News and current affairs

It's that time of the year again. Different queer collectives across the country are gathering round to discuss pride events. There are talks of pride this year commemorating the anniversary of the Naz Foundation judgment - the 2nd of July. Others would like it shifted to the less punIshing winter months.

As the latest meeting concludes, I remember the first time I went for pride myself. It was last year, in June, the Bangalore pride. 6 of us had made the weekend trip from NALSAR to Bangalore, the more enthusiastic like me having vibgyor-ed a shirt with the catchline "Closets are for Clothes".

Exhausted, exhilarated, I recount my weekend at the Pride March to friends back in college. I narrate the incident of a television camera zooming close by as we steadily made our way towards the Bangalore town hall. As it honed in, and i noticed the NDTV 24X7 logo, I clasped on a mask in alarm, compelled by the thought of my parents' horrified faces seeing their pride (ha) and glory marching down the road with hundreds of fellow LGBT's (not to forget them "Straight but not narrow" folks). 

A troubled look came across a friend's face as he questioned,  "Well, doesn't that defeat the purpose of pride ?" 

I thought about what he said, even as I remembered  the numerous other people in masks that day, in various degress of being out-ed. I have, for the past  2 years, considered myself completely out save for that final frontier - family. That, I conveniently relegate to the sidelines, consoling self with the "it's not practical just yet" argument. 

So what is the purpose of pride then ? I mulled it over tea, and I thought about it during an evening stroll. Sure, it's clear enough, it's about celebrating your identity, acknowledging comfort with your sexuality, and letting the world know : we're here, we're queer, and we're not going away. 

But for a minute, I also thought, beyond what it was  about, beyond what it meant. I flashed right back to the moment, when our car drove up to the starting spot next to National College. I thought about the rush of excitement as we hopped out, to a riotous blaze of colour. Chuckling at slogans, having my own prominent "Closets are for Clothes" photgraphed more than once. So many faces, so many people, some familiar, most not, yet all positively radiating with that common shared energy.

And then as the rainbow flags were unfurled and the drums began to beat and everyone crowded around to hold the flags up, hold them high for everyone to see ... I forgot the agenda, i forgot about who i knew and who i didn't and what this meant.

We were here, we were together in this, we were a community.

We were proud.

And so, I told my friend. Could he understand why this much really is enough ? For now, at least ? Sure I wish I could ignore my wonderfully convenient "practicality" argument and tell my folks anyway. Sure I wish that I'd have the courage to be able to live with them having shared that part of my identity, and be prepared for the consequences.

But till that moment comes, I have this. I have the strength of a community, the shared experience of hundreds who were present that day, and of millions across the world, our common tribulations, our shared euphoria. All coming together on that one cherished day. 

That, i think, is what Pride is all about.

8 things you should think about:

1. Under the Prevention of Torture Bill, 2010 the central or state government needs to give sanction for a court to take cognizance of an offence committed by a public servant. From what I see, state sponsored torture will seldom be prosecuted because the respective Government will never give permission.

2. Section 10 of the The Civil Liability for Nuclear Damage Bill 2010 states that either a District Judge or a person who has held the position of a Joint Secretary for at least five years with special knowledge in nuclear liability can be appointed as the claims commissioner.  First of all, what happened to the separation of powers? How can two different spheres be qualified for the same post? Second of all, if  a bureaucrat is never kept in the same department for more than 2-3 years, how can he/she be an expert in that field?  

3. The State of Haryana passed 10 bills in one day (click here to see the report). How is that possible in a democracy? What happened to discussion and debate?

4. The Judicial accountability Bill states in one Section that Judges must not discriminate on the basis of caste, creed, religion, etc.  Is  a law required apart from the oath telling the judiciary how to give a ruling? Is this an indictment that Judges have discriminated on those grounds in the past?

5.  All revenues received by the Government by way of taxes like Income Tax, Central Excise, Customs and other receipts flowing to the Government in connection with the conduct of Government business i.e. Non-Tax Revenues are credited into the Consolidated Fund constituted under Article 266 (1) of the Constitution of India. However, no one can tell you whether this is just an entry or all this money is available in liquid!

6. Do you know where your money is going? Doesn't the population deserve to know in simple language where the money is going? The reports by the CAG are far too complex and time consuming for us to understand.

7. Remember the provident fund scam in the Ghaziabad courts running into crores? Well it could be happening even today across the nation cause there is no auditing of the provident fund for third and fourth-grade employees!

8.  Members of Parliament have stopped attending Parliament for days together (click here to see a report on the participation of our MPs). When the Parliament is funding their office, don't they have an obligation to attend Parliament? MPs who don't attend at least 75% of working days must be barred from contesting

See John2010's other blogs:

8 disturbing signs that our elected representatives have forgotten us.

My Facebook Feed

How comrade whistle blower lost his ethical virginity

The PM on legal education: What he said and did not say.

Dear Prudence: ....... Litigation is really interesting but ........?

The 26/11 Judgement fails the maturity test and how we can still salvage justice.

Confessions of a chronic cheater.....

How not to be inspired.

When things go wrong.....

It is indeed heartening to learn that despite on unprecedented gloomy specter of worldwide recession, Indian economy has niched a formidable place among world economics. While the public sector may pride itself in providing basic infrastructure or impetus accruing out of governmental politics, the main credit for this shinning growth legitimately belongs to Private sector for its enterprising spirit of capitalizing adversity to its advantage. It is true that like any other economy, Indian economy has also suffered vicissitudes of time and passed through dark patches. But owing to its sheer tenacity to meet the challenges with courage & conviction and pursuing sound policies for making judicious use of manpower and resources it could pull off successfully despite many odds. It is gratifying to know that it has become a force to be reckoned with in the midst of world economies next only to China.

Given the peculiar socio-political dynamics of our Indian economy, unlike any other economy in the world, had to suffer many roughshod no less insurmountable on home pitch also besides struggling hard for its survival in the competitive arena of world economics. In this backdrop the growth profile of our economy is definitely a remarkable & spectacular one. It could not have scripted such a glorious history for itself, had it not acquitted in a disciplined & responsible manner. If it had not charmed our talented youth towards vast avenues of lucrative and dignified jobs in its fold, this could not have been possible.

In this context of our economic scenario, any itching on the part of the government to tinker with our private sector by introducing some retrograde policies in it under the garb of social reforms sounds anachronistic and strikes a jarring & discordant note. If allowed, it would deal a death blow to our budding economy which we can ill afford to have at this comfortable juncture of its success.

Though social upliftment of backward & down trodden strata of our society may be a prime objective of our government, thrusting this agenda on private sector to reap political mileage out of it in the name of social reforms would be a highly retrograde step. It is a charade to fool our gullible masses as it would defeat the very purpose for which so called reforms are sought to be introduced. If allowed initially it may present a façade of growth & development but eventually curtail & diminish the avenues of well being and welfare of the very class of people for whom government seeks to open the same in private sector. This approach would dampen the tempo of our growing economy and force our industries to seek suitable pastures elsewhere. This way we will be pennywise found foolish.

Therefore the recent missive of our Hon’ble social justice minister to Hon’ble P.M to address the so called affirmative action in private sector too is wholly untenable & unproductive proposition to say the least.   

I'm not telling a new story out here but something that hit me hard when I heard it. A lawyer at one of our local courts had a decent practice. He wasn't one to wear a tie and work in a corporate office but had a small place where "small-fry" clients visited him for their anticipatory bails and criminal applications.

The sad part, or the scary part is that his brother was not a very clean guy. He had some links to law-breaking citizens and sometimes he was known to tip off the police too.

One day, the lawyer got a call from his brother late in the night. He said that he would probably go "underground" as there was some talk in the circles about his encounter being planned!

The lawyer got a little frantic but did not lose his sanity. He immediately got in touch with all the authorities by sending fascimiles and making phone calls to all possible police stations and the commissioner's office initimating them that there was threat to his brother's life.

He tried calling up his brother too but did not get any response. His sister-in-law was completely hyper and losing consciousness with the stress and chaos by then.

I do not want to be very crude in the details of the events after this but the short point is that his brother was killed in an encounter, in a very cruel way.

He approached the court against the police, alleging that it was a fake encounter and the case is still pending against the officers accused in the case.

He got one of the senior criminal counsels on his case, and was now one of the clients now. Sometimes he tells me, it is far too difficult, being on the other side. As a professional practice, we try to understand the difficulties of our clients but cannot fathom the seriousness or depth of agony they undergo.

His brother was not right, not all clean, but he was the brother. Blood ties are harder to lose. But being a client and undergoing the pain, much too deep!

"God alone can take life because He alone gives it...An eye for an eye makes the whole world blind." -Mahatma Gandhi

"I do not believe any civilized society should be at the service of death. I don't think it's human to become an agent of the Angel of Death." - Elie Wiesel

Capital punishment or the death penalty is the killing of a person by the process of law as punishment for an offence. It is the pre-meditated and planned taking of a human life by a government in response to a crime committed by that legally convicted person.

Origin:

The history of Capital Punishment is as old as that of mankind. In the Western world the first instance seems to be The Law of Moses, inflicting death for blasphemy. By 1179 B.C. murder was a capital crime among Egyptians and Greeks. In the beginning, offences against religion and morality attracted Capital Punishment. However, the primitive societies soon grew up into kingdoms and consequently criminal law also changed quickly. Whether it was West or East, offences against the King were considered as more serious. Thus, the political offences were also added to the religious and moral offences and Capital Punishment was prescribed for such offences also. With the advent of industrialization and advancement of civilization, Capital Punishment was prescribed for offences against the property and human body. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement. Now, in the modern world, capital offences further covered drug-trafficking, hijacking the airplanes, bribery etc. Some Muslim countries like Saudi Arabia even want to add artificial insemination also to the list of capital offences.

Indian Context:

Although India is one of a number of countries around the world which still practises capital punishment, it is rarely used.

A 1983 ruling by the country's Supreme Court stated that the death penalty should be imposed only in "the rarest of rare cases".

Under Indian law, the death penalty can be imposed for:

• murder
• gang robbery with murder
• abetting the suicide of a child or insane person
• waging war against the government
• abetting mutiny by a member of the armed forces

Death penalty in India is still awarded, but rarely. It is carried out by hanging. An attempt to challenge this method of execution failed in the Supreme Court, which stated in its 1983 judgement that hanging did not involve torture, barbarity, humiliation or degradation.

The last execution in India was held in August 2004 when Dhananjoy Chatterjee, convicted of raping and murdering a schoolgirl in 1990, was hanged to death. It was the first such execution since 1995.

Worldwide Trend:

Death sentence is still awarded in 58 countries. It is abolished in 95 countries while 44 countries have not awarded capital punishment during the past 10 years.

Singapore, Japan and USA are the only ‘fully’ developed countries that have retained the death penalty.

The European Union and the Council of Europe both strictly require member states not to practise the death penalty.

Some alternate humane methods:

Countries have moved to more humane executions that include guillotine, long drop hanging, gas chamber, lethal injection.

Arguments: In Favour and Against

Supporters of the death penalty argue that it is justified on the following grounds:

(i) as a means of retribution; (ii) as a deterrent to others; (iii) to prevent any danger of re-offending; (iv) because it's cheaper than keeping people in prison.

However, arguments against death penalty are stronger than in favour of it. It can be objected on the following grounds:

(i) killing someone is always wrong, and two wrongs can never make a right; (ii) there is no evidence of a deterrent effect (indeed the available evidence seems to show there is no such effect); (iii) life without parole is just as effective a way to prevent someone reoffending as executing them; (iv) saving money can never be a justification for taking someone's life; and (v) mistakes are bound to happen, and that means people being put to death for a crime they didn't commit.

Alternatives to Death Penalty:

The most useful and productive alternative would be the life imprisonment without the possibility of parole plus restitution. This alternative not only costs much less than capital punishment, but also keeps the criminal in jail for the rest of his life - so he cannot return back to society. Restitution means that while the prisoner is in jail, he will be put to work - with all the money made going to the family of the victim.

There are other alternatives too like prison with parole. But, this would be problematic because some persons may never change, which makes this a more dangerous and less supported alternative to the death penalty. Another alternative is rehabilitation or reformatories. Though this is a more practical solution, rehabilitating criminals instead of just punishing them but it remains a more dangerous alternative because not every criminal can be truly reformed. Hence, this is probably the least supported alternative to capital punishment.

While it continues to be widely used, the death penalty has been in retreat across the globe over recent years. More than 90 countries have now outlawed the death penalty altogether, and more than two thirds of all states have abolished it either in law or in practice.
And at the end of 2008, the United Nations General Assembly passed the second resolution in 12 months calling for a worldwide moratorium on the death penalty as a first step towards total abolition. While the resolution is non-binding, it was passed by an even larger majority than in 2007 (106 votes for and 46 against) and adds further momentum to the abolitionist movement.

So, killing someone in punishment of what he has done is going to serve the purpose. There are other alternatives which needed to be adopted. No one has a right to take one’s life and in the words of Vladimir Putin, the former Russian President:

"The state must not claim the right to take human life away, which belongs only to the Almighty."
 

AND ONE DAY I WILL BE PARTNER…

And one day I will be Partner,

When the sky will be hot and the day aglow,

And there will be sweat on each one of my Associate’s brow.

“How did he make Partner?” they’ll whisper,

Who let this tyrant through they’ll wail,

So much of work I will load them with, chained to their chairs they’ll think of jail.

And one day I will be Partner,

When my buxom assistant will flirt with me without shame,

And delegation will be the keyword and much the name of the game.

“How early he leaves?” they’ll gesture,

Why does he even bother to pay us a visit they’ll say,

When the time rolls in for their annual reviews, their blue-collar hides I will flay.

And one day I will be Partner,

When a ‘retainer’ will transform to a profit-parting,

And the sedan will make way for an Aston Martin.

“How much does he really make?” they’ll wonder,

Why should he make more for less work they’ll scream,

Come March I will be on vacation, making bonus checks a distant dream.

And one day I will be Partner,

When an incarnation of God I shall surely be,

And the prettiest interns will swoon when I buy them dinner for free.

“How does he make hiring decisions?” they’ll question,

What does he look for in interviews they’ll think when peeved,

When I show them the door for ‘poor performance’, will laugh when they feel aggrieved.

And one day I will be Partner,

When I say this with total conviction,

And why is there no chink in my confidence or diction?  

“How can he be so sure?” they’ll be nettled, what Law does he know they’ll bray,

But then they’ll see my last name, next to the best room on my floor,

There don’t be so jealous, a perfect match for the Managing Partner’s door.

Any resemblance to real life characters is completely coincidental and not intended or maybe the other way around. And when you see Him in the corridors, always think of me. I am coming…

Much has been said about the to be held bar exams. 

Analysis of the news however has more or less focussed on the adverse impact of the developments  on students passing out this year, and not on solutions.

Through the means of this blog, I request professionals and seniors in the industry to guide students, and suggest a few solutions to those still committed to get into litigation.

What should a final year student who still wants to get into litigation do in these nine odd months? 

Seeking Guidance

P.S Please don't publish juvenile comments about how I should not have used a blog to make this request, it's an appeal to our seniors, lets not lose sight of the the context/substance here.

The argument.

Decisions of the CJI or his delegate, under section 11 of the Arbitration and Conciliation Act, 1996 (A & C Act) have no binding value whatsoever on any court on any forum except the forums / arbitral tribunal/ parties involved in the arbitral proceeding in which such findings under section 11 has been passed.

 The main judgment

The Supreme Court of India by a 7 Judge Bench decision in S.B.P & Co. v. Patel Engineering, 2005 (9) SCALE 1 overruled its earlier 5 Judge Bench decision in the case of Konkan Railway Corporation v. Rani Construction Pvt. Ltd., (2002) 2 SCC 388.

The reasoning

Section 11 of the A &C Act provides for appointment of an arbitrator by the Chief Justice of India, in the case of international arbitration and by the Chief Justice of the High Court, in the case of domestic arbitrations.

The Supreme Court summed up its decision in Patel Engineering as under:

i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power.

ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another judge of that court and by the Chief Justice of India to another judge of the Supreme Court.

(iii) In case of designation of a judge of the High Court or of the Supreme Court, the power that is exercised by the designated, judge would be that of the Chief Justice as conferred by the statute.

(iv)  The Chief Justice or the designated judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the judge designated would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the judge designate. (v) Designation of a district judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.

(vi) Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Court would not interfere with orders passed by the arbitrator or the arbitral tribunal during the course of the arbitration proceedings and the parties could approach the court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.

(vii) Since an order passed by the Chief Justice of the High Court or by the designated judge of that court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution of India to the Supreme Court.

(viii) There can be no appeal against an order of the Chief Justice of India or a judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act.

(ix) In a case where an arbitral tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the arbitral tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act.

(x) Since all were guided by the decision of this Court in Konkan Railway (supra) orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or arbitral tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act.

(xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the concerned High Court or a Judge of that court designated by the Chief Justice.

(xii) The decision in Konkan Railway Corporation Ltd. and Anr. v. Rani Construction Pvt. Ltd. is overruled.

The Supreme Court, while coming to the aforesaid conclusions categorically held that “It is true that the power under Section 11(6) of the Act is not conferred on the Supreme Court or on the High Court, but it is conferred on the Chief Justice of India or the Chief Justice of the High Court. One possible reason for specifying the authority as the Chief Justice, could be that if it were merely the conferment of the power on the High Court, or the Supreme Court, the matter would be governed by the normal procedure of that Court, including the right of appeal and the Parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by Courts in the arbitral process.”

Accordingly, it is argued herein that the reasoning behind any finding by the CJI or his designate binds the arbitral tribunal, the parties, but it does not have any value as a binding precedent under Article 141 of the Constitution of India.

Article 141 states that “Law declared by Supreme Court shall be binding on all courts within the territory of India”

A request for appointment of an arbitrator, decided under section 11 of the A & C Act, not being a decision of the Supreme Court does not fall within the purview of Article 141 of the Constitution of India.

Further, Order VII of the Supreme Court Rules, 1996 intituled Constitution of Division Courts and Powers of a Single Judge does not provide for applications under section 11 of the A & C Act.

 Conclusion

Thus, on the aforesaid reasonings, in my humble opinion, decisions of the CJI or his delegate, under section 11 of the A & C Act have no binding value whatsoever on any court on any forum except the forums / arbitral tribunal./ parties involved in the arbitral proceeding in which such findings under section 11 has been passed.

 
Would be delighted to have a discussion on this proposition.

An unfortunate Incident:-

Yesterday, my friend narrated a real life story which left me dumbstruck. The said incident happened a few days a go. A 23 year old girl who was studying in one of the premier fashion institutes decided to shift her place of residence. She was in her final year and was expecting a placement in a multinational. The apartment she had selected was in one of the posh localities of the city.

On the eventful day when the girl was shifting in her new apartment, a man approached her and inquired about some random flat. She answered “I’m new to this place and therefore I wont be able to help you, sir.” A couple of minutes later the man came again. She was standing on the door and before she could realize anything suspicious, the man tried to push her in the flat. She started screaming but no one came out. She resisted and gave him a tough fight. Unfortunately he injected her with some needle and ran away.

Although the girl was taken immediately to the hospital, it is not yet certain what was exactly administered to her. The girl and her family have to wait for another 90 days to discover, if the needle was HIV infected.

HIV terrorism: Overview:

This is certainly not the only case reported so far. The pin prick attacks in cinema halls have become very popular. In these attacks the victim is usually poked with needles which are hidden in the seats. The syringes are attached with notes which convey messages like ‘ WELCOME TO THE REAL WORLD’, ‘NOW YOUR ARE ONE OF US; HIV POSITIVE’ and ‘WELCOME TO THE WORLD OF AIDS’.  These attacks have been experienced  all through out the world. In Britain some alleged  gangs have been found sticking HIV-infected needles into people and then handing them a card mentioning ‘Welcome To The World of HIV’. Similar incidents were also reported in USA. Robbers have also used this technique of threatening the victims and getting their demands fulfilled. In some cases the warnings were found false where as in some they needles were actually HIV infected.

The myth

Most of the people believe that these are gimmick attacks carried out by the perpetrators to inflict fear in the minds of their victims. They contend that a virus is unable to survive outside the hosts body and therefore no such virus can be injected into the victim’s body. Although the above contentions are valid, they ignore a pertinent point. Most of the viruses are capable of surviving if preserved with some blood. The blood keeps these viruses alive and hence they can be easily transmitted to the victims body. However the length of time the HIV can survive outside the body depends upon the conditions under which the fluid is kept and the amount of virus contained in the body fluid.

HIV is a fragile virus that dies slowly in the room temperature. It is dried by the air eventually. However, HIV can survive for several days even in minute amount of blood as the blood is trapped in a syringe and the air cannot dry it out.

Punishment:

If caught, the offender may be prosecuted under Section 307(Attempt to Murder),  Section 299 (Culpable Homicide) or Section 300 (Murder) of the Indian Penal Code depending upon the facts and circumstances of the case. The Section 357-A which was added in the Cr.PC by the recent amendment may be evoked for the benefit of these victims. The victims may therefore avail certain benefits. They may not only demand adequate compensation but would also be reimbursed for their medical expenses.

Conclusion

There a two contrary views that emerge while we discuss the pin-prick attacks. One suggests that the chances of HIV transmission through such needles is negligible on the other hand the other belief contends that such attacks must not be ignored. The government along with the cinema hall and club owners must be vigilant. The individuals must also take all necessary precautions. The critical issue to be considered in these cases is the psychological condition of the victim. The feeling of being an HIV patient or the plight of being punished for no fault, shatters the victim completely. The anxiety and terror that conquers his mind prevents him from leading a perfectly normal life. The victim and his family have to wait for period of at least 3 months to figure out if he is HIV infected.

It is true that “The person who does it acquires nothing but the victim on whom it is done loses everything”.

The post is a duplication of already published article on www.legaldrift.com

The courtrooms, deserted generally during the summer break, give a great chance to walk around courts in Mumbai, some of which have great architecture.
But a couple of courtrooms function for urgent matters and entering the courtroom gurantees toes being stepped upon. There is urgency for matters to be heard by the judges  and as there is limited staff while there are too many petitions most times, the scene is quite chaotic.

Last Monday, I was standing in one such courtroom, where I couldn't hear a word of what was being said. But there was one lawyer, who approached the court  in a case, which was connected to another similar issue in which directions had been given. He wasn't ready to understand that a bench of the court cannot review its own order. Before regular court, such a case would have been dismissed immediately but the vacation court is presided by junior judges, who may not be rude but are definitely more patient compared to some seniors. The judge explained to the lawyer that such a matter could not be entertained by them but the lawyer, in a case which was not even urgent, kept pressing for relief.

the judge told him finally that the court would either dismiss the case or he could withdraw the application and approach the appropriate forum.

not every a vacation judge may be as patient as this, giving the advocate an opportunity to speak, even when the lawyer doesnt make too much sense!

but what lawyers sometimes try taking advantage of, may not always work in their favour!
the judge later said that any petition pressed for relief and found not to be as urgent as prayed, the applications will be dismissed with costs of Rs 50,000!

I was shattered after reading this news article couple of day’s back, in some village in Ranchi, three men chopped parents of 14 year old kid in front of her eyes on the charges of practicing witchcraft. The same news instigated me to dug up and read more on the subject. I came across some more horrified cases which confirmed disgraceful occults prevalent in most of the villages in Jharkhand, Assam, Bihar and West Bengal.

 45 year old Sukhmani Barla of Arhara village of Kamdara block near Ranchi was chopped by her neighbour Bagda Munda alleging her of being a witch. Bagda Munda’s daughter Saniya Munda had been suffering from illness for last three years and finally she died on January 2. When Bagda Munda approached the Ojha (spirit healer) to know the reason of death, the Ojha informed him that his neighbour Sukhmani Munda has killed his daughter with her black magic. Finally, Bagda Munda chopped her with an axe and was thrown behind the bars for committing a heinous crime but he is not ashamed of his act.

Sushila Devi, 45 year old , described how she and four other village women, mostly widows suspected of being witches, were beaten, paraded naked and forced to eat excreta in Patharghatia village in Deoghar district, Jharkhand on October 17, 2009.  

In all the above cases, the women were suspected of being witches!(“dayans” is what they call it). It is the backwardness and illiteracy of such villages which provides a fertile ground for breeding such idiotic superstitions.

It was astonishing to read “test of witchhood” rampant in most of this villages; A woman suspicious of practicing Wicca will be asked to take out a coin dipped in a vessel filled with boiling oil. If her hands are burnt, her witchhood is confirmed, otherwise she is declared innocent.

Branding woman a witch is a common ploy to grab a land, settle scores or also to punish her for turning down the sexual advances. Most of the women falls for such trap are widows, so called unwanted member of the family. They are humiliated, harassed, beaten up and (in some cases) killed not only in front of their families, but in front of thousand other villager, who witness the show like numbskulls.

In most of the cases help from police or judicial/administrative system is out of the reach of such illiterate and helpless woman.

It is my privilege to state; Union woman and child development minister Krishna Tirath saying recently that there would soon be a law against witch-hunting, however how far will it be implemented and enforced successfully is question in itself.

I am not a story teller. The art of story writing is a highly complicated one and is best left to accomplished masters of the craft, Rasipuram Krishnaswami Narayan, Guy De Maupassant and the likes.

Reservation(in the Indian context;I am not talking about Mr. Lalu Prasad Yadav's tatkal quota here)will remain a contentious issue as long as democracy survives(the founding fathers of our constitution surely hadn't anticipated this)i.e in a country like ours, forever(unless one is overtly pessimistic).

The Bar Council of India (BCI) has agreed to postpone the planned bar exam to December, we are informed.

Kian has insinuated here that another possible angle in introduction of the proposed Bar Admission examination may perhaps be to meet the 'reciprocity' criterion in the municipal law (e.g.: "You can practice here if you pass our exam.")

Thus, the first argument that introduction of such a Bar Admission examination as a measure of Quality control belies a certain logic.Admittedly, there are about 740 law colleges and 11 national law universities under the control of BCI.The alarming silence of the stand of these 740 law colleges qua the proposed Bar Admission examination makes us wonder as to what and /how the students in these law colleges may be having in their minds. Rs 4 lakhs for 8 months is not the average net loss of students across these 740 law colleges. It maynotbe so for a even  in the 11 national law universities.

Since BCI is accountable for the standard of legal education in these 740 law colleges across the country as well as the 11 national law universities, we are all in agreement that there cannot be any comparison at all between the standard of law education imparted in these 740 law colleges qua the 11 national law universities. Therefore, the proposed Bar Admission examination should be conducted in a manner keeping in view the said disparity which is almost akin to the difference between a standard meal in Lunsa , a naxal affected area in the State of Jharkhand and the meal in an average home in Jamshedpur, 2 and half hours away.

The poverty of the nation can be very well compared with the poverty of education and the telling nature of the infrastructure (or the lack of it) in most of these 740 law colleges across the country.

On an average, the cost of education in these 11 national law universities is around 1 lakh a year whereas the total cost of a 5 year law degree in Calcutta University (as a mere example) is around Rupees 20, 000/- only.

The infrastructure, facilities and exposure made available in Rs. 5 lakhs and a mere Rs. 20, 000 needs no further discussion. The fact remains that the standard in both these universities are maintained by the same authority, BCI. How is it possible to maintain the same standard? Is there a paradigm of legal education prevalent in India? Can the students who belong to these two paradigms be subject to the same examination?

In a super specialty hospital in Delhi, the same injection which is worth Rs 10 when injected into a patient admitted to the dormitory becomes chargeable at Rs. 1000 when injected in a patient admitted in a suite costing Rs. 1 lakh a day. Similarly, is the standard of legal education, which is maintained by a single organization across the country have different benchmarks and yardsticks depending on the cost of the tuition fees? If there are different standards, there should be different exams.

Admittedly, the standards are different. Mostly, there in no discernible standard at all. Thus, in the absence of quality control when it came to establishing and maintaining a general acceptable standard of legal education across all law colleges and universities, it is perhaps not correct to introduce quality control at the stage of completion of the said courses run and controlled by the BCI, not having been able to establish and maintain an uniform standard across the 740 law colleges and 11 national universities. The said Bar Admission exam does not act as a bar to higher education but the right to livelihood.

For a moment, it is not suggested that the examination is not a great idea. It is just that it is an idea which completely fails to address the issues pertaining to the majority of the potential examinees. The standard of legal education as well as the standard of the Bar when administered by the same authority, one cannot look at both of these in an isolated fashion. BCI is attempting to create an unnecessary class divide guised in an attempt to project pioneering thought but essentially to cover up years of colossal ineptitude. The proposal, if intended to quality check the standard of the bar, appears to be half baked, ill thought, intellectually weak and belies common sense. .

Further, the number of law graduates from these 11 national law universities who have habitually taken to transactional lawyering, which the BCI Chairman ‘thinks’ does not require one to be a ‘practising Advocate’ in India and can be done by law graduates, the brunt of the said proposal would be borne by the student of the 740 law colleges across India, the standard of law education being non existent in most of these places and especially because the BCI has failed in its commitment and purpose.

Further, the creation of a new distinction between "enrolment" and "practice" is perhaps not well founded. In the USA, a person having failed to clear the bar examination cannot practise even in the transaction side of the profession. His status is equivalent to that of a para legal. He cannot be hauled up by the Client for negligence or misconduct. The law firms are under a legal requirement to disclose how many lawyers who are working on such non litigious matters have not cleared the bar exam and the particular bar exam cleared by the lawyers who have indeed cleared. The same contention finds support in the words of Chief Justice Swatanter Kumar (as he then was) and Justice J P Devadhar in the case of Lawyers Collective wherein the Bench stated as under:

Section 33 of the 1961 Act is a prohibitory section in the sense that it debars any person from appearing before any Court or authority unless he is enrolled as an advocate under the 1961 Act. The bar contained in Section 33 of the 1961 Act has nothing to do with the persons entitled to be enrolled as advocates under Section 29 of the 1961 Act. A person enrolled as an advocate under Section 29 of the 1961 Act, may or may not be desirous of appearing before the Courts. He may be interested in practising only in non litigious matters. Therefore, the bar under Section 33 from appearing in any Court (except when permitted by Court under Section 32 of the 1961 Act or any other Act) unless enrolled as an advocate does not bar a person from being enrolled as an advocate under Section 29 of the 1961 Act for practising the profession of law in non litigious matters. The Apex Court in the case of Ex-Capt. Harish Uppal (supra) has held that the right to practise is the genus of which the right to appear and conduct cases in the Court may be a specie. Therefore, the fact that Section 33 of the 1961 Act provides that advocates alone are entitled to practise before any Court / authority it cannot be inferred that the 1961 Act applies only to persons practising in litigious matters and would not apply to person practising in non litigious matters.

 It was contended that the 1961 Act does not contain any penal provisions for breaches committed by a person practicing in non-litigious matter and, therefore, the 1961 Act cannot apply to persons practising in non-litigious matters. There is no merit in this contention, because, Section 35 of the 1961 Act provides punishment to an advocate who is found to be guilty of professional or other misconduct. The fact that Section 45 of the 1961 Act provides imprisonment for persons illegally practising in Courts and before other authorities, it cannot be said that the 1961 Act does not contain provisions to deal with the persons found guilty of misconduct while practising in non litigious matters. Once it is held that the persons entitled to practise the profession of law under the 1961 Act covers the persons practising the profession of law in litigious matters as well as non-litigious matters, then, the penal provisions contained in Section 35 of the 1961 Act would apply not only to persons practising in litigious matter, but would also apply to persons practising the profession of law in non-litigious matters. The very object of the 1961 Act and the Rules framed by the Bar Council of India are to ensure that the persons practising the profession of law whether in litigious matters or in non litigious matters, maintain high standards in professional conduct and etiquette and, therefore, it cannot be said that the persons practising in non litigious matters are not governed by the 1961 Act.

In view of the aforesaid extracted portion of the Bombay High Court judgment, which is an interpretation of the scope of Section 33 and other sections of the Advocates Act, 1961 as mentioned above and more so in view of the words "There is no reason to hold that in India the practise in non litigious matters is unregulated," it is difficult to lend support to the thought that the Bombay High Court judgment does not concern domestic lawyers but is limited in application to foreign lawyers.

Further, if such an examination is for the purpose of meeting the ‘reciprocity’ criterion in the Act, then the threshold of these examinations would be required to be fashioned in view of the standards prevalent in such reciprocating territories.

The intention of the BCI is noble but the BCI should start with the standardization of law education across the country first and having met that objective, introduce the proposed bar admission exam. A holistic approach is the only solution. Nothing short of that would do. A colleague at the Bar went as far to suggest that such an exam does not guarantee the quality of the Bar since the legal education system in India, be it one of the 740 colleges or a National university, does not does not have a curriculum focusing on litigation and the students across the vast paradigm start learning only on the job. The ability to learn on the job depends of individual ability and aptitude and not on the educational institution one went to. Thus, the proposed Bar exam attempts to alter and/or eliminate the level playing ground as it exists today.

On a lighter note, an enrolled colleague at the Bar, hailing originally from the Chota Nagpur region and an alumnus of the same College where retired Justice of the Supreme Court studied law, said that these 740 law colleges are much more confident about clearing the proposed Bar admission examinations and thus have not asked for any postponement unlike a particular National Law university which is unsure and thus has sought postponement of the same.

The absurdity of such a proposition made us have a great laugh but then again, the alarming silence!!!!!

The short point which arose for consideration (in 9 complaints and one appeal) before the Central Information Commission was whether the Bar Council of India and the State Bar Councils are ‘Public Authorities’ within the meaning of Section 2(h) (b) of the RTI Act, 2005.

The Bar Council of India, in all its wisdom, had passed a Resolution dated June 27, 2009 stating thereby that since they are not funded either directly or indirectly by the Central or State Government, they are not covered under the RTI Act and thus they were not privy to disclose any information sought by citizens under the RTI Act.

By virtue of such resolution, the State Bar Councils were bound as well.

In the proceedings before the CIC, disposed of vide the aforesaid common order dated January 11, 2010, the BCI contended that even though they admitted that were a statutory body created under an Act of Parliament, viz. Advocates Act, 1961, since they did not meet all the elements of Section 2(h), they could not be considered a ‘public authority’ under the RTI Act.

Section 2(h) states defined ‘public authority’ which means any authority or body or institution of self- government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any—

(i)  body owned, controlled or substantially financed;

(ii) Non-Government Organization (NGO) substantially financed, directly or indirectly by funds provided by the appropriate Government;

The aforesaid argument was advanced by the BCI which is the one and only body representing the Indian Bar, having its statutory basis and the backing of democratic statutory elections from the primary level onwards for its constitution. The Bar Council of India boasts of the Attorney General of India, the Chief Law officer of the Government of India the Solicitor General of India , both being Honorary Members of the Bar council of India and that of the accredited seniors in the Indian Bar, many of whom are internationally accepted legal and jurists.

The absurdity of such an argument, especially when the same is advanced by BCI, if analyzed would cast serious aspersions on the legal competence, ethical standards and motive/agenda of the persons who are office bearers of the BCI and / or the State Bar Councils. Another curious aspect of this argument is that apart from finding favour within the BCI, it also found support with the competent authority under the RTI(SPIO) which heard the grievance at the first round (since the CIC was also dealing with an appeal).

The Central Information Commission expressed surprise at such an argument , especially when it came from BCI in its order dated January 11,2010 and went on to hold that the Bar Council of India and the State Bar Councils are indeed ‘Public Authorities’ within the meaning of Section 2(h) (b) of the RTI Act, 2005.

Further , vide the said order, the Bar Councils were directed to take all necessary steps top carry out their duties and responsibilities assigned by the RTI Act.

The author is not aware of whether the aforesaid order has been carried in further Appeal and whether it stands stayed by a superior court.

However, the BCI website

It is interesting to note that the millennium pledge of BCI, as boldly stated on its website, is to rededicate itself to maintenance of highest standards of professional ethics, advancement of legal profession and service to humanity. Yet, the same statutory body took such a stand (Resolution dated June 27, 2009) simply to avoid public scrutiny and one wonders why.

Further, even after five months after passing of the aforesaid order, the BCI continues to default in performance of its obligations under the RTI Act, 2005.Its website does not even disclose the name of its PIO and a lot of other information which they are duty bound to provide under the RTI Act.

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An arrogant professor, with a sole ambition in life --- TORTURE! Many a Law Student has faced this, and many more shall don the robes of the ‘Sacrificial Lamb’. Here’s to all those Legal Raavan’s who have made an otherwise heavenly Law School Experience hell for the students!

PS – The sole inspiration for this post has been one of the entries under the Facebook Group ‘You know you are in Law School When’, which refers to “Professors who just didn’t get enough hugs as children.”

PS2 – (Disclaimer, not the PlayStation Series) – This post is in all probability Fictitious. Any similarity with any Professor, dead or alive, killing or survived, is completely unintentional, and deeply (as deep as LegalPoet’s Thoughts) regretted.

Legal Raavan: Every Law Student’s Nightmare!!!

He entered the classroom,

With long, arrogant strides.

With a no non-sense hair-cut,

Where from stemmed such pride?!?!

I’m Professor Bond, James Bond, said he.

007 without a good cause is a twat, ain’t he???

He behaved like the Devil! The Apocalypse was here!

We thought of him as Raavan, in the Legal sphere.

With Condescension as his weapon,

And a devilish smile to match.

He had earned himself a scholarship,

Through a boundary and a catch.

He returned with his scholarship,

Glowing with conceit.

His own bad grades and failures

Seemed to take a back seat.

He now made it his life’s aim,

To denigrate and demoralize;

His students worked day and night,

Alas! There was no prize!

As toil and sweat went in vain,

They took a valiant stand.

Like the Titans of Alexander,

They wanted to bajaao band!

Many protests followed,

But the Devil wouldn’t leave his den.

Arrogance made his head swell up,

Till he sprouted ten!

Grades Plummeted, Administration Crumbled,

As the foolish devil growled and grumbled.

Students cried, some even died.

This just reminded me of the ‘3 Idiots’ suicide.

How on earth could one conquer;

A Force that was so strong.

That had engulfed all power in its wake

All this seemed so wrong.

Then the Ramayan started to show its truth.

It wasn’t just a myth.

The Constitution of the College

Found its Substance and Pith.

Legal Raavan was relieved.

Relieved of all his duties!

With 9 of his 10 bloated heads punctured;

He was sent away with stones and jooties.

Thus Legal Raavan was conquered.

There is proof that Ram Exists.

Please do not lose hope while you face yours,

He shall soon be kicked into the abyss!

Our politicians hailed it as a strong message to Pakistan, the Maharashtra Chief  Minister called for an early execution, Special Public Prosecutor Ujwal Nikam gave it the two thumbs up. There were fire crackers in the streets of South Bombay and sweets distrusted in its offices. Hang men are now coming out of retirement, with the hope of getting the ‘opportunity’ to hang Kasab and ofcourse we are now hearing claims from the Government that he will be hanged within the year.

The run up to the judgment was a story in itself, the family of the survivors were calling for the death as soon as he was pronounced guilty, while the BJP was busy burning an effigy with a noose around his neck, the Times of India was whipping up excitement with its scrolling updates on its website. And then it finally came, death for the one who brought death.  And with it, the joy, the celebration of many was widely reported. I began to wonder,  is putting someone to death is societies greatest act of retribution. There is a passage in the February 2010 decision of the Supreme Court in Mulla v. State of UP which runs:

“When ingratitude is shown instead of gratitude by "killing" a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so "in rarest of rare cases" when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty”

Though this is a part of a longer, reasoned judgment which may form a part of the jurisprudence which may eventually lead to the abolishment of the death penalty, it is something which sticks out, especially in the light of the reaction portrayed by the media to the news that Kasab was awarded the death sentence. One of the criticisms, of the retributive theory of justice, of which this passage above seems to be referring to, is that its promotes a society which is bloody thirsty and lives on rules of the  a an eye for an eye. And regardless of the other justifications of capital punishment, this seems exactly what is happening. The sheer way in which people of the nation were clamoring for someone’s death was shocking.

So where are we then, is law reflecting the sentiment of society or fuelling it? Recent decisions of the Supreme Court indicate that it the rule of law and Constitutionalism may run contrary to public opinion and regardless of public outcry, judges must be insulated and continue to uphold constitutional values. [See: Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, (2009)6SCC498, Anuj Garg v. Hotel Association of India and Naz Foundation]

In Bariar the Supreme Court stated that it was all too aware that death sentencing can become a media spectacle in the country. An understatement in the least considering the spectacle surrounding the Kasab trial. One wonders how one stops attitudes of revenge and thirst for blood from passing from generation to generation.

As Michael Moore said, “I refuse to live in a country like this, and I’m not leaving”