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Amarchand Mangaldas Suresh A Shroff & Co
Competition Commission of India (CCI)
June 30 2010, New Delhi
Bar Council of India's plans to hold a fair and fool-proof bar exam went into a tizzy as Bihari Babuu, an unfamous law student blogger on LI entered the New Delhi center with a black cow and a white buffalo loaded with books.
“Its a open book exam and I want to leave no stones unturned. I have brought all the books from my lawyer uncle’s library”, said Bihari Babuu.
Not finding enough space to fit in all the books, the authorities put Bihari Babuu in a stable while his black cow romanced with a hot, brown horse.
“I feel good for my animals but look at my condition. I have to sit on a haystack will stench of horse shit and urine as other students sit in a comortable examination hall”, said Bihari Babuu.
KitKit Lactose, manager of BrainWaker, the legal talent management company who is assisting BCI in conducting the exam said in defence, “We never anticipated such a situation. We could have earned a lot more cash by asking a few hotels to book rooms for candidates who wanted private ensuites so that they could keep their books”.
Meanwhile in the Kolkata center an NUJS student tore a NALSAR student’s book. The book was written by Prof. Ranbir Singh, former vice chancellor of NALSAR.
Though the NALSAR student did not respond, an NLUD student sprung up in the NALSAR guy’s defence and tore up the NUJS student’s book, ‘Constitutional Law’ by MP Singh. The present vice chancellor of NLUD is Prof. Ranbir Singh too.
“We won’t take action against any of the National Law School Students. They are just too good”, said Gopal SupraMan, the head of BCI, totally unruffled and sounding confident.
He was also confident about conducting the Bar Exam without any hitches.
Please know your animals well. Or atleast read them well.
Aries- The Ram (Mar 21- Apr 19)
The Ram will shed off its big and pricey horns and selling the horns will make way for a great deal. Hire a lawyer for the deal, probably a Sybmiosis graduate, as they have the horniest people there.
Taurus- The Bull (Apr 20- May 20)
Do not add to your office space or try to show off with some crapy news on LegallyBindia.com. A big bull into will crash your office. A bull run at the market and other such bullshit things will continue to happen.
Gemini- The Twins (May 21- June 21)
You have a twin brother or sister aspiring to be a lawyer. Why in the hell haven’t you stopped him yet? You need to do it soon before planets start doing their stuff.
Cancer- The Crab (June 22- July 22)
You have a corporate client suffering from cancer and he’ll die soon, with your bills unpaid. Don’t worry. Seriously, how many of your clients have paid you without disturbing your sleep?
Leo- The Lion (July 23- Aug 22)
You will feel like the king of the jungle this week. You will amass some really kickass deals for your firm. Your little cub at Harvard will start with sex. Aye! That little prince. He will take your firm to new heights. Who else will? Specially when you hire just your family?
Virgo- The Virgin (Aug 23- Sep 22)
A Leo is virgin’s best friend since these guys are on a sex spree. Otherwise with 377 being declared illegal, you have all the more reasons too come out of your sun sign ethos and truly express yourself.
Libra- The Scales (Sep 23- Oct 23)
You will measure and balance everything this week. If you are a CLAT aspirant stuck between NLIU and NLU, Jodhpur, the measuring and balancing will be longer. But thats not for this week. This will go on for ages.
Scorpio- The Scorpion (Oct 23- Nov 21)
Since ‘scorpio-the scorpion’ is an alliteration, poets won’t do too well in business. Doesn’t make sense? Well, that’s how stars function. LegalPoet’s reputation will take a hit too. Poor guy. He thought he’ll win.
Sagittarius- The Archer (Nov 22- Dec 21)
If you are aiming for something, aim for NLSIU. Other aims are muddled with confusion. NALSAR v. NUJS, NLIU v. NLUJ, GNLU v. HNLU etc. If you are from these colleges, read a mantra, take out your most dramatic arrow (ever seen Mahabharta?) and aim anonymously at one another.
Capricorn- The Goat (Dec 22- Jan 19)
You will climb great mountains and traverse great crevices with ease. Afterall, thats what goats do. However, you won’t still get a job. Legal job market is tougher than climbing and hip-hopping beta.
Aquarius- The Water Bearer (Jan 20- Feb 19)
With your wife divorcing you in an adversorial litigation, you won’t find any water to drink. Dude, she has taken the keys to the fridge, cut the water pipes and what not. Her lawyer advised this all. You’ll do well to hire a better lawyer next time, for other such practical strategies.
Pisces- The Fish (Feb 19- March 20)
You will continue to swim through the thick and thin, largely thin, mind you. If you are an associate, larger fish will be a pain the neck, as always. If your the partner, the smaller fish with bother you, as usual.
Legally Drawn is created by Vasanth Sarathy and is published on his blog www.legallydrawn.com
We will be featuring his future cartoons on Legally India.
NaginBhabhi, Bangalore
NLSIU Bangalore, very aguably (ask Nalsar or NUJS) the best Indian law school which pioneered legal education in 1987 with the introduction of the the 5 year integrated law course has been shut after Harvard Law School opened in Mumbai today.
“We faced a severe identity crisis when we heard that Harvard law school was going to be established in India. NLSIU used to call itself the Harvard of the East. Now with Harvard itself here, we could not decide who we were”, said Pehechan Kaun, director of NLSIU.
Coincidentally, earlier this year, the NLU Pride which had been reportedly killed by a serial killer, Niti SexLena was revived by the doctors. Inspired by proud, open and brash use of swords and khukris in the Punjab University elections, Niti SexLena had used a sword to kill the NLU Pride. However, the sword attack had the NLU pride in coma and the pride was revived after great efforts by the doctors.
“More than a medical achievement it is a win of human emotions such as love for money”, said doctor SexDena of SexWala hospital
“We had partners of Amarchand, Clifford Chance and Luthra & Luthra come for emotional and moral support of the NLU Pride which was in very serious condition. They showed the NLU Pride the paychecks it would earn etc. The related positive emotions resulted in release of healing grandular secretions”, he said.
“Earlier when the parents came, the NLU Pride could not be revived. The parents could not do much”, he added, munching potato chips as he listened to the song ‘baap bada na bhaiya, the whole thing is that ki bhaiya sabse bada rupaiya’.
However, Niti SexLena has said that he won’t give up. “I also have guns and revolvers and I will continue my efforts to kill the NLU pride”. He told our reporter that he had learnt the use of guns, again through practice in the Punjab University elections.
Meanwhile, NLSIU Bangalore has said that it will now mentor its successors NALSAR Hyderabad and NUJS Kolkata and other national law schools so that they won’t face such identity crisis later on. A meeting of the Vice Chancellors will be held later this month.
Prof MP Singh, Vice Chancellor at NUJS, embarking on a constitutional topic, as he does always, said “Even our constitution talks about national pride and maitaining sovereignity. I am presently researching on foreign law colleges and their constitutional validity”. This will be Prof. Singh’s 1257th research paper on Constitutional Law.
Press’s Crust of India (its tangy)
- The events depicted in this blog are probably fictitious. Any similarity to any person living or dead is merely coincidental.
- "The mind of man can imagine nothing which has not really existed." --Edgar Allan Poe
Last year, I was part of the Propaganda department (PD) aka editorial committee. PD in my college is not the place many people want to be. It's probably one of the most boring places on earth. A department with little ambition on part of its leaders (currently headed by three very old school professors). Let me tell you a few things about the decade old PD.
1. It has been reinvented so many times that many have forgotten it exists.
2. The colour of PD’s Journal is creepy. A capitalist offered us a lot of money if we changed the colour. The LEADERS refused - We have to protect the Revolution!
3. All the articles we receive have been rejected elsewhere - They come in various sizes. Some are 4 pages long and some are 50. The 50 page articles usually have 5-10 footnotes; each provided at regular intervals.
4. We get a lot of articles from our own Comrades. Some borrow them from students and some from international revolutionary journals. Censored Google is getting better and we had the opportunity to bring a Comrade to his knees but ended up on ours.
Last semester, we received an article from the head of the Intellectual Property Rights department. This made our hearts beat a little when we got to know what had happened. One of the boys in PD did a preliminary search on google about the paper and to his astonishment found a paper exactly on the same topic.
Alright, that's ok. People might have the same topics. Doesn't mean much!
He downloaded the article and started comparing the paper. To his 'astonishment' (now remember, we don't get excited unless its something extremely stupid. We're very desensitized to ordinary plagiarism) 60% of the paper had been picked up from this article published on an international conference website.
We did want to believe that Comrade Amin Dostorkey (not his real name, of course) was friends with Comrade IPR but sadly that was not to be. The good Comrade had presented the paper in 2001 and clearly at a conference in Russia where Comrade IPR had never set foot (He's lived all his life in the South America defending it from invading capitalists). The question now was what was to be done? PD got a thrill from putting Comrades like omrade IPR on their knees. They had forever been pointing out that PD was a useless department.
It was agreed that we'd all keep quiet about it. The student who had found out the misgiving would approach the LEADERS and inform them about their COMRADE'S indiscipline. Hail the Revolution – we all shouted.
When WHISTLE BLOWER (WB) walked into the room of LEADER 1, he had this music playing in his head. It was from hollywood - revolutionary and patriotic – composed by a sympathizer of the revolution. He spent the next ten minutes briefing LEADER 1 about what he had come across. At one point he tried to feign tears to get his point across. LEADER 1 kept listening silently. When his speech ended (for WB had concluded as the background music started coming to an end ) LEADER 1 put his hands together and said –
Child, Will You Pray Tonight?
WB’s mind couldn't process the sentence. So he repeated the words to himself –
Child, Will You Pray Tonight?
LEADER 1 explained (with even more aggressive patriotic music in mind - THY SHALL PROTECT THE ESTABLISHMENT) that he was the only qualified person the University had and there was little that could be done. His suggestion was that the Committee change the plagiarized lines and then publish the paper. WB got up and speaking no more, walked out of LEADER 1's chamber.
WB walked out of the room. His heart had withdrawn into a dark corner and didn't want to beat. So he walked into the washroom and making sure no one was there, he let his tears come out. It felt like rejection; but never had it been on such wrong reasons. He couldn't give up he told himself. LEADER 2 was known to be more reasonable and if nothing else he would approach the Comrade Chairman aka Vice-Chancellor). He was on a mission and he knew this was right.
LEADER 2 was not such a busy man. Sitting on his chair he was trying to learn how gmail could help him keep in touch with his grandson in New Jersey.
Come In, Comrade
He cheerfully called in his favorite member of the committee.
Please have a seat! This is my son, his wife and their child. He is so playful.
WB kept his calm and listened carefully as LEADER 2 explained how he had got his son educated in the United States and got him married off to a wealthy family whose daughter was working in the same city.
Life is wonderful, comrade !
Clearly elated with gmail, LEADER 2 couldn’t stop speaking about it -
Apart from being able to send pictures, I can also watch him play.
WB thought AN OUTSOURCED MAN NANNY. Then finally after ten minutes WB was able to get to the point.
Comrade IPR has betrayed the institution. He has plagiarized!
LEADER 2 kept calm and asked -
How did you get to know about this?
Are you sure? You have some software?
No comrade! I found out about this from google.
LEADER 2 was still silent. Censored google was trustworthy. He had no doubt in his mind. Finally after contemplating he said –
Ok! Please send me which paragraphs have been copied. Highlight the portions. And don’t forget to send the original article.
WB did as he was told and waited. There was no reply for nearly a week. So the next Monday he walked into LEADER 2’s chamber again. By now L2 had conquered gmail and was learning google wave.
Please come in Comrade WB. How was your weekend?
Very fine Comrade. Thank you for asking!
Have you used Google wave? Yes Comrade! Such a fine software. Now i can see what my son is thinking even before i get it.
It truly is wonderful comrade!
Before L2 could continue again, WB continued –
Comrade, I sent you the email with the plagiarized article
L2’s face changed. WB’s face looked the same. His spirit was still burning for the revolution.
I spoke to comrade chairman and we have to let this go. At best, we can modify the article. We all think that by informing comrade plagiarist, we will make him angry and god forbid he leave the revolution.
So We Won’t Take Any Action Against Him?
Comrade WB, You Have Made Your Point. I Suggest You Let Us Handle The Matter Now For Your Own Good!
Comrade WB smiled and walked out. It seemed like the revolution had ended and his soul was beginning to fade. This was everything he had learnt and now the revolution was turning its back on everything it stood for. He wanted to run away but instead decided to disappear for a few days.
I met him yesterday. We don’t speak much at the Revolutionary Law College even though we’re in the same batch. He told me that he was still trying to fathom what had happened last semester. He now understood that at many places in the State, plagiarism was accepted. So in order to laugh himself out of depression he was advocating that plagiarism be legalized -
For one, it’ll allow many people to get employment. Imagine there are so many rich kids willing to give many for quality research papers. We could start a company of our also! Second, it’ll save teachers so much time, not that they invest it but even those who do, won’t have to do it anymore. On the whole, it’ll be a much easier world.
I wanted to laugh but he wasn’t even smiling. He was lying so badly because he felt betrayed after the whole ordeal. We both never made it into the Propaganda Department this year. No one did because the only people who used to apply; no longer did. Comrade WB had started a silent revolution within us that he himself did not know.
See John2010's other blogs:
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.
Dear Prudence: ....... Litigation is really interesting but ........?
The 26/11 Judgement fails the maturity test and how we can still salvage justice.
In a shocking development all the students from arguably the top three law colleges in the country: NLSIU, Bangalore; NALSAR, Hyderbad and NUJS, Kolkata have failed in the first ever Bar Exam held by the Bar Council of India on 30 December, 2010 in 50 centers accross India.
“It is a surprise to us that all the students have failed”, said Mr. Barrier of the Bar Council of India.
The president of the Students Bar Council of NLSIU when contacted said, “The question papers which we were handed read ‘Bar Bar Examination-2010’. Our students mistook it for being an examination for being barred from the bar and didn’t take the exam. Hence, no body could make it”.
Mr Barrier when apprised of the situation replied, “The students of NLUs should stop using their minds too much. My experience as a judge of moot courts suggests that students from NLUs use too much of their brain in their memos and arguments. We don’t need such brainy law students. They just need to be reasonable students”.
NUJS’ student body representative too pointed at the typographical mistake, “We thought that the exam had too be completed twice (bar bar) which none of us could. Fearing the disrepute such results would bring to the institution we decided not to submit the answer sheets at all”.
Final Year Law Student who has been in the final year since last 7 years to proactively take up the cause of final year students said, "We all thought that BCI wanted to test whether we paid attention to detail but...". We will keep you updated on some PIL or blog from him as this is what he usually does.
NALSAR representatives could not be reached because of the ongoing Telangana trouble.
One year ago Legally India kicked off the project of bringing independent full-time coverage to the Indian legal market. In that year Indian lawyers and law students saw more changes than ever and for the first time these were documented in real time.
Almost 900 articles, breaking news stories, features, opinions and blogs, nearly 6,000 reader comments and 1,000 forum posts shone a light on the inside workings of India Law Inc and law schools.
In that time many stories have come full circle. We look back at the top stories of the last 12 months, where they have gone and where they might go, starting off with foreign firms, new kids on the block and best friendships.
I'm not telling a new story out here but something that hit me hard when I heard it. A lawyer at one of our local courts had a decent practice. He wasn't one to wear a tie and work in a corporate office but had a small place where "small-fry" clients visited him for their anticipatory bails and criminal applications.
The sad part, or the scary part is that his brother was not a very clean guy. He had some links to law-breaking citizens and sometimes he was known to tip off the police too.
One day, the lawyer got a call from his brother late in the night. He said that he would probably go "underground" as there was some talk in the circles about his encounter being planned!
The lawyer got a little frantic but did not lose his sanity. He immediately got in touch with all the authorities by sending fascimiles and making phone calls to all possible police stations and the commissioner's office initimating them that there was threat to his brother's life.
He tried calling up his brother too but did not get any response. His sister-in-law was completely hyper and losing consciousness with the stress and chaos by then.
I do not want to be very crude in the details of the events after this but the short point is that his brother was killed in an encounter, in a very cruel way.
He approached the court against the police, alleging that it was a fake encounter and the case is still pending against the officers accused in the case.
He got one of the senior criminal counsels on his case, and was now one of the clients now. Sometimes he tells me, it is far too difficult, being on the other side. As a professional practice, we try to understand the difficulties of our clients but cannot fathom the seriousness or depth of agony they undergo.
His brother was not right, not all clean, but he was the brother. Blood ties are harder to lose. But being a client and undergoing the pain, much too deep!
DISCLAIMER: This post has been inspired from the pure love that I have developed for the law over the past few months. ‘Law is a fundamental body of principles which has been codified.’ This is what most of us are taught at law school and with this we undertake the seemingly constant drudgery of learning various laws ranging from the bare beginning of the Tort to the immensely complex Tax. What we aren’t taught is that law for the most part can imbibe in you, a love, a love which can be better than the very art of making physical love, a love which can make you sit beyond working hours at the workplace, a love which makes you want to want more, a love which makes you sit through those long sessions at a dirty civil court (no offence meant) and a love which simply makes you feel blessed to be in this lovely profession. Law seduces, and law seduces with a power which is unmatched, a power which makes you feel that you have been gifted from above, to be differentiated from mere mortals to accomplish an endeavor which only higher beings are entitled to undertake. For reference, I now imagine the law to be the Apsara Maneka who seduced the Rishi Vishwamitra through an interplay of grace, balance and tact and it was through their intercourse that the beautiful Shakuntala was born. With this background in mind, let me now enumerate the seductive powers that the law has: Research- Not everyone can research, not everyone can research well, and not everyone can find whatever is required. The joy of finding something after a long and arduous search is something which cannot be explained in words. The self satisfaction which you get out of finding the appropriate provision or precedent is equivalent to the first steps that Maneka might have taken in finding Vishwamitra deep in meditation. Speech- ‘Speech is golden, silence is silver’ is more applicable when it comes to the law. Of course, there is always the automatic ‘need to basis’ clause which every lawyer has to comply with. But, arguing in a court and getting the Judge to see your viewpoint and convincing him about the same is not something everyone can do. If you’re in the profession, then realize the innate seductiveness that the aura of the profession has, see through the enormous books, the legal databases and the non compromising judges and start loving the profession. In the end, the profession will give in and show you the way ahead. This is similar to the scene where the wind was asked to spread a heavenly fragrance all around the forest where Vishwamitra was meditating while it blew Maneka’s clothes off. You blow the judges mind over with your arguments and the victory will automatically follow. Legalese- This probably is what sets you apart from the rest. Being surrounded by people who know the law, who use Latin because they actually know what it means, rather than using it for sounding cool is an experience which again puts you on a higher plane where you can find your bearings only with the type of people you want. This is similar to the enticing poem that Maneka sang to Vishwamitra. The beauty of expressing yourself in a completely legal manner is the biggest kick anyone can have. Drafting- Drafting is the pure power to express something so complex and so technical in a manner which requires great skill, experience and legal acumen. It is like writing a letter to your lover; you need to set out the steps slowly and steadily with each intricate detail being covered. Maneka made Vishwamitra devour her and all her beauty through what she put forth. Draft, draft in a manner that your client is forced to accept that Yes! The law has seduced you, and not me, for I am a mere mortal. Intelligence- Pure intelligence and nothing else. The fraternity which you belong to knows wordplay; it knows how to fiddle around the law and make the law its lover through which pleasure can be derived from. It only uses brainpower and nothing else. Here again, the line of success is determined on the basis of how well you are seduced by the law. The law can either be your bitch whom you can use as and when you want, it can be your soul mate if you genuinely love it or it can be a recurring headache like most infatuated relationships. For the purposes of clarity, =By Bitch I mean, arguing as a lawyer in court and charging by the minute because you can make the law do what you want it to do and no one else can command and question you. =By Soul mate I mean, something which could range from being an activist lawyer arguing for environmental rights to that of a hotshot corporate lawyer to that of a legal professional who studies the law for research and other like purposes. =By recurring headache I mean, people who don’t love the law, who don’t appreciate it and only look at it from the points of view which could range from that of a constant disillusion of equating law with a desk job only meant for money and nothing more, to people who use the law as a constant means of reminding themselves that this wasn’t their first choice preference profession, for they initially wanted to undertake engineering for instance and landed up in law by default. Maneka was sent by Lord Indra in order to break Vishwamitra’s deep penance. Similarly, accept that you are a class apart from the rest, and let the law seduce you. The secret of being in this profession is not about how much money you earn, where you stand as far as practice goes or even your achievements in law school. The secret lies in allowing the law to seduce you, once you allow it to do that, then automatically, the law will give you all the pleasures that you could have ever wished for. Your life will forever be set. Nobody should ever have a regret to join this hallowed profession; it’s a license to get seduced for a lifetime, a seduction which can propel you to wanting more and more and more. P.S. 1) This post has been written in a slightly intoxicated state. 2) The idea for this post came in from a friend of mine whom I call ‘Z’. 3) Due to popular opinion and also having seen the immediate impact of the same, I am now trying out positive thinking.
"God alone can take life because He alone gives it...An eye for an eye makes the whole world blind." -Mahatma Gandhi
"I do not believe any civilized society should be at the service of death. I don't think it's human to become an agent of the Angel of Death." - Elie Wiesel
Capital punishment or the death penalty is the killing of a person by the process of law as punishment for an offence. It is the pre-meditated and planned taking of a human life by a government in response to a crime committed by that legally convicted person.
Origin:
The history of Capital Punishment is as old as that of mankind. In the Western world the first instance seems to be The Law of Moses, inflicting death for blasphemy. By 1179 B.C. murder was a capital crime among Egyptians and Greeks. In the beginning, offences against religion and morality attracted Capital Punishment. However, the primitive societies soon grew up into kingdoms and consequently criminal law also changed quickly. Whether it was West or East, offences against the King were considered as more serious. Thus, the political offences were also added to the religious and moral offences and Capital Punishment was prescribed for such offences also. With the advent of industrialization and advancement of civilization, Capital Punishment was prescribed for offences against the property and human body. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement. Now, in the modern world, capital offences further covered drug-trafficking, hijacking the airplanes, bribery etc. Some Muslim countries like Saudi Arabia even want to add artificial insemination also to the list of capital offences.
Indian Context:
Although India is one of a number of countries around the world which still practises capital punishment, it is rarely used.
A 1983 ruling by the country's Supreme Court stated that the death penalty should be imposed only in "the rarest of rare cases".
Under Indian law, the death penalty can be imposed for:
- murder
- gang robbery with murder
- abetting the suicide of a child or insane person
- waging war against the government
- abetting mutiny by a member of the armed forces
Death penalty in India is still awarded, but rarely. It is carried out by hanging. An attempt to challenge this method of execution failed in the Supreme Court, which stated in its 1983 judgement that hanging did not involve torture, barbarity, humiliation or degradation.
The last execution in India was held in August 2004 when Dhananjoy Chatterjee, convicted of raping and murdering a schoolgirl in 1990, was hanged to death. It was the first such execution since 1995.
Worldwide Trend:
Death sentence is still awarded in 58 countries. It is abolished in 95 countries while 44 countries have not awarded capital punishment during the past 10 years.
Singapore, Japan and USA are the only ‘fully’ developed countries that have retained the death penalty.
The European Union and the Council of Europe both strictly require member states not to practise the death penalty.
Some alternate humane methods:
Countries have moved to more humane executions that include guillotine, long drop hanging, gas chamber, lethal injection.
Arguments: In Favour and Against
Supporters of the death penalty argue that it is justified on the following grounds:
(i) as a means of retribution; (ii) as a deterrent to others; (iii) to prevent any danger of re-offending; (iv) because it's cheaper than keeping people in prison.
However, arguments against death penalty are stronger than in favour of it. It can be objected on the following grounds:
(i) killing someone is always wrong, and two wrongs can never make a right; (ii) there is no evidence of a deterrent effect (indeed the available evidence seems to show there is no such effect); (iii) life without parole is just as effective a way to prevent someone reoffending as executing them; (iv) saving money can never be a justification for taking someone's life; and (v) mistakes are bound to happen, and that means people being put to death for a crime they didn't commit.
Alternatives to Death Penalty:
The most useful and productive alternative would be the life imprisonment without the possibility of parole plus restitution. This alternative not only costs much less than capital punishment, but also keeps the criminal in jail for the rest of his life - so he cannot return back to society. Restitution means that while the prisoner is in jail, he will be put to work - with all the money made going to the family of the victim.
There are other alternatives too like prison with parole. But, this would be problematic because some persons may never change, which makes this a more dangerous and less supported alternative to the death penalty. Another alternative is rehabilitation or reformatories. Though this is a more practical solution, rehabilitating criminals instead of just punishing them but it remains a more dangerous alternative because not every criminal can be truly reformed. Hence, this is probably the least supported alternative to capital punishment.
While it continues to be widely used, the death penalty has been in retreat across the globe over recent years. More than 90 countries have now outlawed the death penalty altogether, and more than two thirds of all states have abolished it either in law or in practice.
And at the end of 2008, the United Nations General Assembly passed the second resolution in 12 months calling for a worldwide moratorium on the death penalty as a first step towards total abolition. While the resolution is non-binding, it was passed by an even larger majority than in 2007 (106 votes for and 46 against) and adds further momentum to the abolitionist movement.
So, killing someone in punishment of what he has done is going to serve the purpose. There are other alternatives which needed to be adopted. No one has a right to take one’s life and in the words of Vladimir Putin, the former Russian President:
"The state must not claim the right to take human life away, which belongs only to the Almighty."
Nandii Reywal, the London settled Indian Lawyer challenged me. Bihari Babuu loves challenges. He has defeated all the pehelwans in his village. He’ll make Nandii bite dust too. Aaan do!
Part I- Racism
My buffaloes are black,
My cows are white,
And they both give milk.
Considerations about colour of beings
Have been give last rites
Yet they emerge, sometimes
As fresh as the rainbow’s hues
With all seven colours, glaring at you
But here is yours truly, Bihari Babuu,
For him milk is important.
Milk; as pure as white light.
Seven things, united as one.
(The healthiest known diet).
Part II- Communalism
My little herd of buffaloes, cows and goats
Walking together, disciplined, they roam
Eating leaves, getting fat and giving milk.
Happy is Bihari, happy is the ilk.
My little herd of buffaloes, cows and goats
Sometimes fight, horns strike
Each other and kill. Strife
Makes them unproductive, thin and dead.
Sad is Bihari, sad is the creed.
Part III- Hey Partners! Don’t be a prick. Treat your associates nicely
My cows and buffaloes
Are voiceless.
I treat them well
(Calling them ‘your highness’)
And give them a voice;
A voice a resounding murmur maketh,
A murmur which breaks
Earthy walls and the boundaries laid
Between the employer and the employees
And makes them mates.
PS - I thank my alter ego, Legal Poet for inspiration. BTW Legal Poet, I think I am better than you.
AND ONE DAY I WILL BE PARTNER…
And one day I will be Partner,
When the sky will be hot and the day aglow,
And there will be sweat on each one of my Associate’s brow.
“How did he make Partner?” they’ll whisper,
Who let this tyrant through they’ll wail,
So much of work I will load them with, chained to their chairs they’ll think of jail.
And one day I will be Partner,
When my buxom assistant will flirt with me without shame,
And delegation will be the keyword and much the name of the game.
“How early he leaves?” they’ll gesture,
Why does he even bother to pay us a visit they’ll say,
When the time rolls in for their annual reviews, their blue-collar hides I will flay.
And one day I will be Partner,
When a ‘retainer’ will transform to a profit-parting,
And the sedan will make way for an Aston Martin.
“How much does he really make?” they’ll wonder,
Why should he make more for less work they’ll scream,
Come March I will be on vacation, making bonus checks a distant dream.
And one day I will be Partner,
When an incarnation of God I shall surely be,
And the prettiest interns will swoon when I buy them dinner for free.
“How does he make hiring decisions?” they’ll question,
What does he look for in interviews they’ll think when peeved,
When I show them the door for ‘poor performance’, will laugh when they feel aggrieved.
And one day I will be Partner,
When I say this with total conviction,
And why is there no chink in my confidence or diction?
“How can he be so sure?” they’ll be nettled, what Law does he know they’ll bray,
But then they’ll see my last name, next to the best room on my floor,
There don’t be so jealous, a perfect match for the Managing Partner’s door.
Any resemblance to real life characters is completely coincidental and not intended or maybe the other way around. And when you see Him in the corridors, always think of me. I am coming…
My honourable colleague Mr. Dushyant Arora wants feedback on the ways to conduct the Bar Exam. Here is mine: 1.) Law students who come on bicycles and scooters will only be tested. Students who come in cars have the option of not taking the exam. It can safely be assumed that the students have enough money to succeed in this profession. 2.) The students should take the exam in a small room, stuffy and with the air conditioner facing the examiner. The fans, very few in numbers, should work slow, such that no air really flows. This is to judge the student’s ability to think in real life circumstances. 3.) The paper should be type-written and hard to read. The clarity of a computer printout should be clearly missing from the question paper. True conditions of our courts and judicial system should be amply mimicked. 4.) For the same reason, fair beautiful people of the fairer sex will be given 30 minutes extra to complete the exam. 5.) The exam should ideally be held in May-June. Neva Thermo Vests will be the sponsors for the test. Black coats and black pants will be the dress code for the exam. If the examination sheet of a student is wet with sweat, that student will be selected without counting his scores. Sweat, after all is what all lawyers swear by. 6.) Grammatical errors, spelling mistakes and errors of sentence construction will be overlooked. We don’t expect our lawyers to be well versed in English. 7.) Answers having some words and sentences written in local languages will be more marks worthy. We expect to the students to know how Indian courts respect languages. 8.) If students in an examination center go on a strike; all the students of such a center automatically get qualified for the bar as it can be said that they have amply demonstrated the ethos of the bar at an early age. 9.) Winners of any fights, physical or otherwise get automatically selected; losers are ousted. 10.) In case, the administrators of the bar exam face a lack of invigilators, students of National Law Schools will be asked to render their services.
[The following newsletter found its way into my Spam folder. I thought it was worth sharing.]
Barelylegalindia.com/Issue 1
Dear Readers,
This has been an eventful week in the industry. Lots to tell. So let’s dive straight into it.
News
Waves were made at the high-level meeting of the Secret Society Against the Liberalisation of the Indian Legal Market (SSALIM) where several members of the top brass were present. Mr. Batliwaala of Anjaan, Zulmi, Batliwaala & Friends opened the meeting with the radical proposal that foreign law firms be prevented from opening offices in the Indian market. Mr. Saunf of Ramachand, Saunf & Family seconded this proposal and the resolution was passed unanimously by the meeting. The meeting then ended with all members being given copies of Batliwaala Jr.’s summer schoolwork to be distributed to their under-worked underlings.
The Indian Bar Exam has sent final year law students into a tizzy. According to latest reports, it appears that the Bar Council desires to test whether law students are fit to be admitted to the Bar. The movement against this blasphemous testing of legal knowledge (if any) acquired during those five years has now gathered momentum. It culminates in a candle-light vigil to be held at 6 a.m. next Sunday morning at India Gate to honour the intrinsic merit that the Indian law students possess. Please attend and support this noble cause. (It is recommended that you bring your own candles, matches will be supplied free of cost.)
Sources have told barelylegalindia.com that owing to longstanding over-use and abuse, the coffee machine at Shakeel ’n’ Raajan Associates has been replaced.
Legal pulls
With the opening of the 23rd National Law School in Bitawallpur, the Bar Council has lived up to its motto- “We deliver quality legal education in 30 minutes anywhere, anytime.”
The Centre has passed a legislation capping fees for all litigating lawyers at Rs. 5 crore per case. This has been done to safeguard the nobility of the profession.
Snooting Premier League
The Snooting Premier League has been rocked by allegations of betting scandal. With competition hotting up for the bottom spot, it has been alleged by an anonymous person on an anonymous website that all the major competitions are being fixed. It appears a sting operation caught on film persons with vested interests offering promising snooters the greatest prize possible-internships- to lose. Barelylegalindia.com is investigating the fiasco further and is currently verifying the reliability of the video.
Blogging con-petition
Lots of great blogging action this week:
- Nibrana007, one of our best legal writers, in a surprise move, has written a short blog entry on brevity being the soul of wit.
- Pegal Loet claims he is tired of poetry and has switched to prose. In his latest post, he analyses the connection between unicorns, law students and animal right activists.
- John2011 cheerfully explores rainbows, butterflies and sun-kissed meadows.
- Jharkhandi Bhaluu in the Basic Structure of the Great Indian Farmland explains to the uneducated the difference between his buffaloes and cows.
- Penultimate Year Law Student argues that anything beyond the fourth year of law school should be scrapped, making a few interesting points in the process.
-Thandii Chawal in yet another annoying post whines about his comfortable corporate life and claims its all about the money, honey.
Please note that all bloggers are required to deposit $200 each to be considered for the blogging con-petition. We accept Visa, Mastercard and Paypal. All receipts will be distributed to tortured blog readers with the funniest and/or nastiest comments.
Comment of the week
[censored].
Best,
Editor
Barelylegalindia.com
Much has been said about the to be held bar exams.
Analysis of the news however has more or less focussed on the adverse impact of the developments on students passing out this year, and not on solutions.
Through the means of this blog, I request professionals and seniors in the industry to guide students, and suggest a few solutions to those still committed to get into litigation.
What should a final year student who still wants to get into litigation do in these nine odd months?
Seeking Guidance
P.S Please don't publish juvenile comments about how I should not have used a blog to make this request, it's an appeal to our seniors, lets not lose sight of the the context/substance here.
Luthra & Luthra and DLA Piper have won two out of two government disinvestment tenders this week for consultancy Engineers India Ltd (EIL) and the world's largest coal producer Coal India Ltd, defeating firms such as Amarchand Mangaldas, AZB & Partners-Clifford Chance, Crawford Bayley and S&R Associates in a competitive tender.
The argument.
Decisions of the CJI or his delegate, under section 11 of the Arbitration and Conciliation Act, 1996 (A & C Act) have no binding value whatsoever on any court on any forum except the forums / arbitral tribunal/ parties involved in the arbitral proceeding in which such findings under section 11 has been passed.
The main judgment
The Supreme Court of India by a 7 Judge Bench decision in S.B.P & Co. v. Patel Engineering, 2005 (9) SCALE 1 overruled its earlier 5 Judge Bench decision in the case of Konkan Railway Corporation v. Rani Construction Pvt. Ltd., (2002) 2 SCC 388.
The reasoning
Section 11 of the A &C Act provides for appointment of an arbitrator by the Chief Justice of India, in the case of international arbitration and by the Chief Justice of the High Court, in the case of domestic arbitrations.
The Supreme Court summed up its decision in Patel Engineering as under:
i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power.
ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another judge of that court and by the Chief Justice of India to another judge of the Supreme Court.
(iii) In case of designation of a judge of the High Court or of the Supreme Court, the power that is exercised by the designated, judge would be that of the Chief Justice as conferred by the statute.
(iv) The Chief Justice or the designated judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the judge designated would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the judge designate. (v) Designation of a district judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.
(vi) Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Court would not interfere with orders passed by the arbitrator or the arbitral tribunal during the course of the arbitration proceedings and the parties could approach the court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.
(vii) Since an order passed by the Chief Justice of the High Court or by the designated judge of that court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution of India to the Supreme Court.
(viii) There can be no appeal against an order of the Chief Justice of India or a judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act.
(ix) In a case where an arbitral tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the arbitral tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act.
(x) Since all were guided by the decision of this Court in Konkan Railway (supra) orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or arbitral tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11(6) of the Act.
(xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the concerned High Court or a Judge of that court designated by the Chief Justice.
(xii) The decision in Konkan Railway Corporation Ltd. and Anr. v. Rani Construction Pvt. Ltd. is overruled.
The Supreme Court, while coming to the aforesaid conclusions categorically held that “It is true that the power under Section 11(6) of the Act is not conferred on the Supreme Court or on the High Court, but it is conferred on the Chief Justice of India or the Chief Justice of the High Court. One possible reason for specifying the authority as the Chief Justice, could be that if it were merely the conferment of the power on the High Court, or the Supreme Court, the matter would be governed by the normal procedure of that Court, including the right of appeal and the Parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by Courts in the arbitral process.”
Accordingly, it is argued herein that the reasoning behind any finding by the CJI or his designate binds the arbitral tribunal, the parties, but it does not have any value as a binding precedent under Article 141 of the Constitution of India.
Article 141 states that “Law declared by Supreme Court shall be binding on all courts within the territory of India”
A request for appointment of an arbitrator, decided under section 11 of the A & C Act, not being a decision of the Supreme Court does not fall within the purview of Article 141 of the Constitution of India.
Further, Order VII of the Supreme Court Rules, 1996 intituled Constitution of Division Courts and Powers of a Single Judge does not provide for applications under section 11 of the A & C Act.
Conclusion
Thus, on the aforesaid reasonings, in my humble opinion, decisions of the CJI or his delegate, under section 11 of the A & C Act have no binding value whatsoever on any court on any forum except the forums / arbitral tribunal./ parties involved in the arbitral proceeding in which such findings under section 11 has been passed.
Would be delighted to have a discussion on this proposition.
The Companies Act, 1956, though it requires some reforms as mooted through Companies Bill, 2009, is one of the finest legislations. Each provision or the section under the Companies Act, 1956 has a sound logic though there exist very few sections which are to be deleted or modified suitably. The shareholders may not participate in day-to-day affairs of the Company, but, still, their rights are protected as every Company is supposed to maintain books of accounts, conduct the required Board meetings, file the statutory returns and inform the shareholders of the Company about its functioning and the development in a particular year through annual returns and annual accounts which are also accompanied by the Director's report and the Auditor's report. When we think as to how a concern, as an incorporated company functions, the entire legal frame-work is interesting and appears to be logically sound. It is also true that many listed public companies follow the regulatory framework of Company Law in India scrupulously. Many shareholders of a listed company may not even look at the affairs of the Company in detail though they receive documents and communications from the Company very often. Listed public Companies are well regulated in view of SEBI regulations, listing agreement with Stock Exchanges and the continuous supervision of SEBI and the Stock Exchanges.
Contrary to the functioning of listed public companies, private companies or the closely held companies ignore the regulatory framework of Company Law and they think that they are the proprietors of the Company. Though, we very frequently use the word "family company", there is no such description of a Company under the provisions of Companies Act, 1956. It is also true that the private companies are given liberty to have their own internal regulations through Articles of Association and Share Transfers are regulated. While there is no problem with a private company where the entire shareholding is held by a family or a group of persons without any difference of opinion, practically, every company tends to think about expansion of the Company and attraction of more investment into the Company which results in the change in the shareholding pattern of a private company very frequently. In many cases, the change in the shareholding pattern of a company is preceded by an agreement between the Company and the investors. As everybody is a human being with natural emotions and greed, there tend to be some difference of opinion among the members which will end up with drastic consequences. When the trust is lost among the shareholders or between two groups in the Company, then, the consequences of breach of trust would be disastrous. With the disbelief, one group tries to dominate the affairs in the Company and serious differences thus erupt. It is a reality in corporate sector that there tend to be some business secrets, and concealment etc.
Though there is no oppression or mismanagement in the Company, taking advantage of the knowledge of business secrets and concealment, a group of shareholders who qualify under section 399 of the Companies Act, 1956 approach the Company Law Board under section 397/398 of the Companies Act, 1956. As everybody knows, section 397/398 of the Companies Act, 1956 meant to provide a preventive measure for the protection of the rights of the minority shareholders. Company Law Board has been conferred with elaborate powers under section 397/398 of the Companies Act, 1956 in order to put an end to the matters complained of while it is also true that there are express limitations on the powers of Company Law Board under section 397/398 of the Act. There are so many lengthy judgments on section 397/398 of the Companies Act, 1956 in view of complications and the stakes involved. It will never be an easy task to understand a company dispute and pass orders and naturally there will be delay in getting the required orders under section 397/398 of the Companies Act, 1956. The general opinion of shareholders in a private company when they approach the Company Law Board under section 397/398 of the Companies Act, 1956 is that the protection to their rights as envisaged under section 397/398 is not effective.
Few concerns of various shareholders who approach the Company Law Board and who require a remedial measure, as I perceive, are as follows.
Concerns or the feelings of Majority Shareholders or group:
1. Majority tends to rely on majority rule and they will never be happy when a minority tries to trouble the majority by leveling allegations.
2. Majority feels that though they have not committed any act of oppression and mismanagement, the minority shareholders who were privy to business secrets take advantage of those things and tries to trouble the majority.
3. Majority feels that they never want a minority group who intends to trouble the Company; however, acquiring the shares of the minority will be a difficult exercise as there will be unreasonable bargaining and financial difficulties.
4. Majority feels that it has become so easy for a group of shareholders or a minority group in the Company to trouble the majority as a mere allegation can do all the damage.
5. Majority truly feels that they are not provided with any remedy under the provisions of the Companies Act, 1956 thinking that majority rule prevails in the Company and the majority can take any decision in the AGM.
6. Majority never wants to expose themselves as powerless and a group which is not able to deal with the minority and as such they may have to face the obstructions by the minority continually.
7. Though the majority in a Company too can approach the Company Law Board under section 397/398 of the Companies Act, 1956, they may not be able to do so when already a minority group has approached the Board seeking some measures under section 397/398 of the Act. When both the majority and the minority allege something, naturally, the conclusion will be that there exist a deadlock in the Company and consequences will follow. Majority never wants such a situation.
8. Majority group always gets troubled with the filing of fictitious forms with the Registrar of Companies (ROC) and they are still not aware of the remedies to get the fictitious forms removed from the MCA portal. This has become a serious issue in most of the Companies and the issue requires a careful consideration for suitable reforms in law and the practice.
9. Majority feels that the applications under section 397/398 of the Act are loosely entertained and pendency of a petition under section 397/398 of the Act has its own consequences on the functioning of the Company.
Concerns or the feelings of minority:
1. Minority shareholders too have many grievances at the preventive and remedial measures available to them when they are oppressed and the company is mismanaged.
2. Minority shareholders were of the opinion that the remedial and preventive measures provided under section 397/398 of the Companies Act, 1956 are not effective.
3. Minority shareholders feel that there is so much delay in getting the required orders from the Board under section 397/398 of the Act.
4. Minority shareholders feel that the orders of the Company Law Board are read between lines by the majority and getting the orders implemented has become a bigger issue.
5. Minority shareholders feel that there are express limitations on the powers of the Company Law Board under section 397/398 and as such they have to approach many forums on the same issue simultaneously.
6. Minority shareholders are scared to approach the Civil Court as they feel that the procedure before civil court is hectic and prolonged.
7. Minority shareholders feel that though they were willing to disassociate from the Company, the exist option is not reasonable with all undervaluation in most of the cases.
Reforms required:
Than ever before, the issue of filing fictitious forms or uploading fictitious forms with MCA portal has become a very serious issue now. The ROC is advising the Company to approach the Company Law Board or the Court and get an order even when an apparent illegality with regard to filing is pointed-out. The majority is hesitant to say that they are being oppressed by the minority though it can happen practically. With the existing legal position, in many cases, the shareholders are forced to approach simultaneous forums and the issue needs to be effectively addressed. The issue of simultaneous proceedings is sought to be addressed in the proposed Companies Bill which contain a specific bar on the Civil Courts to entertain company disputes or matters. There are complications in course even with the specific bar on the jurisdiction of Civil Courts. Such a bar under other special legislations like SARFAECI Act, 2002 can be effective, but, I don’t think that the bar on Civil Courts can be effective under the proposed Companies Bill. The issue of removing fictitious forms is to be addressed on urgent basis. The proceedings of the Company Law Board now and the National Company Law Tribunal in future should be really effective. With many directives of the Supreme Court now on the constitution of National Company Law Tribunal, we hope that the situation will change. We need to have active and knowledgeable presiding officers who are independent in discharge of their functions. A difference between the proceedings of the Company Law Board and the High Court is apparent now and we can see shouting in Company Law Board and it is very rare to see shouting before the High Court. All these issues appear to be very small, but, a lot to convey. The proposed National Company Law Tribunal can never be a High Court, but, in reality, the National Company Law Tribunal discharges the functions of High Court as most of the powers now exercised by the High Court under the Companies Act, 1956 are sought to be transferred to the proposed National Company Law Tribunal.
Note: the views expressed are my personal and I have no intention to insult any institution.