Judicial Grand Canyon
By K. Ramakumar, Advocate, High Court of Kerala
02/10/2006
Judicial Grand Canyon
(By K. Ramakumar, Advocate)
Article 22 of the Constitution of India reads as follows:
“22.(1) - No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
No other profession gets this pride of place in the supreme document of the country though rights to Medical Aid and Primary education have been declared part of right to life by the Apex Court. Why, because the Constitution envisions the Rule of Law and not merely of men. And lawyers are apostles in the temple of justice. They are, no doubt known as legal practitioners, but what they are expected to provide is legal service. Can they therefore, be left high and dry with their mouths thirsty and with thoughts of food (not food for thought), in a place where they plead for liberty, equality and protection of rights?
This however, is exactly what is happening in the high rise High Court Structure described by the judicial Statesman of the country Sri Justice (Retired) V.R.Krishna Iyer as
“a grand ‘Canyon’ in reverse wonder and concrete commercial architecture, beating in height any Big Business tower, competing in Air-conditioned interior decor, Five Star aesthetics”
(See 2006 (2) KLT Journal page 105), which surprisingly is chosen to house the highest court of justice in the State. All courts are open to the public. They are as of right, entitled to watch proceedings in Court (See Section 327 of the Code of Criminal Procedure) . The open and transparent justicing system that we had inherited from the British, has fortunately been left untouched and not tinkered with. How can members of the public or those who plead for them then be denied the basic necessity of drinking water, the nectar that sustains life? What is a public place like a court building where thousands throng every day, worth, without drinking water facility? Yet not a drop of water is given to thousands of Lawyers appearing in the High Court. Their representative body is asked to fend for itself with the stinking and dirty water from the Tube well erected by themselves at their expense. And no cooking is permitted in the sophisticated High Court Building, the reason being unknown to any sensible human being. Lawyers have to be content with food cooked elsewhere and earlier - warmed when ordered - a sure passport to Peptic disorders. And not even the Advocate General of the State has a parking lot in a building owned by his own client, not to mention the absence of parking facilities to other ordinary lawyers.
Sounds preposterous? Yet stark true. Is this the way a building belonging to the people of the State whose hard-earned hundred crore rupees have been spent on it be designed and erected? And who is footing the huge mind boggling electric energy charges - almost eight lakhs of rupees every month? Again the wretched people. Why does a court building need so many lifts - many of them not helping people lift themselves up - but only making shrieking and frightening sounds most of the day. If only the Court halls are located sensibly in three floors which costs nothing extra! That is how all the civilized countries have constructed their Court buildings. The Supreme Court of India is a known land mark in Delhi. So are the Court buildings in Allahabad and even in Puthukkottai in Tamil Nadu. The Australian High Court- in not so crowded Canberra - opposite the fashionable Parliament House - with lush green spread in between is stunningly beautiful. So is the Madurai Bench nearer home. Why is that in Kerala alone it is an eye sore, albeit in a city beauty spot. Who is really responsible for this mess?
The Lawyers of the High Court these days hardly meet, or great each other. No chatting. No joking. No sharing of spicy gossips or salacious scandals. No library to read or refer. The days are drab and dreary. The blazing Banquet Hall like Court rooms are no doubt impressive but not appropriate for serious work. Judges have a sprawling and spacious dining Hall in one of the floors where none of the judges has eaten till date. Their own Chambers are large enough to host a five course dinner. How does the dignity, prestige or power of our Bar friendly judges get affected if they gracefully agree to re-locate the Court rooms in the first three floors - in the rooms with the same dimension. The poor citizen who bore the extra expenses to change the flooring to wooden tiles in the place of slippery marbles in one of the rooms, will willingly agree as he will save crores of rupees annually on current charges. Let me quote again from Sri Justice (Retired) V.R. Krishna Iyer, as I dare not even put up a poor imitation of his inimitable style:
“The spectacular Cathedral or stupendous building which costs a little less than 100 crores and has several air-conditioned floors to accommodate Benches is distances away from the penurious litigant whose hunger for right and justice has no time and space while the court is engaged in proprietariat litigiosity. Our States are near bankrupt. Our budgets hardly bother about the basic constitutional obligations (like health and education) of the Socialist Secular Democratic Republic”.
It is not good that those who are supposed to render legal service to the society leave the High Court with minds full of anxiety and anger, disillusionment and despair, helplessness and hopelessness, with their legs tired, mouths thirsty and stomachs empty.
It is not too late even now. Let us look out for a new place large and long, calm and cool, not amidst the madding crowd but in the outskirts of the city- not driving away the rare species of birds from the adjoining Mangala Vanam -where a beautiful temple of justice can be built - not for High priests alone but for those who pay for it as well.
“Buildings do not a judicature make nor judicial Numbers a great Court” - Justice (Retired) V.R. Krishna Iyer.
“SABCO SANMATHI DE BHAGWAN”
Sri. V.P.G. Nambiar : Teacher, Lawyer, Judge : Three- in-One
By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam
25/09/2006
Sri. V.P.G. Nambiar : Teacher, Lawyer, Judge : Three- in-One
(T.P. Kelu Nambiar, Sr. Advocate, High Court of Kerala)
I thank my jogging memory, I remember my first hour/period on the first day in the Madras Law College. The year was 1951. After marking the attendance, the young, energetic, enthusiastic lecturer opened, with clear elucidation, not amounting to audacious eloquence:
“Roman Law, gentlemen, is the foundation of all laws. All laws have their foundation in Roman Law”.
And that was Part-time Lecturer-Advocate Sri.V.P.Gopalan Nambiar, who later proved himself to be every inch a teacher, a lawyer, and a judge, a poet in legal/judicial prose; V P G unlimited, ‘a gentleman of blood and breeding’. Still lurking at the back of my mind is his felicitous and in-depth analysis of the Comitia Centuriata, the Twelve Tables, jus gentium, jus honorarium, senatus consulta, Lex Romana Visigothorum, Justinian’s Digestum, Corpus Juris Civilis, locatio-conductio, emptio-venditio, all difficult to remember and easy to forget.
I also learnt, with greedy ear, criminal law from Sri.Nambiar. He could recite from memory all the five-hundred-and-eleven Sections of the Indian Penal Code, (considered to be the bloody book of law), with a shine in his eyes, and that, at a time when technology had not changed our brains, with clicking, bleeping, flashing world of screens. Now, these are days of onscreen reading.
As a lawyer, Sri.Nambiar had a clean tongue and stubborn knees. To him, a lawyer is no merchant, and the court is not a brief bazaar. He was a lawyer of singular integrity, learning, culture, refinement and honour. As lawyer, it looked as though he was born as the eldest son of fortune. Sri Nambiar was one of the fastest driving stars of the legal profession. He cultivated the discipline of work culture. He never spoke daggers in court. His scale of victory in advocacy, is impossible to measure. To put things in perspective Sri Nambiar had very few parallels. In those days he was the cream of the Kerala High Court, a lawyer with scholarly allure. There are only very few lawyers today to reveal the profession lost for more than twenty years. Lawyers seem to think that the legal profession is an intelligent investment scheme. The Bench and the Bar should have a shared sense of urgency in this matter, remembering that the court is not an E-learning studio. Today the legal profession is on notice. The legal profession has crashed. The Black Box has to be found and opened to find out the reason. Advocacy audit is needed. I do not require the assistance of any fortune-teller, palm-reader or card-reader, or the brains of Da Vinci to venture the view that in advocacy Sri.V.P.G.Nambiar had developed an idiom of his own. He was successful because he believed in himself. He believed in work, hard work and long hours of work; believing, with Charles Evans Hughes, that men do not break down from over-work, but from worry and dissipation. As Government Pleader and Advocate General of the State, he was famous for his functioning, never notorious for his pride.
Justice V.P.Gopalan Nambiar, (later Chief Justice of the High Court of Kerala), was a judge ever known for patience, not interested in disposal with haste. He did not apply ‘sudden death’ in his court. He never waved off any argument. He was one of the most widely read judges of his time. He underwent the learning time for new judges from arguments of Senior lawyers, without any reservation. He was a judge who always obeyed the time. His judgments filled up blank pages of law. His judgments are a great, riveting read. Legal literature was his source, inspiration, weakness and strength. He never had that threatening unkind brow of a judge or a raspy voice. He wore the human face of judiciary, not ‘February face’. He was never a “No, no” judge. He never showed a face without a heart. He possessed all the three things necessary to make one great: noblesse, noblesse and noblesse. He never attempted to hide dislike in smiles and affability. He was not for enjoyment of sovereign leisure of judges. He was a judge ever known for noble patience. All the same, he was an unapologetically strong judge. He never allowed his court hall to be a buffet table. He never cracked off-colour jokes in court. As Chief Justice, he added vision, values and vitality to the judiciary; and distilled the Kerala judiciary.
Sri.V.P.Gopalan Nambiar was a teacher, lawyer and judge, three-in-one.
(This composition has no claim to be either a biography or a well-rounded picture of Sri.V.P.G.Nambiar. This is only a random write-up of a quondam student, with proud humility and all bound humbleness, who feels fortunate to have been the student of the revered teacher. To him, I am indebted for living well.)
Reservation of O.B.Cs in Institution of Higher Education
By K.P. Radhakrishna Menon, Judge
25/09/2006
Reservation of O.B.Cs in Institution of Higher Education
(By Justice K.P. Radhakrishna Menon)
A probe into the political history of independent India is enough to opine that the Central Government led by the Indian National Congress wants to undo the decision, the Nehru Cabinet took in the year 1961 that no national list of other backward classes should be drawn up for giving concessions. The Centre simultaneously had informed the State Governments that its firm view was :
“It was better to apply economic tests than to go by castes”.
Immediately thereafter there was a conference of Chief Ministers to consider matters relating to National Integration. At that meeting the Central and State Governments had “agreed that economic backwardness rather than community or caste, would provide an appropriate criterion for giving aid to individuals in matters of education, including professional and technical training”.
The Government perforce had to take this decision because the Government led by Nehru was of the view that there was the danger of divisiveness or disintegration, if different treatment of the “backward classes’’ continued. The Cabinet also expressed the opinion that such differential treatment would thwart the general economic progress and effort to erase the disparities between different classes. The States accordingly were asked, “to attend to the welfare and educational benefit of the weaker section, employing economic rather than communal or class basis.” This policy decision was endorsed by the Ministry of Educations’ Committee on Emotional Integration in 1962 as evidenced by the concluding portion of its report: -
“ The time has now come, in our opinion, when increasingly assistance should be based on economic criteria. In some states powerful groups have exploited “backwardness” to their own advantage and to the detriment of the society as a whole ...................... It also results in the long run in making the ‘backward classes’ less self-reliant than they should be”. The Centre also expressed that caste criterion was objectionable as “the remedy suggested on the basis of caste”, would be “worse than the evil of backwardness itself ". It is interesting to note here the comment of the Central Government’s spokes-person that “Caste criteria were not only administratively unworkable but contrary to the first principle of social justice............and would perpetuate caste”. This view of the spokes person was flashed in 1965 when the Parliament was having discussion on the backward commissions report.
The Chairman of the Backward Class Commission was also of the same view though he was a signatory to the report, which had given the details of the communities and castes entitled to backwardness. He says “it would have been better if we could determine the criteria of backwardness on principle other than caste, because the caste test is repugnant to democratic principles and inimical to the creation of casteless and classless society by perpetuating caste division”. He therefore recommended that backwardness shall be determined by “residential, economic, educational and cultural criteria”.
The Home Minister in the Nehru cabinet was also of the same view. In the course of his speech in the Parliament, he made a scathing criticism couched in these terms: “The emphasis on caste displayed the dangers of separatism, caste basis is not only unfair to the backwards outside the community but it is the greatest hindrance in the way of our progress toward an egalitarian society. Not only that, the recognition of caste as backward may serve to maintain and perpetuate the existing distinction on the basis of caste”.
Taking into account these criticisms and the decision of the Nehru cabinet, Dr. Marc Gallanter (Professor at the Law School, University of Winconsin) in his Treatise on ‘Law and Backward Classes in India’ captioned ‘Competing Equalities’ has stated: ‘the very expansiveness of the commissions list undermined its usefulness, for, if every one, “barring a few exceptions”, has thus to be regarded as backward, the really needy would be swamped by the multitude and hardly receive any attention”.’ Another danger, the creamy layer in contra distinction to the needy in such backward classes will enjoy the entire benefits, leaving the needy in lurch forever.
Political history records that the tide started running strongly against the Governments defining the backward classes on the basis of caste and community. The National Press took up the issue. The Times of India showered respectful accolades on The Mysore High Court, which rendered the decision in Ramakrishna Sing (dated 18th September, 1959) evidenced by its editorial in the issue dated 24th September, 1959.
The only rational test for backwardness is a person's economic circumstance and not his caste......... The Mysore and similar orders elsewhere show how caste ridden the Congress is, despite the anti-caste protestations of its leaders”. The Mysore view was given the stamp of approval by the Supreme Court.
Dr. Marc Gallanter, commenting on the judicial pronouncements has stated: “Central government’s campaign for economic criteria in the States was given added impetus by the first intervention (since 1951) of the Supreme Court into the matter of who are the backward classes. In September, 1962 the Supreme Court struck down the Mysore backward classes list whose defects included exclusive reliance on caste standing as a measure of backwardness adding the onus of Constitutional disrepute to the caste criterion”.
The timely and bold decision of the Nehru cabinet to sustain the unity of India, the present Central Government led by the followers of that great and noble patriot, Nehru has apparently decided to erase from the political history of independent India and resurrect the evils of castism, communalism and fundamentalism, gnawing off the unity of the nation, by introducing the buried quota system for OBC in Higher Educational field by amending the Constitution. What an irony? This decision is also an affront to the law declared by the Apex court, virtually approving the decision of the Nehru Cabinet. It is really interesting to note that the Nehru cabinet was also of the view that any administration encouraging the caste predominance will stand as a stumbling block in our march towards an egalitarian society.
The decision of the HRD Minister awaiting the approval of the cabinet, to introduce the quota system reserving certain percentage of seats in Higher Education field, for the benefit of OBC determined on caste basis, reflects a retrograde policy which, as the Home Minister in the Nehru Cabinet asserted in 1961, displays” the dangers of separatism”.
Viewed from an historical perspective the OBC imbroglio, madly crisis-crossing the Nation, should not have been there. The archives of the Central Government speak for this.
Why the Central Government want to set at naught the decision of the Nehru cabinet after four decades and 6 years, is anybody’s guess. After sixty years of independence, Mother India cannot suffer decisions like this, which undoubtedly would disseminate separatism and divisiveness among her children. May I therefore request The Prime Minister to veto the move of the HRD minister to resurrect the evils of castism, communalism and fundamentalism which, our beloved Pandit Jawaharlal Nehru and his companions gave a decent burial four to five decades ago, and thereby allow Mother India and Her Children to live in peace.
That is correct? what was incorrect?
By M.S. Bhasi, Advocate, N. Paravur
25/09/2006
That is correct? what was incorrect?
(By M.S. Bhasi, Advocate, N. Parur)
I would like to invite kind atention of the readers of this Journal to the recent decision of Kerala High Court in 2006 (3) KLT 364 wherein S. 267 of Cr.P.C. has been interpreted in a broad sense. I think, according to various decisions of the High Court and Supreme Court, the reasons stated in the decision may be correct. Before commending the said decision it is worth full to know what was the factal background of the decision. A learned single Judge of High Court referred the matter to the Division Bench to consider the question whether under S. 267 of Cr.P.C., Magistrate can issue a production warrant and remand the accused who is already in remand in another case, for the purpose of enabling the police for interrogation. While referring the matter, the learned Single Judge cited a decision 2006 (1) KLT 505 wherein a learned Judge of this Court held that it is not possible as under S.73 arrest warrant can be issued to a person who is accused in a non bailable offence only if he is evading arrest and that also can be exercised only against a person residing in the local limits of the Magistrate. When reading these two decisions, I could not find any difference of opinion in 2006 (1) KLT 505 with regard to the other decisions of various High Courts or Supreme Court or Statute in respect of S.73 of Crl.P.C. The learned Judge did not consider the scope and ambit of S.267 of Cr.P.C., and at the same time, public prosecutor did not invite the attention of the Court to do something under S.267 of Cr.P.C. for the same relief. S. 73 and S.267 of Crl.P.C. are entirely different to each other and deals with different factual situations.
When reading 2006 (1) KLT 505, I would understood that two petitions were filed before a Single Judge to quash two petitions and consequential orders passed thereon by the Magistrates of Perumbavoor and Chavakkad. The question before the Court was that whether a Magistrate can issue a production warrant under S.73 against a person who is already in remand in another case by another Magistrate.
While answering to the question possed before the learned single Judge, he observed that S.73 can have no application since the petitioner is in judicial custody by a competent court and he is not evading arrest or escaping from the arrest or an escaped accused. Hence those petitions were allowed.
There was no prayer from the side of prosecution to invoke S.267 of Cr.P.C. and there was no observation with regard to S.267 of Cr. P.C. If the investigating officers had filed a petition under S.267 of Cr.P.C. to have the custody of prisoner, the result would have been different. The Division Bench answering the question with regard to S.267 of Cr.P.C. which was referred by a learned Single Judge overruled 2006 (1) KLT 505 which specifically dealt with S.73 of Cr. P.C. Hence the Division Bench decision may be correct. But what was incorrect in single Judge decision to be overruled?
Social Commitment and need for changes in Legal Education
By Aravind V.
18/09/2006
Social Commitment and need for changes in Legal Education
Arvind V *
An Abstract
The preliminary structure of the paper is basically clipped on to analyzing the contemporary state of lawyering, where the lawyers are inclined to the process of money mining - here an empirical study is specified (critique). The paper is then constructed to address the marginalized vulnerable sectors and their needs. The paper would then proceed to give a normative proposal on how the law students have to tune their incentives and for acclimatization so as to commit for social causes. Thereafter a scrutiny of the concepts of ‘social engineering’ and of ‘professionalism’ of Roscoe Pond, followed by an admixture of Bar Council of India’s and Law Commission’s essential contents on social responsibility of a lawyer, is attended to. Here how a lawyer ‘ought to be’ than he ‘is’ is calculated.
Methods to make changes are in the next section. This part of the paper would be a comparative study on how law students are ‘socially’ trained in other countries; furthermore, concerns over adoption of these methods would be expressed. All the above articulations would pertain to the execution of ‘clinical legal education’, where field visits, orientation programs, seminars, workshops etc., would be a resort to attain ‘social lawyers.’ Then the impact on students, of doing internship with those organizations which care for social accountability would be discussed. The commitment would thus depend on the collective culmination of these nurturing methods.
Subsequent to streaming discourse of present legal system and schemes on changes, the epilogue part speaks of implementing the methods discussed. The initiation should be from the law students and their voices should echo, which call for changes. These methods form catalysts for orientation; the real emanation is for the time to prove.
Lawyers - an empirical scrutiny
It would not carry relevance to discuss upon the credentials and credibility of the so called top-lawyers who need wells for depositing their earnings,1 and hence, here, the discussion is centered on the motive for which they work. There are even lawyers who fix appointments with their clients during their travel in air. Payment of six digited bills/fees per appearance has become a matter of routine than alarming. Time is currency and hence they work round the clock – not for any social causes but for money mining. The most disheartening part is indeed the arrogance which has become their shadow. The reflecting queries after an appraisal of the above statements would indeed be: a) is this the way they should be? b) lawyers being the defenders of rights, what is the difference between them and the violators?
No one would ever reject opportunity s/he gets to be a Jetmalani or a Nariman. These lawyers, who are icons, transform into role models thus inspiring the younger generations. They are praised as Legal Lords.2 But the boiling question is to what extend are these ‘Lords’ socially conscious? Here I challenge they have contributed nothing to the society,3 but false notions on how a successful lawyer should be. This calls on the redefining of ‘Who is a successful lawyer? – is he the one who have a hundred juniors holding briefs and following? or the one who travels in an array of Mercedes? or the one who take lakhs per appearance? or the one who is unapproachable to the inferior sections of a society?
Now, the marginalized sectors are susceptible to be tormented. All the rights and notions of social justice guaranteed under Constitution and other legislations always remain in paper and violations persist.4 Furthermore, ‘The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self-government.’5 The Governments take a little step to protect them. I mark this as problem number 1 -- violation of social justice and no initiatives for protection.
Furthermore, chronicling the high cost of our legal system would blatantly state the helplessness of the vulnerable and susceptible sections within. Studies and works pertaining to the approachability of the apex Courts are innumerable, but with no implementation they remain in paper. Even more than 50 years after independence from almost two centuries of British rule, large scale poverty 6 remains the most shameful blot on the face of India. With no full meals per day, how can one expect them to approach Courts? Legal process has become too expensive, so justice is with those holding more currency. So the next reflective query is indeed what should be done? I mark this as problem number 2 – the expensive legal system.
How can lawyers find solutions for these problems, would be a succeeding query. A study of the above problems (1&2) would stipulate that a re-emphasis is required on ‘socially committed lawyering’.7 The discussed problems are combined and now a re-emphasis is given – how a lawyer ought to be?
Lawyers - a normative proposal
Lawyer’s profession is considered as the noblest one because he works for the society as a whole.8 To illustrate; Majority of the forefront freedom fighters of India, were lawyers.9 Sardar Patel left his high yielding practice for freedom struggle. The lawyers of that era earned high esteem, honor and reverence not only because they had in dept knowledge of the subject, but also because they were committed to use their knowledge for social causes. They gave implementation of social justice10 the prime importance.
When one of Shakespeare’s characters says the first thing to do is kill all the lawyers,11 it’s not another bad joke about the legal profession. It’s not Shakespeare himself speaking even in fun. He puts the words in the mouth of a rabble-rousing demagogue who wants to put an end to law and order and liberty and knows it’s hard to do while there are courts and judges and lawyers to defend them. This reflects the duty of and how a lawyer should be.
Dean Pound,12 says that a lawyer should be a social engineer. His theory, on further expansion, stipulates that law students should obtain a deeper understanding of the law, the kind of power that it exercises, and its role in human societies. A social engineer should improve the society by studying what the law is, what it ought to be, and how it actually operates. Pound further proposed the word ‘professionalism’. The term refers to a group pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood, but the pursuit of the learned art in the spirit of a public service is the primary purpose.13 Now a combine reading of ‘social engineer’ and ‘professionalism’ would give us an idea how a lawyer should be. This is what the law students understand and aim at. Pound has analyzed deeply the role of lawyer in society and its development. He calls upon for the commitment of the lawyers to society. His whole work on sociological jurisprudence says the same. Now the query is how to develop commitment on the side of students and how to sensitize them?
Moreover, ‘Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him [her]. Will he [she] gain anything by it? Will it restore him [her] to a control over his [her] own life and destiny? In other words, will it lead to ‘swaraj’ [freedom] for the hungry and spiritually starving millions? Then you will find your doubts and your self melt away.’14 So pronounces, a test to determine one’s actions, by Gandhi, as a reflection to the plight of the downtrodden in India.
An advocate under the Bar Council of India (BCI)15 Regulations owes allegiance to a higher cause- that of truth and justice.16 BCI, under Section 7(1)(h) of the Advocates Act, 1961,17 is empowered to promote legal education and lay down ‘standards’ of such education in consultation with the Universities imparting such education. The BCI Regulations on Legal Education18 stipulates a paper dedicated to public interest lawyering, legal aid and para-legal services. The gist of all the elements prescribed by the BCI regulations is to import legal education in such a manner that students shall become socially conscious.
Furthermore the Law Commission19 reports are also favoring the ‘social’ factor being embedded in the lawyering sectors. The Commissions have time and time again expressed its concern over the socially irresponsible attitude of contemporary lawyering. The 14th Law Commission Report stated the fact that if laws do not provide for an equality of opportunity to seek justice to all segments of society they have no protective value and unless some arrangement is made for providing a poor man the means to pay Court fee’s, advocates fees and other incidental costs of litigation, he is denied an opportunity to seek justice.20 The result of the report was legal aid.
Most social evils are an outcome or creation of poverty and the misery that comes with being poor in a country like India, at the same time it also needs to be borne in mind that the judiciary no matter however committed it may be towards uplifting the cause of the poor is ultimately bound by procedural formalities which do not take into account the misery or problems of the masses. Therefore, since the Courts have limitations, the law students should work for the support of the downtrodden marginalized sectors.
We should emphasize and highlight the fundamental role of law in society and remind ourselves of the great and sublime purpose which law is intended to serve in a republic governed by the rule of law. Moreover, to quote the Chief Justice of India, ‘We must realize that the end of law must be justice. Law and justice cannot afford to remain distant neighbours. There must be harmony between law and justice.’21 Therefore, in all seriousness, ask ourselves the question as to how far we have been able to fulfill the mission of law to deliver justice and to what extent we have succeeded in using law as a vehicle for ensuring social justice to the large masses of people in the country.
Nurturing of social lawyers – methodologies
The relevance and need of the hour should be cognized and the budding lawyers should tune their incentives accordingly. When a lawyer stands for society, his speech should not be stumbled, he should not loose his train of thought, but should be clear on what he is trying to diagram. He should be socially conscious and his actions should reflect the same. For this, no book reading and by hearting of social justice will do, but the same should be coming from the inner conscious, and to come from inside, a student should be trained so. Social responsibility cannot be taught, it has to be learnt.22 The focus should be on innovation in education thus changing the outdated and traditional systems.23 Now certain methods adopted for the training and for the sensitization of the students shall be studied. These methods are steps to democratize and decentralize the educational system. The educational institution can help promote the values in society by internalizing them in the institution itself. When young learners witness the practice of democratic values and practices within the portrayals of their institution, they trend to internalize the same and make it part of their life and thinking in their future life as responsible citizens of a progressive and democratic society.
In United States, during the third year of law school,24 a student must satisfactorily complete a substantial paper that requires in-depth research and rigorous analysis of a specific area of law and evidences a sophisticated knowledge of the law. This is to include knowledge of larger issues of the impact of law on various parts of society and the future directions the law may take. For this the student first required to do immense field work.25 This creates huge impacts on students on understanding why a statue should be ‘society-friendly’. Similar programs are there in Australia and United Kingdom.
Providing legal aid to the poor and the weaker sections of the society is one of the Directive Principles of State Policy.26 The Legal Services Authorities Act, 1987 provides for constitution of Legal Services Authorities. These bodies have the responsibilities of providing free and competent legal services to the weaker sections of the society and to organize Lok Adalats. The method suggested is - why not the law students take up the task of legal aid. The concept of Legal Aid Clinics in law schools is well practiced in foreign countries.27 This method is followed only in few of the law schools in India. Each student should be given a project to work upon, with respect to legal aid which they have practically given. If each student provides legal aid for ten, then the millions who are suffering will definitely find resort.
Legal education (spreading awareness), if provided to the poor and needy, would indeed make a big difference. The law students should be given tasks of educating sectors in the society. For this there should be a preliminary selection of the sectors where the students should work. This selection should depend on: a) Literacy rate b) Economic capability c) right violation probabilities d) and all other criterion which determines marginalized sectors. After the selection of the sectors, then the responsibility of educating them should be put on the shoulders of the students. On this process the students will learn and develop an incentive towards helping the poor.
Participation in seminars, conferences, training programs, debates, competitions, summer schools, and all other such programs would all immensely contribute for the creation of ‘social’ lawyers. These programs are significant role players in molding up the younger generations to be socio-sensitive. Such programs are indeed prevailing in the country, but the desired participation from the students, is lacking. The present system should be tuned accordingly that the each and every students are given opportunities to attend such programs. The next vital fact to be borne in mind is the contents in the programs. The contents which are selected should have the potentials to sharpen the stimulations of the participant students. After selection of the topics, a careful scrutiny on presentation of the same should be done. The programs should never make the participant students feel heavy; rather, it should be a period of strong creative impulse for change. The credibility of moderators, and the way it is been organized also play significant roles. It should not be forgotten that an imperfect program does damage rather than the expected results. Thus the programs should be conducted in such manner so as to be acting as inspirations for the student; with which they can compose their acts in a ‘socio-friendly’ manner.
The law schools must devise such programs that will bridge the gap between classroom and social reality. The placement program of the law schools would be another such effort towards this. The students should be given exposure to different organizations which work in the fields of protection of social justice and human rights. There are indeed many such organizations which are offering internships.28 There the students are put into different fields of social reality and the torturing of the weaker sections is well made aware. These organizations start the work from the grass root level thus giving a picture of ground reality for the students. This contributes highly to frame a student’s approach. The above such methods are not exhaustive but such natured ones should be adopted.
Optimism – a postscript
To give a sum up - An overall change in view of ‘a successful lawyer’, as told earlier, is the need of the hour. The above disserted methods would be instrumental in the process of building a lawyer who is committed socially and embedded with instincts of social justice. The students should also take initiatives and raise voice to include such methodologies in curriculum. Another significant role player would be the law schools and the higher authorities, who prescribe the curriculum. The Educational institutions are platforms on which young lawyers in society learn the first lesson in social equality and equality of treatment.29 The essence of all these training methods should be selected with caution. As said earlier, these are the catalysts for orientation; the commitment should arise and awake within oneself.
The success of educational institutions is today caused merely by the actions and commitment of its promoters. It is to be remembered real social achievement is the by-product of the active involvement of all the stakeholders. Promoting the cause of education is initiated by those who take initiatives to start educational institutions but for the goals to be fully achieved, it must ensure the active involvement of government, society, concerned citizens, parents and students.
I have used the word optimism in the epilogue header, not because there is doubt in me, but because the success of the initiative would all depend on how the same is been implemented and organized. It would also be depended on the effective intake by the listeners. If these methods are practiced in its sprits, there is no doubt that we could build social engineers. It is just a matter of time to prove that these would help in making of socially committed lawyers, so that the lost prestige, honor and respect which the earlier lawyers had, could be brought back. Thus that time is not far, but the time to realize and to act is now.