Jerome Merchant + Partners

The other day I came across an old article about how an Indian Court had enforced a foreign divorce decree. It was an article that made me fail to understand and appreciate at the same time why human beings complicate for the sake of complication (or should we say the lack of innovation?).

 

The problem we’re facing with regards to divorce decrees is a worldwide phenomenon. Because as humans we are open and susceptible to change, it is not surprising that marriages tend to fall apart. The reasons range from adultery to the lack of mutual understanding. And it so happens that when this marriage falls apart, the husband and wife are no longer in the country where they got married. With an economic cost benefit analysis as well as a social face saving benefit analysis, they together or one of the parties obtains a divorce decree in a Court in a Country far away from the one where they were married. With this begins the complication. If the whole objective of the couple was to be separated, there is a greater probability of their paths meeting; the reason being recognition of the divorce decree.

 

Recognition under domestic law is basically the "full faith and credit" rule. If a sister state recognizes a marriage, the other state is duty bound to recognize it too. However, international law isn’t based on a Constitution unlike our domestic civilities. The latter is a product of negotiation and politics. Until the stakes get high, we shouldn’t expect negotiations or understandings in this field of the law.

Non-resident Indians have been troubled for a fairly long time regarding the handling of marital disputes abroad. So much as to have the Law Commission of India come out with a report in 1976 as well as in 2009 on the recognition of foreign divorce decrees and the need for a comprehensive legislation for non-resident Indians. The Commission suggests that NRIs bring in foreign decree for mainly two reasons: (i) they are quicker or (ii) due to a lack of remedy in Indian Courts.

 

Private International law is fairly complicated in this area. While Article 10 of the Hague Convention of 1968 on the Recognition of Divorce and Legal Separations expressly provides that the contracting States may refuse to recognize a divorce or legal separation if such recognition is manifestly incompatible with one’s public policy, the Indian Judiciary has rarely tried not to enforce a foreign divorce decree. The reason according to the Law Commission does not lie with the Judiciary but the lack of legislative will. After all, the Judiciary is ensure the laws enacted by the Parliament are enforced.

 

So now we come to two questions: If foreign divorce decrees tend to create so much controversy then (i) why do Courts accept such foreign decrees at all? (ii) why grant a divorce decree to a foreign couple? 

 

Let me explain why I am asking these two questions. Regarding the first question, there is no necessity for Courts to accept foreign divorce decrees. True that the Code of Civil Procedure allows the Court to enforce such a decree but it is not mandatory. The relevant provisions of Section 13 of the Code are capable of being interpreted to not enforce such foreign divorce decrees.

 

Firstly, Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a Court of competent jurisdiction. This can be interpreted as only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Secondly, Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean that   the decision of the foreign court should be on a ground available under   the law under which the parties are married.

 

What I am trying to put forward here is that there is a lot of space for the Judiciary to reject such foreign decrees that grant divorce. If the Supreme Court decided not to enforce foreign divorce decrees, the complexities that arise from enforcing them would disappear. The reason being that once the Supreme Court refuses to enforce such decrees, divorcing couples will begin to seek divorce in India rather than in foreign Courts.

 

The second question relates to the very act of granting such decrees. Foreign Courts not only lack correct information regarding the couple but also expertise in understanding the complex setup of the Indian family. It would only be logical for them not to interfere in a matter. Now one would argue that suppose an Indian woman is stranded abroad with an abusive husband, what will she do? I must emphasize here that I am arguing against the granting of a divorce decree. Victims would still be able to take the advantage of other laws to protect themselves.

 

The question that I am scared to ask is: Are Courts using power only because they can? According to me, power must be used as a consequence of need rather than ability. Of course, ability is a precondition to need. I am not the first one to be asking these questions or providing such ideas. The Supreme Court in the landmark case of Smt. Neeraja Saraph v. Shri Jayant V. Saraph, JT 1994 (6) SC 488, the Court suggested a law on the grounds of the Foreign Judgments (Reciprocal Enforcement) Act, 1933 enacted by the British Parliament under which it suggested that no marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court. 

It's time the Judiciary used such an interpretation and stopped the complexities that arise due to the enforcement of such decrees. 

 

 

The reemergence of the Naxalites (rechristened Maoists) after 30 years of near lull has been an issue that has generated a lot of public debate. Despite getting more than its share of media coverage, it has not been easy to construe the pith and substance of the multi-faceted issue.

 

State Supporters v. Maoist Sympathizers

The debate surrounding Maoist violence has been extremely polarized. Things didn’t help when Home Minister Chidambaram took a Bush like -with us or against us- stance on the issue.  

While a set of people completely thrash state violence, the others thrash Maoist violence. Paradoxically both groups maintain- we condemn all forms of violence. While state supporters described the Maoists as “bloodthirsty terrorists” and “cowardly killers,” the sympathetic descriptions have ranged from “misguided ideologues” to “Gandhians with guns.”

Violence begets violence. When the state justifies its action by posing it as a response to Maoist violence, the Maoists turn the table on the state and describe their actions as a natural response to State violence. The reaction of the rebels is further justified on the ground that it arisen out of dire circumstances- poverty, unemployment, lack of basic services. The state on the other hand says that it can bring about all this only if the Maoists are eliminated.

In the public sphere, the ‘big fight’ has been between the stoics and romantics, between the finish them approach and the uplift them approach, between addressing the immediate concern and addressing the root cause, between those who view it as a law and order issue and others who view it as a socio-economic issue.

 

The Tribal Question

A crucial aspect surrounding the issue, earlier ignored, is regarding the welfare of the tribals who mostly occupy the “Maoist infested” areas. Reports of how the tribals are caught in between the Maoists and the state backed Salwa Judum is now repeatedly coming and the view is that in this war, it is essentially the tribals who loose out. 

Most of the members of the Maoist cadre are from the tribal population and according to an expert committee report of the planning commission, the main support for the Maoists also comes from the adivasis and dalits. The report cites issues such as large scale displacement, forest rights denial, land alienation as the main reason for the spread of Maoism among these people. 

Even while rightly identifying the issues faced by the tribals, the state’s new “two-pronged” strategy may not work. Along with the state device of violent repression, the ancillary scheme is to bring development through large-scale investment. The strategy does not fail to have a rationale, as more investment into these underdeveloped areas can bring in more job opportunities and higher standard of living.

However, large scale investment has been flowing into these mineral rich areas for years. It is exactly this policy of massive development that has resulted in land displacement and related issues. And it is this vulnerability of the tribals that the Maoists have utilized by fighting their fight and offering an alternative to the oppressive state.  

However, despite establishing some sort of an alternative governance system in these areas, even the Maoists have not been successful in improving the wages, education or health of the tribals.  Instead the Maoists have used the tribals as foot-soldiers in their fight to capture power from the bourgeois Indian state.

Along with lack of development, the other issue that has been highlighted as a cause for Maoist support is the lack of good governance. The tribals view the government, represented by the politicians, bureaucrats and police, as merely self-serving with no genuine interest in helping the locals. The lack of easy access to justice has also increased Maoist presence and hence allowed alternative and often inhuman forms of justice through its “people’s court”

 

Meeting the challenges through law

It is important to understand that the multi-faceted issues facing these areas cannot have simplistic solutions. Hence expressing that development and good governance should eventuate will not do. More so due to the fact that our conception of development and good governance may not be in line with the tribals understanding of the same concepts.

As practitioners of law, we cannot shy away from this issue which deals with the application of law and the idea of justice. On the issue of development, it is known that these areas are mineral rich. Making use of these minerals maybe in national interest. However while exploiting the resources for national (and private) benefit, it cannot be at the cost of the original occupiers of the land.

Making the tribals also partners of the development could be helpful. The draft Mines and Minerals (Development and Regulation) Bill 2010 seeks to provide 26 percent of shares in the mining company to people holding occupation or usufruct or traditional rights on the land over which the lease has been granted. Even before providing the mining lease, the bill requires the state to obtain permissions from those possessing rights over the land. 

On the question of governance, the Panchayat Extension to Scheduled Areas (PESA) Act already empowers the gram sabha in the Scheduled Areas (as per the 5th Schedule of the Constitution) to decide over land use. Its implementation has been a major problem. Self-governance through a powerful autonomous democratic body would mean that decisions affecting the people will be taken by the people itself hence offering a bottom-up rather than top-down approach. 

On the larger issue of social justice, first the basic issues of poverty and unemployment have to be met by effective implementation of government schemes like the MGNREGA. To avoid the “people courts”, more people centric courts which solves basic problems in a simple manners is necessary. The implementation of the Gram Nyayalaya Act would hence be significant.

Will all problems related with Maoist violence cease with this? Perhaps not. But a sincere attempt to implement these laws could be a starting point. So instead of a government policy of violent repression and massive development, a policy of participatory development, self-governance and social justice, if implemented properly, can be an alternative to the alternative that Maoists have established.

 

 

It’s been exactly a month since my last post. 

In the meantime, I have worked on and closed three multi-million pound deals, forgotten several important family birthdays, missed social events and temporarily lost the ability to tell which day of the week it is.

While in itself this is not particularly shocking, it inevitably leads me to the question- are corporate lawyers happy with the way their lives are turning out?

I asked around and while most of our ilk basks in the glorious sunshine of the corporate life, the few that are disgruntled have certain complaints.

*********************************************************************

1. Ticket to Ride (Year: 1965; Album: Help!; Authors: Lennon with McCartney)

 Any journey to Dante’s Fourth Circle of Hell (Avarice and Prodigality) starts in law school where (without the services of Chris Nolan’s dream-inducing protagonist) the idea is planted in young, impressionable minds that picking up a corporate job is the ultimate mark of success in law school. The brightest, i.e., who land a job with Ramachand & Saunf are regarded with the sort of awe that was previously reserved for the dashing opening bat that knocked off a century in the first ten overs of the final house match. The mental picture painted is one of a room full of geniuses pulling ideas out of the proverbial hat to solve complex legal problems that would boggle the ordinary mind. Inevitably, one aspires to be the object of such reverence.

In most cases, however, what follows is disappointingly anti-climactic. As Folly Nariman points out in her entry Due Diligence and Dreaming Beyond It., the work can be desperately mind-numbing and after a while even the most enthusiastic worker is aware that he/she has been lured into and trapped in an Indonesian sweatshop. Upon identification of this fact, some quit pretty quickly and take up the fine arts. Others switch firms every couple of years hoping that they come across something that excites them. The rest grumble a bit about being sold a dummy pass, but decide to take one on the chin and continue on with the ride.

2. I’ll Keep You Satisfied (Year: 1963, Single; Authors: McCartney with Lennon)

Corporate lawyers are in a service industry wherein the retention of clients is a significant aspect. Fulfilling every little client whim and fancy is the corporate lawyer’s avowed goal and mission. If the lawyer doesn’t deliver to their exacting expectations, clients will simply up and go someplace else humming the Rolling Stones signature anthem. To guard against this, the corporate lawyer sleeps with one eye on his/her blinking red BlackBerry and when he/she buys a suit, he/she buys two jackets to go with it- one to leave on his/her office chair in the rare instances he/she goes home, just to make sure everyone knows he/she remains at their beck and call at all times.

3. A Hard Days Night (Year: 1964; Album: A Hard Day’s Night; Author: Lennon)

As a direct offshoot of my point above, it is a well known fact hours can be pretty bad at law firms leaving lawyers little time for anything else. As a result, law firms see some of the highest attrition rates across the board. In India, it is rumoured that a huge factor contributing to this is the conscious understaffing of law offices to boost profitability, the operating logic being the abundance of eager law graduates waiting and willing to step into the shoes of those who refuse to bear the donkey-load any longer. Each time, however, the fact being conveniently ignored is that the investment made by the firm in training these people is lost when they leave, thus exacerbating the understaffing issue and a pretty vicious cycle ensues. While conditions in the UK are slightly better, the billable hour centric law firm model ensures that associates keep their nose to the grindstone. From bonuses to appraisals to redundancies, it all comes down to the number of hours recorded.

Since the corporate lawyer bathes, brushes, eats, sleeps, prays and parties at the office itself, I am severely tempted to ask the question why they end up working a job they abhor to pay the rent for that fancy apartment they don’t even get to live in.

4. With A Little Help From My Friends (Year: 1967; Album: Sgt. Peppers Lonely Hearts Club Band; Authors: Lennon and McCartney)

Any law firm worth its salt has a highly charged, competitive atmosphere. It’s what you get when you put a set of very bright, ambitious and politically astute people in an enclosed environment. A law firm isn’t a place for the lily-livered. The soft underbellies are identified early and slaughtered mercilessly. While Darwin’s survival of the “fittest” theory doesn’t quite fit the bill here (See Volenti "Non Fit" Injuria), Mario Puzo’s advice on chilling more with your enemies than your friends is practised widely. For example, since being slightly paranoid makes better lawyers, newbies are advised to be wary of each other, as a verbal slip during a night out drinking could make all the difference at the next round of promotions. Often, it does and life lessons of distrust are learnt.

5. When I’m Sixty-Four (Year: 1967; Album: Sgt. Peppers Lonely Hearts Club Band; Author: Lennon)

A lot of corporate lawyers are now concerned about how they will feel when they take a look back at their lives. Ironically, it’s this maniacal self-obsession that makes them such great lawyers in the first place. Their main worry, of course, is that they won’t have too much in their biographies which will be rated PG-13. Few corporate lawyers (for no fault of theirs I might add) have had time for things like justice, making a difference and helping the disadvantaged. Bill Gates (who ranked 8^th as a “Hero of our Times”) and his humanitarian philanthropy, therefore, is now turning out to be a dangerous influence on corporate lawyers. 

Also, there are only so many pages over which one can stretch hostile takeover negotiations, irrespective of how brilliantly they may have been carried on.

6. Can’t Buy Me Love (Year: 1964; Album: A Hard Day’s Night; Author: McCartney)

The natural retort any semi-intelligent reader would have is why all the complaining when the corporate lawyer is paid so handsomely. Some would call it being hypocritical since the corporate lawyer was under no obligation to sell his/her soul. Undoubtedly, the argument has its merits, but as any self-respecting life guru will tell you a hefty bank balance will get you a titillating lap-dance but the nice lady won’t be waiting up to listen to you whine when you get home after a bad day.

******************************************************************* 

Admittedly, I probably fall on the more whiny side of things so my vision might be slightly skewed. But my limited survey tells me that I’m not alone.

Happiness, they sang, is a warm gun.

The lawyer,nay,elf,

had spent himself,

scheming to scuttle,

using precedents so subtle.

 

Pining for leisure,

and a game of pleasure,

he thought to himself:

"I might as well play cricket,

I'll get to bat and bowl,

it'll clear the emotional thicket,

which has been ravaging my soul."

 

A match was then played,

between the bar and the bench,

with a bounty to clinch,

neither team flinched.

 

It went down to the wire,

and the lawyer was asked to bowl.

 

Though he'd had match practice,

this certainly wasn't a Godsend,

for,waiting at the striker's end,

was the imperious chief justice!

 

His Lordship scared him witless,

and under such duress,

 he let the bench win,

for ,helping the bar prevail,

was no less than a Cardinal Sin!

 

This post is written to provide a cynical view of the categories of people one comes across in a Law School.

1.     The Making Contacts Specialists: These people love to volunteer at moots, Conferences and other academic activities organized by their colleges. You will then find them going on a socializing spree at such gatherings. They start with chatting up seniors and gradually make their way to academicians/Advocates/Judges. They use all devices to make an impression ranging from flattery, humour, wit, knowledge.

2.     “I am a Mooter so mankind ought to grovel at my feet” type: As the name suggests these people have their heads in the clouds. They make up the elite class in any law school. Students might hate them, be in awe of them but absolutely no one can ignore them because they make sure of that. In my very personal opinion such people have taken a break from reality and are in need of help.

3.     The Schemers: “Usko mere se accha moot kaise mila??? :-o Maine toh Moot Court Committee ke har member se dosti kar rakhi thi!! Meet the schemers. They have remarkable clairvoyance regarding who can be of what help to them. Therefore their every action is guided by an ulterior motive. They set their goals not according to their own abilities but according to what people around them are doing. If their friend does one moot they have to do two, if he has written two papers; they have to write three. So their entire time goes in plotting/scheming.

4.     “ Mera baap lawyer/judge hai” type: At times when everybody is anxiously sending hundreds of emails in the hope that they land a good internship; these people casually click ‘send’ on one mail addressed to their “Daddies” and lo and behold they land an internship with the best law firm or the Chief Justice of India even, just like that. Well to these lot I would just like to quote Plutarch “It is indeed a desirable thing to be well-descended, but the glory belongs to our ancestors, not to us”. Therefore it would be nice of them to achieve things on their own sometime too and not depend upon their baap who is a lawyer/judge.

5.     “I have an opinion on everything” type: It’s good to have your own opinion regarding issues, provided you don’t force every poor soul you come across to listen to your opinion. But this is exactly what this kind takes pleasure in doing. The hapless soul has no choice expect to listen meekly. And God forbid if “I have an opinion on everything “comes across another “I have an opinion on everything” then their tirade just never ends.

6.     The Use and Throw type: As soon as you land a good moot/an awesome internship/a good post in a committee you find yourself surrounded by them. Once you provide them with help regarding the moot/information on how to go about getting the internship/do their work in the committee they vanish from your life .Hence the name Use and throw type for them. To them also I would like to quote Plutarch (Yes yes you guessed it right .I am a fan of Plutarch) “We ought not to treat living creatures like shoes or household belongings, which when worn with use we throw away”.

7.     The Lost Ones: These are ‘I have no clue what I am doing in the law school’ ones. When these people joined law school they had a vision. Some wanted to serve the society; others wanted to fight for human rights/women rights/etc. But five years in law school leave them disillusioned.

8.     The Good Ones: Err...Now do they even exist in a law school? :-o

So which category do you fall in?

 

 

 

Start-up firm Phoenix Legal has secured the instruction for hotel operators Accor and Interglobe, which established a hotel investment fund with Pacifica Partners, which were advised by Amarchand Mangaldas Mumbai and Morrison Foerster in Tokyo.

We all want to be successful. No one can deny it. Although our definitions of success are often very different from one another.  When I decided to do law, I wanted to be successful. I wanted enough money for survival and normal luxuries and also serve the society. I had a dream.

My dream was my definition of success, your dream may be different. Whatever our dreams were, there is one thing common among them, i.e. there was a plan to achieve it. Maybe not a written plan, but a plan in your mind. I know I did.

Here I am, trying to unravel the mysteries of the oh-so-confusing world of law school.

I have divided the entire ‘process’ into parts.

Level 1

Choosing a law school:

I will not get into the stupid debate of whether three year colleges or five year colleges are better. They both have their positive and their negatives. Sometimes people are upset they could not get into a ‘famous’ college. I have news for them. There is less competition in the so called ‘not-s-famous’ colleges and so the chances of excelling are brighter. It’s simple Economics, monopoly is good for the company and competition is harmful. It does not mean that people who got into the ‘famous’ colleges are worse off. They do have the disadvantage of extreme competition but they have the advantage of having so many options to choose from. They get more opportunities and more competition.

So, your law school is just a support system. It will help you grow but it is not the only thing that matters. So don’t be upset about whichever law school you get into. Just be thankful that you are one of the very few in the country who actually got into a college.

Level 2

CGPA: Cumulative Grade Point Average

Now we all know how important it is. The fact is that in law school and even during recruitment, intelligence and competence are measured in terms of CGPA. Some find it hard to digest. I used to find it extremely unfair. I mean, what if I was not a crammer? What if I was good at doing things than writing about them? We have all had that questions in our mind. I asked the same thing to one of the recruiters. He explained it to me very nicely. He said that CGPA is the only thing they can rely upon. It is the only thing that can be used to judge one student from the other. Moots can vary, paper presentations can vary, extra-curricular activities are sometimes very misleading and almost never useful. During interviews, people fake everything. They fake their commitment level, their competence and sometimes even their qualifications and experience. So all that they are left with is just the dreaded CGPA. They have no choice. Although he did tell me that PPOs (Pre Placement Offers) were a better option.

So that solves another point. Your CGPA doesn’t always show your worth but it’s one of the most important thing if you are looking for recruitment through college interviews. So we have two options, either slog our asses off and get the CGPA or slog our asses off during internships are convince them to give you a PPO.

Level 3

Moot Court/Debates/MUN/Paper Publication/ Paper Presentation

MUN= Mock United Nations

To moot or not to moot, that is the question. :D A rather pertinent one.

I personally don’t like the unnecessary importance given to moot courts. My opinion is similar on the other things like Debates/MUN/Paper Publications/Presentations. I must clarify that I am not saying that all of them are ‘bad’. They are good for your personal development but they are not the means to all the things at law school. They teach you a lot of stuff but don’t expect them to get you recruitments singlehandedly. Only thing I will tell you is, try it once. If you like it then you can continue.

Level 4

Contacts/Jugaad:

Now this is according to me, the most important part of being a law student. Make contacts. Socialize with everyone. You can learn from everyone, even if it is something small.  Meeting new people has so many benefits. One is that you get to know how different people react to different situations. Second you can make ‘contacts’. They help you get internships and jobs. They help you get cases when you become a lawyer. No one was ever at a loss because he/she knew a lot of people. So cultivate this habit. Meet new people. Keep in touch. Don’t suffocate them or spam them. A birthday wish, a casual chat, a wish on the new year or something. Humans are supposed to be social, just be a human. It should work out fine.

Level 5

Recruitment

This is what almost all of us are working for. You might be thinking that this is the last level, well, it’s not. Recruitment is important, no doubt. Who doesn’t want money? We all have needs. We all want money. Recruitment is the only path we law students know that leads to money. I am talking about all kinds of recruitments and not just law firm recruitments. So the basic question is, how do you get recruited?

I once got a chance to talk to a recruiter, he told me a lot of things. He was the one who told me how much importance they give to everything else except CGPA. He told that the basic thing now a days is that you have to be smart in the way you talk. You have to be hard working. You have to be good at following orders. These things are important as they form the basis of what student do in their first year in office. The rest of what he told me will be in the next level.

Level 6

After 2 years of job experience

Well friends, recruitment is not the last stop on the law school track. Its what you do after that, that counts. No point getting a job into a good firm but doing work you never wanted to do. No point sitting in a posh office and doing something you don’t believe in. One of my faculties told me about a senior who absolutely hated Corporate Law. He hated it so much that he had written it on his Corporate Law notebook. Everyone knew about this. The irony is when he joined a law firm which dealt with just Corporate Law. Everyone was shocked. He was dejected. He needed the job.

My point is, don’t aim only for the top firms. Sometimes they might not give you what you really want. No one can work in an office for all their life if you don’t like the work. Try to find out your area of interest. I guess, that is why we have internships. They help you decide.

 

I am guessing this is already a very long post. I wanted to post it in two parts but decided against it. I thought it would spoil the flow. So, these are the six main levels that I divided the ‘process’ into. There can be many more. I am sure there are. Its just that I like these the most. If you have more then you welcome to share.

Constructive suggestions are welcome. 

 

My other posts:

What's your CGPA?

Love in the times of Law School.

Inception and Dowry Law

Research Foundation for Governance in India: creating a polito-legal revolution.

 

Cheers

There was a lot of coverage on the IDIA initiative (Click here to read about the initiative ). I like what they're trying to do here. However, the numbers are stacked wildly against anyone trying to bring in change. There are three hurdles one has to get through to become a student of law at a top law school.

 

The first is based purely on numbers. In the year 1993, three years after I was born, all of us got into primary school. The Government gave itself a pat on the back. By the time it was 2006 , nearly 50% of us had dropped out. And then in 2008, just 8% of us made it to college. We were the lucky 8% who didn't have to fight poverty or be unable to study cause of a lack of guidance. This was the first stage of getting cut-off for a poor student.We were the elite 8% of India who got to attend some form of under-graduate education. Of this 8%,  less than 0.000005% attend the top 10 law schools in India. It doesn't include all those studying law; just the ones studying law at the top colleges.

 

If the poor student, say his name is Ravi, was among the lucky 8%,  he would face the next big challenge: coaching. Getting into any of these colleges is more about money and less about merit. Money gets one access to resources and access to resources gets you into these law schools. And unfortunately CLAT, like all other competitive exams in India, is based solely on one's ability to have been coached. And coaching centers are not cheap. Rewind two years and I remember my parents shelling out Rs.20,000 for a 8 month course. While that money may not be much for many, it is a lot for someone whose parents don't earn in lakhs.

 

In the third stage, we assume that Ravi does make it against all odds. If he got into my college, his parents would have to shell out Rs.1 lakh a year for the tuition fees and a minimum of Rs.36000 for other living expenses. For someone whose parents don't earn more than one lakh or two that is quite a burden. A loan you might suggest. Banks require a third party guaranty or collateral security for a loan above five lakhs.  For a family who can barely afford to get through the week, that isn't something they can provide.

 

And lastly, Universities do not want poor students. It's bad business for them. Poor students would not be as easy as rich ones. They demand answers unlike the rich who can afford the whimsical demands by the Universities. Like no one protested the fines my University a few years ago or the increase in fees. We don't mind paying cause at the end of the end, it's about who can pay and not who wants to study.

 

While I wish IDIA luck, they need to bring in radical thinking on part of the Universities. I would suggest they request every University to start a free coaching center for students whose parents cannot afford these course. While we may not be able to include everyone, it will go a long way in making law schools truly Indian.

 

Read John2010's other blogs:

Getting the recruitment process right.

How e-governance almost killed this man.

Celebrating Baby Thackeray's decision to study in English

We're all racists. Can we change?

8 disturbing signs that our elected representatives have forgotten us.

How comrade whistle blower lost his ethical virginity

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

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

Confessions of a chronic cheater.....

When things go wrong.....

Everyone celebrated their wedding. The groom was an NRI engineer settled in Boston who came to Punjab to marry Manjeet, a beautiful village girl. No one had ever anticipated that this fairy tale would turn into a nightmare until the groom decided to abandon Manjeet and marry again.

He obtained a divorce decree in US. Subsequently, Manjeet filled a petition in an Indian Court. The court declared the divorce null and void although it hardly had jurisdiction over the foreign decree. Now, her husband is divorced in States but married in India.

According to NCW more than 50 women are facing the issue in Gujarat, Punjab and other parts of the country.

Problem

In such divorce cases the conflict of Private International Law becomes evident. Usually, one party obtains a divorce decree aboard which is not recognized in the Indian Courts on the ground that the foreign court had no jurisdiction over the matter. As a result the marriage is recognized in one country but annulled in the other. Such a person may be tried for Bigamy in India but in the other country he would not be considered guilty.

EX-PARTE JUDGEMENT:

An ex-parte divorce happens when only one spouse participates in the court proceedings.  In US, a state has the authority to determine the marital status of that person (who lives in that state) even if it does not have jurisdiction over the other spouse. Usually,the spouse who doesn’t live in the county where the divorce was filed would not be subject to its jurisdiction unless a status exception is present.

Many a times foreign courts grant ex-parte divorce decrees, with one party being unrepresented and thus unheard. Often the parties are unaware about these proceeding too. Due to various practical and financial difficulties; a party may not be able to contest the case. Generally, the wives deprived of maintenance and matrimonial property in these cases.

Recognition of foreign Judgments in India:

The Section 13 of Code of Civil Procedure deals with recognition of Foreign Judgments in India. SC in various decisions noted that a court would have competent jurisdiction if it recognizes the Act or law under which the parties are married. Further, If any foreign judgment is opposed to natural justice, founded on breach of Indian law or obtained by fraud; it would not be recognized in India.

For a court to have competent jurisdiction both the parties must voluntarily and unconditionally submit themselves to the jurisdiction of the said court.

In a leading judgment SC of India ruled :-

1. No marriage between an NRI and an Indian Women which has taken place in India may be annulled by foreign court.

2. Provision may be made for adequate alimony for wife in the property of husband in India and abroad.

Legislations In Other Countries

The (English) Foreign Marriage Act, 1892 and  Marriage (Overseas) Act, 1955 in Australia provide for a form  of marriage which may be availed by the parties marrying abroad where on of the citizens where at least one of the person to the marriage is a citizen. However, the acts do not affect the validity of these marriages.

Law Commission in its report proposed a legislation similar to the two for addressing the issue of foreign marriages. It suggested that the parties at the time of marriage must be free to choose the law by which they would be governed. Moreover, Indian citizenship should be a prerequisite for the parties to avail the benefits of the proposed legislation.

Recommendations

Precautions by the family:-

1. The family must verify credentials of the groom and his family. They must check his address proof, passport details, his place of work etc.

2. The girl must be made aware of her rights in the foreign country.

3. She must have a separate bank account near her place of residence in case of any emergency.

4. Marriage must be registered.

5. A photocopy of the groom’s passport and other credentials must be kept with the family.

Steps to be taken by the government

1. Registration of the marriages must be made compulsary.

2. Bilateral Agreement must be signed with other countries.

3. Spreading awareness and releasing information booklets to prevent fraudulent marriages.

4. Setting up of special cells for counseling and free legal advice in various states.

5. Collaboration with Ministry of Overseas Indian Affairs to deal with the issue.

6. There should be a uniform law for recognition and enforcement of foreign judgments in relation to matrimonial disputes.

7. Assistance must be provided to NRI wives.

Well, I saw Inception the other day. Brilliant movie. Awesome storyline and brilliant performances.

One strange thing that caught my attention in the movie was how Mal Cobb dies. She commits suicide but Mr. Cobb ( Dicaprio) is the one who gets into trouble. When I saw this, I was strangely reminded of our country’s dowry death laws. Strange, I know.

What is dowry death?

This Section of the Indian Penal Code was inserted by a 1986 amendment. The Dowry deaths law defines a 'dowry death' as the death of a woman caused by any burns or bodily injury or which does not occur under normal circumstances within seven years of her marriage. For a woman's death to be a dowry death, it must also be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. If this is proved, the woman's husband or relative is required to be deemed to have caused her death. Whoever commits dowry death is required to be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Well, in a simple language, if the wife dies within 7 years of marriage and there is even a slight reason to believe that she was being harassed by her husband or his relatives, then they will be held responsible for her death.

It doesn’t matter if it was a suicide. The husband and his relatives will be guilty for harassing her and forcing her to take the drastic step. If the conditions under which she died are suspicious, then the husband and the relatives get screwed even more.  

Coming back to Inception.

Well, in the movie we saw that Mal goes to three physiatrists and gets herself declared sane before she jumps off a building as she thinks she is in a dream.  She also accuses her husband of being incapable of handling the children and gets it legally documented.

So, what if such a thing were to happen to a husband in India?

Wife is not sane but somehow gets herself declared as sane. She then commits suicide and then the husband is screwed for life.

There is nothing he can do about it. The worst part is that this is not just my theory. It has been happening for a long time now. Many husbands have fallen victims to this already.

False claims also cause a lot of problems. The court visits, the lawyer fees and the backlash from the society, all this is over and above losing a wife.

I am totally against gender biased laws. I mean, on one side you are advocating gender equality and on the other side you make such laws. Stupid.

I know that for every wrong case there are many women who have had justice due to these laws but that’s not the point. The Indian justice system is supposed to work on the principle of ‘It is better to let nine guilty men free than to convict one innocent man’.

 

I just wish they could change it and make it gender neutral. I am not being a chauvinist here. I am a fan of equality of the sexes. I think even the laws which are biased towards the males should be changed.

This is India. Things here take time to change.

On a lighter note: Let’s hope this law changes before I get married.

 

Related Read: Recommendation of Malimath Commission 

 

The State of World Population Report suggests that In India

1.  A Rape is committed every 54 minutes;
2.  Molestation every 26 minutes;
3.  Kidnapping or abduction every 43 minutes;
4.  Eve-teasing every 51 minutes;
5.  Dowry death every 1 hour 42 minutes;
6.  Criminal offense against women every 7 minutes.

Rape is a crime not only against the body of an individual but also against one’s mind, psyche and reputation. The rapist can be questioned only if he is caught but the raped is questioned at every stage by every strata of the society. The victims have experienced that the police is often reluctant to lodge their complaints. Even if the complaint is lodged, the justice is far from being delivered. In courts circumstantial evidence is highly relied upon. The defense always supports the theory that the intercourse was with mutual consent.

In various cases the absence of injury has been considered as a proof of consent by the courts. Victims are forced to lay every slight detail of the incident which may not be possible. Mostly the facts are presented in an inappropriate manner which often leads to the acquittal of the accused.

In traditional society like ours raising voices against any crime of sexual orientation is considered a taboo. Many girls have witnessed oppression from their own family members in such instances. A rape victim needs a lot of courage to bring the matter into notice. But the agony does not end here. It is continued at every stage whether it is medical treatment, lodging of F.I.R or even attending a trial. The entire system is harsh to her. Time and again some N.G.Os have provided the victims both financial and psychiatric support but practically they are unable to help all of them.

The accused may be known or complete strangers. The crime of date rape has increased significantly in the past few years. Not to forget the rape committed by one’s own relative (including fathers and husbands) and those committed by stalkers, taxi drivers, guides and co-workers. Statistics suggest that in about 7 percent of the cases, fathers or other intimate members of the family or close relatives were themselves the offenders. About three-fourth of the offences were the result of offence by Neighbours and other persons known to the victims. Only one-eighth of the offences were committed by strangers. Reports have also shown that when a married woman is raped, she looses her love for husband and bond with the family. This effects not only her but her children and husband as well.

Imrana was asked to marry her rapist father in law as a viable solution put forth by the religious protagonists. Instead of punishing the culprit they decided to reward him. What kind of justice is this?

The offense of rape declares a punishment not less than 7 years which may extend up to life imprisonment too. But a husband who rapes his wife who is below 12 years of age is only liable for an imprisonment which may extend up to 2 years or fine or both. The Indian law doesn’t recognize the crime of marital rape yet. Also there is no section in IPC which punishes boys under 16 years of age for committing rape. They can be prosecuted only under Section 377 (Unnatural Offences) of I.P.C.

The infamous case of Hetal Parekh indeed deserved capital punishment for the accused Dhananjoy Roy who not only raped 14 year old Hetal but also brutally murdered her. His plea to the president for remission of sentence was rejected by Mr APJ Abdul Kalam. The decision was welcomed by almost everyone in the country.

There is an urgent need of speedy trial for such cases. It may be done by introducing a separate legal system for such sexual offenses. Medical help must be provided to the victims which should include counseling and vocational training (in cases where the woman has be out casted from the society and has no means sustenance). The same can be provided by state fund. The fine for such offenses must not be kept nominal.

If the medical examination is not conducted within 48 hours of rape the offense is very difficult to prove. Most of the females are unaware of this and in order to get rid of the physiological scars they take bath before medical surveillance. Awareness programs must be conducted to demonstrate what a victim must do in case of rape. Moreover keeping in mind the mental state of the victims a female doctor must be appointed for the examination.

The recent amendment in Criminal Procedure Code(Cr.pc) is a very optimistic step. Now such cases have to be presented before a female judge. A more effective witness protection scheme is also being guaranteed. The statements of the victim would be recorded at their house or some other safe place preferentially in presence of a female officer.  A female may engage a lawyer to help the prosecution with prior permission of the court. The investigation has to be completed within three months from the date when information was recorded by the officer in charge of the police station. Protection of the victim’s identity, maintaining the confidentiality of the name and address of the parties, camera trials and conduct of trials by a woman magistrate are also provided in the amendment.

 

This is a duplication of author's post on legaldrift.

Recruitment is a big deal for students who graduate. Being professional in approaching the whole process is not an option but a job requirement. In the following points, we look at how to streamline the recruitment policy in a college and get the best results for all its stakeholders:

 

A. STUDENTS

The most important stakeholders in this process. You (the placement committee) want to keep them updated and calm. At the end of five years, they carry the burden of their ambitions as well as those of their parents. In order to make sure they handle the process right, it's your duty to keep them informed. 

 

First, give them information about the firms that plan to recruit. The placement committee must create a document with information about various law firms and organizations that visit the University. Remember that the key words are informed decision. Without the right information, students are most likely to make wrong decisions that will not only hurt their chances but also those of their peers. And second , provide updates about the recruitment process as often as possible. Any news you give them will let them sleep better at night if not well.

 

B. THE FIRMS

We're in a market where demand and supply seem to be at peace. The important emotion here is feeling calm. The reason I write this is because all firms want the best people and want to be the first to be on campus. So how do you handle everyone? We rely on the old and very successful 'Divide and Conquer'. This is how we do it.

 

Divide the firms into three tiers. Base this division either on the pay or size of the firm. Once you know where a firm stands, choose a time period in which firms from a particular tier can approach the University. If a firm is adamant about a particular date; negotiate. And again the key is to be calm and remember that demand and supply are at peace. While it's important to have friendly relations with a firm, remember that you're dealing with at least 20 different organization. Favour one and a competing firm becomes your enemy.

 

3. ALUMNI

I discussed how it was important for students to make informed decisions. Another way to do that is to invite the alumni for talk sessions with the students. It'll help the University create a connection with the alumni and the firm on the long run. You don't want students applying for a firm which either doesn't do much work in their field of interest or is located at a place one does not wish to go. Firms also tend to make presentations on the day of recruitment; a strategy that is unhelpful to most people. If you want to get the best people, you have catch them early and tell them why your firm is the firm to join. If a firm wants to make a presentation, tell them to come in before the college closes for summer. This will give the students enough time to think about their prospective employer.

 

Being a part of the recruitment committee is no easy task but neither is it being a student waiting to be hired. A flawed process could result in students not accepting offers or even students not getting shortlisted and nobody wants to be responsible for that.

 

Read John2010's other blogs:

How e-governance almost killed this man.

Celebrating Baby Thackeray's decision to study in English

We're all racists. Can we change?

8 disturbing signs that our elected representatives have forgotten us.

How comrade whistle blower lost his ethical virginity

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

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

Confessions of a chronic cheater.....

When things go wrong.....

The young think-tank Research Foundation for Governance in India (RFGI) has been working hard at changing the legal and political landscape in India, recounts Legally India blogger napster.

Fresh out of law school,

with a trained eye for detail,

his maiden battle left him,

feeling like a garbage pail.

 

Furious with his reasoning,

the fulminating judge quipped:

"Counsel, you've been quibbling,

when you ought to stay tight lipped,

for, to wriggle your way

out of this one,

you are very ill equipped ! "

 

Hounded by the humbling,

his ego was now smarting.

 

He felt such a great big fall,

would've had a Zen Master fuming,

even the clairvoyant Octopus Paul,

could never have seen it coming.

 

His wizened senior  chipped in,

and over a bottle of the finest gin,

preached with the slightest of grins:

" You are my trusted lynch pin,

a fine lawyer you'll make,

your pride, though, is a deadly sin,

abandon it for career's sake."

 

The words struck a chord,

he realized he wasn't The Lord,

he felt humble,did not grumble,

never again did he stumble.

 

 

 

The Chief Judicial Magistrate of Bhopal on June 7, 2010 pronounced the much awaited-delayed-disappointing verdict on the criminal liability of the perpetrators of the Bhopal Gas Tragedy. For 20,000 lives lost, 7 of the accused were convicted for 2 years while accused No.1 (you know who) still remained an absconder from justice. “Grave Injustice”, “Justice delayed, also denied”, “Not a verdict, but a mockery” cried the news headlines. Soon activists, local journalists, lawyers and of course our beloved politicos joined the bandwagon in criticizing the decision delivered in a tiny magistrate court somewhere near the middle of India. 

Other than the fact that CJM did the maximum he could, it is also important to note some of the positives that emerged as an aftermath to the judgment. For starters, the CJM gave the maximum sentence possible for the offence under section 304A of the IPC. Probably the more fitting provision would have been 304 part II (punishable upto 10 years), however as the Supreme Court in 1996 thought otherwise, there was little the CJM could do. The media, either inadvertently or purposefully (to create a hysteria after the judgment) failed to highlight this before the judgment was delivered. 

More interesting was how the media, civil society and opposition exploited the public opinion against the judgment and thus incidentally ensured that the government behaves more responsibly. The electronic media, driven by TRPs, asked tough questions, brashly took positions and tried to identify the villains of Bhopal. The activists, mostly ignored in the last 25 years, took full advantage of the newfound limelight and voiced their viewpoints. The opposition- left and right- with an interest in maligning the government, highlighted the inaction of the state towards the victims of Bhopal. The government, clearly at the backfoot, expressed its concern for the victims and in a desperate effort to win back some public support, constituted a Group of Ministers on the issue which recommended that the compensation to the victims be increased.   

Even minimal observance would reveal that all the different public agents, even while rightly pointing out issues and taking decisions, were, in some way or other, furthering their self-interest. The interest along with it being public was also concomitantly private- be it profits, publicity, votes or brownie points. Almost paradoxically the not-so-complimentary interests of the different groups, acted in a manner, perhaps fortuitously, for the benefit of the victims of Bhopal and the people of India. Sounds strange, but true.

The extra compensation, if distributed properly, would be a welcome relief for the victims on whose behalf the government had entered a grossly unjust settlement with Union Carbide decades ago. Of course, it would be the government which will be paying indirectly through the tax payer. But it is the same tax payers money which goes into the various subsidies and the ‘stimulus’ package for the corporate sector. Considering this, the extra compensation for the hapless Bhopal victims should not pinch the taxpaying citizen; though it should have been the private enterprise which should have, in first place, been liable. 

Now regarding the larger benefit for the people, all the hype and hoopla surrounding the verdict have oddly brought some form of accountability on the state. The constant pressure coming in from opposition and civil society through the media, forces the state to act in more judicious and just ways. It will not be very easy for any government to get away with anything similar to Bhopal due to this. The Nuclear Liability Bill has hence come under severe criticism and the government even had to drop the idea of introducing an amendment which made the nuclear operator incapable of suing the foreign supplier in case of nuclear accident caused by the latter’s fault. 

The present draft of the bill caps the total liability for any nuclear accident at around 450 million dollars, lower than the much criticized 470 million dollar settlement for Bhopal made 2 decades ago! Any nuclear accident, as the Chernobyl disaster has demonstrated, will have a much larger casualty figure than that of Bhopal. Also, out of the 450 million dollars, less than 1/4th will be paid by the nuclear operator while the government pays the rest! 

Following the Bhopal verdict, the government said it would have a relook of the bill and there are chances that these provisions would be altered. There has also been the talk of having new laws for industrial disaster, class action litigation and a faster justice delivery mechanism. All the damage associated with Bhopal were done years back when the compensation was lowly fixed and criminal liability diluted. The events following the present Bhopal verdict has only demonstrated that public opinion still matters and the high and mighty state can be forced to act more responsibly. 

 

With due regards to the students, alumni and faculties of NLUs, I have no doubt the NLUs are truly national in terms of student compostition, different in terms of curriculum and administrative structures from other tradtional law colleges. The big question is whether the NLUs are legally entitled to use the word "National".

 

The NLUs are established by  acts of different state legislatures and are universities within the meaning of Section 2 (f) of UGC Act, 1956.

I cannot produce the government order, rule or circular where it has been stated that the State Universities or institutions  are not entitled to use the word "national". 

But I am producing evidences which has put doubt on my mind regarding the use of the word "national" by the NLUs.

Evidence 1:

Source: http://www.ugc.ac.in/more/commissiondecision/427.pdf

"4.01 The Commission examined the proposals received from Gauhati University and Vikram University and granted its approval in principle with the modification that Gauhati University be advised to drop the word “National” in the proposed Institute of Art History, as the State institutions are not permitted to use it." (emphasis added) 

Evidence 2:

Source: http://www.ugc.ac.in/more/commissiondecision/430.pdf

6.06: To consider the request of Gauhati University for not removing the word “National” from its proposal for “establishment of National Institute of Arts History”. The Commission, keeping in view the instructions of Govt. of India resolved not to accept the request of Gauhati University for use of word “National” with the name of the Institute of Arts History.

 

There must be a Government order in existence which prohibits state institutions not to use the word "national" in their name, as inferred from Evidence 1 and 2. I put a serious doubt on legitimacy of the use of the word "National" by the NLUs.

Further, I suggest that the NLUs may be transformed into Central institutions like in the case of NITs. Like the IITs and IIMs, NLUs  can form a single brand image, this will help in easy rotation of faculty, better funding and will also help the upcoming law schools with the older NLUs working as mentor institutes. Further, turning NLUs into central institution will also put end to the debate on regional reservation policy.

Critical Comment on this issue is seriously welcome.  

Bangalore

Following LegallyIndia’s hard hitting analysis of how associates were depressed, suppressed and sex starved, BigKick, a law firm based in Bangalore has promised staff Black Berries, Eye Pads and an Acu-Pressure Assisting Loo as a part of its ‘Happy HR’ measures.

“Our black berries come from a forest in Kenya. These berries are rich in anti-C vitamins and have great quantity of oxidants too. These will help in quick ageing of skin and will make are young hires look old. After all, clients want to see old and mature faces”, explained Budha Sami, partner at the BigKick law firm.

According to one of the senior associates, eye pads are the best HR measure BigKick has taken. “My eyes used to turn purple from the work done on computers. This used to scare my kids away from me. Sometimes they used to laugh at me, wondering how I could change my eye colour like Disney’s cartoons".
"Now with the eye pad I can hopefully pray for normal coloured eye and a happy family life”, he adds.

“I have nearly lost my sight”, says a senior associate, who has been a senior associate since he was appointed as a senior associate, “But with these eye pads, I can breathe easy”.

Finally Indian Law Firm has got Acu-Pressure Loos, coming straight from China “Our research shows that in tensed workplaces, washroom moments are the times when you can introspect and hear your body and soul talk", says Karan Ben, HR head at BigKick.

"I proposed the firm that they attach acupressure mats on the floors of the toilet seats to help the members of law firms use this ancient technique to remain fit and happy”, says Acu Chang, the maker of the device.

Interestingly Acu Chang could not sell any of his devices in China, from where he originally belongs.

It is learnt that the firm has also procured Gary Kirsten’s report on how sex can improve performance at work.

“We are also planning to have in-house bunk beds which can be converted into a double beds or triple beds with little modification. People can use the beds in whatever manner they want. This was in our mind right after section 377 was repealed”, says Budha Sami who proudly admits that his firm is now ‘happy and gay’.

False News With Balls News Network
Image from here.

In Law schools, relationships mainly start due to boredom.

Yes, that what I believe. I have seen it and I think a lot of people have too.

I have to clarify. I am not talking about all the relationships. I am talking about a ‘majority’ of them. Love and law are two separate concepts. Although in a law school, they come together.

People in law schools are away from their families. They have almost no extra-curricular activity which keeps them busy all day long. They long for friendship. They long for a family. They want to be loved.

So, what do they do?

Well, they ‘fall in love’. Pretty simple.

It’s an extra-curricular activity. There are a few exceptions though. There are a few people who are not successful and then are others who although have nothing to do, do not pursue any such adventures.

I might not be completely true but I am pretty sure that I am true in a lot of cases. I am not talking about just people in my college. This is the situation in a lot of residential colleges.

There are couples. They roam around together. They ‘enjoy’ in their free time. They watch movies together. They share emotions. They go for trips to nearby tourist destinations. They are like a proper couple, without the emotions.

The messed up part is that both of them know it, but both of them want it, so no one will say anything.

They work on the principle that our country works on, “Jab tak chal raha hai, chalne do.” (As long as something works, let it go on). After 5 years or whatever the length of the course is, they go their separate ways and live happily ever after. There are a few fortunate people who end up marrying their ‘time-pass’.

I personally think that there are more constructive things that can be done.

Do whatever makes you happy.