Maintenance of law and order within a society is of utmost importance and lawyers play a key role in ensuring that law and order is maintained. The profession of a lawyer is a noble one and a lawyer is often seen as someone who fights for the rights of individuals and defends them in the trickiest of situations. But a lawyer is not always applauded or appreciated for his acts and many a times he faces condemnation from the society for defending the guilty or who is often called as the “unpopular client”. So it can be said that the lawyer is equated to both the God and the Devil depending upon the situation.
Even within the Indian legal system the situation is no different. Often the lawyers (especially the criminal lawyers) who decide to defend a client irrespective of the offence they have committed howsoever grave it is, face condemnation and public outrage for their decision of defending such a client. Moreover it is not just the public front from where they face the heat, but they also face fury from the media houses at times. All in all, on several occasions the lawyer is associated to the actions of his client due to which he faces such condemnation. This gives rise to a very important issue i.e. whether the lawyers should be guided by ethical values and notions of justice while selecting to represent any client?.
In this piece I shall deal with this issue and discuss the whole idea of the duty that a lawyer has, to defend his client in great detail along with a client’s right to legal representation. Moreover, I would argue as to why it is important for the lawyers to represent their clients even though they are considered as unpopular clients. Over the years there has been a lot of debate on whether it is morally right for a lawyer to represent an accused. Indian society has most of the times looked down upon such advocates who have decided to defend the accused.
Through this piece, I would further discuss the concept of “Cab Rank Rule” and would analyse why it becomes important for the lawyer to represent a client irrespective of the guilt of the accused and the thinking of the society. The piece would further throw some light on several landmark judgments wherein the criminal lawyers defended unpopular clients and fulfilled their duty and moral obligation of being a lawyer. Cases where the lawyers defended the accused irrespective of the fact that, they knew the accused had committed the offence and the whole society was against them, such as defending Ajmal Kasab, the terrorist who was involved in the 26/11 attacks, the rapists in the Nirbhaya Rape Case, the case that shook the entire nation and several such other matters. In the end, I would conclude by arguing in favour of a lawyer’s duty to defend and would try and devise a new defensive strategy that can be adopted by the lawyers to justify their actions and to fight against the moral condemnation that they face by the society or the media whenever they defend an unpopular client.
CLIENT’S RIGHT TO LEGAL REPRESENTATION
While discussing a lawyer’s duty and the moral obligation that he has to defend his client, it is very important to understand that a client is also entitled to legal aid and representation and it becomes essential to discuss a lawyer’s duty to defend vis-à-vis a client’s right to legal representation. An individual is entitled to legal aid and representation and at times when a situation arises where the person who is in need of legal aid is not that financially sound then in such situations there are instruments which state that such person has right to free legal aid. There are several international instruments that provide for an individual’s right to legal aid and representation.
First, it is the Universal Declaration of Human Rights, 1948 (UDHR). A declaration that came into force so as to protect the basic human rights of the individuals. The UDHR has emphasized a lot on the welfare of poor and one of the main objectives of it has been to protect the basic fundamental rights of the people. If the Preamble of the Declaration is looked at carefully it recognises that the rights of the individuals are indeed the foundation of freedom, justice and peace. From its language it is pretty much evident that equality and justice are the main objectives of the declaration and that providing legal aid to the needy becomes sine-qua-non for the achievement of the objective enshrined in the preamble of the UDHR. Some of the relevant articles of the UDHR are Article 1, 7 and 10.
Article 1 mainly focusses on the aspect of equality in dignity and rights. Equality is very essential and even social justice is intrinsically connected to it. Therefore, promoting equality helps in providing legal aid to everyone. Article 7 is even more relevant since it provides that each and every individual is equal before the law and everyone is entitled to legal protection and legal aid without any discrimination. It also states that no person should be denied legal protection and representation just because he does not have the financial capacity and in such situations it is the duty of the state to provide all such people who are in need even if it is out of state expenditure. Moreover it is important to note that several articles of the Indian Constitution hold a close similarity with this provision such as Article 14, 15, 16 and 39A. Article 10 is also pretty relevant as it provides that everyone should get an opportunity to be heard by an independent and impartial tribunal in determination of his rights. Additionally, ‘hearing’ means that the aggrieved person should be heard through a counsel (lawyer). Furthermore, Article 50 of the Indian Constitution holds similarity with this with this provision of the UDHR and is based on a similar concept.
Another international instrument that mandates legal aid and equality before the courts is the International Covenant on Civil and Political Rights (ICCPR). Article 14(1) of the ICCPR explicitly provides that all the persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
Moreover, Article 14(3) lists out certain minimum guarantees that an individual is entitled to while determination of any criminal charge against him, in full equality:
To be informed promptly the nature and cause of the charge against him;
To have an adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
To be tried without undue delay;
To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
Now looking at the Indian perspective, Article 39A of the Indian Constitution provides for the right to legal aid and representation. It provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Importantly, we must consider the case of Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, a landmark judgment, where the Supreme Court held in favour of the under trial prisoners who were imprisoned for long periods without any justification. Moreover the key take away from the case is that Article 39A is a constitutional directive that emphasizes on the fact that free legal aid and a proper representation is an essential element of the ‘reasonable, fair and just’ procedure. Further this right is to be considered implicit in the guarantee of Article 21.
THE MORAL OBLIGATION OF LAWYER TO DEFEND THE UNPOPULAR CLIENT
As discussed above the lawyer’s duty to defend arises out of a client’s right to legal aid and representation. Even the individuals who have been accused of committing heinous crimes also have right to legal aid and representation and are entitled to have a fair and just trial.
“Innocent until proven Guilty” is a well-known saying which implies that any individual cannot be convicted for a crime until he is proven guilty of committing the said offence. According to this, the onus of proving the guilt of the accused lies on the prosecution and the job of the defence counsel is to poke holes in the theory of the prosecution. Consequently, a defence lawyer plays an important role during a legal proceeding. But at times the defence lawyers face the heat of the public and media for defending clients who have been accused of committing heinous crimes such as rape, murder, an act of terrorism etc. and in such situations the dilemma that arises is “whether a lawyer should be guided by ethical values and notion of justice while selecting to represent any client” or “whether a lawyer should be affected by personal opinions and public opinions while choosing to represent a client”.
Especially in India, it is even more relevant because the public more often than not associates a lawyer to the actions of his client and questions his moral and ethical values. Moreover, the public condemns the lawyer who chooses to represent a client that is unpopular or who has committed a grave offence. In response to the aforementioned dilemma, it is first important to understand that a lawyer is an officer of the court and it is his duty to defend his client irrespective of the offence that the client has committed. In other words, a lawyer has not only a moral but also a legal and constitutional obligation to defend his clients to the best of his abilities and that a lawyer cannot allow his personal beliefs or morals to affect his professional duties. This obligation is based out of an English concept known as the “cab-rank” principle/rule.
CAB RANK PRINCIPLE
The “cab-rank” principle basically states that every lawyer must accept the brief that comes before them and provide the necessary legal assistance unless there are compelling reasons to do otherwise. The principle is based on the idea of a cab driver who is standing at the head of a queue at a taxi stand and is supposed to offer his services to the first passenger who approaches for a ride.
It is also pertinent to note that Section 1 of the Advocates Act explicitly mentions about the duties of an advocate towards his client and its rule 11 is based on the “cab-rank” principle. So the “cab-rank” rule has some relevance within the Indian legal system as well. Rule 11 of the Advocates act provides that “An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case: “Special circumstances may justify his refusal to accept a particular brief”. This provision within the Advocates act makes it pretty much clear that the lawyer has a moral obligation to represent his client irrespective of the offence that he has committed. Usually in the practical world, it is not followed though. At times the lawyers refuses to take up a particular case because he fears that taking up such a case would invite public outrage or where he himself feels that his personal morals would not allow him to defend such a client. There have been various landmark cases where either the lawyers refused to take up the case or they faced massive public outrage for defending the accused.
One such case is the case of Ajmal Amir Kasab, the only terrorist who was captured alive during the 26/11 attacks. There was a massive public outrage which was quite understandable considering the horrendous crime that he had committed killing hundreds of innocent people, but does that mean that he should have been hanged straight away without following the due process of law? The answer to it is “No”. An individual who is a dreaded terrorist also has a right to fair trial even if the offence that he has committed and charges that have been levelled against him are as clear as a daylight. In this case the Bombay metropolitan magistrate’s court bar association unanimously decided not to represent the terrorist in court and hence the government appointed Senior Advocate Raju Ramachandran as a state appointed amicus curiae in the case. Post the verdict while giving an interview, Senior Advocate Ramachandran acknowledged the lawyer’s duty to defend and stated “when an accused is undefended the court appoints a lawyer to defend him. To refuse to assist the court, when asked, is a dereliction of duty”.
He further emphasized on the fact that within an adversarial system it is important for an accused to have counsel for a fair trial. He stated that a counsel is important for an accused because the accused has a right to assert his or her innocence and to poke holes in the case of the prosecution. The counsel must say everything in the favour of the accused that needs to be said.
Another prominent criminal lawyer, late shri. Ram Jethmalani also pressed on the fact that no lawyer can refuse to defend an accused until and unless there are compelling reasons for the same and it is the moral duty of a lawyer to provide his services to the accused howsoever unpopular he is. With several lawyers declining to take up the case of the terrorist Ajmal Kasab and denying to provide their services back in 2008, Mr. Ram Jethmalani stated that “there is express rule of Bar Council of India that no lawyer shall refuse to defend a person on the grounds that it will make him unpopular”. Further in an interview he state that “no lawyer has the right to say that he will not defend an accused”. So it is pretty evident that over the years, even the biggest names in the business, have advocated for a lawyer’s duty to defend even though they faced heat of the public and media for defending an unpopular client.
If we look at the Nirbhaya Rape case wherein the four accused were hanged previous year, the situation was a bit different. The lawyers representing the accused in the case gave their all to reduce the death penalty to life imprisonment and to delay the hanging. They tried their best to make a strong case for the accused even though it was an open and shut case. Although the ‘public speeches’ and ‘conduct’ of some of the Nirbhaya Lawyers may be problematic in the eyes of the people, however, they did succeed in providing qualitative legal representation to the convicts throughout the judicial proceedings. In this way, the lawyers representing the accused fulfilled their moral obligation and their duty to defend the accused despite the fact that the crime they committed was a heinous one.
In my opinion, the lawyer has a duty to defend an accused irrespective of the crime that he has committed. It is not that a terrorist or a rapist should not be punished for the crime that they have committed but punishing them is the duty of the court when there guilt is proved. A lawyer’s duty is to provide his services to the client and put in his best effort when representing the client. It is also important because if an accused be it a terrorist or rapist is not given a proper representation or an opportunity to present his case, then the fairness of the trial would come into question. When it comes to public outrage or a parallel media trial, a lawyer should not that take that into consideration while choosing a client and instead they should give priority to their professional duties. Lawyers are officers of the court and their primary duty is to provide assistance and aid to their clients and assist the court in deciding the guilt or innocence of individuals. In conclusion, I would like to recall the with wise words of the legendary criminal lawyer late Sh. Ram Jethmalani: “I decide according to my conscience who to defend. A lawyer who refuses to defend a person on the ground that people believe him to be guilty is himself guilty of professional misconduct.”
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ARYAN KHAN DESERVES BAIL, NOT JAIL
“Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of the criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum-the district judiciary, the High Courts, and the Supreme Court to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts must be alive to both ends of the spectrum-the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of media, and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting”, the Supreme Court had categorically observed in the Arnab Goswami case a year ago. Not only this, but the Apex Court had also reiterated its view that bail should be a rule and jail an exception. “As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression”, the Court had demonstrated the collective judicial approach regarding grant of bail to the accused persons given the presumption of innocence. Unfortunately, the Special NDPS Court of Bombay forgot these jurisprudential principles when it refused bail to Aryan Khan week.
The Special NDPS Court of Bombay has denied bail to Aryan Khan in a case that is based on weak evidence. It is nothing but a complete departure from the Supreme Court’s guidelines laid down in several cases. Admittedly, Aryan Khan’s innocence or guilt can only be proved through a trial. On 2 October this year, Aryan was detained by the Narcotics Control Bureau in a drug bust on a cruise ship even though no drugs were found in his possession. The NCB has not yet collected any substantive evidence against him except the WhatsApp chats. There is no evidence to suggest that he was consuming drugs at the time of his arrest by the NCB. No blood test was conducted. He has no previous criminal history. The NDPS law distinguishes between a drug consumer and peddler and forbids treating the former as hardened criminals. Sadly, the NCB is treating him like a hardened criminal. The NCB has charged Aryan and his friends with “conspiracy” under the NDPS law without any solid evidence on record. Also, to justify his arrest, the NCB has applied a unique theory of “conscious possession” because it recovered 6-gram charas from his friend. How can the NCB shift the liability to Aryan Khan if his friend has possession of drugs? The term “conscious possession” is not defined under the NDPS Act. The Courts hardly believe this jurisprudence of conscious possession. Thus, the whole case of the NCB is based on WhatsApp chats which can be used only in the trial, not in a bail adjudication. The WhatsApp chats are used by the NCB against Aryan Khan without a certificate under Section 65-B of the Evidence Act. This is why the Court should not rely on WhatsApp chats blindly and should give the benefit of doubt to Aryan Khan.
This is not the first time when the NCB arrested a person relying mainly on WhatsApp chats. The NCB has also done it in some other cases. Last year, the NCB had arrested Rhea Chakraborty in a drug case based on WhatsApp chats. After a month, she was released by the Bombay High Court when the NCB failed to convince the Court to reject her bail application. She was booked under Section 27 A of the NDPS Act, being involved in financing drugs and she had faced a severe media trial. “She is not part of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits”, the High Court had categorically observed while releasing her on her bail. Not only this, but the Bombay High Court had also dismissed the NCB’s charges as “highly disproportionate” and “extremely unreasonable”. The High Court did not approve the NCB’s argument that “celebrities” should be treated harshly and made an example of, saying that no actor must “incur any special liability” in the eyes of the law. It seems the NCB did not take any lessons from Rhea Chakraborty’s case and arrested Aryan Khan without sufficient evidence. Many people believe that he is also paying price for being a celebrity and son of a famous Bollywood actor. This is a dangerous trend that undermines people’s faith in the criminal justice system. Keeping a young man in jail merely based on WhatsApp chats is nothing but a gross misuse of criminal law. Aryan Khan belongs to a well-respected family who deserves bail subject to reasonable conditions. He is a young man who needs to be allowed an opportunity to live a dignified life. Putting him in jail will not serve any purpose. He deserves an opportunity to defend his case being a free citizen and the Court should adopt a humane attitude while dealing with his bail application. In an exclusive interview with India Today, former Attorney-General for India Mukul Rohatgi has also opined that Aryan Khan deserves to get bail.
Given the above discussion, it is submitted that criminal law should not be used as a weapon to harass citizens. All citizens should be treated equally and law enforcement agencies should arrest those who commit criminal offences based on solid evidence, not on inconclusive pieces of digital chats, etc. An arrested person faces a difficult situation in Indian society. The Supreme Court has rightly stated in some cases that a great ignominy, humiliation, and disgrace are attached to arrest. Arrest leads to many serious consequences not only for the accused but also for his family and friends. Mostly, the people do not make any difference between arrest at a pre-conviction stage and post-conviction stage. This is why the arresting power must be used cautiously, not according to the whims and fancies of the law- enforcement agencies and the Courts should decide the bail applications expeditiously. The time has come when the judiciary should stand up for protecting the personal liberty of people and the law-enforcement agencies should investigate the cases professionally. Let me conclude this piece with these insightful words of Justice V. R. Krishna Iyer in the Babu Singh case: “The correct legal approach has been clouded in the past by focus on the ferocity of the crime to the neglect of the real purposes of bail or jail and indifferent to many other sensitive and sensible circumstances which deserve judicial notice. The whole issue, going by decisional material and legal literature has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as on the expression of ‘judicial discretion’. A scientific treatment is the desideratum. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety, and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process…Personal liberty deprived whom bail is the value of our constitutional system recognised under Article 21 that curial power to negate it is a great trust exercisable, not casually but judicially, with a lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble, decisive of a fundamental right. After all, the personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right”.
Lokendra Malik, Sr Advocate, Supreme Court of India
DECODING THE CONCEPT OF BAIL UNDER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT (NDPS), 1985
The Narcotics Drugs and Psychotropic Substances Act (NDPS ACT) 1985 was enacted within the year 1985, with a view to consolidate and amend the law concerning narcotic drugs, incorporating stringent provisions for control and regulation of operations concerning narcotic drugs and psychotropic substances.
Bail are often understood as a procedure by which a judge or magistrate sets free someone who has been arrested or imprisoned, upon receipt of security to make sure the released prisoner’s later appearance in court for further proceedings. The money set by the judge is within the sort of a bail, it’s set after hearing the fees and determining the quantity appropriate for the circumstances.
NDPS Act categorizes the offences into Three Categories: –
Small Quantity: –As per section 37 of the NDPS Act, 1985 all the offences falling under the act are cognizable and non-bailable. Meaning thereby, if we pass section 37 of the NDPS Act,1985 even the matters concerning small quantity are non-bailable.Hon’ble Delhi High Court for the first time in Minnie Khadim Ali Kuhn vs State Nct Of Delhi & Ors. on 8 May, 2012 has held that the matter involving small quantity are bailable regardless of the very fact that it’s mentioned within the NDPS ACT, 1985 that each one offences are cognizable and non-bailable.
Intermediate Quantity (less than commercial)
For the offences falling under the intermediate or but commercial quantity stringent provisions of section 37 aren’t attracted and therefore the offences under the said category are governed by Section 437 of the Code of Criminal Procedure,1973 i.e. general principles for grant of bail as applied in other cognizable and non-bailable offences.
Commercial quantity offences are punishable with not but 10 years and there’s an embargo of Section 37 of the NDPS, 1985 in thus far because the bail in commercial quantity is concerned.
THE DETAILED BREAKDOWN OF SECTION 37 IS AS FOLLOWS:
1. The section states every offence punishable under the Act shall be cognizable.
2. No person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity] shall be released on bail or on his own bond, unless the following conditions are met.
3. For granting bail, the following conditions are to be met,
(i) There are reasonable grounds for believing that the accused isn’t guilty of such offence.
(ii) That he’s unlikely to commit any offence while on bail.
The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The scheme of Section 37 reveals that the exercise of power to grant bail isn’t only subject to the restrictions contained under Section 439 of the Code of Criminal Procedure (CrPC), but is additionally subject to the limitation placed by Section 37, which begins with a non-obstante clause.
CONSIDERATIONS FOR GRANTING BAIL UNDER NDPS ACT:
Before granting bail, the Court is named upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence which he’s not likely to commit any offence while on bail, the allegations of the fact, the police report have to be closely examined before recording a finding as to whether the conditions given under the said section, are fulfilled or not.
Powers of the High Court under Sec. 439 of CrPC are curtailed in any way except that they are to be exercised with embargo and conditions as laid down under Sec. 37 of the Act.Ordinarily, on a bare reading of these provisions, it would look as if the Court is to adopt a negative approach and to decline bail but when the legislature have required the court to record a finding of its satisfaction of certain facts, the duty is bestowed upon the court is in positive terms. Grant of Bail could be a rule and its rejection an exception.
GROUNDS FOR CANCELLATION OF BAIL:
What has been stated in Section 37 of the Act would be applicable, accordingly when the question of release on bail is considered. But once an accused has been released on Bail, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which Bail can be otherwise cancelled.The important grounds for cancellation of Bail are:i. Where the accused misuses his liberty by getting involved in similar criminal activity,ii. Interferes with the course of investigation,iii. Attempts to tamper with evidence or witnesses,iv. Likelihood of fleeing, etc.
HOW COURTS HAVE DEALT WITH THE MATTERS PERTAINING TO BAIL?
The bench of DY Chandrachud and BV Nagarathna, JJ has elaborately discussed the principles governing the grant of bail, especially in cases under the NDPS Act and has held that, “the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he’s likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and so as to curb the menace of drug-trafficking within the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”
In the case of Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798Holding that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act, the Court observed,“The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something quite clear grounds. It connotes substantial probable causes for believing that the accused isn’t guilty of the offence charged and this reasonable belief contemplated successively points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused isn’t guilty of the offence charged.The word “reasonable” has in law the clear meaning of reasonable in reference to those circumstances of which the actor, called on to act reasonably, knows or need to know. It is difficult to offer a particular definition of the word “reasonable”.
In the ultimate analysis it’s a matter of fact, whether a specific act is reasonable or not depends on the circumstances during a given situation. (Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]The court while considering the appliance for bail with regard to Section 37 of the Act isn’t called upon to record a finding of acquitted. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is named upon to ascertain if there are reasonable grounds for believing that the accused isn’t guilty and records its satisfaction about the existence of such grounds. But the court has to not consider the matter as if it’s pronouncing a judgment of acquittal and recording a finding of acquitted.”
Section 37 of the NDPS Act works as an interference when it comes to offences related to medicines. It’s necessary because it leads to the creation of fear among people that if they commit a crime under this Act, they won’t be granted bail. On the other hand, this provision occasionally becomes draconian as innocent people get jugged. Therefore, the bar needs to borrow an exemplary principle to insure justice. he Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted with the objective of controlling and regulating the transportation, usage and/or consumption of these illicit substances.
Let’s analyse the new information technolgy 2021 rules for social media
Social Media firms in India have to comply with the New Information Technology ((Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 which was released by the Government of India on 21 February, 2021. These rules have been framed in exercise of powers conferred under Section 87 (2) of the Information Technology (IT) Act, 2000.Social Media Firms were given three months to implement these new Information Technology Rules by the Government. In 2000, Information Technology was limited to electronic document, e-signature and digital authentication of records. Social Networking Firms arrived in India in 2005. Internet access at home by people of India has increased since 2010 and the cost of data per Gega Byte was also decreased with the introduction of 4G internet.
There is an urgent need to look into this matter so the Government of India has passed new rules under IT Act, 2000 and introduced Section 69A(2), 79(2)(c) and 87 in the Act. New Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has replaced the IT Rules, 2011. These new IT Rules, 2021 has directed social media platforms to strictly adhere to the guidelines but currently no social media firm has complied with the IT Rules 2021. AS we all know, every action has a positive and negative aspect and similar is applicable in this instance too. This article gives a bird’s eye view on the New IT Rules 2021, its advantages and glaring ambiguities which appears to be in conflict with the fundamental rights and basic principles of a democratic country.
WHY THERE IS A NEED OF NEW INFORMATION TECHNOLGY RULES, 2021
New Information Technology Rules 2021 is set to empower the ordinary social media users and the main goal of the IT Rules are on the protection of women and children, false spreading of fake news and misuse of social media. Social media has become an integral part of an individual’s life.As we all know that, the engrossment of each individual on these social media platforms have massively increased and thereby lead to the emerging of new challenges like offence against women and children, threat to the security and integrity of the state etc.With such a large user base, tech firms cannot afford to overlook new and developing concerns such as the continuing dissemination of false news, widespread abuse of platforms to post manipulated photos of women, deep fakes, and other content that threatns the dignity of a women and poses a security risk. Since 2020, there are around more than 25000 videos of child sexual abuse content which is circulated on the social media platforms.
In India, there is no regulatory authority to monitor and manage the offensive content on the social media firms and hence, the government decided to put these intermediaries on the same pedestal like Press Code and Program Code under CableTelevision Networks Regulation and Central Film Certification Board.Considering such arising difficulties,In Tehseen S. Poonawalla v/s Union of India case, Supreme Court guided the public authority to control and stop dispersal of explosive messages and recordings on different web-based media stages which tend to induce violence or mob lynching. In 2017, Court saw that the public authority may outline essential rules to stop child pornography, rape and rape images,recordings and sites in content hosting platforms and other applications. So, after considering all the concerns and keeping in mind the Supreme Court directions in case laws, Government implemented New Information Technology Rules, 2021 to get rid of these serious concerns.
OVERVIEW OF NEW INFORMATION TECNOLOGY RULES 2021
Government of India made new guidelines under Information Technology Rules 2021 for social media intermediaries as they believed that it was the need of the hour. The new guidelines are:
* Social Media Divided in two groups on the basis of the number of users i.e.
SOCIAL MEDIA INTERMEDIARIES (LESS THAN 50 LAKH USERS)
Significant Social Media Intermediaries(More than 50 lakh users or 5 million registered users.
Here, Social Media companies are referred as Intermediaries as they create link between the people.
* Due diligence to be followed by the intermediaries to be extra cautious that they allow their user to post on their handle.If social media firms don’t follow this guideline then they end up in loosing their immunity under Safe Harbour Provisions defined in Section 79 of the Information Technology Act. Section 79 of the IT Act function both as an immunity and a restrictive provision for social media companies.
*Social Media firms mandatory appoint a Grievance Redressal Officer who will act as a mediator between Government of India and social media. These grievance officer acknowledge any complain received from the government within 24 hours and resolve it within 15 days from its receipt.
*Social Media firms had to ensure online safety and dignity to the users thereby removing or disable the access of content which exposes the private area of an individual or show some individual in partial or full nudity or some sexual act or si in the nature of impersonation including morphed images within 24 hours of receiving complaint. The complaint can be filed either by an individual or any other person on his/her behalf.
* Social Media Firms should appoint a Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer and they should be resident of India. Government had instructed the intermediaries to publish new monthly compliance report which contains all the details about complaints received and action taken.
*Government has instructed Significant Social Media Intermediaries to provide information of the first originator in case if the content which is posted threatns the sovereignty and integrity of India, security of the state, disturbs friendly relations with any country, disturbs public order by incite riots, or any kind of offence in relation with rape, sexually explicit material or child sexual abuse material. Social media is bound to give the information of the first originators to Indian Law Enforcement Agencies in these particular cases.
*Government had instructed intermediaries to remove unlawful information upon receiving an court order or being notified from appropriate government if it threatens the sovereignty and integrity of India, security of the state, disturbs friendly relations with any country, disturbs public order by incite riots, or any kind of offence in relation with rape, sexually explicit material or child sexual abuse material.
PROS AND CONS OF IT RULES 2021
The new IT Rules also known as the “Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code )Rules , which was issued by the government contains some advantages & some disadvantages. Let’s discuss them in brief.
IT Rules 2021 curbs the problem which is created by the rapid growth of child pornography, hate speech, spread of misinformation and digital bullying on the platform of Digital World. These rules empowers the government to regulate the uncensored media platforms such as Netflix, Amazon Prime, The Wire, The Print, WhatsApp, Telegram. In order to regulate social media content, the government can ask the platform to disclose the originator of the message as per the new IT Rules. It also removes the bad content and helps people in gaining accurate knowledge through social media and also keeps children away from watching sensitive content which will have negative impact on them. OTT platforms will self-classify contents into five age-based categories: U(Universal), U/A 7+(yrs), U/A 13+, U/A 16+ and A(adult). There will also be parental lock for any content classified as U/A 13+ or above. It provides guidelines for setting up of dispute resolution mechanism for the removal of content. It removes non-consensual intimate pictures within 24 hours and also releases compliance reports to increase transparency.
One of the main disadvantage of new IT Rules 2021 is that it infringes the fundamental right to privacy of many users on social media platform as it allows the intermediaries to break end-to-end encryption of WhatsApp to track the “first originator “of the information whenever asked by the government under Section 69A of the IT Act[Rule 4(2)]. These rules also curtail the fundamental right to free speech of the digital news media because of the involvement of the government. There is excessive control over digital news and OTT content.
NEW IT RULES VIS A VIS ARTICLE 19 OF INDIAN CONSTITUTION
The new IT Rules 2021 was made with aim to protect citizens from cybercrime and digital bullying, but on the contrary rules end up in violating the fundamental right to privacy and freedom of speech and expression guaranteed under Article 19 of the Indian Constitution. After the New IT Rules were passed Government gave a time period of three-months to comply and share the details of the compliance with the new IT Rules. But some social media platforms and digital news entities are against the law as according to them it violates the privacy of the customers and restricts their freedom of speech and expression. And hence, the case was filed against the Government in the Delhi High Court by Whatsapp on the ground that new rules violates the user’s privacy. Some Digital News Media like The Wire, LiveLaw and The Quint also challenged the new Intermediary Guidelines and Digital Media Ethics Code.
Whatsapp has raised its serious concern regarding the provision of “traceability”. As per the provision, the social media intermediary is required to identify the “first originator of information” of messages when required to do so by the authorities. For this to be done , the intermediaries will have to break the end-to-end encryption, which in turn weakens the security and privacy of its users.
As per, Sec 3 & Sec 4 of the new IT rules, the intermediaries will have to remove the online content when asked by the government through notice. This will violate the right to free speech under Article 19 of the Indian Constitution, as now the government will regulate all online speech & any discussion against government will be muted.
Twitter has also expressed its concern with regard to the violation of free speech by the new rules. It put forth a condition that if the new rules will be guided by principles of transparency and freedom of expression under the rule of law, then only it will comply with the law.
The new IT Rules 2021 has both the positive and negative impacts on the society. But violating the fundamental right to privacy & freedom of speech can hamper the democracy of the country.
New Information Technology Rules 2021 is set to empower the ordinary social media user and the main goals of the IT Rules are the protection of women and children, stop spreading of fake news and misuse of social media. Social media has become an integral part of an individual’s life.
Enforcement of foreign arbitral awards in India
Arbitration proceedings in India were primarily governed by three main legislations namely the Indian Arbitration Act 1940, the Arbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act 1961. The purpose of enacting the mentioned legislations was to comply with international standards of recognition and enforcement. This would ensure that India progressed in its goal towards becoming a pro-arbitration regime. Having ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 as well as the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, it was incumbent upon India to enact appropriate legislation to implement the provisions of these Conventions in letter and spirit. This resulted in the enactment of The Arbitration and Conciliation Act, 1996 (hereinafter the Arbitration Act) – the sole statutory instrument governing the recognition and enforcement of arbitral awards in the Indian subcontinent. The comprehensive 1996 Act replaced the previous three legislations and bolstered India’s strategic position as a hub for International Commercial Arbitration (hereinafter ICA).
Arbitration proceedings can often be mired with a number of issues brought about by a conflict in jurisdiction, thereby making unlikely for parties to resort to litigation owing to the complexity of such disputes. The impact of the arbitration proceedings is also determined by the agreement, mutually agreed to by the parties, governing the dispute as well as the powers vested with the tribunal to settle issues related to jurisdiction – where the awards may be recognised and subsequently enforced. Parties to such a dispute are often reluctant to rope in the judiciary of their respective domestic jurisdictions as it would result in a loss of autonomy of the arbitration tribunal to the judiciary. The very purpose of creating such an alternate dispute resolution mechanism was to prevent intrusion by the judiciary. Arbitration was to serve as a forum for the fast-tracked settlement of commercial transactions between (mostly) private parties.
In this article, I shall examine whether the intention of reducing judicial interference in the enforcement stage, of arbitral awards, has remained intact. I shall specifically limit my piece to the 1996 Act that deals with the enforcement of foreign awards in India.
Analysing the scope of International Commercial Arbitration in India
Before delving into judicial trends regarding the enforcement of foreign awards, it is important to mention that Part II of the 1996 Act is following the prescribed guidelines of the New York and Geneva Conventions, thereby effectuating the same. India is not a signatory to any treaty that mandates that the country recognise the enforcement of foreign awards. Had India been a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States [(Washington, 1965) hereinafter ICSID Convention], the circumstances would have been different as it would have to adhere to its provisions and ensure that foreign arbitral awards are recognised and enforced by its domestic statutes.
It is of utmost importance to lay down the purview of ICA and what proceedings and substantial laws can be brought within its scope. ICA refers to arbitral proceedings pertaining to issues emerging out of legal alliances – contractual or otherwise, that are deemed commercial within Indian law or in which at least one of the disputing parties is a person who is now a citizen of, or continually resides in, any nation apart from India; or a corporate entity that is established in any nation apart from India. The Supreme Court, in the case of R. M. Investment Trading Co. Pvt. Ltd. v. Boeing Co, dealt with the parameters defining a commercial transaction. In its judgment, the Court went on to highlight the practice that influences the framework of business relationships, emphasizing that international commerce is more than just the movement of commodities with contemporary complexities. The Supreme Court decided, in accordance with the same reasoning, that a commercial purchase is deemed to be the advisory service for advertising sales and therefore any conflict of this sort arises.
One of the significant benefits of ICA is its cross-border enforceability. In other terms, an award made in one nation can be easily transferred to others and executed. The predominant cause of this convenience of compliance is the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, that has over one hundred ratified states as of today. The New York Convention requires all international arbitral awards to be recognized if they follow such minimum prerequisites.
The term “intervention” may never seem to be sufficient because arbitration is a legal process founded on the sovereignty of the stakeholders and is accepted by statute as an acceptable method of settling conflicts. As a result, the function of the judiciary must be confined to assisting the arbitral tribunal in achieving the goal of resolution. The sovereignty of the stakeholders to consent on the “laws of the proceedings” is perhaps the main basic concept guiding the Model law. This appreciation of the stakeholders’ rights is the culmination of public policy tailored to international practice, as well as the acknowledgement that arbitration is based upon on stakeholders’ arrangement. While it has been identified that judiciary have all the authority to overturn arbitral awards if they violate any constitutional clause, are patently unconstitutional, or violate India’s policy decisions.
Recognition & Enforcement of Arbitral Awards in India
There have been primarily two main distinctions among enforcing an international award and enforcing a domestic award. As previously mentioned, a domestic award would not necessitate a request for compliance. Once the challenges (if any) are overruled, the grant will be executed as a decree of its own. An international award, on the other hand, must go via a compliance process. The group demanding enforcement must submit an appeal for the same. If the court determines that the international award is enforceable, this becomes a court order which is effective as such. Another distinction among the domestic and international regimes is that contrary to domestic awards, there is no allowance for reserving a foreign award. Where it comes to international awards, courts in India can only impose them or fail to implement them; they cannot leave them away. An attempt was made by the Supreme Court to fill this ‘gap’ in the latest decision of Venture Global where the court ruled that it is lawful to set aside an international award in India using the terms of Section 34 of Part I of the Act.
Two conditions must be met in preparation for an international award to be recognized (for the purposes of the Act). First, it should comply with disagreements resulting from a contractual arrangement (whether contractual or not) that is deemed commercial under Indian law. The second scenario is more important: the nation at which the award was granted should be one that the Government of India has designated as a state to which New York Convention extends. Thus far, only just few nations have indeed been told, and so only awards made in those countries are recognized as international awards and legally binding in India.
The reasons for contesting an arbitral award can vary amongst nations. Nevertheless, this does not grant judges in the administering territories concurrent authority. A straightforward interpretation of the Act’s scheme and rules leads to the presumption that such concurrent authority is prohibited in the case of Convention Awards. In the landmark judgment of Bhatia International v. Bulk Trading S.A. and Anr, the parties to a multi-jurisdictional agreement agreed to resolve the disagreement by arbitration under the laws of the International Chambers of Commerce, Paris, with Paris as the lex arbitri. Concerned about the enforceability of Non-Convention Awards, that is, awards that are not recognised for compliance under Section II of the Act, the international party appealed to Indian courts for temporary steps dependent on a provisional award to protect the assets of the Indian applicant to the Arbitration.
In conclusion, the Indian Supreme Court ruled that Part I of the 1996 Act, that provides validity to the UNCITRAL Model Law by granting authority to an Indian judiciary to administer temporary steps notwithstanding the fact that the arbitration was conducted out beyond India, was unconstitutional. Academics and theoretical stalwarts have been outraged by the Supreme Court’s ruling. It has also been asserted that perhaps the Bhatia declaration of court did not provide Convention Awards under Part I. This renders the decision in the Bhatia dispute much more daunting to align with a straightforward interpretation of the law. If national awards are known as non-international awards and international awards are not national awards, the definitions of both domestic and international awards are inadequate. The system of compliance under the Act’s two Parts necessitates a difference among the two awards. Domestic awards which are rendered the focus of proceedings in India pursuant to Section 34 of the Act may be applied as if they were a decision of an Indian Court pursuant to Section 36 of the Act. International Awards should be carried out as a decision by an overseas judge.
It is worth noting that in many recent cases involving an international party, the Supreme Court has reiterated the decision of the Court in Bhatia and maintained that “the requirements of Part-I of the 1996 Act will be equally relevant to enforcement of foreign arbitral awards held beyond India, except some of the said requirements are specifically exempted by arrangement.” These proceedings show the Indian courts’ proclivity to intervene with both national and international arbitral awards. Although this contingency can be avoided, it is likely to incorporate arbitration clauses in the arrangement. Therefore, it is also not relevant if the conditions of dispute there under section 34 of the Act as well as section 48 of the Act are all the same. This debate is important to the legitimate assumption that an international award is legitimate and obligatory upon acceptance by the appropriate agency in India.
Furthermore, Section 48 (1) (e) of the Act states unequivocally that international awards must be binding under the constitution of the country where even the ‘challenging jurisdiction’ is asserted. This simply indicates a distinction among ‘challenging jurisdiction’ and ‘enforcement jurisdiction’. The regulations pertaining to the legal enforcement of foreign arbitral should address dual public policy objectives: first, restricting the judiciary’s review of the substance of the case and the arbitral tribunal’s decision thereunder in giving effect to the shareholders’ preference of dispute resolution; and the second, indicating the judiciary’s intrinsic supervisory preferences in modifying the arbitral tribunal’s ruling. In the field of multinational business transactions, the former takes precedence over the latter.
The underlying cause of all difficulties in enforcing/challenging awards has resulted from the judiciary’s ever-expanding authority to examine the awards, whether domestic or foreign. Increased judicial intervention, that results in the acceptance of a vast number of claims which could never be heard in the first instance, is another vice which impedes the resolution of business conflicts, thus slowing the country’s economic learning and expansion. Another major drawback that has been raised as a result of the Act’s reading would be that the time frame for enforcing the arbitral award is not specified. By not imposing a deadline on the execution of awards, one discovers that the excessive irregularities in arbitral proceedings are no special from those countless awaiting legal proceedings, thereby undermining the Act’s very clauses. Arbitration is seen as a lengthy legal procedure by the stakeholders and adjudicators, who are often former judges, who rely on lengthy and regular continuances to prolong the process entirely.
The aspects of efficiency and expense are the distinguishing features of the process and are frequently cited as the chief factors of why arbitration significantly outperforms litigation as a viable option for resolving disputes, notably in commercial matters. It should be noted that these flaws have the potential to thwart the advancement of foreign trade and economic arbitration, but with the increasing influx of foreign of industry, this may have a negative impact on our economy. Another way to reduce the chance of judicial interference is to arrange for an approving body, which restricts the participants’ right to appeal to the court system for the nomination under Section I of the Act.
The current era of globalization has resulted in the economy’s market and operational circumstances highlight the benefit of arbitration as a conflict settlement mechanism over lawsuits, particularly in terms of multinational conflicts. The 1996 Act was passed in order to facilitate rapid and premium dispute settlement. A review of how this mechanism works in India shows that arbitration as an entity is still emerging and has not yet been successful in meeting the ever demands of the global market that are essential to commercial growth. A world trade and trade arbitration scheme has been proposed that promotes foreign trade and commerce by decreasing the possibility of future economic conflicts being resolved by national courts. Regardless of the unanswered issues that haunt the proposed model organisation, sensible individuals do not want the hassle of seeing future conflicts resulting from their dealings challenged in court before several rather separate upper ranks, including the arbitral entity, the courts at the seat of the arbitration, and the court at the position of compliance.
It is worth noting that in many recent cases involving an international party, the Supreme Court has reiterated the decision of the Court in Bhatia and maintained that “the requirements of Part-I of the 1996 Act will be equally relevant to enforcement of foreign arbitral awards held beyond India, except some of the said requirements are specifically exempted by arrangement.” These proceedings show the Indian courts’ proclivity to intervene with both national and international arbitral awards. Although this contingency can be avoided, it is likely to incorporate arbitration clauses in the arrangement. Therefore, it is also not relevant if the conditions of dispute there under Section 34 of the Act as well as Section 48 of the Act are all the same. This debate is important to the legitimate assumption that an international award is legitimate and obligatory upon acceptance by the appropriate agency in India.
TECHNOLOGICAL INTERVENTION IN CLINICAL LEGAL EDUCATION DURING THE PANDEMIC
Former Justice Dharmadhikari once said that the “Legal education makes lawyer an expert who pleads for all like the doctor who prescribes for all, like the priest who preach for all and like the economist who plan for all.” However, during the covid 19 legal education has seen the wrath of pandemic and as a consequence from classroom to courtroom has witnessed the new normal that is virtual platform. Legal education which is clinical in nature was adversely affected during the pandemic. However, India’s IT sector and its abilities to bridge the gap that was created by pandemic was effective to deal with the situation.
BACKGROUND OF LEGAL EDUCATION IN INDIA
Laws for the regulation of professional legal education in India are made by the parliament of India with reference to entry 66, 67 & 78 of List I laid down by the Constitution of India, which includes two regulatory bodies which are The Bar Council of India (BCI) as a regulating the standards of the legal profession and The University Grants Commission as an umbrella organization for all institutions of higher education.
The 184th Report of Law Commission of India in year 2002 suggested for harmonious construction of UGC & BCI powers & regulation of legal education in India. All the issue relating to admissions, practice, ethics & standards are addressed by BCI in consonance with state bar councils. The powers of BCI are also envisaged under Advocates Act, 1961 under Section 7 which states that the functions of BCI in India shall be to promote legal education and to lay down standards of such education in consonance with the Universities in India imparting legal education and the State Bar Councils and to recognize Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities.
While exercising the powers given under Advocates Act, BCI has successfully done many reforms in Legal education owing to its dynamic nature and introduction of five years integrated degree program in Law in 1982 was one such step ahead of this transformation. This system has since been gradually adopted in various Universities and Colleges and NLS Bangalore was first to establish the course in 1987. Apart from this, BCI conducts examination for enrollment of advocates in bar. It is also responsible to maintain the essence of legal education by conducting various seminars by eminent jurists, publishing journals of legal interest and most importantly by organizing legal aid to the poor.
LEGAL EDUCATION IN COVID-19 – A SUFFERING BEYOND MEASURE
Education is a machinery which must go on irrespective of the uncertainties which come to its way. The coronavirus pandemic has stretched its tentacles into diverse facets of life. The COVID-19 pandemic has not stopped at national borders. It has affected people regardless of nationality, level of education, income or gender. The education has been hard hit by this pandemic. Legal sector is no exception. In fact, it is the most effected owing to its dynamic nature and has exposed to inherent problems.
A huge misalignment has been seen in resources and needs. The COVID-19 and resultant lockdown pushed the students into the trap of worldwide online learning for the continuity of education. While the educational communities have made concerted efforts to maintain learning continuity during this period, children and students have had to rely more on their own resources to continue learning remotely through the Internet, laptops, mobiles and what not. Teachers also had to adapt to new pedagogical concepts and modes of delivery of teaching, for which they may not have been trained ever.
This online infrastructure lacked where students and various college in rural and underdeveloped areas struggled as they didn’t have any access to these modern and costly affairs of online learning. Students in metropolitan cities adapted as quickly as it was introduced with a little hope of those staying in rural areas. However, there are many institutions, though recognized by the Bar Council of India (BCI), where majority of not so privileged students with bright legal acumen are studying and aspiring to be part of bar and bench. They might have faced a huge problem to access the online classes or may be cannot afford the cost of technology. This digital divide may be attributed to multiple factors – lack of infrastructure in terms of access to internet, absence or dearth of computers in schools, inability of underprivileged students to procure computers, and lack of digital literacy amongst both teachers and students.
CLINICAL LEGAL EDUCATION DURING COVID-19
“Practical training outperforms theories”. This quote by Roscoe Pound – an eminent jurist strikes onto the clinical nature of education in different aspects. Education is a radiance that shows the mankind the right path to move forward.
With the changing trends of legal education, Clinical (Practical) teaching has become an integral part of it in developed countries. Clinical Education becomes integral part of legal curriculum when BCI introduced four practical papers to improve standards in legal education in late 90’s. It was introduced as a kind of extension to the course and classroom teaching but gradually it has emerged as a centre of attraction in legal field. Just like medical, law has also expanded its prospectus to practical training before stepping into the profession. It includes moot courts, real world case studies, Court judgment analysis, Internships. Internships has emerged an easy way out to understand the practical approach of law through Courts, Bars, law firms and Commissions.
According to BCI guidelines, the infrastructure of a law school must include a well-organized library, Computers, internet connections, moot court set-up so that the budding lawyers could make the most out of the subject which is extremely vast and dynamic. Owing to all this, continuing with legal education in Coronavirus stood as a massive challenge all over. The essence of Clinical education was not at all being fulfilled in the pandemic.
TECHNOLOGICAL INTERVENTION IN COVID
Technology has played a vital role throughout the COVID and is serving fuel to all the sectors of economy. During the pandemic, remote learning became a lifeline for education but the opportunities that digital technologies offer go well beyond a stopgap solution during a crisis. The majority of the activity present in this educational category includes teaching, learning, communicating, and transitioning from face-to-face to online. Digital technology offers entirely new answers to the question of what people learn, how they learn, and where and when they learn. Biggest challenge is to utilize this valuable time. Technology seems to be the only answer.
Today around 1.5 billion students are learning online due to the COVID-19 situation across the globe. While schools and colleges are temporarily closed for quarantine, learning continues. It’s just that it is a different kind of teaching. Students are being educated using technology. This is being done through a variety of online courses, electronic textbooks, meeting platforms like Zoom and Google meet and Google Classrooms or other applications. Various webinars were being hosted on various legal topics, various workshops on legal education, national and international seminars through webinars what not even the online internship programmes were offered by legal firms. Also, many legal firms came up to form the structure for conducting online certificate courses on various law subjects. It is true from the contemporary scenario that law teaching is not merely a methodology but technology. Law schools and Universities in future will be constrained to offer e-courses in law.
Gradually, evaluation methods also shifted to online platform. Various law universities developed their own method of examination through online mode by introducing MCQ based evaluation exams rather than subjective, evaluative assignments, developing their own proctored online exam mechanism. More weightage was allotted to internal assessment through various PSDA activities such as moot court presentation, VIVA, project presentation etc. But again, everything comes to its way posing some challenges. In India, we have a diverse set of states and cities, at different levels of income and development. The spread, use and availability of technology is the key, as is the availability of online learning materials, as well as devices and the level of internet connectivity at home. The impact of the challenge is so much that the traditional role of a law teacher is fast reaching extinction. Hence, low key digitalization and uneven distribution of resources became obstacle in the smooth functioning of online education system.
WAY FORWARD: STRENGTHENING LEGAL EDUCATION
The pandemic situation highlights some of the unfortunate reality of legal education. The changing paradigm lead in by the information revolution is bound to place a greater responsibility and pose new challenges on the teacher and the student. The gap that has been created between legal education and practical training needs to be reduced. The need for technology induced revolutionary changes as well as innovative teaching techniques to cover a wide range of topics was posed by pandemic. There is a need to teach not only the domain knowledge but also the skills associated with the profession and most importantly the attitude required succeeding in the profession. E-learning platform needs to be established by legal institutions to bridge existing gap of theory and practice as an all-time substitute for physical learning.
The present pandemic can be treated as a positive time to think, re-think and change the curriculum of legal education at all levels of legal institutions so that the future lawyers would be able to stand as a confident figure before the society and the courts and judiciary also may achieve the objective of becoming “Smart/E-Court and digitization”. No doubt, classroom teaching clubbed with clinical learning serves the best purpose of legal education but there is need for all the stakeholders of the profession to equip with the technology which would in turn raise the standards of legal education. There is a need for regulatory authorities and concerned stakeholders to move forward for the integration of technology and restructure legal education with phenomenal change. Hence, online education cannot be completely kept aside post-pandemic in order to shape it up for new challenges and opportunities.
Summing up the discussion, Legal education has come up to be an important facet of society owing to its vibrant nature and its growth all over the world. BCI and UGC being the pivot of the legal area, needs to recognize the opportunity to look into the future and introduce multifarious dimensions to the subject considering possible threats in future. Alike, USA and China who have already indulged into the regular learning through online platform in some ratio to which extent it’s functioning well and have emerged as the inspiration to the world.
This crisis should better be utilized to analyze the shortcomings of mechanism under which legal education functions, demonstrating the areas in which it excels and where it failed. Effective learning out of school has clearly placed greater demands on students’ autonomy, capacity for independent learning, and before that a need to develop reliable and accessible infrastructure for online and remote learning. Hence, it’s time to expand the wings of education beyond the four walls of traditional learning methodology.
Abhinav Kumar is the awardee of ICSSR Special Call for Studies Focusing on Social Science Dimensions of Covid-19 Coronavirus Pandemic. Views expressed is entirely that of the author.
THE CONSTITUTION OF INDIA: SPEECH IS SILVER, BUT SILENCE IS GOLDEN
Amidst what is written and said, sometimes there exists a silence which is more significant. The term ‘Constitutional silence’ has been extensively discussed by Lawrence H. Tribe in his celebrated work ‘Invisible Constitution’. In his words contrary to the belief of many, the impact and extent of a written constitution is not very compelling. He further says that many principles which form the constitutional bedrock of America never made it to the text of the nation’s Constitution. Therefore, silence can be comprehended as giving voice to what was left unwritten when the Constitution was drafted and enacted. But these interpretations would never have been rejected by the makers of this hallowed document. Various scholars have described these silences as ‘gaps and abeyances’ and consider it a method of adjudication. In his book ‘The Silence of Constitutions’ Michael Foley calls these abeyances as valuable. These silences are a gold mine because they play a significant role in determining the role of the Constitution as much as the codified components. According to Martin Loughlin, the administration’s desire to remove uncertainties will smother the silences of the Constitution. It is important to appreciate silences because if the silence is done away with a sword of Damocles will hang over the Constitutionalism.
CONSTITUTIONAL SILENCES IN THE INDIAN CONSTITUTION
In words of Justice Benjamin Cardozo, “the generalities of Constitution have a context and a significance that vary from age to age.” The silence in some areas is deliberate. Gaps should simply not be seen as a void space. The Constitution of India is called ‘a living tree’ because it evolves, grows and is capable of adapting itself to the needs and wants of the country. The idealistic and perfectionist approach makes the Constitution a ramrod. Ours is a transformative Constitution therefore the silences are imperative.
The Constitution has been silent on a lot of issues but through judicial interpretation a lot of new rights have emanated. The ambit of the term ‘other authorities’ in Article 12 has expanded leaps and bounds over the years. In the landmark case of Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi, ONGC, LIC and IFC were included in the definition of state.
Article 14 was incorporated to bestow upon the citizens the right to equality and equal protection of law. Now it encompasses the test of ‘manifest arbitrariness’ and every law that is formulated has to be tested on this whetstone. The inclusion of right to press under Article 19(1)(a) is another example. There was a difference in the views of the framers regarding its status. The Constitution remained silent on this so that the future generations can choose to incorporate it if the need be.
Similarly, the Supreme Court of India through its trailblazing judgements has given new dimensions to the Article 21 whose meaning was once constricted only to mere physical existence and personal liberty. Aspects like dignity, education, livelihood, food, shelter, fair trial etc. have been incorporated under the umbrella of ‘life and liberty’. Although these words were nowhere mentioned in the Article but they were the need of the hour. Recently through the K. S. Puttaswamy (Retd.) v Union of India, the right to privacy became an inalienable part of ‘life and liberty’.
Article 156 lays down that the governor enjoys his office at the pleasure of the President. His removal cannot be on whimsical grounds. Doctrine of pleasure is subjected to the principles of Constitutionalism. In B.P Singhal v Union of India, a Constitutional bench laid down certain principles which restrict the removal of governor purely at the will of the President. The reasons for removal have to be compelling. The Articles of the Constitution dealing with the assent by President or Governor to a bill does not stipulate a fixed time period. Only because the constitution is silent it does not mean that one can act capriciously. It has to be done in a reasonable time.
The Basic Structure Doctrine itself was a result of interpretation of this silence by the Supreme Court. The recent examples of the same include the wide interpretation given to the definition of ‘sex’ to include the third gender in the National Legal Services Authority v Union of India. These are a few examples where though the Constitution is silent but the sounds of silence can still be heard. These silences should be filled with constitutional morality and by developing proper conventions and the legislature and the judiciary have been entrusted with this responsibility.
The Constitution itself is incapable of speaking like an oracle but its voice can be heard through various judicial interpretations. These silences also enable the legislature to amend the Constitution as per the changing socio-political dynamics of the country. It is not merely the fundamental law of the land meant for doing away with the existing conflicts within a law. Rather it is a document in which the spirit of the nation pulsates. Therefore, the framers of the Constitution left it for the generations to come to interpret the document as per the changing time and much of success can be accorded to these blanks within the Constitution. To conclude the author would like to quote the immortal sentiments of Hidayatullah J. where he says, “more freedom exists in interpreting of Constitution because in domain of Constitutional law there is again and again novelty of situation and approach.”
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