29 Jan 2008

CLAT site becomes functional

A lot of traffic in the past few days had come on the blog from search engines, looking for "www.clat.ac.in" but unable to find it online. Now that it has become operation, it is worthwhile to inform those reeling hard to crack the Common Law Admission Test (CLAT) which commences a new dimension of legal education reform from this year.

Interesting to note is that while the site has indeed become operation, t
he only thing it carries is a background to CLAT (on the front-page itself) and a PDF file entitled the Brochure to CLAT. However instead of a brochure, it looks to be just an information memorandum containing an introduction to the Law Schools taking part in CLAT instead of any worthwhile information for approaching the CLAT, to which the suggested answer seems to be that the site would be updated soon.

To sum up the substance of this 48 page brochure, the following colleges and courses for which CLAT would be required to be given [the list seems to be in the chronological order in which these colleges were established and became functional];

  1. NLSIU, Bangalore : both Undergraduate and Post-graduate
  2. NALSAR, Hyderabad : both Undergraduate and Post-graduate
  3. NLIU, Bhopal : both Undergraduate and Post-graduate
  4. NUJS, Kolkata : both Undergraduate and Post-graduate
  5. NLU, Jodhpur : Undergraduate only
  6. HNLU, Raipur : both Undergraduate and Post-graduate
  7. GNLU, Gandhinagar : both Undergraduate and Post-graduate

Further, besides the above seven, the following three law schools would also base their admissions on the basis of the CLAT score;

  1. Chanakya National Law University, Patna
  2. Dr. Ram Manohar Lohiya National Law University, Lucknow
  3. Rajiv Gandhi National University of Law, Patiala

The Convenor of the CLAT had his office in NLSIU, Bangalore and is accesible via phone or e-mail, as follows: Ph: 080-23213160, 23160532, E-mail: helpdesk@clat.ac.in

As for the respective details and the number of seats, etc. and other details, the brochure requires reference to the sites of the respective law schools. The admission forms are not posted yet, but would be soon available, given that the date for the first CLAT has already been declared as
11th May, 2008.

Wishing all aspirants luck for the CLAT ...

Updates till 27.01.08

It has been a long time since the last updates came (but that doesn't mean we missed any) and so the title of the post has been rechristened from updates for last week. But then the essence remains the same.

1. Relating to the last week's tardy trip in Sensex, our Law-and-Other-things blog brings a nice post on the role of regulation and relating it back to the turmoil in the market. While putting across the reasons (not just legal ones though) for the dip, it goes on to discuss the ongoing debate on regulation and analyzes the prospects and pitfalls of the proposal in the light of various issues facing the tiding up of the stock markets. A nice read in all. [Click here for the full post]

2. Then this piece from Times of India editorial has been quiet flashy for me to pick it up. Speaking on the culmination of the Republic Day, Swaminathan Aiyar looks back to find that the strengthing pillars of Indian democracy have been the non-democratic institutions (like the Supreme Court, Election Commission, etc.) of the country. In retrospect the article examines the role played (and that too an independent one) by the judiciary (for illustration) in ensuring that the democratic circle goes a full circle. [Click here for the full post] I have my own views on the theme but then this is not the place to put them; will post elsewhere. But, there are interesting comments on the article on other blogs and I liked this one really [theSocialBlog].

3. This nice video posted on The Conglomerate seeks to explain the sub-prime crisis in simplest of terms. A must watch. [click here for the video]

4. And this is good news for all law-schoolites and those aspiring to take law as a career. Taking cue from other professions, joining law associates are now increasingly being offered higher salaries and perquisites by the law firms. As global legal markets find
India a leading contributor to their revenues, firms in India have gathered pace and are wooing talent from law schools to match up with the demands which the sector is offering. [To read this full post from LiveMint, click here]

5. Good news coming from international quarters, which
India rising up in its commitment to the enforcement of Intellectual Property laws. As SpiceIP reports, India has got the status of 'International Search Authority' which implies that now Indian companies will be able to apply for their patent to be recognized internationally by just filing in India. A considerable development in the light of the Patent-Cooperation Treaty. [click here for the full post on SpiceIP]

6. And then our TaxProfBlog comes up with an interesting compilation of views, research and comments on the role played by 'rebates' in a tax system. Gathering up comments from various interest groups, it comes out to be a nice starting point for any budding researchers to start with their research on this area. [click here for the full compilation]

7. Another interesting compilation comes from LawLibrarianBlog with post on "Should Law Professors require Student Blog Participation?". A very nice topic by itself and a worth look at. The same blog also notifies about a Law Professor for Moritz Collete of Law who has attempted to teach him class through blog. Teaching this paper on Death Penalty, he has hosted a blog for posting all the power-point slides (meant to be illustrated in class) and also as a platform for discussion of the students as well other interested participants. A nice initiative but makes me wonder how he would have convinced the college administration to allow the same. [click here for the blog]

8. This post on digitalizing legal scholarship touches my heart really. I can very well remember the time spent on removing the dirts on all AIRs with journal sections,
SCC, Indian Bar Reviews, JILI and all other law journals for research on anything and everything for the matter was not really available for search online. All these journals are published in a manner which are known only to the publishers and almost no online information (most journals do not even have a web-page, forget expecting a table of contents version) about the publications. This post on digitization (though the idea has only half heartedly been pursued) is a worthwhile indication to those calling for legal reforms to look into this direction as well. [click here for the post]

9. For all Indians having a cue on the Harbhajan-Symonds affair in
Sydney, this is a must read. Though the technical analysis of the same I expect only from law students, but then this one page document containing the full decision of the statement given by Mr. Mike Proctor, the Match Referee for the Sydney India-Australia Cricket Test Match (the second one in the series) is a worthwhile read. [click here for the full statement]

10. Again post from LawAndOtherThingsBlog (they really cover good ones), the issue at stake is the Supreme Court's decision on co-habitation amounting to marriage. Dealing with the legitimacy of a child born out of a non-married cohabiting couple, the Court's ruling [read here for more] has been critically examined in the light of the existing personal laws in the country. In all a nice comment. [click here for the full post]

11. An important ruling on Doctor-Patient relationship, this newspiece covers the recent decision given by the Supreme Court entailing the responsibility of the doctor to seek content of the patient before any treatment and also to disclose necessary and important information relating thereto. [click here for the full newsitem]

12. As a sequel to the sub-prime mortgage crisis faced by the financial institutions in the contemporary scenario, this interesting piece of thought examines the positioning of the law firms in this crisis. [click here for the full analysis]

13. Then this interesting news-piece of thought makes me feel; better late than never, for the Bar Council of India has proposed raising the norms of legal education in
India and also making its implementation stringent, The Hindu reports. [click here for full report]

Then one of our authors, Deva, has become an active contributor to India-Mutiny and has been writing really well on issues facing the country. Also, Raghav's another article posted on SSRN has been recommended by a fellow blogger. His article on Compulsive contracts has been picked up by LegalTheoryBlog. [click here for the full post]

Also, the blog has been listed on IZEA Ranks.

26 Jan 2008

Legal Adda: Another online portal devoted to law

"Welcome to Legal Adda - The Legal Community in India. LegalAdda seeks to build a vibrant community of legal professionals in India."

This is how the the latest additional of online legal director in India introduces itself. Inagurated by the Union Law Minister himself, instead of a resource directory, Legal Adda looks more like a networking site directed exclusively towards law students. With its featuring of the forums, interest groups (a feature which is yet to take off), a directory of events (which also requires furnishing), job-opportunties (on last check none were listed) and scholarships, it looks more to me like a follow-up development of LawEntrance.com along with few features of LegalServiceIndia.com.

While the opening page offers much hope and success, it hardly seems to have gained any popularity (upon which it relies for its successful functioning) for the entire effort seems to be based upon a peer-to-peer support structure with law students helping each other by sharing their project works, papers etc. rather than a content provider supported by the organising team. And it is this very aspect about the site which makes me sceptical about its success for it does not offer much initivative or apprisal for law students to come up and share their ideas and versions; something which has already been tested without much apprecation on sister websites like legalserviceindia, manupatra, etc. for the lack of referee-appraisal or editorial approval makes them a dump yard of all sorts of cut-copied-pasted works which lack the ability to get published in worthwhile journals.

Plus, on last access, half of the links did not work out the way they should (with the content listings blank). It seems like the organising team was in a hurry to upload the site; a reason which gains strength from the fact that the supporting organisation was Microsoft and it brought in the Law Minister to announce its IPR Scholars and so thought it wise to schedule the launch along with.

I hope LegalAdda does not turn out to be one more additional to the B-grade law content holding websites publishing novice and un-reliable content, just like the earlier websites on same theme and philosophy.

Elementary Legal Education- Time to Make a Move?

Well, I believe that this idea must have been mooted in India before my writing this post. Nevertheless, I want to swing the intellectual limelight anew on this issue and wish that it receives attention on the boards of Knowledge Commission and other higher functionaries very soon, for the simple reason that riding on Abdul Kalam’s ‘Wings of Fire’, we are going to be a economically developed nation in the near future. Look at developed nations around the world and you will find that a population informed of its legal rights and duties is indispensable for such a transition; be it the Englishman with a belief in Rule of Law (as Dicey, a great English scholar, has put it) or the 'litigation-oriented' American (as everyone puts it).

One personal reason for making this call for elementary legal education is a realization on my part of the importance of knowledge of ‘law’ in a citizen’s life and of the futility of all course contents that we make students (like me) to mug up till the 12th standard. I am not denying the practical utility of the latter in our nation’s life but it has to be realized that all our endeavors are aimed at ‘happiness’ (of one and of all) and this whole system of governance has been devised as a means to that end. We as citizens go through the rigours of elections to devise laws to maximize our happiness and thus, we cannot afford to live in the blissful state of ignorance of law. I will try to explain my contention as lucidly as possible in the following paragraphs.

Beneath the complex system of laws that govern the citizenry, there lies a mass of different desirable social objectives to be attained through a series of structured legal norms. In every society, more so pronounced in a democratic civilized society, these norms keep the cohesive fabric of society intact by either proscribing pernicious conduct or regulating and facilitating everyday transactions between any citizen and the society. Laws affect every aspect of life by defining the precincts of ‘rights’, ‘freedoms’ and ‘liberties’ and prescribing a code of directives on fundamental aspects like birth, marriage, maintenance, proprietary transactions like will, gift, sale, mortgage. It prescribes the content of contractual documents and lays condition for legal enforcement of such transactions. Violation of legal provisions entails liabilities in form of penalties or by rendering transactions ineffective. However, the legal system does not recognize the ignorance of legal provisions as a defence to any defaulter. In such a scenario, a legally informed citizenry is essential if laws are to have any meaning just like a game where the players should be aware of the essential rules.

The Indian democratic structure is premised on the concept of ‘Rule of Law; a fact which the Supreme Court reiterates every time it acts as the ‘sentinel on qui vive’ (guardian) for the Fundamental Rights of the citizenry against governmental transgressions. However, the important question is how many of the 1.2 billion people know what Rule of Law is? Even if we leave apart this question as one concerning a hyper-technical legal term, how many educated people really know about the content of some of the basic laws? Sadly, a country which claims to be governed by rule of law and not of men , scarcely recognizes that the whole democracy, about which there is so much hullabaloo, is only a institutionalized means of law making and law implementation. It is essential to seek what the real nature of law is. Those who perceive law as a mere subject in which only advocates and jurists should indulge in, most conveniently forget that law is just another form of a social norm having the authority of State behind it and made through the democratic process we have in place today. How can a society ensure order amongst its members if the majority is unaware of the rules of conduct? How can a country which claims to be the most populous democracy in the world take pride in its development if majority of its citizens are legally ignorant? Can the Indian State still boast of a golden fabric of ‘Rule of Law’ when its student community is blissfully ignorant of the system in which they are going to earn and live?

The Civics textbooks at school level offer only a dribble of knowledge about the law making process and some fundamental rights, which does not help as no one can really ‘learn’ anything significant in the cram-and-vomit culture prevalent today; of which I have been a part very recently. To crown it, a majority of students are driven into the rat race of engineering through premier institutes like IITs and NITs or medical education through CPMT. Nobody takes the dull Civics textbook seriously and the only important subjects are Science and Mathematics. Our system may be producing many good engineers and doctors but where is that single legally educated responsible citizen coming out from schools? Far from being an unsubstantiated claim it is a sad realization, even on my part, that this sort of education stunts growth of thinking and learning capabilities. It rips apart our constitutional dream of engendering a scientific temper and a spirit of inquiry. But since the majority is not aware of what Article 51A is all about, no one is bothered.

Amidst a culture where education has been commercialized, where it saps the intellectual freedom out of an individual through a rote routine and where a frenetic rat race for engineering and medical education through premier institutions has driven the students in a whorl of coaching and tuition centres, something little in us seems lost. It should not be forgotten that the life and liberty of every individual is linked to ‘law’. But how effectively can a person protect the former if he has no knowledge of the latter. Take for example a simple case where a college student involved in a small brawl is arrested by the Police, handcuffed and paraded through the campus to set example for others. The boy’s dignity has been besmirched by handcuffing which is not permissible except in extreme cases. The boy, if legally ignorant of the basic right, will do nothing while the same boy, if aware of the right, could have sought damages from the authorities for an undue incursion on his right to live with dignity. More than the content, what is required to be taught is ‘respect for laws’. People violate traffic rules, not solely because they are not aware of them, but more because the knowledge evokes no sense of responsibility in them. Though many may differ on this point, yet it is quiet right to propose that respect can be engendered if the minds are conditioned in a proper way during the childhood. The issue is not a trivial one but it goes to the roots of what is going wrong and offers us an opportunity to enkindle a national debate about elementary legal education.

I know the post has been a long one but I firmly believe that I have driven home a point.

25 Jan 2008

Law Commission of India: A silent but diligent worker

Alright, I confess. This is not a particularly contemporary topic. Nonetheless I write upon it because it Law Commission has been an essentially active player of legal reform in India, though it has not been given that same level of prominent as ought to have received for the works it has done. So here I seek to entail the various tasks performed by it and the role it has played in reshaping Indian legal diaspora.

To being with the historical context of the present day Law Commission, one is surprised to find that this scheme of having a commission (though thought to be temporary but one having attained permanence) to examine and analyze not only the provisions of the existing laws but also to look into the fact of emerging issues with a critical view directed towards reform of the system. With time though the name has continued, the institution has seen a wide variance and as far as India is concerned, the roots of the present day system go back more than three centuries when ad hoc institutions were set up under the Royal Charter to examine into
various issues surrounding law and its administration but then the first such institution was established in 1834 under the Royal Charter. This first Commission is accredited with the seminal work of Indian Penal Code, which saw the light of the day in 1860 and has still carried on the bulk of criminal law legislation for India, without showing any signs or age. It is true that some sections of the Code have been removed to be enacted as separate Acts but then the bulk of original structure has stayed and continues to guide the Indian judiciary.

Indian Evidence Act, Civil Procedure Code, Transfer of Property Act, Indian Contract Act, Indian Trusts Act are some of the prominent and continuing legislations enacted on the recommendations of the succeeding commissions. These seminal works and their time-tested success impressed the newly formed Government of India after independence that it decided to continue with the tradition and finally a Law Commission was established for India in 1955 headed by the then Attorney General M.C. Setalvad (his book titled "My Life, law and other things" is a worth read for any aspiring law student seeking to emulate skills at the Bar).

The first law commission in a short period of three years submitted 14 reports, most on really important and business-shaping provisions. Thereafter we have had sixteen more law commissions (so the temporary permanence tradition has continued), all headed by illuminated legal luminaries all in all which have released 201 reports till 2006. [click here for the entire list] Some of these have been really good ones (though woefully all of them have not been implemented and given full effect to) and have sought to mould the existing legal and consequent societal framework in the country. To name a few of my personal favourites, I would list the following;

  • 20th : Law of Hire Purchase (1961) [though the Act on Hire Purchase was passed based upon this report, surprisingly it was never notified and therefore never came into effect. If my understanding is correct, I believe that this Act has lately been repealed as well.]
  • 29th : Proposal to include certain social and economic offenses in the IPC (1966) [a really interesting piece on how punishment affects social behaviour]
  • 35th : Capital Punishment (1967) [a must read for all criminal law buffs; an interesting account of an interplay between various theories of punishment and criminology]
  • 49th : The proposal for inclusion of Agricultural income in the total income for the purpose of determining the rate of tax under the Indian Income Tax Act, 1961 (1972) [though this proposal has not been implemented till date]
  • 57th : Benami Transactions (1973) [which changed the Indian financial landscape]
  • 63rd : The Interest Act, 1839 (1975) [which lead to a new Interest Act of 1978]
  • 76th : Abitration Act, 1940 (1978) [which came to be implemented in about two decades with the 1996 Act on Arbitration and Conciliation]
  • 108 : Promissory Estoppel (1984) [a good read overall and nice insight into the Transfer of Property Act]
  • and many others ...

The Eighteenth Law Commission (and the present one) was instituted in 2006 under the Chairmanship of Justice Dr. A.R. Lakshmanan (one of the few judges before whom I have had the privilege of appearing and have sweeter outcomes as well). It has got an extensive work frame and mandate but then I am sure it would not be a huge task given the level of erudite scholarship which goes into the functioning of the Commission.

With time, the Law Commission has got its own website [click here for the website] and maintains an impressive content of all reports right from day one of the Commission post-independence. It even carries a link to explain how the Law Commission works and is an interesting insight it offers. I really admire the motto of the institution "Reforming the Law For Maximising Justice in Society and Promoting Good Governance under the Rule of Law" which I believe does reflect the spirit with which it has been working heart and soul to uplift the face of legal understanding in the country and committed towards improving the framework within which we operate and perspire.

It has even started running an internship programme and I believe an internship with the Law Commission is really a worth while opportunity for a grooming law student to gain meaningful insight and learn the approach towards examining legislation and working the way through them. The views of couple of my friends who have already have had the opportunity to intern with the Commission has really strengthened this understanding of mine and I am sure the present day law students would really look forward to atleast one engagement with the Commission.

I am personal fan of the work which the Commission has been doing and really salute it for the pioneering effort it has been doing and is committed to continue with reforming the law, legal scholarship and even the legal institutions.

23 Jan 2008

Microsoft Intellectual Property Scholars announced

Building up the pool of legal talent in India (not surprisingly most of which migrates to other countries in search for more and better opportunities), the first winners of scholarships awarded by Microsoft have been announced. Supporting development in legal arena in its field, Microsoft has launched this “Microsoft Intellectual Property Scholar Program” two years back in 2006 with an “initiative set up for capacity building and creating a pool of specialists in the area of IT and Intellectual Property (IP)”, as a press release from Microsoft India announces.

Originally starting with NALSAR, the scope of the program has been expanded nation-wide to almost all major law colleges and universities across the country. This year 33 students have been granted a scholarship (which amounts to Rs. 80,000/- per student which is not a major amount to pursue masters degree abroad but yes is substantial for seeking opportunities in India itself) and these 33 students come from 11 colleges, which are;

  1. Army Institute of Law (Mohali)
  2. Government Law College (Mumbai)
  3. Hidayatullah National Law University (Raipur)
  4. ILS Law College (Pune)
  5. NALSAR University of Law (Hyderabad)
  6. National Law Institute University (Bhopal)
  7. National Law School of India University (Bangalore)
  8. National Law University (Jodhpur)
  9. National University of Juridical Sciences (Kolkata)
  10. Symbiosis Society's Law College (Pune)
  11. University School of Law and Legal Studies, GGS Indraprastha University (New Delhi)

The awardees were felicitated by none less than the Union Minister of Law & Justice, Mr. H.R. Bharadwaj (another committed person to legal education in India, the details of which I will write some other time) along with Managing Director of Microsoft India, Ms. Neelam Dhawan. Speaking on the occasion, the Minister was quoted as saying, "The goal of promoting intellectual property law represents a fundamental attempt to promote the overall technological, innovative and artistic capacity of the nation. Also, a stronger IP legal community in India helps us take on violations of our intellectual property abroad, ensuring Indian inventions are protected and worked domestically and internationally” “I am happy that today Microsoft has increased the scale of the program to a national scale to cover most law schools and universities."

The selection for these scholarships was made by the IPR team of Amarchand Mangaldas (law firm) office. However what surprises me is that the names of the award winners have not been made notified in the release. I took time to search for the names of the awardees in Google but to no avail. It would be really worthwhile if someone could inform me who the lucky ones are !!!

Indian Kanoon: An amazing online law resource for India

If perhaps the government was not up to it, a fellow Indian finally set himself up for the challenge and did put it up. Welcome to the world of digitalized legal information on India. A student of University of Michigan, as I am informed by my fellow-bloggers, Sushant, has launched a search engine (which looks just simple and friendly like google) to search for and about Indian laws. In fact it is not surprising that the launch of Indian Kanoon has already been written about by pluggd.in and featuring on wikipedia and technorati

But then this doesn’t stop me from putting my own thoughts and views on the development. Given the fact that I have been an ardent supporter of technology and its interaction with the legal systems [see related posts; Installing Technology in Courts: A more forward, and India Code: A good legal resource] and in fact really appreciate the Knowledge Commission’s view to this regard as well, it really feels good to find significant work being done to the direction of making laws more searchable and convenient to work on.

And therefore we have with us, IndianKanoon.com which promises us to remove two structural problems with our legal structure. To quote

While it is commendable to make law documents available to common people, it is still quite difficult for common people to easily find the required information. The first problem is that acts are very large and in most scenarios just a few section of laws are applicable. Finding most applicable sections from hundreds of pages of law documents is too daunting for common people. Secondly, laws are often vague and one needs to see how they have been interpreted by the judicial courts. Currently, the laws and judgments are separately maintained and to find judgments that interpret certain law clauses is difficult.”

And to address this anomaly, IndianKanoon seeks to achieve the convenience scenario bybreaking law documents into smallest possible clause and by integrating law/statutes with court judgments. A tight integration of court judgments with laws and with themselves allows automatic determination of the most relevant clauses and court judgments

Well I am not sure what that meant technically and how that it done, but in so far as it is doing the same, excellent. For convincing myself, I ran a search with search term ‘dowry’ and it did bring out the most relevant results. First it gave the definition of dowry under the relevant enactment and then the case laws upon the point. Then another definition under a different enactment and cases thereunder. Excellent I would say for the reason that it not only categorizes content but the search results are also amicably admirable

Nonetheless I tried it again and ran searches with search term “income tax”, “value added tax”, “raw material” and it did indeed turn out with excellent results. This makes me totally agree with the last line of description of the search-engine “Hope Indian Kanoon helps you in your search for Indian laws and their interpretations.” Way to go Sushant !!!

Knowledge Commission of India: Pioneering Legal Education Reform

If asked to mention one of the achievements of Manmohan Singh’s government at the centre which truly defy the test of times and come at par with other eccentric moves towards development of the country, I would be quick to point out the establishment of the ‘National Knowledge Commission of India’. It has really been a boon under the wide powers vested under the Constitution with which the executive governments in India have come out with such commissions on regular basis, which have led defining movements in Indian history and I am sure that the Knowledge Commission would only further the trend. Taking cue from its predecessor (the ‘Planning Commission’, which again is only an executive body and not envisaged under the original Constitution), the Knowledge Commission has already set to task the efforts required to attain its objectives, which interestingly are very wide worded and if given their full effect, would lead India nothing short of a super-brain-power.

Defining its objectives, the website of the Commission sets out the following;

The overarching aim of the National Knowledge Commission is to enable the development of a vibrant knowledge based society. This entails both a radical improvement in existing systems of knowledge, and creating avenues for generating new forms of knowledge.

Greater participation and more equitable access to knowledge across all sections of society are of vital importance in achieving these goals.

In view of the above, the NKC seeks to develop appropriate institutional frameworks to:

  • Strengthen the education system, promote domestic research and innovation, facilitate knowledge application in sectors like health, agriculture, and industry.
  • Leverage information and communication technologies to enhance governance and improve connectivity.
  • Devise mechanisms for exchange and interaction between knowledge systems in the global arena.

And amongst this what I like is that in this incredibly short period of two years (yes, it is short compared to the time the various inquiry commissions etc. take to come out with reports which by the time are published are already obsolete), the Commission has already submitted five major reports on equally critical and important areas of concern for the country and has given its recommendations on a whole lot of areas, all of which are promising and require a careful handling in order to translate them into harbingers of growth for the country.

But then again (as I always believe in the justification approach) what is it in terms for law that I mention the Knowledge Commission on this blog? Well, it is for the Recommendations given by the Commission on ‘Legal Education’ in the country. [click here for full report] And that I really look forward for the recommendations to be implemented, I might as well go on to mention a few of them, which I think are really pivotal to bring out the best in the already intellectually sound legal fraternity in India.

The first key recommendation is the setting up of an ‘Independent Regulatory Authority for Higher Education’ or simply IRAHE. I really admire the reason for various reasons. First and foremost is the fact that this comes from top legal luminaries of India. Engaged for the preparation of the report were seven top legal academicians and luminaries of India all of whom have a laudable history of devotion and commitment to the profession. So the suggestion is worthwhile to pursue. Second of all, the experience of handling of legal education by Bar Council of India (BCI) in conjunction (but really this has not been of any meaning at all) with the State Bar Councils. The BCI has already got its hands full with more work that it can do, which ranges right from the regulation of professionals at the bar but also ensuring the standards of legal ethics being maintained in the courts (something which I am yet to hear of about in a positive tone). And then also for the fact that the second generation reform of law education, which began with the setting up of a lone law-dedicated school at Bangalore, have also yet seen its logical end and require a major thrust of centralized planning in this field or else the numbers (with which the law schools are coming up in the country) would surely grow out of proportion and it the focus may shift from rising of professional standards to divergent paths, something which is already coming up with the law schools offering novel degrees and experimenting with the legal education all by themselves.

The next recommendation is ensuing a ‘rating system’ for institutions catering to legal education; a suggestion which I think might turn out to be meaningfully meaningless unless implemented in its spirit. Meaningless because without any such ratings being given by a governmental agency, the IITs and IIMs and the medical colleges in the country are already performing well and in fact have worked hard to achieve a prestige and reputation to earn the rating points they deserve and the same might not be forthcoming if there exists an agency to rate the institutions for it would rate even the undeserving ones and might even malfunction unlike rating by market forces which simply is based on strengths and prospects alone and not by influential contacts in an agency.

But then I am a personal fan of the Knowledge Commission not without a reason. The recommendations relating to ‘curriculum development’, ‘examination system’ and ‘measures to attract and retain talented faculty’ are few of those which are think are not only worthwhile but also the need of the hour for this profession which is facing change at a rapid pace. [In fact I had an occasion to write about the falling standards of teaching profession in India. click here for the post] Then there are other recommendations as well such as; catering to the need for ensuring proper insistence of research standards and creation of Centers for Advanced Legal Studies And Research (CALSAR); making arrangements with financial of legal education (which would really do a world of good to the law schools which are able to work at break-even alone because of the un-forthcoming donations and sponsorships); bringing a sense of internationalization in the way things take place; using technology for dissemination of legal education; etc. are also not just worth pondering over but to be given full effect to right from now.

I felt heartily well to have read the report. This reminded me the words of Prof. N.L. Mitra who spoke to us on our first day at law school (that being 15th July, 2002) that what we had seen in our limited experience with law was set to change and change in a big way; with technology pioneering the way and an all-rounder and dedicated approach required for law, there was no place for mediocres in the profession. I am sure that his vision of legal profession in the country would be done a lot of good with the adoption and proper implementation of these recommendations.

17 Jan 2008

Updates from last week

In one of my earlier posts I wrote about the recent happenings in the legal circles, selected ones only though (for so much happens that my feed reader brings me more than 1000 posts for each day from the selected blogs and sites I have subscribed to). But then the response which I received was such that I decided to make this a permanent feature in this blog (we are yet evolving as a serious contender for a law blog, remember???) and so here I do the honours of the second post in the series.

First things first. For everyone's knowledge, past deeds of two fellow contributors have caught up to them and have been written about by other bloggers;

  • Raghav's article on surrogacy law has been appreciated and recommended by Law and other Things blog. [click here for full post] Nice one Raghav.
  • And then, Faiz, an Indonesian law student in India has written a post on Social Change, quoting a long back written article of mine in Indian Bar Review. [click here for full post] It sounds really nice to find your name taken by other and that too unknown people in acceptance or recommending your words.

So much for the self praise part. Now for some serious business.

1. A serious looking blog on legal education has come up from
Albany. Titled as Best Practices for Legal Education, it carries good discussion on the various nuances of legal profession as emanating from the education. It may be a different factor that it relates primarily to legal education as imparted in the United States but than given the fact that the profession world over in integrated, it does have important ramifications for all. A nice read. [click here for the blog]

2. And then there is this post bringing out the
US version of the 'secularism', which reports a Federal judge declaring distribution of Bible in schools as unconstitutional. [click here for the full post] Just a quick word on this that in India it is a different version of secularism, with State abstaining itself completely from promoting any particular religion but also not interfering in the religious practices of the citizens, which are a part and parcel of the fundamental rights under Article 25 et. al of the Constitution of India.

3. Then this is a post on SSRN's recent list of top law professors. Paul Caron reports [click here for full report] on the list complied by SSRN and gives his insights on the top 100 tax law professors of the world. However I have my own views on the list compiled by SSRN for it compiles the same on the basis of the number of papers and abstracts posted by these professors on SSRN and the number of downloaded recorded against them. Clearly a bias can emerge if some institution seeks to increase the ratings of any given professor for its just takes a simple search option and download.

4. I found this one quiet interesting, not only from its contents but also from me drawing a simile to this with the
Newton's law (don't know which number it is) of motion that to every action there is an equal and opposite reaction. Given the fact that the United Kingdom has conquered and ruled over various parts of the world at a given point of time, it is not in centre stage to receive it back what it gave. First from the Indians, who have outnumbered the number of professionals here in UK working in financial, medical and almost all sectors and then as this post reports, US law firms coming over to acquire UK law firms. [click here for the full post]

5. On a lighter note, the next post deals with the advantage which a lawyer of a top US firm (Jones Day, if you have heard the name) brings out on writing a blog and going ahead with it. Just the other day I had posted about a similar news item but then this one is a bit mixed content with both professional and personal advantages brought over. A good read. [click here for full article]

6. And speaking of plastic money, UK Revenue authorities (HMRC) came out with their version of adopting to the change (and they really are quick in that regard) and out came the proposal so pay taxes by credit card. A probably hilarious but practically well suited idea, but for the woes of the banking companies. Nonetheless HMRC has come under criticism for this plan for God knows that
UK citizens can and in fact will criticize almost anything and everything on earth. But still a nice lesson learned on the ways of bringing laws closer to the people. [click here for full post]

7. This report is really a good one for all those fascinated and interested by the idea of JURIMETRICS and econometrics. I bring to their notice this Report prepared for US Congress on "How Crime in
United States is measured". Its a nicely written report and perhaps carries lessons for their Indian counterparts who still dwell upon outdated statistical means for compilation of crime data. [click here for full report]

8. Related to this report on measuring crime, I came across this site which publishes online source book of Criminal Justice Statistics. Containing detailed analysis of the various ingredients and factors affecting the criminal justice system, this is a must read for any student of criminal law. Hope the law professors are listening. [click here for the main page]

9. Also worthwhile to mention is this blog pioneered by three Harvard Fellows, and now professors in their own right at various law schools, on "Information Law". I mention about it for various counts. Firstly it draws upon the
Harvard Law School programme on 'Internet and Society', second because all three are professors in law and finally because this caters to a niche area on which not much material or thought is available. "Info/Law" as they call it, offers a worthwhile RSS feed to subscribe to. [click here for the blog]

10. This one is devoted to Law Resources. The Universal Digital Library is a worthwhile try to all those searching for projects/assignments or even topics for their upcoming initiatives. Hosting a compilation of ancient and modern literature on almost all issues, its a worth a try. [click here for the library]

Then there is this speech delivered by Ben Bernanke, Chairman of the US Federal Reserve in which he brings out what he perceives as the Federal Reserve's perception of the financial markets and monetary policy. Primarily an economic article but still I mention it for it carries a huge underlying message for financial institutions and the legal institutions grappling with the menace of sub-prime mortgage crisis and its spill overs. A must read for all economic and financial markets buffs. [click here for the full speech]

16 Jan 2008

Child Labour in India: Reality bites ...

It has been a decade since we came up with the law for the prohibition of the child labour; it prohibits the child labour only in the hazardous labour. In a welcome move the central government on 10th October, 2006 expanded this ban to Child Labor in Homes, Dhabas, and Restaurants/shops. But, thanks to the ineffective enforcement mechanism in place, we still live with this phenomenon, in the much proactive civil society, as if those poor children are invisible. Who is to be blamed is not the question, as the blame will end up as always upon the state machinery for not having an effective enforcement mechanism in place. This is just to sensitize ourselves about the phenomenon, the way we all live is not to change, but just be considerate enough to these children who we see daily, in the tea stalls, in the stationery shops, restaurants etc (may be at our own home). They are severally ill-treated in front of us, we just be the silent spectators, as if that is none of our concern. True, it is none of our concern, in the modern world, what happens to the other, whether that person is in an accident on the road, or in an emergency situation , we all are busy in our own lives and the intricacies.

Last year in the month of May, at a local tea shop nearby Nugambakam, Chennai, where I was putting up, I came across the plight of child labour just before me( it is not that I haven’t came across child labour before, but this was the first time I took notice of their hardships). I use to frequent there for a cup of morning tea or the cheap break fast. This small kid, will be aged between 7 to 10, slim in built, with a smiling face use to always come to deliver the food. In the beginning I never noticed this kid. It has been because of his mannerism and the peculiar way in which this child used to interact with you, makes you felt of his presence. While I was having food, suddenly a cricket ball came into the tea shop, as any other child, he was curious of this ball and just gazed at it for about a minute, walked towards the place the ball was lying inside the tea stall, took it with a smiling face gave it to the child, almost of his age only, who came running in search of the ball. For this act, which doesn’t effect his work, or rather has affected the business or any factor that could have provoked a shop keeper, that fat chap came down from the place he was making tea, to give a tight slap on the head of this helpless child, and with a grin he went back, as if he has won the heavy weight championship, throwing some abuse at the child. The other customers were there to laugh at this child. I stood there as a mere spectator, not knowing what to do or say, finished my tea and just walked out.

On a Sunday, by offering him a chocolate I tried to strike a conversation with him. Later on during the conversation I came to know that this is his first chocolate in his life! The whole conversation became a real eye opener for me.

He has been working at this small tea shop for about two years. I tried to ask about his parents but he kept silent. He has been constantly beaten up and harassed by the shop keeper and one more helper with him. Most of the times he gets beaten up for no reason, the shop keeper and his helper vent there frustration on this poor lad. Adding to this is the bad language showered upon him. Even the customers often beat up this kid for being late in serving the food by just a few minutes.

This is not an isolated incident. Even other eating places, which have chain of hotels in the Chennai city, have rampant cases of child labour(not only Chennai, this is common to each and every corner of India, I had came across child labour being rampant at an interior village, which is some one hour ride away from Bhopal) . Another incident which shocked me was when I visited my friends place. An eleven year old kid was employed as a house hold worker. He supposedly also cooks food. I tried to strike a conversation with that child also, but my friend’s mother rebuked him as if he has done a great sin by talking to me. One cannot be better educated than the parents of my friend, makes it evident that it is not all about education. We still live with this; I couldn’t say a word there.

Look at the above incidents which happened to me are clear violation of the existing law. Progressive step of expanding the scope of law to include Child labour prohibition law to include the child labour at hotels, dhabas and as house hold workers is much appreciated. But the same old story of legislations continue, though the laws are present, no one seems bothered about the enforcement, they are just meant to be black letters at the Government Gazette. Just removing the child labour is not easy, but at least these children should be treated in a better way, some mechanism for education, part-time or night-school could be worked out. Events like the above discussed would have happened to the life of all of us. We just live by it. What can be done is a question which has the biggest question mark ever.

Law Makers (Law Series - 5)

Well there has been quiet some time that I wrote the last post in this series and then inner guilt made be come back to it. So here goes.

Law makers are the creepiest bunch in the legal system all together. We as those selecting the law makers are always skeptical about them and then we do not really have a choice. For in a democracy, law makers are people whom the citizens choose from amongst themselves through elections and give them a fixed term to legislate. In other versions of p
olity, say kingship, the King appoints as his council people he thinks wise and smart enough to understand the problems and perceptions of his subjects and make laws to deal with the same. Nonetheless, since these days there hardly remain any significant number of such political structures in the world and democracy is here to stay, I would deal with democratic institutions in the later parts of the post.

To begin with, we need to dealienate the role and place of the institutions coming into play. As any political scientist would put it, the legislature, judiciary and the executive, the three wings of the State. But why do I put judiciary first before executive when generally its the other way round. Because, ... because of their identification on the basis of the functions they perform. According to May (not the calender year but the name of a famous legal historian, ever heard of May's Treatise on Parliamentary Privileges), Legislature is that part of the State which performs the role of laying down rules to be enforced and complied by the citizens. Judiciary is one which is there to resolve the disputes amongst the citizens as well amongst the institutions. All the remaining functionaries of State are classified as the Executive. So technically even the Election Commission of India would be categorized as a part of State Executive, though a political scientist would frown over it.

So we have an institution which performs the role of laying down rules, or laws as I have put them in my earlier posts. [click here for what is law, why law] These laws are binding on the citizens for various reasons. Firstly because under the Constitution they have agreed to abide by and follow the laws in word and spirit. Second because these laws are a manifestation of the popular will (or 'General Will' as Rousseau puts it) as legislature represents the majority of the people and therefore what they say is considered to be coming from the people for themselves.

The above would be the simplest understanding of law makers but then there are issues involved as we tread a higher level. And the issue of separation of powers comes first. This relates with the idea pioneered by French political thinker Baron de Montesquieu, who based it upon (later found flawed) understanding of the British Parliament (but surprisingly the concept he pioneered stayed even though its premises was incorrect). He advocated that it would not only be wise and proper but also in the best interests of democratic values that the three wings of the state be made isolated from each other such they could work independently and also there could be a mechanism for checks and balance amongst themselves. It was pivotal for ensuring good governance.

So we have an institution which is devoted to making laws (i.e. legislature) and an institution which implements these laws (i.e. executive) and another institution which ensures that these laws are made and implemented with the spirit and allowed perspective under the Constitution of the State (i.e. judiciary). Therefore we have the power vested within a highest court of the State to declare the law made by legislature as unconstitutional being deprived of the inherent competency in the legislature (i.e. 'ultra vires' the legislature or simply put, beyond the power of the legislature given the limitations imposed under the Constitution) or for the reason of being a colourable devise perpetrating a fraud on the Constitution (this I would put as an innovation of the Indian Supreme Court and in the correct perspective). No wonder the United States Supreme Court (that too way back in 1803) declared in Mabury v. Madison that law in
United States was what the Supreme Court said the law was.

The other issues associated with law makers, relate to the area of competence which the Constitution allots them; for example the Union Parliament in India is competent to make laws which are envisaged by the Constitution as matters relating to and of national importance (as under List I of Schedule VII) whereas there are clearly identified matters relating to state perspective and importance that are to be legislated by the State legislative assemblies. Then there are some matters which are left for the third tier of legislative (but basically self governance related) system of Panchayats wherein even they can legislature rules for their areas.

Similarly in the
United States we have the doctrine of enumerated powers wherein the US Congress has the power to legislate upon the areas enumerated under the US Constitution whereas all other areas are vested to be exercised by the component states of the US federation. This is totally unlike Britain wherein all legislative powers are vested in the Houses of Parliament, which also suits the country given the small area is has to think off and given the lack of hetrogenic disparities as compared to India and US.

An essential feature of the making of the laws is the procedure for making them. Again, this procedure may either be prescribed by the Constitution or may be determined by the law-makers themselves. For example, in India while the Constitution prescribes that the law-making process shall set into action by the presentation of the ‘Bill’ by a member of the Parliament (called ‘Private Member Bills’) or by the Government (called ‘Government Bills’) and when is the law considered to have been made (in case of India it is when the Bill is passed by both the Houses and is signed by the President), the rest of the procedure is self-determined by the two Houses (i.e. Rajya Sabha and the Lok Sabha) and is termed as ‘Parliamentary Procedures’ (a huge code in itself). The procedure for law-making in the United Kingdom is similar to the above to a large extent with a series of well defined rules meant to ensure that the law-making procedure follows a full circle before they come to be implemented.

What we have hitherto discussed is essentially about the law-making powers and procedures in democratic jurisdictions. The state-of-affairs differ when it comes to other forms of State. For example, in Kingships (though pure Kingships are rare to find these days) the laws are still made both theoretically and practically by the King-in-Council which takes into account the needs of the governed subjects. The ways laws are made in such countries is purely the discretion of the King, who may or may not choose to follow self-imposed rules of good governance.

Apart from these domestic or national law makers, we also have a new group known as international law-makers. This has arisen on account of a new creed of international institutions which make binding rules which the independent nations are obliged to follow. While the rules made by earlier international institutions (such as the League of Nations etc.) were considered to be ‘soft law’ and therefore only of persuasive value, the later era of international institutions (such as the WTO, and arguably to some extent even the United Nations) have ensured that the rules framed by these institution are made binding on the Members and are followed with uniformity through out the jurisdiction of these countries. With the membership of these international institutions covering almost all countries of the world, they are increasingly been argued as international law-makers. How far it is true and how far not is currently within a subject-matter of intense scholarly debate but practically speaking, the world order has changed a lot since the dictum of these institutions has come to play.

14 Jan 2008

Patents of Pharmaceutical and health issues in India

The Patent Act was amended in 2005 by the Amendment Act, 2005 which brought within the purview of the Patent Act, product patent. Product patent was introduced in order to meet a WTO commitment to recognize foreign product patents. The signing of the Doha Declaration forced India to reformulate its patent law, by amending Section 3(d) of the Patents Act, 1970 that contains a key public health safeguard. The patent law does not allow patents merely on the “discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process.” Patents can be awarded only when there is a substantive improvement of the existing drug formulation, something ‘new’ in the right sense of the word. India's recent position on patents means that it is going to make its products extremely expensive and out of reach for its own people and their brethren within the developing world. The pharmaceutical industry produces high quality products of almost all therapeutic groups and exports the generic produce to the developing and developed countries at most competitive prices. The developing countries are now apprehending difficulties in importing pharmaceuticals from India because of the tight provisions in regard to the compulsory licences for effective role of the domestic enterprises in the patented products.

The government rejected the patent application for the cancer drug Imatinib mesylate, marketed under the brand name Gleevec/Glivec in many countries to Novartis in January 2006. A possibly scary outcome was prevented: in countries where Novartis has obtained a patent, Gleevec is sold at $2,600 per patient per month. In contrast, the generic versions of Gleevec are available for less than $200 per patient per month in India.

Dr. Yusuf K Hamied, Chairman and Managing Director of Cipla Limited and a leading scientist in his recent Paper ‘Trading in Death’ has made strong observations on the new Indian Patent Law keeping the critical health scenario in India in view :

“The truth is that health in India is in a permanent and perpetual crisis. The disease profile is as follows : 80 million cardiac patients, 80 million afflicted with mental illness, 60 million diabetics, 50 million asthmatics, 50 million hepatitis B cases, and one in three Indians is a latent carrier of TB. The World Bank has said that India will have 35 million HIV cases by 2015, or approximately half of all the AIDS cases in the world. Given these facts, the patent regime in this country should be devised so that the utmost priority is granted to securing the people's rights of access to affordable and quality healthcare, without monopoly”.

Thus, the much awaited pronouncement of the Intellectual Property Appellant Board on the Novaritis and Gleevec matter, which will lay to rest India’s stand with respect to the obligations that it needs to meet under the WTO and TRIPS agreements as well as the Doha Declaration.

Isn’t this clear enough for, the Indian Legislative to wake up and take care of its own?

11 Jan 2008

PIL to strike off 'Socialist' from Preamble to Constitution of India

Supreme Court have dismissed a PIL filed with the plea to remove the word 'Socialist' from the Preamble of Constitution of India (for more information click here). The PIL was filed by a Kolkatta-based NGO.

The word Socialist was introduced to the Constitution by the Forty-second Amendment in the year 1976. The main contention of the PIL is on this fact that this word 'Socialist' was not a part of the original Constitution that had been drafted by Dr. B.R. Ambedkar and the Representation of People's Act, 1951 prescribes all the political parties to subscribe to Socialism,even though their political agenda is different (This is as per Section 29A(5) of the Representation of People's Act,1951, this Section deals with the registration of the political parties with the Election Commission of India). As per the news report the Senior Advocate Fali S Nariman, who represented the petitioner, told the court: "It is contrary to the Constitution and to its democratic foundations that political parties be called upon to swear allegiance only to a particular mindset or ideology." Nariman also submitted that this amendment of the Preamble amounts to violation of the Basic structure.

Deciding the matter, Supreme Court rightly dismissed the PIL on the ground that socialism is defined as a means of achieving public welfare. This is quite true as Socialism understood in the Constitutional law and Indian context is different from the brand of the Communist parties, it is furthering the Neheruvian political vision of the greater good of all and the concept of welfare state.Chief Justice K G Balakrishnan, have pointed out this fact : "Why do you take socialism in a narrow sense defined by communists? In broader sense, it means welfare measures for the citizens. It is a facet of democracy."

Also the PIL has now become more of publicity interest litigation for the NGO's and other so called public spirited persons to make name, this kind of futile matters are brought before the Supreme Court, wasting the precious time of the Supreme Court of India, which has the maximum number of cases pending before, when comparing with the highest forum of justice of all the countries in the world.