Since the Modi Government case to power, there have been successive increments on taxes levied upon cigarettes. eaollowing a strong stance against smoking, the Modi Government has brought forward several regulations such as increased warning labels and preventing sale of single cigarettes to prevent individuals from smoking. These measures have found a general acceptance from the society as smoking is considered, rightly so, as harmful to an individual.

Freedom of Choice

The entire debate on cigarette smoking belies a deeper underlying debate on the restriction by the State and individual freedom of choice. Even assuming smoking is seriously harmful for an individual, allowing the State to curtail it confers upon it the right to prevent an individual from exercising his freedom of choice to his own detriment. Bestowing such power on the State is antithetical to democracy. The entire concept of democracy including the formation of State is dependent on the individual exercising his freedom of choice. One of the fundamental and irrefutable assumptions of democracy is that an individual is the best judge of her own well-being and thus she has an unfettered right to make her own choices. If the State is allowed to restrict the sale of cigarettes merely because it is harmful to an individual, exercising her freedom of choice and choosing to smoke them, we are essentially allowing the State to encroach upon our fundamental freedom of choice. This is a slippery slope as we are letting the State be the judge of our well being and thereby allowing the State to impose upon us its opinions and perspective. The State may, in future, also interfere in choice of marriages, employment, and education of an individual to ensure that her choices are not “harming” her well-being.

While the State cannot prevent individuals from making their own choices, the State does exercise the right to restrict such choice but only in the greater interest of the society. Since responsibility of the State is only limited to ensuring the welfare of the public collectively and it owes no obligation to an individual, the rights awarded to the State is also limited to the public as a whole. It is therefore neither the right nor the responsibility of the State to ensure the well-being of every individual. Colloquially, a State cannot exercise any control, and should completely unconcerned, over the action and inaction of an individual as long as the only person he harms is himself. Therefore, it can also be argued that a State has no right to punish an individual for attempted suicide, as the only party being harmed is the individual himself.

Since, in smoking, the individual primarily harms only himself, the State has no right or responsibility to regulate or restrict the demand for cigarettes. The manner of smoking might be restricted so as to prevent passive smoking and other harm to the public but regulating the consumption of cigarettes with the intention of influencing individuals into smoking less is beyond the scope of power awarded to the State.

Cigarettes and other Narcotics

Reverting to cigarettes, it is important here to draw a distinction between cigarettes and other narcotics. As mentioned above, the State is responsible to ensure the welfare of the society at large and can do so even at the cost of the freedom of choice of individuals. All narcotics can be divided into two categories: one that compromises the decision-making power, mens rea, of the individual and other that does not. Narcotics that compromise the decision making power of an individual, makes him volatile and unpredictable. Since under the influence of such narcotics, he exercises no control over his actions, he can pose a danger to the society without even being capable of having a specific intention to commit a crime, that is, mens rea. In layman’s terms, as long as the individual, under the influence of the narcotic, is not an increased danger to public safety and public security, the State has no right to restrict the sale of that narcotic. Cigarettes have not been shown to increase the risk to public order and security from an individual who takes up smoking.

Restrictions by the State

State is therefore only permitted to restrict the use of narcotics or the manner of use of narcotics if it is against greater public interest. For example, the State can create laws that prevent smoking in public places citing the requirement of a clean environment, free from passive smoking, for the public. It is also well within its rights in increasing the warning labels on boxes of cigarettes to help individuals make more informed choices, which is not the same as restricting their choice, and further dissemination of knowledge falls under the domain of public interest. However, State cannot create regulations with the only intention of reducing the sale of cigarettes. Therefore, increasing taxes to indirectly restrict the sale and consumption of cigarettes is a violation of the fundamental right to choice afforded to every individual in a democracy. Further, preventing the sale of single cigarettes and increasing legal age to smoke merely with the intention of preventing individuals from smoking can also not be permitted.

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This article is written by Diksha Chandok,  a student of Amity Law School.

QUALITIES OF A SENIOR ADVOCATE

Section 16 of the Advocates Act, 1961 states that there shall be two classes of advocates, namely, senior advocates and other advocates. A lawyer, with his consent, may be designated as senior advocate if the Supreme Court or a High Court is of that opinion that by virtue of his ability, [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.

Collaboration: Capability or ability to show case your talent to multi-party work environment and this process shows your talent of working well in a team as well as it sets a collective contribution so as to satisfy the client. The main aim is to settle the ego and positions of each other to reach the maximum outcome.

Time management: Law demands hard work and hard work needs time and with that it also needs to prioritise their work, task and also delegate the work.

Credibility: Credibility is based on trust. The keystone of you career is built on this level of trust with your colleagues, clients, judges and sometimes even opposing counsel. But this quality or a trait which is not by birth but it is earned with time. The only effective way to build your career is trust and human interaction is a way to maintain it or destroy it. In this profession, one should be a man of words.

Confidence: Both personal and professional confidence is needed to become a senior advocate as analysing power of your decision time, advantages and disadvantages should be high. Confidence can be seen within yourself and it define you as you walk and talk. Even your gestures play a major role.

Attention to detail: While drafting any paper, misplace of single word can convert the meaning of the sentence. An advocate must have an accurate approach towards their work. Any mistake application can lead to rejection of your application.

Experience: Experience speaks. With your practise experience comes. It is one of the traits that a senior advocate has and through this experience an advocate can handle all the cases, circumstances and even all the unwanted situations. His handling power becomes prominent with comparison to others.

Logical Thinking: A good lawyer always keeps his personal life separate from professional life and they usually are not emotional. But they need to understand the feelings of the other person and apprehend their issues. This trait is very important your personality. Your ability is tested when you can think in any circumstances or situations without even consulting your associates and then present that case in your favour in a reasonable or logical manner so as to win your case. Never take your opposite counsel personally because it’s about your client not about you and always be harmonious even with opposite counsel also.

Self control: Whether your case is on a negative track or a positive track control on emotions, expression and thoughts is also essential. You always need to think before you speak. If words are beneficial they can be harmful too.  .

Stability : A senior lawyer always have a stability in this thoughts as well as in his career. He can tackle every situation in a peaceful manner and have a conversation calmly without any aggression. Stability and maturity in professional or personal life comes with experience.

 Difference between Senior Advocate and Junior Advocate?

1. A senior advocate in general is based and judged on age and experience of a particular legal profession. It is also defined in Advocates Act as stated above. While a junior lawyer lacks experience and does not have much idea of how to tackle things and go around with them.
2. Senior advocate has to follow a separate code of conduct. It is different from other lawyers.
3. General people see an aged lawyer with good practice and experience as a ‘senior lawyer’ while a fresh lawyer needs to learn so many things from the senior lawyer and had to grasp some skills.
4. Devotion and years of practice is the key behind the success of a senior lawyer while a junior lawyer lacks this skill and quality.
5. Senior advocates are prohibited from doing some kind of legal work like drafting, etc while junior advocates have no such prohibition.
6. The status of senior lawyer is designated to them by the Supreme Court or High Court on the basis of merit and seniority.
7. The court can give this status to any advocate but with their consent if it is in the opinion because of his ability or special knowledge in law.
8. A saving provision has been laid down with respect to the advocates who are right now senior advocates and who will continue to enjoy the status of senior
9. A senior advocate is prohibited or banned from accepting some kind of legal work. For e.g. drafting, draw pleadings or affidavits,
10. A senior advocate is not permitted to appear without an Advocate-on-record or without any junior.
11. A senior cannot file any pleading or represent his client neither can draft an application by his own handwriting.

But this does not mean that it gives special favour or do any discrimination and if it does then it will violate Article 14 that is equality and Article 18 conferment of any title of the constitution

Conclusion

Senior advocate is recognition of his skills, experience, knowledge and expertise. If one is aspiring to become a senior advocate, then it needs lots of sweat taking hard work and with that special knowledge in the field of law. But only hard work is not the key to success with that you also need to do some smart work. Among that- building your communication skills, advocacy skills, counselling skills and use of your brain in multiple directions.

To become a senior lawyer and a have a special ability is not so easy task. Experience is one of the major factors which creates your confidence and leads you to the success.

[1] The Advocates Act, 1961-chapter 3

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This article is written by Mayank Labh,  a student of NALSAR Hyderabad.

The life of the pavement dwellers is tragically interesting. Most of what is an integrated part of the life of pavement dwellers is the dust and at times mud in the rainy season, the squalid environment, the scornful passer-by and a growing fear of “accidents” and dangers to their life arising from those so-called accidents. The fear is such that it won’t be surprising for them to say while wishing good night that “Hope, You won’t get killed today.” However, what is striking is that they seem to be content and accept it.

One such fateful night was when Salman Khan’s hit his car on the intervening night of 27  and 28 September 2002 and “accidentally” killed a guy and injured four persons. The wheels of justice were set in motion with its defining feature of slow pace. 13 years on, He was held guilty and it seemed to us that the wheels of justice move slowly but it makes sure that it grinds finely. However, soon on the same date of conviction, he is granted an interim bail. Next day, he got his sentence suspended. The wheel of justice is still moving in the pursuit of justice but the sounds it is making is telling something else.

How are we to make sense of these judicial developments on this “Hit and Run” Case? Is the court within its jurisdiction to give the bail on the same date? If yes, then why is it denied to the common man who have to perish in the jai? Should we consider this quick delivery of bail just as a judicial aberration?

Power of the Court to grant Bail

Bail means an order of release of a person from prison and forms an integral part of our criminal justice system which assumes every man innocent until (conclusively) proven guilty. However, it is not an inherent right particularly when it comes to non-bailable offence and culpable homicide of which Mr. Khan is accused is a non-bailable offence. Under section 437(2) of non-bailable offence, it is the discretion of the court to grant bail in such cases provided that if there is a reasonable ground to prove that he is guilty of an offence which is punishable with death or imprisonment of life and secondly if he had been guilty of crime of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years then the court cannot grant bail.

Moreover, when a court gives bail for non-bailable it has to record his reasons for doing so. The ground given by the court is that he had been handed only two-page operative part of the verdict and not a detailed order. While the question of giving it on this ground is in itself debatable the question that must be asked is how Salman already knew of the fact that he won’t be given the detailed order for no reasons other than this was contended by his lawyer. Was it the case that there were no pending bail applications in Court?  Were all the clerks, judicial officers waiting to dispose of  Salman’s bail petition over the other cases? Are there any

No such grounds have been mentioned in the Cr.P.C which deals with the procedural aspects of Criminal Justice System. So, in the absence of normative framework, can the law prioritise matters of the powerful as against those of the weaker sections? These are the questions that must be answered.

Brouhaha overlooking another crucial substantive aspect

The irony of the law is that for poor people the question of granting of bail petitions has always given them pains. While in this case where the bails are granted they do not get justice but the fact is that the records of the court say that such grant of bail is the privilege of only rich and powerful case. Be it the case of 2G scam accused or the case of Sanjay Dutta. The case of poor people tells another story. Even though, myriads of court judgements have led the poorest to either get the bail or released on personal bond but this has not been implemented effectively. According to NCRB, 66 percent of prisoners are under-trials and out of them 2000 are languishing in jail for more than five years. Prominent reasons for the large number of under-trials in India is the inability of the poor people to pay the money for surety, their ignorance of their rights and a painful slow police investigation and delay in the delivery of “justice”.  This makes the plight of poor people unaltered. So, given the overall bias against the poor and marginalised in the criminal justice system, there have to be specific and institutional mechanisms to ensure that poor people are informed about their right to free legal assistance, about bail procedures and their rights as undertrials. Only then can we hope of some positive change in the life of poor people and the people who sit and sleep on the pavement and still remain content.

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This article is written by Vasu Khera.

Let’s start with a basic. What is a search warrant? A search warrant is a court order that a magistrate, Judge or Court issues that authorizes law enforcement officers to conduct a search of a person, location or vehicle for evidence of a crime and to confiscate illegal items or evidence of crime, if they find any. In order to get a search warrant, the police must convince a judge that there is evidence of a crime at that place and if the judge is convinced, he shall issue a warrant and the warrant must be very specific, as it should clearly state where exactly the search should take place, including a specific date and time. In India,  Article 19 (Right to Freedom) and Article 20(3) (Protection against Self Incrimination) of the Indian Constitution give protection to the accused person against testifying against themselves which implies protection of citizens from unreasonable searches.

The power to issue search warrant should be exercised with all the care and circumstances. According to the provisions of the Criminal Procedure Code, search warrant can be issued under specific circumstances. Three of the circumstances are covered by section 93 which provides:

1. (a) Where a court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been addressed will not produce the document as required by such summon.(b) where such document or thing is not known to the court to be in the possession of any person, or(c) where the court considers that a general search will serve the purpose of any inquiry, trial or other proceeding under this code ,it may issue a search warrant.

   2. Where the court specifies in the warrant the particular place or part to which only the search shall extend.

   3. Nothing contained in this section shall authorize any magistrate other than a district magistrate to grant a warrant to search for a document, parcel or another thing in the custody of the postal services.

   4. A warrant for search of a place suspected to contain stolen property, forged document can be issued under section 94.

   5. If any person is confined under such circumstances that the confinement amounts to an offence, a search warrant shall be issued for the person so confined. This has been provided by section 97.

   The law usually makes an exception for hot pursuit as Section 165 of the code has been enacted as an exception to this general law of searches because it is recognized that in certain exceptional emergencies it is necessary to empower police officer to carry out searches without first applying to the courts for authority.

   So, the answer of the question as to whether police can search your house without warrant is “Yes”. The police can enter your private residence or office without a warrant, but only under very limited circumstances.

The circumstances in which a police officer does not need a search warrant to conduct a search are stated in section 165, and these grounds are as follows:
1) Whenever an officer in charge of a police station or a police officer making an investigation has a reasonable grounds to believe that anything necessary for the purpose of an  investigation into any offence which he is authorized to investigate may be found in any place and that thing cannot in his opinion be obtained without undue delay without a search, such officer may search for such thing in any place within the limits of such station.

2) Police officer proceeding under sub section (1), shall if practicable, conduct the search in person.

3) If police officer is unable to conduct the search in person and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to make the search and order him to search for such thing in such place.

4) If a police officer remained outside the house while the search was being made inside by some subordinate officer, the search was not held to be illegal.

5) Copies of any record made under sub section (1) shall be sent to the nearest magistrate empowered to take cognizance of the offence.

The question arose before the Hon’ble supreme court of India as to whether issuance of search warrant infringes fundamental rights and the Hon’ble apex court held AIR 1954 SC 300 that a search and seizure is only a temporary interference with the right to hold premises searched and the articles seized. Hence, no question of violation of Article 19 is involved. Also search and seizure of documents from accused does not amount to infringement of fundamental rights under Article 20(3) of the constitution.

As a search warrant is drastic invasion upon the privacy of a person, the code has imposed certain limitations upon this powers:
1) The document or the thing being searched for must be distinctly specified.
2) A magistrate other than a district magistrate or a chief judicial magistrate cannot issue a search warrant with a respect to a document of postal authority.
3) The magistrate must exercise his judicial discretion while issuing search warrant.
4) Search and seizure should be made in compliance with the provision to section 100 of Cr.P.C.

Unless the fact-pattern fits one of the exceptions discussed above, a warrant is required to police to conduct a search. But police may not use this as an arbitrary power  like as if the police search your home and a court says that the search was unlawful, any evidence they seized during search can’t be used against you in court and  some rights are given to an occupant like person can ask for identification and explanation as to why they are at your location and can also restrict the search to the area specified in the warrant or if they search in an area where they are not supposed to or not listed in the warrant then person can challenge the search.

However, in reality, police in India is known to use the power given in Section 165 in a very wide manner to fish for evidence in houses of any suspect or non-suspect, and sometimes even as a tool for harassment and oppression. Due to the general language of Section 165, police can first search your house on a whim and subsequently validate such search retrospectively if the Station In-Charge backs up the search.

It is not a good idea to restrict the police from searching if they demand to search your house or office even if they do not have an warrant to do so, since they can use force with impunity and later on justify the search under Section 165. They can also arrest you for obstruction of a police officer, which is an offence.

At best, you may demand that a police office be present during the search. You can also demand that respectable civilian people in the area be present during the search. Also, the police should prepare a seizure list and make you sign the same.

The real danger is that one may plant evidence against you during a search and police may use this against you in a case. This is why, if possible searches should be video recorded.

If search is not video recorded and it appears that evidence has been planted against you – the best recourse you have is in the court of law, and it is unlikely that you will be able to reason with the police.

It is possible to demand that your lawyer, if immediately available, be present during a search. In fact, it is a great idea to have a good lawyer present during a raid or search of your premises.

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This article is written by Debolina Roy, a student of UPES Dehradun.

The National Judicial Appointments Commission Act, 2013, introduced in the Lok Sabha on August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad, in conjunction with the Constitution as 121st Amendment Bill, 2014, established the National Judicial Appointments Commission (NJAC). NJAC will be responsible for appointment as Chief Justice of India and other Judges of the Supreme Court (SC) and Chief Justice and other Judges of High Courts (HC). The NJAC Act was bought into force on 13 April 2015. However, new appointments to High Courts and the Supreme Courts are not being made because of the petitions filed against NJAC.

The composition will be, a six- member panel, headed by the Chief Justice of India and which will also include two senior most Supreme Court judges, Union Minister of Law and Justice and two eminent persons nominated by a committee comprising of the Prime Minister, CJI and Leader of Opposition in Lok Sabha or leader of the largest opposition party in the Lok Sabha. Whenever a vacancy arises in the SC or HC’s, the central government will make a reference to the NJAC and it will make recommendation for the appointment of such. A person cannot be recommended for the appointment if any two of its members do not agree to such recommendation. After such recommendation the President may require the NJAC to reconsider the recommendations made by it and if NJAC makes a unanimous recommendation after such reconsideration, the President shall make the appointment accordingly.

N.H. Hingorani, senior advocate of Supreme Court of India has written much about how the collegium system of judicial appointment is constitutional invalid. As per Article 124 (pre-amendment)  in the Constitution of India, every judge of the Supreme Court shall be appointed by the President with the consultation of the Judges of SC and HC as seems necessary to the President and also the Chief Justice and similar in the case with the appointment of Judges in HC as stated in Article 217, where the President has to consult the Chief Justice of India, the Governor and also the Chief Justice of the HC for the appointment of the Judges. In the case of Supreme Court Advocated- on Record Association v. Union of India, it was held that the Chief Justice of India will have the primacy in all judicial appointments and no appointment can be made by the executive that is the President against the CJI’s assent. Thus, the collegium came into being, consisting of the CJI and four senior most judges of the Supreme Court of India. The collegium system has been criticized for its impracticality and opaqueness and improper implementation. Therefore, the government argued that the NJAC will bring an end to this problem of the collegium system and will strengthen the independence of the judiciary and not weaken it.

But the fact cannot be overlooked that NJAC is a pathway through which the executive gets its say in the appointment of judges in SC and HC and though the CJI and other eminent judges are included along with two other eminent person, the collective opinion of the three judges could anytime be vetoed out by the other two members. This clearly shows that the judges and CJI will lose their say in the appointment encroaching upon the independence of judiciary. The Constitution though has given power to the President for the appointment but only after the consultation of the CJI and in the present upcoming system the two eminent people is big question. Though the say of CJI’s opinion will be taken into consideration in the appointment of the ‘two eminent persons’ but the presence of Prime Minister and leader of opposition will have an upper hand. The person may know nothing about the working of the judiciary and their appointment by the politicians will be against the purity of judicial standards, which is the cornerstone of judicial independence, as said by the senior advocate Rajeev Dhavan.

A reform similar to this was recently tried out in France in a couple of Tribunaux correctionnels (criminal courts), introduced trial by a jury consisting of six members of the public and three magistrates. But in 2013, the socialist administration of Francois Hollande decided to scrap this reform because it was expensive, slowed down the judicial procedure and did not produce any significant change in results.

Similarly the present government of India is trying to introduce a reform consisting of the voice of eminent person but it may not be a good approach. Advocate Prashant Bhushan, counsel for  Centre for Public Interest Litigation (CPIL) also had the opinion that making NJAC operational will be a cumbersome process, rules will have to be frames, jurists to be selected. Scraping the 22 year old collegium will be a change but according to my personal opinion it will be an encroachment upon the independence of judiciary, moreover the Parliament already has an upper hand in the removal of judges through the Constitution and granting power to make appointments even will be against the very nature of the concept of three branches of government – executive, legislative and judiciary and their independence. Though the Constitution provides with provision for the checks and balance within the three branches but does not give the power for any branch to take away the power of any other branch. The pros and cons are being brought up in the petitions lodged in this case and the judgment by the Supreme Court will surely be in the benefit for a future successful India.

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This article is written by Divya Kathuria, a student of Raffles University

Introduction

“But the fact that same-sex marriage is still an issue is insane. Thinking love knows a sex is ridiculous.”- Garret Dillahunt (American actor)

“We will see a breakdown of the family and family values if we decide to approve same-sex marriage, and if we decide to establish homosexuality as an acceptable alternative lifestyle with all the benefits that go with equating it with the heterosexual lifestyle.“-Jerry Falwell

“I don’t think that a same-sex marriage is the way God intended it to be.“-Joel Osteen

The statements written above by various renowned people mentioned here at the beginning of the article do not intent to establish any opinion but, instead, these contradicting opinions are evident of the fact as to how debatable the issue has always been and how debatable it has now become all over the world when USA has legalized same-sex marriage on 27^th June, 2015 in Obergefell v Hodges.[1] Through this article, I intend to discuss if it should be legalized in India or not?

The discussion on this point would definitely have infinite opinions clubbed with variety of arguments ranging from scientific facts to mythological traditions. We here need to analyze as to which argument or opinion is important for society’s development.

I am at liberty to decide whom I would marry!

Isn’t it as simple as that? As long as I am not harming anybody, I am at liberty to do whatever I want to do. This is the simple form of JS Mill’s Harm Principle that actions of individuals should only be limited to prevent harm to other individuals. So, when I marry the person of same sex to me and it neither harms anybody nor the other person then, I am at absolute liberty to practice it.

Concept of self ownership

Idea of self ownership was given by Robert Nozick. As the nomenclature itself suggests, it means I am the owner of my own self. When I own myself, it is only I who will decide whom I should marry. State has no right to intervene in between because is State does this; it would mean that my ‘person’ belongs to State, not to my own self. If you own yourself, it follows that you have a right to determine whether and how you will use your self-owned body and its powers, e.g. either to work or to refrain from working. However, I do not support Nozick’s idea of minimal state but, the idea of self ownership is quite helpful in determining the rights of LGBT community.

Homosexuality in Hindu mythology

The main argument generally given against homosexuality is that it is against Indian Culture and moral values. It is similar to a situation when a butcher claims he is vegetarian. How can we say that homosexuality has been adapted from west when it is deeply imbibed in our ancient culture and mythology? It is pointless to argue against same-sex marriage on moral and cultural grounds because they undoubtedly permit it.

1. Homosexuality in the Vedas

The Vedas are the source Scriptures of Hinduism and are considered to be timeless and not composed by any author (not even by God Himself). Dating by modern scholars of these ancient Sanskrit texts range from 4000 BCE to 1000 BCE. Whatever be the case for the literary antiquity of these texts it is more important to consider their meaning and function in the Hindu world view. The Vedas are considered to be the source of, and infallible authority regarding knowledge of the Absolute (Brahman) and in all matters pertaining to Right Ethical Living (Dharma).
But the Vedas deal with Dharma in its pure abstract form — the function of the latter sages and law-givers was to interpret this usage of Dharma in the context of society and social dynamics of thetime.
Homosexuality is not mentioned per se in the Vedas but there are some interesting references to homo-eroticism. One is from the Kaushitaki Brahmana Upanishad 2:4 of the Rig Veda:—

“Now then the intense longing of love stimulated by the gods. When one (m) desires to be loved (priya) by a man or a woman or by men and women, he shall offer to the above mentioned gods oblations in the sacred fire”.

This is followed by the description of the ceremony to be performed. Another casual reference is from the Shatapatha Brahmana (2:4:4: 19): in which Mitra — the god of the day is said to implant his seed in Varuna the god of the night on the New Moon day.[2]

2. Homosexuality in Kamasutra

The famous Kama Sutra was a text considered as supplementary to the sacred law which deals in great detail with eroticism, sex and its various manifestations. It was written around the 4th century AD and describes customs and social conditions prevalent from about the 4th century BCE. It inspired many of the erotic sculptures found on temple facades. In this text lesbianism is described in detail, as well as the swapping of male female roles with the female being the dominant one and using accessories to penetrate the male. From the text we discover that male homosexuality formed an integral part of Indian sexual life and various homosexual practices are described in detail. We also learn that transvestite prostitutes as well as courtesans played an important role in public life and were considered harbingers of good fortune at weddings and religious ceremonies — a belief which is also prevalent in present day India. In his introduction the author sage Vatsyayana discusses categories of sexual partners in a quite non-judgmental way concludes the discussion with:- “To these must be added the third nature (tritiya prakrti), the inverts or the homosexuals who have particular practices and constitute a fifth category of sexual partners.” 1:27 Chapter 9 of the Kama Sutra is dedicated to oral sex in general with the major part dealing with this particular activity between men. Interestingly enough Vatsyayana also mentions that some people “marry” (parigraha) members of their own sex and live together either openly or in secret.[3]

3. The tantric tradition and homosexuality

Within Hinduism there are two principle paths to achieve liberation from the cycle of births and deaths and be re-united in the Divine from whence all beings have emerged. One is the exoteric path of the householder following social rules and regulations in accordance with the sacred canon law, and the other is the esoteric path of the monastic or renunciate who has rejected all of society’s arrangements and has retired to a monastery to spend the rest of the time on earth in contemplation of the Divine. There is a third path known as Tantra which reconciles these two extremes. It is known as the Path of ecstasy because it incorporates all aspects of the human nature and harnesses of one’s drives to achieve spiritual enlightenment. The principle axiom in Tantra is that every aspect of being can be useful in spiritual practice — including sexuality — as long as no one is harmed thereby. The overriding principle of Hinduism is that any act which intentionally causes suffering to another is sin. So in Tantra one is free to use one’s sexuality in a spiritual context as long no one is hurt thereby.[4]

The Tantra posits the idea that God is androgynous and that one who is in touch with both the male and female sides of their being are closer to the divine than others who are polarised in their sexual orientation. Although Tantra is overwhelmingly heterosexual in its methodology; the homosexual is by no means excluded, condemned or marginalized. Those practitioners of Tantra who are of the homosexual persuasion need to fill in the gaps themselves![5]

All these are certain instances which are a proof of the fact that homosexuality is nowhere ruled out by our culture while there are many more of such instances which ensure the presence of homosexuality in Indian culture.

Homosexuality is logically no offence

We punish a thief for stealing, a rapist for raping, a murderer for murdering. But, can we punish a girl for being a girl or a boy for being a boy? Obviously, No! So, why does our country punish homosexuals for being so? Although the cause of homosexuality has still not been determined exactly but, it depends somewhere on biology of the person that is, genes and somewhere on his personality that is, the social conditions and environment in which he has been brought up. Some scientists have intently tried to discover scientific proof that same-sex attraction is genetic. Some studies hint at a biological component, but have not proven that same-sex attraction is simply an inborn or biologically-determined characteristic.

Biology may play some small role in influencing behavior or feelings. Some people seem susceptible to particular actions and may be drawn toward them or become addicted to them more easily than other people. One person may be able to dabble with gambling, while another becomes a compulsive gambler. Some may drink only socially, while others have an unusual attraction to alcohol. Studies indicate that genetics may be a factor in susceptibilities to some behavior-related disorders, such as aggression, obesity, or alcoholism. Likewise, there are theories that claim biological predispositions influence the development of homosexual attractions when other life experiences are also present.[6]

Every person has a unique personality. We have different likes, desires, dreams, and moods. We see ourselves and the world in different ways and each of us hopes for something a little different from life. One child may be content with the affection he receives from his parents, while his sibling who receives the same attention feels a deficit and requires more. Some children seem content to play by themselves, while others who have many friends seem to need even more.

Many men with same-sex attractions have a heightened sense of emotional sensitivity which can make them vulnerable to emotional hurt when their high expectations are not met. Since we all have different needs and perspectives on life, it is easy to see why two people in the same situation will react differently. For one person, a negative situation may be manageable, while for another it is a devastating crisis.[7]

Professionals agree that environment influences a child in significant ways. Your family, friends, society, and experiences influence how you feel, how you view life, and how you act. Dr. William Consiglio refers to this myriad of social and psychological factors as a “conspiracy of factors,” meaning that many factors “conspired” or came together in the right amounts at the right time to divert sexual desires in you as a developing child toward other children. Some of these factors include your relationship with your family and peers, your ability to identify with masculinity or femininity, the degree to which your emotional needs are fulfilled, your feelings of self-worth, and early sexual experiences.[8]

However, homosexual character of a person is the net result of his personality, genes and developmental process and he cannot be blamed for any of these. One can say that a thief might also be a thief because he has been brought up that way but, there is a difference of night and day in the situation of an offender and a homosexual. An offender otherwise harms the society, but, a homosexual is not at all harming anybody in the society but, are just practicing their freedom and liberty. So, it is logically absolutely senseless to criminalize homosexuality.

Criminalizing homosexuality under Section 377 of IPC, 1860 is unconstitutional

1. It violates right to liberty conferred on us by Article 21 of the Constitution.

The fundamental right to liberty definitely includes right to private space. Jeevan Reddy, J in R. Rajagopal v. State Of T.N[9] held that right to privacy is implicit under Article 21. Any consensual sexual act between two individuals is their personal affair and any intervention in it by State would lead to disturbance in their privacy and thus, under Article 21 as well. In National Coalition for Gay and Lesbian equality v. Ministry of Justice[10], South African court held that, Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. Even at the international level, the right to privacy has been recognized in the favor of lesbians and gay man.

2. It is unreasonable and arbitrary and thus is violative of Article 14 of Constitution.

Article 14 provides for equal protection of laws for all the people. However it permits classified legislation which in turn in tested upon two factors that is, the classification must be reasonable and there should be a direct nexus between the classification and object sought to be achieved by the legislation.[11] First of all, the classification under Section 377 is not reasonable because it has classified the people on the basis of their sexuality which is prohibited under Article 15 that is, one cannot be discriminated on the basis of sex. By prohibiting discrimination on the basis of sex, article 15 means that there are no standard behavioral patterns related to the gender. The prohibition on non-procreative sexual acts imposed by section 377 prescribes traditional sexual relations upon men and women and classifying them on the basis of their sexual orientation is thus arbitrary on the face of it.Secondly, the object of this provision is to criminalize all the sexual activities which are against the very order of nature. This means, according to legislature any kind of non-procreative sex is unnatural. The nexus between the act and the object is quite vague because it is based on the typical stereotyped notion that sex is only for procreation. Even if we accept the presumption that sex has to be only for procreative purposes then, what will justify the policy of family planning and contraceptive measures? It would then mean that one statute is clearly in contradiction with another.

Conclusion

However, despite all the arguments in the favor of homosexuality, we know that there will definitely be certain problems that might be faced by the country if homosexuality is legalized but, this does not mean that the minority rights of LGBT community should be suppressed. We obviously can’t make an omelet without breaking a few eggs. Every law when freshly introduced brings with itself various controversies and issues which can be easily tackled with the passage of time as law on any point would never stand still and will keep on evolving. So, there is no harm in legalizing the same-sex marriage in India as it will not only develop the society by recognizing the rights of minority but also, will be in accordance with the ancient culture of our country too.

[1] http://www.theguardian.com/society/2015/jun/26/gay-marriage-legal-supreme-court last visited on 2nd July, 2015

[2] http://history-of-hinduism.blogspot.in/p/homosexuality-and-hinduism.html

[3] Ibid

[4] Id

[5] Id

[6] http://www.samesexattraction.org/What-causes-same-sex-attraction.htm last visited on 2nd July, 2015

[7] Ibid

[8] Id

[9] 1994 SCC (6) 632

[10] 1999 (1) SA 6

[11] Chiranjit Lal v. Union Of India AIR 1981 SC 41

The post Same sex marriage: should it be legalized in India? appeared first on iPleaders.

This article is written by Rimjhim Vaishnavi,  a student of NUSRL.

Introduction

Decision which have already been taken by a higher court are binding to the lower court and at the same time stand as a precedent  to the lower court judgement, which cannot be altered by lower court. This principle is known as Stare decisis, which is derived from the Latin phrase “stare decisis et non quieta movere”, which  basically means to stand by the decided matters. In India it is commonly known as the concept of precedent.

As per Black’s law dictionary stare decisis means to stand by decided cases, to uphold precedents or to maintain former adjudications.

As explained by prof. A. Lakshminath, the doctrine of stare decisis helps to generate judicial accountability along with it, it also ensures fairness in adjudication and excludes arbitrariness and helps in maintaining stability and certainty. Prof. further explained that stare decisis is both a social as well as a legal norm.

Historical background

The desire for certainty and continuity in law gave rise to the doctrine of stare decisis. This doctrine was initially used in medieval England and America, where the common-law courts looked into the judgement of earlier cases as guidance also they had power to reject those which they does not considered good or which they considered bad.

Initially due to the lack of recording the decisions or judgement of cases in written form, doctrine of stare decisis was not freely used, but after the concept of recording the judgement came, widespread use of this doctrine was witnessed.

It was in 17^th century for the first time in England, the decision of Exchequer courts were given a binding force. Later in 1883 the urgent need for recognizing the binding force of precedents was brought into notice in the case of Mirehouse v. Rennel. Further in 1873 and 1875 came up the Supreme Court Judicature Act, were the theory was stare decisis was established. In India the concept of precedent established after the Britishers came to India, which lead down the hierarchy of courts and the concept of higher courts judgement binding the decision of the lower courts.

In 1935 the Government of India Act, explicitly mentioned that the decision of Federal Courts and Privy Council will be binding all the other Courts decision in British India.

Hence, from 18^th century till date stare decisis is a characteristic feature of our legal system.

Doctrine of stare decisis under Art. 141 of the Constitution of India

Art. 141 of the Indian Constitution states that “law declared by Supreme Court to be binding on all courts within territory of India.” Art. 141 state that only the ratio decendi of a case is binding not the obiter dicta and the mere facts of the cases. Therefore, while applying the decision of S.C. by other courts, what is required is to understand the true principle lay down by the previous decision.

Some basic concept of Art.141

1. All the courts in India are bound by law to follow the decision of Supreme Court.
2. Firstly the judgement has to be read as a whole and at the same time the observation from the judgement has to be determined in the light of the questions presented before the court.

• A judgement is used as a precedent only if it is based on deciding or resolving a question of law.

1. Sometimes while deciding a case court is divided, during that situation the decision taken by the majority of judges will be later used as precedent not the decision taken by the minority of judges.
2. Ex-parte decisions by S.C are also binding in nature and can be used as precedents.
3. The S.C. is not bonded by its own decision.

• Procedural irregularity and immateriality does not invalidate the binding nature of a judgement.
• Special leave petition are binding in nature.

Types of precedents

1. Original and Declaratory precedents– original precedents refer to those cases where there is a question of law which has not been decided before, and then in such a case the decision of the judge forms original An original precedent is a law for the future, which creates and applies new rules. Declaratory precedent means those cases where application of an existing rule of law is used. In such cases it is seen that the rule is applied because a law already existed on it.
2. Authoritative or Binding precedent– it is also known as mandatory precedent or as a binding authority. It means those decisions which the judges must follow whether they approve it or not. It basically denotes the higher courts decisions which are binding over the lower courts of that region.
3. Persuasive precedent– these precedents are not as binding as the authoritative precedents. These precedents means that while making any judgement the judge has to consider these precedent and has to give higher weightage to it. The main concept behind considering it is that it is relevant and can help in making a fair decision. These cases could be of could which are put at similar level in the hierarchy of courts. Even lower court decision can play a role of persuasive precedent.

Decisions which are not considered binding under Art. 141 of Indian Constitution

There are some decision which are not considered as a precedent or which do not have a binding effect. Those are:

1. The decision that is not expressed
2. The decision not founded on reasons,
3. The decision that does not proceed on consideration of the issue.
4. Obiter dicta of a case is not binding, hence it cannot be relied upon solely as a ground to hold any statutory rule invalid.it has a persuasive value.
5. Decision is rendered per incuriam is not binding in nature. Per incuriam’s literal meaning is resulting from an ignorance. Hence any decision made on per incuriam, it is not used as a precedent.
6. Decision is rendered sub-silentio, and then also it is not used as precedent. Sub-silentio means to a situation when the point of law involved in the decision is not perceived by the court. It means when a point of law or particular question of law was not consciously determined.
7. C’s observations on the facts of the cases are not binding.

Advantages of precedents

Precedent means to follow the same which has been done earlier. Hence the first step while considering the precedent is to look the similarity, if there is any then the magnitude or degree of similarity that existed between the problems. After this it has to be seen whether the same has been used before a precedent and has resolved the problem.in this manner the precedent works. Therefore the advantages our legal system enjoys by adapting this doctrine are-:

1. It is time saving avoids unnecessary litigations
2. There is an orderly development of the law

• It brought greater certainty and consistency in law, which is the most remarkable advantage. As a good decision making body needs to have consistency

1. Avoid arbitrariness in judgements.
2. It eliminates the element of ambiguity and enables the lower courts to follow the decision of higher court unanimously.
3. The presence of precedent decreases the probability of a judge making a mistake.
4. It also serves the concept and interest of justice as giving different decision to similar situation might be considered unjust.

Disadvantages of precedents

Every good thing comes with it by-products which are bad or has negative effect. Some of the negative effect of stare decisis doctrine are-:

• Also practical law is based on experience, by considering precedent the scope of experience decreases which hampers the essence of practical law.
• It is being criticised because of its limiting effect over the development of law.
• The first and foremost disadvantage of this doctrine and the precedent system is its rigidity.
• Other disadvantage is its complexity which sometime makes situation more uncertain.
• Many time judicial mistakes are being continued in the form of precedent.

Conclusion

Hence, the stare decides doctrine is very helpful for our judicial system. But at the same time the convenience of following the precedent should not be let to degenerate into just a mechanical exercised performed without any thought. It should be used carefully, in the view of promoting justice and equity.

The post Why lower courts are bound to follow the principles laid down by the Supreme Court of India? appeared first on iPleaders.

Many law students dream of getting a top law firm job. Others dream of becoming a great litigator. Not everyone will succeed. What will make the difference?

It is not that there is not enough legal work out there. It is not that firms are not hiring or that clients are not looking for young, bright lawyers. Still, a lot of young lawyers struggle for several years, trying to get opportunities that suit their talent.

Talent and ability are two different things. Ability is difficult to ignore, while talent alone is difficult to reward. The biggest problem with the legal education is that it does not prepare students to deal with the practical and strategic side of legal work.

Think for a moment. Is your college teaching you how to draft important commercial contracts? Not only some random drafting, but serious contracts involving big stakes that you will be expected to draft when you go for an internship or start a job?

Are you learning how to structure a business, how to incorporate LLPs and companies, how to register trademark or copyright? If a client approaches you to create an anti-piracy strategy, will you be able to help him?

Even if you litigate, why will corporate clients come to you and not someone else? The biggest opportunities for lawyers and law students are no doubt in the commercial practice of law, be it in a law firm or corporate litigation. However, do your years of LLB education really prepare you to take advantage of these opportunities?

The answer is a big NO. The best law schools and colleges can inculcate an ability to think like a lawyer, conduct comprehensive legal research, and write formal documents to a certain extent. This is what interns are usually expected to do. You could exceed expectations, that is a great way to attract the right kind of attention at work place. If you are a junior lawyer, apart from all that you need to deliver results, follow best practices and act of things that you have never been taught about. Even the most brilliant lawyers hence struggle in the first couple of years of their career.

Ask your seniors working in big law firms, they will tell you how they struggled when they first joined a law firm. It was difficult to survive. In fact, not everyone survives. Many leave under pressure, and others get fired.

This is not necessary though. It is not merely the nature of the job that you must struggle to survive. The biggest contributor to this phenomenon is how the law schools don’t prepare you for practical and strategic side of legal work. If you get good and effective training in your formative years, like while you are studying in college or early years of your career even after graduation, a lot of trouble and unnecessary heart ache can be completely avoided. In fact, if you pay attention to certain aspects of your skill development as a lawyer right now, it will make a huge difference to how and on what note your career gets started.

What are the skills that can make a huge difference to how you start your career as a lawyer? Here are 5 of them:

Understanding commercial intent

understand your client

This is a tricky one and lawyers learn this as they mature in the professsiona. However, success is likely to remain evasive until you get this down. Clients come to lawyers with specific ommercial intent. Sometimes they may not be aware of it if clients are not sophisticated but they are going to find out soon. As a lawyer, if you don’t pay attention to th commercial context in which the legal service is beigh sought from you, you will almost never be able to satisfy the client. Not only that, without an understanding of the commercial intent or economic context, you will not be able to price your services right, position yourself in the legal marketplace and fail to win the confidence of the client.

This takes a while to learn, but you can begin now, even as a law student, if you have not already started. At iPleaders, in professional courses like this one, we make an inordinate effort to teach this aspect of the law practice in every module and make sure that through mentorship calls one gets the necessary inputs and direction so that they can start to develop this sense, which is almost like a second common sense for lawyers.

Negotiation

President Barack Obama talks with U.S. Trade Representative Ambassador Ron Kirk before bilateral meetings at the Grand Hyatt Hotel in Seoul, South Korea, Nov. 11, 2010. (Official White House Photo by Pete Souza)
Obama is a lawyer by training and a great negotiator.

Negotiating is one of those skills that lawyers must develop if they really want to be counted amongst the best in the profession. The best lawyers are often not called the best for their court craft or drafting skills, which are of course basic necessities, but how well they negotiate with the opposite party across the table. A good negotiator is trusted with the biggest opportunities and challenging tasks that see such a person automatically rising through the ranks really fast. Not having good negotiation skills is a great downside.

Problem is that this is a skill that is not taught even in the best of law schools. What you may learn during moots, mock negotiations etc are childs play compared to what you really need to learn. At present, junior lawyers learn by watching their seniors, provided that their seniors are good enough to learn from. It is also a time taking and uncertain process, but that is all Indian lawyers have at the moment, besides reading books and watching some youtube videos.

This is why in our courses we really focussed on teaching essentials of negotiation in every module that we created. We knew the difference this knowledge will make over the years in the careers of those students who will take these exercises seriously, and in the last 3 years we were vindicated as student after student came to us and told us what a life saver these parts of the modules have been.

Drafting

“Village lawyer” – a painting from 1621

Drafting, which is not limited to drafting of petitions or agreements, but even memos, opinions and even emails, is probably one of the easier skills to learn. However the scary part is that you get really less time to learn it. Once you graduate and join a job, your seniors will most likely assume that you already know how to draft or that you will catch up in a month or two, when in reality you have no idea as to how you can go about it. To top all these, different firms and lawyers expect you to do your drafting in different styles.

The best way to learn drafting quickly is to start working with templates, and getting your work reviewed again and again. The more you do this, more you will learn to quickly wrap your brain around important issues and clauses and not miss out on things. You will also learn that academic writing and legal writing is different in a huge way. In your legal drafting, there will be hardly any scope to impress anyone by philosophising or writing lengthy introductions. You will have to cut to the chase and directly attack core issues that affects the interests of your client and various other stakeholders.

We knew the challeneges that lawyers face in terms of getting to a reasonable level of drating sills in really less time. This is the reason we have a number of drafting exercises in our course, even though most of them are not mandatory. We also allow students to review each others drafts which enable them to learn from others mistakes.

Research

Research is a key skill every lawyer must have

If you are not good with your legal research, you might not even become a lawyer. As a lawyer, you are not expected to know every provision and every legal statute, though knowing a few important ones especially relevant for your practice area will really help. In contrary to the expectation set by law school curriculum, where it looks like knowing sections and case laws make you a better lawyer, in reality you need to be a bloody good researcher who can find relevant provisions of law and important decisions really quickly, and without leaving out relevant provisions and case laws.

If you can do this well, this itself will put you in the top 10% of all law students in India no matter which college you study in. This will help you to get noticed in college and during internships. Unfortunately this is a skill we can’t yet teach directly in our courses, but we have tried to address it through iPleaders club, where new members are given research oriented tasks to fulfil and they even get mentors who will give feedback on the quality of their research. Blogging is a great way to become better at legal research if you do it frequently. This is one thing we try to ensure that our interns learn very well because we get to spend face time with them. I would encourage all law students to go for internships where they will be trained in research or at least be given research work. For our course students we try to bring opportunities to intern at places where they will learn to research well.

Communication

Communication is a forte of lawyers that often make them community leaders

Communication is a big weak point of hundreds of law students but an essential skill to be a successful lawyer. Again, we don’t have a quick fix for this. We try to address this through our mentorship programs in iPleaders club, but our efforts are still at a nascent stage and it remains to be seen if they are effective. However, for those of you who are interested to know how we are approaching this issue, here are a few things we are encouraging the members to do:

• Being part of events that will increase their confidence and sociability. Recently they were presentated with an opportunity to visit Pakistan as a part of an Indian delegation. One male and a female student has been selected. There are other high profile events and conferences where students are getting free access for this purpose.
• Training on email writing. We believe writing good emails is very important – and learning this will go a long way.
• Tasks that require students to get in touch with strangers, for interviewing them, asking for mentorship etc. This ensures that students are pushed outside their comfortzone and learn to communicate professionally with lawyers and other experts. We offer them help and mentorship where they get stuck.
• Mock interviews, CV making session etc make sure that they get coaching on these essential areas.
• They are encouraged to go for informational interviews with lawyers that they idolize or want to become like. This is also a great way to incentivize the students and young law graduates to improve their communication skills.

I would encourage you to think which of these areas need improvement in your own arsenal of skills. Is there something that need immediate attention or long term planning? Make a plan, and start working on it. Every small step you will take will make you a little better. Eventually, that can take you towards greatness.

If you would like to volunteer to help us to make high quality legal education to Indian law students, do let us know. We have been able to come this far with help from top lawyers and generous professionals who volunteered their time to make courses like this and iPleaders club a reality.

The post How to get a good law firm job or become a good litigator appeared first on iPleaders.

The constitution of India promises that the citizens will not be discriminated against based on their gender, place of birth, race, caste, religion etc. The government of India has entered into many international treaties agreeing to protect citizens and foreigners alike from such discriminations. However, entry to public places such as restaurants and hotels is not a protected right except for those belong to harijan castes or other scheduled classes of people.

The hospitality industry in India has absolutely horrific discriminatory practices that makes life difficult for the common person. Indian restaurants, bars and hotels routinely disbar citizens as well as foreigners, and discriminate on ground of sex, place of birth, race and religion – and sometimes even age and disability. Let’s take a look at some real cases where the hospitality industry is brazenly discriminating with regard to access to public places like restaurants and hotels.

Discrimination against people from African countries and other foreigners

Racism is not the problem of only white people – Indians can be very racist. If you want proof, just ask the Africans living in Khirki village in Delhi or the Nigerians in Goa. What is astonishing is that a large number of Indian eateries, bars, pubs, restaurants, hotels, and even landlords discriminate against Africans living in India. Many establishments like restaurants and bars which are generally open to the public, do not allow Africans or people with Negroid features to enter their premises. This is a clear instance of racial discrimination, which is not banned by any specific laws in India.

In other words, Indian hospitality establishments like bars, restaurants and hotels can refuse to serve and discriminate on basis of race and nationality with absolute impunity under the current legal regime.

This is not only violation of universally recognized human rights of these foreigners, but also a derogation from many international obligations undertaken by the Indian government under International Laws.

Discrimination against people wearing traditional clothes

As highlighted by a recent incident of a cricket club refusing entry to sitting judge of the Madras High Court, it is very common for clubs, restaurants and bars to refuse entry on basis of attire of a guest. If the attire is indecent or inadequate, one may justify refusal of admission. However, in most cases, these rules are meant to perpetuate colonial practices that put European attire in a hierarchy over Indian traditional clothes. This is more prominent in case of footwear. Many establishments do not allow guests to enter if they are not wearing closed shoes – as was in this case, where an elderly woman was not allowed to enter a hotel in Mumbai on the ground that she was wearing a chappal and not closed shoes. Women in India rarely wear closed shoes with Saree, the most common attire. Not allowing an aged person to enter the premises on the ground of wearing a chappal rather than a shoe is not only outrageous, but also discrimination based on one’s culture and cultural ancestry. This is a travesty of civil rights earned by the citizens of India through hundreds of years of freedom struggle.

Discrimination against people from certain states

The constitution of India guarantees equal status to all citizens irrespective of their place of birth. However, treatment of people from certain states, such as Bihar or North Eastern states, in certain establishments is prima facie discriminatory. Starting from keeping them waiting for longer periods to refusing entry, use of regional slur and even eviction after admission is quite common.

What is infuriating is that apart from the laws meant to protect scheduled castes and scheduled tribes from casteism related offences, there are no laws to protect victims of such discriminations. Victims who do not belong to scheduled caste or scheduled tribe can register cases for abusing or assault if they face these things, but they have no redressal against refusal to entry and discrimination based on place of birth.

Discrimination against people with disability

People with disability often need special arrangement, which is cumbersome for some hospitality establishments. Starting from the difficulty of assistance for going through a metal detector in a wheelchair to creating ramps for wheelchair access, or special provisions for visually challenged guests – a stunning majority of Indian establishments ignore these civic duties. Although the government has made it mandatory for all classified hotels and most restaurants to be wheelchair accessible, most establishments either do not do so, and even those who have technically complied do not cooperate with guests with disability – simply because arrangements cost more while they cannot charge a differential fee. There is little disabled guests can do where they face such discrimination as most of these establishments are technically compliant to disability laws and rules made thereunder, and documenting and challenging such practices will be very difficult for them.

As a result, many establishments continue to discriminate against gest with disability with complete immunity.

Discrimination against women guests

Have you ever been refused entry to a bar because you are a woman? While in upmarket bars and pubs this is very unlikely (in fact, women are incentivized to visit in greater numbers with free drinks etc), in smaller towns and low cost bars and taverns this is a routine practice. There are many hotels which may refuse a single woman trying to find accommodation. Any establishment has the legal right in India to refuse any woman (or a man for that matter) from entering without any explanation.

Discrimination against senior citizens

I came across a very shocking discriminatory practice as my father was sharing his recent travel experiences with me. He has crossed 60 a few years back. It turns out that many hotels refuse to accept guests who look very old and are travelling alone, as they are afraid that there maybe medical emergencies!  While this may not apply to big 5 star hotels, this is certainly the case with a lot of budget hotels.

Bonus: Discrimination against rape survivors

Ginger restaurant in Kolkata recently refused entry to a woman who was gangraped in the city about a year earlier. The woman had chosen to not hide behind anonymity and disclosed her identity willingly although laws in India provide her the option to stay anonymous. The manager of the hotel pointed her out in front of other guests as the Park Street Rape Victim and refused to let her enter when she had come to dine along with her fiancé.

While publicly calling out someone as a rape victim is still illegal under the provision of victim anonymity, refusing her entry is not a violation of any laws or rules in India.

Essentially, any establishment in India can refuse to serve a rape survivor, and thereby perpetuate her victimization and suffering, without any legal repercussion. While there are not many reported instances of this kind of discrimination, it is also unlikely that such ­­­­a victim will raise her voice against such discrimination and attract more publicity – which is only likely to make her situation worse.

It is unlikely that these instances of discriminations will stop anytime. These are long standing practices, mostly introduced by the Imperial British once upon a time, which we have taken up on ourselves to continue although in the land of the British they have stopped these practices decades earlier. What do you think can be done to change the prevailing situation? Share your views and suggestions in the comments.

Are there certain types of discrimination by the hospitality industry that I missed out on? Tell me more in your comment. Share real stories so that the hospitality industry wakes up the realities of what they are doing.

The post Six types of infuriating discrimination by restaurants, pubs and hotels in India appeared first on iPleaders.

This was originally published in A First Taste of Law. Now we are republishing the best posts from the blog, which we have now shut down, to this blog. Hope you enjoy it!

The first moot I ever went for was one in Kochi. We were a team of 2nd years, had no clue about how to handle bad judges, and succumbed to that great weakness. Wherever you are mooting, India or some other country – you must be strategically prepared for bad judges. Its easy to spot them – ones that never read the problem until 5 minutes before the court, someone who is a stud at the local bar but has not clue about international law, doesn’t seem to understand English or is visibly suffering from a hangover.

Anyway, I am writing this post to share some conclusions I reached about mooting since I participated in my 2nd moot, this time as a part of my university team – Willem C. Vis East in Hong Kong. While we did not do too well in the moot (only thing we can mention as success is that we got an honorable mention for our Respondent memo with 9 other teams. Also, we were the only Indian team to have received anything from that moot at all), it was an extraordinary learning experience as far as mooting follies are concerned. All the points below generally apply to mooting anywhere but are gospel truth as far as Vis moots are concerned. I am so sure because these points arose not only from my personal experience but were reiterated by coaches, arbitrators, and winners again and again as I tried to figure out what is all the fuss about mooting.

First lesson, you don’t only need good/competent people on your team, you need a team with which you can work. In the mooting systems where you don’t get to choose your teammates but they are more or less decided due to ranks in internal selections, this can be a huge issue. Look out. I have asked around a bit, and it seems a lot of people can’t achieve their potential because of this one reason.

The second lesson, you must figure out what the moot asks of you. Much of it depends on who are the judges. Are the judges in the moot predominantly academicians, professors, veteran lawyers, and judges, or young Turks with some mooting experience? Does the moot brief the judges on what are the parameters on which speakers are to be judged? Obviously it will difficult to find out the details of the current year, and you must rely on the information you have of the previous years events to develop an idea about the event in which you are going to participate.

Vis east was completely about presentation skills. Legal knowledge is more or less presumed. In fact, George Varghese, the researcher in out team who have extensive debating experience thought that the moot is more or less like a policy debate, albeit judged by lawyers and the subject matter of debate being legal.

Details will vary greatly from moot to moot, but primarily, you can appeal in the different way to different sort of judges. If he’s a practicing lawyer or arbitrator, he will have different criteria on his mind when he listens to your arguments. He will pay a lot more details to your presentation skills and formal expressions. If there’s a professor on the board, she might be looking for something else. She might be happier if you draw support from a theory that she admires. Some, you can apprehend and prepare for, and some of this will have to be done on feet.

The third lesson, play the public interest card. Works in moots like magic. I have never done it, but seen people do it. No matter whether it is arbitration or WTO panel moot, everyone loves a mooter who is able to establish that the public interest is on her side. While public interest may be difficult to side with in a real case if hands of the judge are tied by law, but in a moot, there is no such constraint that prevent judges from giving the court to you.

The fourth lesson, prepare a speech and time it. You must know how much time you are going to spend on which argument. This does not matter much if competition you are facing is not strong. But when it is, time management is a crucial skill that is going to make a lot of difference. I would never again go to a moot without preparing a speech, and having every argument timed to seconds.

The fifth lesson, you must be able to show a structure in your arguments, that also helps the judges in following what you are saying. In a real case, this may not be so important, but in a moot court you are definitely going to pick up some points for it.

The last point, one must know how to answer questions. Questions must be answered precisely without circumlocution or distraction. Everyone hates to be handled. Don’t tiptoe around the question, even if you succeed to do so without an objection from the bench, the judge will hate you for it. Or worse, he will think that you are so thick you didn’t even get the question.

The post Six Eternal Rules of doing well in a moot court competition appeared first on iPleaders.

This article is written by Chitransha Mishra. She explains the origin and history of CBI, how it evolved to be the choice of investigation agency, and whether you can  get CBI to investigate your case..

So, CBI has again partaken in the investigation of what is currently the most sensational scam in India and Sheena Bora’s murder case. Yes, the scam I am talking about is VYAPAM. Why is it that we always need to call this badass when our local police fail? Why is it that this agency always works on the most talked about cases in the country? How did this agency come into existence? I am sure we didn’t just look at America’s FBI and think “Okay, they’re cool. We definitely need something like this in our country too and it must rhyme.” But most importantly, are they really entitled to interfere in the matters that are not of national interest? Are they permitted to investigate the matters that only concern private parties? Can we, as sufferer s or victims, call them to investigate upon our issues? If yes, how? And what functions do they take up that makes them so special? I think, as a citizen of this country, this is something that each of us should know. For, ignorance isn’t always bliss.

How was CBI created

Let us first discuss what made our country even consider forming such an investigative agency. This takes us back to the time of the Second World War. The Special Police Establishment was formed during the World War II when a huge amount of funds were being used in the war and there emerged astronomic potential of corruption between the officers dealing with the supplies. This gave room for doubts and made the government of India pass an Executive Order in 1941 to form Special Police Establishment under the DIG in the department of war. But, not surprisingly, the corruption and bribery did not see an end and neither did the need for the central government agency to investigate such cases. Therefore, The Delhi Special Police Establishment Act came into force in 1946. The superintendence of SPE was transferred to the Home Department and its functions were broadened to cover all the Departments of the Government of India. It exercised its power over the union territories and could be extended to the states with the consent of the concerned states. The SPE was then put under the charge of the Director of Intelligence Bureau. It was in 1948 that a post of Inspector-General of Police, SPE was created and the agency was placed under his charge. The mighty CBI was named on 1-4-1963 by the Home Ministry of the Government of India (See, Resolution No. 4/31/61-T/MHA). This was done to broaden the concerning fields of investigation like the breach of the Central fiscal laws, frauds in Government Departments and PSUs and other serious crimes. In 1987, two divisions were created in the CBI known as Anti-Corruption Division and Special Crimes division. Due to the enormous workload related to bank frauds and economic offences, a separate Economic Offences wing was created in 1994. Since then, the CBI has three investigation divisions, namely, Anti- Corruption Division, Special Crimes division and Economic Offences Division. So, that’s how the present day CBI came into existence and this is what the agency is in a nutshell.

How does the CBI function

Now, let us move on to how it works; its functionalities and proceedings. They all start with one thing—Complaint. The complaints may come by any means and should shed some light on corruption, malpractices or misconduct on the part of public servant(s). Complaints can come from various sources, be it an administrative authority, intelligence gathered by the CBI and by Police authorities and the complaints received by them, Departmental inspections and stock verification surveys, annual property returns, scrutiny of transactions reported under the conducted rules, routine audit of accounts, audit reports of accounts of government, PSUs and other corporate bodies, reports of parliamentary committees, Public accounts Committee and the Committee on the PUs, Proceedings of the two houses of Parliament. Complaints can be in writing or verbal. Even the news that appears in newspapers or any other media can be considered as a complaint. The Central Vigilance Commission established under the CVC Act, 2003 has been exclusively empowered with the superintendence over the functioning of CBI especially in connection to the offences performed under the Prevention of Corruption Act, 1988 with respect to certain categories of officers mentioned. It is the designated agency of the government to receive such complaints.

Any action that is to be taken upon the complaints depends upon the nature of the complaint. Depending on their nature, it may be ordered for the departmental investigation, it may be ordered to file or drop the complaint without further query, and matter may be handed over to the CBI if the cases are of grave nature.

Three wings of CBI

(I)  GOW (General Offences Wing): It looks after cases involving allegations under the Prevention of Corruption Act, 1988, possessing assets more than what your income allows, allegations involving inquiring from the non-official persons or examination of non-governmental records, cases of complicated nature involving questions of law and facts. This department is also entitled to initiate criminal proceedings in certain cases.

(ii)  EOW (Economic Offences Wing): It deals with cases that include violation of various economic/ fiscal laws. Bank frauds, financial frauds, and import-export and foreign exchange violations, large-scale smuggling may be included in economic crimes.

(iii) CCIC (Cyber Crimes investigation cell): This wing started functioning smoothly in 2005 and it investigates cybercrimes for they have been increasing day by day and sometimes the nature of such crimes is extremely serious thereby demanding some specialised attention.

The complaints registered are usually transferred to these divisions based on the nature of such complaint.

In fact, they’ve even started investigating the crimes of conventional nature. This includes murder, terrorism, kidnapping etc. This also includes special crimes of sensational homicides, crimes committed by the mafias and the underworld etc.

Can you demand CBI investigation into a matter about which you care?

Now we consider the question previously posed in this article. Are we or are we not entitled to call them for investigation in our personal matters. If yes, how? This takes us back to 2001. On 4^th January, 2001, Abdul Rahman Mondal, along with many workers of a political party had been staying at several party camps set up by their party at Garbeta in Midnapore district of the State of West Bengal. Some of the workers and Abdul decided to go to their homes from one such camp. When they reached Abdul’s house, some men, 50 or 60 in number, attacked them with firearms and explosives, which resulted in many casualties. Abdul managed to escape from the place of occurrence of the heinous attack, hid himself, and witnessed the whole event from where he was hiding. He lodged a written complaint in Garbeta Police Station on 4^th January, 2001 itself but the FIR was registered only on 5^th January, 2001. On 8^th January, Director General of Police, West Bengal ordered CID (Crime Investigation Department) to take over the investigation of the case. A writ petition was filed in High Court of Judicature at Calcutta by the Committee for Protection of Democratic Rights, West Bengal stating that, although 11 persons died that night and 3 months have passed since the incident, yet, except 2 persons, no other person name in the FIR has been arrested and that no serious attempts have been made to identify the victims. In fact, till that time, the police have not been able to find out if the missing persons are dead or alive. They alleged that the police was influenced by the ruling party of the state and were hence compromising with the proper investigation. Their demand was to transfer the case to the Central Bureau of Investigation, an independent agency.

The High Court, after hearing the facts stated above, decided that it had a strong reservation about the state police regarding the impartiality and fairness of the investigation and also, considering the seriousness of the matter, it should be handed over to the CBI. State, aggrieved by the decision of the High Court, asked for special leave to appeal before this Court.  The leave was granted in September, 2001. When the matter came up to a two-judge Bench on 8^th November, 2001, it was of the opinion that the matter is of great importance to the public and shall be placed before the Chief Justice of India for the passing of reasonable orders and thereby directing the matter to be placed before a much larger bench. When the matter came before a three-judge bench headed by the Hon’ble Chief Justice of India, they decided to place the matters of this nature before a Constitution Bench.  The state counsel appearing on behalf of West Bengal asserted that there is a complete restriction on parliament’s legislative power in ratifying any law allowing police of one state to investigate an offence committed in the other state, without the permission of that state. He also suggested that separation of power between the three organs of the state requires each one of these organs to margin themselves within the areas entrusted to it by the Constitution and not act against the violation or opposite to the spirit of the Constitution. He also pressed that if the parliament was to pass a law that allows police of one state to investigate in the area of other state without its consent, such a law would be invalid. So, the federal structure demanded that the Constitution not be disturbed by doing any such thing. CBI, being an outsider and formed under the DPSE to investigate in the matters related to Delhi and the Union States is considered as a police of another state. Long story short, The Solicitor General of India appearing on behalf of the union government tried to convince the Bench that rights stated under the Constitution are not valid when they are directly in contradiction with a person’s fundamentals rights. Hearing both parties, the Bench came to the following conclusions.

• The fundamental rights, stated in part III of the Constitution, are intrinsic and cannot be eliminated by any constitutional and statutory allocation. Any law that abridges or abrogates such rights will infringe the basic structure dogma.
• According to Article 21, the state has a duty to impose the human rights of a citizen providing for fair and unbiased investigation against any person accused of a cognizable offence, including its own officers.
• A regulation by the High Court, in employ of its jurisdiction under the Article 226 of the Constitution, to the CBI to investigate a cognizable offence stated to have committed under the territory of a state without the consent of that state will neither hit upon the federal structure of the constitute nor will it violate the concept of separation of the powers. The Courts and High Courts have not only the power but an obligation to protect the fundamental rights devotedly.
• When the DPSE act itself provides that it can investigate in the issues of another state when subjected to its consent, the court can also exercise its constitutional power of judicial review to direct it to take up the investigation within the jurisdiction of the state. The power of Article 226 of the Constitution cannot be overshadowed by Section 6 of DPSE Act. Also, the power of judicial review in no way infringes the federal structure of the state.

Considering these conclusions, it is established that we can call CBI for investigation in our personal matter when the state police fails to be competent. But we cannot call them for our petty matters and just on the basis of doubt or because we are not impressed by the way our local police are investigating.

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Is the thought of appearing in a law firm interview on Day Zero making you panic? Are you clueless about what will be asked in a written test or a telephonic interview for a top Indian law firm? There is a lot at stake, since a top tier law firm job could fetch you a pay package of INR 15 lakh upwards in a year, whereas a 3 tier law firm won’t pay more than INR 3 lakh per annum to freshers! Well, don’t worry – now I am going to tell you how to prepare for interviews at top tier law firms and absolutely nail it so that the hiring partners will remember your name for a while!

While most students have a fair amount of time to prepare for their recruitment interviews or written tests, they are in a state of mental frenzy, tension and agony all the time. Irrespective of how much time you spend preparing, somehow the anxiety never abates until the interview is over. The reason this happens is probably because many students do not realize what to prepare, and when they do realize it, they are completely lost with respect to how to prepare. The necessary mix for success appears to be scattered in corporate law books, news articles and a myriad set of regulatory law, all of which is extremely difficult to fathom all at once.

What many students often do not realize is –

There are a finite number of tools, accessible to all, which can help you learn the necessary information for success in a law firm interview.
This post mentions four tools you can use to give a quick power boost to your interview preparation.

#1 – Master Circulars from RBI

Banking and financial activity in India is very heavily regulated by the Reserve Bank of India (RBI). As a corporate lawyer you will often be referring to regulations, circulars, notifications and guidelines issued by RBI on various banking-related issues – situations where you are required to refer to the Banking Regulation Act or the Reserve Bank of India Act will be very few.

Tracing various policy developments on an issue through numerous circulars and notifications of the RBI can be a tedious task – to simplify this exercise, RBI releases consolidated instruments numerous banking-law related issues on an annual basis. These are called “Master Circulars” and contain a coherent collection of RBI’s directions on specific topics. The master circulars are available on the following link:

http://mastercirculars.rbi.org.in

The most important master circulars to read are:

Master Circular on Foreign Investment in India (see here)
This is extremely useful (along with the FDI Policy, see below) while dealing with investment and M&A transactions, which are the bread and butter of law firms.

Master Circular on External Commercial Borrowings and Trade Credits (see here) This is extremely useful while dealing with foreign loan transactions (a lawyer working in the “Banking and Finance” practice in a law firm needs to know this inside out).
Master Circular on Direct Investment by Residents in Joint Venture (JV)/ Wholly Owned Subsidiary (WOS) Abroad (see here)
This is extremely useful while dealing with overseas investments made by Indian companies, a trend which is increasing with Indian companies investing in or acquiring foreign businesses.

#2 – Website of the Department of Industrial Policy and Promotion

The Department of Industrial Policy and Promotion (DIPP) is responsible for releasing the regulatory policy (and updates) pertaining to foreign direct investment in India. The Consolidated FDI Policy (which is now released once every year) released by the DIPP is a commercial lawyer’s bible to M&A and investment-related transactions (the current FDI Policy for 2013 is available here. Any subsequent developments to the policy in a particular year are covered by way of “Press Notes”. For example, the developments on FDI in retail were covered under various Press Notes in 2012 (links to the Press Notes can be obtained from the DIPP website.

#3 – Regulations on SEBI website

Capital markets, M&A and the General Corporate practice in a law firm frequently deal with various SEBI Regulations from time to time. The two most commonly used regulations are the Issue of Capital and Disclosure Requirements Regulations (you can at least go through the definitions) and the Takeover Regulations.

For advanced reading: Other regulations you could go through are the Mutual Funds Regulations, Stock Brokers and Sub-Brokers Regulations, Alternative Investment Funds Regulations and the Investment Advisers Regulations.

#4 – RSS feed updates from RBI and SEBI

Once you know the basics, how can you stay updated on the latest developments in banking and securities laws?

The best way is to subscribe to RSS feeds in a reader. Subscribing to RSS feeds also enables you to follow issues as they evolve and hence develop a deeper understanding, which is much more helpful as compared to last minute preparation. The feed addresses for updates from RBI and SEBI are listed below:

Latest press releases from RBI – http://www.rbi.org.in/pressreleases_rss.xml
Latest notifications from RBI – http://www.rbi.org.in/notifications_rss.xml
Latest updates from SEBI – http://www.sebi.gov.in/cms/sebi_data/sebirss.xml
Copy-paste the following links into your reader – you can use Google Reader till June 30, 2013, after which it will no longer be available as Google plans to withdraw the application.

#5 – The Holy Trinity of blogs and websites for business law enthusiasts in India

Knowledge of international (and Indian) M&A, capital markets and financial transactions can be quite important – if used correctly in an interview, it can demonstrate awareness of contemporary business developments and a deeper understanding of the issues at hand.

Where should you look for the important developments? Reading business newspapers (‘pink newspapers’) can be quite inefficient – While business newspapers are useful for senior officers and industry professionals, an uninitiated law student may need to track them continuously for months before he or she can start making sense of things in a way that is useful for a corporate lawyer. The internet is fairly unstructured, and not knowing what to look for or where to look is one of the biggest problems faced by law students.

Fortunately, there is a simpler and more organized method of acquiring relevant knowledge of commercial developments – all you need to do is to follow 3 websites.

1. The New York Times Deal Book (for international transactions)

Knowledge about contemporary international transactions – the scale, number and variety of the transactions can enable you to substantiate the motives of commercial actors and regulators with appropriate examples in an interview. The New York Times DealBook enables you to know about the latest cross-border M&A transactions in US, EU and the UK in an instant. Some of the descriptions are extremely simple and easy to grasp. It is also my personal favourite for cross-border transactional information.

2. Moneycontrol (for Indian commercial developments)

Moneycontrol is a great site for updating yourself on news pertaining to commercial and regulatory developments (in commercial law) in India. It has a special component, called The Firm (also aired on television) which essentially contains interviews with senior partners of India’s largest law firms and general counsels of blue-chips on regulatory developments affecting businesses. Unless you have relatives in multiple law firms or a journalist covering legal news on a daily basis, The Firm is a great place to read about the impact that specific regulatory developments have had on businesses.

3. Indian Corporate Law

So far, what was demonstrated was the ability to understand and keep track of regulatory developments. What about displaying some analytical skills? How can you demonstrate the ability to (constructively) argue and think as a lawyer? How can you show depth in your understanding of commercial laws (not constitutional law)? Are these skills important?  Many students are aware of latest developments, and some can analyse constitutional law or criminal law provisions fairly well. However, when it comes to framing an argument on a provision in commercial law (say, the Companies Act or the Income Tax Act), most students flounder, which is largely owing to lack of initiation and prior training in the subjects. While the domain “The Firm” of Moneycontrol contains a practical analysis, the Indian Corporate Law blog is a great way to start sharpening your ability to analyse and understand provisions of commercial law.

Optimizing your usage of Indian Corporate Law

The Indian Corporate Law Blog frequently contains a critique of various judgments and orders of regulatory authorities. The posts on the Indian Corporate Law blog can be fairly technical (if you are uninitiated) and often law students stop following the blog systematically very soon. Hence, knowing how to use the blog is very important.

At a law firm, you will usually NOT engage in exercises which debate the quality of judgments/ orders, but will be more considered about the existing position of law on a particular issue, and whether there is consistency in the legal position in different parts of the country. For this inquiry, I recommend using the Indian Corporate Law blog for information about updates and new developments. You need not follow each and every line of argument in a post. After reading the article, it may make sense to read the actual case, or some simpler articles to understand the basics. You may read the post in greater detail (and you could even participate in discussions with authors, who are all very helpful) if you feel interested, but it is not necessary from the point of view of interview preparation.

How much preparation time do you need? What all do you need to learn?

Unfortunately, utilizing the tools mentioned above effectively is a very different task from, say, reading the whole of Avtar Singh, because the information on the New York Times DealBook blog is not easily measurable in finite terms. At the same time, you should remember that you are using the tools not to learn about each and every transaction that has taken place in the world, but ‘to get a hang of’ commercial transactions, which is a demonstrable attribute in an interview. If you start reading materials on the above tools carefully, you should start noticing a significant difference in your understanding of commercial law in as little as two weeks.

Did you find this article helpful? If yes, you can share it with your friends.

Do you wish to share stories of how you prepared for a law firm interview?

Is there anything else you would like us to address on this blog with reference to interview preparation?

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All the best!

The post How to prepare for a law firm interview appeared first on iPleaders.

This article was contributed by Kanan Dhru and Kelly Dhru, two lawyer sisters from Ahmedabad who are working on improving law and governance in India for  several years now. They started Lawtoons, a cartoon series about the laws of India, with the goal of making laws and individual rights easier to understand and fun to learn for children (how coool is that?!). By illustrating laws in a series of interesting and inspiring comics, they hope to create a more empowered society in a fun way. Over to Kanan and Kelly.

The Dhru sisters, Kanan and Kelly write on iPleaders blog experts’ column

So we have been working on Lawtoons, a comic series to make laws interesting and fun to learn for kids! Since we crowdfunded to make it happen, the project has been growing from strength to strength! We are super excited to be on this innovative and super creative journey and here’s what we think we have learnt along the way!

~ Kanan and Kelly, two sisters who happen to work together, well!

 Lesson#1: There is a fundamental need to make laws simplified and fun!

“If ignorance of law is not an excuse, how can our laws be so complex?”

Does law, by its very definition, have to be so technical? Don’t you think that the laws and rules that govern us have to be simple, so that more people can understand them? Is it possible to talk about legal concepts in any manner other than jargon-filled complex black and white letters?

Even before creating Lawtoons, we have been working with school kids to talk to them about the ideas around laws, rights and democracy! We saw how children lite up the moment we used stories and interactive ways to communicate. But the same information, when it was presented to them in their civics curriculum, they found it dull and boring. How tragic it is, that the information that can make our citizens more informed and empowered, is presented in a way that they don’t even like to read?

Lesson#2: Law can be simplified.

 We took on the challenge to create children’s stories that can educate kids and grown-ups about fundamental legal concepts, and touch wood, we have succeeded!

Einstein was right – if you can’t simplify, you don’t understand it well enough!

Those wigs and coats that can intimidate, can also create beautiful stories that can touch the hearts of people. Concepts of law emerge out of day-to-day situations, and the nav-rasas can indeed be blended with the Jurisprudentia. And what’s more – there’s a little bit of a magic that we invite you to come and read! After all, the language of visuals and graphics has been with us since the very beginning of human civilization!

 Lesson#3: It is all about finding a narrative!

 And storytelling is way more complex than you can imagine!

It all started from telling a story – a story that was fun and interesting, for the kids of 10 to 14 years! We had to build the characters that they would like and create a world they would love to play in!

We realized that the best way was to talk to people from different disciplines and most importantly, the kids themselves, who can refine our way of looking at the world from the perspective of a 12 year old!

“Who will explain the laws to Pugloo?” “What should the solution be?” “Who is the antagonist anyway?” “Will people understand these nuances?” And the questions were endless, as we went along finding the right narrative.

Realization # 1: stories are all around us. Realization # 2 : For all stories that sound just about great, there’s a compelling story in opposite direction and has an equal force! Realization # 3: As Buddha said, find a middle path! Between thesis and anti-thesis, there is always the synthesis!

 Lesson#4: Cartoonists and illustrators live in a world of their own!

 And we love working with them… or we love who we are when we work with them!

Lawtoons was our entry into the world of comics and animation! We did our background readings – looking up comics from different parts of the world, it saw us attending festivals to be able to tell what makes a good graphic novel to even spending time discussing the very idea of what is a ‘comic’, has changed us so much!

We’ve had so much fun getting our right brains working overtime! The creative minds working with us have exposed us to an alternative way of looking at life, to be correct!

During the process of creating Lawtoons, one and a half of the two of us have realised that she is more of an artist than a lawyer! And as Frost said, that has made all the difference.

Lesson#5: When you are working on a good cause, people will support you!

Look at all the crowdfunding they got!

“Sometimes I’ve believed in as many as six impossible things before breakfast”

And for Lawtoons, it has been incredible to see all of them come alive! What began with a simple idea started getting great support from people all around us. Be it in the form of design support from NID to the media support to even encouragement from beyond borders to replicate our work in their local languages! And to top it all, the overwhelming response to the crowdfunding campaigns to make the very idea possible has honestly, kept the khushi ke aansoo (tears of joy) rolling down our cheeks!

Every time, almost every time, the very mention of our work on Lawtoons got the heads nodding! The statements like: “Oh this is extremely important work” or “Children must know what their rights are and what better way than cartoons!” or “Can elders read Lawtoons too?” constantly make us humble and make us realise how powerful the medium of comics is to communicate the essential knowledge of law!

The post 5 things we learnt while working on Lawtoons appeared first on iPleaders.

Let’s say you are one of the lucky lawyers who is consulted by actual businessmen who make money. Lucky because not all lawyers can independently generate business. Only some do.

Smart businessmen will usually come before they get into trouble – they will also pay better because they care more about protecting their business than saving a bit of money by going to an ineffective lawyer. They can also afford to pay better, as they take good care of their booming business and do not have to pay out big-buck judgment day compensations and/or bribes here and there (we certainly hope so).

They can also focus on their actual business rather than running after ten regulatory bodies, banks and investors trying to save their neck for non-compliances. Those are the clean, smart, focused, well paying sophisticated entrepreneurs – every lawyer’s dream clientèle. If you see them, help them with everything you have. An important thing to note here: entrepreneurs are mostly frustrated after initially trying to work with a majority of lawyers and now stay miles away from the average Indian lawyer. They use their trusted networks to find the ones who understand their business and provide startup friendly services.

I know most of my readers are from sophisticated law schools, some of you are fancy mooters and great debaters, and maybe toppers read this blog too? Well, how many of you understand the basics of business? Even the simplest concepts like revenue models discounted cash flow, burn rate, or project management is not understood! Talk about vocational studies – despite all your knowledge of takeover code and contract act – you can’t even join in a conversation between a couple of new age (or old age) CEOs talking about their business strategy.

To top that, business models and processes have changed like crazy. The new age businesses, where the real growth seems to be happening, carry out very different sort of activities. If you are their lawyer, you’d have to protect them in the course of those businesses. If you don’t understand their world by stepping into their shoes, and you are trying to draft their contracts, End User License Agreement or website usage policy, may the universe have mercy on the soul of your client.

Well, the smart clients figure out quickly – and move on. Even if you are in a firm that advises businessmen, you could be the star just if you knew how businessmen think, what value they seek, and what they want you to understand. If you can speak their language too, then there’s nothing like it.

Traditionally, this is the example cited to explain why lawyers need to understand business strategy. Think of a business making low-cost products, on thin margins, and with lots of competitors – it will need more legal support to protect it from product liability suits, finetuned distributor agreements, strong trademark protection. Think of another business, with a niche and patented product, not much competition – it will spend more on Intellectual Property creation and enforcement.

Here are some reasons why a business lawyer in this day and time can’t afford to not learn how business is done:

Reason #1

Clients don’t trust lawyers who don’t have understanding of their industry – this is why experience is highly valued

(c) Museums Sheffield; Supplied by The Public Catalogue Foundation

He has come to you so that you can protect his business. If you don’t get how this business is done, he will never trust you. Everyone wants God and lawyers to understand things without having said anything. If you don’t know how business is done, you wouldn’t even ask the right questions.

Quick tip: before talking to your client at length about the services he wants, figure out how business is done in his domain or industry. Talk to those who may have some idea. Tell him what he has not thought of or doesn’t know. And remember that every good businessman knows some law.

Reason #2

In the beginning of your career, you need to establish your expertise with every client

Heck, some clients will even take pride in knowing more than you. If you let them get away thinking that way, you are screwed. Your bills are even more screwed.

They need to understand that you are the expert – and the only way they’ll understand this is if you can tell them how the law you are talking about is connected to their business. That is the job of a lawyer – to explain to him how his business realities interact with the law. If you don’t get the business part, you will simply not be effective.

Quick tip: Listen to your client – before paying money to come to you, he or she is most likely to have thought of some strategy. If you don’t get that out first and deal with it, it will come in the way of what you need to do eventually.

Reason 3#

This is how you compete with more experienced lawyers and brand names – by having superior understanding of a niche

There would always be more experienced lawyers. You are competing with them for clients. More experienced lawyers are not preferred because they know more law! The laws are the same for all the lawyers. It is just that because they have been around for long, they understand a business better. People in the business find it easy to work with them.

However, something has changed over time – as I said earlier, there are some very different sort of new age businesses around these days – and even the most of the rest are also being forced to change the way they do things quite rapidly. E-commerce, for example has shaken traditional business models across geography and business size. Many young lawyers are taking advantage of the rapidly changing business scenario, by building in-depth understanding of profitable business niches. We saw this happening in Regulatory Litigation in the last decade. This happened with startups, this is still taking place with cyber crime practice. Now we have law firms specializing in education, and startups focusing just on business registration and licenses! Some lawyers have built empires just by doing labour law compliances.

If you are a young, enterprising lawyer – that’s your market. Take an emerging area and become an expert at that.

The post 3 Reasons Why A Lawyer Needs To Understand The Client’s Business appeared first on iPleaders.

Yashvardhan Pratap Singh completed the NUJS diploma in Entrepreneurship Administration and Business Laws in 2015. He has interned with prestigious organisations like is ONGC Videsh Ltd and various lawyers.He is currently preparing for civil service examination.

As a part of our exercise of talking to students and alumni where founders directly take structured feedback, we asked Yashvardhan how the course helped him so far in his career and he had lots of positive feedback about the course. So we decided to share it with all of you as a success story. Over to Yashvardhan.

I was in my fourth year of BA LLB program at Jindal Global Law School when I enrolled for the NUJS diploma in Entrepreneurship Administration and Business Laws. I wanted to learn more about business law as I always felt that only the theoretical knowledge provided at the college would not help me in future.

I saw an advertisement of the NUJS diploma in Entrepreneurship Administration and Business Laws course online and I liked it instantly. I read details about the syllabus and curriculum and was confident that this would make me understand business law at a practical level. I was sure this course would guide me to the knowledge I’m seeking. The most impressive thing about this diploma course is that it has taken e-learning to the next level. The webinar series and the sessions with the industry experts and top lawyers gave an insight into the intricacies of corporate world. In short this has been the best learning experience I ever had.

It is a unique course not just in terms of business laws but in terms of understanding the needs of an entrepreneur and giving an insight into structuring and organizing businesses and new ventures.

Since my school days I wanted to clear the civil services examination and become a bureaucrat and currently I’m preparing for the civil services examination but I want to be very realistic and keep a second career option planned.  In a situation where things don’t go the way I want I would like to build my career with a Law firm.

Moreover, I know that understanding startups and businesses better through this course would be an asset for me even if I become a civil servant. In light of the changing times, and the Prime Ministers agenda of buttressing India’s economy through startups, I think my choice of pursuing the course has been very timely.

The NUJS diploma in Entrepreneurship Administration and Business Laws is Boon for people who plan to work in corporate sectors, even those from non legal background can follow it easily.

This course has frankly struck the right chord with people who want to make it big in life …be it lawyers, entrepreneurs or even bureaucrats …I say even bureaucrats because today’s world is run by businesses and the bureaucrat need to have a fair understanding of the corporate laws. I’m sure this course would help me in once I’m a bureaucrat also.

The way India is becoming an investor friendly destination, providing a platform for international trade …this diploma would  help a bureaucrat to have an idea about how businesses startup, regulations work etc. We have seen businesses complaining red-tapism and lethargy in bureaucrats. However if bureaucrat do this kind of courses they would have an insight into the Laws and working of corporate sector.

A bureaucrat has a lot of power and if they are equipped with right knowledge they can actually use their knowledge for the betterment of the society. I hope that I will succeed in becoming an exemplary civil servant and make a difference to the fortune of the country.

The post Why did a Civil Services aspirant from Jindal Global Law School pursued NUJS Business Law Diploma Course appeared first on iPleaders.

How it is to work as a lawyer in Abu Dhabi after graduating from India as a lawyer? Mahima, a legal consultant in Abu Dhabi, UAE, shares her first hand experience.

Having graduated from Jindal Global Law School earlier this year, it was time for me to work over my career options that although seemed arduous in the start, eventually led me to working with a local firm based in Abu Dhabi, United Arab Emirates. Since I had studied the five year integrated BA/LLB course in India it was a challenge in the beginning to cope with a new jurisdiction within the first year of my professional experience. However, it has been a lucrative and fruitful experience to the extent of building a momentum whereas it comes to my growth in the legal profession. One of the fundamental questions I’ve persistently been asked by my peers and fellow graduates from India is this: what are the differences I face in my working as a lawyer in Abu Dhabi as compared to India. This blog attempts to highlight five fundamental differences, which I hope will assist every Indian lawyer attempting to pursue their legal career within the United Arab Emirates.

Difference 1#

Civil Law vs. Common Law

One of the main differences between the two jurisdictions is that while India has remained a common law system, highly attributable to strong legal developments from the colonial times, UAE follows a civil law system.

In India, higher court judgments bind the lower courts to act in light of their judgments since they form precedence and as Indian lawyers, every case we work on requires our in depth knowledge of the case history to understand and trace the law within such judgments.

This is not the case in UAE since higher court judgments only serve as a referential guide and is not binding on the lower courts. They are merely looked upon to clarify the position of the law but not as binding precedents.

There are advantages and disadvantages to both the systems because as an Indian lawyer if I am to advise my client on a certain issue or matter which we hold contentious we are somewhat certain of the route the Indian courts will take in dispensing that judgment, whereas in UAE when we advise our clients we like to create a more ambiguous picture since no previous judgment remains binding and cases are largely assessed on a case to case basis which somewhat makes things slightly uncertain when trying to assess what route the courts in UAE will adopt. The disadvantage for the former common law Indian system is that when conducting research, our primary focus lies in using the law and researching through all the judgments passed on that matter which implies sitting behind books and spending hours trying to understand what the higher courts may have ruled over a particular issue. This is an advantage in UAE since our focus remains on researching the law, but primarily using legal strategy to advance a strong case for our client and that requires a strong legal acumen and understanding of the operation of laws and their application.

Difference 2#

Working with International lawyers on a level playing field

UAE does not restrict the entry of foreign law firms and some of the best international law firms have their offices based in the Emirate of Abu Dhabi as well as Dubai such as Allen & Overy, Clifford Chance, Latham & Witkins, White & Case etc. For any law graduate who interns in their offices here, they become well exposed to the workings of such firms and have an added advantage when applying for their training contracts. For professionals working in Abu Dhabi, one is constantly in interaction with these firms and as a first year professional here, this has been one of the very rewarding experiences. You get to udnerstand understand what sets the benchmark of these law firms higher than the rest, which in turn enhances your own personal growth in the legal field.

In addition, some of the international law firms have even undertaken mergers with local firms such as Baker & McKenzie with Habib Al Mulla. In India, the laws and judgments such as the 2009 Bombay High Court and the earlier Madras High Court verdict have rendered it impossible to open foreign law firms in India. Practically however, there had been a strong practice of maintaining friendly relations with foreign law firms. Still, there is no scope of a direct presence of foreign law firms in India. On a policy forefront this has been widely debated this year and bodies such as the Society of Indian Law Firms who earlier maintained a rigid stance on not opening the Indian market to foreign law firms are now proposing a phased sequential approach to allow entry of foreign consultants and foreign law firms in India. It seems India will still take a while to allow entry of foreign law firms.

Difference 3#

Practicing litigation is not much of an option in UAE for foreign lawyers

One of the major setbacks in UAE as an Indian graduate is that, other than the free zone areas such as Dubai International Financial Centre, which have their own set of laws, litigation may not be a very feasible career option to pursue here for Indians or other foreign lawyers. To plead cases before the UAE courts, one is required to not just be well versed with Arabic (which is the official language of the courts) but as is the most common criterion, also be a UAE or GCC national. Foreign consultants and foreign lawyers are usually never allowed to plead cases before the courts and while there maybe different practical methods adopted, it is still a restrictive legal career option in UAE.

Compared to this, a large number of corporate lawyers in India transition into litigation or arbitration, and if they don’t it remains an option one can consider anytime.

Difference 4

There is a lot more to do in legislation and policy expansion space

Since the constitution of UAE was adopted in 1971, one of the biggest advantages for an Indian law graduate who has been exposed to laws dated back to colonial times is using that knowledge and developing additional legal skills when working on policy matters and development of laws here in the UAE. As a lawyer one becomes an active participant in the formulation of new laws and amendments since in comparison to India, there is huge potential for legal developments in UAE. This is highly advantageous because it helps identify legal issues, lacunas, strengthen legal research skills as well as in understanding the entire mechanism and workings of new laws. It also exposes you to understand the impact of culture in developing a law that is predominant in UAE since Sharia is considered one of the primary sources of law.

Differece 5#

Size of big law firms is different in UAE

The size of the big and leading law firms in UAE being approximately 90-100 lawyers while in India the big law firms are approximately 500-600 lawyers. I found law firms in UAE to be smaller in size to than that of an equally placed firm in India. This could be attributed to the demographic difference whereby India ranks much higher than UAE. However smaller sizes can be beneficial for beginners like me. Since the law firms in UAE are smaller in size, as a lawyer you witness no hierarchy because when working on projects and legal matters you work as a single team with the senior associates. This becomes particularly important when developing one’s legal skills since it enables you to derive a lot of knowledge from the direct interaction and collaboration with your seniors and so far as a personal experience this is something I have witnessed first hand.

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This was the first ever blogpost I ever wrote. I launched a blog called A First Taste of Law when I was studying in my 2nd year in law school, in 2008 with this post that I was compelled to write when faced with a fee hike that threatened to cut my career as a law student short. The fee hike took place, and I managed to pay the increased fees as I started to work on the side. Interestingly, working part time was prohibited by the rules of the University. Anyway, as we have shut down A First Taste of Law, I am republishing this article on this blog. Read on to know how a 2nd year law student studying on student loan feels when there is a huge fee hike.

I have been planning to create this blog for some time; the events that precipitated me to do so also determined the subject of my first post.

The news about the fee hike at National University of Juridical Sciences (NUJS)for the incoming batches as well as existing ones is not really new, and the students know about this for weeks now since they started receiving an ominous letter from the University summarily informing them that their annual fee has been hiked (by 50% of what it used to be) and depending on whether they have taken admission through general seats or NRI sponsored seats, they will now pay a fee increased by Rs. 45,000 (for general seats) or $1500 (for NRI sponsored seats) every year. While the existing students were shocked to know the quantum of the hike, most of them did not notice that the hike for the incoming batches was far more severe. For them, the fee was increased by 100%. NUJS as of now is charging the highest fee among all the law schools – three times the fee that is charged by, for example, RMLNLU, Lucknow, another law school with state-of-the-art infrastructure (Surprisingly, it was the law school that charged the least when I joined NUJS back in 2006). Though the news is not new, but all its consequences are becoming clearer as days go by.

Recently there has been some much needed and awaited improvement of infrastructure in NUJS. There has been tremendous improvement in the quality of faculty as well (currently there are 4 oxford alumni in the faculty, apart from a fairly large number of ex-law schoolites and those who have been to either a red brick or ivy league university). It understandable that the expenditures of the University has increased, especially in view of the sixth pay commission. The University has not offered any reason for the hike to the students, but from interaction with members of the faculty and others, the reasoning seems to be simplistic. The expenses have increased, so the fees must go up. Even the IITs and IIMs have been raising fees, why should the law schools not do the same?

There is no doubt that expenses are increasing and fees paid by the students is the source of income for a law school like NUJS which takes pride in its financial independence. However, anyone familiar with the law school scenario will be able to tell you that some very important things have been overlooked.

The ability to pay varies widely among the students. The fee was already high right from the inception of law schools, but the Rs. 70,000 per annum or so fee (which unlike the IIMs, have to be paid for 5 years) was not found to be something unmanageable even by those who did not have the money, as banks were forthcoming with educational loans as even the banks were aware of the 100% recruitment rate in NUJS. The world of banking has changed much since the subprime crisis and slow down. Banks, including PSU banks, are not even willing to extend an existing loan by the extra Rs. 90,000 that I need to complete my legal education. If at all they would consider it, they want a collateral security (naturally, as they know that in face of the economic slowdown the job market, including that part of it where young law school graduates seek to be employed, has been more than suffering).

The loan officer from SBI also reminded me that I must take Life Insurance coverage for the whole amount I shall take as a loan, and only 75% of the entire amount to be paid to the University can be financed according to their rules. The interest rate, of course, has to be floating (it is subject to change, and will always be above the standard rate of interest). I fail to satisfy the first condition of providing collateral itself, so an extension of the loan was ruled out.

And all these despite the fact that I pay monthly interest on the borrowed amount instead of letting it accumulate. Even before paying any part of the hiked fee, my parents already pay above Rs. 3,000 in interest and the necessary life insurance cover I had to take to get the loan. Anyway, I have been able to find alternative sources, at least for the time being, to finance my education (I am doing some part time work and my parents are breaking some of their savings to sail me through the last two years in law school education). I have been fortunate that both my parents have stable government jobs. I wonder what I would have done if one of them was in one of the many industries stricken by the recession, layoffs and salary cuts. For several reasons, as I learnt over the course of the last two months, and that not only of my own, I have come to believe that the nature, quantum, and timing of the hike has been unjust and inappropriate. The management has failed to take in consideration many issues that should have been their priority as custodians of the Institution.

Firstly, a law school is an inherently American concept. The Indian law schools were modeled after the law schools in the USA. Those law schools are not totally dependent on fees earned, and from infrastructure development to different chairs, much is financed by private endowments. Law schools there are free from the control of the government, and they are autonomous. Indian law schools want to have the same autonomy, but they have done precisely little to mobilize any sort of funds. At least NUJS does not have any private or government endowment to speak of, barring a couple of chairs endowments. In the past, the management has even turned away corporate donors. However, they expect to finance a world-class library, computer laboratory, wi-fi and a master roll of who’s who of Indian legal education for faculty out of the fees paid by the students. What is the result?

The fee levied on students is something that is out of reach of even the middle-class student, forget the poor ones. Law school is a dream for many who want to use education as a tool to do well in life, but it seems if you are not well-to-do and afford to pay 1.8 lakh per annum for 5 years, NUJS is no place for you. It is true that there are many many students ready to pay this fee for a seat in NUJS, and many of hem can afford even more, but this also puts many students out of the fray. NUJS is choosing who can study in the University, and I do not think this choice entirely belonged to them. If the economically weak is to be effectively excluded from the best legal education in the country, there ought to be a more public debate and a policy decision at a higher level.

Secondly, I heard that there has been a proposal that to enable poor students to study in NUJS, there will be 10 scholarships given per batch, though no criteria so far has been announced for that. I assume some of the scholarships will be reserved on basis of caste. the other criteria Will me means-come-merit as usual. Thereby, the number of poor students who can study in NUJS will now be effectively restricted to 10 seats per batch. Till now, almost anyone could finance a law school education by supporting it with a bank loan. Again, this was not a call NUJS management was entitled to take on its own. Interestingly, The VC has apparently told the student representatives that it will never happen that a student will fail to study at NUJS because of financial reasons. I hope he would explain his position more publicly.

Thirdly, given that till late neither faculty or infrastructure was anything remarkable compared to other law schools,NUJS always have done wonderfully compared to those which had better faculty and better infrastructure. It has always trumped other law schools with its students. Students broughtNUJS fame and recognition. Even now law firms visit NUJS in campussing season in hordes because of the quality and effort of the students. Now the fee hike move is going to compromise this strength NUJS always had. A number of students who cracked CLAT this year told me that they are wishing that they had put NUJS further down the preference list, and then they could have gone to another law school with little difference and pay half or one third the fee. Given that students get admission throughCLAT these days, the extra fee is going to make a difference as meritorious but financially weak students are likely to rule outNUJS (even assuming they had a choice).Fourthly, even if increasing fee was an inevitability, the timing of the decision is appalling. This is the first time in history of

NUJS the recruitment was not very good. it has been far worse than any recruitment ever (as it has been everywhere else), average salary has dropped by an approximate 50 -70% (still much better than most other law schools, with the possible exception of NLS, Bangalore. Law schools this time has not very forthcoming with their recruitment data), and I would not write any more details of it here, but the facts are very well known to the management. I also presume they know that all the banks have tightened their strings since the subprime crash, and they are fairly aware of the situation with the job market. They are more reluctant than ever to give hefty educational loans. Last time I heard, the University had a buffer of 14 crore stacked up in government bonds. Is this not the time to use such buffer rather than making the futures of law students uncertain (which is already uncertain given that foreign law firms has reduced their absorption rates from training contracts, and law firms in India are hardly expanding anymore; and starting salaries are all time low)?

Further, though the University treats the students as its only source of funding, it is not ready to discuss the hike with them. It did not find it necessary to explain to them why a fee hike was necessary or justified. No suggestion was asked from them about alternatives. The university seems to treat the students like a stretchable money bag, unworthy of consulting. Students and alumni are very important stakeholders of

NUJS, I wish the management understood that and could use that fact to the benefit of the university.

Lastly, NUJS is not facing a problem that no other law school faces. All other law schools are financially independent as well.NLS, Bangalore also increased its fee this year, but the new fee is applicable only to the new batches that will enter. Also, the quantum of hike is far more moderate.NUJS has a duty to explain this unprecedented hike.The worst off in this dilemma were who applied through the NRI quota to NUJS.

At the time they applied, the fee to be paid in 5 year was something around 9lakhs. After they had submitted their form to the CLAT office, they were notified that fee has been increased to 18 lakhs. Many of students who applied through NRI quota in the hope of getting through NUJS could afford 9 lakhs, sometimes with aid of an educational loan, but 18 lakh is an entirely different story. The worst thing is, due to a strange ‘preference system’ that law schools follow, if one gets NUJS through NRI quota (for which one have to get an NRI to officially agree to bear the fees; in reality though, the parents bear it), they can not go for another law school even if normally their rank would allow them to do so. What happens to those students who could afford 9lakhs, but can not afford 18lakhs? if they get through NUJS, they would not be able to study in any law school though their rank would have allowed them otherwise. The reason for this eludes me.I hope the management has very good reasons to increase the fee in such a manner, and would offer that explanation to the students and their anxious parents. They should engage in a public debate before giving effect to this decision.

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Why do we need the National Law Universities?

Not everyone will agree on the answers to this question. Do we need to worry about the future of the law schools in our country? To know which direction the growth of law schools will take, we need to look at the interests and investments that we call a law school. This article is being republished from A First Taste of Law, which has now shut down. This was originally published in 2010.

The old guard and the Bar Council

The Bar Council would assert once in a while that law schools are meant to be breeding ground for the next generation of lawyers to replenish the bar – ‘to raise the bar.’ When it is time to chose a director or a VC to head a law school, potential choices who are likely to ‘inspire’ the students to join the bar are known to be ‘favoured.’ While gracing formal ceremonies in law schools, dignitaries from the bar are often kind enough to remind us that true calling of a lawyer is in the bar and the bench, in the precincts of justice (that which loses little of its glory due to the stink, bribery and stained walls that you come across during your visits).

Well, whatever maybe the reason, all these efforts fall on deaf ears in most cases. No amount of inspiration seems to be enough for most of the greedy law students who would become transactional lawyers (glorified clerks, remember?) anyway (and willfully pass on the opportunity to spend the valuable years of their life in chambers of the stalwarts of the bar and their parents’ hard-earned money at the court canteen).

The law firms and corporate in-house departments

Who benefits the most from various law schools and National Law Universities being established? Undoubtedly, the law firms, the biggest recruiters of the graduates. Some of the top law firms barely recruit anyone apart from top NLUs. At least the bulk of recruitments happen from National Law Universities. The reason for this is simple – the NLU curriculum helps the graduates to become better at legal research, writing and speaking in English – these skills being the most fundamental ones needed by law firms. Imagine if AMSS and Luthra had to exclusively rely on government law colleges for fresher recruitments! It would be a blood bath.

Not only big law firms, but as smaller transactional law firms also benefit greatly from the ever increasing ranks of NLU students. The NLUs have undoubtedly attracted more intelligent and hard working law students that any other traditional colleges over time. The attraction of NLU students is that they are well spoken. polished, used to rigorous work and ambitious. Also, usually their knowledge of law and writing skills are far superior than what traditional law colleges produce.

On the other hand, proliferation of these mostly self funded NLUs would have been impossible if not due to these law firms which dutifully recruit a large number of mostly untrained and unskilled law graduates every year! Why would talented middle class and upper middle class kids work hard on an unpredictable exam like CLAT, compete with tens of thousands of other kids, and then pay close to 10 lakhs in fees unless they get recruited with a great pay package for this in the end? In any case, economics of studying at law schools have greatly worsened over the years, making it less and less attractive. Still, thousands of law students are willing to take the chance and compete for a few hundred law firm jobs every year. If these jobs didn’t exist or went away, National Law Universities would have been doomed!

Clearly, law firms have a great interest in Universities and they often influence the Universities through soft means, like grants for chairs or specific activities. Most moot courts and other student activities at NLUs are funded by law firms, and that should not surprise you.

The bigger picture – globalisation

Arre, wait a minute! The establishment of law schools coincided with the opening up of the Indian economy, isn’t it? So was that just a coincidence? Was this not the idea that the new age law schools will provide the army of legal experts who will handle the legal side of a booming Indian economy, providing it the legal security that would have to be bought abroad otherwise, and also the type that can not be shipped?

Was is not a part of the vision that Indian is going to be the knowledge capital of the world in the new century, and to make sure such knowledge is complete, were not the law schools perceived as the cutting edge research institutions that will train students in legal subjects which are often not the forte of the lawyers currently practicing in most courts (Biotechnology law or International Commercial Arbitration for instance)? Was is also not a purpose to create lawyers who understand business and can ensure that the law goes hand in hand with economics?

Well, maybe these were not exactly the purposes the Bar Council had on its mind, which is quite understandable and excusable. Although it has been saddled with the weight of the entire legal education system in India, its core interests (political and regulatory) are far narrower. The Bar Council may represent the multitudes of lawyers practicing in Indian Courts, but they certainly don’t represent the entirety of legal community and their interests.

The architects of law schools in India did not exactly think law schools to be a tool to create only litigators and judges. Creation of law schools was a much needed boost to the economy, at least for the pioneers (some of them chief ministers and administrators, and others legal luminaries) who took the initiative to establish law schools which was extraordinary at that time on many counts.

And the students

In my last year of school, when I was considering if I should choose law over a career in medicine (and my parents were mad at me for even considering), I was told that law schools are places where one has got to be in order to take advantage of the Globalisation and have a global career in its true sense. Make international deals happen, advise Chinese industrialists on E.U. competition law, work on presentations en route a business meeting in Cypress, at least contribute in resolving some international crisis or maybe, be part of a diplomatic envoy negotiating with some Latin American dictator. That’s what I thought I might get to do someday when I chose to become a lawyer.

Well, it is foreseeable that there are lawyers who do that sort of things for a living, and we were told there is much demand for ‘legal experts’ from India who would be competent enough to do such cool stuff. Apparently, in law schools you get ample opportunities to become one. No doubt the second sort of reasoning was the one that led me to chose law as a career. If I thought the only option for me would be to don black robes to argue in our literally dirty and grimy ‘Halls of Justice,’ where litigators wait for decades to get justice, I dare say that it would not have been a very appealing prospect to me at that point of time (now I hold a different opinion).

Not to forget the public

Students, bar council (and senior lawyers) and the government – anyone else got a stake in the law schools? Oh yeah, what about the public whose money was used (in some cases, it wasn’t) to set up the buildings, to get the acres of land or set up those brilliant libraries? A few, but only very few talks about the public interest in law schools. Those advocating the cause of the public however, will always shout themselves hoarse about the fact that none of these law school students seem to be accessible to the general public for fighting their property disputes or submitting their bail applications. If the country has 2 lakh lawyers out of which only 5 thousand have attended elite law schools, what do you expect, especially when these ‘islands of excellence’ enjoy a very wide gap in quality of education and training with rest of the law colleges in the country?

As long as this is the state of affairs, there’s not point in wasting your tears for the poor. Well, I am sure that the country is benefiting too from the addition of competent lawyers to the workforce. At least we have good lawyers to ensure a smooth sailing of the economy. Yes, that makes a difference in a life of the poor too, though at a macro level that some people tend to miss.

The academicians in search of experimental truth

Another sort of people has deeply embedded interests in the law schools. I am talking about legal academicians.

The ranks of these people have increased substantially since law schools have been introduced. In the 90’s, what could be your option after an uber-hailed LL.M. or Ph.D. degree from Oxford or Harvard? International Law firms, if you are smart enough. Laid back and well-paid life on an academician in an English speaking country, if you were good enough. Coming back to India to fight it out in Indian courts, or joining a law firm. These were pretty much all the options.

But now, law schools like NLS and NUJS are not only paying enough to such academicians if they are ready to return, they are willing to give them enough opportunities to experiment and innovate. Often, this means a great opportunity for further career development to such academicians. They are publishing law reviews, hiring brilliant students as research assistants, organising conferences and networking with academicians around the world on the expense of the law school.

They have their own distinct agenda, sometimes one of introducing their foreign alma mater in practices in Indian law schools, and often such agenda would not match with that of those who run the bar council, or even the law firms scouting for a particular sort of students.

They are everywhere – the politicians

The last but not the least, are the politicians. And unfortunately, law schools have been sometimes the aim of parochial politics. Often the state in which the law school is situated demands a state reservation in return for providing infrastructure. NUJS, at the time when Prof. Chimni was VC, refused to provide for a 50% reservation for students from West Bengal, and in turn was refused enhanced financial assistance from state government. The recent introduction of 20% state quota in NALSAR speaks volumes. So does the recent judgment of Karnataka High Court in a recent case against NLS.

Conclusion

Clearly, law school is a battlefield now. There are several interested parties who will like to see their interests promoted through the law schools. The problem is that many of these parties are completely unaware or are simply refusing to acknowledge that there are other stakeholders with some other sort of interest.

There is a suggestion still alive that keeping in mind the broader interests, law schools should be administered by the Human Resources Development Ministry. That sounds more sensible than the current situation, but whoever takes over will need to think about all these competing interests.

The post What is the purpose of establishing National Law Universities in India? appeared first on iPleaders.

This article is written by Priyal Anand, a student of the NUJS diploma in Entrepreneurship Administration and Business Laws and Manish Ranjan, 3rd year, NUSRL Ranchi. Priyal writes about intellectual property protection of traditional knowledge, cultural expressions and challenges that the IP law is facing regarding this. Over to Priyal.

Priyal Anand

The traditional cultural expressions also known as “the expressions of the folklore” has its root in the culture of the indigenous local communities. “Traditional knowledge” is employed to mean knowledge, innovations and practices of indigenous and local communities to such an extent that most of the time it becomes their social identity and the means of earning their living.  Whereas, the futile and nearly stagnant protection laws of our country makes the Traditional Knowledge and Expressions vulnerable to attacks in the International market. These situations raise unique IP challenges and, in response, institutions and researchers in many countries are developing new frameworks for understanding the legal, cultural and ethical implications of caring for TCEs. Apart from the increasing competition in the International Market there are various other debate points in this issue which makes it a major IP topic for the ongoing worldwide debates and the centre of the rising treaties and agreements.

The previous activities of WIPO and other leading organizations like UNESCO in the field of Intellectual Property and Traditional Cultural Expressions popularly known as TCEs, have over a period of more than 30 years, identified and attempted to address several legal, conceptual, operational and administrative needs and issues related to the protection of TCEs. The references of which can be taken from the Berne Convention which made an attempt to provide the copyright protection for Folklore at the international level or the WPPT & WCT adopted in 1996 recommended that “provision should be made for the organization of an international forum in order to explore issues concerning the preservation and protection of expressions of folklore, IP aspects of folklore, and the harmonization of the different regional interests.

Be it the controversy regarding the traditional knowledge being a mere practice of imitation since it embodies following the traditional life-styles and wisdom developed over many generations of holistic traditional scientific utilization of the lands, natural resources, and environment., its intangibility as it is generally passed down by word of mouth, from generation to generation and is, for the most part, undocumented , extent of use of a TCE being a legitimate cross-cultural borrowing and its “misappropriation”, problems faced due to

the digitization of these expressions and several more TCEs have always been fighting this battle for the continuing survival of their identity and further developments respectively.

There are two general approaches among States to the legal protection of TCEs. Some believe that TCEs are adequately protected by existing IP systems, and that no additional measures or systems of protection are necessary or appropriate. Others believe that the establishment of new, specific measures and/or statutory systems is necessary either to complement existing IP rights or act as a substitute for them because they are regarded as inadequate and/or inappropriate. The latter are referred to in this paper as “sui generis” measures and systems. Among those who believe that conventional IP systems are adequate, a third approach may also be detected which supports adapted, extended or modified use of existing IP to meet specific needs.

HISTORY & DEVELOPMENT OF INTELLECTUAL PROPERTY AND PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS

Previous activities of WIPO in the field of IP and TCEs, several of which were undertaken in cooperation with UNESCO, have over a period of more than 30 years, identified and sought to address several legal, conceptual, operational and administrative needs and issues related to IP and TCEs.

PROVISION OF INTERNATIONAL PROTECTION FOR ‘UNPUBLISHED WORKS’ IN THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS IN 1967

The 1967 Stockholm Diplomatic Conference for Revision of the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”) made an attempt to introduce copyright protection for folklore at the international level. As a result, Article 15(4) of the Stockholm (1967) and Paris (1971) Acts of the Berne Convention contains the following provision: “(4)(a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.” “(b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General [of WIPO] by means of a written declaration giving full information concerning the authority thus designated.

Adoption of the Tunis Model Law on Copyright for Developing Countries, 1976

The Tunis Model Law provides specific protection for works of national folklore. Such works need not be fixed in material form in order to receive protection, and their protection is without limitation in time

The Model Provisions, 1982

Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions were adopted in 1982 under the auspices of WIPO and UNESCO (“the Model Provisions”)

The Model Provisions were developed in response to concerns that expressions of folklore, which represent an important part of the living cultural heritage of nations, were susceptible to various forms of illicit exploitation and prejudicial actions. More specifically, as stated in the Preamble to the Model Provisions, the Expert Committee believed that the dissemination of folklore might lead to improper exploitation of the cultural heritage of a nation, that any abuse of a commercial or other nature or any distortion of expressions of folklore was prejudicial to the cultural and economic interests of the nation, that expressions of folklore constituting manifestations of intellectual creativity deserved to be protected in a manner inspired by the protection provided for intellectual productions, and that the protection of folklore had become indispensable as a means of promoting its further development, maintenance and dissemination.
Attempts to establish an international treaty, 1982 to 1985
A number of participants stressed at the meeting of the Committee of Governmental Experts which adopted the Model Provisions that international measures would be indispensable for extending the protection of expressions of folklore of a given country beyond the borders of the country concerned. Two main problems were identified by the Group of Experts: the lack of appropriate sources for the identification of the expressions of folklore to be protected and the lack of workable mechanisms for settling the questions of expressions of folklore that can be found not only in one country, but in several countries of a region. The overwhelming majority of the participants were of the opinion that a treaty for the protection of expressions

of folklore was premature. If the elaboration of an international instrument was to be realistic at all, it could not be more than a sort of recommendation for the time being.

The adoption of the WIPO Performances and Phonograms Treaty (the WPPT), 1996

Folk tales, poetry, songs, instrumental music, dances, plays and similar expressions of folklore actually live in the form of regular performances. Thus, if the protection of performers is extended to the performers of such expressions of folklore, which is the case in many countries, the performances of such expressions of folklore also enjoy protection. However, there was a slight problem in respect of the key notion of ‘performers’ (and the notion of ‘performances’ following indirectly from the notion of ‘performers’). Under Article 3(a) of the Rome Convention, “‘performers’ means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works” (emphasis added). As expressions of folklore do not correspond to the concept of literary and artistic works proper, the definition of ‘performers’ in the Rome Convention does not seem to extend to performers who perform expressions of folklore.

Provision should be made for the organization of an international forum in order to explore issues concerning the preservation and protection of expressions of folklore, IP aspects of folklore, and the harmonization of the different regional interests.

WIPO-UNESCO World Forum on the Protection of Folklore, 1997

Pursuant to the recommendation made during the 1996 Diplomatic Conference, the WIPO-UNESCO World Forum on the Protection of Folklore was held in Phuket, Thailand, in April 1997. Many needs and issues related to IP and folklore were discussed during this meeting.36 the meeting also adopted a “Plan of Action” which identified inter alia the following needs and issues:

(a) The need for a new international standard for the legal protection of folklore; and

(b) The importance of striking a balance between the community owning the folklore and the users of expressions of folklore.

WIPO fact-finding missions, 1998-1999

During 1998 and 1999, WIPO conducted fact-finding missions to identify as far as possible the IP-related needs and expectations of TK holders (the “FFMs”). The FFMs were conducted in 28 countries between May 1998 and November 1999.

WIPO-UNESCO Regional Consultations on the Protection of Expressions of Folklore, 1999
Pursuant to the suggestion included in the Plan of Action adopted at the WIPO-UNESCO World Forum on the Protection of Folklore, 1997, WIPO and UNESCO organized four Regional Consultations on the Protection of Expressions of Folklore in 1999.40 Each of the Regional Consultations adopted resolutions or recommendations which identify IP needs and issues, as well as proposals for future work, related to expressions of folklore.
The WIPO Intergovernmental Committee on Intellectual Property and Genetic

Resources, Traditional Knowledge and Folklore

In late 2000, the Member States of WIPO established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the Committee) for the purpose of Member State discussions on these subjects. The Committee has made substantial progress in addressing both policy and practical linkages between the IP system and the concerns and needs of holders of TK and custodians of traditional cultures.

In so far as TCEs are concerned, the Committee has considered detailed Secretariat analysis of the use of existing IP and sui generis approaches for the legal protection of TCEs. This analysis was based on the national experiences of 66 Member States, surveyed through a questionnaire issued by WIPO in 2001, and a set of case studies. One of these comprises practical studies of actual cases in which indigenous Australians have sought to use IP to protect their TCEs. The latter publication is entitled “Minding Culture – Case Studies on Intellectual Property and Traditional Cultural Expressions”

• TRADITIONAL KNOWLEDGE

Traditional knowledge (TK) has no clear definition. However, TK can be said to include information on the use of biological and other materials for medical treatment and agriculture, production processes, music, rituals, literature, designs and other arts. TK, therefore, includes knowledge that can be used in medicine, agriculture, engineering and cultural events. TK comprises knowledge mostly developed in the past and may still be developing. TK is knowledge used by generations and is passed on to future generations as part of the community’s property. In sub-Sahara Africa (SSA) where the history of writing is still new, most TK is not codified. Such “uncodified” TK includes folklore and traditional medicine that are largely based on traditional norms, values and beliefs. TK represents a reservoir of knowledge accumulated during century’s old experiences of trial and error, success and failure and has been passed on through oral tradition at the family level. TK, such as healing practices, may be possessed by individuals or by a group. Such practices may also be available to all members of a group, for example, knowledge on home herbal remedies. TK may, therefore, possess commercial value depending on its use. Some TK may be understood and used outside its origin but this is not always the case. TK also incorporates spiritual components peculiar to each community. Debate on protection of TK has taken two different angles. The first school of thought looks at protection of TK as excluding others from unauthorized use by third parties. The second school of thought looks at protection of TK as a tool to preserve it from uses that may erode it or negatively affect the life or culture of the communities that have developed and applied it. The Organization of African Unity (OAU) now renamed the African Union (AU) supports the second school of thought. The AU model l0000000aw for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources says in part:

“Community rights recognize that the customary practices of local communities derive from a priori duties and responsibilities to past and future generations of both human and other species. Community rights and responsibilities that govern the use, management and development of biodiversity, as well as the traditional knowledge, innovations and practices relating to them, existed long before private rights over biodiversity emerged, and concepts of individual ownership and property arose. Community rights are thus regarded as natural, inalienable, pre-existing or primary rights.”[2]

REASONS FOR PROTECTION

Several proposals have been made, within and outside the IPRs system, to “protect” TK. Such proposals often fail to set out clearly the rationale for its protection. Any system of protection, is an instrument for achieving certain objectives. Therefore, a fundamental question, before considering how TK may be protected, is to define why it should be.

One reason for a lack of clarity about the rationale for protection stems from the different meanings given to the concept of protection. Some understand this concept in the context of IPRs, where protection essentially means to exclude the unauthorized use by third parties[3]. Others regard protection as a tool to preserve traditional knowledge from uses that may erode it or negatively affect the life or culture of the communities that have developed and applied it[4]. Protection here has a more positive role in supporting TK-based community’s livelihoods and cultures, as proposed by the organization of African Unity’s (OAU’s) Model Law and its definition of community rights. Overall, however, the main arguments for granting protection to TK include:

EQUITY CONSIDERATIONS

TK generates value that, due to the system of appropriation and reward currently in place, is not adequately recognized and compensated. The protection of TK would, therefore, be necessary to bring equity to essentially unjust and unequal relations. An example of this rationale is found in plant genetic resources. Traditional farmers both conserve and use plant genetic resources. The value of plant genetic resources is preserved and enhanced by their utilization for planting, seed production and continuous selection of the best adapted farmers’ varieties (landraces). Such farmers generally interact among themselves on the basis of barter or exchange across the fence, thus fostering the diffusion of their varieties and their further development.

The basic point in this criticism is that traditional/indigenous farmers are not paid for the value they deliver, since breeders and seed companies are not charged a price for the samples they obtain, and neither is there any later compensation or sharing of benefits with the farmers. A similar argument applies to other intangible components of TK.

CONSERVATION CONCERNS

A second factor underlying the claim for protection of TK is based on the importance of such knowledge for conservation purposes. IPRs might be used to generate income to sustain activities that would otherwise be abandoned. If traditional farmers for example, abandoned the use and breeding of farmers’ varieties attracted by the higher income obtainable through planting higher yielding modern varieties then a serious loss of biodiversity could occur19. However, on the conceptual level, it is doubtful whether the protection of farmers’ varieties under an IPRs system would have any positive impact on their conservation or stimulate breeding activity, and whether protection would serve the purpose of strengthening the rights of communities and traditional farmers over their resources.[5]

Under this approach, the protection of TK helps meet society’s broader objectives for the conservation of the environment, sustainable agriculture and food security.

THE PRESERVATION OF TRADITIONAL PRACTICES AND CULTURE

Others see the protection of TK as providing a framework to encourage the maintenance of practices and knowledge embodying traditional life styles. In this sense, the notion of “protection” is quite different from the notion applied under IPRs. The preservation of TK is not only a key component of the right to self-identification and a condition for the continuous existence of indigenous and traditional peoples; it is also a central element of the cultural heritage of humanity.[6] However, merely using a law to make something into property that was previously part of the public domain “does not suddenly save it, conserve it, make people respect it or want to use it. Fencing off their knowledge does nothing to protect it from being even more eroded, undermined, or ignored or at risk of being lost.[7]

THE PREVENTION BIO-PIRACY: THE MISAPPROPRIATION OF TK

Bio-piracy” has been defined as the process through which the rights of indigenous cultures to genetic resources and knowledge are “erased and replaced for those who have exploited indigenous knowledge and biodiversity”. In fact, a large number of patents have been granted on genetic resources and knowledge obtained from developing countries, without the consent of the possessors of the resources and knowledge. There has been extensive 

documentation of IPR being sought over resources “as they are”, without further improvement (eg, US patent No. 5,304,718 on quinoa granted to researchers of the Colorado State University; US Plant patent No. 5,751 on ayahuasca, a sacred and medicinal plant of the Amazonia) and on products based on plant materials and knowledge developed and used by local/indigenous communities, such as the cases of the neem tree, kava, barbasco, endod and turmeric, among others. Many of these patents have been revoked by the competent national authorities. Thus, the Council of Scientific and Industrial Research (CSIR) from India asked for a re-examination of the US patent No. 5, 401, 5041 granted for the wound healing properties of turmeric. The US Patent and Trademark Office (USPTO) revoked this patent after ascertaining that there was no novelty; the innovation having been used in India for centuries. In early 2000 the patent granted to WR Grace Company and US Department of Agriculture on neem (EPO patent No.436257) was also revoked by the European Patent Office on the grounds of its use having been known in India. A re-examination request for the patent on Basmati rice lines and grains (US Patent No. 5,663,484) granted by the USPTO was also made by the CSIR.

The granting of patents unduly covering TK may be prevented by improving the Information available to patent offices for examination of novelty and inventive step this would not be sufficient in the USA, however. According to section 102 of the US patent law, information that has been published in a written form in the USA or in any other country is not patentable. But if the information was publicly used but not documented in a foreign country, novelty is not lost. Unless this relative standard of novelty is modified, the problems of appropriation of TK under US patents will remain unsettled.
[5] Swanson, Pearce and Cervigni, 1994, p. 26

PROMOTION OF ITS USE AND ITS IMPORTANCE IN DEVELOPMENT

Protection may be, in this context, a tool for facilitating access to TK. Some form of protection may create the basis of trust required for the local/indigenous communities to part with their knowledge, and improve their position to obtain value from it. If some rights were recognized, knowledge holders may be more prepared to provide access to their knowledge and, if fairly compensated, they will have more incentives to conserve it and ensure future access. However, the recognition or establishment of new types of IPRs on TK may reduce, rather than promote, the use of such knowledge. In dealing with TK, policy makers need to balance very carefully the expected benefits from a possible IPRs-like protection of TK, with the costs that are likely to arise from the limitations on its use. This may be particularly important in the case of TM, since a IPRs-like protection may reduce the access to products and treatment that are essential for a large part of the developing countries’ population, particularly the poor. Thus, rather than “protecting” TK in a way that limits access to it, governments may aim to promote the use of TK, complimenting this with measures to prevent misappropriation. An example of this approach is provided by Act No. 8423 (1997) of the Philippines, which aims “to accelerate the development of traditional and alternative health care” by improving the manufacture, quality control and marketing of traditional health care materials.[1]

OBJECTIONS TO PROTECTING TK

Objections to traditional knowledge are not necessarily motivated by bad faith and deserve a considered response. Three commonly expressed objections are as follows. First, that at a time when the public domain is threatened by every more comprehensive intellectual property protection we should not be creating new rights or extending existing ones that will accelerate the enclosure of the public domain. The second is that biopiracy claims are exaggerated or even mythical. Since biopiracy is therefore not a genuine threat to TK holders and their communities, there is no need for a TK protection regime. Third, if commercial users have to pay to access or use knowledge that has hitherto been freely available they will simply not use it and no benefits will be generated to be shared with the TK holders and their communities.

• TRADITIONAL CULTURAL EXPRESSIONS (TCEs)

According to Article 1(a) of the Revised Draft Provisions for the Protection of Traditional Cultural Expressions/Expressions of Folklore being reviewed at WIPO (‘WIPO Revised Provisions’), ‘traditional cultural expressions’ or ‘expressions of folklore’ are ‘any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested’, and comprise the following forms of expressions (or combinations thereof):

(i)                 verbal expressions, such as: stories, epics, legends, poetry, riddles and other narratives, words, signs, names, and symbols;

(2)               musical expressions, such as songs and instrumental music;

(3)          expressions by action, such as dances, plays, ceremonies, rituals and other performances, whether or not reduced to a material form; and tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, baskets, needlework, textiles, glassware, carpets, costumes, handicrafts, musical instruments, and architectural forms…

To be treated as subject matter for protection under the WIPO Revised Provisions, such

Forms of Expression have to be ‘characteristic of a community’s cultural and social identity and cultural heritage’ (Article 1(a)). They also have to fulfill other conditions, such as being ‘maintained, used or developed by such community or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community’ (Article 1(a)).

THE ISSUE

It has been said that trying to protect TCEs by conventional IP systems is like trying to fit a square peg into a round hole. This can refer to formal requirements of conventional IP systems which tend to exclude what we commonly understand to be TCEs. It is well known, for example, that in order for a work to be protected by copyright, it has to have had an identifiable author; on the other hand, TCEs are produced through a dynamic interplay between individual and collective creativity and are regarded as collectively held. TCEs probably had an author at some stage but that author is today unknown or unlocatable. Also, many national copyright laws require a work to be fixed in some material form before it may be protected, yet TCEs are very often only manifested, practiced, passed on and preserved in oral form. The limited term of protection provided to copyright works is also cited as a shortcoming in conventional copyright systems in so far as TCEs are concerned.

At the same time, while these formal requirements may be said to positively exclude TCEs from protection, TCEs are also negatively excluded, in the sense that because TCEs are regarded as ‘public domain” by the formal IP system, contemporary adaptations and interpretations of TCEs are protectable, irrespective of the identity of the creator and his/her relationship or absence thereof with the community that is the bearer and custodian of the underlying TCE.

TCEs, on the other hand, are often made for local consumption, are often created for spiritual and religious purposes and embody communal identities, belief systems and values. Their

primary value to the community is not economic. Indigenous peoples desire that their TCEs be safeguarded against all forms of unauthorized access, use and diffusion, in perpetuity.

The current copyright system is not a system of perfect control, however exceptions and limitations play a necessary balancing role, and the “public domain” is an integral and key part of the system. For example, under copyright, it is permissible to “borrow from” someone else’s work.

These “gaps” in the system are not arbitrary – they are the result of conscious policy choices made by the framers of current IP systems and are necessary to balance the interests of creators and of the general public. Current IP systems date back many years – the notion that property rights could vest in intangible things may be said to date back to classical Roman law and the first copyright laws which approximate those which we have today first appeared in the 18th century in England. The first international copyright treaty, the Berne Convention, dates from 1886. This is at the same time of course as Darwinist cultural hierarchy theories began to take hold – and just as such theories were perhaps used to disentitle indigenous peoples from their lands, waters and natural resources, so too they provided a justification – even subconsciously – for excluding collective creation from what was protectable by IP law. Yet, it is also well-known by now that the existing IP systems do provide some protection to TCEs, and here I refer in particular to copyright and related rights. I will not this evening address the usefulness of collective and certification trademarks, geographical indications, the protection of confidential information and the law of unfair competition.

Much has been written about this, and I simply recall that copyright protection is available for:

1. 1. Contemporary versions, interpretations and adaptations of pre-existing traditional cultural expressions;
2. Article 15.4 of the Berne Convention provides protection for the unpublished works of unknown authors;
3. 3. Recordings of TCEs are protected as “sound recordings” (and it is worth noting that the right of remuneration applicable to sound recordings published for commercial purposes for broadcasting or communication to the public (Art 15, WIPO Performances and Phonograms Treaty, 1996)may be extended to sound recordings of TCEs even if they are not published for commercial gain);
4. 4. Performances of TCEs are protected (and performers share in the right of remuneration just referred to);
5. 5. Moral rights – rights to attribution and to prevent the distortion of works can vest indefinitely;
6. 6. Collections and compilations of TCEs are protectable as such.

However, despite these existing forms of protection, there is, I could say, a widespread view that some interventions are needed in order for IP systems to respond more adequately to the aspirations and needs of indigenous peoples. Many believe that a distinct and comprehensive system is needed, a sui generis system, to address the protection of TK and TCEs. But this is by no means a universal view. These are referred to as sui generis because, though they generally belong to the realm of intellectual property they structurally depart from classic copyright law to accommodate the needs of the holders of TCEs.

• WHAT IS SUI GENERIS

Sui generis is a Latin word. It means “unique” or “special”, leaving the sui generis system open to interpretation. Sui generis offers a unique type of intellectual property right (IPR), which is different from the classical IPR, as is the case with the patent. All sui generis models that could be tailored to the specific needs and circumstances of the Members are legally recognized systems. The plant varieties constitute the principal means of production and growth in agricultural productivity. It is also recognized that the specific needs and circumstances of agriculture in each country vary and in this respect the differences between the developing and the developed countries are very wide in several aspects. Therefore, it is obvious that a sui generis system of protection appropriate for a developing country may require certain modifications in another developing country and these systems may not be even relevant to a developed country. These differences in ground realities and perceptions have made major contribution to the raging controversy on sui generis system.

• What Makes Sui Generis System Effective

According to the TRIPs, the sui generis system should be “effective”. However, it neither specifies which essential elements shall provide the effectiveness nor mentions about any existing plant protection system as the model. The essential elements identified to contribute effectiveness to sui generis IPR system by the International Plant Genetic Resources Institute include: (i) definition of protectable subject matter, (ii)creation of a setup for such protection, (iii) definition of scope of protection and its duration, (iv) ensuring balance of privilege for the right holder, (v) inclusion of benefit sharing mechanism with holders of genetic variability which was used for breeding the new plant variety, and (vi) scope for public responsibility like creation of community gene fund to promote conservation of agro-biodiversity and provision of a public defender. There is a general consensus among developing countries that satisfaction of these basic elements, according to the specific need and agricultural circumstances of the member, may make the sui generis IPR system effective for protection of plant varieties

as specified in the TRIPs. An important element of sui generis law is that contrary to the exclusive IPR awarded to the individuals or corporations, it offers a special type of IPR protection and benefit sharing system to communities which have either collectively created and incrementally improved an innovation or provided prior art underlying a new innovation, either process or product. This community could be indigenous rural or tribal communities or farmers communities. In the case of community ownership no right of custodianship can be established or claimed by anyone in the community. This community rights assumes special significance in countries like India where agriculture has been practiced for thousands of years and the farmers have been singularly responsible for conserving and enriching the bio-resources which constitutes the mainstay for national agriculture and food security.

• SUI GENERIS SYSTEMS IN THE WORLD

No country has put a sui generis system in place. Most are content using patents and International Union for Protection of New Plant Varieties (UPOV) to protect their genetic resources. Kenya and Malawi are making efforts to establish sui generis systems. Many other countries have been proactive in the debate attempting to link the objectives of Access and Benefit-sharing (ABS) as contained in the Convention on Biological Diversity (CBD) to Trade Related Aspects of Intellectual Property Rights (TRIPS). They are fighting for a modification of TRIPS to allow them control access to genetic resources and get some benefits from them.

CURRENT SITUATION OF IPR PROTECTION IN CHINA

China is an old and historical country with fifty-six nationalities. Different nationalities have their own traditional culture and habits. But how to protect these abundant, special, original, colorful, precious heritage and culture is a big question to modern society when facing the market economy and the invading of foreign culture.

Although some organizations and institutions in international world such as WIPO and UNESCO try to reach some agreements and they have made significant progress in protecting TCEs, China, as a developing country, is still lag behind. Typical cases and disputes about folk literature and art are very common in recent years. The following famous and typical case happened in China could elaborate the realistic problems——the case of “Bai Xiu’e Paper-cut”[9]

Bai Xiu’e is a peasant lived in north of Shan’xi province; she came to Beijing and settled down from 1996 living by selling paper-cuts. The dispute between her and China Post Office is whether she is the copyright owner of her paper-cuts which are derivative from the traditional folk paper-cut design in local area. After three trials (from the intermediate people’s court to the Supreme Judicial Court) she has won the case finally.[10] The Chinese court from this case conveys a basic principle that the copyright law protects the TCEs derivative works so long as it involves creativities. However, the court doesn’t illustrate explicitly that the TCEs itself should be protected or not and how to protect it with law.

ANALYSIS & PROPOSITIONS

The right of the compliers, transmissioners, or the recording people could be protected by the copyright law in Article 12, 14, 35, 36, 37, and 38. In contrast, we couldn’t find any law in current legislation system (including the copyright law) to protect the genetic resources holders and TCEs itself. The holders of TCEs should be protected too and the economic beneficiaries (e.g.: the compiler, transmissioner, or the person recording the TCEs.) should share their economic benefits with the holders. The economic beneficiaries may send up fees to the local government or get permissions from the local people or tribes. Meanwhile the government should work out related regulations to normalize the activities of the tramsmissoners, compilers, and the recording people.

Costa Rica, the Philippines, Peru, Thailand and Venezuela have put sui generis regimes in place.

Costa Rica has a law on biodiversity under which traditional knowledge (TK) is recognized. Article 82 provides:

“The State expressly recognizes and protects, under the common denomination of sui generis community intellectual rights, the knowledge, practices and innovations of indigenous peoples and local communities related to the use of components of biodiversity and associated knowledge. This right exists and is legally recognized by the mere existence of the cultural practice or knowledge related to genetic resources and biochemical’s, it does not require prior declaration, explicit recognition nor official registration, therefore it can include practices which in future acquire such status no form of intellectual or industrial property rights protection  shall affect such historic practices” .

The 1987 Constitution of the Philippines recognizes traditional knowledge. Section 17 article XIV provides:

“The State shall recognize, respect and protect the rights of the indigenous cultural communities to preserve and develop their cultures, traditions and institutions”

Peru developed a draft sui generis system whereby ownership, rights and appropriations of indigenous people to TK are recognized:

The law provides for indigenous people to enter into “knowledge licensing contracts”. The law has also encapsulated the concept of “prior informed consent” for knowledge that is not in the public domain. The law created a fund for the development of indigenous people. The communities are expected to receive 0.5% of sales from products developed based on TK. However, the draft was widely resisted and is currently subject to further consultations. The local communities complained that the proposed law was not compatible with their understanding of resource rights.

Thailand developed the “Thai Traditional Medicinal Intelligence Act”. This Act

recognizes three forms of protection:

• The first one is the national formula that is given to the state. Formulae accorded “national” status are those deemed to be extremely crucial to the national public health system. The Minister for Public Health may declare any formula of Thai traditional medicine to be a national formula. Such declaration vests the rights in a national formula in the state. The commercial use of a national 

formula for research and development and production of drugs is subject to permission from the government. Violation of the Act is punishable through criminal sanctions.

• The second one is the private formula. Third parties must seek permission from the private rights holder to a private formula. The rights over a private formula subsist throughout the life of the rights holder and extend up to 50 years after the person’s death. The aim of the Act is to ensure that the owner of TK is adequately compensated for their contribution.

• The third category is a general formula that covers knowledge in the public domain and is free for all to use. The law allows free domestic use of all types of TK in small quantities. The Act also provides for conservation and sustainable use of medicinal plants. The Act created the “Thai Institute of Thai Traditional Medicine” and the “Thai Traditional Knowledge Developing Fund”. This law has spurred a lot of activity in the registration of traditional medicine. Thailand now gets substantial revenue from the use of TK.

The 1999 Constitution of Venezuela gives recognition to traditional knowledge.

Article 124 provides:

“The collective intellectual property of indigenous knowledge, technology and innovations is guaranteed and protected. Any work on genetic resources and the knowledge associated therewith shall be for the collective good. The registration of patents in those resources and ancestral knowledge is prohibited”

• SITUATION IN INDIA

India has not brought any TK-specific regime, but laws adopted to give effect to its obligations under the TRIPS, CBD and ITPGRFA have reiterated India’s stand in different intergovernmental bodies working on the protection of TK. India has adopted three interrelated legislations on IPRs, plant varieties and biodiversity: the Patent’s (Amendment) Act, 2005 (effective from 1^st January 2005); the protection of plant varieties and farmers rights Act, 2001 (PPVFR Act), and the Biological Diversity Act, 2002. There are linkages between these three pieces of legislation and some over-lapping. Whereas, the Patents Act grants patents on Biotechnology, the plant variety protection law provides a sui generis regime on plant breeder’s rights (PBRs) and the Biological diversity Act provides a mechanism to protect and share PGRs.

1. The Patents (Amendment) Act

The Patents (Amendment) Act, 2005 has made Biotechnological processes as patentable. Micro organisms are patentable but plants and animals in whole or any part thereof, but including seeds, varieties and species and essentially biological processes for the propagation of plants and animals are not patentable. It incorporates provisions for the protection of biodiversity and traditional knowledge by refusing to grant patent or to revoke a patent if the application wrongfully mentions the place of origin of the biological material for the invention. Failure of disclosure is also a ground for opposition to a patent. Furthermore, an invention which in effect is a traditional knowledge or which is an aggregation or duplication of the known properties of the traditionally known components is non patentable. However it is often difficult to check unscrupulous patent of TK because of lack of documentation and validation.

2. Protection of Plant Varieties and Farmer’s Rights Act (PPVFR Act), 2001

When India initiated this legislative process in 1993, the first draft of this Bill appeared to have more similarity with UPOV 1978 Act. This draft encountered severe opposition and protest from farmers, non-governmental organisations led by the Gene Campaign, the civil society and Parliamentarians. A dialogue on this legislation organized at the M.S.Swaminathan Research Foundation, Chennai led to the development of another draft model incorporating equitable PBR, farmers’ rights, recognition of farmer as the cultivator, conserver and breeder with entitlement to protect farmers’ varieties, new concepts such as benefit sharing, creation of national gene fund for promoting conservation of agro-biodiversity by farmers. Further several interactions with farmers, NGOs and other interested parties, the draft bill was modified to suit more to the national agricultural scenario with checks and breaks to minimize the monopolistic role of multinational corporate while encouraging their partnership in plant breeding. The draft Bill was subsequently referred to a Joint Select Committee of Parliamentarians headed by Shri. Sahib Singh Varma. The enacted Protection of Plant Varieties and Farmers’ Rights Act, 2001 is notable and distinct from the UPOV Acts in several respects, while it meets all important elements to make it an effective sui generis system of IPR. Some of the features are unique with no parallel in the protection of plant varieties. For this reason there is also possibility that a few of the ideological features may encounter certain practical difficulties during their implementation. These problems,

however, are not insurmountable with motivated implementation agency and willingness for timely review.

1. The Biological Diversity Act, 2002

This application is more explicit in its approach towards TK. It contains elaborate provisions on benefit sharing but is week in relation to the participation of communities in decision making. However no attempt has been made to define TK or Communities. The main focus on the Act is to regulate access to GR and associated knowledge by foreign individuals, institutions or companies with the purpose of securing equitable sharing of benefits arising out of the use of these resources with the local people, and to protect knowledge of local communities with respect to bio diversity.

To address the problem of Bio-Piracy, the Act has elaborate provisions to grant access to biological resources by non-resident Indians, foreign individuals, etc. who can obtain any biological resources occurring in India or knowledge associated thereto.

• CONCLUSION

The need for a sui generis form of IPRs was recognized early enough. Any procrastination in this area opens a window of opportunity for biopiracy and misappropriation especially of plant genetic resources. Moreover, such procrastination is dealing a death blow to the dream of conservation and sustainable use of plant genetic resources. It can also be said that the absence of a sui generis system means many communities are being robbed not only of their TK but also of their inheritance. Closely connected to this is that the countries lose a lot of revenue which they actually need for their own further development. It is, therefore, recommended that countries move with speed to put in place sui generis systems of IPRs. In so doing, the broader aim should be to plough back some benefits of TK to communities, biodiversity conservation and to ensure sustainable use of the resources.

Various suggestions have been advanced in India to extend protection to knowledge, innovations and practices. These include:

(I) Documentation of TK;

(ii) Registration and innovation patent system; and

(iii) Development of a sui generis system.

It is sometimes believed that proper documentation of associated TK could help in checking bio-piracy. Documentation could be a double-edged sword. It is assumed that if the material/

knowledge are documented, it can be made available to patent examiners the world over so that prior art in the case of inventions based on such materials/knowledge are/is readily available to them. It is also hoped that such documentation would facilitate tracing of indigenous communities with whom benefits of commercialization of such materials/knowledge has to be shared.

Some specific suggestions:

1. Access to these databases for patent authorities and relent judicial authorities could be facilitated through the establishment of an international gateway for traditional knowledge, which would electronically link this data based.
2. At least minimum harmonization of the structure and content for these data based should be achieve
3. Data based should be reachable over the Internet.
4. To the extent that traditional knowledge which already recorded in databased and print media, it is important to insure that patent examiners are made familiar with this resources.
5. Database should only disclose traditional knowledge already in the public domain or traditional knowledge for which prior inform consent has been obtained.
6. Access these data based should not involve costly or burdensome procedures.

REFERENCES

• “Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions/Expressions of Folklore”, WIPO Report published on May 2, 2003.
•  “Creative heritage Project: IP Guidelines for Digitizing Intangible Cultural Heritage”, WIPO Report published on 2003. WIPO Publication No. L934E/TCH.
• “Intellectual Property and Genetic Resources, Traditional Knowledge & Traditional Cultural Expressions”,  WIPO Report Published on 2012,WIPO Publication No. 933E
• “Intellectual Property & Safeguarding of Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives”, WIPO Report on WIPO Publication No.1023(E)
• Borus, Daniel H. (1998) “Sui Generis Veblen: The Intellectual Legacy of Thorstein Veblen: Unresolved Issues by Rick Tilman”, International Journal of Politics, Culture & Society, Vol. 11, No. 4, Pp. 607-615.
• Saroli, Anna, (2005) “The Persistence of Memory : Traditional Andean Culture Expressed in Recurrent Themes and Images in Quechua Love Songs”, Confluencia, Vol. 20, No. 2, pp. 47-56
• Dutfield and Posey (1996): Beyond Intellectual Property, International Development Research Centre Ottawa
• Graham Dutfield (1999): Protecting and Revitalizing Traditional Ecological Knowledge; Intellectual Property rights and community Knowledge Database in India. Perspectives on Intellectual Property. London: Sweet and Maxwell.
• Graham Dutfield (2000): Intellectual Property Rights, Trade and Biodiversity; Seeds and Plant varieties. London .Earth scan Publication Ltd
• Hoffman B.T. (2006): Art and Culture Heritage, law, policy and practice: Cambridge University Press
• Mugabe John: Intellectual Property Protection and Traditional Knowledge: An Exploration in International Policy Discourse, available at the African Centre for Technological studies. Nairobi.Kenya
• The Protection of Indigenous Traditional Knowledge through the Intellectual Property System and Intellectual Property Law Amendment Bill (2008) Available at www.thedti.gov.za

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In this blogpost, Arjun Natarajan, a litigator, writes on Delhi government’s second edition of odd-even rule. Earlier, he had written on the first edition of this rule, which can be read by visiting http://blog.ipleaders.in/delhi-government-odd-even-rule-punishment-for-violation-of-rule/. Readers are requested to read this blogpost, in conjunction with the earlier blogpost. 

Time flies. January seems like yesterday, when Delhi’s streets were dotted with odd vehicles on odd dates between 1 January 2016 and 15 January 2016 and with even vehicles on even dates between 1 January 2016 and 15 January 2016. That was the first edition of odd-even rule, which was by virtue of a Notification dated 28 December 2015, issued by Government of National Capital Territory (NCT) of Delhi.

Here we are, in April. Odd-even rule is all set to return.

Government of NCT of Delhi’s recent Notification dated 11 April 2016, i.e., new odd-even Notification, is popularly called ‘odd-even rule – round 2’. It is available in English and in Hindi, on http://it.delhigovt.nic.in/writereaddata/egaz20167549.pdf. Do read it.

In this blogpost, I shall refer to this notification as ‘new odd-even Notification’. It comes into force on 15 April 2016 and it shall remain in force till 30 April 2016.

New odd-even Notification is largely the same as the earlier odd-even Notification. In this blogpost I intend to merely touch upon those aspects of new odd-even Notification which are different from Notification dated 28 December 2015, causing the first edition of odd-even rule.

What’s new?

Schedule to new odd-even Notification mentions 28 categories. Do take a look at the schedule, to get a complete understanding of the vehicles of the categories, as mentioned in the Schedule.

As per Schedule to new odd-even Notification, the exemptions which are relevant to us, in our capacity as people who drive on the streets of Delhi are the same as the ones in the earlier odd-even Notification, as detailed in my previous blogpost. However, new odd-even Notification additionally exempts vehicles carrying child/children in school uniform.

A car with an odd registration number can ply on an even date, if it is carrying a child or children, who is/are in school uniform/s. Similarly, a car with an even registration number can ply on an odd date, if it is carrying a child or children, who is/are in school uniform/s. Irrespective of whether the car is being driven by a man or a woman, if the car has a child or children, who is/are in school uniform/s, then, the car is outside the purview of new odd-even Notification.

The following officers could compound violations of the earlier odd-even Notification:

Officers of the rank of Head Constable and above of Delhi Police.

Officers of the rank of Head Constables and above of the Transport Department, Government of NCT of Delhi.

Officers or authorities as authorised by Divisional Commissioner, Revenue Department, Government of NCT of Delhi.

As per new odd-even Notification, officers or  as authorised by Divisional Commissioner, Revenue Department, Government of NCT of Delhi are also authorised to exercise the power under section 213(5)(e) of The Motor Vehicles Act, 1988 to launch prosecution under section 194 of the said statute, for the offences committed in violation of new odd-even Notification and they will be deemed to be officers of Transport Department, Government of NCT of Delhi, under section 213(1) of Motor Vehicles Act, 1988 and rule 123 of Delhi Motor Vehicles Rules, 1993, for these purposes.

Basically, if an offender is unwilling to compound the offence, then, officers or authorities as authorised by Divisional Commissioner, Revenue Department, Government of NCT of Delhi can initiate a criminal case against him.

Be that as it may, the reliance on section 194 of The Motor Vehicles Act, 1988 calls for attention. It would not be out of place to mention that, even as per the earlier odd-even Notification, violation of the same attracted a fine of Rs. 2000/- in terms of the provisions of section 194(1) of The Motor Vehicles Act 1988. Therefore, reliance on section 194 of The Motor Vehicles Act, 1988 is not a creation of new odd-even Notification. However, new odd-even Notification relies on the said provision, not only in the context of punishment, but also in the context of initiating a criminal case against an offender who is unwilling to compound the offence.

Section 194(1) of The Motor Vehicles Act, 1988, is as under:

“194. Driving vehicle exceeding permissible weight.–(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 113 or section 114 or section 115 shall be punishable with minimum fine of two thousand rupees and an additional amount of one thousand rupees per tonne of excess load, together with the liability to pay charges for off-loading of the excess load.”

If we go only by the heading of section 194 of The Motor Vehicles Act, 1988, then, the said provision makes it an offence, to drive a vehicle which exceeds permissible weight. It is obvious that driving a car with a registration number ending with an odd digit, on even dates of a month, does not amount to exceeding permissible weight! The same applies in relation to driving a car with a registration number ending with an even digit, on odd dates of a month.

However, if I read the said provision closely, then, I came across the following two aspects:

Firstly, it deals with the offence of driving a motor vehicle or allowing it to be driven, in contravention of the provisions of section 113 or section 114 or section 115 of The Motor Vehicles Act, 1988. The said offence is punishable with minimum fine of Rs. 2000/-. This offence, visibly has nothing to do with the heading, i.e., “Driving vehicle exceeding permissible weight.”

Secondly, it deals with purely the offence of driving a motor vehicle exceeding permissible weight, or, allowing such a vehicle to be driven. The said offence is punishable with minimum fine of Rs. 2000/- plus an additional amount of Rs. 1000/- per tonne of excess load plus the liability to pay charges for off-loading of the excess load. This offence can directly be connected to the heading, i.e., “Driving vehicle exceeding permissible weight.”

For the purpose of new odd-even Notification as well as the earlier odd-even Notification, we can ignore the second aspect, as it deals with exceeding permissible weight. Hence, we are only concerned with the first aspect. As per new odd-even Notification, section 115 read with section 2(41) of The Motor Vehicles Act, 1988 is the source of exercise of power by the Lieutenant Governor of NCT of Delhi, to issue new odd-even Notification. Therefore, driving a car with a registration number ending with an odd digit, on even dates of a month, as well as, driving a car with a registration number ending with an even digit, on odd dates of a month, is in contravention of the provisions of section 115 of The Motor Vehicles Act, 1988. Thus, in terms of section 194(1) of The Motor Vehicles Act, 1988, the said act is punishable with minimum fine of Rs. 2000/-.

Similarly, officers or authorities as authorised by Divisional Commissioner, Revenue Department, Government of NCT of Delhi are also authorised to exercise the power under section 213(5)(e) of The Motor Vehicles Act, 1988 to launch prosecution under section 194 of the said statute, for the offences committed in violation of new odd-even Notification and they will be deemed to be officers of Transport Department, Government of NCT of Delhi, under section 213(1) of Motor Vehicles Act, 1988 and rule 123 of Delhi Motor Vehicles Rules, 1993, for these purposes.

On this note, I end this blogpost, hoping that odd-even rule – round 2 is more successful than the first edition of odd even rule.

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