Reform of the Legal Profession

In this article published on myLaw.net, I argue that mere reforms in the legal education in India do not mean much unless they are accompanied by concomitant reform of the legal profession, inter alia, through enforcement of ethical rules of practice. This article provides another perspective in trying to understand why the top law schools have not been able to motivate its law graduates to join litigation.

Service Tax on Lawyers - What is the State taxing?

In this piece, I argue that imposition of service tax on representational service and on arbitral tribunals may not have necessary degree of coherence with rule of law and forward policy. 

Anna's fight against 'Corruption' - What it means?

Professedly, Anna's 'movement' (I intend to analyse at a later stage whether the stir qualifies as a movement, or it was merely a 'mass protest'), and support lent to him by the opposition was against 'corruption'. I am not aware if any participant in the movement, either from the civil society or from ‘Team Anna’ has attempted to define ‘corruption’.  This concern has been expressed in an EPW editorial.

The definition of ‘corruption’ is rather important, because it would determine how inclusive the support from the demos of India would be. Having said this, I do not mean to undermine the importance of economic corruption. We really need to ensure is that there is no corruption in terms of restrictions to access to opportunity. This access to opportunity can be impeded also by demand of money; but that is not the only way. Therefore, the word ‘corruption’ has to have a broader and more inclusive definition including denial of rights and impeding access to opportunity either for personal gain or for furtherance of a personal agenda or political views. Such an approach is sine qua non because anything else would leave the pot only half filled that too with leakages.

The above approach is to deal with the situation of systematic denial of rights by plugging in the systemic deficiencies. A situation of the nature highlighted by Sachar Committee Report is what I am trying to cover in the definition of ‘corruption’.  For example, when the people in charge of affairs of government abuse their position not for their personal financial gains (but for other reasons) and keep a rightful candidate out of the (participative) government (because of religion, race, caste or kinship), they should be held accountable.  

The conversation between a father and his son in The Kite Runner by Khaled Hosseini is instructive on this point: “There is only one sin, only one. And that is theft. Every other sin is a variation of theft. Do you understand that?When you kill a man, you steal a life. You steal his wife’s right to a husband, rob his children of a father. When you tell a lie, you steal someone’s right to the truth. When you cheat, you steal the right to fairness. Do you see?”. This analogy can be extended to ‘corruption’ as well.

In this sense, the proposal under the Draft Communal Violence Bill (also see comments here) to criminalize dereliction of duty by state machinery during communal violence which is also based on some evidence is an attempt to remedy one species of the genus that is ‘corruption’. 

Respecting the Dissent: Fairness of the methods of Anna's followers

The Times of India dated August 31, 2011 carries a report on how a youth who refused to participate in the anti-corruption stir was chased by the crowed and left to drown in a river in which he had jumped to save himself from being lynched. Here is the news piece.

Assuming that it is true, ruthlessness of those carrying out anti-corruption stirs in support of a 'Gandhian' perhaps evidences that unlike the Gandhian movements, Anna's movement was unable to integrate to the moral behaviours of those following it. There was support from all section of the society; many of whom were also the source of corruption. On the otherside, Gandhiji  had spent decades together connecting personally with the masses and therefore his movement was able to motivate the moral side of the people in the real sense.

 While it has been acknowledged that the movement had been driven by urban middle class, there is no concurrence on the reason for why the minorities and the rural poor had not engaged in the movement. 

Based on the above news article, and the support of right wing forces to Anna's movement (including of the admitted deployment of saffron cadres in the movement), one could deduce that the movement in its approach had been a right winged one, with little or no room for dissent and disagreement. Those who disagreed had to pay. Such an approach to any movement is clearly against the tenets of India's constitution, where freedom of expression allows a person the liberty to or not to participate in public discourse, of any kind. 

Lawyers' boycott and the accused persons’ right to be defended in court

While ANHAD's Report and other events raise concern about release of Muslim youths wrongfully detained in the police custody in relation to alleged acts of terrorism, a cognate issue that should not be missed is that of access to sound legal advice at the appropriate time. 

Some bar associations (such as that of Pune and  Faizabad) have passed resolutions to not defend any person accused of terrorist acts, it particularly affects minorities as they are 'labelled' as terrorists. Some lawyers who withstood by the ethics of the legal profession in such hard times had also filed writ petitions in before the High Court challenging such resolutions passed by the bar association. However, a recent decision passed by the Supreme Court is instructive on this point.

 In A.S. Mohammad Rafi v. State of Tamil Nadu, AIR 2011 SC 308, the Supreme Court of India observed that “several Bar Associations all over India… have passed resolutions that they will not defend a particular person or persons in a particular criminal case… Sometimes the Bar Associations passes a resolution that they will not defend  a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case...” . Further that “such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”

Resolutions similar to the resolution of the Coimbatore Bar Association are known to have been passed by the Bar Association of Faizabad and apparently also by the Bar Association of Pune that prevented the alleged ‘terrorists’ from having any legal representations. The impact of absence of effective legal representation and denial of right to have a counsel of one’s choice would probably be assessed when these cases reach the appellate stage. One can hope that decision would be handy in at least ensuring persons branded as terrorist merely by virtue of their religious and social association have access to a lawyer.

I have commented on this aspect earlier and at length on the Law and Other Things which is available here and more recently here.  

Report: What it means to be a Muslim in India today

Act Now for Harmony and Democracy ("ANHAD"), an organisation and a platform for action on the issues of peace, communal harmony and secularism  has published a report titled "What it Means To Be a Muslim in India Today", which is a combined report on  Peoples Tribunal on the Atrocities Committed Against Minority In The Name of Fighting Terrorism & the National Meet on the Status of Muslims in Contemporary India Delhi 3 to 5 Oct 2009.

The report inter alia seems to set out issues concerning wrongful arrest and detentions of Muslims, especially the youths in connection with alleged acts of terrorism. 

Religious Ceremonies when performed in rem are secular

The Law and Other Things discusses a judgement by the Gujarat High Court, which has held that performance of religious ceremonies such as bhumi pujan which are for the benefit of the whole society cannot be regarded as being against the principles of secularism.   The PIL challenging participation of constitutional functionaries in bhumi pujan and performance of bhumi pujan in respect of government projects was dismissed with exemplary costs.

Scholars have argued that this is one the methods in which majoritarianism is colouring the definition of secularism as understood in the Constitution of India.

This aspect has been discussed here also.