Following complaints of some advocates not following the dress code prescribed by the Bar Council of India (BCI), the Bar Council of Tamil Nadu and Puducherry (BCTNP) has written to all Bar associations in the State as well as the Union Territory, warning their members against wearing jeans, capris and leggings to courts.
In a circular issued to the bar associations, BCTNP chairman P.S. Amalraj has stated that it is the duty of all advocates to appear before the courts in a presentable manner and any violation of the prescribed dress code would amount to professional misconduct punishable under Section 35 of the Advocates Act, 1961.
“The legal profession is a noble profession and in order to maintain its dignity, decorum and nobility, several duties are cast upon the advocates under the Advocates Act, 1961 and the Bar Council of India Rules. Since, the advocates are the officers of the court, they have to follow the Rules framed under the Act,” the circular read.
“It is brought to the Bar Council’s attention that some advocates are not adhering to the dress code as prescribed under the Bar Council of India Rules,” it continued. As a result, all attorneys are hereby informed that Part VI Chapter IV of the BCI Rules specifies the type of dresses or robes that attorneys must wear.
The circular also included a copy of the Rules, which say that male advocates must dress in either a black open-breasted coat with a white shirt, a white collar (either stiff or soft), a white band, and an advocate’s gown, or a black buttoned-up coat, chapkan, achkan, or black sherwani.
“In either case, they must wear long trousers (white, black, striped or grey) or dhoti excluding jeans…. In courts other than the Supreme Court, High Courts, district courts, sessions courts or city civil courts, a black tie may be worn instead of band,” the BCI Rules stated.
In the case of women lawyers, the Rules required them to wear black full sleeve jacket or blouse with a white collar (stiff or soft), white bands and advocate’s gowns. They could also wear a white blouse (with or without a collar) with white bands and a black open breasted coat.
Additionally, the BCI Rules allow women’s rights advocates to wear sarees, long skirts in white, black, or any neutral or subdued color without a print or pattern, flared skirts in white, black, or black striped fabric, or traditional dresses with black coats and bands.
The Rules further specify that wearing a black coat would not be required in any forum, except for the Supreme Court and High Courts during the summer, and that wearing an advocate’s gown is optional for both men and women when appearing in those courts.
An advocate must always arrive in court in the appropriate attire and with a presentable look. Except for ceremonial dates and locations that the BCI or the court may specify, an advocate is not permitted to wear a band or gown in public settings other than courts, according to the Rules.
Mr. Amalraj explained as follows: “Since specific Rules have been laid down with respect to the dress code to be followed by the advocates, any other dress such as wearing jeans, capri pants (pants that are longer than shorts but are not as long as trousers), leggings, etc., are strictly restricted (sic).”
Mr. Amalraj, in his circular, requested all bar associations to inform their members about the circular and make sure that they adhere to the dress code.
constitutionalism, doctrine that a government’s authority is determined by a body of laws or constitution. Although constitutionalism is sometimes regarded as a synonym for limited government, that is only one interpretation and by no means the most prominent one historically.
In the most basic sense, a “constitution” is a set of laws or regulations that establish, organize, and specify the boundaries of governmental power. When viewed in this light, all states are constitutional states and have constitutions. Anything that can be recognized as a state must have a recognized method of establishing and defining the restrictions (or lack thereof) imposed on the three primary types of governmental authority: judicial power (resolving legal disputes), executive power (making new laws), and legislative power (making new laws).
Consider the extreme situation of Rex, an absolute king with unrestricted power in all three areas. If it is widely accepted that Rex possesses these powers and the right to use them as he pleases, then it may be claimed that the state’s constitution merely has one provision that gives Rex unrestricted power. He is not constrained by protocols or any other forms of restrictions or requirements when using his authority, and he is not legally responsible for the morality or wisdom of his decisions. His decisions are constitutionally legitimate.
However, when academics discuss constitutionalism, they typically mean anything that disqualifies Rex’s claim. They imply that laws not only establish legislative, executive, and judicial powers but also place restrictions on those powers.[1] These restrictions frequently take the shape of individual or collective rights against the government, including rights to things like freedom of expression, association, equality, and due process. But constitutional restrictions might take many different shapes. They can concern such things as the scope of authority (e.g., in a federal system, provincial or state governments may have authority over health care and education while the federal government’s jurisdiction extends to national defence and transportation); the mechanisms used in exercising the relevant power (e.g., procedural requirements governing the form and manner of legislation); and of course civil rights (e.g., in a Charter or Bill of Rights).
Constitutionalism in this broader sense of the word refers to the notion that the government’s powers can and should be limited and that its legitimacy depends on these restrictions being upheld. Because there are no constitutional restraints on Rex’s power, his society has not adopted constitutionalism in the broadest sense. Consider a different state where Regina has all the same authority as Rex, with the exception of the ability to pass laws pertaining to religion. Assume moreover that Regina is not authorized to enforce any laws that fall outside the purview of her legislative authority or to render judgments based on such laws. The seeds of constitutionalism as it has come to be understood in Western legal philosophy are present here.
In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty (e.g., Rex) versus that of sovereignty limited by the terms of a social contract containing substantive limitations (e.g., Regina). But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself. But no one can “command” himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle. Though this feature of Austin’s theory has some surface plausibility when applied to the British Parliamentary system, where Parliament is often said to be “supreme” and constitutionally unlimited, it faces obvious difficulty when applied to most other constitutional democracies such as one finds in the United States and Germany, where it is clear that the powers of government are legally limited by a constitution. Austin’s answer was to say that sovereignty may lie with the people, or some other person or body whose authority is unlimited. Government bodies — e.g., Parliament or the judiciary — can be limited by constitutional law, but the sovereign — i.e., “the people” — remains unlimited. Whether this provides Austin with an adequate means of dealing with constitutional democracies is highly questionable. For Austin’s sovereign is a determinate individual or group of individuals whose commands to others constitute law. But if we identify the commanders with “the people”, then we have the paradoxical result identified by H.L.A. Hart — the commanders are commanding the commanders. In short, we lapse into incoherence.
In India, constitutionalism is considered to be a natural corollary to the fundamental governance of the country.
The Constitution of India with the aid of various legislations has developed a detailed and robust mechanism to put into place administrative mechanisms for the smooth functioning of the machinery of governance.
However, due to a variety of factors, the distance between the government and the governed has been growing with every passing year. The rich are getting richer and the poor have resigned to their fates, areas which were backward sixty years ago remain as such.
The concept of constitutionalism has been recognised by the Supreme Court in Rameshwar Prasad v. Union of India. The Court stated, “The constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”
In IR Coehlo Vs. State of Tamil Nadu, the Court held that Constitutionalism is a legal principle that requires control over the exercise of governmental power to ensure that the democratic principles on which the government is formed shall not be destroyed. Chandrachud, CJ, in Minerva Mills case observed, – “The Constitution is a precious heritage and, therefore, you cannot destroy its identity”.
Principles of Constitutionalism:
Separation of Powers
Separation of powers divides the mechanism of governance into three branches i.e., Legislature, Executive and the Judiciary. This not only prevents the monopolization of power, but also creates a system of checks and balances. As this division of powers is in the Constitution itself, this becomes an effective tool for ensuring Constitutionalism.
Responsible and Accountable Government
In a democratic setup, the government is elected so that it can serve the people who help elect it. It is in this sense that the electors have a right to demand accountability and answers from their government. Therefore, when the government fails the expectations of the electorate, the authorization to govern is revoked by voting them out.
Popular Sovereignty
The concept of popular sovereignty lays down that the government derives its legitimacy from the people. No corporate body, no individual may exercise any authority that does not expressly emanate from it. Even though there is a certain sovereign entity that is empowered to govern, ultimate sovereignty resides in the nation. The power of such a sovereign entity emanates from the public.
Rule of Law
The presence of rule of law means that the government does not belong to men but to the laws. Dicey lays down three essential components of Rule of Law:
Nobody is to be punished except for a specific breach of law that is established in an ordinary legal manner before ordinary courts of law.
No one is above the law.
Courts play a vital role in protecting the rights and freedoms of an individual.
Independent Judiciary
The independence of the Judiciary is the essence of any liberal democracy and the foundation of a free society. The Judiciary is the upholder of Rule of law and if its independence is taken away, it puts the entire rule of law in jeopardy. The Constitution also envisages the separation of the judiciary from the Executive under Article 50.
Individual Rights
The rights of the individual shall be at the highest pedestal for constitutionalism to thrive. The constitutional setup in India gives these rights the importance that they deserve by engraving them in Part III of the Constitution. These individual rights have not only been protected by the courts but have also been interpreted in a manner where their effect and implementation has broadened. The enforcement of these rights is ensured by the Constitutional Courts i.e. the Supreme Court and the High Courts.
Civilian control of the military
Apart from these features, constitutionalism envisages that the control of the military should be in the hands of a civilian government so that the military does not interfere in the democratic decision making or attempt a military coup.
Police Accountability
Constitutionalism also envisages that police while performing its duties shall uphold the rights, freedoms and dignity of the individuals, the same can be ensured by bringing the police under the control of laws and courts.
Conclusion
All thriving democracies have a constitutionalism concept that has been around for a while. However, governments have learnt over time to use the resources of the state for their own gain rather than that of the people. The government has tainted the policymaking process, whose main goal is the welfare of the greater public, by allowing backdoor access to corporate interests in decision-making. The very law that was passed to protect people’s rights is now being utilized to repress and deprive them of their rights.
One party cannot unilaterally decide to walk out of a marriage and then seek divorce on the ground that they had been living separately, the Court said.
The Kerala High Court on Tuesday [18/10/23] held that a wife not preparing food for her husband due to a lack of cooking skills cannot be termed as cruelty for the purpose of dissolving a marriage.
A Bench of Justices Anil K Narendran and Sophy Thomas made the observation while dismissing a petition filed by a man seeking divorce on the ground of cruelty.
One of his allegations against his wife was that she was not ready to cook for him since she didn’t know how to cook.
The Court, however, held,
“Another ground of cruelty urged by the appellant is that the respondent did not know cooking and so she did not prepare food for him. That also cannot be termed as cruelty sufficient enough to dissolve a legal marriage.”
The parties were married on May 7, 2012 and were living as husband and wife in Abu Dhabi.
The husband contended that the wife insulted and ill-treated him in the presence of his relatives. He added that she never respected him and kept a distance from him. He also claimed that she spat on him once, although she apologised later.
He further contended that she sent a complaint to the employer of the company where he was working, making defamatory statements against him in order to terminate his employment.
He said that she was not ready to cook food for him and even quarreled with his mother for silly reasons.
The wife opposed all the allegations and contended that her husband had sexual perversions and even body-shamed her.
She said that her husband has mental health problems and had discontinued the medicines prescribed to him.
On the husband’s allegation that she contacted his employer, she explained that she was seeking the employer’s help to patch things up with her husband as she intended to continue her matrimonial life with him.
The High Court noted that the wife expressed her anxiety about the behavioral changes seen in her husband and was seeking the assistance of his employer to find out what was wrong with him, in order to bring him back to normal life.
It added that there was no evidence to prove the allegation that she spat on her husband.
On the ground that the marriage was ‘dead practically and emotionally,’ and that the parties had been living separately for ten years, the Court said,
“So legally, one party cannot unilaterally decide to walk out of a marriage, when sufficient grounds are not there justifying a divorce…saying that due to non-co-habitation for a considerable long period, their marriage is dead practically and emotionally. No one can be permitted to take an incentive out of his own faulty actions or inactions.”
Therefore, the High Court dismissed the husband’s petition to dissolve the marriage.
Advocate’s Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy.
Advocate’s Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy. To this end, we aim to create a repository of columns on the essentials of court practice – ranging from civil suits to criminal trials, from ADR procedures to enforcement of decrees and judgments, and more.
The guest columns in the series aim to develop a conversation channel with seasoned practitioners, senior advocates, arbitrators and judges.
India’s courts are characterised by a deluge of cases and a lack of timely judicial appointments. The ground situation illustrates the need to demarcate the jurisdiction of courts according to territory, monetary value of claims and subject-matter of the dispute.
When it comes to adjudication, two distinct problems arise. First, depending on where the court is situated, it will cause grave inconvenience and prejudice to litigants located far away from the court in raising their claims and filing suits in time. Second, given the court’s overloaded mandate, it will have to make judgment calls in prioritising some disputes over others. And in this exercise, it will be making value-laden assessments that will directly clash with the judiciary’s role of dispensing justice fairly and equally.
Jurisdiction, therefore, is a concept that is premised on ensuring efficiency and expedition of dispute resolution. By demarcating courts on the basis of geography, monetary value and subject matter, the civil justice system can prioritise its fundamental goals of equity-based justice and finality of adjudication. Equally, it prevents unscrupulous litigants from raising meritless claims, by providing for such suits to be dismissed on the ground of lack of jurisdiction itself.
Institution of a suit and jurisdiction – relevant provisions of the CPC
Section 9 of the Code of Civil Procedure (CPC) is the provision that demarcates the jurisdiction of courts for adjudicating civil disputes. It empowers courts to adjudicate all civil suits, with two qualifying criteria. Firstly, the suit must be of a civil nature. In effect, this qualifier restricts the court to adjudicate rights belonging to an individual or an entity’s interest over property, under contract, or in law generally, that arise out of a civil relationship. However, is some crimiinal cases, the jurisdiction of the court under Section 9 is not completely barred, if there is a dispute of a civil nature within the broader criminal action claims.
The second qualifier is in respect of suits for which the court is either explicitly or implicitly barred from taking cognizance. This qualifier arises in situations where specific statutes or rules provide for tribunals or quasi-judicial bodies under the said statute/rules to adjudicate claims, and expressly exclude the jurisdiction of civil courts. An implicit exclusion would arise in situations where a particular relief or performance can only be claimed/enforced in a specified manner, and the jurisdiction of a court exercising ordinary civil jurisdiction would be barred in such instances.
The hierarchy of civil courts is enshrined in Section 15 of the CPC, which states that every civil suit shall be instituted in the court of the lowest grade competent to try the same. The civil justice system hierarchy is usually established through state legislation. For instance, in Karnataka, the Karnataka Civil Courts Act, 1964 lays down the class and establishment of civil judges in the State, their territorial and pecuniary jurisdiction, and the powers of district judges to hear appeals from the decisions of civil judges. In Delhi, the Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012 provides for the hierarchy chart.
Under the broader umbrella of Section 9, the CPC provides for suits to be delineated based on subject-matter, territory and pecuniary limits. Under the CPC, subject-matter jurisdiction flows from Section 9, and is more specifically described within Section 16. In Section 16, interestingly, subject matter and territorial jurisdiction amalgamate to an extent, since the Section grants jurisdiction to the court having jurisdiction over the local limits of the area where the property is located, over suits for recovery of immovable and movable property, partition, foreclosure etc. It further provides that where the relief can be obtained through the defendant’s personal obedience, the suit can also be instituted in a jurisdiction where the defendant resides or carries on business.
Therefore, in respect of immovable property, jurisdiction is usually vested in a court which is located and exercises jurisdiction over the local limits of where the disputed property is located. Section 18 further provides that where the local limits of where the property is located are uncertain, the court which is seized of the matter can record the said uncertainty and proceed to entertain and dispose of the suit. Section 18 illustrates the legislature’s goal of attaining finality in proceedings under the CPC, and in providing quietus to a dispute instead of allowing a jurisdictional obstacle from becoming a permanent roadblock to a party seeking justice.
Where multiple courts can exercise jurisdiction over a civil suit – which often is the case for suits involving money recovery, partition suits etc – the choice of institution of the suit is left to the plaintiff, who is the dominus litis (master of the case). The doctrine of dominus litis is premised on the principle that the plaintiff of the suit is the party who benefits from a favourable order, and suffers the consequences of an adverse order equally (including the expenses arising out of it). As a result, in a case where multiple courts have jurisdiction, the plaintiff makes the choice to institute the case in a particular court, which is also recognised in section 19 of the CPC.
Before we delve into the concept of cause of action, and how different courts exercise jurisdiction based on where the cause of action arose, we will end this section of the column by covering the area of pecuniary jurisdiction. Section 6 of the CPC further recognises the priority of State legislation in this regard by stating that nothing in the Code shall grant jurisdiction to courts over claims which exceed its pecuniary jurisdiction. It also gets a nod in Section 16 of the CPC, which qualifies subject-matter jurisdiction under the Section with the court’s pecuniary limits to adjudicate such suits. While the right to value a claim is the prerogative of the plaintiff, the Supreme Court in Tara Devi Vs. Thakur Radha Krishna Maharajhas held that such a right is not absolute, and the valuation of the suit should not be absolute or arbitrary to deny a court jurisdiction which it validly has under the CPC.
Courts of small causes are also established in different states for suits which have a low monetary value. For instance, under the Karnataka Small Cause Courts Act ,1964, the pecuniary limit for a court of small causes in Bangalore is ₹2 lakh, whereas it is ₹1 lakh for other areas in the State. In Delhi, under the Provincial Small Cause Courts (Delhi Amendment) Act, 1995, the pecuniary limit for a court of small causes under Section 15 is ₹5,000.
Cause of action and res judicata
Section 20 CPC introduces the concept of cause of action. A cause of action in respect of a suit is essentially its raison d’etre – the factual circumstances which led to the dispute arising between the parties. Section 20(c) provides jurisdiction to the court which is located in the local limits of where the cause of action, “wholly or in part”, arises. The phrase “wholly or in part” is an important qualifier. The Supreme Court, in South East Asia Shipping Vs. Nav Bharat Enterprises, has held that cause of action is essentially a bundle of facts which led to the genesis of the dispute, and to the plaintiff obtaining a right in law to approach the court for legal redress. The cause of action, therefore, necessarily includes an act of the defendant, in the absence of which the suit itself could not possibly exist. Mentioning the cause of action in pleadings is also a non-derogable prerequisite under the CPC, with Order II Rule 2 and Order VII Rule 1.
A cause of action can, by its very nature, arise in different places. More so, it can arise as a result of the actions of multiple parties. In such situations, Section 20(a) and (b) follows from the doctrine of dominus litis and allows for courts in the jurisdiction of the place where any of the defendants either resides, carries on business or works for gain to adjudicate such suits. However, a defendant is also empowered to seek transfer of such a suit to a separate court (which also exercises jurisdiction as per section 20) after it receives notice and before the settlement of issues.
As can be seen from the provisions and powers of the court described above, the CPC is premised on ensuring that the civil justice system does not cause prejudice to either party in instituting or defending against valid and determinable civil claims. And in this endeavour, the recognition of the principle of res judicata under Section 11 of the CPC becomes key. While Section 21 of the CPC allows for parties to raise jurisdictional objections which are to be decided by the court of first instance at the earliest possible opportunity, res judicata is attracted in a situation when a party, which has raised and contested the same claims in a previous suit – and has lost – raises such claims against the same parties in a different suit. Res judicata prevents litigants from reagitating lost claims in law, and preventing re-adjudication of disputes to which the appropriate jurisdictional court has already applied its mind to, and decided the claims finally.
The Supreme Court in Isher Singh Vs Sarwan Singh held that once the requirements under Section 11 of the CPC are met, and it can be assessed that the matter in both suits was directly and substantially the same based on a reading of the pleadings, issues and the court’s final judgment, the bar under Section 11 would squarely apply.
Changes brought by the Commercial Courts Act 2015
After the introduction of the Commercial Courts Act in 2015, a number of important changes have taken place in the institution of civil suits under the CPC. For instance, in terms of subject-matter jurisdiction, the Commercial Courts Act defines ‘commercial disputes’ in Section 2(1)(c) of the Act, over which commercial courts exercise exclusive jurisdiction. Section 2(1)(c) covers a broad range of disputes, ranging from ordinary transactions between merchants and bankers to franchising and partnership agreements, and over any other dispute which is notified by the Central government.
The Act also specifies the pecuniary jurisdiction for commercial courts, which is set at a minimum value of ₹3 lakh under Section 2(2)(i) – which defines the term ‘specified value’ of a commercial dispute – and Section 3(1). The Act provides for determination of the ‘specified value’ under Section 12, to ensure the fair and accurate valuation of the commercial suit’s value.
Lastly, depending on whether the High Court of the State where the Act is being applied exercises ordinary original civil jurisdiction, the Commercial Courts Act has established separate hierarchical commercial court systems. Such courts, like the Delhi High Court, have a Commercial Division and a Commercial Appellate Division.
For High Courts that do not exercise such jurisdiction (such as Karnataka), the Commercial Courts are set up at the civil/district judge level, with the district court and High Court having Commercial Appellate Divisions.
The concept of legal education is broad. It encompasses the profession that is exercised in a court of law, as well as administration in several fields where law is essential. It promotes equality before the law. Legal education means developing skills and gaining knowledge in the field of law that also includes socio-culture education. For almost six decades, the idea of legal education has always been emphasized by the government. This emphasis can be witnessed through the setting up of the various legal institutions and government legal authorities governing legal education such as the University Grants Commission (UGC), The Law Commission and the Bar Council of India (BCI). The Supreme Court appointed a three-member committee and National Information Commission which advocated for legal education reforms, some of which have been implemented and others that are still in the works. It is, however, vital to comprehend the instructional methods used in Indian legal education.
The origins of modern legal education in India can be traced back to colonial times. The Bar Council of India regulates the legal education curriculum in both private and public educational institutions. The BCI provides two options for obtaining a law degree and then enrolling with either the State Bar Council or the Central Bar Council. The two degrees laid by the Bar Council of India are as follows:
Pursuing a three year LLB programme that requires a bachelor’s degree.
Pursuing a five year BA LLB/BBA LLB/B.Sc. LLB programme that begins right after high school.
Law students must take the Common Law Admission Test (CLAT), to get admission to the famous National Law Universities (excluding NLU Delhi). Students applying for the Delhi National Law University must take the All India Law Entrance Test (AILET). Rankings based on exam scores decide a student’s acceptance into these universities. Other colleges and universities secure student entrance by administering the Law School Admission Test (LSAT) or their private tests. With these components for admission to law school, it is important to investigate the varied pedagogical methods used by the majority of these legal institutions around the country.
PEDAGOGICAL TECHNIQUES
The three basic pedagogical techniques that are used to deliver legal education in Indian law schools. Those pedagogical techniques have been discussed as:
1. The Lecture Method:
The lecture method is a teacher-led, information-focused methodology in which the teacher serves as the sole guide within the classroom. The students, in this method essentially act as a passive listeners because the teacher is the only one who speaks in this method. It is commonly used by professors when dealing with legal terminology or explaining a legal theory or notion to the students. In law schools, it is the most commonly employed pedagogical method.
2. The Case Method:
The case method is also known as case-based pedagogy, which is used for helping students to enhance their ability to solve problems by applying legal knowledge, principles, ideas, and skills. These case scenarios could be made up or real. One of the evident examples of this method can be seen in almost every law school where the students are asked to read and debate the landmark case of KM Nanavati v. State of Bombay[1], which eloquently deals with the topic of a grave and sudden provocation, as part of the broad exclusions for the act of murder under Sec. 300 of the Indian Penal Code.
3. The Seminar Method:
The Seminar method is a kind of organization of the class which uses a scientific approach to analyse a problem that has been picked for discussion. It is a discussion-based teaching technique in which a small group of learners (no more than 25) work together to solve problems using the legal approach and analysis. It varies from the intellectual initiative because it is an organised, supervised discussion with the focus on the finding of new relationships by the participants. In the seminar, the student takes an active role. The use of this pedagogy technique has widely increased as it has been employed by legal educational establishments because of the recent ongoing COVID-19 epidemic.
Aside from that, the legal curriculum also includes several extracurricular activities in which students are expected to participate regularly, such as:
4. The Moot Court Competition
A type of mock court, similar to a court process, is used mostly in institutions and colleges where the law is taught as a subject to assess a student’s ability to defend a legal position according to their legal knowledge. A proper court scenario is created in which the students act as the counsels, for each side (Plaintiff and Defendant) on the analysis of evidence and substantive legal issues, arguing against each other to prove their point before the judge, who will then render his judgement in the same regard and declare the winner who has performed the best based on their legal understanding and analytical skills.
5. The Client Counselling
It promotes the experience and the participation of law students in the legal profession’s counselling function and the preventative law. It also develops the interviewing, organising, and analytical abilities that a lawyer requires when dealing with their clients one-on-one.
6. The Internships
A law firm internship is aimed to provide useful insight and real experience into the professional life of attorneys and judges to law students. They conduct research and create memos, handle case files, file and copy documents, attend client meetings, and attend trials, hearings, and arguments, among other things. It exposes law students to a wide range of individuals and situations. It assists law students in developing the skills required of a lawyer.
With the current legal curriculum in place, several mandatory adjustments must be implemented in order to improve legal education discourse in Indian institutions.
REFORMS IN INDIAN LEGAL EDUCATION
From the viewpoint of a student pursuing legal education currently, I would like to suggest certain reforms that are necessary for a better dispensing of the legal curricula in legal education. These are as follows –
Reforms to improve the format of legal curricula so that students’ primary focus shifts from maintaining grades to learning how to apply the law in real-life situations. This can be accomplished by including legal theory-focused field trips that are not counted as internships.
The introduction of law as a subject at the higher secondary level to ensure that students of all streams have a basic understanding of how the law works, because, in my opinion, a basic understanding of how the law works is necessary for all, regardless of the streams chosen by students pursuing other degrees. This will also lead to a better understanding of the functionality of the Indian Judiciary among society.
Introducing Moot Court and Client Counselling in the standard legal curricula on the regular basis of Indian legal schools to assist students in developing the skills necessary for practical application of the law.
Incorporating more case-based teaching into the standard curricula to help law students have a better understanding of the law.
More emphasis should be placed on research-based activities such as fact-finding missions done by law students.
Students should be given a forum by legal educational institutions to publish their research papers.
CONCLUSION
In conclusion, I would like to stress that the rule of law is the foundation of our civilization, and it is seen as a key medium for any type of revolution in our society because it is the only field that studies culture and its problems. Legal education has improvised in various ways in the previous decade, but there are still certain improvements that need to be made in order for it to be successful and justice-oriented.
Chhattisgarh High Court made the observation while setting aside a family court’s decision to allow a man to present phone conversations with his wife as part of evidence in a maintenance case.
The Chhattisgarh High Court recently held that recording phone conversations with persons without their knowledge and consent violates their right to privacy as enshrined in Article 21 of the Constitution of India.
Justice Rakesh Mohan Pandey made the observation while setting aside a family court’s decision to allow a man to present phone conversations with his wife as part of evidence in a maintenance case.
The High Court observed that when a husband records a wife’s conversations without her consent or knowledge, it would amount to a breach of her rights to privacy.
“It appears that the respondent has recorded the conversation of the petitioner (wife) without her knowledge behind her back which amounts to violation of her right to privacy and also the right of the petitioner guaranteed under Article 21 of the Constitution of India,” the October 5 order stated.
By way of background, the wife had filed a plea for maintenance before a family court. During these proceedings, the husband submitted an application under Section 311 (power to summon material witness, or examine person present) of the Code of Criminal Procedure (CrPC) to produce certain mobile phone conversations with his wife that he had recorded.
The husband sought to cross-examine his wife on these conversations by getting them admitted as evidence in the family court.
The family court allowed the husband’s application. Aggrieved by the family court order, the wife moved a plea in the High Court seeking to overturn the same.
The wife’s counsel contended before the High Court that admitting the phone conversations would amount to a breach of her right to privacy.
The lawyer further argued that the husband had recorded these phone conversations without the wife’s knowledge. Therefore, these conversations were not admissible as evidence against the wife, it was asserted.
The husband’s counsel countered that he wished to present specific evidence to support his allegations against the wife. It was argued that the husband has a right to confront the wife with such evidence.
The Court, however, was not convinced by the husband’s stance in the matter.
“The Right of Privacy is an essential component of right to life envisaged by Article 21 of the Constitution, therefore, in the opinion of this Court, the learned Family Court has committed an error of law in allowing the application under Section 311 of the CrPC along with the certificate issued under Section 65 of the Indian Evidence Act. Accordingly, the order passed by the learned Family Court on 21.10.2021 in Case No. F118/2019 is hereby set-aside,” the Court held.
The Court also relied on number of judgments on related issues including the Supreme Court judgment in PUCL v Union of India (the phone tapping case) wherein it was held that,
“Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
The High Court proceeded to set aside the family court order under challenge and allowed the wife’s petition.
Abusing police over phone does not amount to offence of obscenity under Section 294 IPC: Kerala High Court. The Court made the observation while quashing a criminal case filed against a 51-year-old woman who was accused of using abusive language while speaking to a Station House Officer over the phone.
Using abusive words over a phone call to the police would not amount to the offence of obscenity under Section 294(b) of the Indian Penal Code (IPC), the Kerala High Court recently held.
Justice PV Kunhikrishnan made the observation while quashing a criminal case filed against a 51-year-old woman (petitioner) who had allegedly used abusive language while speaking to a Station House Officer over the phone.
“Here the prosecution alleged that the petitioner, a 51-year-old citizen, used abusive language to the Station House Officer of Alappuzha North Police Station over the phone. Even if the entire allegation in the final report is accepted, I am of the considered opinion that the offences under Section 294(b), Section 506(i) of IPC, and Section 120(o) of the Police Act are not made out in this case,” the Court said.
The case was filed after the woman contacted the Station House Officer of Alappuzha North Police Station. The police officer claimed that the accused woman used abusive language during three phone calls made by her to the police officer.
For her alleged conduct, the woman was charged with the offences punishable under Sections 294 (b) (singing, reciting or uttering any obscene song, ballad, or words in or near any public place), and 506 (criminal intimidation) of the IPC, apart from Section 120(o) of the Police Act.
The woman, on the other hand, maintained that it was a false case foisted on her and that she had only called the police official to ask him for an update on a noise pollution complaint she had made earlier.
She counter-alleged that the police officer had verbally abused her when she asked for this update. Further, she also filed a complaint against the police official over the incident.
JusticeKunhikrishnan relied on the case of James Jose v. State of Kerala to hold that the alleged incident and the words used by the accused woman over the phone, even if it is assumed the allegations are true, would not constitute obscenity under Section 294(b) of the IPC.
“Admittedly the allegation is that the petitioner contacted the defacto complainant over phone and used abusive language. Even if the petitioner used abusive words over phone, that would not attract an offence under section 294(b) IPC,” the Court said.
The High Court was further of the prima facie opinion that the criminal case was registered against the woman as a counterblast to the complaint filed by her against the police official.
The Court, therefore, quashed the case. Further it also directed the District Police Chief to conduct an enquiry into how the criminal complaint was filed against the petitioner-woman.
“In the normal course, such an incident is unbelievable in our society. Citizens always respect the police authorities. Therefore, the District Police Chief should conduct an enquiry about the registration of this case against the petitioner and if there is any default on the part of the defacto complainant, appropriate steps should be taken in accordance with law,” the Court ordered.
Kerala High Court held in this case Litigants need not argue their case before court with tears and folded hands; judges are not Gods. Justice Kunhikrishnan said that even though a court of law is known as a temple of justice, there are no Gods on the bench requiring any obeisance from lawyers or litigants apart from maintenance of decorum.
Justice PV Kunhikrishnan made the observation after a litigant argued her case with folded hands and tears in her eyes.
Justice Kunhikrishnan said that even though a court of law is known as a temple of justice, there are no Gods on the bench requiring any obeisance from lawyers or litigants apart from maintenance of decorum.
“First of all, no litigant or lawyer need to argue their case with folded hands before a court of law because it is their constitutional right to argue a case before a court of law. Usually the court of law is known as ‘temple of justice’. But there is no god sitting in the bench. The judges are doing their constitutional duties and obligations. But the litigants and lawyers should keep the decorum of the court while arguing the case,” the Court’s order stated.
The litigant, Ramla Kabeer, was before the court in person to quash a first information report (FIR) registered against her alleging offences punishable under Sections 294(b) (singing, reciting, or uttering obscene song or words in or near a public place), 506(i) (criminal intimidation) of Indian Penal Code (IPC) and Section 120(o) of the Kerala Police Act.
The allegation was that Kabeer repeatedly telephoned the Circle Inspector of Police at North Police Station, Alappuzha and threatened him using abusive words.
Kabeer told the High Court that it was a false case that was foisted on her by the police. She said that she had filed a police complaint against a prayer hall being used in a manner that was causing noise pollution in the area. The circle inspector was directed to conduct an inspection and when Kabeer called him to know of the progress, the police officer verbally abused her over the phone, she alleged.
She then filed a complaint before the Police Complaints Authority as well as Inspector General of Police against the conduct of the circle inspector. She submitted that the case against her was a counter-case filed by the circle inspector.
After hearing the arguments and going through the final report, the Court took the prima facie view that the offences alleged were not made out. Therefore, it quashed the case against Kabeer.
Part IA, inserted in the Amendment Act, 2019, deals with the Arbitration Council of India. Section 43A of the Act contains definitions of terms used in Part IA such as Chairperson, Council and Member. Establishment and incorporation of the Arbitration Council of India Section 43B empowers the Central Government to establish the Arbitration Council of India to perform the duties and discharge the functions under the Arbitration Conciliation Act, 1996. The Council shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to enter into contract, and shall, by the said name, sue or be sued. The head office of the Council shall be in Delhi. The Council may, with the prior approval of the Central Government, establish offices at other places in India.
Composition of Council According to Section 43C of the Act, the Council shall consist of the following Members, namely:–– (a) a person, who has been, a Judge of the Supreme Court or, Chief Justice of a High Court, a Judge of a High Court or an eminent person, having special knowledge and experience in the conduct or administration of arbitration, to be appointed by the Central Government in consultation with the Chief Justice of India–Chairperson; (b) An eminent arbitration practitioner having substantial knowledge and experience in institutional arbitration, both domestic and international, to be nominated by the Central Government–Member; (c) an eminent academician with experience in research and teaching in the field of arbitration and alternative dispute resolution laws, to be appointed by the Central Government in consultation with the Chairperson–Member; (d)Secretary to the Government of India in the Department of Legal Affairs, Ministry of Law and Justice or his representative not below the rank of Joint Secretary–Member,ex-office (e) Secretary to the Government of India in the Department of Expenditure, Ministry of Finance or his representative not below the rank of Joint Secretary– Member, ex-official; (f) one representative of a recognised body of commerce and industry, chosen on a rotational basis by the Central Government–Part-time Member; and (g) Chief Executive Officer-Member-Secretary, ex officio. The Chairperson and Members of the Council, other than ex officio Members, shall hold office as such, for a term of three years from the date on which they enter upon their office. Chairperson or Member, other than ex officio Member, shall not hold office after he has attained the age of seventy years in the case of Chairperson and sixty-seven years in the case of Member. The salaries, allowances and other terms and conditions of the Chairperson and Members as may be prescribed by the Central Government. The Part-time Member shall be entitled to such travelling and other allowances as may be prescribed by the Central Government.
Duties and functions of the Council
Section 43D provides that it shall be the duty of the Council to take all such measures as may be necessary to promote and encourage arbitration, mediation, conciliation or other alternative dispute resolution mechanisms and for that purpose to frame policy and guidelines for the establishment, operation and maintenance of uniform professional standards in respect of all matters relating to arbitration. For the purposes of performing the duties and discharging the functions under this Act, the Council may— (a) frame policies governing the grading of arbitral institutions; (b) recognise professional institutes providing accreditation of arbitrators; (c) review the grading of arbitral institutions and arbitrators; (d) hold training, workshops and courses in the area of arbitration in collaboration with law firms, law universities and arbitral institutes; (e) frame, review and update norms to ensure a satisfactory level of arbitration and conciliation; (f) act as a forum for the exchange of views and techniques to be adopted for creating a platform to make India a robust centre for domestic and international arbitration and conciliation; (g) make recommendations to the Central Government on various measures to be adopted to make provision for easy resolution of commercial disputes; (h) promote institutional arbitration by strengthening arbitral institutions; (i) Conduct examination and training on various subjects relating to arbitration and conciliation and award certificates thereof; (j) establish and maintain a depository of arbitral awards made in India; (k) make recommendations regarding personnel, training and infrastructure of arbitral institutions; and (l) Such other functions as may be decided by the Central Government. Vacancies, etc., not to invalidate proceedings of Council Section 43E states that no act or proceeding of the Council shall be invalid merely by reason of— (a) any vacancy or any defect, in the constitution of the Council; (b) any defect in the appointment of a person acting as a Member of the Council; or (c) any irregularity in the procedure of the Council not affecting the merits of the case.
Resignation of Members
According to Section 43F, the Chairperson or the Full-time or Part-time Member may, by notice in writing, under his hand addressed to the Central Government, resign his office. Provided that the Chairperson or the Full-time Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is earlier.
Removal of Member
Section 43G (1) provides that the Central Government may, remove a Member from his office if he–– (a) is an undischarged insolvent; or (b) has engaged at any time (except Part-time Member), during his term of office, in any paid employment; or (c) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or (e) has so abused his position as to render his continuance in office prejudicial to the public interest; or (f)has become physically or mentally incapable of acting as a Member. According to Section 43G(2) Notwithstanding anything contained in sub-section (1), no Member shall be removed from his office on the grounds specified in clauses (d) and (e) of that sub-section unless the Supreme Court, on a reference being made to it on this behalf by the Central Government, has, on an inquiry, held by it in accordance with such procedure as maybe prescribed on this behalf by the Supreme Court, reported that the Member, ought on such ground or grounds to be removed. Appointment of experts and constitution of Committees thereof Section 43H provides that the Council may, appoint such experts and constitute such Committees of experts as it may consider necessary to discharge its functions on such terms and conditions as may be specified by the regulations.
General norms for grading of arbitral institutions Section 43-I states that the Council shall make grading of arbitral institutions on the basis of criteria relating to infrastructure, quality and calibre of arbitrators, performance and compliance with time limits for disposal of domestic or international commercial arbitrations, in such manner as may be specified by the regulations. Norms for accreditation Section 43J provides that the qualifications, experience and norms for accreditation of arbitrators shall be such as specified in the Eighth Schedule. It may be noted that the Central Government may, after consultation with the Council, amend the Eighth Schedule and thereupon, the Eighth Schedule shall be deemed to have been amended accordingly. According to the ‘Eighth Schedule of the Act, a person shall not be qualified to be an arbitrator unless he— (i) is an advocate within the meaning of the Advocates Act, of 1961 having ten years of practice experience as an advocate; or (ii) is a chartered accountant within the meaning of the Chartered Accountants Act, 1949 having ten years of practice experience as a chartered accountant; or (iii) is a cost accountant within the meaning of the Cost and Works Accountants Act, 1959 having ten years of practice experience as a cost accountant; or (iv) is a company secretary within the meaning of the Company Secretaries Act, 1980 having ten years of practice experience as a company secretary; or (v) Has been an officer of the Indian Legal Service; or (vi) has been an officer with a law degree having ten years of experience in legal matters in the Government, Autonomous Body, Public Sector Undertaking or at a senior level managerial position in the private sector; or (vii) has been an officer with an engineering degree having ten years of experience as an engineer in the Government, Autonomous Body, Public Sector Undertaking or at a senior level managerial position in the private sector self-employed; or (viii) has been an officer having senior-level experience in administration in the Central Government or State Government or having experience in senior-level management of a Public Sector Undertaking a Government company or a private company of repute; (ix) is a person, in any other case, having an educational qualification at degree level with ten years of experience in scientific or technical streams in the fields of telecom, information technology, Intellectual Property Rights or other specialised areas in the Government, Autonomous Body, Public Sector Undertaking or a senior-level managerial position in the private sector, as the case may be.
General norms applicable to Arbitrator
the arbitrator shall be a person with a general reputation of fairness, and integrity and capable of applying objectivity in arriving at the settlement of disputes; the arbitrator must be impartial and neutral and avoid entering into any financial business or other relationship that is likely to affect impartiality or might reasonably create an appearance of partiality or bias amongst the parties; the arbitrator should not be involved in any legal proceeding and avoid any potential conflict connected with any dispute to be arbitrated by him; the arbitrator should not have been convicted of an offence involving moral turpitude or economic offence; the arbitrator shall be conversant with the Constitution of India, principles of natural justice, equity, common and customary laws, commercial laws, labour laws, law of torts, making and enforcing the arbitral awards; the arbitrator should possess a robust understanding of the domestic and international legal system on arbitration and international best practices in regard thereto; the arbitrator should be able to understand key elements of contractual obligations in civil and commercial disputes and be able to apply legal principles to a situation under dispute and also to apply judicial decisions on a given matter relating to arbitration; and the arbitrator should be capable of suggesting, recommending or writing a reasoned and enforceable arbitral award in any dispute which comes before him for adjudication.
Depository of awards
According to Section 43K, the Council shall maintain an electronic depository of arbitral awards made in India and such other records related thereto in such manner as may be specified by the regulations. Power to make regulations by Council Section 43L empowers the Council, in consultation with the Central Government, to make regulations, consistent with the provisions of this Act and the rules made thereunder, for the discharge of its functions and perform its duties under the Act. Chief Executive Officer Section 43M states that there shall be a Chief Executive Officer of the Council, who shall be responsible for the day-to-day administration of the Council. The qualifications, appointment and other terms and conditions of the service of the Chief Executive Officer shall be such as may be prescribed by the Central Government. The Chief Executive Officer shall discharge such functions and perform such duties as may be specified by the regulations. There shall be a Secretariat to the Council consisting of such number of officers and employees as may be prescribed by the Central Government. The qualifications, appointment and other terms and conditions of the service of the employees and other officers of the Council shall be such as may be prescribed by the Central Government.
A husband can use RTI to get general information about his wife’s income to check if there’s any evidence against her in a maintenance case.
The CIC recently ordered a CPIO to provide a man with general information about his wife’s net and gross income in order to verify it for a maintenance case. According to the order, Information Commissioner Saroj Punhani pointed out that the CIC had earlier granted a similar request in a case involving Rahmat Bano. So, the CIC decided that the same criteria applied in this case and the man was entitled to the information.
The first appeal was filed on February 16, but it was also denied on the grounds that the Supreme Court had already ruled on the same case in the Supreme Court vs. Central Information Commission and Ors.
The man had submitted an RTI application to the CPIO on 10 October 2022, asking for details about his wife’s gross and net income. The CPIO denied the request on 2 February 2023, citing the restrictions of Section 8(1) (j) of the RTI Act.
The appellant’s wife stated that since such records had already been produced before the civil court in the course of the maintenance case, seeking the information through an RTI application would not serve any public interest.
The CIC acknowledged that the Delhi High Court in VijayPrakash vs. Union of India has observed that in private disputes such as one between a husband and wife, the basic protection afforded by section 8(1)(j) cannot be lifted or disturbed.
It further mentioned that similar facts were used in Madhumala B. R. vs. ACIT, Ward 3(3)(1), Bangalore, where the appellant was refused access to the material because the Karnataka High Court had temporarily suspended the material Commission’s orders to provide it.
The CIC continued, however, by pointing out that in the Rahmat Bano case, a man’s estranged wife was permitted access to his gross income.
In the Rahmat Bano case, the CIC had taken into account decisions rendered by the Madhya Pradesh High Court and the Bombay High Court, it was observed.
The Madhya Pradesh High Court, in a 2018 ruling, had held that while dealing with Section 8(1)(j) of the RTI Act, one cannot lose sight of the fact that the parties are husband and wife and that a wife would be entitled to know what remuneration her husband was getting.
The Bombay High Court, in the same year, ruled that in litigation where the issue involved was the maintenance of a wife, the information relating to the salary details no longer remained confined to the category of personal information.
Applying these rulings to the present case, the CIC proceeded to direct the CPIO to provide the “generic details of the net taxable income or gross income” of the appellant’s wife to the appellant (husband) within 15 days from the date of receipt of the order.
