LEGALMOKSHA

TMC Responsible for Lokpal's Rajya Sabha Failure?

2012-02-09T11:27:00.003+05:30

When the TMC allied with the UPA little did they know that they will be welcoming a party whose political style at the centre would be not very different from the Left. The TMC’s time in the UPA started with the party behaving with utmost humility and corporation, but with numbers against them they were clearly in no bargaining position. The test of a true ally is not measured by the times he has stood by your side in battle, but by the times when he stands by your side unconditionally when he has the option of doing so conditionally.

The irretrievable breakdown of the UPA’s marriage to the Left was speculated upon be all because two parties with conflicting ideologies are never best allies in a multi-party democracy where there is a coalition government. However, the TMC’s stubbornness was missed by all, as they seemed to be hand and glove with the Congress on most policies excluding the FDI. Even when it came to the FDI dispute, the TMC had sent its immediate disapproval to the Prime Minister, thereby making the government temporarily suspend the policy. However, during the Lokpal dispute the TMC’s behaviour is rather queer.

When the sense of the house resolution was recorded they kept quiet and brought their disapproval of Part III of the bill to the notice of the congress rather late. The question that faces us today is why did Mamata not object to the Lokayukkta model earlier? Mukul Roy, a TMC leader “clarified” that they are in favour of Lokayuktas, but it should be done by the state and not the centre. This demand seems to be rather frivolous as the implementation of the Lokayukktas would eventually lie with the state and it does not really matter whether the state legislates on the matter or the centre does so. The inclusion of a clause that state governments may frame rules for the functioning and administration of the Lokayukktas would have served the purpose of satisfying the functioning of them amidst the diversity of legal machineries present in various states.

The reason behind such a demand could be a fear that the Congress would claim credit for the Lokpal effectiveness in state Lokayukktas if they function properly and conveniently shift the responsibility on the State Governments if they fail to implement the law effectively. The Congress is following such a policy while campaigning in UP and blaming the Mayawati government for the poor implementation of the Centre’s schemes while claiming credit for the passage of such law by the Congress at the centre.

Whatever the TMC’s apprehensions maybe, they have proven themselves to be untrustworthy and opportunistic for two reasons. Firstly, they convey their dissent at the eleventh hour. Secondly, they demand the deletion of Part 3 of the bill entirely despite there being sufficient scope for each State running Lokayukktas their own way, within the existing framework of the Bill, which could be an indicator of an over-reaction. Funnily enough, the SHRCs(State Human Rights Commissions) of each state are run effectively despite existing by virtue of a central legislature.

Why India needs Hazare

2012-02-06T11:10:00.007+05:30

Despite the searing criticism against the 74 year old, it would be a mistake to belittle the change he has brought. If one were to analyse the elections which saw Barak Obama become president, it could be noted that Americans were frustrated with their international image, the state of their economic affairs and wanted change no matter what. Barak Obama seized the moment as Americans voted for change over stagnation rather than what is good over what is bad. Perhaps this analogy would help explain the Hazare phenomenon. The people of India were so frustrated by successive governments policies regarding corruption that they wanted change to prevail over stagnation with absolute disregard with respect to the consequences of the change.

It would be sheer stupidity to assert that what Anna did wasn’t blackmail. The Indian government perhaps deserved the blackmail for its inaction on corruption. The aam admi is the most exploited individual with respect to corruption. He has been made to pay extra for his ration card, passport, Voter ID and even his death certificate. Never before have we seen politicians threatened to the extent Lalu Yadav compared Anna’s demands to a noose around the necks to the elected representatives. Answering the question of the movement being fascist and undemocratic by saying that Indian democracy provides for the freedom of speech and expression is sheer stupidity. You cannot isolate your democratic fundamental rights from the legislature and claim them while you threaten the existence of the law-making body providing you with those very rights. Anna’s movement is against our current democratic structure and calls for a complete overhaul as his movement does not and will not stop at the passage of the Lokpal, it would extend to the right to recall and several other demands, if fulfilled would change the type of democracy practiced in India wherein the status of civil societies would surpass that of political parties.

The status quo in Indian democracy is the presumption that civil societies and political parties cannot co-exist. It would be far-fetched to say that the implementation of Anna’s vision would be a positive change or a negative change, but it will definitely be a change, a change politicians do not wish to see. It is this fear due to which politicians are cautious in their approach to Anna. On one hand they recognize that he echoes the sentiments of the people with his cause, on the other hand they realize that his movement would elevate civil societies above political parties and the people may lose faith in the elections.

Politicians deserve being a situation where corruption is threatening them. Blackmail is a form of corruption; hence it could be argued that Anna Hazare uses corruption to fight corruption. When the aam admi looks at the confused faces of politicians while dealing with this blackmail, he feels vindicated for the number of times he was blackmailed to pay bribes for any service rendered by a public servant. Perhaps, the best way to fight evil is the employment of another kind of evil. Perhaps, that is why Anna Hazare has become India’s very own dark knight.

The Great Hypocrisy

2012-02-05T09:17:00.000+05:30

Our country has always boasted of her rich heritage and culture. Culture specifically includes our ‘values’ and ‘customs’. Post-modern Indian youth generally and Gen-Y in particular have always championed the assumption that India as a country has survived various social and cultural catastrophies because we proudly follow our value-system.

The question is how far we practice what we preach or boast. We need to understand that the so called values of our society are basically set of fashions of society that existed in a bygone time-frame. Although you can follow some of them but others just don’t fit in the present society. Some of our values and customs at times become so suffocating that it becomes tough to survive. We can discuss few illustrations.

Our values talk about ‘Decency’. Now comically in our society a couple sitting affectionately in a lonely park can be indecent for so called champions of morality but a man pissing on a wall in broad day light is perfectly right. Hindu right wing organizations are much against the celebration of ‘Valentines Day’ but for them if people misbehave with girls on the occasion of ‘Holi’, then it is ‘bura naa mano Holi hai’. Decency herein is just conveniently interpreted. Not only Hindus, it seems that certain extreemist Muslims of India find it more appropriate to copy their Talibani counterparts instead of their progressive Turkish or Iranian brothers.

Again in our society ‘Disrespect’ has various interpretations. Marrying a girl or opting for a profession against ones' parents wish means disrespecting them. On the other hand watching them lash out at our old grandparents is perfectly normal, a part of ‘beta woh ab irritating ho gayein hain isliye humain unse space chahiye’ ideology. We Indians are also God-fearing people. We love to spend money in the name of god but then we also know how to earn more by immoral means. Accumulation of Black money or earning through unfair means is part of our ‘sab chalta hai yaar’ attitude, in our country.

Even our generation is full of pseudo western thought preachers who wear Gucci's and Armanis, carrying cock-tails and Blackberry’s, but when it comes to social opinions they view that a prostitute has virtually got no right against rape while homosexuals are deviants who corrupt society. They are the ones who shout dialogues of ‘Rang de basanti’ and sing ‘Sadda Haq’ but have not time to even go and cast vote. On a larger canvas we still live in a society where we proudly boast of ‘Manusmriti and Neeti ke Dohe’ but shy away from acknowledging ‘Vatsayaan or Khajurao architecture’ as part of India culture. We proudly say that we are modern and believe in unity of the country but still we are plagued with evils like ‘Honor Killing’.

Political parties are more interested in organising ‘Rath yatras’ and erecting marble statues while failing to save both ‘tiger’ and ‘girl child’. The judiciary is not immune from this hypocrisy. Rule of Law suddenly becomes very important for Mr. Kasab but definitely not a treat for commoners, of fame such as Rudul Shah case, who languish in jails as under-trials. Dr. Binayak Sen is declared a terrorist while it took active media participation for convicting Manu Sharma, as the state failed to prosecute him.

The issue is not what you are preaching but it involves ‘how far you practice what you preach?’

-Vaibhav Dixit

Bhushan & Roy: Conflicting Concurrences

2012-02-03T11:07:00.002+05:30

Prashant Bhushan and Arunshati Roy may not see eye to eye on several issues including the Lokpal, however what political cause unites them is surprisingly the Kashmir issue. On one hand we have an eminent lawyer who whole-heartedly supports team Anna's demands, on the other hand we have the famous writer branding Anna's model as a dangerous piece of legislation. On one hand we have Bhushan who is all praise for the peoples movement, on the other hand we have Roy who believes that it was not the same as a peoples movement and actually was a reality show orchestrated by an extensive media campaign after Bedi, Kejriwal and Sissodia picked up Anna and propped him as the saint of the masses. On one hand we have Bhushan who believes that the Anna campaign struck a chord with the aam admi, on the other hand Roy rubbishes it as a TRP-driven campaign and even suggests that if all team Anna wants is a good TRP they should settle for pornography or something which attracts more TRPs.

Given their diverse and certainly diametrically opposite views, it may seem unlikely that they would see eye to eye on anything at all. However, it would be foolish to assume that two people who oppose one another on one issue would not be seen on the same page for any other matter of opinion at all. After, all during the controversial Nuclear Bill passage, even the BJP and the Left were seen sitting on the same side of the fence despite their opposing interpretations on the secularity of the BJP and RSS and the meaning of Hindutva. However, what did unite them was an unsettled issue of national importance where people were sceptical. Interestingly, Bhushan and Roy are one on a rather settled issue of national importance. It would be safe to assume there are very few Indians who recognize the importance of the right to self-determination of the Kashmiris.

The Right to self-determination is an internationally recognized human right, however it has failed to impress the Indian masses as it has never been an election issue despite successive governments openly and brutally rejecting the idea of accommodating such a right. Bhushan and Roy believe that it is the right of the people to choose who they want to be and how they want to be who they want to be.

What is even more intriguing is that their agreeing views on right to self-determination actually form the base of their disagreeing views on Lokpal. Anna's agenda echoed by Bhushan does not stop at the passage of the Jan Lokpal Bill as per his terms, it extends to the recognizing the right to recall and change the type of democracy practiced in India. The right to recall is a necessary component of the right to self-determination. On the other hand Roy's rejection on the Anna movement could be viewed as an opinion built upon her perception regarding self-determination as something which is people-driven. An anti-corruption movement serves the purpose of reforming faults within the existing system and not overthrowing it and replacing it with a new system wherein so called "civil societies" are more powerful than political parties.

Hazare: No Longer a Hazard

2012-02-01T11:00:00.005+05:30

A few months ago Team Anna achieved the pinnacle of their popularity with people shouting slogans "Bharat Mata ki Jai" and drawing comparisons between Hazare and Gandhi. A democratically elected government worked overnight to engage and accommodate certain views of civil society into the Lokpal Bill. However, if one is to trace the origin of these civil society demands, it may seem as if they change every month. Initially they wanted just the passage of the Lokpal Bill, which was one of the anti-graft measures whose passage was pending for 40 years. This demand was seen as long overdue and hence it was reasonable to the aam admi. After the government committed itself to bring a Lokpal Bill, they then wanted the inclusion of the Prime Minister's Office in the areas over which the Lokpal will enjoy jurisdiction. How does the inclusion of the Prime Minister under the Lokpal directly affect the aam admi, no one knows. Then they demand that the CBI be brought under the Lokpal, and all administrative functions of the agency be supervised by the Lokpal. It may be noted that it is not the CBI, but the local police with whom the aam admi deals with on a daily basis.

As the campaign progressed, they reached a pinnacle where Anna seemed to be an irresistible force crusading against an immovable object, but towards the end he seems to be the immovable object crusading against basic ethos of a democracy. Yes, it is well settled that in a democracy everyone has a right to protest and form pressure groups. However, what use is the formation of a pressure group to democracy at the stage when the bill was not even tabled?

It would be incorrect to blame the people of Mumbai and tag them as "indifferent" to corruption. Had the fast been staged in Delhi, it would be highly likely that it would receive the same cold shoulder. Anna's arrogant and obstinate attitude towards the government and the political class led to his downfall. The more media attention Kiran Bedi, Kejriwal and Hazare received, the more cocky they became.

Perhaps what separates Hazare and Gandhi is that Hazare has not yet acknowledged Gandhi's beliefs on the beauty of compromise which is well documented in My Experiments with Truth. The slogan "there is no compromise when it comes to fighting corruption" is indeed catchy to the ears, however it is based on the false premise that corruption can be fought. Corruption can't be fought because it can't be defined, however what can be done is to make people more accountable for their actions and their consequences.

Analyzing Anna

2011-12-10T19:34:00.001+05:30

He is old, he is stubborn and he claims to represent the aam aadmi. Anna Hazare's rise in terms of publicity has sky-rocketed since his first fast. He claims that as a citizen he is above the parliament. As a citizen, he is entitled to express whatever views he has, but he cannot impose his views on others. The parliament is the collective consciousness of the people of India. The people sitting there might be corrupt, but that is only because the people have voted for them despite having apprehensions of them being corrupt. When we exercise our right to vote, the only question we ask ourselves is whether we would vote for the BJP, Congress or any other party. How often do we vote keeping the candidate standing for the Lok Sabha elections above his party? At the end of the day, parliament is both a body of individuals and a consortium of political parties. The voter ought not to turn a blind eye towards the personality of the candidate merely because he or she is affiliated towards a particular party. This disturbing trend may be noticed by observing the number of independent MP's compared to the number of MP's affiliated with any party. If we are to truly eliminate corruption in the legislature, then we must endorse electoral reforms and voter-awareness measures instead of fasting unto death.

Anna's method will always be anti-people and elitist unless he works with the government and not against it. Let us assume we have the most corrupt parliament ever. In that case, it would be because our collective conscience decided to do so and hence forth our very collective conscience is corrupt. Anna cannot claim to be above this, no matter how corrupt it is. Anna's movement is dominated by the upper class and hence makes demands which they think ought to curb corruption. Yes, there is wisdom in their demands, however they must realize that the entire country is neither educated nor elitist and it is possible that some of their demands would be in conflict with the aspirations of the cumulative public. Yes, there is no denying that as a country we all support Anna's cause, however we cannot be forced to accept the Jan Lokpal as it is without accommodating some of the aspirations of people who voted for the government.

Anna must realize that a democratic process requires patience. Yes, at times we all do feel frustrated due to the time our politicians take to make decisions, however we must understand that it takes time to establish a parliamentary majority. Like every Indian, I have a vote. If Anna's fast forces the person I voted for to make a decision, I will feel cheated, for I voted keeping in mind my candidates' decision-making abilities and not Anna's. If you are an ardent supporter of Anna, kindly ask him to stand for elections so that you may exercise your right to vote and not render my vote futile.

- Ryan Gerard Wilson

Pre-conditions of Justice

2011-11-20T05:16:00.001+05:30

-Ryan Gerard Wilson

When the Supreme Court rejected a high Court order asking Times Now channel to deposit Rs 100 crore as a pre-condition for hearing its appeal, an entire industry was left stunned. The case involved Justice P B Sawant mistakenly as being involved in the Ghaziabad district court Provident Fund scam because of the similarity of names with another judge. The concerned channel even claimed that the error was corrected within 15 seconds and for five days a public apology was issued to the wronged judge.

This moves opens up a plethora of jurisprudential debates namely weather or not negligence ought to be s strict liability offence or not and the application of the doctrine of proportionality. Surprisingly one of the greatest critics of the Indian media, Justice Markandey Katju who often accuses the media of being anti-people admitted that such a move ought to be reconsidered. Recently Justice Ruma Paul, the former judge of the Supreme Court listed the seven deadly sins which plagued the higher judiciary. The question which faces us now is whether an eight deadly sin can be added to the list. The eight sin being that of over-reaction.

Justice Hidayatullah once noted in the Naresh Mairajkar case[AIR 1967 SC 1 (29)] that Judges can be said to be entirely out of the reach of fundamental rights. Justice Mathew in a Keshavanand Bharti v State of Kerala[(1973) 4 SCC 225] noted that the judicial process is a state action and the judiciary is bound to apply the directive principles in making a judgment. One of the sharpest criticisms of the courts pre-condition is that it was made neglecting the sociological impact on Indian society. The media has been or cynically in the words of Justice Katju has always claimed to been an agent for social change. There industry is in a state of disbelief as the ones who have claimed to amplify juducal reach from the Supreme Court to the common man have been denied those very rights they fight for others. The logical consequence of such a pre-condition would be an obvious denial of a review.

The PCI chief has been campaigning to gain political consensus so that he may be given “teeth” to “correct” the media. Renowned journalist of NDTV, Prannoy Roy has stressed the need for strong defamation laws and had even gone on to say “We live in a punishment-free world as the media”. This move by the supreme court smacks of low sociological foresight.

Justice Katju often says that certain persons form the media haven’t studied law, economics and sociology. Such a move by the court is being vehemently criticized from the legal aspect with respect to overt punishment for an honest mistake followed by a swift apology, from the economic aspect with respect to the incapability of Times Now to pay the amount and the sociological aspect wherein the interaction between the three state organs, the media and the people has been jolted for one of the most frivolous reasons. Justice J S Verma, the former Chief Justice of India wished that Justice Sawant had ignored the lapse for the very reason that his integrity was such that none would have taken it seriously and even if it were for a moment causative of damage to reputation the five day long apology issued would have mitigated the same. Such a measure would in the eyes of many perhaps have been justified if there was an iota of malice. The question raised by this matter is not a comforting one- What can one do if there is a judicial denial of justice?

Opening a Private Limited Company in India

2011-06-12T06:31:00.002+05:30

What happens when a person in India considers starting his own company?- He gets puzzled at the first by the do’s and don’ts and all the procedural intricacies irritate him a lot. My post will answer questions that answer how to open a company in India. It will describe approximately all the required rules and procedures.

These are the basic steps involved in starting a business in Maharashtra. However in some states or cities one may have to go through some additional processes that one will have to find out.

Step 1: Obtain DIN (Director Identification Number)

Method: Can be done online from the website of Ministry of Corporate Affairs government of India.

Website: http://www.mca.gov.in/

Time Taken: 1 Day

Cost: INR 100

Process: The provisional DIN will be issued immediately. The applicant will have to get the application form printed and signed and sent for approval to the ministry by courier along with the proof of identity and address.

Step 2: Obtain DSC (Digital Signature Certificate)

Method: Can be done online from private agencies authorized by Ministry of Corporate Affairs government of India.

Time Taken: 4 Days

Cost: INR 1500

Process: To use the new electronic filing system under MCA 21, the applicant must obtain a Class-II Digital Signature Certificate. The digital signature certificate can be obtained from one of six private agencies authorized by MCA 21 such as Tata Consultancy Services. Company directors submit the prescribed application form along with proof of identity and address. Each agency has its own fee structure, ranging from INR 400 to INR 2650.

Step 3: Reserve the company name online with the registrar of companies.(ROC)

Time: 1 Day

Cost: 500

Process: The applicant can check the availability of desired company name online (website: http://www.mca.gov.in/). ROC suggests to provide them at least 6 company names. Then they are checked by the ROC staff for any similarities with all other names in India. Once when a company name gets confirmed it is displayed on the MCA website.

Step 4: Stamp the company documents at the state treasury (State) or authorized bank (Private)

Time Taken: 1 Day

Cost: Depends on the state. (Rate of stamp duty varies from state to state)

Process: The applicant will have to submit the documents accompanied by unsigned copies of the Memorandum and Articles of Association and the payment receipt. Applicant will have to ensure that the document submitted to Superintendent of Stamps or to the authorized back for stamping are unsigned and that no promoter or subscriber has written anything on it.

Step 5: Getting the certificate of incorporation from the Registrar of Companies.

Time Taken: 5 days.

Process: This process requires filing the forms from the website of Ministry of Company Affairs along with the documents, scanned copies of the consent of the directors. This can be done online and offline.

Step 6: Make a seal

Time Taken: 1 Day

Cost: INR 350 (Cost depends on the number of seals required and the time period for delivery)

Process: For the company to be incorporated making a seal is not a legal requirement.

Step 7: Obtain a PAN (Permanent Account Number) from an authorized organization.

Cost: INR 67

Time Taken: 7 days

Process: An applicant will have to reach any authorized franchise or agent appointed by NSDL (National Securities Depository Limited) or the UTI (Unit Trust of India) Investor Services Ltd. as outsourced by Income Tax Department. Applicant’s physical presence is important for document verification.

Step 8: Obtain a Tax Account Number (TAN)

Cost: 57

Time Taken: 7 days

Process: The application for allotment of a TAN must be filed using Form 49B and submitted at any TIN Facilitation Center authorized to receive e-TDS returns. The list of TIN Facilitation Centers can be found at www.incometaxindia.gov.in. The hard copy of the application must be physically filed with the NSDL.

Step 9: Register with the Office of Inspector. Shops and Establishment Act (State/ Municipal)

Time Taken: 2 Days

Cost: INR 6000

Process: A statement containing the employer-"s and manager-"s names and the establishment’s name (if any), postal address, and category must be sent to the local shop inspector with the applicable fees.

Step 10: Register for Value Added Tax (VAT) at the State Commercial Tax Office

Cost: INR 5100

Time Taken: 12 Days

Process: The authorized representative signing the application must be available at the Sales-Tax Office on the day of application verification. The applicant goes to the Sales-Tax Office and up to the registration counter. The clerk at the counter verifies that the applicant has all the required documents and gives the applicant a token (waiting number). After a short wait, the applicant-"s number is called and the applicant approaches the desk of a sales-tax officer.

Step 11: Register for Profession at Profession Tax Office.

Time Taken: 2 Days

Cost: Nothing

Process: According to section 5 of the Profession Tax Act, every employer (not being an officer of the government) is liable to taxation and shall obtain a certificate of registration from the prescribed authority. The company is required to apply to the registering authority using Form 1.

Step 12: Register with Employees’ Provident Fund Organization (National)

Time Taken: 12 Days

Cost: Nothing

Process: The Employees Provident Funds and Miscellaneous Provisions Act (1952) applies to an establishment, employing 20 or more persons and engaged in any of the 183 industries and classes of business establishments, throughout India excluding the State of Jammu and Kashmir.

The applicant fills in an application and is then allotted a social security number. The Provident Fund registration focuses on delinquent reporting, underreporting, or non-reporting of workforce size. Provident Fund registration is optional if the workforce size is not more than 20. The employer is required to provide necessary information to the concerned regional Provident Fund Organization (EPFO) in the prescribed manner for allotment of Establishment Code Number. No separate registration is required for the employees.

Nevertheless, all eligible employees are required to become members of the Fund and individual account number is allotted by the employer in the prescribed manner. As per an internal circular, the code number is to be allotted within 3 days of submission, if the application is complete in all respects. However, in many cases applicants have received the intimation letter with the code number in 12 to 15 days. An online application facility is not provided so far.

Step 13: Register for medical insurance at the regional office of the Employees’ State Insurance Corporation

Cost: Nothing

Time Taken: 9 Days

Process: As per the Employees’ State Insurance (General), Form 01 must be submitted by the employer for registration. It takes 3 days to a week for the Employer Code Number to be issued. The-" "intimation letter""- containing the Code Number is mailed to the employer and that takes an additional couple of days.

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The Making of a Lawyer

2011-06-03T20:39:00.006+05:30

- Shared by Shreya Singh

What happens when you destroy everything you ever wished for with your very own hands? What do you do then? What happens precisely one day after your life is attacked? I, like most of the people over-ridden by guilt and despair go into mindless “pashtyataap” and in the world of law-students it means joining an internship a day after your exams get over . an internship where you are certainly not invited and got in because the advocate was returning a favour to your uncle who got you in. He takes me in and now my uncle has to admit the advocate’s nephew in his medical college. It’s a circle of favors…our whole society is entwined in this circle its more like the barbed wires used as a security boundary in old safer times when thieves weren’t so smart and cattle wasn’t so hungry. Pricky.

So, I entered another room of the MDS( male dominated society). It was a whole new room for me. Fresh after one year of Law School I could with pride and dignity declare openly that I had absolutely no clue what a profession of law was all about. Being from a family of Engineers and Businessmen and the first years being taught nothing except new ways and resources of CCP and Ten Ways to Waste your time while under the pretence of Preparing for Grand Intra, i was like a blank cheque eager to be filled and cashed.

Everybody there was middle-aged age, so needless to say, I had nothing in common with them except the fact that we all faced the same doom of being in the profession of law in a country with over-riding ideals and under-payed jobs, needless to say a very conflicting combination.

For the first few days they refused to acknowledge my presence. sometimes trying too hard in the process, I would drop a huge file and my pen would fly in air for quite a few dramatic moments before landing on someone or something and they wouldn’t even look up from their work. It was a bit too much. I added to my misery by offering to intern both in the court and the chamber and that’s when things started looking better.

The only way to be taken seriously at work is to be serious about work. So, I would never be late for work, read all the important files in chamber for the next day’s court session. Ask questions –most importantly, and listen carefully to whatever was being told to me even if it was for just 2 minutes in the whole day. I would go and ask—something, anything but commute regularly. Soon after 10-12 days the associates would themselves come to me and tell me about the various judgments being delivered in court while they were standing outside waiting for their case, at the chamber they would give me work, from trivial things like numbering the cases and annexures to taking notes and forming notes for the cases, it all happened slowly. Advocates would give me research work and till now I have never been able to actually help them in any solid way but yes I did learn many things all the times I failed to help.

Also, a very important thing in this profession is the ego. I have till date not met a single advocate, judge, teacher, law student, anyone who if good at what he/she does is also humble about it. Experience in the field of law is something so bragged about that sometimes it felt nauseous to be in the presence of such “eminent beings” . There were some rather “unique” people I encountered during this one month I had spent in the Raw-Law world. People like senior advocate gulabbo, the jumpy judge, the bench- judge who snored and stared, the same guy who came for three different cases in two days, the seventy six year old daughter whose siblings declared her an outsider after their ninety year old father died, just for property, the fifty-something man who cried in full public view when he lost everything he had earned in life just because the advocate did not turn up, the clerk of forty two years age who was finishing third year of LL.B because he still dared to dream, the associate-father to three college going kids- who even after so many years chose to remain an associate because he was scared he could not make it on his own. These and many more…which judge uses natural justice , which written law and most importantly I saw justice being delivered in one case and the better case winning , even when guilty, in another. I saw all that we read in those big fat books which take four pages to explain what coud have been explained in four lines. It was eye-opening and exciting on one side and some times it made me promise myself to never enter the world of litigation.

But whether you like it or not, litigation has this certain charisma attached to it for some people. The courtrooms are small in the U.P. HC and lawyers too many, you can actually smell 10 different kinds of sweat at the same time and you have to wear cloaks and blazers even in the blazing May heat. It is uncertain, risky, needs immense confidence and skill, and it is the perfect example of the survival instinct we associate with human beings. Standing and faking sincerity in front of a person who has already faked it for decades and knows it all requires skill. Convincing them and proving the right- wrong and most importantly the right-right is a twisted and immensely difficult task and your bread and butter depends on how good a liar you are and how good are your instincts. How quick can you think? How much of your literature do you remember? How can you fathom the loophole in a case and satisfy your client and most importantly make him believe that you can help him and save him. We get three weeks to prepare for a moot and solve and crack the case given to us. There in the chamber a prospective client would come sit in front of you tell you his case and ask then and there whether there is hope for you to help him out and you don’t get to open a book and refer to sections and get any help whatsoever -- you have to listen, think and catch the broken link and work on it and convince your client that they have a case . All in the moment-- one miss and 100% guarantee that the client will not come back to you and tell ten other people that you are no good. You lose ten clients when you fail once and when you succeed once that client will stay with you forever and also recommend you . You need courage and confidence and lots of hard work to make it on your own in this black and white world. Because the judge will incinerate your ego, the client will doubt your credibility and your colleagues will snatch away your clients right under your nose.

This, as we were told before we joined Law school, was the last option for students graduating from the elite National Law Universities went for. Initially I thought it was because the other jobs paid more but I think the real reason is because surviving and winning in this field needs a lot of gut and has immense risks and we Indians refrain from. You need to struggle and work hard every day but on the brighter side-it would get easier as you gain experience. If you survived the first few years and get recognized then you have sealed a fortune for yourself ,because, breaking laws is second nature to human beings and they all want justice and they are ready to pay for it. A vast number of the best and well known people in this world have been and will be Lawyers.

Policing the Police

2011-06-03T20:14:00.006+05:30

I had never bothered about policemen and their ways before. Surely we criticize them, we know they are not exactly the supercops we see in the movies, but since it does not affecting us, its just talk. We've heard stories of how indifferently the policemen treat the aam janta, but I came face to face with the indifference and apathy with my first experience with filing an FIR (First Information Report).

A friend of mine lost his cellphone and was required to file an FIR in order to get his SIM card blocked from mobile companies. Now, in India, once a mobile is lost, or any electronic item for that matter, is lost, it is gone for good. Surveillance or any other similar technical tactic used by Police in order to recover these items is virtually unheard of, especially here in Uttar Pradesh. The Police doesn't bother to find it, and being a tolerant nation that we are, generally the owner (now ex-owner) considers it lost and moves on. The maximum to be done is to get an FIR lodged and block the SIM to prevent any misuse of the phone. This is the maximum we expect out of our policemen- get us our FIR on time! Later I discovered, even this bare minimum task is very hard for our policemen to keep up with.

The event took place at Thana Talkatora , Rajajipuram, Lucknow. My friend n myself, entered the Police Station, partly in anticipation, partly in fear. This was our first visit to any Police Station. We enter a room and I found it to be exactly in consonance with the typical police station I had imagined. Two policemen eating gutka slouched on their chairs, chewing paan in a manner that somehow reminded me of a buffalo chewing the cud. One look at the corner of the wall, and it was clear where the pan masala went after they were through with it.

I asked him, trying to be polite, "Sir, my friend lost his phone and now he wants to file an FIR regarding this issue." For the reaction (or the lack of it) that I received, I could have been speaking to the pan-stained wall behind him. He pretended I didn't exist. I repeated my sentence, now in an increased volume. He glared at me as if I had committed some criminal offence, almost as if I had stolen my friend's cellphone. He finally replied in a slighting tone, "Pay me 100 bucks which will be used in making the affidavit and come the day after tomorrow to take the FIR copy or get it done from court yourself and give it to me." Now, I am a law student alright, but I wasn't aware of the intricate legal procedures yet, at the end of a year. I asked him weather this affidavit from court is necessary. He replied in a the typical policemen tone, "What do you think I am doing here? Just get it done and submit it here." I am a teenager, and not a very aggressive one, at that. His tone threatened me. Assuming that further curiosity may grant me some physical pain, I decided to give up. I was feeling helpless. It moved me. I felt a strong surge of anger at this part red-tapism and part indifference. So much for a simple FIR?

We came outside, slightly irked and did what we do whenever we are rendered helpless- we criticized. We wondered whether it is only the UP Police which is so easy-going about its duties or was it the same all over the country. It was sad for our nation as a whole. Now my friend had an uncle who was a policeman in UP in a different district. Moved by the mistreatment, I suggested him to ring him up and ask for suggestions. He called him up and reported to him the ill-behaviour we had just received. His uncle asked us to give him the mobile phone number of the Station Incharge, which is given outside every police station and asked to wait there. We followed the instructions and stood there waiting in anticipation for what was going to follow.

We didn't have wait for long. After about 2 minutes, a very changed policemen came to greet us - "Ohh!! Why didn't you tell us before that your uncle is a policeman." We were invited into his office, offered tea while the same man who dismissed us offhand wrote the application himself. All he required was the IMEI no. and address and the copy of the FIR was handed to us within seconds. He smiled his sycophantic smile and left us with this parting advice, "If you have any policeman in your family, whenever you are coming to a police station for any reason, its your responsibility to give your 'proper introduction' first. As we left the police station, my friend was rather pleased with what connections could do and I was stunned.

Later that night, in a pensive mood, when I replayed the incident in my head, I was slightly disturbed. Is this the way they are supposed to behave with the 'ordinary' man? We rely on them considering them to be people who enforce the law - who protect the citizens and have the duty to redress our day to day problems. Does a person who does not have 'proper' introduction to give not have the right to get his problem solved? This was just a little incident for an FIR for a misplaced SIM card. A merely procedural formality. I shuddered to think of what this inactivity would do to victims of crime who knocked their doors for justice. The problem suddenly felt really big, and I begun to realize the seriousness of the stories I had heard. After seeing this I feel a great sense of pity on the society and this state.

Launching RAAH - A project by team Legal Moksha

2011-05-24T05:12:00.006+05:30

It is said that youth is naive and is not affected by inhibitions. For five students from Dr. Ram Manohar Lohiya National Law University, Lucknow, working on rural development was not merely a project. It was more than a trip to the other side of India where they live and where rests our future. It was the overwhelming need to participate in the development of the rural society, the self-gratifying need to do good-selflessly, as was envisioned by the Father of the Nation when he described the role youth should play in society, that made them visit a village in Hardoi (Gramsabha Gondarao Block Ahirori) to observe the situation of education, health, infrastructure and legal awareness in rural India.
A visit of such kind was unprecedented especially in the said village, and the students infused fear in the hearts of a sleeping administration. The purpose of their visit earned them the support and goodwill of the School Headmaster.

A detailed study gave them the following basic information regarding the status of primary education. There were two schools-a primary school and a junior school, running adjacent to each other.

a). The Primary School had no infrastructure.
b). The students found the primary school children studying under the tree.
c). The Junior School had little infrastructure.
d). Small rooms with suffocating atmosphere and no electricity.
e). The lavatories were in a dilapidated condition.
And that was all the infrastructure that the children have for their education which is guaranteed in the Constitution of India, as a fundamental right of every child in India.

Subsequent interaction with a teacher provided us with valuable insights regarding the working of the education machinery in villages. As per the guidelines, no more than 40 students are to be assigned to one teacher. However, both the schools together had around 500 students and just 3 teachers. However, things did not end here. Regular classes were held for around 75-100 days a year. Even these days, their Government duties eclipse their teaching duties. A regular outsourcing of man-power from the school administration for Government duties and various other statutory services in other projects like Polio Booths, census and counting, election duties etc. make it difficult for the children to enjoy the minimal quality requirements of education.
Children are the future of a nation. They are the most vulnerable, yet strongest part of a nation. For an emerging and developing country like India, development of underprivileged children holds the key to the progress of the nation itself. Education of children-urban or rural is the key whether we are addressing healthcare, poverty, population control, and unemployment or human rights issues.

It is ironic for a country like India to be in such a deteriorating condition in the field of education considering the fact that the founding fathers of our country had advocated education as the most essential step to building a strong nation. For a country looked up for its intelligentsia, the classrooms like the ones witnessed by the students go a long way in describing the importance we give to the Temples of Knowledge.

The situation is bad yet we still have the capacity to recover from the loss. To expect instantaneous change would be foolish, however, to hope for betterment is what we move forward with. We move forward with the belief that a small and selfless act for change can bring a revolution and that is exactly what is mirrored in the students.

Contents of Legislation

2011-05-24T05:07:00.003+05:30

This Article describes , How to Draft a legislation.

Bills and Statutory instruments (subsidiary legislation) are drafted in response to the requirements of a government department. There are some bills which are simple and can be drafted in a very short time on the other hand there are bills which involve major legislative areas and take months or even years to draft.

Here is a classification of contents commonly found in Indian Legislations.

1. Object and Reason Clause.

This clause specifies the basic purpose behind the enactment of the legislature. In case laws while applying the ‘golden rule’ or the ‘mischief’ rule of interpretation of statues, the object & reason clause is a veritable goldmine of knowledge. It specifies the need and importance for and the goals to be achieved through the enactment of the legislature. It embodies the intention of the legislator while framing the legislation, and thus aids in interpretation in case of any ambiguity.

It is a clause, the reading of which, gives one a general idea of what a piece of legislation intends to achieve. It specifies the objectives and the reasons behind those objectives.

2. Short Title

It is the formal name given to a legislation.

e. g . “The Advocates Act, 1961”

Its ideally suggestive of the contents and the area the legislation deals with.

“Short titles are generally made up of just a few words that describe in broad terms the area of law being changed or the thing affected, followed by the word “Act” and then the year in which the legislation is formally enacted.”

– From Wikipedia

Draft legislation (bills) also uses short titles, but substitutes the word “Bill” for “Act”.

3. No. of Act

“(Act no. 25 of 1961)” as stated in “The Advocates Act, 1961 “means that The Advocates Act was 25^th act to be passed in the year 1961.

Note:- The year of enactment is, at times, also mentioned in the Long Title.

4. Sources of Legislation

The acts, taking cognizance of which, the legislation has been passed.

In normal terms source of legislation means the relevant authority which inspired the drafting of the act.

e.g.
Source of Legislation for The Advocates Act, 1961
“ The Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920) and the Indian Bar Councils Act, 1926 (38 of 1926) “

Thus a legislation may be drafted integrating different legislations on that topic, or may be passed to ratify an international convention, or as a result of recommendations from the Law Commission, eminent jurists and scholars, case laws or through public opinion.

5. Preamble

The preamble highlights the purpose, object and intent of the Act. It is an important tool of interpretation, and has been called the “key to the mind of the legislator”. These days a preamble is generally omitted, but it has been recommended for

a) Legislations with constitutional importance i.e. when the subject matter is constitutional in nature.

b) Legislations ratifying an international convention.

c) Legislations where local or customary laws have been given preference.

6. Long Title

A long title defines the purpose, and the main principle of the legislation in a single line. It gives a bird’s eye view of the subject matter of the legislation.

e.g
As mentioned in Advocates Act
“An act to amend and conslidate the law relating to legal practitioner and to provide for the constitution of Bar Councils and an All India Bar.”

7. Extent Clause

It specifies the territorial mandate of the legislation concerned, For example the Indian Contract Act is applicable to the whole of India except the state of Jammu and Kashmir. Different legislatures have different extent clauses depending upon their nature and objectives.

8. Application Clause

This clause answers the question ‘To whom it may apply’. For example in the Hindu marriage Act the word ‘Hindu’ applies to ‘Jains’, ‘Buddhists’ and ‘Sikhs’ as well.

9. Commencement Clause

It specifies on what date and how the Act comes into effect.

a. Indicate Effect

Indicates that the act shall come into force when it receives assent of the authority, the President.

b. On a particular date

When the legislators have premeditated the date for the commencement of the legislation, they indicate the same in the commencement clause.

c. By a notification

In many cases it is mentioned that the Act will become operative from the day it is notified in the Official Gazette.

10. Definition Clause

It defines the terms used commonly throughout the legislature and also specifies the extent to which people or acts come under the ambit of a particular definition. It either restricts or enlarges the literal meaning of a word to suit the purpose of the act, normally in general cases section 2 or 3 of legislatures contain the definition clause.

11. Substantive Clause

It is the main body of the legislation. The bulk of the operational clauses of the act are contained in it.

12. Miscellaneous Clauses

The above clauses are an essential part of all the legislations in general, but there are certain clauses which serve a specific purpose and may not be applicable to all legislations. Some of them are as follows:

a. Non Obstante Clause:

Sometimes it becomes necessary to provide that a particular Act should operate notwithstanding anything contained in any other law which is contrary to the provisions of this Act. In other words, in cases where it is not possible to examine all relevant laws to decide which provision should be overruled and to what extent, the convenient device is adopted whereby the particular law is given overriding effect.

e.g

The Advocates Act, 1961

“58AG. [(Note:- Section 58AG ins. by Act 38 of 1977, sec.7) Special provisions in relation to article clerks- Notwithstanding anything contained in this Act, every person who immediately before the 31st day of December, 1976 has commenced his articleship and passed the Preliminary examination, for the purpose of enrolment as an attorney of the High Court at Calcutta in accordance with rules made under sub section (2) of section 34………..”

b. Protection of Action taken in good faith:

This clause gives protection to authorities during the course of performance of their duties.

e.g

Protection given to police while they are on duty.

c. Rule making power clause:

It delegates authority to executive body, already existing or which is established by the Act, the power to form certain rules regarding procedure and function of the body in the jurisdiction of the body, to carry out the mandate given in the Act.

e.g

Under RTI Central Information Commission has been formed and given certain rule making powers.

d. Saving Clause:

This clause states that the present legislation is not in derogation i.e. doesn’t override or overrule past legislations, it merely supplements them.

- Piyush Raj Verma

A nation with an identity: The UIDAI project by Nandan Nilekani

2011-05-24T05:05:00.003+05:30

On September 29 Our PM Manmohan Singh landed in Tembhli Villege Nandurbar district in Maharashtra with a 12 digit number to a new era.

Ranjana Sadasiv Sonawane (782474317884) created a history by becoming the first person to get an unique identity number under the UPA govt’s ‘Adhar’ project. Her five year old son Hitesh also got a UID number. The PM declared that everyone will get this UID soon. This was a revolutionary step taken by our government. Definitely it is going to be very useful in this new technical world. Poor people in India don’t have any identity proof because of this shortcoming they couldn’t open bank accounts or get other benefits of government welfare programs and several times, these benefits are pocketed by others. Sonia Gandhi said “The goal of this project in not only development but inclusive growth.”

Brains behind the Project

A graduate from Indian Institute of Technology Bombay with a B. Tech. in electrical engineering batch 1978, after his graduation he joined Patni Computer Systems where N. R. Narayana Murty took his interview. After three years there was a dispute in company and Murty walked out of Patni. His entire division walked out with him and the defectors established a new company INFOSYS. Later on he became the CEO of INFOSYS in March 2002, taking over from Murty. In July 2009 he left INFOSYS to serve the chairperson of Unique Identification Authority of India after getting an invitation from our prime minister Dr. Manmohan Singh, in the rank of a cabinet minister.

An IAS officer Ram Sewak Sharma of Jharkhand Government cadre has been appointed as the Director General and Mission Director of the authority. He is a well-known person in the e-governance project in Jharkhand, he worked as an IT secretary and during his job period he has won a number of awards for best Information Technology Trends State in India.

Unique Identification Authority of India

Also known as UIDAI project is a part of planning commission of India under which government of India will provide unique ID number to all Indians but not smart cards. The authority would provide a database of residents containing very simple data in biometrics. It will create world’s largest biometric database covering around one billion people. It will be a multipurpose identity card which will help people in several ways like in poverty alleviation programs such as NREGA, addressing Illegal Immigration into India and terrorist threats is another goal of the program. They are actually planning to link voter ID, passports, ration cards, licenses, fishing permits and a few more alike things into one card. The Union Labor Ministry has offered its verified Employment Provident Fund (EPFO) database of 42 million citizens as the first database to be integrated into the unique ID system.

This project is known as AADHAR which means base or foundation.

They have planned to introduce a micro-payment system in order to make banking services easy for rural people. The idea is to appoint Business Correspondents for every Gram Panchayat and they will be selected among the people themselves they could be kirana shop owner or any reputed person fromthat area and they will be working like instant ATM’s.

Nandan Nilekani says, ”This device will be based on a mobile phone connection and would be made available at every BC. Customers would just have to get their identity authenticated and withdraw or put money into their bank accounts. This money will not come from the ATM, but from the cash drawer of the BC”

Critiques

The main critique is technical difficulty as in November 2009 WikiLeaks said that “The UID Database will be susceptible to attacks and leaks at various levels.” and a national database could allow police or intelligence groups to discriminate against people by caste, religion or birthplace.

Besides this Biometric verification is not 100% accurate. This technology is can’t distinguish between the upper skin of the finger and technically made dummy fingers of acrylic paint, silicon rubber etc and in this 21^st century fingerprint can be altered very easily by paying a very few thousand bucks .

According to The Wall Street Journal, “Numerous social studies show that knowledge of these identifiers adversely impacts delivery of services such as education and health care to disadvantaged citizens.”

Except this there are people making statements about Article 21 of Indian Constitution and relating that with this project. A few more stating that it’s a gross violation of fundamental human rights and many more rumors are there including that NandanNilekani is misleading Indian government.

On the brighter side

Now the government is using technology to better our lives. It is very helpful in making the system transparent and ensures speedy recovery of resources to the needy without any malpractice. It is a boon for our people.

This project is not just for enabling the poor to access the government programs it will help them in so many ways and it is not just for villagers or poor people even urban educated persons will be getting profits from it. This way a ’ 12 digit no’ will be making the life of every Indian more lavish and beautiful.

- Piyush Raj Verma

Marriage: A Knotty Milieu

2011-05-24T05:02:00.003+05:30

Every now and then, we hear that India is on its way ahead, it is rising and becoming stronger. But, what is the definition of this strength- is it merely signing a nuke deal with U.S. or the IMF

pegging the growth rate of India at 9%. Probably not.

The biggest strength that India has is the strong “social fabric”, whose weaving thread is family ethics and moral values which are gradually eroding. This is evident from the fact that the divorce rate in India, at present, is on its all-time high. Reasons are many- some justified and some not so justified..And here, I want to clear my stance that I am not the orthodox hindu from the 1930’s, who considers divorce to be a taboo and divorcees to be social ogres. But I am
definitely against divorces on trivial grounds, like, snoring and pimples…! Yes! This is the “now” of this holy sacrament.

A Times of India report says that every two out of five marriages are officially breaking up in Mumbai, let’s not consider ourselves with the unofficial ones…! And Mumbai, more than anything else is a trendsetter for the rest of India. The aftermath is conveniently
foreseeable.

There are n number of circumstances, that one can blame, for this drastic increase in divorce rates. One very important factor is the hyper-urban lifestyles that result in time-starved relationships. With both the spouses working for 8+2 hours, they are left with too little time to nurture their marriage, which results in discontentment. Another reason again, has much to do with loosening morals- extra marital affairs, which is a fair enough reason to get divorced. Some
people even blame it on Bollywood culture that is invading the Indian masses.

An interesting study by a Malay board- National Population and Family Development Board (LPPKN) says that amongst Indians the most popular reason for divorce is “Mother-in-law” or broadly the “in-laws”. This depicts the lack of tolerance amongst Indian couples regarding family
ethics.

Some sociologists believe that Indians are aping the western culture and this westernization has led to this swelling number of divorces, but here, something that is left unheeded is that U.S., the
pall-bearer of western culture, is declining in divorce rates and our India is trekking up.

Romans had an interesting concept-“matrimonia debent esse liberia” meaning that marriages shall be free; centuries later Victorian England had an starkly opposite view that one should stay in his or her marriage for better or for worse. I believe that, the concept should hang between the two- one should try to save a marriage to the maximum possible extent, but, when it affects you so much so that it corrupts your soul, one should get out of it.

Family is considered as the most important and fundamental element of Indian society, which when breaks, weakens the social fabric. This weak social fabric is sure to show up in the national character. The strength of a country is not only determined by its military and economic strength, it depends equally so on the moral strength of its people. So, lets be rational and morally courageous and make and keep India strong and healthy in its soul.

- Shivangi Tripathi, Student, RML National Law University, Lucknow