim this republic for the common people of this country.

(Based on the press note issued by the organisers of the Panel Discussion and on my notes)

From the latest Frontline....

*My post on the dyslexic student failing to get interim relief from the Supreme Court invited quite a few insightful comments. My thanks to all the commentators, though my article does not reflect all the comments.

*My review of Rajeev Bhargava's The Promise of India's secular democracy and Ronojoy Sen's Article of Faith (both published by OUP).

Naz Foundation case: Update

The Naz Foundation case is coming up before the Chief Justice's Bench tomorrow. It is listed as Item No.8. The causelist shows that there are as many as 13 SLPs which will be heard together. Meanwhile, one of our readers, K.V.Dhananjay, has raised the following interesting issue with regard to the hearing of the case:

The decision of the Supreme Court in the case of Laloo Prasad Yadav v. State of Bihar delivered on April 1st, 2010 establishes a principle that where the Government of India waives its right to appeal a decision of a court, even a directly-and-immediately affected State Government cannot step into the shoes of the Government of India and prefer an appeal in place of the Government of India.

Although the above judgment was delivered as an interpretation of the provisions of the Criminal Procedure Code, the reasoning employed by the Supreme Court would have equal application to all other cases where the proper Government waives its right to appeal and a different party seeks to appeal in place of the proper Government.

In the above case, the Government of India, despite public furore, chose not to appeal the acquittal of Laloo Prasad Yadav. This inaction led the Bihar Government to substitute itself for the Government of India and to appeal the acquittal before the Higher Court. The Supreme Court has held that the State Government did not have locus to compensate for the absence of appeal by the Government of India, and that if the Government of India chose not to appeal, the matter ends there.

The above reasoning, therefore, squarely applies also to the appeals preferred by private parties against the Naaz judgment before the Supreme Court. The Government of India was the losing Respondent in the Delhi High Court in the Naaz matter, and it took a conscious decision to not appeal the Naaz judgment to the Supreme Court.

The Naaz appeals to the Supreme Court is not even a case where any State Government has sought to appeal in place of the Government of India. Rather, it is a case where purely private parties are asking the Supreme Court to allow them to compensate for the absence of the Government of India and to appeal Naaz judgment. Applying the central principle of the Constitution Bench decision in Laloo Prasad Yadav’s case, the Supreme Court is now bound to dismiss all appeals filed by private parties against the Naaz judgment - given that the Naaz appeals will be heard on Thursday by the Supreme Court and this would be the first practical occasion for the Court to apply the principle it has just delivered in the Laloo Prasad Yadav judgment.

If an analogy could be drawn here and a State Government could be likened to a ‘child’ and the Central Government to a ‘father’, the Court has essentially held that not even a ‘child’ can appeal in place of the ‘father’. The Naaz judgment appeals are more in the nature of a ‘neighbour’ wanting to appeal in place of the ‘father’! The obvious legal conclusion is that the appeal preferred by private parties is not at all maintainable, and the Naaz appeals are liable to be dismissed forthwith.

There is not ONE argument that the private parties in the Naaz appeal could possibly make which the Government of Bihar could not have made in the Laloo Yadav’s case.

However, some might argue that the facts in Laloo Yadav’s case and in Naaz Foundation are very diverse from one another, and that the judgment in Laloo Yadav’s case cannot be applied to the Naaz appeals. Notwithstanding huge diversity in facts, the principle of law that one gathers from Laloo Yadav’s case is fully applicable to the Naaz appeals.

At any rate, the Laloo Prasad decision appears to have not accorded any weightage to the argument that a different party who appeals could suffer from a lack of information, and that such lack of information could prejudice the appeal. Similarly, the Supreme Court did not accord any weightage to the argument that a higher Court could, in exercise of its inherent powers, allow a different party to appeal in place of the original litigant on grounds of Public Policy. If at all the Court were to be allow the Naaz appeals to continue by evolving a new legal principle based on the above two arguments, such new principle is bound to cast doubts on the correctness and enduring nature of the decision in Laloo Prasad case. So, should the Naaz appeals continue in Court, the Laloo Yadav decision, too, will have to be reconsidered by the Court.

Therefore, the Laloo Prasad decision rendered 4 days ago now cuts the ground from under the feet of the Naaz appellants.
And, should Naaz appeals be dismissed by the Supreme Court, effective the date of dismissal, Section 377 will cease to operate across India - in the manner decided by the Delhi High Court in the Naaz judgment.
CORRECTION: An earlier version of this post suggested that the decision in the Laloo Prasad case was delivered by a 5-Judge Constitution Bench. This inadvertent error has now been corrected, thanks to a reader pointing it out.

Monday, April 05, 2010

Criminal Law (Amendment) Bill, 2010

The draft Criminal Law (Amendment) Bill, 2010 is available here for comments and suggestions. The Bill seeks to make sweeping changes to the Indian rape law regime. Interesting features include the following:
1. The term "sexual assault" replaces "rape". The definition is widened to include object and digital penetration (but the requirement of penetration as an element of rape is retained).
2. The bill retains the man-on-woman concept of sexual assault, instead of making the crime gender-neutral.
2. The Bill raises the age of consent to 18. This means that consent of a woman below the age of 18 is immaterial. Whether or not this is too high a threshold needs to be evaluated.
3. The Bill retains the marital rape exemption, a deeply problematic provision in any case. The problems with the section are compounded by the provision that under the age of 18, sexual intercourse by a man with his wife amounts to rape. While the intention seems good, as long as child marriage itself is not invalidated, any beneficial purpose of the provision would be largely lost.
4. The Bill imposes higher sentences for certain forms of acquaintance rape, particularly by relatives, those in positions of trust and those in positions of economic, social or political dominance.
5. Section 376C deals with sexual abuse of minors. Surprisingly the Bill amends the CrPC to include Section 198B to provide that cognizance shall not be taken of an offence under this section except on a police report or when a complaint is made by the victim or certain close relatives. This provision seems to fly in the face of logic, given clear evidence that children face the biggest threat of abuse from family members; that the culture of shame and silence surrounding sexual abuse ensures that children and their families will not readily speak out against such offences; and that other care-givers like educators might be equally well (if not better) placed to complain about such offences.
These are some initial thoughts on the draft Bill. A comparison with the 172nd Law Commission Report recommendations would be instructive in determining the pros and cons of the Bill.

Raising the Indian "Bar": Legality and Feasibility of a Proposed Exam

Despite being passed in December 2009, a Supreme Court judgment with tremendous ramifications for the practice of law came to our notice only recently.

In Bar Council of India v. Bonnie Foi Law College, Justice Dalveer Bhandari and Justice H. L. Dattu mandated the Center to conduct bar examinations to test candidates for their suitability or otherwise for entry into the legal profession.

You heard right: current law students who expect to graduate this year may not be able to don the robes of an advocate without first clearing a bar exam.

The Supreme Court order dated on 14 December 2009, came in the light of recommendations by a special committee constituted by the court and headed by the Solicitor General, Gopal Subramanium. This committee was primarily tasked with making recommendations concerning the manner of affiliation and recognition of law colleges by the Bar Council of India.

Upon receipt of the Committee report, the Supreme Court mandated the Centre to implement the recommendations, explicitly referring to the introduction of a Bar Examination:

“The most significant achievement of this entire exercise has been the introduction of the Bar Examination. Learned Solicitor General submits that the first Bar Examination shall be conducted in July-August, 2010 by a specially constituted independent body, consisting of experts of various disciplines of national stature. In the facts and circumstances of this case, we deem it appropriate to direct the Central Government to ensure that the entire programme framed by the three-member Committee is operationalized forthwith. We further direct the concerned institutions to fully cooperate with the Bar Council of India.”

India is not new to bar exams. The Indian Advocates Act, 1961 required holders of law degrees who wished to enter practice to complete a course in practical training and also pass an examination. But, in 1973, this provision was deleted by way of amendment, and since then, a law graduate from a BCI-recognized university could directly enroll as a lawyer. The BCI attempted to introduce an apprenticeship or practical training course in 1998, whereby recently graduated law students would have to work for a year with a counsel before they could enrol as advocates. However, the Supreme Court struck it down on grounds of lack of competence (see V. Sudeer v. Bar Council of India, AIR 1999 SC 1167).

The Court held that under the prevailing statutory framework, the BCI did not have the authority to prescribe conditions for training and examinations after graduation; it would first have to amend the Advocates Act to confer such powers unto itself. Notwithstanding this, the court still went on to explicitly endorse the need for an apprenticeship and a Bar examination, albeit after appropriate statutory amendments in this regard.

In the light of the V Sudeer case, one is forced to contend with the legality of the current Supreme Court mandate in favour of bar exams. Needless to state, the Supremes are well within their right to reverse Sudeer or distinguish it, but neither of it happened in the present (Bonnie vs OUI) case. In fact, the Supreme Court was not even deciding the issue of whether or not bar council exams could be introduced by the Bar Council without an enabling amendment to the Advocates Act.

The other tricky part of this ruling is that it could be construed as a judicial mandate for legislative amendment. In effect, the Supreme Court has directed the Center to implement the Committee report and permit the holding of a bar exam by a certain date. But if such bar exam can only be legally instituted after legislative amendment, one might argue that the court has effectively directed the center to move such legislative amendment. Is this constitutionally sustainable? If such amendment is indeed part of the mandate, can the government formulate such a bill and present it before the end of this budget session to comply with the July-August 2010 date?

In fact, the report by the SG committee clearly recognizes the need for legislative amendment in this regard:

“A Bar Examination should be introduced for the purpose of admitting law graduates to the Bar: As discussed supra, the introduction of a bar examination would ensure maintenance of standards in the legal profession, as well as standardization and constant innovation in the standards of curriculum, teaching methodology etc. The Committee is, therefore, of the opinion that qualifying a bar examination should be made a requirement prior to admission to the Bar by all State Bar Councils across the country. In light of the decision of the Supreme Court in the V. Sudeer case, such a requirement may be introduced in the Advocates Act, 1961 by means of a statutory amendment."

Given that the Supreme Court was only directing an implementation of the Committee Report, one might argue that their order be construed as a mandate to the Centre to also begin the process of amending the Advocates Act. If this is so, can the Center comply with the courts time-frame to permit the Bar Council and other relevant authorities to hold such examinations by July-August 2010? The Center is already reeling under the pressure of multiple bills, some of which it now fears will not sail through as it initially expected (the one on nuclear liability limitation posing the greatest set of problems for it). Given that it is thinking of stalling some of these bills, will it take on another one at this stage and within this short time frame?

Anyway back to the report of the Committee. Prior to framing his report, the Solicitor General had solicited comments from a few of us involved in legal education. Pursuant to his request, we sent him a rather lengthy note, strongly recommending a bar exam as a potential “quality” control measure. For this interested, we’ve put up this note on SSRN (we are in the process of revising this note for the purpose of publication in a law journal).

In this piece, we specifically note:

"This note (prepared in response to a request from a Supreme Court Committee) begins by analysing the constitutional and regulatory framework pertaining to legal education in India with special emphasis on the two principal authorities in this sphere: The BCI and the UGC. It then goes on to describe ambiguities and criticism regarding the ambit of the BCI’s powers, and accreditation mechanisms in higher education in a few other countries.

It then goes on to recommend reforms, most of which can be effectuated within the corners of the existing regulatory framework, without the need for statutory reform. Others may require statutory amendments.

The principal recommendations made in this note are as follows:

i) Indian legal education ought to encompass much more than merely training students for the bar. Indeed, the aim ought to be to create an effective social engineer who is socially sensitive and uses the law in myriad ways to help better society.

ii) The Bar Council of India (BCI) has no legal/constitutional authority to regulate the full spectrum of legal education, independent of the Universities. In fact, Section 7(1)(h) of the Advocates Act clearly mentions that the BCI is to lay down standards of legal education in consultation with the Universities in India imparting such education and the State Bar Councils.

iii) An all-India Bar Entrance Examination should be introduced as a quality-control mechanism, instead of the existing accreditation system which is patently flawed, ineffective, costly and subject to abuse. It will not only ensure a qualitative check on the number of lawyers entering the Bar, but would also give the Bar Council scope to regulate legal education in a more robust manner.

iv) As a more substantive policy measure, we recommend a more thorough overhaul of the present regulatory structure pertaining to legal education in India. The BCI powers should only extend to regulating that aspect of legal education that is intrinsically connected with the practice of law at the Bar. Some of the regulatory functions that are presently being performed by the BCI, and which do not relate directly to practice at the Bar should be devolved to another authority. This authority should ideally be a standing committee on legal education under the IRAHE as proposed by the NKC."

Interestingly, the Supreme order also endorses the Committee’s recommendation for a Directorate of Legal Education under the BCI – a body meant to specifically regulate legal education within the bounds of the BCI powers. This was recently made operational, under the leadership of Prof. VB Coutinho. Rahul Singh, who taught at NLS Bangalore till recently, has been appointed as the Deputy Director. Our very best wishes as this body tries to navigate the rather challenging terrain of legal education.

By: Shamnad Basheer and Sroyon Mukherjee

Bar Council of India vs Bonnie FOI Law College and Ors

Petition(s) for Special Leave to Appeal (Civil) No(s).22337/2008 (From the judgement and order dated 17/03/2008 in WP No.13698/2007 of the HIGH COURT OF M.P. AT JABALPUR)

BAR COUNCIL OF INDIA: Petitioner(s) VERSUS BONNIE FOI LAW COLLEGE & ORS: Respondent(s)
(With appln(s) for exemption from filing O.T., vacating stay, directions and with prayer for interim relief and office report) (FOR FINAL DISPOSAL) Date: 14/12/2009

This Petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DALVEER BHANDARI
HON'BLE MR. JUSTICE H.L. DATTU

For Petitioner(s): Mr. Gopal Subramanium, SG, Mr. Anand Varma,Adv. Mr. Sanjeev Sachdeva,Adv., Mr. Nagendra Kasana,Adv.

For Respondent(s): Mr. B.K. Satija,Adv.

UPON hearing counsel the Court made the following ORDER.

We have heard Mr. Gopal Subramanium, learned Solicitor General of India. In pursuance of the directions of this Court, the time frame for implementation of the three-member Committee report has been given to the Court. According to this time frame, preparation of parameters and list of experts for inspection of Law Schools/Colleges would be completed by 31st December, 2009.

Mr. Subramanium also submitted that the Directorate of Legal Education will be operationalized by 31st of December, 2009 and the Directory of Law Schools and Law Colleges will be prepared by 15th January, 2010. He further submitted that the institutions which have not been inspected earlier, would be inspected on or before 31st January, 2010. Mr. Subramanium further submitted that preparation of a detailed database of all law schools and law colleges would be prepared by 31st January, 2010. He also informed the Court that a meeting of the National Legal Knowledge Council has been fixed on 1st February, 2010.

The most significant achievement of this entire exercise has been the introduction of the Bar Examination. Learned Solicitor General submits that the first Bar Examination shall be conducted in July-August, 2010 by a specially constituted independent body, consisting of experts of various disciplines of national stature.

In the facts and circumstances of this case, we deem it appropriate to direct the Central Government to ensure that the entire programme framed by the three-member Committee is operationalized forthwith. We further direct the concerned institutions to fully cooperate with the Bar Council of India. We deem it appropriate to list this matter for further directions on 8th February, 2010 at 2.00 p.m.