Jerome Merchant + Partners

“I’ve got it, Bob!”, exclaims Katie (Colby, Hewitt and Richards’s pretty young graduate recruitment officer). “We can use the leftover budget to sponsor a moot in India to increase our visibility among law students, you know.” 

No sooner do the words come out of her perfect, round mouth than the taste of bile assails mine. I feel a distant pounding in my ears. For the avoidance of doubt, these phenomena are not caused by butterflies of excitement spreading their wings.  

[Please for a moment ignore the ongoing heated debate about the legitimacy of the Mooting Premier League's scoring system and LegalPoet’s good-hearted exhortation of Tom’s, Dick’s, Alice's(?) and Harry’s efforts in 15 CV TIPS: Make RECRUITERS pounce on you like DOGS ON BONES and The drunk PIPO]

[Listen to ME carefully now.]

My objection to mooting is simple-stripped to its very core, mooting is THE most overrated activity in existence, invented and indulged in by second-rate individuals with diminished libidos. 

You see, several years ago, as a fresher I succumbed to the charms of the convenor, and found myself bailiff-ing for a moot court competition. I see today why those four hours of my life were not entirely wasted- based on this harrowing experience, I can proceed forthwith to destroy myths Katie harbours about mooting.  

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THE MYTH OF THE BEST TEAM WINNING

Certain rotten and diabolical individuals have led Katie to believe that the competition is between the two teams that are mooting. Nothing could be further from the truth. This disgraceful contest is between the fabulous mooter hero and the villainous moot judge - mano e mano. The other team is just a bonus thrown in to double the fun.

I explain to Katie that it’s the blatant unfairness of the system that gets me worked up.

Here’s the mix. Even the most magnificent mooter has, at best, a vague idea about what he’s arguing. His nemesis, on the other hand, is someone who already knows all the answers (usually by virtue of being provided with a little something called a bench memorandum). The mooter’s faked sincerity mixed with his desperation to triumph against all odds, however, lends to the contest a hint of touching romance.

The audience knows there’s only one way this can end. They may as well have ordered a pizza, rented a slasher movie and stayed at home. Their interest in proceedings is sustained by the variety of methods that are used to humiliate the student gladiator, some examples of which can be found below-

1. Some judges are not simply content with being all-knowing and all-powerful. They feel the irresistible urge to let everyone else in the room (i.e., friends, foes and most importantly prospective beaus) know that the mooter is actually a dummy. (Well technically- they have good reason to feel smarter than the mooter, armed with that memorandum and being done with law school two decades ago, you’d think?).
2. Another bunch of judges mistake the mooter’s grand speech for a lullaby and believe a nap would give them greater insight into the meaning of life. Since these judges then go completely dead to the world, they are immune to the mooter’s best weapons- operatic voice modulation and effective hand movements. Disaster.
3. Another particularly bad kind of judge is the one that is starved of the company of the opposite sex. Stare as much as you want while the pretty girl is speaking, but shouldn’t the ogling stop at least when the fabulous one is strutting his stuff?
4. By common consensus, the worst kind of judge is a sub-set of 1 and 3 above- the moot judge with great hair who takes a fancy to the mooter’s co-speaker cum prospective girlfriend. Once the mooter realises the threat, caution is cast to the wind and the moot hall becomes an amphitheatre. The only question to be decided is who has the larger manhood. At this point, the moot judge simply performs a delicate CBM operation on the mooter (more commonly known as “Castration-By-Marking”, a procedure pioneered by frustrated law school professors). 

Ergo, no team ever really wins. It's always the moot judge who goes home with his family jewels honour intact and, in most cases, takes the love of the mooter’s life along with him (courtesy: private moot-related feeback sessions for the faultless, devastated co-speaker). 

The mooter swears revenge on the judge and the cycle repeats itself ten years later- only this time, the villainous judge is the ex-mooter himself.

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THE LEGEND OF THE COOL MOOTER

Still reeling from this earth-shattering revelation, poor Katie bravely makes the argument that (despite enduring humiliation on such a regular basis) mooters are still revered as the masters of the law school universe.
 
I hate to burst this one. I explain gently to Katie that “Coolness” does not associate with an individual who:

1. has vivid dreams of winning the award for best 'oralist' (not aware that the word actually pertains to the hearing-impaired who communicate by lip-reading, not to mention the word's new-age definition: http://www.urbandictionary.com/define.php?term=oralist).
2. has answered a "Whats up?" question at two ‘levels’ (like a duplex apartment);
3. has worn borrowed spectacles for the intellectual effect;
4. has sweated profusely in the same black suit several times;
5. has owned three black ties and never heard of a cummerbund;
6. shaves rarely, only to miss a spot resulting in a Hitler-Chaplin moustache on D-Day (and a cracked rib for the silently chuckling bailiff);
7. has never been wrong (especially at interviews where openness to new ideas is assessed);
8. has carried little post-it notes in his/her pocket on vacations.
9. cannot tell the difference between non-mooters and annoying insects.
10. has devoted serious thought and research on whether non-mooters turn out completely normal later in life.
11. was tolerated in law school solely for his value as a source of late-night cigarettes (so much stress, so many choices- Vienna? Jessup? Lachs?) 

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

I could go on. But I stop- pretty Katie is crestfallen. I think she realises her graduate recruitment plan isn’t all that grand (or humane) anymore. As a reward for showing her the light, she suggests we spend the excess graduate recruitment budget on dinner for two at Le Gavroche tonight. 

Modern Bob's your uncle (wink wink).   

 

Once there was a thirsty crow. It was so very thirsty that it could have drunk the whole pond in which my buffaloes and I bathe. But unlike other stories like these, this crow thought himself to be too cool. And the weather was really hot mind you.

The cool crow and the hot weather made an interesting combination. But he did not find a pot and throw pebbles in it. No, he was not old fashioned. And he was not the very modern crow like in the ‘Chatur Kak’ ad which breaks the pot with his beak and drinks water. No.

Actually he just did not fly long distances in the hot weather. In fact, he did not fly at all. Did not flap his wings at all. Sat on its grey, feathery ass all day long.

(Wait! Crows cannot do that). So let us say that he just sat on a dry Peepal tree branch (I wont call it Pee-Pool tree. We worship the Peepal tree in our village) pondering upon a question which he thought would solve this problem forever “WHAT IS THIRST”?

He pondered upon this question. He grew more thirsty. “What is thirst”? He still thought and thought and taxed his bird brain. He found many answers. Very sophisticated answers which his clever mind randomly came up with.

Some answers were contradictory. Some answers were ‘scary’. But he did not want to be a ‘scary crow’. He wanted to be a 'scholar' crow. So he used his clever mind to devise a clever theory.

Alas! He did all but drink water. And he died. He had found an answer, a very confusing, at times contradictory answer to ‘What is thirst’, but forgot to drink water. And he died. Leaving all confused.

Now comes the part where I churn butter from milk. Be ready to be involved in some brain gymnasts.

What have some of the legal philosophers done? They have just ruminated upon the question “WHAT IS LAW”? Why didn’t these bird brained (crow-brained to be precise) scholars know that this question does not have a singular answer.

They could have done a lot of good by involving themselves in the real delivery of justice. By providing water to those who need it so very badly. By quenching their own thirst and the thirst of a million others by providing justice. Real justice. By fighting the legal wars out in the open and ensuring justice to people.

For me that is real social lawyering.

Changing gears (actually changing cars) I must say that law students must be taught by people who are constructing something with the legal instruments. It could be a hut or a mansion. But learning from them is important: practicing lawyers, law firm members, lawyers involved with NGOs etc. Learning from the arm-chair scholars results in incomplete knowledge, sloth and retarded-ness as to the knowledge of the real world.

The forensic technology has played an integral role in solving criminal cases. D.N.A (Deoxyribonucleic Acid) tests, first discovered by Prof. Alec Jeffreys in 1985 in England has now become a credible source for identifying a person with the help of his blood, hair, sperm, muscle, nerve or tissue sample. Sometimes when the victims resist, they scratch their attackers, in such cases skin cells underneath the victim’s fingernails are extracted to identify the criminal. Compared to a blood test, the possibility of a D.N.A finger printing going wrong is one in 30,000 million.

D.N.A fingerprinting: – How is it done?

1. Specimens are collected from the crime scene.
2. The DNA is isolated and cut to match against other samples.
3. Subsequently, the strands are placed on a gel and an electric current passed through it
4. The samples are then matched with the existing records of offender, arrested people and suspects.

DNA profiling narrows the list of suspects that authorities need to work through. The FBI commented that DNA profiling allows them to dismiss one-third of rape suspects because the DNA samples do not match. Authorities recognize the possibility of specimens being planted at crime scenes, and therefore continue to investigate the crime based on motive, weapon, testimony, and other clues in order to more accurately solve the case.

Law Regarding D.N.A testing in India as compared to other countries :-

India has no specific legislation or provision related to D.N.A testing. There is no provision under the Hindu Marriage Act, Indian Evidence Act, CrPc or CPC which a party could be compelled to submit one’s blood sample for examination. In such cases the court is bound to invoke Section 151, C.P.C  for giving appropriate directions in the larger interest of Justice. Fortunately the courts have been instrumental in considering D.N.A tests as credible evidence from 1989.

However, countries like Australia, Canada and U.S.A have specific legislation related to DNA forensics.

The (Canada) D.N.A Identification Act, 1998 provides for the constitution of National D.N.A databanks. The act empowers judge to order persons for designated offences to provide D.N.A samples to derive D.N.A profile. The databanks help the investigative agencies in eliminating or identifying suspects or detecting serial offenders. U.K. Criminal Justice Act, 1995; provides that a blood sample for a D.N.A test may be taken forcibly by a court.

Loopholes in the present Legal System:-

1. It is on the discretion of the courts to consider D.N.A tests as a conclusive proof.

2. India has less number of D.N.A experts as compared to other developed countries. Moreover they are deprived of proper training, adequate laboratories, professional respect and perks.

3. The police is lacks the requisite knowledge of evidence collection from crime site. Most of the time the evidence is either ignored or destroyed.

4. The judges and lawyers lack forensic acumen and can be manipulated.

5. Even if evidence is send for D.N.A testing, the laboratories like F.S.L never produce the forensic reports on time.

6. Unlike Canada and Australia, we do not have a provision for National D.N.A Data bank.

7. Forcible blood test for D.N.A testing is not available in India.

8. It is often contended that the D.N.A testing violates the right to privacy of an individual.

9. Post-convict D.N.A tests are not recognized under the Indian law.

10. The power to issue directions for conducting D.N.A tests entirely rests on the court.

Recommendations

India definitely requires legislation in this regard. A D.N.A specialist must be given the status of an expert. They should be provided with adequate training and equipment. The number of laboratories must be increased. Moreover law students, lawyers, police and judges must obtain some official training and knowledge in D.N.A testing. The generation of forensic reports must be made time-bound. A D.N.A test must be not considered violation of individual’s right to privacy guaranteed under the constitution. There is a need for constitution of a National D.N.A data bank in the country. Before granting the right to D.N.A testing to post-convict, it must be ensured that the same is not misused by the prisoners.

 

This a duplication of the post on legal drift. It can be visited on 

http://www.legaldrift.com/decoding-the-d-n-a-legislation-in-india/

Imagine yourself dealing with a case where your client has been accused of murder. The Prosecution story states that your client was found with the murder weapon in his hand when the police arrived having been sitting calmly in front of the deceased for hours and showing no emotion whatsoever. Further, when the cops appeared, your client made no effort whatsoever to flee.

Now if you are wondering what plea you would take to get him out of the impending noose, and you have finally decided to do the ‘idiot’ argument, you may continue to read…

 

 Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.(Section 84 of the Indian Penal Code)

 

Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind but the Indian Penal Code does not go on to define "unsoundness of mind". The Courts have, however, essentially treated this expression equivalent to insanity, a term itself, which again has no precise definition but which is usually used to describe varying degrees of mental disorder. Thus, every person, who is mentally diseased, is not ipso facto exempted from criminal liability. There is a distinction between legal insanity and medical insanity. The Supreme Court in the case of Hari Singh Gond , reported in 2008(12)SCALE102, Court categorically states that  a court is concerned with legal insanity, and not with medical insanity. The Court was dealing with an Appeal from the High Court of Madhya Pradesh where Hari Singh Gond was accused of murdering his grandfather-in-law and in the trial he claimed innocence on the grounds of idiocy and sought protection under Section 84 of the Indian Penal Code. The Bench affirmed the lower court and High Court orders convicting Gond for the murder.

There are four kinds of persons who may be said to be not of sound mind (non compos mentis), i.e.,

(1) an idiot;

(2) one made non compos by illness

 (3) a lunatic or a mad man and

(4.) one who is drunk.

An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like,

A person made non compos mentis by illness is excused in criminal cases from such acts as are- committed while under the influence of his disorder.

 A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason.

Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity.

Under Section 84, IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing

 (a) the nature of the act, or

(b) that he is doing what is either wrong or contrary to law.

Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).

Stephen in `History of the Criminal Law of England, Vo. II, page 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section

Mere abnormality of mind or

partial delusion,

irresistible impulse or

compulsive behaviour of a psychopath

affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case (1843) 4 St. Tr. (NS) 847.

The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.

Short, crisp and definite as a decision should be.

 However, when it says “or the like” it does leave some room for  imagination and argument.

 

As I smoke my morning cigarette (admittedly a disgusting habit I picked up back in college), I suddenly miss India. I shiver against the wind in cold, dark, damp London. It’s 7.30 a.m. and its pitch dark. Even after three and a half years, I still have times when I wonder what I am doing here.

What makes this the Promised Land? A question I have asked myself (and others) a million times before and one I still haven't found an answer to.

Since there are a couple of hours to go for work, I set out to make a list of things that could explain possibly why a young wide-eyed law student comes over to (quite literally) the dark side.

Here is what I came up with (in no particular order):

He/she:

1. has been morbidly fascinated by Yashraj movies from an early age (i.e., ever since he/she learnt what NRI means);
2. has had dangerous levels of exposure to Monty Python’s Flying Circus;
3. believes James Bond is a real person;
4. hopes to get with a hot foreign chick/guy (a separate blog entry shall have to be devoted to this rather fond hope);
5. is charmed by the accent of the hot chick/guy in 4 above (which he/she later realises is closer to Geoffrey Boycott being strangled than Yes Minister);
6. wishes that the great tan he/she was born with be appreciated (while his/her friends still use Fair & Lovely/Handsome);
7. finds out that Europe is closer to London than Bangalore;
8. wants to be the automatic choice for best leg-spinner in the firm's cricket team (and he/she wants to rub it in when India beats the South African second XI);
9. needs more grocery money than the obscene amounts Indian firms pay graduates;
10. appreciates human-prototype billable hour targets (because donkey-testing is banned in the UK);
11. wants to sweat less (logical corollary to 10 above. Also related to the weather, although there was a 33 degree Celsius heat wave in the UK last year); or
12. is certifiable and wants to multi-task (or build his/her CV, which has forever been a favourite hobby of law students- please refer to Multitasking- The 'certified' way).

I feel a lot better about things having undertaken this much-needed analysis. I whistle softly to myself as I put on my suit and knot my tie.

The next lot of eager starry-eyed Indian trainees is due to start at Colby, Hewitt and Richards LLP today.

 

Again, this is based on a sample of the law school that I study in, situations may differ according to where the person reading the note comes from.

Imagine this; ‘A’ is simultaneously presenting a paper on corporate governance, doing an international moot in Vienna and is the convener of the Legal aid cell which is organizing a seminar. ‘A’ is actually back home enjoying his vacations.

‘A’ is a delight to watch, multitasking at its very best one can say. But, how did ‘A’ do it. The answers are as follows:
a)    The paper on corporate governance is being presented by the organizers themselves, certificate to be emailed later on.
b)    ‘A’ is a researcher at the moot in Vienna which does not make it necessary for him to be there, hence, the certificate for the same is also assured.
c)    ‘A’ is in good terms with the faculty convener of the legal aid cell and hence, delegates work to the volunteers. Therefore, he makes sure the certificate for the same is arranged again.

‘A’ now has authentication to show that he has done all the above mentioned activities without having been present at any of them. Since, nobody does inquire into how, what and why the above mentioned activities were undertaken by ‘A’. ‘A’ has benefited out of the good planning that he undertook while carrying out all these activities. Additionally, nobody can point a finger at ‘A’ for having not taken active part in any of the above mentioned activities. He researched and made the paper for the conference; he researched for the moot and also delegated work to the volunteers in a precise manner with other members supervising the seminar. ‘A’ on the other hand is vacationing back home in order to know which LLM program is best suited for him. Therefore, one arrow has effectively hit many targets while staying within permissible limits.

This is the beauty of law school and what it teaches you, it teaches you on how to make sure you plan what you want, and how best you can get it and what are the means of getting it.  Notwithstanding, the ethical nature of what ‘A’ has undertaken, it is effective. It’s entirely another argument that ‘A’ did not benefit from the experience of not being in anyone of the places.

 ‘Mere multitasking does not suffice, multitasking with necessary adjustments and working intellect is what makes a difference.'

P.S. This post was inspired by a friend of mine who in order to get a scholarship for an LLM abroad is multitasking in a similar manner. Again, the effectiveness of the same has been duly verified by precedents in the same regard.

THE CRIMINAL LAW (AMENDMENT BILL) 2010

This is a revolutionary step taken by the Ministry which is looking to amend the existing rape laws in India. The rape laws in India was last amended in the year of 1983 and that to after the Mathura rape case, where the appex cour of India was been harshly criticsed from all parts of the country and the reasons were very obvious. After the amendment in 1983, the offence of rape has taken various shapes in our country which poses glaring need for amending the rape laws to increase the ambit of section 375 of the I.P.C.

During the period from 1983 to 2009, plenty of cases have been registered under this offence.  [The term "rape" under English law actually covers all the aspects of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment]. This comparison clearly shows that the laws prevailing in India are not upto the mark to deal with the various forms and modes of committing the heinous offence. There are  grey areas  which have been in the discussion  for the last 27 years  and few among them are

• Section 375 of I.P.C. is having a very narrow scope wherin it could be applied.
• The age limit was 16years for giving the consent
• The undue advantage taken by the public officers
• The issue of marital rape
• Sexual abuse against the minors of either sexes

As far as the section 509 of the I.P.C is concerned, which deals with the cases of sexual assault consisting of any kind of whistling, passing leud comments of any form of gestures etc.to outrage the modesty of a women; is another area where punishment is less as compared to section 354 of I.P.C.

There are many areas which were in the criminal procedure code also which were also subjected to this recent amendentBil 2010.These are Section154,160,161,198,273 and 327. These sections deals with the generally with the duty of the police officers to take proper action against the charges under the Sections   354, 375, 376, 376A, 376B, 376C and 509 of the Indian Penal Code.

The changes in section 154 Cr.P.C. "  “Provided that if the information is given by the woman against whom an offence under sections 354, 375, 376, 376A, 376B, 376C and 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, as far as possible, by a woman police officer”

In section 160 of the Code of Criminal Procedure in sub-section (1), in the proviso, for the words “age of fifteen years”, the words “age of eighteen years or above sixty-five years” shall be substituted.  In section 198 of the Code of Criminal Procedure, in sub-section(6),-
(i) for the words “sexual intercourse”, the words “sexual assault” shall be substituted.

In section 273 of the Code of Criminal Procedure, before the Explanation, the following proviso shall be inserted, namely:-
“Provided that where the evidence of a person below the age of eighteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused”.

Another important entry has been made in this amendment bill and that is Section 166A which deals with the punishment for the public servant who will disobey the directions given under the law. The punishment is for 1 year or fine or both. this offence is also non-cognizable and bailable before the Magistrate of the first class.

We have witnessed many cases under the  this category of offences going unreported.The amendment in the Cr.P.C. shows the importance given to the part of the system who is gong to implement the laws.  There have been amendment in the Evidence Act as well such as-

In section 53A a prosecution for an offence under section 376 or section 376A or section 376B or section 376C of the I.P.C.or for attempt to commit such offence, where the question of consent is the bone of contention, evidence of the character of the victim or of his previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.

 

Conclusion-

The Criminal Amendment Bill, 2010 is no doubt tried every thing to fight with this societal curse with strong hands but it has still silent on marital rape, and gender neutrality of the offence of sexual assault. On the other hand, the provision related to the sexual offences against minors and even an attempt with this respect shall be punishable is a fine step. The steps taken against the public servants is also appreciable. This bill has encouraged the victims to come forward with their complaints so that it can be handled in a proper way as per the law. All in all, It is a fine  proposed amendment bill except the areas untouched. 

 

 

News Link from BBC : http://news.bbc.co.uk/2/hi/7132124.stm

Last Updated: Friday, 7 December 2007, 09:08 GMT  E-mail this to a friend Printable version

Hindu gods get summons from court

By Amarnath Tewary  Patna The gods have many temples in their name Pic: Vivek Raj A judge in India has summoned two Hindu gods, Ram and Hanuman, to help resolve a property dispute. Judge Sunil Kumar Singh in the eastern state of Jharkhand has issued adverts in newspapers asking the gods to "appear before the court personally". The gods have been asked to appear before the court on Tuesday, after the judge said that letters addressed to them had gone unanswered. Ram and Hanuman are among the most popular Indian Hindu gods. Judge Singh presides in a "fast track" court - designed to resolve disputes quickly - in the city of Dhanbad. The dispute is now 20 years old and revolves around the ownership of a 1.4 acre plot of land housing two temples.  You failed to appear in the court despite notices sent by a peon and post  Judge Sunil Kumar Singh in letter to Lord Ram and Hanuman The deities of Ram and Hanuman, the monkey god, are worshipped at the two temples on the land. Temple priest Manmohan Pathak claims the land belongs to him. Locals say it belongs to the two deities. The two sides first went to court in 1987. A few years ago, the dispute was settled in favour of the locals. Then Mr Pathak challenged the verdict in a fast track court. Gift Judge Singh sent out two notices to the deities, but they were returned as the addresses were found to be "incomplete". Local say the temple belongs to the gods Pic: Mahadeo Sen This prompted him to put out adverts in local newspapers summoning the gods. "You failed to appear in court despite notices sent by a peon and later through registered post. You are herby directed to appear before the court personally", Judge Singh's notice said. The two Hindu gods have been summoned as the defence claimed that they were owners of the disputed land. "Since the land has been donated to the gods, it is necessary to make them a party to the case," local lawyer Bijan Rawani said. Mr Pathak said the land was given to his grandfather by a former local king.

The two female suicide bombers who were responsible for the metro attacks in Moscow, were the widows of former terrorists. It is believed that about 30, “black widows” were trained by the Russian Bin Laden to carry more of such attacks in future.

The presence of suicide bombers has become a matter of grave concern through out the world. Suicide attackers are not driven by the motivation to die but  by the zeal to kill others.

These fearless  terrorists are often misconceived to be mentally retarded or abnormal, but the psychological studies have proved that they are perfectly normal people who are determined to do things differently.

In the modern era, suicide bombings were initiated in the Second World War by Japanese troops. The “Kamikaze” was used as a strategy to instill terror in the minds of the terror. Takijiro Onishi, who was leading the air force in Manila, used the technique of intentional crashing of aircraft by the inexperienced pilots.

1970’s witnessed the resurrection of suicide bomb attacks in Islamic Terror groups.  Hizb’allah used suicide bombings against  Israel.  Ayottah Khomeini (Iranian Spiritual Leader) re-interpreted the Shia Cult of martyrdom. And hence propagated the concept of suicide committed for religious causes. Hamas is another group operative in Palestine which has carried out numerous attacks including Gaza strip attack and Christmas Day Attack in Jerusalem.

Religion may not be the sole purpose of carrying out such attacks. L.T.T.E which was operative in Sri Lanka used the suicide attacks for accomplishing its political motives.

Reasons for becoming Suicide Bombers:

1. Poverty

2. Conditioning done by the terrorist groups that starts from the very early age of an individual.

3. The myth of martyrdom and the posthumous acclamation associated with it.

4. The manipulation jihad and other religious beliefs (like it would open the doors of heaven).

5. The assurance of the terrorist groups to support their families and promise to reward them with both cash and honor.

6. The internalization of terrorist ideology in the minds of the bombers.

7. Values of the cultural societies (in Lebanon and Palestine the suicide bombers are treated with the stature of martyrs). It is estimated that more than 30% of Palestinians support suicide bombers.

8. Revenge ( eg. Black Widows)

9. To bring attention to the demands of the terrorist groups.

10. The urge to follow the footsteps of a charismatic leader, friend or family member.

How is it carried out?

In Gaza, a game “shuhada” is staged by children on streets to offer mock funeral offerings to the suicide bombers (identified as martyrs by them). The children identify with them as their heros and ideals. Usually vulnerable children like them are carefully selected by a terrorist organization.

They are then divided into small groups which is presided by a teacher. Gradually the youngsters are transformed in to weapons of destruction. They are left with no sense of individualism and identity. The ultimate motive is to be an asset to the group. During their training, the candidates have to observe complete abstinence from women and sex. They are taught only selected religious texts from the Arabic Quran. No one; not even the parents of a bomber are informed about his missions.

Suicide Terrorism requires a very few means and little preparation. A determined perpetrator and an effective explosive is all that is needed. It is both cost-effective and more impact-oriented.

Impact of Suicide Terrorism:-

Places like embassies, shopping malls, railway stations, restaurants, buses, parks and posh streets are the most common targets of such attacks. It serves three purposes of the terrorists i.e.

1. Greater chances of causing more damage and causalities.

2. The probability of being caught is comparatively less.

3. A much greater impact of the general public. The terrorized people usually think, “If I’m not safe here, then where can I expect security?”

A terror attack is generally accompanied with two counter-responses by the masses. Most of the people express patriotic sentiments on the advent of such grave happening. Contrary to this, people also doubt the ability of their governments to protect them. Russia and Israel face suicide terrorism on continuous basis. The people in these countries not only possess hostile feelings for the minorities but also advocate stringent governmental action against the terrorists.

The mass public response after such heinous attacks has often empowered the government to take harsh steps. The American Patriot Act being one such example. Sri Lanka also enacted a legislation in 1979 through which it could hold any person under arrest  for 18 months without trial.

One of the major problems with regard to suicide bombers is that since they target civilians, in most of the western countries they are tackled by the police and not by the military. To prevent such attacks more and more public places must be guarded. The victims and their families must be provided with immediate medical help. The reconstruction of normal life is very important. The government must take initiatives to regain the trust of the masses.

 

The article  is the duplication of the post published on authors blog. It can be reviewed on 

http://www.legaldrift.com/suicide-bombers-married-to-death/

Welcome once again to the world of Nandii aka Modern Bob, where buildings are made of shiny glass and all trains run on time to the right stations.

It’s nostalgia time. I recount below my first day of work (translated suitably to reflect events, where appropriate).

8.30 a.m.: Dressed in my smartest suit, I steal a quick look at the Financial Times just to make sure my commercial awareness is up to speed.

[Translation: I wake up, slightly hungover from the free wine at the Colby, Hewitt and Richards’s introductory dinner party last night. Free stuff must ALWAYS be ingested in copious amounts.]

9.15 a.m.: Being extremely perceptive, I notice the market is slightly under the weather and decide I must discuss this with my boss.

[Translation: I find a bomb scare has closed down Moorgate tube station, which means I have to take a bus to work. Of course, divine intervention ensures that there are bus stops every 50 metres. I have no choice but to read the front page of the tube paper which informs me that important takeover talks have collapsed. “Tabloid trash” I mumble to myself and crumple the paper, earning stares from my fellow bus-inhabitants.]

10.00 a.m.: My boss walks in. We connect instantly and there are smiles and handshakes all around. We have a pleasant conversation where he tells me all about his wife and kids. Naturally, he is curious about India and we make holiday plans.

[Translation: I rock up to work to find a slightly sour-faced man in my room and the following conversation takes place. 

Boss: You’re late, and what’s your name?  

Self: Sorry sir, I'm Nandii.

Boss: Nandos?  

Self: It’s closer to Nun-dee. But you can call me Bob if you like, sir.]

11.00 a.m.: I am given my first piece of work, which I complete flawlessly, impressing all at Colby, Hewitt and Richards. I am hailed as a rising star and the cleverest Indian in the firm (including the IT dudes).

[Translation: I am asked to draft a couple of simple documents. Diligently, I replicate the precedents handed to me. As luck would have it, they have slyly repealed the English Companies Act recently and replaced it with an entirely new piece of legislation. To complicate things further, my boss is aware of this and lets me know what he thinks of my drafting skills. ]

1:00 a.m.: The best looking girl in the office rings up asking me if I want to go for lunch. We have a lovely Italian lunch and promise to meet everyday.

[Translation: I ring up the best looking girl in the office, asking her what she’s doing for lunch. She tells me that she’s busy till the end of the month, but will consider lunch with me next month if I take her secretary out today. I spend my lunch hour helping a 75 year old chew (?) her way through spaghetti ravioli.]

3.00 p.m.:  I attend a seminar on recent legal developments and having read the FT this morning, I am able to contribute meaningfully to the discussion on the present condition of the market.

[Translation: An emergency firm-wide meeting is called- another important investment bank went into bankruptcy over the weekend. While I vaguely recall reading about the collapse of takeover talks in this morning’s paper, the events of last night and the warmth of the seminar room overcome me. The next thing I recall is opening my eyes with the entire room staring at me. This is not a pleasant sensation. Drawing on my vast reserves of commercial knowledge, I opine confidently that the Icelandic giant Kaupthing should take over the big British banks to save the day.]

4.30 p.m.: I perform some simple but important administrative tasks.

[Translation: I email some documents to my PA, Jackie Richards, for her to print out ASAP. Outlook automatically corrects the address to ‘Jack Richards’, who incidentally happens to be the Managing Partner of the firm. His reply cannot be reproduced here. I learn an important lesson- my PA is called Jacqueline Richards.]

5.40 p.m.: I ask my boss when I can leave. He smiles and waves me away. I leave the office for my swanky flat in South Kensington and make plans for drinks with friends.

[Translation: An urgent email is forwarded to me by my boss from his Blackberry (he is at the pub with clients) asking me simply to “Please action”. I leave the office just past midnight having learnt all about repo/reverse repo transactions in Spain and wait for a bus to my flat-share in Mile End.]

Finding: Nostalgia is great!

[Translation: When you look back at things, you tend to romanticise them slightly.]

 

 

 

 

 

 

The High Courts in India are Courts of records.

 

A Court of record generally has the following attributes:

 

     1.  generally has a seal

     2.  power to fine or imprison for contempt

     3.  keeps a record of the proceedings

     4.  proceeds according to the common law (not statutes or codes)

     5.  is independent of the magistrate (judge)

 

The bold highlight on top among others, means that whatever you happen to file in court is preserved
 by the court, including original documents, if any.

 

However, curiously, in our legal system, the court files habitually disappear.Usually after an interim
 order/injunction has been granted by the Court.

 

In local parlance the Kolkata attorneys refer to this extra judicial redressal mechanism as the
 ‘Ganges service’ meaning that after a party has obtained an interim order in its favour and
does not want such order to be set aside or varied or the matter to be heard in the near future,
 the court file is illegally obtained by allegedly masquerading the court staff for a few ‘Gandhis’
and immersed in the holy Ganges.

 

In the northern states, it is known as ‘file gayab ho jana’.

 

In the South, I am certain there are suitable phrases for the same.

 

What follows is a very tedious procedure of ‘reconstruction of court file’. Letters are usually
written to the Court Registrar/Registry for reconstruction followed by repeated mentioning

before the Court, issuance of notices to parties to produce their records of the matter
and then removal of objections and finally a reconstructed file on which the proceedings
may continue.

 

Time span – safely 2-3 years

 

And the injunction continues.

 

Now, if the court of record fails to preserve it own record, why should the litigant suffer?

Who pays for such suffering?

The answer obviously is that the Court or the department of the court being responsible for such
‘disappearance’, should be answerable.

The officer in charge or the keeper of the records, if hauled up, may be able to reveal the
 truth and more importantly, the costs of such reconstruction, judicial time wasted and
 suffering to the litigant are if, made to be paid out of his salary, such a nuisance may
 perhaps be deterred. An inquiry into the affairs of the Court, suspension pending inquiry,
a quick decision, suitable exemplary punishment to the wrong doers may also create an
 example for non-repetition of such tricks.

 

And looking forward, ofcourse, e-filing.

 

Any thoughts as to how the Courts ought to preserve its own records, keep it away from gnawing

 animals , fire, flood, an occasional tsunami , unruly protests and vandalism and such similar
 stuff apart from the greasy palms removing the files for its final immersion in the nearby rivers?

 

Dear Learned friends,

While trying to find out whether the SICA (is still in operation or not I came across some judgments of the high courts of different states which raise questions over the credibility of the decisions pronounced by them ad shows that even the high courts do not either apply their minds or they are short of IQ or knowledge. 

We all know that Sick Industrial Companies (Special Provisions) Act, 1985 for enacted for all possible revival of sick industries as per the provisions of the Act but in 2004, the President of India gave his assent to the Sick Industrial Companies (Special Provisions) Repeal Act , 2003 but the provisions of the repealing Act was to be notified by the Government to come into operation which has not been done so far till date. 

In spite of the said facts and also a clear pronouncement  of the Supreme Court (2006) in this regard wherein the SC asked the Government to consider the matter of notification of the repealing Act in public interest, the Jharkhand High Court, in 2008, dismissed a Writ petition which was a PIL too on the ground that the repealing Act has repealed SICA, thus no ground could be made out to adjudicate up on SICA provisions. Similarly, the Chennai High Court in 2004 accepted the fact in its judgment that the repealing Act has repealed SICA while coming into force 02.01.2004. 

Two judges bench of the Jharkhand HC in the matter of  Surinder Singh Sahni Vs UoI and Ors, decided on 06.05.2008 (LexDoc ID : 352594), states as follows :

"Though, neither the counsel for the petitioner nor counsel for the respondents pointed out, but it has been brought to our notice that the Sick Industrial Companies (Special Provisions) Act, 1985 stands repealed with effect from 1st January, 2004 by the Sick Industrial Companies (Special Provisions) Repeal Act, 2003.

5. The prayer of the petitioner for declaring the provisions of Section 3(1)(f)(ii) of the Sick Industrial Companies (Special Provisions) Act, 1985 as violative of Article 14 of the Constitution of India, does not therefore survive anymore since the very Act and the provisions contained therein, stands repealed. As regards the other prayers, it Is for the Government to consider' the need for making suitable arrangement for protection of the Sick Small Scale Industrial Undertakings.

6. We do not feel inclined to give any direction to the State or the Central Government in this regard. This writ application is therefore dismissed."

A single bench of the Chennai High Court in the matter of Dunlop Facttory Employees Union Vs Dunlop India Ltd., Writ Petition No.25962 of 2004, decided on 21.12.2004 accepted the fact that the repealing Act has repealed SICA without going into the question whether the repealing Act has got notified or not.

While at the same time the apex court in the matter of Morgan Securities and Credit Pvt. Ltd. Vs Modi Rubber Ltd., 2007 AIR SCW 350, asked the State to consider the matter of notification of the repealing Act.

There may be some more judgments of high courts wherein they would have accepted that the repealing act has repealed SICA but the question arise hereto now that how could we rely on judgments of high courts or whether we get proper justice in all the high courts since in many other matters, I have seen high court judgments without merits and the matter I have referred herein only substantiates the said fact.

I often ponder the mundane things of life when I am tired. Tonight, the lucky subject of my musing is the thermostat dial which has inexplicably turned itself all the way down again, making the office unusually cold.

It isn't hard to imagine that this simple dial is a sinister tool of torture the big boss-men (who live up in the sky) employ to control the lowly employee's urge to curl up under the table and catch a few Zs before the sun comes up and the black-suited worker ants stream into work, with their quick gaits and their straight lines.

I look out of the window- I have arrived. The City of London- the great Indian dream that has outlasted the demise of the Raj; the Punjabi munda's ticket to that luscious-lipped (and soon to be generously-hipped) Punjabi kudi; the Bangladeshi caterer's wet dream and the centre of the western financial world.

My corner office on the 37th floor in one of the tallest buildings in the  City offers a good view- occasionally obstructed by the stray passing cloud. I turn from the window to the rest of my office. Piles, indeed mountains of paper dominate the room. My ilk has a way of wasting paper-even my recycle bin overflows with discarded drafts of documents that no one will ever look at unless all hell breaks loose.

I assure myself that the firm does not have a team of people dedicated to watching me work. I then proceed to stare mindlessly at my computer screen for a complete half an hour, while I wonder what useful (possibly higher) alternative purpose I could instead be serving at 4.30 am. Not the first time I come to the conclusion that my chosen path severely limits options in this regard.

Having satisfied myself that I have no other choice, I work tirelessly for the next fifteen minutes. Immensely pleased with the result, I email my boss my work, noting with satisfaction that the time stamp on my email says 05:17. I hope he notices how late I am working and ignores that this could have been finished early yesterday evening (had I not spent hours poring over the latest gossip on Cricinfo).

I leave the office with the air of a hero returning victorious from battle, slipping easily into the black cab I would never take unless it was paid for by someone else.

Of course, I do not turn the thermostat back up. Now THAT would be a complete waste of my £350 an hour time.

I welcome you to my world. The world of Nandii Reywal- Solicitor at Colby, Hewitt and Richards LLP, where today is already another day.

Hi everyone.

I am a practicing lawyer in the High Court of Gujarat.

I found the field of law very interesting and I love the Law.

Anyone can ask me any query regarding Law, I will give my best answer to that. 

I am also interested in LPO so if anyone is having much knowledge on that please write me.

The Controversy

When the two sports stars (Sania Mirza and Shoaib Malik) would tie the knot, it is believed that the two countries India and Pakistan would also share a common-bond. But the marriage between the Indian tennis star and former Pakistani Cricket Captain, scheduled on April 15, 2010 has already witnessed a lot of controversies. After Shiv Sena’s threat to Sania and her family with the performance of marriage. It is now alleged that the prospective groom, Shoaib Malik has been already married to Ayesha Siddhiqui alias Maha Siddhiqui since June, 2002.

Mohammed Siddiqui, the father of Ayesha has already lodged a complaint against Shoaib Malik in Hyderabad under Sections 420 (cheating), 498-A (dowry harassment) and 506 (criminal intimidation). On the other hand Malik and his family have denied the subsistence of any such marriage.

Two sides of the same story

In their interviews, Malik and Ayesha have presented different versions of the story. Shoaib Malik contends that he had never met Ayesha in person before the alleged marriage took place. Maha, had send him the photographs of some other woman who he presumed to be Ayesha. He was deceived by her and at a tender age of 20. When he figured out the fraud in 2005 he immediately broke all his associations with Ayesha.

He said,” I walked out of my house one morning in June 2002, and went to my friend’s shop and called from there. I got a nikahnama, signed it, thinking the girl I was marrying was the one in the photographs.

In Muslim law, this arrangement doesn’t work no matter what paper may or may not be there simply because, when the proposal was made, the image in my head was the girl in the photographs, but the girl, who was accepting the proposal was someone else. That’s cheating.”

Whereas Ayesha said that they had met in Dubai in 2000 and were in constant touch since then. The internet facilities were unavailable that time and therefore there was no question only exchanging photographs. She further said that Malik was disappointed with her being fat and thus avoided her company at public functions. The growing popularity of Malik amongst the girls led to a drift between the two. She proclaimed that a telephonic marriage in Islam was perfectly legal and valid according to the sharia. Ayesha’s family has also released a the nikahnama in public.

Main Elements of a Muslim Marriage :-

1-Free Consent of the Parties

2-Payment of dower

3-Witnesses

4-May be terminated by either of the parties any time

A telephonic marriage in Sharia is valid if witnesses are present from both the sides. In the present case, the marriage claim by the Siddhiqui’s is dubious until and unless, the witnesses from both the sides are produced. Moreover, Shoaib’s argues that the consent given by him was under the misconception that the girl he is marrying was the one in the photographs and not Maha Siddhiqui, further weakens the case. As in a Muslim marriage, free consent of the parties is a pre-requisite.

Under the Indian Muslim Act, a Muslim male can enter a second marriage while the first marriage is already subsisting. Thus, Siddhiqui would not be able to prevent Sania and Shoaib’s marriages even if the alleged marriage is legally valid.

If tried under the Indian Laws the cricketer can be punished with both imprisonment and fine. The contradictory statements issued by the cricketer time and again have also diluted the veracity of his claims. If Ayesha’s claims are valid then the victim has been harassed by her celebrity husband. Calling a wife fat or public harassment amounts to mental cruelty under the Indian Law. It would be to early to jump into any conclusions as of now, I think the truth will reveal itself in due course of time.

 

The article is a duplication of author's post on her blog. The same can be viewed on 

http://www.legaldrift.com/the-legal-controversy-surrounding-sania-shoaibs-marriage/

The Women’s day this year was indeed very special, the parliament passed the Women Reservation Bill with full vigor.

The reservation for women in the political front emerged with the Panchayati Raj Act, 1992 which was passed in Rajeev Gandhi’s tenure. The Act provided for women’s reservation upto 33% in the Panchayats.

Subsequently demands for women’s reservation in Parliament and state legislatures were raised . In 1996, the then Prime Minister H.D. Dewe Gowda promised to fulfill these demands. After almost 13 years; the Women’s Reservation Bill [The Constitution (108th Amendment) Bill, 2008] was finally passed by Rajya Sabha.

The bill seeks to reserve 33% seats for women in Lok Sabha and State Legislative Assemblies. One third of these reserved seats would be allotted to the women belonging to the Scheduled Tribes and Scheduled Castes. However, there is no separate reservation for women belonging to the Other Backward Classes (O.B.C’s). Further it is provided that the reservation shall cease to exist after 15 years of its commencement .

The Bill is highly criticized on several grounds :-

1. It seeks to reserve 181 out of the 543 seats in the Lok Sabha and 1,370 out of a total of 4,109 seats in the 28 State Assemblies for women. It is argued that the number of seats allotted for women reservation is way too high and hence should be reduced.

2. The reserved seats would be allotted by rotation of constituencies. This means that a male legislator would not be allowed to contest from the same constituency again. Thus infringing his democratic rights to contest elections.

3. The choice of people would be restricted to only choose female representatives.

What is the most bothering aspect of the Bill?

I personally feel reservation does no good to the society. The benefits of reservation almost never percolate down to the lower strata of the society. It is widely observed that some families enjoy the perks of reservation from generations to generations. The people with most miserable conditions usually never get the opportunity to enjoy the fruits of the legislative action.

I’m afraid that the Reservation Bill would serve purposes other than women empowerment. When Lallu Prasad Yadav was caught in the Chara Ghotala, he had to resign and Rabri Devi (his beloved wife) became the Chief Minister of Bihar. She was more like a puppet in the hands of her husband. Lallu enjoyed power without any responsibility those days. It would come to no surprise, if in the years to come we will witness more of Lallus and Rabris in the Parliament and state legislatures. Believe me it won’t elevate the existing position of the women in any way. The legislators will use women as a ticket to ensure their seats in the parliament.

Not only this the “rotation of reserved constituencies” would act detrimental to the public interest. Most of the elected leaders work for their areas expecting that their work would be rewarded by re-election. But debarring them from contesting elections again, may reduce their interest in working for the public benefit.

“The reservation shall cease to exist with 15 years of the commencement of the amendment” is also a dubious clause. It has been witnessed in past that the reservation of ST’s and SC’s (which was originally meant for 10 years) has been extended each time. The same may be repeated for reservation of women as well.

Reservation is no solution for upliftment of women in the society. Being a woman I know what a woman is truly capable of doing. We had Kiran Bedi, Jhansi Ki Rani, Sarojini Naidu, Vijay Laxmi Pundit and many others without any reservation. I would appreciate the presence of more Vijay Laxmi Pundits than Rabri Devis any day.

 

This article is the duplication of the post published on author's blog. The same can be also read at http://www.legaldrift.com/the-ugly-truth-regarding-the-women-reservation-bill/

‘Tu jaanta hain mera baap kaun hain?’
(Do you know who my dad is?)

‘Kyun, tujhe pata nahin tera baap kaun hain?’
(Why, don’t you know who your dad is?)

This is a cliché dialogue used to indicate power and the far reaching depths of power that a person possesses due to what his/her dad does. A necessary logical reply to this line is the reply statement mentioned. But, unfortunately, things don’t work that way. Even today, power is looked upon as the be all and end all of getting work done. The field of law still happens to be one where contacts work and for the most part, is the only thing that works.

‘Jugaad’ refers to jack or an arrangement which is powerful enough to get work done. ‘Work done’ has a very wide ambit which ranges from getting an internship to getting a job to getting to be a junior under a senior counsel and can even go up to an internship with the ICJ.

When I refer to Jugaad and its colloquial usage, it is a means to get work done in the best possible manner irrespective of the qualifications that a person possesses or the way he presents himself or what his overall resume has. I have seen it happen time and again, that internships, jobs etc. get done only through this all powerful tool barring a small minority who get in through pure merit.

This post isn’t just indicative of law schools where recruitment drives are very good and people don’t need to rely on contacts, but the entire profession as such which includes colleges all over. And for a vast majority of law students present, a student for the most part, has to rely on contacts in order to get into anything that he/she does. 

JUGAAD has certain essential characteristics which makes it all the more effective:
·    It can be used anywhere, anytime.
·    It has to be used as a necessary tool to get things done especially if your college is not reputed.
·    It has far reaching depths depending on where it gets to be used and how has to be used.
·    It can be utilised through various means-relatives, friends, relatives’ friends, relative’s friend’s friends’ etc.
·    Qualifications aren’t as important as the surname that the person utilising it possesses. ·    There is a forever lasting obligation/debt created by the person who utilises the Jugaad in favour of the person through whom the Jugaad was used.
·    Jugaad is most effective in case of above average, average and below average candidates who need the extra push or who just need push in order to get through somewhere. In cases of meritorious students and toppers, it may not pose such a threat or may not be resorted to.

Therefore, the next time that you see anyone come up with certificates of top law firms, counsels etc. without having even seeing their offices even once, don’t get perturbed, they owe it all to the power of Jugaad. Jugaad is best witnessed during recruitment drives when surprise recruitments are made and people keep wondering as to how a candidate graduated from a level of no hope to a level of top notch recruitment. 

Always remember, ‘Jugaad helps, and absolute Jugaad helps absolutely!’
P.S. Depending on which part of the country you’re from, Jugaad may be replaced by alternative terms of colloquial usage.

Project finance specialist India Law Services (ILS) has advised a consortium of bankers in two project financing transactions of Nagapattinam Energy and Caddie Hotels in the last week of March.

National Judicial Service has been one of the most political-legal contentious issues in the judicial history of India. The debate has continued for years. On one hand the law ministry and the legislature intends to introduce the National Judicial Service in the country where as on the other hand the judiciary intends to postpone the same.

Why do judges oppose the commission of All India Judicial Service?

There are four basic ways of judicial appointments:-

1. By political institutions (Partially practiced in Italy and South Korea)

2. By judges themselves (Japan, Iraq and India)

3. By non-judge members (Brazil and Most American States)

4. Through Election (Some American States like Washington)

Presently in India, the appointment of district judges is done by the governor on consultation with High Court Judges by the purview Article 233(1) of the Indian Constitution. The Chief Justice of a High Court is consulted by the President before the appointment of any High Court Judge. These appointments are highly politicized and partial in many respects. The lower judiciary is under the dominance and control of the High Court. The district judges have to please the Chief Justice for their promotion as a High Court Judge. The commencement of Indian Judicial Service would surely decrease the power of High Court judges with reference to appointment and recruitment of judges.

When did it start?

The clause related to All India Judicial Service was incorporated in Article 312 (which deals with ALL INDIA SERVICES) by the 42nd Amendment, 1976. The clause specifically provides that Parliament in national interest may create judicial service for one or more states on request of the council of states. The provision clearly states that any post subordinate to district judge would not be included in the All India Judicial Service.

The creation of National Judicial Service is objected on three grounds:-

1.  Impairment of Independence of Judiciary

2.  Lack of regional language proficiency would affect the delivery of justice.

3.  It would be deterrent to the interest of those who have already entered the service.

All the three contentions do not hold water. Appointments and recruitment would not affect the independence of judiciary rather it would ensure the autonomy of lower judiciary. Secondly, it is suggested that the issue of inadequate language knowledge can be easily addressed with proper allotment of states or study of multiple languages can be included as a part of judge-training. Lastly, since it is suggested that only 25% of judges in each state would be drawn from the All-India cadre; the same would not be detrimental to those already in service.

National Judicial System vis-a-vis Civil Services

The judiciary is not considered a lucrative career by most of the lawyers. The profession fails to attract a large number of competent lawyers. This adversely affects the quality of justice in the courts, which further results in delay of justice. In 2009 there were about 53,000 cases pending in SC, 40 lakh with High Courts and about 2.7 Crore in lower courts. The two main reasons for this high pendency of cases are High vacancy in courts and low judges-to-population ratio.  In India the current judge-population ratio is 12.5 per million people where as in U.S. it is 114 per million. Presently 23% of sanctioned strength of the Supreme Court, 26% High Courts and 18% of Lower Courts is vacant.

Each year about 200,000 youngsters compete through an examination to enter services like I.A.S or I.P.S. The candidates are selected on merits and competency for a rigorous training of two years. If a similar system is also incorporated in the judicial services, well-qualified and competent lawyers could be attracted to the posts of judges. It would not only increase the judge-population ratio but would also improve the quality of justice.

 

The article can also be viewed on authors blog  

http://www.legaldrift.com/will-the-quality-of-justice-improve-by-the-creation-of-national-judicial-service/

 

Khaitan & Co has hired former White & Case New York associate Shishir Mehta as a partner in Mumbai to start up a banking and finance practice.