AD VITAM

Processing Due Process

2009-01-17T02:14:00.000-08:00

A key to the development of a wholly intellectual branch of legal knowledge, as opened up by the proactive role undertaken by the Supreme Court of India, engaging in the much appreciated and acclaimed era of judicial activism stems from the innovative exercise of interpreting various important provisions of the constitution in light of a presumed availability of due process. This, despite the fact, that any direct reference to the concept itself is conspicuously absent in the constitutional text. However, judicial interpretation of the constitution has provided a deep insight into the necessity and the veracity of incorporating a due process regime in our legal system.

A past constitutional reality – Rejection of Due Process or a balanced forethought of functional reality

Constitutional historian Prof. Granville Austin provides us with a veritable account of the ‘incorporation’ of due process in the constitution of India. In his distinguished book, ‘The Indian Constitution - Cornerstone of a Nation’, he discusses at length the assembly’s efforts at limiting the influence of due process in the new constitution. Due process in the constituent assembly was the subject matter of intense debate on two grounds, firstly with property acquisition and the consequent determination of compensation and secondly, preventive detention. Primarily the issue of property was sought to be resolved by excluding the term property from Article 21. Corrections made to Article 31 also ensured that, the determination of compensation would be left to the legislature and the power of the court to review the same was severely restricted. The very first amendment to the said article inserted Articles 31A and 31B along with the ninth schedule, which further alienated the courts by taking away, property acquisition and compensation from under the purview of Articles 14 and 19 as well.
It was also observed by the Fundamental Rights advisory committee that insofar as the applicability of due process to arrest and detention was concerned, the executive would not be empowered to detain any person without a trial. Even though such a restriction on arbitrary executive fiat was a welcome addition, certain other reasons impeded the incorporation of due process in its entirety. Certain key members of the assembly had at the time been greatly influenced by the works of a great American lawyer named James Bradley Thayer, who insisted that there must exist a distinction between legislation and adjudication in terms of preventing the judiciary from usurping the power by replacing the democratic value choices with that of their own. He believed that any absolute reliance on due process as a tool to safeguard against legislative oversight and executive fiat would weaken the democratic process (as acknowledged and discussed in ‘Originalism in American Law and Politics’ by Johnathan George O'Neill at p44). This view was supplemented by Justice Felix Frankfurter who suggested to Sir BN Rau, that an absolute incorporation of due process could not only be undemocratic but also be burdensome on the judiciary. Therefore it was widely acknowledged in the assembly that a balance should be achieved between protection of individual liberty against prejudicial action and safeguarding social reform legislation from the excesses of due process.
Due process was therefore intentionally omitted in favor of the Japanese ‘procedure established by law’, which largely ensured that social reform legislation would not be subject to the ‘excesses’ of due process and the demands of draft Article 15 (now Article 21), would be confined to procedure established by law, where law would be construed to mean legislation as opposed to natural law or natural justice. Owing to trenchant criticism on these grounds however the assembly adopted much later, a draft Article 15A (now Article 22), which provided further safeguards against arbitrary arrest and detention with preventive detention being the exception rather than the norm.

The current definition of due process – A presumptive evolution or a justified reality

As an inherent aspect of modern American constitutionalism due process was incorporated through the Fifth Amendment to the American Constitution wherein it famously declares that no person shall be “deprived of life, liberty, or property without due process of law”. Therefore under the due process regime in the American legal system, any law depriving a person of his life, liberty, or property must stand the test of reasonableness wherein any deprivation of property would require a just compensation to be paid and wherein the deprivation of all liberties must stand test to the strict demands of reasonableness. Under the Indian Constitution, this was however, given up in the interests of a young developing nation seeking to achieve socio-economic reform. A shadow of due process however remained in the incorporation of the specific freedoms under Article 19 (1), the deprivation of which would be subject to just, fair and reasonable grounds only or the reluctant inclusion of Article 22 which was immediately the subject matter of fierce constitutional debate in the AK Gopalan’s case. The view therein expressed by the Supreme Court was however deeply discouraging to the proponents of a due process regime under the constitution of India. The issue in question was, the construction of article 22 based on standard rules of Constitutional interpretation. Rejecting the contentions of the petitioner, the Supreme Court upheld a narrow interpretation of both Articles 22 and 21 and ensured that they shall not be read in conjunction with Article 19 which would invariably lead on towards an indirect incorporation of due process into Article 21.
This view was finally acknowledged in the landmark judgment in Maneka Gandhi’s Case wherein it was held that Article 19 and Article 21 must be read in light of each other. This further strengthened the applicability of due process by appreciating the existence of a procedural due process within Article 21. The Supreme Court further acknowledged the existence of due process by declaring that Article 21 and 19 must be read in conjunction with Article 14 and as such it is now an accepted standard rule that any law depriving any person of his life or personal liberty would have to stand the test of reasonable restriction evolved by the Supreme Court under Article 19 and similarly any classification so depriving and class of people, any such right must stand the test of reasonableness of classification under Article 14. However, the true extent of this form of an evolved due process can only be appreciated upon an understanding of the interpretation of the terms, liberty and life as discussed in this judgment.
The illustrious bench decided to agree with the statement made by Justice Stephen J Field on the interpretation of the term life (By the term "life," as here used, something more is meant than mere animal existence) in his dissenting opinion in Munn V Illinois. As to the interpretation of the term liberty, though qualified by the term personal prefixed to it, the court held that, the term brought within its ambit, a variety of rights that contributed to the development of an individual's personality such as ‘freedom to travel abroad’. This view turned out to be of great significance inasmuch as the applicability of due process is concerned. Such a wide interpretation of the terms life and personal liberty under Article 21 when read in conjunction with the concept of reasonableness underlying Article 19, paved the way for interpreting into Article 21 the existence of a subtle and indirect applicability of substantive due process. The same has from then onwards been reflected in the various decisions of the Supreme Court; reading into Article 21(a provision obviously worded to be a procedural right), innumerable substantive rights like, right to privacy, right to livelihood, right to a clean and healthy environment and such other rights as being eligible for seeking protection against deprivation through the applicability of due process.
The rights to property however, suffered a set back in terms of the deletion of Article 19(1)(f), from part III. The significant development denying due process therein was however, the first amendment which inserted into part III, Articles 31A and 31B along with the ninth schedule. These new provisions sought to eliminate property from the ambit of due process in its entirety by excluding judicial review on the grounds of deprivation of Articles 14 or 19. However, post Maneka Gandhi decisions of the Supreme Court have ensured that all such legislations that are inserted into the ninth schedule remain open to review on the grounds of the nexus between their purposes and object being subject to judicial scrutiny.
The key to development however, lies in working of the law in relation to the current socio-economic and political scenario, rather than relying on expansive legal theories. Despite the noticeable difference in interpretation between the intention and the application of this principle, it is undeniable that the current socio-political situation demands a liberal approach to constitutional interpretation. However the question as regards with whether the situation would be any different with the standard interpretations can only be answered at this juncture with speculation and hypothesis. The latter could probably lead towards an undertaking of extensive research which would undoubtedly be of great practical significance.

Sreenidhi .K.R, M.L

LIBERALIZATION FROM DOGMATISM

2008-11-14T20:13:00.000-08:00

With the inclusion of American based teaching methodology in the form of setting up of independent schools (Dartmouth College v. Woodward, 17 U.S. 518 (1819); where the court affirmed that that state charters establishing private schools and colleges were essentially inviolate. Charters, said the court, were contracts, protected by the Constitution, and could not be unilaterally dissolved by the state. Thus, the independence and freedom of action of non-governmental schools were guaranteed) Teaching law, into a country as India where historically legal education in India was open only to graduates and seen merely as professional training had its own inadequacies. Dismayed at the quality of legal education in conventional universities, several members of the legal fraternity debated for a new system of legal education throughout the 1970s and 1980s, set up as a "pace-setter and a testing ground for bold experiments in legal education". NLSIU, often called the "Harvard of the East" has been rated as the best law school in India (9 out of past 10 years by India Today). Currently modern teaching aids, infrastructural facilities, a well stocked library, a holistic approach to teaching, promise a better tomorrow for the entire legal system. What came as an institutional response to keep abreast with this trend setter is the requirement for autonomy and a renewed demand for a deemed university status. Although I personally agree with the fact that while law is taught in colleges as a discipline the objective ought to be to encourage the student to capitalize his/her ability to think and react originally, in depth and diversity without there being a hint of how he/she would respond to questions posed by the court in the future if he/she were to decide to take up practice of law in courts. Starkly most students in non-NLSIU pathway, keep a marginal view to participate and perform in academic activity. Although workshops, seminars and guest lectures are part of the prescribed methodology, there are hardly few takers on competitive grounds. Discussing this trend amongst law students I get a disappointing response that most believe that law is different from what is practiced in the courts to what is taught in the class. We regularly discuss about privatization, liberalization and globalization without pondering about whether our minds have begun to think and react liberally and competitively, much more, have we been encouraged by our resourceful faculty to take that next step? Facilitating such surge towards excellence is the unsung hero, and the observation of the Apex Court in the case of Avinash Nagra v. Navodaya Vidyalaya Samiti etc (CDJ 1996 SC) rings a bell somewhere “...our society has elevated the teacher as `Guru Brahma, Gurur Vishnu Guru Devo Maheswarara'. As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance”. We hardly seem to consider whether we are built to handle the responsibility that liberalization, globalization and privatization brings within its fold to an area that would enable us to conquer new heights or perhaps eke out a living. The question ought not to be whether liberalizing professional education for a global requirement provides an answer but whether we are prepared to liberalize our approach in light of a global requirement to bring in competitiveness, creativity and challenge to archaic ideas, teaching methodology and career skills in furtherance of our commitment to achieve new horizons. Perhaps we need to look back at our roots to begin with rather than look forward with no sense of identity or individuality.

Zul Kafeel
mail your comments to zkadvitam@gmail.com

INTERDISCIPLINARY APPROACH TOWARDS TRADITIONAL DISCIPLINES –CHALLENGES AND PERSPECTIVES”

2008-11-14T20:12:00.002-08:00

When the whole tedious process of education begins; it begins as one common pursuit of knowledge. Then comes a point in time where this pursuit branches out into various disciplines or faculties. The time to make a choice; to choose one path which would lead each towards his own destiny, until such time as he may chose to tread it. However, as the more inclined amongst us reach out further than the rest, or as the more adventurous decide to step away from the beaten track, ironically, boundaries between different disciplines begin to fade. Some issues bear certain complexities that cannot be provided a complete perspective with the traditional methodology of focusing on a single discipline. If interdisciplinary relationships are allowed to foster these relationships might go a long way in promoting a critical dialogue between such disciplines and brood innovative issues of commonality that are beyond the resources of individual disciplines alone.
It follows logically that incorporating an interdisciplinary approach would result in a reduction in the number of issues being viewed from the traditional disciplinary perspective. However, incorporating such an approach is not without its own share of problems. Primarily it is a problem involving a loss of disciplinary depth resulting in a distortion of the systematic approach towards certain logic, facts and presumptions inherent in every discipline. Therefore it goes without saying that incorporating an interdisciplinary approach must not completely replace the traditional disciplinary approach. The attempt should rather be to retain, at least in essence, the mental models, cognitive maps and educational frameworks of such traditional disciplines. Another related concern is about the language. Every discipline has a distinct, discipline-specific vocabulary. It is important to ensure that every new methodology based on an interdisciplinary approach, where students are encouraged to achieve breadth as well as depth, require the language of disparate disciplines to be explicitly taught.
It is also noteworthy to observe that every student usually seeks to study a discipline in which he/she believes to have natural talent. While on the one hand students who have inculcated a narrow approach towards the study of their respective disciplines may find it hard to digest a cross-disciplinary or interdisciplinary approach, the same may benefit students who have broader interests. It is perhaps interesting to note that an illustrative example towards laying emphasis on this issue is the integrated five year LLB program available in most Universities across India. This program incorporates the study of various law and non- law subjects simultaneously as part of the same graduate program, wherein students are exposed to a composite, yet comprehensive syllabi that seeks to provide a wide perspective towards inculcating a deeper understanding of the law and the legal system.
In such courses and elsewhere an increasing number of faculty are now involved in working with interdisciplinary settings like these. The challenge from their perspective is to identify how pedagogical approaches can facilitate the ability to integrate the varied methods, systems and approaches that all such disciplines have to offer. The biggest challenge to such faculty is perhaps the democratization and internationalization of higher education, which warrants the acknowledgment of not only a multi-disciplinary but also a multi- cultural approach towards pedagogy. The incorporation of any such interdisciplinary approach to a program means that, for various reasons, students may be inclined to focus on subjects towards which they would not otherwise be inclined. It is therefore most important to introduce a comprehensive system of retaining an equitable academic orientation towards each of the disciplines which are addressed therein. As an issue of prime importance it is needless to say that any purposeful and directed interdisciplinary work by such faculty requires an appropriate system of rewards, promotion, funding, grants and recognition.
It is perhaps a paradox of our times that every new approach under the auspices of existing system is met with cynical views which seem to indicate a certain inherent aversion towards the new and the untested. Innovation is and has proved to be the key to success, nay survival in a modern liberalized economy. The same is true not only for businesses, but for every sphere of human activity. The present is a time for achievers and there is probably no better way to achieve than to dare to be different. Education is one such area which demands innovation and the same can only be achieved through focused leadership and an orientation towards change. Most of these modern approaches to education are the products of such creative endeavor and demands encouragement rather than skepticism.

Sreenidhi K R
For comments mail to skr.advitam@gmail.com

“GLOBAL ESSENTIAL REQUIREMENTS”

2008-11-14T20:12:00.001-08:00

Globalization forces are becoming increasingly apparent in professional education. Human creativity demands that globalization includes activities in the intellectual and cultural domains. Various multilateral agreements and conventions are opening the doors to global mobility and encouraging the development of common educational standards, mutual recognition of qualifications, and certification processes by which professionals are allowed to practice their vocation. In defining the essential competencies that all professionals must have, an increasing emphasis needs to be placed on professionalism, social sciences, economics, law, education and the management of information. This must be done in the context of social and cultural characteristics of the different regions of the world. The exact methods and format for teaching may vary from school to school but the competencies required must be the same. Thus, the concept of 'essentials' does not imply a global uniformity of curricula and educational processes. To retain and advance competencies acquired in professional colleges, graduates must be aware of their own limitations, the need for regularly repeated self-assessment, acceptance of peer evaluation and continuous undertaking of self-directed study. These personal development activities permit the continued acquisition and use of new knowledge and technologies throughout their professional careers. The 'Essentials' alone are not likely to change graduates’ competencies unless they are linked to evaluation of students' competencies. This will ensure that graduates, wherever they are trained in the world, have similar core competencies at the start of further graduate education (specialty training) or when they begin to practice their profession under the appropriate, nationally determined supervision. Such tools must be developed by the specially established Task Force for Assessment. The 'Global Essential Requirements' should be considered as an instrument for improvement of the quality of the professional education.

Dr. R. Praveen
Principal CMR College of Education

2008-11-14T20:10:00.000-08:00

Recognizing an important facet of life, it has been said that education forms an important part of a person’s right to life (Unni Krishnan judgment). Thus, primary education till the age of 14 is a fundamental right. Hailing such a generous step towards the recognition of ‘education’, the country dreamt the advent of the age where India could become a nation where every person is educated. However, the Supreme Court failed in describing the word ‘education’ in its judgments. In the T.M.A Pai Foundation Case, the Supreme Court did consider that to uplift the standards of education in the ‘professional courses imparting minority institutions’, merit must be held a criterion of the admission of students. However, as far as the standard of primary education is concerned, the state only assures the imparting of the same, without a mention of how this education ought to be. Would a mere knowledge of alphabets and numbers qualify the definition of ‘primary education’ as held in the Supreme Court decisions? When the Supreme Court recognizes the fact that education brings about dignity, a limb of the concept of ‘life’, would this dignity flow from mere education, or a minimum standard of the same? It is often seen that schools in villages around the country have thatched buildings, but no teachers, and a school of a few hundred students might have only three to four teachers. The state would still proudly proclaim that it imparts education compulsorily in the ‘grass-root’ level! Would this form of education assure ‘dignity’? Today, when the world is a small place, and distances cease to exist, education should not be the monopoly of a lucky few! Meeting the growing standards worldwide, we face the challenge of rising our education level to international competitiveness. In such an age, the assurance of mere primary educations falls behind the rising standards. A global perspective of the same might assure the removal of a myopic understanding of educational systems, but this would only be possible when the country realizes the meaning of education, in comparison with the ocean, and not a small ‘well’. Maybe, the country needs another activist approach of the Apex Judicial body bring this facet within the definition of dignity as enshrined in ‘life’ in Article 21.

Surup Ray Chaudhuri
For comments mail to src.advitam@gmail.com

IS PROVIDING EDUCATION A MERE COMMERCIAL VENTURE?

2008-11-14T20:06:00.000-08:00

Since the world entered the new technological era, new concepts and inventions came into existence. Man setting foot on the moon was believed to be impossible. But the moon landing on 21 July 1969, had proven our ancestors wrong. Goals which our ancestors believed were unattainable have been achieved. It was yesterday when Alexander Graham Bell invented the first telephone, but today, after one century of the invention of the telephone, we have fast speed internet connections which connect you to other end of the world within minutes where live video conversations are possible. The question is, how do we survive in such a changing world? How do we adapt to the new technology and machinery which our lives revolve around? The answer lies in education. Education helps in the cultivation of skills and professions. It helps us attain the mental and moral level of knowledge required for basic survival and further advancements. Education is the core of our survival since time immemorial. Providing education for the younger generation has been our duty for a better tomorrow. But today, it would not be wrong to say that, providing education has been depicted as a form of a commercial business. Universities around the world are competing against each other to reach the first rank. New methodologies and programs are being drafted and implemented by them to attract the most number of the “stronger” group of students for enrollment as a means of acquiring the most number of credit to themselves. While the reputed universities are successful in attracting the stronger group of students, the other colleges get to select the unfortunate students. As a result, the better quality of education, the better research programs are concentrated in a handful of universities around the globe. In the run to reach the top rank, today most universities portray educational irrelevant benefits to the students in their catalogues. A winning football team, new high-tech facility dorm rooms, sorority parties, etcetera. These “benefits” usually tends to stray the students from their main objectives and goals, resulting in poor quality of education being received. The market strategies used by these universities are no longer education oriented. It provides for the attraction of the most number of students with higher fee’s thus increasing their credit points. Education should not be about increasing credits and reaching the first rank. Shouldn’t it be about providing equal education to everyone? The same quality of materials and lectures to be attainable by a student either in the U.S. or Asia? The whole point of universities is to provide education for the necessary. Be it the richest or the poorest. The time has come to liberalize the universities from market oriented programs and ranking systems.

Fathimath Shafneez

DISCUSSION FORUM

2008-09-09T06:20:00.000-07:00

As a new feature from this edition of Ad Vitam, the editorial group have come up with a concept of creating a forum, as a part of our blog. In this forum, we will have topics raised in the month’s issue being addressed in detail, and we welcome postings and comments on the same by our readers.

TOPIC FOR THIS MONTH:
Changing role and responsibilities of a teacher in a class room environment:
Each one of us have had the best or the worst memories of a teacher having taught us. The topic for this month is centered around discussing the changing role and responsibilities of a teacher in a class room environment.
To participate in this forum, just post your opinion as a comment to this post!

CHANGE IN CHAINS

2008-09-09T06:12:00.000-07:00

While reading about the freedoms that have been guaranteed within the constitution, I wondered in amazement, on how cleverly the framers have had certain rights objectified and left a few others unattended. The freedom of the press which emanates from the freedom of speech and expression (Sakal Papers v. Union of lndia) has been the pinnacle on which our free society stands today. The incumbency of this ‘free press’ was instantly recognized by Pt. Jawaharlal Nehru during his inaugural speech as the first prime minister of independent India. This press was aptly classified as the Fourth Estate, outside the Government to keep an eye out on the three branches of the State-Executive, Legislature and Judiciary. Over the sixty years of our freedom, the press has had its rights vehemently protected by a vigilant judiciary, an institution founded on its impartiality and impeccability towards maintaining rule of law. (Romesh Thappar v State of Madras; Brij Bhusan and another v. The State of Delhi; Express Newspaper v. Union of India etc.). This relationship celebrated as being ‘pious’ has had its fair share of controversies in recent times, in terms of the judiciary chiding the media now and again for its overzealous inferences in certain matters which attain an overnight national importance. A reminder of The Jessica Lal Trial, Noida Killings, and the ongoing Arushi Murder are a few instances of the media having gone ballistic in terms of bringing news to the door step of the common man. The phenomenon of sensationalizing news had never attained this proportion a decade ago, than the present time and moment. Each day’s news is riddled with prejudicing the social mind, tilting social morality in favor of a biased view of ‘social moralists’. Evaluating the impact over a legal mind, it casts an irrefutable doubt about how far our judicial officers remain unperturbed by happenings in our society as depicted by the media in varied format and creativity. Judges too are humans, read with; to err is human, casts a severe doubt of prejudice and bias over an individual who is endowed with a responsibility to perform his functions in a fair and uninfluenced environment. Although the constitution guarantees freedom in varied form and content as a primordial requisite of balanced society, it yet retains the reflection of being chained in the methodology of its enforcement by not being made available effectively to people located far and wide. True that we are committed to breaking the shackles of ideology based governance, bias in administration and prejudice in protection, yet we see many suffering in impoverishment destituteness and hopelessness. Addressing the issue of whether the media has reached proportion with its technological knowhow and creative abilities, in the assistance of upholding rule of law or bind us in wonderland, fuelled by their capitalistic goals, attains significance in present time and need.

Zul Kafeel
(For comments, mail to: zkadvitam@gmail.com)

‘FREEDOM IN CHAINS’: A Different Outlook

2008-09-09T06:09:00.000-07:00

Deciding on the landmark case of A K Gopalan v. the Union of India, the Supreme Court had held that every fundamental right is individually understood, recognised and interpreted. However, this judgement did not sustain the challenge of time, and was overruled by the Maneka Gandhi judgement. Here, all the freedoms were connected; tied in a ‘chain’. These freedoms were subjected to such restrains, which originated from themselves. Literally, they were tied in a chain, a connection which bonded every right with the other. The freedoms were thus “in chains”. However, this chain gave a new life to our freedoms. This chain that bonded the freedoms gave a new interpretation to these freedoms. Earlier, Article 21 was an assurance to understand that a confinement would have to be according to a “procedure established by law”. This procedure was now not any procedure. It was a ‘just, fair and reasonable’ procedure. It was tied with the reasonableness, laid down in Article 19. Article 14 was also tied with Article 21, to understand whether this procedure would stand the touch stone of ‘not being arbitrary’. A new life was injected in Article 21. It was then interpreted to engulf many unwritten rights within its scope. Right to education, safe environment, safe drinking water, bail, and many more rights were read into Article 21. I know that these interpretations have been read and discussed in many books and in many judgements. However, looking at such interpretations, the only thought that comes to mind is how, such freedoms, when tied in chains, have actually given a new life to them. Drawing inference from such an outlook, I ponder how it is necessary to have freedoms in chains. A freedom, when left beyond chains, looses its life. Taking a different view on the same, it can also be understood as to why, every freedom has its restrictions. Such restrictions do not claim our freedoms, but assures the freedoms of others. However, would it be wise to equate the restrictions imposed to freedoms to the chaining of the freedoms themselves? I argue that it would. On one hand, when I look at the chaining of the freedoms together, I see them becoming alive. On the other hand, when I see the freedoms being subjected to restrictions, I see those very freedoms coming alive for everyone. I hence wonder why this expression is always construed to be a negative expression. Every thing that is in chains, is not restrictive in nature. An air-balloon , when chained to a basket raises the same to the sky. A chain connected to a pulley-machine assists the easy lift of heavy machinery. A religious man would say that a person chained to God attains ‘moksha’; the ultimate bliss and freedom from the cycle of life. Not moving away from the discussion, but drawing inference from these examples, does it not seem unfair to regard a chain as a constrain, at least if it is thought so in all occasions. I would prefer to look at freedom in chains as freedom in the real sense of the word; the essence and the soul of Part III of the Indian Constitution. Maybe after reading this small column on a different view of freedom in chains, my precious readers would sit back and give a thought on what I wanted to convey. If I am able to churn such a line of thought, I would consider my effort successful. I only hope that I have been able to show our rights through a fresh perspective.
Surup Ray Chaudhuri
(For comments mail to src.advitam@gmail.com)

Freedom In Chains

2008-09-09T06:08:00.000-07:00

Jean Jacques Rousseau, once said, “Man is born free, but everywhere he is in Chains”. Freedom in Chains is the hard truth which humans face at every walk of their lives. The desire of every human being is a subconscious effort to be free. Freedom is a celebrated expression that lights up humankind by its very essence. It is that requisite for which many have fought and millions have sacrificed since the beginning of human history. Freedom is a state of Independence and Liberty of free will. We all crave to be free, free from influences; free from governmental colonization; free from religious entrapments, manipulations and antics; free from sinister habits, unwarranted situations and all other Freedoms we seek. In fact, the fight for life is a fight for freedom. We are free to the extent we are not opposed to the set of rules that determine our role in the society. Furthermore, even in democratic societies where people are said to be free and protected by law, I completely doubt if all of us enjoy the same amount of freedom. Are the uneducated or illiterate people free when the number of choices they make is very limited? The question that bewilders me is, “how free is Freedom?” Analyzing the expression freedom, it is triumph of dignity and hope. Nelson Mandela wrote in his book, “Long Walk to Freedom”, “I am not truly free if I am taking away someone else’s freedom”. No man is free unless he is free in spirit. Like Peace, Joy, Happiness; freedom is a state of mind. If our mind chains freedom, it is chained forever; however if our mind gets determined to break free from these shackles, we would surely achieve freedom, flying high like an eagle in the open sky.
Mrs. Rovena David (Comments and suggestions may be mailed to: dsr_vinz@yahoo.co.in)

LEGAL EDUCATION IN POST-LIBERALIZED INDIA

2008-08-06T11:29:00.000-07:00

Mr. Zul Kafeel
Lecturer at CMR Law School, Bangalore.
zulkafeel@gmail.com

Speaking within a contextual relevance of our colonial past and its intricate association or rather of being born within a ‘common law’ system to determine ourselves legally has much to do with the method we choose to address ‘law’ and our legal education and all that has got to do with it . Legally speaking this has mostly to do, with the way we approach at understanding our laws, the relevance we place on interpreting them, and the primacy we attach to the governing text which facilitates our legal development. In framing such systemic schemes, ‘law colleges’ hitherto and ‘law schools’ presently have taken and continue to play a pivotal role in shaping our understanding and slowly help our legal system evolve to meet new challenges. ‘The term ‘ law school’ is often used as a generic term yet attention needs to be paid to the fact that there is diversity in their type, epistemological stance, ideological position, and in terms of the manner of their engagement with the study of law is required[1]. In America many aspects of the history of legal education during the twentieth century[2] are best understood as outgrowths or expressions of the struggles among the competing groups of theorists. Other aspects of legal education most importantly, the changing size and shape of the bottleneck through which students must pass to gain entry to the bar were shaped instead by the complex relationship in American culture between exclusionary impulses (xenophobia, racism, anti- Semitism, and sexism) and inclusionary, egalitarian impulses. The net result is that the bench, bar, student bodies, and law faculties of today are by no means demographic “mirrors of America,” but they are substantially more diverse than their counterparts a century ago[3].

Unlike the development in America, though India is seemingly attempting to emulate the American model in building its pathway to quality legal education, the growth contrastingly was mostly based on practical requirements of the profession, for taking up the study of law primarily arose from the decision to practice in a court of law. Developments in the international sphere with influences from technology facilitated diversification in method of trade and commerce lead to growth and expansion in our approach to understand law in a changing atmosphere and consequentially warranted a corresponding effort to provide for its inclusion in it being taught. Such developments came to emphasize the need and inclusion of the case study method for want which were consequential

In 1819 United States Supreme court opinion, Dartmouth College v. Woodward[4], the court affirmed that that state charters establishing private schools and colleges were essentially inviolate. Charters, said the court, were contracts, protected by the Constitution, and could not be unilaterally dissolved by the state. Thus, the independence and freedom of action of non-governmental schools were guaranteed. With the inclusion of American based teaching methodology in the form of setting up of independent schools[5] teaching law, into a country as India[6], modern teaching aids, infrastructural facilities, a well stocked library, a holistic approach to teaching, promised a better tomorrow for the entire legal system.

The concept of a national institution to act as a pace-setter and a testing ground for bold experiments in legal education came up before the Bar Council of India in the context of the Council's statutory responsibility for maintaining standards in professional legal education under the Advocates Act, 1961. The idea gained strength in the Legal Education Committee of the Bar Council of India and eventually the BCI demanded a deemed University status from the University Grants Commission. The idea gained more supporters in course of time within the Council and outside who worked at different levels to establish the institution in the interest of better legal education and higher standards of legal research and training. The promoters of the institution finally, succeeded after thirteen long years of suspense and uncertainty, when the Karnataka Government established on August 29, 1987 through a Gazette Notification, the National Law School of India University at Bangalore under the National Law School of India Act (Karnataka Act 22 of 1986)[7].

Universities are part of the knowledge industry and this itself raises epistemological questions about who determines what knowledge is, how it is acquired and whether it is relevant or significant. There are so many forces at work that the university seems to have a multi-identity[8]. The dynamics of change have never been so acutely felt along with the realization that time for reflection is diminishing and expectations are mounting higher than ever, we are working hard and fast or so we hope at least! “Legal Education is essentially a multi-disciplined, multi-purpose education which can develop the human resources and idealism needed to strengthen the legal system ….A lawyer, a product of such education would be able to contribute to national development and social change in a much more constructive manner”.

Legal education no longer exists exclusively for law students who wish to enter the legal profession. Increasingly, law components are found in many other degree programmes. However, students from other disciplines often find law uninteresting and difficult. Such negative experiences have been blamed on traditional ways of teaching law. Many have suggested that this problem could be overcome if different teaching approaches were adopted[10]. Whether the learning environment is enhanced or diminished depends in part on whether we engage in a sustained attempt to develop a coherent and systematic ordering of educational theory, drawing on prevailing intellectual debates, alongside the practical tasks of developing the curriculum. The present generation is in the gasp of responding to dynamic demands of an ever expanding vista of career choices. This need to cater to an erstwhile general requirement of society, has changed to specificity in disciplines being provided a part of the curriculum. Institutions imparting legal education have an option to ‘stand together’ with an extension facing adversely towards an eventuality of change or ‘stand apart’ catering to emerging global requirements.

Notes:

[1] Mytton, ‘Legal Education: The Integrated Law School’ [2005] 4 Web JCLI

accessed on Wednesday, 06 August 2008

[2] For example, the periodic efforts to reshape law-school curriculum and pedagogy, and the steady increase in the importance of interdisciplinary teaching and scholarship, William W. Fisher III, “Legal Theory And Legal Education,1920-2000

[3] Id.

[4] 17 U.S. 518 (1819)

[5] For further see Saturday, November 10, 2007.

[6] Historically legal education in India was open only to graduates and seen merely as professional training. Dismayed at the quality of legal education in conventional universities, several members of the legal fraternity debated a new system of legal education through the 1970s and 1980s. Set up as a "pace-setter and a testing ground for bold experiments in legal education". NLSIU, often called the "Harvard of the East" has been rated as the best law school in India for 9 out of past 10 years by India Today. The rating process has been criticized for being arbitrary and lacking transparency.

see <> Sunday, November 11, 2007. Also, “Unlike other forms of professional education such as medicine and engineering, legal education is both professional as well as liberal. It aims at the acquisition of professional skills, if taken as a professional education. But it can aim at value-oriented, socio-cultural education if it is considered as a liberal education”. See Mitra N.L., “Legal Education In India” National Law School of India University, India<> accessed on Saturday, November 10, 2007.

[7] See <> accessed on 11/23/2007 11:30:09 AM.

[8] Supra, note 2 Also See, Delanty, G (2001) Challenging Knowledge. The University In The Knowledge Society, (Buckingham: Society For Research into Higher Education., Open University Press). Delanty demonstrates how the structural changes undergone by universities over the last three centuries were necessarily accompanied by ideological shifts.(2002, p 32) He traces four historic periods traversed by Western European universities each characterized by particular cognitive models and taking place in specific social and economic landscapes. The Humboldtian universities of the eighteenth and nineteenth centuries were dominated by the Enlightenment project with its belief in the universality of knowledge and academic freedom. Changes through the nineteenth and twentieth centuries produced industrial and then mass universities and, in the early twenty first century, virtual universities. Knowledge, Delanty’s model suggests, is now seen as primarily instrumental. He claims that multidisciplinarity, diversity and market values predominate. This is taking place in a post-Fordist world of globalization and neo-liberalism. Higher education Delanty argues is being commodified and transformed into a series of individual contracts and investments. The traditional confidence in humanistic Enlightenment values is thus challenged by postmodernist notions of the overwhelming significance of novelty, flexibility, disruption and change.

[10] Allen, ‘A Critical Reflection on the Methodology of Teaching Law to Non-law Students’ [2007] 4 Web JCLI

accessed on 17/06/2008 19:12

IS THERE JUSTICE IN JUDICIAL ACCOUNTABILITY

2008-08-03T09:36:00.000-07:00

Mr. Zul Kafeel

Lecturer CMR Law School

For comments mail to zulkafeel@gmail.com

Sunday, August 03, 2008

Slowly but certainly we seem to be accepting a new dimension to our individuality, we are beginning to realize all that the system is providing for, are more improvised needs, and catering to such advanced needs and specific demands, are better financial facilities with a diverse but deadly potent of lethal permutation and combination of financial schemes draining the common mans pocket. Loans being provided currently were literally unheard say a decade ago. We are living in a situation where we have begun to accept that our archaic interpretation of sovereignty is dwindling with each inclusion of MNC’s being allowed to operate in our backyards, especially with the advent of SEZ’s and its backing that it acknowledges as a sure step to economic progress. Without regard to the ideological justification that we may continue to nurture, of showing that we yet care for our brethren, we cannot but agree, that we live and thrive in a market economy driven with the exploitation of the poor man. Ironically our socialists yet depend on the poverty, despair and disappointment, all pointing to the inefficiency of the government. We also ironically hail a Muhammed Yunus for bagging the Nobel Peace Prize 2006, for establishing a grameen bank, but choose to turn a blind eye to our own maladies raised to the status of social evils.

However as a nation with billion population and growing, we realize that we can and ably cater to a global requirement of knowledge based solutions extending on to efficient back end services (one just has to take a count of BPO/s and now LPO’s operating in Bangalore to realize the impact of our reliability on foreign resources). Contrastingly these outsourced offer work to lawyers, who many may consider it to be a blessing in disguise. With the available legal awareness, we continue to operate in a desperate scenario where we dream of buying luxury consumables without learning to value what we possess; we confidently assert value for the services or commodities we avail of. We have begun to think and act competitively with the advent of a new purchasing power, financial confidences, we have begun to draw out issues of liability for faulty service, deficient commodities, negligence to all that we consider as bearing an impact to our lives, for instance the requirements to ascertain criminal liability in the services of a medical professional being clarified in case of Dr. Jacob Mathews v. State of Punjab, there is also debate to include rash and negligent driving to be included as an offence committed under the auspices of Sec. 304 of IPC, we are beginning to awake slowly but certainly to demand for better services and facilities

Legally speaking the Indian Constitution lays out elaborately the value behind liberty, freedoms and socio-economic laws as eloquently articulated in Part III and Part IV. With the advent of judicial consciousness overpowering hitherto unacted upon, leading on to ushering in reform in the prison system, treatment of under-trials, apart from a dynamic interpretation being provided to concepts of ‘life’, ‘liberty’, ‘personality’ and much more. The judiciary has been hailed for its activist approach in upholding rule of law and consequently expanding the dynamics of locus by allowing for public interest litigations (safeguarded and regulated by parameters, placed within the ruling Ajay Hasia v. Khalid Mujeeb, etc.).

“In upholding law and justice, judges have a vital function in a pluralist society to make sure that diversity is respected and the rights of all are protected”, (Hon Justice Michael Kirby, ‘Challenges to Justice in a Pluralist Society’: Judges and Judicial Accountability, 2005). However, the fact remains that judges are affirmed of the fact that what they seek to do and achieve is essential for the reservation of liberty and for dispensation of justice. Read along with the concept of judicial accountability, which surely takes into account judicial power it signifies both a judicial duty and a public law duty, the visible result is for a public accountability of those who exercise such functions. This aspect of transparency and accountability is ingrained within the text of the constitution, and cannot be sidelined through interpretive or other oblique motive to absolve or preclude any authority statutory or constitutional from owing up to its deeds and facing the people of India.

As a characteristic feature within an organized judicial system catering to the fundamental requirement of accountability also forms the feature articulated in the Beijing Statement of Principles of the Independence of the Judiciary. The Indian constitution proficiently asserts the aspect of accountability to the extent of removal from office by clarifying the process and method vides Art. 124 (4) which inter alia provides that “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity” and further to provide for in in Art 124 (5) that “the Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). The provision however remains silent on the aspect of inefficiency, willful obstruction of justice, failure to take account of facts or failure to exercise judicial notice in imparting full and final justice or discharge of function in a manner as expected by written and unwritten principles.

Varied views have been expressed about the viability of having a specific law on judicial accountability, its advantages and disadvantages, the debate surely but definitely stays clear of the process of passing a judgment, apart from the natural requirement that there shall be reasons adduced for a decision reached at by a judge in his/her judgment. It has led to the acceptance that judges cannot be held accountable for making ‘wrong’ decisions and as such there can be no civil or criminal liability for wrong decisions made bona fide by judges. Such an approach has been accepted so as to enable the judges to discharge their responsibility in a fearless, effective and proper fashion. However the aim is and always has been to bring within fold a crucial function of a State. Holding a person discharging public law function is the aim in any organized system based on upholding rule of law. Considering the attempts being made world over as for instance by Representative Ronald Branson a representative of the house of Congress who has drafted a bill titled “Judicial Accountability and Integrity” which aims to deprive judges of immunity for deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking which is defined as any act that impedes the lawful conclusion of a case including unreasonable delay and willful rendering of void judgments or order, of a lawful conclusion of a case or any deliberate violation of the Constitution, all violations to constitute bad behavior”. What chages can be brought about by such a bill if made law by the congress is yet to be judged on the parameters of reason, proximity to the limitations imposed by the constitution and public opinion. We certainly cannot deny that we are slowly emerging into a more conscious atmosphere of living. Without any prejudice or disrespect to the nobility and impartiality of the judicial institution, perhaps it is time to bring into accountability a function which touches our daily lives and the future generations with the approach of bringing enhancing the prevailing transparency and efficiency. To cater to the present need and to correspondingly plan and prepare for the future has become our guiding light in all our efforts. Each endeavor we as human being seek to undertake, wish to bring within the fold of efficiency and accountability. Notwithstanding the prevalence or rather an alarming growth of a parallel judicial structure within certain communities in Bombay as regards of settling disputes in personal law issues, silently evokes a discord of failure somewhere within our ‘efficient’ and structurised judicial institution.

As human beings we constantly subscribe to prescriptive requirements, World over people are waking up to efficiency, transparency and accountability. Ushering in a defined system to ensure better service albeit legal and including of the judiciary within its fold is not about questioning the credibility of the institution, but rather is acknowledging that the institution that guards the fundamental fabric of our society is living up to its ideals in a fair manner. Ultimately the nature of duty imparted by the Judiciary is relief oriented-justice and there is no compoundable reason why it need not be accounted for what it has achieved or failed to. Bringing about standardization in the method and manner of dispensing justice is the next global requirement after universalizing our intellectual property requirements and there ought to be a conscious debate at all fora to ensure that we do not end up trampling our own safety. Accountability within any system imparting a crucial function of the State is an imperative requirement to define our identity as an organized society that seeks to lead by example.

EXPRESSION AND PREMISSIBLE EXPRESSION IN A CHANGING SOCIETY

2008-07-18T21:53:00.001-07:00

The ‘Freedom of Speech and Expression’. I suppose the most important realization of democracy, lies in guaranteeing to each of us this freedom aptly celebrated by the constitution under Art. 19 1(a). However the freedom would indeed involve a toleration of a great deal of nonsense, and even of matters which are in bad taste. Is our free speech dependant on our ability as an organized society to allow or disallow what we consider as permissible? But isn’t expression, a marvel that life too enables us to realize? Do we respect this freedom made available to us in a manner as cleverly articulated as in 19(1)(a), read with the restriction in 19(2). The availability of this freedom speaks largely of how mature a society we continue to be a part of. Acting in true Kelsenian fashion, we certainly cannot deny that we live in world of norms, or, our inability to disregard them in the least, while framing laws that govern our relationship with the state, society and each other. Could we say that the freedom guaranteed to us also speaks largely what we expect of the State? A more real transformation to adapt to changing social mores, rising sense of ones individuality and concerted effort at protecting the available freedoms with a view to read more and more freedoms into them. Contrastingly, we all see artists hiding behind the veil of creative expression asserting their right to expressing themselves as an extension of their nature and personality, a corresponding response of society built on distrust, hate and at times violence. Moral determination of content in the freedom of speech cannot be overruled each time we interact with each other as individuals, as citizens and as humans. However among all obstacles and judgmental error , unresponsiveness, prejudice, bias, brotherhood and hate, arrogance and respect, may be it is indeed time for us to look back and respect what this freedom has enabled us with. Respecting what the constitutional framers wished to entitle us with, and in respect of our ability to achieve much more through this freedom, is and remains a partially realized dream. I certainly think that we are confronted with a time and opportunity to reevaluate our energies spent in an inappropriate utilization of this freedom and channelize with our determinate energies, to bring about a change within ourselves and consequently a change in our society.

Zul Kafeel
zkadvitam@gmail.com

EXPRESSION AS A RESPONSIBILITY

2008-07-18T21:44:00.001-07:00

Choice of expression ranges from music to painting, poems to sculpture. A few decades ago, the choice of expression opted by Mahatma Gandhi worked towards reforms, and eventually to India’s Independence. A forgotten poet of pre-independence era, Kazi Nazrul Islam, adopted poems and songs as a medium of expression in raising his voice against the British regime. Hence, expression has always been the means of positive and affirmative change, be it social or political. From the time of great reformers like Raja Ram Mohan Roy, till date, expression has been an effective mean available to Indians to achieve their goals, and ensuring that they do not fall prey to dogmatic practices of conservative society. It would not be unfair to say that the freedom of speech and expression is an essential limb of Indian democracy. This freedom ensures all our other freedoms, and their safeguard, as it not only ensures protection of our rights, but ensures that when our rights are disturbed, we have an option of raising our voice against it. Interestingly, however, this freedom was a major concern of our First Prime Minister, Pandit Jawaharlal Nehru. He had expressed his views against the absoluteness of this freedom, and opined that this freedom was ventilating undue power in the hands of press and anti-social elements. This freedom was, on one hand ensuring upholding of rights, but on the other, creating a vent for trouble mongers to accommodate personal vengeance and take undue advantage. As a stern reaction to this misuse, there was an amendment made to the Constitution, and this freedom was curtailed to the extent of not disturbing public order. The question that now arises is whether that amendment curtailed the evils? We still see that where on one hand, Article 19 1(a) associates social change and growth; on the other, it accommodates for unnecessary evils. Thus, would it be fair to call it a ‘necessary evil’, or would this statement be unfair on such an essential freedom? Is Article 19(a) a reality, or a dream to be realized? This argument goes beyond the scope of reasoning and articulation; but leaves us with the responsibility of how we should realize this freedom; whether we actually celebrate its essence or diminish its worth .

Surup Ray Chaudhuri
src.advitam@gmail.com

POTENCY OF LIFE

2008-07-18T11:54:00.001-07:00

Having been an avid fan of literature, I cannot resist the urge to talk about this most wonderful form of expression. It is needless to say that time and again this form of expression has proved beyond doubt, that it is one of the most effective tools in bringing about social change. Besides being a popular art form, literature has always been a mirror to society, often standing up for what is right and criticizing what is wrong. One of my personal favorites amongst such insightful literature is perhaps George Orwell’s ‘Animal Farm’, where the author humanizes the animals in the farm and depicts the farm itself as a microcosm of humanity. The book depicts a wonderful bouquet of characters, each signifying a particular segment of society and presents them in an engaging parody of life as he sees it. In doing so the author gives his reader much to mull over and makes reading fiction a stimulating and thought provoking exercise. Many such examples exist, of which this book is but one. Literature has also often been more than thought provoking. There have been instances in history when literature has spoken out to defend itself . One of the most eloquent of these is probably the ‘Areopagiticia’, a speech by John Milton, arguing against the Licensing Order of 1643,which instituted pre-publication censorship and was seen by many as a curtailment of the freedom of speech . Milton a known supporter of the parliament made a forceful argument against the order which has since been considered and quoted as a classical text in defense of the freedom of speech. In his arguments, Milton notes that censorship has never been a part of Greek and Roman society and uses a number of biblical and classical references to further strengthen his stand. Even though Milton’s arguments were made in an entirely different context in comparison with our own modern notions of the freedom of speech, one cannot help but marvel at the ingenuity of his expression. To quote an oft quoted extract, “For books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them.” As we begin this small endeavor to nurture our thoughts and express them in the way we best know how, we can only hope that what we write contains even a little ‘potency of life’ in them to make a difference, if not to society, at least to ourselves.

Sreenidhi. K.R
skr.advitam@gmail.com