HUMAN RIGHTS AND SOCIAL JUSTICE by Hon'ble Mr Justice S.H.Kapadia, Judge Supreme Court of India on 13.12.2008

Chief Justice Hemant Gokhale, Justice Eswaraiah, Judge of the Andhra Pradesh High Court (my special thanks to him for coming all away from Andhra Pradesh); Justice Pradeep Kant and Shri Alok Mathur my friend who has specifically invited me to speak on this auspicious occasion.

It is indeed a great privilege for me to deliver the speech in memory of a great jurist Justice J.K.Mathur.

What we need today in India as far as the Judges are concerned is a scholastic living. As far as the life of Justice J.K. Mathur is concerned I can sum up in a sentence by quoting Albert Einstein, the famous scientist who said once, after he got the Nobel Prize, that “I would prefer to be a man of value than a man of success”. This tribute I would like to give to Justice J.K. Mathur because ultimately “value is character”.

We often speak about the Constitution of India. Constitution as a document is static. But the constitutionalism is a “Living Tree”. It is about morality. If a judge has a narrow vision of life and if he is carried away by caste, religion etc. I am sorry to say that the people's faith in the Institution will not be there in the near future. Supreme Court of India has very good reputation because of the trust it enjoys but we have to maintain the people's trust in the institution and for that I would say that these types of lectures which are initiated by the Trusts are very important and the reason being today we are living in the world of globalization. I am not referring to economic or financial globalization. I am referring to “legal globalization”. Once upon a time judges were of the view that we are not required to go into Economics, Science and any other such subject. Those were the traditional judges of the Supreme Court between 1950-60/65 but later on with the expanse and development of law, particularly in Human Rights Jurisprudence, things have changed and I shall demonstrate how the Supreme Court under Article 142 has been taking steps in that direction. If a Judge does not know the concept of “convergence” which is taking place today between Constitutional concepts, Economic concepts, Corporate concepts and Taxing concepts we will not be able to do Justice.

Friends let me tell you the remarkable achievement in England which has taken place in 1998 when the UK Human Rights Act 1998 came to be enacted. Prior to 1998 in England and even today there is this concept of “sovereignty”. Sovereignty as emphasized in England prior to 1998 stated that Parliament can enact a law even contrary to the fundamental rights or basic rights. This concept prevailed right up to 1998 in a parliamentary democracy of 500 years why? Because the Parliament dare not act contrary to the basic rights. It is the awareness of the people of England which retained concept of sovereignty of Parliament because they always believed that the rule of law meant that“the first law is to obey all laws”. In our country one rarely observes even the traffic regulations. We do not have the discipline and that has created large number of problems. What we need is a complete change of mindset, particularly if you want to have “a just society” which is the object of the Universal Declaration of Human Rights (UDHR).

I would again emphasize that the Judges should know conceptually various basic concepts in other fields and only then the Highest Court in the land and some of the Judges of the High Court aspiring to come to the Supreme Court can do justice in this rapid developing world.

What was the change which was brought in English Constitution after 1998. After 1998 the concept of “sovereignty” is not dead in England but it is downgraded and the priority is now given to“rights”. Earlier there was a concept of “ultra vires”. Now we have the concept of “modern ultra vires”. Prior to 1998 if the Act was challenged, the basic concept which the British Courts applied was what was is the intention of the Parliament. After 1998 the entire concept has undergone a change. Now the British Courts are required to find out whether the impugned law is compatible with European convention of Human Rights. Therefore the status of Human rights have been enhanced even above parliamentary sovereignty. In other words, after 1998 we have “rights” based interpretation. Today many of us are saying that the Parliament is sovereign, but they have not realised the change that has taken place pursuant to the UK Human Rights Act 1998. Friends you may ask me a question what has that to do with our Constitution, Firstly, as I said, we are living in the age of legal globalization, but the more important point is that with the enactment of Human Rights Act 1998 the concept of“compatibility” has come into force. The concept of “deference”has come into force. These concepts are required to be applied when the Supreme Court decides cases under Article 21 of the Constitution which deals with basically “right to life”. We all know that these words “Right to Life” covers several aspects including human dignity and if we are to interpret this right in future to include “inclusive growth” then we should know the new concepts which are emerging on account of the growing Human Rights jurisprudence. This is the reason for my emphasising that the knowledge of various subjects and the concepts should be known to a judge particularly in the highest court of the land.

Friends the business of theory is over. We have attended hundreds of lectures. We have given thousands of speeches. Today we are in the business of solution. This is the doctrine of “Constitutional Pragmatism”. We must solve the problems which the society is facing . But the Judges and the lawyers can do so only if they are well equipped with the knowledge of Development in Socio-Economic and Legal fields. Friends I am sorry to say in India we do not have contributions from lawyers and judges in the context of development of law. I'm very happy to attend the Institute today. I have seen the library. I would request the management of the Institute to subscribe to journals like Stanford Law Review, Public law, Harvard Law Review so that the Judges and the lawyers and professors can apply those concepts and develop it in the Indian context. I am fascinated to say that the concepts which have now emerged in England like“compatibility” are there under the Indian constitution which was inspired by the Universal Declaration of Human Rights. If I may invite your attention to the words in the Preamble of the Constitution of India, they are “equality of opportunity and status”. Friends I am proud to be an Indian because I am a judge of the Supreme Court because I got the opportunity from non Zoroastrian friends in Bombay. I started my career as a Grade IV employee at a meager salary (including my college fees) and today I am proud to say to the young people sitting here that you can make best use of that opportunity in our country if you believe that in the first instance we are Indians, we are neither Hindu, Muslim, Zoroastrian, Christian etc. Please apply that philosophy and I will assure you that with hard work you shall succeed. To the young people here, I would like to say that there is an English quotation if you want to succeed as a judge/lawyer in our profession and that quotation is:

“Work like a horse and live like a hermit”.

If you apply these standards in your daily lives you will be fulfilling the constitutional dharma and if each one of you live by the constitutional dhrama our society shall be free of discrimination and each one of you will be the role model for others and all these religious and caste conflicts will end.

Why did the constitution makers emphasize equality of opportunity and status. Many of us have forgotten to emphasise “equality of status”. The word “status” was brought in by the constitution makers because they realised that one section of the people were regarded as “untouchables” in the Hindu Religion. Therefore, the constitution framers decided that there should be the concept of “equality of status” under the constitution. Equality can be achieved if you negate certain vices from the concept of untouchability. Untouchability was the vice which needed to be eliminated from the concept “equality” which has positive and negative aspects. How was that achieved by the Constitution framers? It was achieved by enacting Article 17 which abolishes “untouchability”. Why? Because it gave status to the deprived class of being equal in the human society. Why did it provide for Article 15(4) whichinter alia provides access to education. Article 15(4) provides for “affirmative action” by the State as the Constitution framers thought that you may remove untouchability but still people may remain backward in the field of “education”. Therefore give them education as a matter of “affirmative action”. But that was not enough. The Constitution framers further realized thatnotwithstanding the education, “backwardness” can still continue if they are not given jobs in the Government service. Therefore the Constitution framers introduced Article 16(4). These are the concepts which each Judge needs to look into. Therefore, I have emphasized scholastic approach to be adopted by the Judges. If one analyses our Constitution it becomes clear that the Human Rights Act, 1998 and our Constitution have been inspired to a great extent by Universal Declaration of Human Rights 1948.

Many judges and lawyers are not aware of the scope of Article 301 which refers to freedom of movement of trade and commerce. If you read this article 301 it says in the matter of taxation when the goods enter from one state into the other there shall be no discrimination in the levy of tax and the concept of “compatibility” which UK is now recognizing the 1998 Human Rights, is well recognized by our Supreme Court in 1961 in Atiabari’s case when Justice Gajendragadkar said that if the impugned law is not “compatible” with freedom of movement of goods from one state to the other the law is bad. Kindly turn to Article 302. Article 302 says that in the matter of tax, Parliament can impose restrictions but Article 304(a) says that the State can impose “reasonable” restrictions. There is a big debate going on why the word “reasonable” is not there in Article in 302 and why is it there in Article 304. Similarly, all of us know the judgment inKesavananda Bharti’s case. Concept of “Basic Structure” isbrought in by judicial review. The said doctrine of “basic structure” has today become a maxim after the judgment inKesavananda Bharti’s case. Even the Parliament cannot abolish the “judicial review”. Again I am referring to Atiabari’sjudgment in which Justice Gajendragadkar has observed that the word “reasonable restriction” in Article 19(6) and in Article 304 empowers the Court with “judicial review”. Therefore, unless we are clear about these concepts, I am afraid we shall not be fulfilling the object for which judicial institutions are constituted.

Having said this friends let me give you a few examples on how the Supreme Court has implemented some of these concepts . Every Friday we have what is called a Special Bench in the Supreme Court. We call it the Forest Bench. It is no more a Forest Bench it covers a large number of issues, particularly socio economic issues. I will give a simple example of what we have done in recent times and for that I would like to emphasise that if a judge has got some concept of economics, accountancy along with Constitutional law, we can serve the society. A below poverty line pensioner came to the Supreme Court. He came for Rs. 75/- not paid to him. Is it not a shame? A citizen of the country who is living below poverty line has come to the Supreme Court for Rs.75/- pension per month. State says no we don’t have funds. I do not want to name that particular State. It is not the State of U.P.. But I called upon the State, please submit your financial status. I went to the web site. You will be surprised friends Centre has contributed towards the Below Poverty Line pension in crores, but you go to the web site you will not get the answer. We were surprised and ultimately we called the Chief secretary that if the Centre has devolved these funds why should the citizen not to get even rupees 75/- per month, and ultimately under threat of contempt that citizen got Rs.75/- and he continues to get. We were able to monitor because we knew what to ask. If the judge does not know the basic concepts of accountancy or finance or economics what question is he going to ask while exercising his jurisdiction under article 142. I give you one more illustration friends. In Orissa there are tribes which are living on grass. A company wanted to carry out mining operations. Today mining operation means lot of money. In most of these PILs we are required to balance the conflicting interests. On one hand, you have un-employment and starvation, on the other hand, you have the environmental concerns. There were no jobs, hospitals, schools etc. To balance these claims the Court examined the accounts of the company to find out whether the company was in the position to set aside a percentage of profits to be utilized for the welfare of the tribals. Applying the test of Segment Reporting we were able to detect the profit of about Rs. 500 cr. But for the above Standard of Accounting the profit(s) reflected would be Rs. 15 cr. A Judge sitting in tax matters knows the Accounting Standards. It helps us to decide matters in the context of socio-economic justice enshrined in the Constitution. Recently, I had to deal with the challenge to an Accounting Standard. This is where I emphasise the knowledge of the basic concepts. We have heard the name of Amartya Sen, an economist who has won Nobel Prize. In his thesis he has given example of famine that took place in East Bengal now Bangladesh. He says that famine was not on account of food shortage but on account of poor purchasing power with the people to buy. If today you really want to meet the challenge posed by terrorism, please do not go for politicization, please stand united and evolve a long term strategy to meet this monster. What breeds this monster? We all know it but I may like to emphasize that it is poverty and lack of qualitative education, which is the cause. When I say qualitative, I mean these concepts of secularism, federalism etc. are not taught to all our children. I partly blame the citizens. If 3% of our population is going to pay taxes out of which 2% are compelled to pay income tax and that too because they are salaried class then I am sorry you cannot be in a position to give best equipment to the police. You will not be in a position to provide infrastructure. We are all talking about upgrading police reforms etc. But have you ever thought what is the salary of the police constable, particularly in the States and with that salary do you expect a competent man to come and join the police force? So let us friends not only blame the government. Let us answer the root problem. If all these problems are answered then you can at least take preventive measure to stop terrorism. That is why in England and in America investigation is top class. Competent people are recruited in all these forces. They are paid well. So friends let us take the pragmatic view of the Constitution. And when you take the pragmatic view, it would be better because we would be trying to find out the solutions to the problems with which we are faced.

One aspect I would like to further emphasise. Today, under Article 21 we need to introduce the concept of “inclusive growth”. You may say that this is the concept of pure economics. It is an economic concept. How does it come in the ambit of human rights? Inclusive growth means that our economy is growing at GDP at the rate of 8% or 7%. 300 million people are benefited, 700 million people are not given the access to this benefit. This is where “empowerment” comes in. For that the people have to work. Today there is no free lunch in the society. No politician will today say that we need to control our population. But to my mind, with these poor resources if Government is required to look after such huge population, the problems are going to remain. Recently, I came across an article in Stanford Law Review which says “is the right to procreate a Human Right”. This article works on the said right as a part of Human Rights Jurisprudence. If a family which is not able to feed more than 2 children produces 6 or 7 children and if you allow that to happen are you not violating human rights? I ask a question to myself are you not obstructing the society from becoming just? Are you not creating a problem in the society? Can you achieve a just society if you are not bothered about what your children do in future or what they will face. Friends under Article 21 we have developed a concept of “sustainable growth”. What is sustainable growth in context of Forest environment etc. That concept says that if development meets the need of the present without compromising the ability of the future generations to meet their need it is sustainable growth. This is the concept of “intergenerational” equity. You have a problem of Global warming. Environment is a national asset we need to protect it. We need to take steps to protect environment as a national asset. Why? Intergenerational equity means what this generation gives to the next generation . If we are going to destroy our forests, we are going to give our next generation dry lands with shortage of water and higher sea levels. Therefore, is it not necessary for us to protect our forests? This is where the Supreme Court has laid down the concept of “sustainable development”. But how many of us are aware of it. That is where I would request all of you to examine all these concepts and apply them in your daily lives.

Even in the context of terrorism, it is International Response which needs to come in. Today this generation is facing the said problem. We have the best younger generation in the world. Please do something to protect their interests and only if you do all that we will be able to achieve a just society which is the foundation of Article 21.

Friends let me point out one aspect. Universal Declaration of Human Rights came about in 1948. During the cold war it partly failed. Russia took the view that human rights are individualistic and against socio-economic rights. Capitalist countries took the view that political and civil rights are human rights. So the tension came about during the cold war. What was that tension. It was the conflict between the individualistic rights like civil and political rights on one hand which was emphasized by the capitalist society and socio-economic rights which was emphasized by USSR. This led to tension. Ultimately, that system needed change. Globalization came. When globalization came we all know today financial crisis has come about . But see the difference . When it comes to financial crisis the world has to a large extent united, but when it come to terrorism I am sorry to say it has not. Europe is not contributing today towards counter terrorism measures, America may be, England Yes, not Europe . What is the cause, what is the reason and I am telling you that there is no blame game here. Western society has a western model of human rights whereas countries like Saudi Arabia, Iran etc. have their own model and the grievance is please do not impose your western model on us because our traditions are different, our way of life is different , our society is different. And friends I may tell you I am not getting an answer how to solve this difference which is known as the concept of“cultural relativism”. Cultural Relativism is a challenge. The only way out is that the people should know that unless they stand united we cannot defeat this ugly monster. Again I repeat that international politics should not take over and stand divided on this issue otherwise we will fail to achieve a “just society”, which is the object of universal Declaration of Human rights. In the context of “Terrorism” I would like to say that “Human Rights cannot be enjoyed posthumously”. If one wants a just society then treat people like human beings and you will get human beings.

With these words I conclude my speech paying my tribute to Justice J.K. Mathur.

Source - http://jkmtrust.tripod.com/id6.html

Whistle-blower Bill, introduced in Lok Sabha, exposes the Whistle-blowers - FRONTLINE

ON August 26, Union Minister of State for Personnel, Public Grievances and Pensions Prithviraj Chavan introduced the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, or the Whistle-blower Bill, in the Lok Sabha. Soon after, the Department of Personnel and Training (DoPT) under the Ministry uploaded the Bill on its website and invited comments from the public, to be sent latest by September 30, indicating that the Bill is not final and Parliament is open to the idea of amending it in the light of public opinion.

It is intriguing why the DoPT did not circulate a draft Bill and invite comments from members of civil society to improve it before it was introduced in Parliament. An uncharitable explanation is that once a Bill is introduced in Parliament, the government is not bound to reveal, under the pretext of protecting parliamentary privilege, what suggestions or comments it received from the public or whether any suggestions were taken into consideration. This will help the government keep a significant stage of law-making away from the public gaze, even while keeping up the pretence of involving the public.

This lack of concern for public accountability in the process of law-making is evident in the manner in which the DoPT has drafted the Bill. The Bill, as its long title suggests, aims to establish a mechanism to receive complaints relating to disclosures on any allegation of corruption or wilful misuse of power or discretion against any public servant. It also seeks to ensure an inquiry into such disclosures and provide adequate safeguards against the victimisation of the person making such a complaint. But the provisions of the Bill do not match these avowed objectives.

The main problem is with the definition of “disclosure” itself. For anything to be considered a “disclosure” under the Bill, it can be a complaint relating to an offence under the Prevention of Corruption Act, 1988, or against wilful misuse of power or discretion by a public servant (that is, it has to be shown that the public servant wilfully misused his or her power or discretion, as if misuse of power or discretion could be unintentional, too). Thirdly, such misuse should have caused demonstrable loss to the government or helped the public servant to accrue demonstrable gain. In other words, if the loss or gain is not demonstrable, then it does not qualify as a disclosure.

It is not clear whether imposing such near-impossible demands on the potential whistle-blower at the threshold stage is meant to deter him from making a complaint. Neither the Public Interest Disclosure (Protection of Informers) Bill, 2002, drafted by the Law Commission, nor the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution, 2004, has such a restrictive definition of disclosure. The Bill also brings within the ambit of disclosure complaints against any attempt to commit, or the commission of, a criminal offence by a public servant. But there may be acts that do not strictly satisfy the ingredients of a criminal offence, yet need to be exposed for the sake of the public interest.

The Bhopal gas disaster, which was a result of a series of negligent acts by Union Carbide Corporation, is an obvious example. Such negligent acts, unless they result in a disaster, cannot be called criminal offences. Yet, they could have been exposed by a whistle-blower employee of UCC before the disaster occurred, had the Indian government and the State of Madhya Pradesh had effective whistle-blower regimes in place at that time.

Ironically, the current Bill does not cover complaints against officials of private corporations or multinational companies, although the Second Administrative Reforms Commission, which was headed by M. Veerappa Moily, the present Law Minister, had recommended in 2007 that the whistle-blower legislation should cover corporate whistle-blowers unearthing fraud or serious damage to public interest by wilful acts of omission or commission. The Department of Administrative Reforms and Public Grievances has accepted this recommendation in toto, in an undated document uploaded on its site.

Limitations

Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI), New Delhi, says: “The list of circumstances under which public interest disclosures can be made under the Bill is woefully inadequate when compared with international best practice standards. The list of improper actions covered in other whistle-blower laws is much more comprehensive and not limited to pecuniary loss or gain to government.”

According to him, the Bill does not consider the possibility of making confidential disclosures about a range of violations of law and wrongful actions that may occur in the public and private sectors. The Bill seeks to protect only complainants against officials of Central and State governments or public sector companies.

While bringing State government employees under the purview of the Bill is certainly an improvement over the PIDPI Resolution, which was confined to Central government employees, the Bill is silent about the process of appointment of the competent authority to whom complaints have to be sent. Considering that the competent authority under the PIDPI Resolution, the Central Vigilance Commissioner (CVC), has not sufficiently inspired potential whistle-blowers, the Bill's move to restrict the choice of the competent authority to only the CVC and the State Vigilance Commissioners is a serious limitation.

Nayak observes, “In the United Kingdom, whistle-blowers have a choice of making disclosures about wrongdoing to the head of the department, or to a regulatory agency prescribed by the government [like the CVC] or to any other person such as a Member of Parliament or a journalist or even a civil society organisation. Similarly, in the United States, federal and State laws allow disclosures to be made to multiple authorities. Under Ghana's Whistle-blower Act, confidential disclosures about wrongdoing in government may be made to at least 18 different authorities, including the President, a Minister, the Attorney General, the Auditor-General, an MP, a traditional chieftain, the head of a recognised religious body, or even the head of the whistle-blower's own family!”

One would assume that guaranteeing anonymity to a whistle-blower is an essential aspect of the whistle-blower legislation. It is amazing that the Bill seeks to dilute even this aspect. The proviso to Sub-section 4 of Section 4 of the Bill says that if the competent authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from, become necessary to reveal the identity of the public servant to the head of the department concerned, the competent authority may reveal the identity of the complainant or public servant to such head of the department.

Nayak's initial analysis has revealed serious flaws in the Bill. He is critical of the Bill's bar on the members of the armed forces from disclosing wrongdoing in the armed forces. He points out that in the U.S., the Military Whistle-blower Protection Act of 1988, as amended from time to time, allows whistle-blowers in the Army to make confidential disclosures to members of Congress or the Inspectors General or audit officers of the Department of Defence. Whistle-blowers in the U.S. armed forces are entitled to similar protection against reprisals as other whistle-blowers.

Section 3(1) of the Indian Bill excludes not only members of the armed forces but personnel of several other agencies. Members of the forces charged with the maintenance of public order, persons employed in any bureau or other organisation established by the state for purposes of intelligence or counter-intelligence or any matter relating to such bureau or other organisation, and persons employed in, or in connection with, the telecommunication systems set up for the purposes of any force, bureau or organisation are also barred from making public interest disclosures under the Bill. This would suggest that the police force, the Central Bureau of Investigation and the intelligence wings will be outside the purview of the Bill. Thus, if a whistle-blower in any of these organisations wants to expose a fake encounter, he or she cannot do so under the Bill – which is a sad commentary on the Bill's restricted reach.

Nayak also believes that the Bill criminalises whistle-blowing rather than seeking to reward it. Section 16 of the Bill stipulates a prison term, which may extend up to two years, and a fine, which may extend up to Rs.30,000, for persons who make vexatious and frivolous complaints. But the Bill does not seek to reward a whistle-blower who makes a genuine complaint leading to investigation and conviction.

Nayak points out that the laws in vogue in Britain and Ghana do not penalise frivolous whistle-blowing. In Ghana, the Whistle-blower Act provides for the setting up of a Whistle-blower Reward Fund. If the disclosure leads to the recovery of money, then the whistle-blower is entitled to 10 per cent of the recovered amount as a reward, he says.

Another serious defect in the Bill is in Chapter V, which deals with protection to whistle-blowers. Nayak observes that it merely empowers the Central government to ensure that no proceedings are launched against the whistle-blower merely on the grounds of making a disclosure or rendering assistance to an inquiry as a result of whistle-blowing. He finds the clause on protection too general to inspire confidence among potential whistle-blowers. He suggests that India could benefit by studying similar laws available in South Africa and Ghana, which have specified the remedies and protection that a whistle-blower is entitled to. A clear definition of what constitutes occupational detriment suffered by a whistle-blower will strengthen the Bill, he says.

Source - Frontline

Access to Quality Legal Education: 3 vs 5 Years? - Lawandotherthings.blogspot.com

http://lawandotherthings.blogspot.com/search?updated-max=2010-10-06T16%3A04%3A00%2B05%3A30

I'm pleased to bring you a guest post from Kshitij Malhotra on a topic close to my heart.

As Kshitij rightly argues, we need to create more 3 year programs of a quality that matches up to the best 5 year programs. The Rajiv Gandhi School of IP law at IIT Kharagpur is a good step in this direction. DU has always had an enviable 3 year program record. And now the Jindal Global Law School (JGLS) promises to give a complete face-lift to 3 year courses.


But these schools are few and far between and we need more such degree programs.


However, I'm not so sure that Kshitij's proposal that lateral entry be permitted for graduates from other disciplines to the NLU's (in the 3rd year) is a viable one. Most national law schools do not just offer BA subjects (social science courses such as economics and sociology) in their first two years. Rather they intersperse it with a good sprinkling of basic legal subjects as well. This appears sensible policy to me, as students need some sense of the law in their first two years. A thoroughly compartmentalised BA vs LLB program defeats the very purpose of an integrated BA LLB course. And if this were to be the case, we may as well have just had separate BA and LLB courses and degrees.


Without much ado, I give you Kshitij's thoughtful musings on this theme. But first, a little background on Kshitij:


He is a qualified chemical engineer from Indraprastha University, and a student of law at University of Delhi (LC2). He is a registered patent agent, and working as a patent professional since 2006. Presently, he is involved with a start up company in Intellectual property service domain. Before working with this start up, he had a brief stint at an IP law firm, ZeusIP Advocates. He started his career from a knowledge process outsourcing company, Evalueserve.


Lack of 3 year LLB programs at top law schools: Restricting access to quality legal education


Gone are the days, when the term lawyer imaged a black robed guy sitting in a court chamber. Lawyers are now commonly seen in the carpeted bays of corporate offices. The practice has moved from saving shady criminals to overseeing merging of multi-national companies. From contending a family feud over a piece of land to getting injunctions over intellectual property infringement. Certainly, the legal profession is rapidly evolving, and so are the firms in the legal services industry. Cross-domain professionals are now highly sought. Company Secretaries well aware of business and compliance laws, Charted accountants that are versed with tax laws and PHDs that are well versed with patent laws.


Such professionals are accepted with open arms, and of course remunerated very well. Going forward, there seems to be an optimistic demand in the industry regarding such professionals. However, the concerns remain regarding the supply. The question therefore arises whether our legal education system is providing doctors, engineers, PHDs, CAs and civil administrators with enough opportunities to access quality education? The Bar Council of India, the body responsible for accreditation of courses at law schools, prescribes two streams of law courses required to be enrolled as an advocate viz. a 5 year integrated LLB degree open for students after 10+2 or 11+1, and a 3 year law course for graduates. The onus of choosing what to offer rests on the law schools.


At present, none of the top law schools including NLSIU, NLUI, NALSAR and NUJS, provide 3 year LLB programs (although initially few of the top law schools did offer 3 year LLB programs, but, then they gradually moved to the 5 year programs). This leaves graduates, and more importantly professionals, with very few options to pursue quality legal education. The reasons for not providing 3 year LLB programs are best known to these law schools. Some suggest that 5 year programs are easy to mange, and students are able to save a year in completing their education.


However, most often than not lack of interest in students for 3 year LLB courses is quoted as an excuse. But, is lack of interest really a justified reason to restrict these programs? Recently, IIT Kharagpur started a 3 year LLB program restricted to engineers, doctors and post graduate in sciences, and it has been a success. The 3 year LLB program at University of Delhi (the only program that has some credibility and quality) has always been well attended by professionals from civil administration, police, corporate, engineering, and information technology, and most of them enter into the legal profession as a litigator or a consultant, after the completion of the program.


Jindal Global Law School, probably the first law school set up with a vision of providing globalized education in India, has also instituted a 3 year LLB program. 3 year LLB programs at other universities, such as Banaras Hindu University and Banglore University, are also seriously attended. This clearly shows that takers of 3 year LLB programs have always been present.


Another reason given by administrators is that professionals do not consider study of law seriously, and only see it as a part time vocation. Law is serious business, and market forces cannot be allowed to govern studies in law. This argument though partly true, is not true in its entirety. Lackadaisical attitude has been prevalent in many students regarding legal education, wherein working professionals pursue LLB programs with a typical “ho jayega” (we will manage it somehow) attitude, and wherein graduates pursue LLB programs with a typical “kuch nahin se kuch to sahi” (better study law then do nothing) attitude.


However, this does not mandate closing the doors of quality education for professionals who are serious about studying law. I am sure, if given an opportunity of studying at top law schools of the country, a professional will definitely think of means to balance professional occupation with studies, and even might think of taking a sabbatical. Also, when a professional decides upon pursuing legal education, then his/her decision is based on much more deliberated grounds as compared to the decision of a typical teenager, who usually enters these top law schools right after completing schooling.


Also, opening up 3 year LLB courses does not mean compensating standards of education, such as relaxing minimum attendance criteria etc. Neither does it mean mandatory setting up of evening classes. Maintaining the standards of education is always in the hands of administrators. However, having evening classes scheduled for students, who are needy and want to work side by side for their sustenance, might not be a bad idea. Offering late evening classes has been a known concept at the B-schools in India. University of Delhi successfully runs an evening program at two of its centres. The onus of meeting the expectation of a law program is completely on the students enrolled at the program. In fact, the strict curriculum and attendance policies (some of which requires a minimum attendance of 75 percent) will automatically instill a sense of urgency and seriousness, if lacking in enrolled students.


The old Bar Council of India (BCI) rules (rule 5, 7 and 8 of section A) mandated all law schools to provide an option of lateral entry in their 5 year LLB courses, wherein graduate and post graduate students can enter the 3rd year of such programs. Notwithstanding, the concept of lateral entry might not be an attractive proposition anyway for professionals as this would mean studying with fellows, who are easily 5-6 years junior to them. This at least provided flexibility to professionals, post graduates and graduates to enter laterally into the 5 year LLB programs. However, these rules have been scrapped by the BCI and the latest set of BCI rules (rule 13 of Section A) prohibits such lateral entry and exit. In fact, the latest proposed rules of the BCI suggest implementation of an age bar to the entry of both 5 year and 3 year LLB programs. As per the proposed rules, no candidate above the age of 20 would be admitted to the 5 year LLB program, and nobody above 30 years of age will be allowed to join the 3 year LLB program. Imposition of such bar is not at all mandated.


On one hand, policy makers consider law to be sacred and a profession of the mature, and on the other hand, they are restricting entry of experienced and learned administrators, police officers, doctors and scientists into the profession!


Therefore, a review of 3 year LLB policy at top law schools is highly desirable. Further, a review of lateral entry to 5 year LLB by the BCI is also necessary as this might provide means for professionals and graduates to pursue quality legal education. Opening up evening classes on the lines of law program at University of Delhi can also be looked upon. Until then, it might be fair to say that our legal education system, which is supposed to imbibe the philosophies of justice, might be ignorantly or intentionally imparting injustice to law aspirants, and especially to a class of professionals including civil administrators, engineers, doctors, PHDs, CAs and CS. Excluding such a class of professionals will not only ruin the chances of taking up the level of legal profession in India, but might also ruin any chances of having domino effects on the standards of our judiciary.

Landmark Judgments as per Justice J S Verma - Outlook.com

Justice J.S. Verma has deliberated on close to 470 cases since 1990. A few of the significant ones:

Manohar Joshi vs Nitin Bhaurao Patil, 1996:
The Mumbai High Court order declaring Manohar Joshi’s election as void was set aside. To the contention that communal speeches by party leaders during Joshi’s campaign constituted corrupt practices under the Representation of People Act, the Supreme Court held that the consent of the returned candidate or his election agent had nowhere been pleaded in the petition.
Jamaat-e-Islami Hind vs Union of India, 1994:A tribunal order endorsing a government notification which declared the Jamaat-e-Islami as an "unlawful association" was set aside. In accepting the notification, the apex court held, the tribunal should have had access to the confidential material on which it was based.
S.R. Bommai vs Union of India, 1994:A  nine-judge bench set aside the Presidential proclamation under Section 356(1) relating to Karnataka (April 21, 1989). The court held that the President could dissolve a state assembly only after parliamentary approval. He could suspend the assembly, subject to approval by Parliament, within two months. Even so, the proclamations were subject to judicial review.
Ramakant Khalap vs Speaker of Goa, 1993:
In response to the Mumbai High Court’s dismissal of the appeal made by an MLA (Khalap) against the order of the acting Speaker revoking the disqualification of chief minister Ravi Naik by the Speaker (since removed), the court held the acting Speaker’s orders void and upheld the dis-qualification order of the previous Speaker.
Nilabati Behra vs state of Orissa, 1993:
Awarding Rs 1.5 lakh as compensation to Nilabati Behra, whose letter about the death of her 22-year-old son in custody was turned into a writ petition, Justice Verma observed: "The right of compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interests and which present for their protection the powers of the state as a shield."
Sarojini Ramaswamy vs Union of India,1992:
In response to the plea made by the wife of Justice V. Ramaswamy, a motion for whose impeachment had been moved in Parliament, the Supreme Court held that even if the President removed a Supreme Court justice under Article 124(4), the concerned judge was entitled to a judicial review.
K. Veeraswami vs Union of India, 1991:
In response to the petition (filed by a former high court chief justice) that he could not be proceeded against under the Prevention of Corruption Act (PCA), 1947, a Supreme Court bench had decided that a superior court judge was a public servant and could be prosecuted under the Act. Justice Verma, however, dissented, saying that the amended PCA, 1964, did not apply to Supreme Court and high court judges.


Source - Outlook.com