Jerome Merchant + Partners

It wasn’t always like this.

I was a fit, healthy 17 year old when I went to law school. I entered at an underweight 63 kilograms. Seventy-two subjects, three seminar papers and several eating and sleeping disorders later, I exited weighing about thirty kilos more. Also, I had a law degree and a job with a law firm.

This, however, was only the beginning.

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Fun fact: 73.1% of all corporate lawyers are over-weight. 17.9% are simply morbidly obese. 5.9% are underweight (as always, the exceptions prove the rule). The remaining 3.1% are clinically fit (physically, not mentally- there’s usually an OCD lurking somewhere nearby).

Reasons for this may vary. I have identified the following reasons why corporate lawyers are prime candidates for coronary heart disease: 

1. The law school mess guys have the uncanny knack of making everything on the menu taste exactly the same. After five years of their taste buds being systematically desensitised, graduating lawyers are overjoyed to discover various flavours of food. They may overdo their joy a bit.
2. As they are no longer on a student budget, lawyers can afford to spend on the exciting food mentioned in 1 above.
3. Clients refuse to fly you in business class comfort if you can fit it into an economy seat without oozing.
4. Sitting at a desk for 16 hours every day is not particularly conducive to a high metabolic rate.
5. In defense of the corporate lawyer, there is not much scope for activity in a law firm. Email, fax machines, telephones and intercoms contribute to a culture of laziness. I have seen instances of people paging others in the same cabin.
6. Elaborating on the culture of laziness mentioned in 5 above, I have known people who have paid up-front for membership to the local gym for 3 years and gone twice because it was too much for them to cross the road. Fried chicken, anyone?
7. Further to 6 above, as several overweight lawyers smoke, puffing, then huffing, on the treadmill is non-macho and is to be avoided at all costs.
8. Bingeing on alcohol and ice-cream (sometimes simultaneously) helps the corporate lawyer rationalise his/her conscious decision to lead a miserable existence.
9. Success is synonymous with a jiggly belly. It shows prosperity and makes the Indian lawyer a viable prospect for marriage.
10. In keeping with the majoritarian ideology in law firms, being plump is considered attractive. Also, a legendary gay band wrote songs about ladies with large backsides. Need I say more?

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“Round is a shape”, I counter defensively.

I follow it up with the ever popular “Who needs a six-pack when I have a barrel?”

Such are the weapons of wit one must possess when faced with increasing queries about the growing proportions of one’s gut.

I am beginning to have quite the arsenal now.

Hi all, I am not here for a prize in the blogging competition. Its too late for that. I want to use this forum to reach out to as many of you as I can.

I am putting together a group of people who intend to make a difference by filing 7 RTI applications a week. Details have been put up here.

Please use this blog to bring to my attention issues you think are relevant and merit being taken up through the RTI route. Every week, I will publish here a summary of the RTI applications filed pursuant to communications on this blog.

At a time when Indian Judiciary is suffused of all round criticism for long pendency of cases and tardy and dilatory justice delivery system, it is indeed relieving to learn that at long last a solemn beginning has been made by the Apex Court in this regard by coming to the brass tacks in a realistic manner.

It is not that judiciary was oblivious to this gigantic problem and no efforts were ever made to address the issue, however, all those efforts made so far were basically of didactic nature directed to exhort lower judiciary only to take appropriate measures to expedite the disposal of cases.  The steps suggested included holding Lok Adalats, resorting to the merit of plea barging, assigning due priority to old cases by hearing cases in a time bound manner.  But never did it strike to Hon’ble Supreme Court where actually did lie the trouble and who is the actual culprit of this malaise?

It is for the first time that the Apex Court has caught the bull by the horns when it realized – though belatedly that by and large it is the High Courts, which are responsible for the enormity of pending cases in lower courts and their rank indifferences, callousness in expeditious disposal of cases.  The Apex Court has severely debunked the practice of High Courts in granting “STAYS” in criminal cases in a cavalier manner on a drop of hat which caused delay in disposal of cases and allowed criminals to gad about freely in the society as a freeman.  This adversely affects the psyche of the law abiding citizens and erodes their faith in the system of justice obtaining in our country.

But it s merely the tip of the colossal iceberg of judicial delinquency.  If a thorough analysis is made in a dispassionate and rational manner, many skeletons would come out of the cupboard to reveal the vast extent of hubris that has virtually immured our High Court judges.  Instances are not scarce when the High Court judges pay no heed ot the specific directions of the Supreme Court for early disposal of certain cases and disappoint the Petitioners by passing over the matter to the almighty altar of the REGISTRY to put them up in due course.  The poor Petitioners are left high and dry and cannot even affor4d to approach the Hon’ble Apex Court to highlight their plight and the ignominious fate meted out to directions passed by the Apex Court.  There is no mechanism for Hon’ble Apex Court to monitor the proceedings in such cases at least for the statistical purposes if not for judicial purposes.  The malaise is deep rooted and needs to be thoroughly probed then only the pious intention of Hon’ble Apex Court towards this noble cause would result into plausible action otherwise it would be yet another addition to the well known vanityof Indian Judiciary.

Health, education, law & order are some of the defining features of the status of a society. But existence of a dynamic, realistic, truly responsive Justice delivery system is the hallmark of any civilized society that distinguishes it from other conglomerates of human groups. A great emphasis is therefore laid in every civilized society to inculcate good values in its people and a modest beginning is made with a well known adage. As you sow, so you reap. No wonder then “Always respect the law”, “Don’t take law in your hands, law will take its own course”  are some of the much touted clichés commonly heard in every civilized society.

In fact every civilized society is indoctrinated on the maxim that respecting law and abiding law would ensure a safe & secured life for the people. People take this to be a gospel truth and this fancy notion results into generating a kind of subliminal confidence & assurance in their minds that the ‘STATE’ has endeavored to tailor laws to meet all their legitimate needs, aspirations to make their life safe & secured so it is in their own interest to follow law or else any breach or delinquency on their part would visit them harm and invite punishment in accordance with law. This sense of complaisance for law often leads to develop a sort of uncanny complacency in their minds of the people that more they obey law or don’t breach it, the more they would be crowned with respectability in the society and would ever fare well happily in life.

But have we ever wondered how true is this truism in actual practice? Instances are not rare when we come across people known to be law abiding citizens suffering for no fault of theirs and the delinquents who caused  them the grief & misery roaming about freely in society under the protective shield of law . Is it not a case where law failed to honour its mandate to protect & safeguard the interests /rights of its patrons for one reason or the other? When the culprits go scot free it adds insult to their injury and that exposes the very myth of civilized society that in effect it is no different from its uncivil cousin- barbaric society.

This makes it clear that though ‘law’ is necessary it is simply not sufficient in itself to help us on its own. After all it needs crutches of evidence to make it move to come to our aid, help & rescue. The stronger the clutches we provide to it in our favour, the faster it reaches us or else dumps us to our fate.

 Nothing could better illustrate or elucidate this stark reality than the recent verdict pronounced after an agonizing inordinate delay in world’s worst industrial disaster that took place about a century ago at Bhopal taking a huge toll of some 15,134 precious lives and crippling about 6 lakh people whose only fault was that they were mostly poor labourers working in the culprit UNION CARBIDE COMPANY at the time of the disaster or happened to reside near abouts in the city as a lot of peace loving abiding citizens & who were not known to have stood on the wrong side of law.

Now, as the verdict is out, it is obvious that law has taken its course and done what was within its competence. But has it given justice to the hapless people who desperately needed that? Has law granted them adequate compensation to their colossal losses, let alone assure them a safe & secured life? The verdict has not only failed to fully assuage their hurt feelings which they were nursing all this while in the vain hope of justice, nor has it caught hold of the real culprits of the crime- let alone punishing them adequately. The real culprits are still at large, beyond the pale of law and even those who happened to face the trial case were awarded lighter punishments not adequate or compatible to the culpability of their heinous crime.

It is not simpliciter a case where justice was denied due to sheer delay. But it is a compounded case where demise of justice was virtually presaged way back in the year 1996 (13^th sept 1996 to be precise) when Hon’ble the supreme court didn’t permit the accused to be hauled up for severe offence u/s 304 II IPC- culpable homicide not amounting to murder – attracting a maximum punishment of 10 years. So, the real script of their miserable destiny was already written way back about 14 years ago by Hon’ble the Apex court and what has been delivered by the trial court at Bhopal on 7^th June 2010 is merely a resurgence of apparition of that dead justice. So, no amount of railing or wailing would avail the victims of any semblance of relief or solace as long as we follow a system of weak, archaic, unrealistic law & justice that is too esoteric, oblivious & impervious to the ground realities falling too short to meet the challenges of the changing times & legitimate expectations of the law abiding, conscientious people.

One only hopes this verdict how so ever belated or unpalatable, may prove to be an eye opener for our so called custodians of law and guardians of public weal to avoid any such contretemps to occur in future.

I'm a student - used in the most elastic sense - at an NLU.

Like most law schoolites I know, I've been reading Legally India with interest these last few months. Like all good websites, LI appeals to every mood of a law student. Taken too long a lunch break while interning at your legal sweatshop? Feeling guilty? Want to assuage that guilt by reading about Important Things like court orders, conveyances, mergers and stamp duties? Open up the Legal Pulse page and scratch your academic itch. Feeling lazy of a weekend afternoon? In the mood to make some popcorn and watch a K-serial?Open up the comment space on any blogpost on any blog on LI, and lo!
Welcome to the Great Inter-NLU Bitchfest.
It's true. Imagine - tens of law students and associates from a pan-Indian spectrum of law schools, gathered in one place with their metaphorical loincloths tightened and their metaphorical muscles oiled, ready and willing to sacrifice temper, dignity and (not least) grammar at that most holy of all altars - Validation on the Internet.

Validation of what and by whom, you ask? Validation by anonymous commenter Tintu (college unknown) to anonymous commenter Pintu (college unknown) that NLSIU is better than NALSAR.

Well! Everyone holding their breath in trepidation at NLSIU can sit down now! Everyone biting their knuckles, the suspense is ended! The battle is won! What your moot court trophies and Harvard Law Review papers, your placements and your festivals could not achieve, an anonymous argument on the internet has. These are people, you realise, who have taken a national competitive exam to secure a seat at institutes that blushingly revel in the title 'the IITs of law'. These intellectual powerhouses, these cerebral champions, cast aside their projects and their football games and their sitcoms,  their sutta-breaks and their siestas, their due diligence and their DRHP drafting, run to the closest telephone booths, don their red capes and red chaddis, and fly to Legally India to take offence and launch offense in defence of their beloved alma maters, whose existence and reputation (undoubtedly!) is entirely dependent on the result of these anonymous catfights.

The sheer futility of it is stunning.

But so is the hilarity. Which means I'm, for one, not complaining; I'm merely sitting back, balancing my bowl of popcorn more carefully on my potbelly, and watching the Kasautii Zindagi Kay of the internet.

(Which is not to say that Kian is Komolika, because Komolika was a mean and evil person with a taste for dramatic prints in sarees, whereas Kian is nice and hopefully does not wear sarees. )

(Kian is, however., the Ekta Kapoor of the internet, and for this I thank him profusely.)

Note - If you do not get sarcasm, kindly avoid this blogpost. Note 2 -NLS being better than NALSAR is a hypothetical example chosen at random, and of whose veracity I am not guarantor.

Disclaimer: This obituary has been prepared on a presumption that Warren Anderson who is now 90 is likely to die soon, much to the relief (and yes, I mean relief) of all the victims of the gas tragedy of 1984 in Bhopal. This obituary can then potentially appear as a one page premium obituary which has been posted by the Indian justice system in a newspaper circulated at New York. Any resemblance to the above mentioned character is completely intended.

IN DETESTING MEMORY OF

ANDERSON WARREN, Born 1921

Warren Anderson was the former Chairman and CEO of Union Carbide, a company which had virtually colonized India for the second time around in the 1980’s. Anderson was always a good sport, always playing the cat and mouse game with me. While he lived comfortably in his Long Island home, my caretakers had facilitated his present carefree state through a series of events ranging from him being released on bail to him never being extradited for the heinous crime that he had committed . He was a tough taskmaster, and always made sure he knew the right people in power. My caretakers and him were the best of friends and their friendship was based on the principle of mutual cooperation with many gifts being exchanged in between them. While my caretakers, have done a lot for my benefit, ranging from vehemently opposing the entry of foreign law firms in India to being engulfed by media pressure to bring to trial molestation cases nearly 20 years after its inception, it is people like wise old Warren who have made me realize time and again that power speaks and absolute power speaks absolutely. He was a man who lived by principles, and these principles were based on the premise that Indian lives come cheap. I am grateful to him for making me realize that corporate manslaughter can never actually exist in principle and more importantly in practice, especially if the country happens to be a third world country. Let us all take a moment to remember the heinousness and heavy headedness that this great man of a powerful land exhibited. As I now watch the media pointlessly covering him non stop, let me take this opportunity to thank him for his most hallowed contribution till date- the absolute liability principle.  

May his soul never rest in peace.

With the worst of Regards,

The Indian justice system and its principles of justice, equity and good conscience.

For the protection of my cows and buffaloes I have gaddi dogs. Huge, shaggy beasts who can bring down a leopard. I love dogs. Once in UK I met a dog breeder and became interested. Here is my take.

Disclaimer: This might look offensive (mastiffs), repulsive (pit bulls) and abusive (mongrels) to many but read it to enjoy and have fun. I hope in the end, no love will be lost.

Amarchand is not a law firm; Mastiff is not a dog.

Mastiffs are huge beasts; the English mastiff is the largest breed of dog we know of. They weigh around 250 pounds and are strong enough to keep a bear, wolf or a big cat down. Moreover, they are ferocious guards of the territory they are kept in.

Many people who know what a Mastiff truly is are of the opinion that calling the Mastiff ‘a dog’ is disparaging to the Mastiff. The Mastiff is too big to be called with as little a term as ‘a dog’.

Pretty similar to AMSS? The largest firm we have; Amarchand has 250*2 lawyers on its rolls and is strong enough to keep any firm firmly pinned down. And Amarchand too is a ferocious guard of the sanctity of the noble profession of law and is vehemently against foreign firms entering into its territory.

 Amarchand also is too big to be called with as little a term as a ‘law firm’. Amarchand, at least for law students is  ‘Amarchand’, just ‘Amarchand’.

BTW, even Trilegal’s managing partner Anand Prasad loves Mastiffs. Here is he with his pet. Is Trilegal also a future Mastiff? What about Luthra and Luthra, AZB, JSA and ALMT? Are they growing big enough to be called Mastiffs?

Ban the LPOs like you’ve banned the Pit Bulls?

Pit Bull Terriers are medium sized stocky breeds of dogs with one gory trait: the rip apart any threat they see. Pit Bulls have been used in dog fights and when the losing dog shows its pink belly as a sign of defeat, Pit Bulls have been known to disembowel the dog’s stomach; its intestines, liver and kidneys popping out for the owner to clean (Yucks! Just kidding).

They have been banned by many states including the USA.

Pit Bulls disembowel dogs and cold-bloodedly kill small kids. LPOs are virtually doing that to law firms. They are ripping apart the traditional law firm models and the remnant organs of the law firms will soon be left for the regulatory hawks to clean up.

And it seems that LPOs are about to be banned. So maybe, LPOs too shouldn’t be banned. Are they being banned? Says who? What say? I know I am sounding confused.

Desi Dogs and District Court lawyers

Desi dogs: the omnipresent happy-go-lucky mongrels. These dogs can remain without food for many days; they generally don’t have a shelter and eat whatever they are offered. They are the ones who engage in real fights with other dogs: bloody, ear eliminating, testicle deducting fights.

They also do the real scouring work, keep moving sprightly without any thing to do and will wag their tail and throw out their salivating tongues to anyone they think has something to offer.

And while they look small, scrawny and unhealthy, they get the kicks of a real dog’s life perfectly lived. And they enjoy the usual free riders. For example even the slightly bigger ones become the alpha male and get bigger morsels, better looking bitches and the respect of other dogs with ease.

Let your imagination run amuck for this vis-a-vis the district lawyers. J

PS- Wag your tails. Don’t snarl.

Hello. Made it ? Decided to Come ? Right. Welcome.  

Or Not.

Newbie, THIS  is why you should RUN for your life  in the other direction  :

1) Heard about places in the middle of nowhere ?

Well, get to the middle of nowhere, then take a left, and go down a 2.8 km stretch. That’s Nalsar.  We’re 25 DAMN KM from Hyderabad.

See,  this isn’t really Nalsar, Hyderabad . It’s Nalsar, the hamlet of Shameerpet.  

2) The chief attraction within a 5 kilometre radius is a deer park. The chief attraction within a 10 kilometre radius is a café that smells of a curious mixture of phenol and animal fat, mixed with cheap perfume.  Eau di Toilet, really.

3) The teachers.  Many of them are often mediocre. When they’re not being terrible, that is. Within the walls of the NALSAR academic block, we’ve been accosted with lecturers who felt that teaching the law involved reading out the bare act as slowly as possible and nothing much more; where the idea of “application based questions” has often been re-imagined as testing the ability to guess what case the set of naggingly familiar facts belongs to;  and where a constructive academic review was met with anger and sarcasm as opposed to introspection.

The pursuit of knowledge never was such a struggle.

4)   Us. We’re often snotty, arrogant and phlegmatic.  

5)      5) The Curfew timings :  7 Pm. ‘nuff said.

… And this is why you’d be an idiot if you do  :

1)      1) So, we’re far away from the noise of the city. Think about it - haven’t you had enough constant , unceasing exposure to that most of your life ? Now this kind of remoteness - it forces you to interact with big chunks of the 400 –odd people around you. Even more importantly – it gives you chances, space, moments - to know yourself better. This is often rewarding … the best times I’ve had in law school weren’t the ones when I was out partying out in the city. It’s always been the quieter moments, the little rooftop conversations  in the dead of the night,  the daily mess coffee gathering at 4.30,  or the lakeside strolls at 6 pm.

2)      2) Hey, I like deer. You’ll probably like them too.   Plus, you get to feed the deer at the park ! Plus, this park is apparently one of the the top 10 biodiversity parks in India, atleast according to some winter 2008 issue of Jet Airways’ inflight magazine.  It also has a curious log cabin with a tree trunk growing through a hole in a bed. Now that  story I’d like to know.

And the café ? Well it does have an open air section, so the only time you really have to experience the stomach-turning aroma is when you go inside to haggle about the bill. Haggling bills with establishments in the vicinity of Shameerpet appears to be a stolid NALSAR tradition.

 3)  The teachers.  I walked into law school looking at the law as nothing more than an instrumentality, a ladder, to get me those big bucks at a firm. I walk out with a genuine sense of fascination for the law, about its myriad possibilities, about  its potential to destroy, and to rebuild.  I attribute this transformation almost completely to 2 professors on campus, who, through a mixture of intense discussions -  both within the classroom and outside, through challenging, pushing and prodding me, made me re-evaluate everything I thought I knew.

The exhilaration of your brain whizzing to make connections , even as you start recalling the verbose valentines to the law you’d read before joining law school and begin seeing some glimmer of truth in them  ?

Well, we have classes where you get to experience that. 

 4)    Us.  Firstly, every law student worth his salt is snotty, arrogant and phlegmatic. But there’s a more important secondly.  See, years of being far from the madding crowd and trapped together has caused us all to go  politely, but very very thoroughly, insane.  This makes for an often entertaining on-campus experience, combining influences from the best of absurdist theatre with more popular culture to interesting effect. This is the campus where a hostel curfew protest was led with a group of blues guitarists jamming outside the hostel gates at the “forbidden hour”.  Otherwise sane young adults  have chased each other with mops around the library the night before an exam.  Within the walls of this esteemed legal institution I have witnessed a play featuring what I believe were talking genitalia arguing about why they weren’t spoken about more prolifically.

Atleast I think that’s what it was about.  

  5)     Okay, the curfew timings are just WRONG.

There are other things of course. There is the constant uphill battle in obtaining a semblance of lucid reasoning/engagement with the administration. There are the mushrooming academic groups, that start strong, flare out, then are revived with even more resolve. There are the spur-of-the-moment on-campus dance parties. There is the Drama Club. There was a movie club - maybe you can come and revive it ?

Whatever, newbie. This is going to be a wild ride, but it never gets boring.

Except, well, the bit where you have to study the  CPC. Not fun.

P.S. thanks to legalpoet for giving me the idea by doing a similar post on NLU. Cheers !

http://danspeak.blogspot.com/

I have here in this blog intended to write and comment on the international legal perspective surrounding the flotilla incident but since it is difficult to comment on any aspect of International Law without analyzing the real or projected politics behind it, I wish to put this disclaimer, before continuing my blog, that any political or legal analysis here is purely for personal purpose, and I as the author of same, have no affiliation nor subscription to any political wing or ideology; neither to any organization which might have any commercial interest in such writing or ideas. This piece is intended to be purely innocuous analysis of the event, and not intended to hurt sensibilities of any individual, group of individuals or any kind of organization. And this holds true and applicable to my previous and future blogs too.

While the last piece analyzed and discussed the flotilla incident from the perspective of media reports from major (and prominent) channels, this piece I am writing tries to take in view a larger picture and takes into account the small but forceful voices which claim and try to convince that the picture is very different from what is portrayed for us to see. And these voices, mind my friend, cannot be ignored nor rejected.

Some channels of media have suggested on the possible connection of the flotilla and its members from the terrorist organization and it has been alleged that they have been carrying arms and ammunitions to the Gaza Strip, where the naval blockade and embargo still exists. In fact some reports claim that flotilla was sponsored by a terrorist organization that is responsible for quite many attacks on Israel. These counter claims to the popular media reports have come with audio – visual proofs which are loaded in thousands of numbers on You tube. The said videos show a group of activists singing in Arabic, a song that indicates towards killing the Jews. Another video shows a lady activist claiming enthusiastically that there is a victory for them if they are able to break naval blockade and even if they become martyrs for the holy cause. Another powerful video shows the combat between the activists and the Israeli commandos, which shows that the commandoes were really attacked as soon as they touched the board of the ship, and the ‘peaceful’ activists fought with them quite gallantly to say the least. Related to these are reports that many of the Israeli commandoes were just armed with paintball guns.

There are also vociferous reports on how Gaza is practically a developed place with a high standard of living, and one report even claiming that majority of Gazans belong to Upper Middle class. All this is due to their rampant smuggling through the tunnels that bypass into Egypt. These tunnels helps Gazans get the goods in less time and lesser price than what comes through Israeli Naval blockade, thus rendering the external aid unnecessary.

All these reports (presuming them to be true) made me ponder on few points – If it is true that flotilla was sponsored by terrorist organizations, and if the peaceful activists weren’t so peaceful either, then what reasons can be constructed around this event, and what will be their legal status from the point of view of International Law.

The reason that I could construct for Israel’s action against the flotilla is that of Self Defense. And this term self defense, as easy as it sounds, opens a Pandora’s box and hence, the classic debate on limits and legalities of Self Defense starts, which shall be discussed here in context of flotilla incident. And this is to be done while keeping in mind the basis for such discussion that is the possibility of terrorist nature of the flotilla, which opens another thread of discussion related to the State Responsibility in case of terrorist attacks.

Firstly, addressing the classic debate on limits and legalities of Self Defense, this debate is known in legal circles as the debate between in Article 2(4) of the UN charter, which prohibits “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”, and Article 51 of the charter, which impairs “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations”. (For a meaningful reading of this blog kindly look up to the full text of the articles so stated here). For the purposes of our discussion, our focus point in this debate will be the legality of anticipatory self-defense, which is know as Doctrine of Preemption. The world of scholars is divided in its opinion, as it the opposing block says that it is difficult to measure or prove the anticipation of threat, and hence conferring legality on something as abstract as anticipation, is perfect recipe for disaster, as then for every offence, best defense shall be the doctrine. But the supporting block has its arguments rooted in the need to nip the evil in the bud. This block vehemently argues that one cannot wait for real damage to happen before legally acting in self-defense, however it should be proved that the threat was immediate, imminent and real, thereby tracing the language and terminology used in Caroline Case. As far as my humble knowledge in this subject goes, preemptive strikes are legal, provided it is proved that the threat was immediate, imminent and real.

 Coming to the question on how to tackle a terrorist attack, and seeking the answer of this question in light of this debate, two things that have to be noted, firstly, Article 2(4), prohibits the use of force or threat of use of force against any ‘State’, and secondly, Article 51, upholds the Right of Self Defense in case of ‘any attack’, on the Member State. Construing thereby, ‘any attack’ on a member state by a terrorist organization, regardless of the legal personality of such organization, will give it a right of Self Defense (anticipatory self defense too) against such offender. And the act of defense by the State shall be legal, as technically reading Article 2(4), the use of force or threat of use of force is prohibited against any ‘State’ and not against a personality that is not a state.

Therefore coming to the flotilla incident, and looking it from other end of the spectrum, we find that what Israel did was legal as it has an ‘inherent’ right of self defense, which includes anticipatory self defense, which it used against an organization, which Israel suspected to be having terror links and mala fide intentions against the State of Israel. And this action of Israle can get a sanction too if it successfully proves that the danger was imminent, immediate and real.

However, such interpretations of existing laws should not be taken as only means to justify or accuse any State with respect to its acts against or in support of terrorism, what is needed is a solid body of International Law for this contemporary and ever growing problem of Terrorism which is eating into practically every part of the world.

But then, as I always say International Law is a reluctant law of reluctant nations, it is International Politics which carries the real sanction

This week Israel’s attack on flotilla ships carrying aid to Gaza strip found its place in headlines of all major dailies. This legally and politically sensitive issue has refused to die down and media is splashed with passionate anti- Israel sentiments from Arab countries, disapproving statements issued by other countries, breaking of diplomatic ties by Turkey, and a confounded US trying hard to make its commitment to ‘independently enquire into actual happenings of the event’ sound like neutral. But even with all this opprobrium surrounding Israel, from enemies and allies alike, it has refused to lift up the embargo it has put on Gaza strip since the 2006 siege. And has taken into the control second flotilla coming with tones of aid just days after its naval commandos stormed the first flotilla of civilian aid ships.

Politically, the embargo on Gaza and this development in Israel – Palestine Conflict, is elusive yet very interesting. Surrounded by a ring of unfriendly Arab Muslim countries, and sustaining pro- Palestine West Bank and Hamas controlled Gaza strip in the heart of its territory, Israel’s struggle for maintaining its existence is multi fold. Therefore for years it gained sympathy from major blocks, and inspite of  ever growing conflict since 60 years of its existence, it is a developed country with a one of the best Human Development Index in the world. But since the siege of Gaza and the storming of civilian aid ships last week, it has distanced its allies so much so, that its staunchest ally US is also seeing Israel more as a burden rather than asset, a fact conceded to by Isarel’s foreign intelligence, ‘Mossad’.

The latest misadventure of Israel has made it look more like a bully (an art it must be learning from its best friend US!) rather than a country continuously struggling with its enemies inside and outside its borders. And what I do not understand is that how did Israel miss the point that this power show by it could be such a politically and diplomatically damaging move, as had the aid ships reached Gaza, the volunteers would have considered it as a victory over strict embargo imposed by Israel, and if they were to be attacked (which they were eventually) they would be seen as martyrs and Israel would have been bombarded with international comdemnation (which it is being done presently). Therefore it was a win win situation for those protestors. How come Israel did not see through it, or on a second thought, perhaps it did not care much. And it did not care because may be it has stopped caring at all as centuries of violence and persecution faced by Jews has made Israel quick to act defensively, and since offence remains the best defense, the sharp and lethal actions/ reactions of Israel point towards the inherent and deeply embedded sense of insecurity and the constant need to ferociously protect their interests. Perhaps they have learnt from their disturbed past the might is right  - and may be it is!

Legally speaking, Israel has broken an array of International legal rules and standards. However the focus in this blog will be only on Law of Sea, and analysis of other laws shall be dealt in later blogs.

Starting with the law of seas, Israel challenged the most sacrosanct rule of freedom of high seas, the very fact that the ship was seized in International Waters, makes it guilty of breaching the freedom of any vessel in high seas. Any defence or justification forwarded by Israel on the grounds that the flotilla was violating the rules and regulations it has imposed in its territorial sea does not hold ground, as, the laws which are imposed on territorial sea by any State in exercising its sovereignty over such waters do not extend to territorial sea nor even to its EEZ (exclusive economic zone). Here in this case though the news reports explicitly mention the waters to be International Waters and I have been unable to find data as to where the flotilla was exactly located and if those waters had any sui juris status, therefore, even if presuming that those waters had sui juris status, the offensive action of Israel will still not be justified. At this point, MV Saiga No.2 case holds comparative value, wherein a foreign ship was held not subject to Guinea’s general custom laws in latter’s EEZ regime.

Alleviating the option of ‘Right to Hot pursuit’ (enshrined in Art. 111 of UNCLOS 1982) which does not (legally, technically and physically) apply here as right of hot pursuit is given to pursue an offending vessel from territorial waters to High seas (and not other way round!!), one solution, which I, as a humble novice of this law, can think of, is the peaceful arrest of the flotilla as soon they touch the Territorial waters. As the it would be legally viable (also technically and physically) to arrest a vessel which is breaking the laws and rules imposed by the state which in this case would be bringing the non permitted aid items to Gaza by those ships. This would have at the most, invited or rather sparked off the old debate on Israel’s strict naval blockade which regulates, monitors and blocks the unlisted aid items brought to Gaza, and would not have invited international condemnation and wrath to Israel over killing the human rights activists. And now more than all the condemnation what is more deteriorating for Israel at this point of time is that, that due to the killing of 9 Turkish volunteers it has put in the peril its diplomatic ties with once close friend and neighbor Turkey, and distancing its ally US due to such rash and irresponsible act.

Next comes the flouting of procedure of seizing a vessel. The standard procedure is – Visit, Board, Search, Seizure (VBSS). Not wanting to go in details of same and assuring the reader that there is nothing more to the procedure than the standard meaning of words used, it is to be noted that even the Israeli military has admitted that failures of both planning and execution led to the botched raid on a flotilla. If they had been acting according to procedure they would have first landed on the ship, taken it into control, one team would have searched the ship while other would have guarded the crew and passengers, and all this mayhem would have been avoided totally. Instead the commandos landed on the ship and got engaged in a violent fight with the pro Palestine protestors, who were unarmed or scarcely armed with non lethal weapons rather objects like sticks and golf clubs. Thus cornering itself and snatching away any defence Israel might had claimed on the basis that it followed all the international procedure before seizing the ship. But this messed up strategy has made this venture look more like a pirate attack on the flotilla.

The bad idea, strategy and planning has pushed Israel on brink of isolation. I do not know whether there would be any punitive action against Israel for breach of international legal obligations, as I always say International Law is a reluctant law of reluctant nations, it is International Politics which carries the real sanction.

Right, said Salmond, is any interest, respect for which is a duty, and the disregard of which is a wrong. Disregard means neglect or indifference and does not require an actual violation. Seen in this sense many of our rights have been wronged. If the state declares certain rights but does little to make it enforceable, does it not amount to a wrong? When certain rights are declared inalienable but there is absolute disregard for even letting people know of its existence, how is such a right helpful?

The point is that the exercise of declaring rights without a resolute attempt to make the right accessible defeats the right itself. It cannot be seen merely as the problem of implementation as the very existence of a right is based upon its enforceability. If an individual cannot access his/her right due to the state’s failure to either inform of its existence or ensure its enforcement, the right ceases to exist. Hence when little effort is made to make a right available to a person for whom it is made, the state has committed a wrong by the disregard of a right.

The question regarding the accessibility of the rights is an issue which has to be seriously contemplated in India today. We are a nation which has no dearth of rights. The Constitution of India ensures certain fundamental rights which the state cannot deny its citizens. The courts by creative interpretation have added other rights as necessary constituents of the fundamental rights to life, freedom and equality. Hence many of the human rights, social and economic rights and civil and political rights are sought to be protected by the Constitution.

Recently the government has also been seen to play a pro-active role in its efforts to legislate rights. The Right to Information, Right to Education, Right to Employment (NREGA) and Right to Food (Food Security Bill) are some of the initiatives. These legislations, perhaps due to its roots in popular movements, also have specific provisions for its enforcement with sanctions. Despite this, these rights are so frequently unattainable. 

One of the most important but ignored of the rights which has a constitutional basis is the Right to Free Legal Aid. The right to life under Article 21 has been interpreted by the Supreme Court to also include the right to free legal aid. As such a right is unknown to the vast majority, people still pay hefty fees to lawyers out of their meager incomes. In Khatri v. State of Bihar the Supreme Court held that the state cannot expect the poor and illiterate to know whether they had the right to free legal aid or not, and hence it was the duty of the state to provide legal aid, whether asked by the accused or not.

The Legal Services Authorities Act was passed in 1987 to provide legal aid to the people who are socially and economically backward by setting up centres at the district, state and national level. Most of the law schools of this country have a legal aid cell which seek to perform the same task- provide legal aid to weaker sections. While independent efforts have to be cheered, one wonders if this is the right way to enforce rights. 

How can we (lawyers/law students) ensure that everyone has access to the rights declared by the state- by providing piecemeal services to a few individuals ourselves or by pressurizing the authority responsible for ensuring rights to perform its duty? While the former may offer some temporary relief, to have a wider and long-standing impact, efforts must be made to ensure that the state fulfills its obligation. Increasing the awareness of rights, creating public pressure on the authorities for performing its responsibilities and filing cases for non-performance could be ways by which we can make any right a reality.    

All right let me confess.. the title is bit weird, it was hurriedly chosen. I know I know it makes me sound like a bimbette, but then you know a bimbette when you see one..

And this blog is not about law either.. as of now .. at least.

So this is why I wrote it.. (yes yes, under this stupid title)

Hmm.. so like every law school student I also feel morally obliged and professionally committed to poke my nose in anything related to legal world. It was almost four months ago that I quite enthusiastically joined this site and swore that now I will be up to date with every legal news. And right from next day I forgot about this promise to myself. No worries, as for few weeks I had email newsletters which I conveniently promised (again!) to read it when i have some time (read 'mood'), then finally I connected myself to this site, and the motivating factor for this was Legal Poet's some funny poem on 5 th year passouts. Kudos to you Poet!!

After reading his poem I was again morally obliged and professionally committed to read other 'serious' blogs and legal news. And it was then when it striked to me, hey, there is no space for international legal issues out here. Since I always had this urgent urge to comment on issues I know nothing about, (I attribute this habit of mine to the fact that I am youngest at my home, so I always had to poke my nose in matters I understood nothing of!)  I decided to take this matter in my hands. So from now on I will banter about international happenings, of which I know little (courtsey newspapers!) and about international legal issues of which I know nothing (courtsey.. lawschool?? thats the safest person to blame :P ) and will expect everyone to take me seriously. 

'LAW' ve you all!!

muah muah

Aralyah

NoNal Nagar, Madhya Pradesh

A 17 year old young lad who was seen jumping on a road crying “Yay! I am a NALSAR-ian” has been put in a mental asylum after a good citizen, Niak Zang saved him from a being lynched by a mob.

Naik Zang is a citizen of UK.

It is believed that people of the region who nearly lynched the boy consider Nal Sur, as the three headed demon who has according to the legend  is responsible for the water scarcity in the village. Nal in Hindi means a ‘Tap’ and ‘Sur’ means a ‘Demon’

The 17 year old boy, identified as Nikhil Gupta from Delhi had taken CLAT (common law admission test) and had got an all India rank 24. This qualified him for NALSAR, Hyderabad one of the top law colleges in India.

Excited by his success and he purchased weird and scary looking masks and costumes from a local hawker Madan Lal  wore them and started jumping on the road shouting ‘I am a NALSARian’. “I saw the boy’s eyes”, said Madan, “it looked as if he had found bliss”.

Our reporter contacted a slightly bruised Nikhil, “Am I a NALSARian?”, was all he could manage. On inquiry with his parents we found that Nikhil was devastated when he found that all top 57 rankers had opted for NLSIU Bangalore, widely recognised as the best law college in India. This had upset him to a maddening extent.

He was last seen by a cyber cafe guy glued to computer no. 3, typing recklessly on forums like Facebook, LegallyIndia and Orkut feverishly asking for guidance, “He was talking about his Cat. He sounded very nervous. I think he was talking to a vet on the net. Maybe his Cat was badly injured or about to deliver kittens or something”, said the cyber cafe guy.

The mob leader Moochchad Singh said, “We didn’t know NALSAR was some law college. I don’t think anybody else in this duniyaa knows. We thought that he was occupied by Nal Sur’s aatma (ghost)”, he said apologising for the punch he had administered to Nikhil’s right eye.

The VC of NALSAR, Mr. Veer Singh has said that it would be ensured that this experience which Nikhil had is put to good use in furtherance of his career. “I have asked his Sociology professor to allot him ‘mob violence’ as a sociology project topic. For IPR subject in his 3^rd year, Nikhil will research on ‘traditional myths regarding demons and copyright laws’”, he said.

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.   

Agression is Important

When Saurav Ganguly was the captain of the Indian cricket team he had with him two young left arm fast bowlers; Zaheer Khan (then 30 pounds lighter) and Ashish Nehra (then pot-bellied). Oops! Sorry for the digression.

Ganguly, an intelligent guy that he is, took both Zaheer and Nehra to Wasim Akram (the great man helps everyone from the sub continent) hoping that Akram would offer the young kids some fast bowling tips on run-up, use of the non-bowling arm, reverse swing etc.

The first question Akram asked was:

“Do you guys drink”?

No, the Indian lads replied sheepishly.

“Does anyone of you smoke”?

They did a negative nod.

“No”?! Akram barked. He looked at Saurav and said, “These guys can’t become fast bowlers”.

Akram was, of course, hinting at aggression.

Aggression is important in cricket and in law. Leading law firms and LPOs have been aggressive. Successful start-up law firms have been aggressive. Aggression should obviously be mixed with logical moves, street smartness and knowing what you do best and what you don’t. Akram did all of this. Ganguly was bare chestedly aggresive too.

Bureaucracy Sucks

BCI is a pathetic body; BCCI is a pathetic body.

Infrastructure in our law schools and stadiums

Look at our law schools. They don’t have habitable buildings. One person manages all the work; of a peon to that of the principal. Students don’t attend classes, because there is no one good enough to teach. There is no one good to teach, because they weren’t taught well.

Look at our stadiums. With pathetic infrastructure, they are far away from being spectator friendly. Like bad teachers at law schools, our domestic cricket teams have fat and dumb coaches with a goat inside the bellies and goat shit for skills.

Foreign firms and foreign teams

In a globalised world Foreign law firms aren’t being allowed just to protect the vested interests of a few. At the same time Indian law firms languish in mediocrity.

Even for our domestic cricket, reducing the number of teams and introducing some foreign teams have been going on since a while. But with lack of will and interest it continues to be that our domestic cricket continues to languish, invisible to many.

Advertisements: learn something

Indian law firms aren’t allowed to advertise to preserve the sanctity of the noble profession. Wow! Great logic and concern.

BCCI has learnt the lesson in reverse. It has come to know how too much of advertisement and fanfare instead of the sport can backfire; with bullets which kill. It killed IPL.

The game has to be respected

I have heard a lot about billable hours and the unethical practices which go with them. While Bihari Babuu’s fox billed her ‘time spend in hospital’ hours to her client; unethical practices are abound in dozens. And they have become ‘accepted’ practices to earn easy money.

Pretty much like todays bowlers who are running scot free with the ‘unethical’ practice of chucking. Harbhajan Singh chucks ; Shoaib Malik chucks, Johan Botha of South Africa chucks. But with chucking being legalised by a rule of ’15 degree bend’, these guys make spin bowling look terribly easy.

Pity that crime is being allowed; being organised. Respect the game guys. Don’t play it the wrong way.

Inspired by Christopher Beam and Chris Wilson

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.....