Dissent on the Collegium?

This story on judicial appointments from the Hindu is amazing. Who is their source? I can't comment on this further because of professional constraints. But, perhaps, others on this blog will. I would like to say, though, that President Kalam's comments on the appointment are really amazing. They show that India's system of checks and balances does function despite the cynicism about it.

Legal Outsourcing to India

Dear Colleagues:

Thanks to Vikram for allowing me take up some of his blog space. I've just posted a paper on SSRN entitled "Outsourcing and the Globalizing Legal Profession." It is forthcoming in the William and Mary Law Review. Here is the abstract:

The issue of outsourcing jobs abroad stirs great emotion among Americans. Economic free-traders fiercely defend outsourcing as a positive for the U.S. economy while critics contend that corporate desire for low wages solely drives this practice. In this study I focus on a specific type of outsourcing, one which has received scant scholarly attention to date - legal outsourcing. Indeed because the work is often paralegal in nature, many see the outsourcing of legal jobs overseas as no different from other types of outsourcing. But by using as my case studies both the United States and India, the latter which is receiving an ever-increasing amount of outsourced American legal work today, I describe how there are many forms to the legal outsourcing model and how this practice can entail a range of legal services.

This article, however, moves beyond providing a descriptive account of legal outsourcing. Legal outsourcing to India is occurring against the backdrop of an Indian legal system in crisis. For those who are fortunate to benefit from legal outsourcing, the pay-offs are indeed rewarding. But most Indians of course are not participants in - nor beneficiaries of - this practice. In fact, in everyday parlance the word 'legal' itself in India is associated with a process that is delay-ridden, backlogged, and unduly expensive. On its face it might seem that legal outsourcing is unconnected to the problems that have long plagued India's legal system. Yet as I will argue, in addition to having an ethical obligation to provide assistance to the legal environment upon which they draw, those engaging in legal outsourcing also have an economic incentive to ensure that India has a better-operating legal system. Thus, as a means of raising much needed revenue to fund its legal reform efforts, India, as I propose, might levy a minimal fee on U.S. legal outsourcers, and as I explain, because strengthening the rule of law is ultimately in their financial interest, these American investors may well accept shouldering such a cost.

To download the article, click on to:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=910338

and scroll down. Comments welcome -- thanks for your time, Jay Krishnan

Justice in A Flat World

An interesting and thoughtful piece by the Union Law Secretary, who was the driving force behind computerising the Law Commission.

http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2006050907171100.htm&date=2006/05/09/&prd=th&

Supreme Court Clerkships in India: A Former Clerk’s Perspective

In this guest note, I hope to give an ‘insider’s perspective’ on judicial clerkships at the Supreme Court of India, since I myself happened to clerk for Justice B.N. Srikrishna during the 2005-6 term of the Court. Disclaimer: I don’t mean this to be some rigorous and scholarly analysis of the clerkship system or anything. The views are mine and mine alone and they are drawn exclusively from open-sources.

The first U.S. Supreme Court clerk came in the 1880s, whereas the first Indian clerk came in the 1990’s (who, I’m guessing is Arun Thiruvengadam, a distinguished contributor to this blog). Nevertheless a comparison between US and Indian Supreme Court clerkships may be interesting. There have been less than a hundred ‘official’ Indian clerks (my own ID showed me as “LC-16”) so the sample is pretty small. Looking at anecdotal evidence from an even smaller sub-set, namely clerks from the National Law School, I believe that certain trends can be seen.

First, applicants tend to usually be from the top 3-15% of their classes (compared with the top 2-5% in the U.S.). However, the Supreme Court allows applicants only from the National Law Schools and ILS Law College Pune whereas in the US there is no such bar. Indeed, recent US Supreme Court clerks are increasingly coming from non-Ivy league schools. Still, even though overall demand outstrip supply of clerkships at the Supreme Court of India (especially, with students from the non-National Law Schools), the gap while not as wide as in the US, is certainly getting larger. Like the U.S. Supreme Court, the Supreme Court of India also seems to be keen to attract the brightest students from the best law schools and this is certainly a forward-looking approach.

Secondly, like in the US, Indian clerks don’t consider the clerkship as a form of employment but as stepping-stone for something else (usually, admission to an international LLM programme or a means of getting genuine litigation exposure). Indeed, among the NLS clerks atleast, there was no shortage of job offers. Among the four Supreme Court clerks from the NLS class of 2005, three had prior offers with law firms (among the best firms in India, Singapore and the U.K.), which they were to join upon completing the clerkship (the fourth law clerk withdrew from the recruitment process specifically to take up the clerkship). All of the firms were extremely encouraging and supportive of the clerkship.

Also, a fairly enlightened approach of the Supreme Court towards clerk-pay is likely to pay dividends in the long-term. The pay-package of Rs. 12000 (all-inclusive) is quite respectable both for a government agency and for an organization that is litigation-oriented (in comparison, in Madras first year associates at good litigation firms start off at Rs.1500 all-inclusive!).

Above all, at least among the NLS clerks, perhaps the major motivation for the clerking its so-called ‘CV-value’. Yet while the clerkship without doubt does enhance one's credentials, it really cant be looked at in isolation. The second motivation is exposure to high quality appellate litigation with view to a career in litigation practice . But crucially, whatever one's motivations, a successful clerkship really hinges on the rapport with the Justice concerned. I was fortunate that my own Justice, B.N. Srikrishna was, extremely supportive of the clerkship institution and ensured that the clerks were made full use of.

Finally, while the comparisons with the successes of former US clerks is premature, comparisons with post-clerkship careers is interestingly similar. Indian clerks, like US clerks have now broken into academe, law firms in India and the US and appellate litigation. (As mentioned already, law firms in India and abroad have been extremely supportive of their prospective associates clerking for a year). The only category we havent yet seen are former clerks becoming judges (although I do know one clerk who was preparing for the subordinate judiciary). Still the blue ribbon test for the Indian clerkship institution is when a former clerk becomes a Justice of the Supreme Court.

Comparative Constitutional Law in South Asia

Here is a link to our comparative constitutional law conference in November.

When Were Unenumerated Rights First Discovered in Article 21?

I found this statement today in P.L. Lakhanpal v. Union of India (AIR 1972 Del.), a judgment by Justice V.S. Deshpande. Does this mean that the expansive view of Article 21 predates Menaka? If that is true, did our Courts adopt the concept of unenumerated rights even before Roe v. Wade in the United States?

After the construction of Article 21 of the Constitution by the majority in Satwant Singh Sawhney v. D. Ramarathnam, the personal liberties protected by Article 21 may be classified into two groups. In the first group would fall the right to be free from wrongful conefinement. In the second group would fall numerous otner personal liberties which are not expressly enumerated in Article 21 but which have been implied therein on the analogy of the 5th and 14th Amendments of the U.S Constitution. The right of a person to travel abroad and
the power of the Legislature and the Government to restrict that right fall in this group.

Annual Review of the Supreme Court

Was directed the Annual Review of the Supreme Court a few weeks ago by a friend (http://www.jstor.org/journals/00819557.html. Unfortunately accessible only to those have a subscription to JSTOR or Athens or such like). Even before browsing its content in great detail am taken by the possibility of doing something along these lines on the Indian Supreme Court. Of course there are journals like the Annual Survey of Indian Law brought out by the Indian Law Institute. However without belittling their contribution to the study of Indian law I am hoping that we can move beyond such efforts by actually generating a body of commentary and scholarship that can enter into a serious dialogue with our courts.
Any ideas/takers?

On Legal Traditions

In a very convoluted way this takes of from Vikram's post on M C Setalvad's Common Law in India and his silence on the Statute of Frauds question. Was reading Harrold Berman's Law and and Revolution II: The impact of the protestant reformation on the western legal tradition (http://www.political-theory.org/books/reviews/berman.html), where Berman mentions in passing the incorporation of the statute of frauds ( in the 1660s) as a rule of the English Common Law courts as it took over the jurisdiction of the prerogative courts of the Stuart-Tudor Monarchy in the thick of the English Revolution (1640-1689).

Anyway all this detail aside, both Setalvad's lecture (of which I have only read a review by Marc Galanter in JSTOR) and Berman's prolific writing on the Western legal tradition have raised a couple of question for me.

1. Why has the approach of studying 'legal traditions' lost steam in the contemporary study of law ?

2. If we were to talk of an 'Indian Legal Tradition' (one presumes that Setalvad despite his love for the mother jurisprudence of the English Common Law was attempting something along these lines) where would we start? What directions would such an enquiry take us?

Any thoughts?

TDSAT's Web Presence

Check out TDSAT's cool new website: http://tdsat.nic.in/ The Tribunal has been posting all its judgments online for some time. But it has also been putting out its orders recently. All this transparency should spur more analysis and critical comment on communications law. But sadly, there isn't much. If you know of any good articles, do let me know. I will gratefully acknowledge.

Re-reading Ram Jawaya Kapoor

I never had the opportunity of reading Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549, in law school. Recently, I had to look at it for one section of my book, and I realized how important this case is. It is actually a fairly brief judgment. Yet, it is an authority for at least three important propositions. First, our Constitution does not embody the full separation-of-powers doctrine, only a separation-of-functions principle. Second, despite what some scholars may tell you, our democracy embodies a parliamentary form of government. Third, the cabinet, formulates all important questions of foreign policy.

I found this passage especially nicely written, although Chief Justice Mukherjea borrows the hyphen-joining-the-buckle metaphor without proper attribution from Walter Bagehot's The English Constitution.

In the Indian Constitution, therefore, we have the same system of
parliamentary executive as in England and the council of ministers, consisting,
as it does, of the members of the legislature is, like the British Cabinet, “a
hyphen, which joins, a buckle, which fastens the legislature part of the State
of the executive part.” The Cabinet enjoying, as it does, a majority in
the legislature concentrates in itself the virtual control of both legislative
and executive functions; and as the Ministers constituting the Cabinet are
presumably agreed on fundamentals and act on the principle of collective
responsibility, the most important questions of policy asre all formulated by
them.

Common Law in India; Statute-of-Frauds Rule

I've been reading Setalvad's Common Law in India. It is so cogently written, and describes our legal system with elegance and modesty. Why did the style of writing die? Actually, the reason I was looking at Setalvad is to understand if our Contracts Act has a statute-of-frauds rule (that something must be in writing for it to be relied on). Setalvad is silent on this point, and I don't have access here to the Mulla Treatise. Does anyone know the answer?

Another 13-Judge Bench?

A friend mentioned to me in Bangalore last month that our Supreme Court has constituted another 13-judge bench to hear a Bombay rent-control case. If this story is true, it will be the first time such a large bench has assembled since the Keshavananda review bench was dissolved by Chief Justice Ray in 1976. Read more about the odd proceedings, which lasted two days, in Baxi's classic, the Indian Supreme Court and Politics.

All Law Commission Reports Available Online

Well, first, I must apologize for not being active on this blog, which I announced with much fanfare. I had too much going on at work, and I'm also under the gun to finish my book. But the more I work on the book, the more I realize how much there is to explore in the fascinating realm of Indian law. So, I hope to be revive our discussion of law and other things.

My post today will be brief. I was online this evening researching a point on government contracts -- for a portion of my book. I went to the Law Commission's website to see if they have issued anything new on the subject. To my surprise, I discovered the Commission has scanned and posted online its entire series of reports. This is quite amazing. As serious students of Indian law know, the Law Commission reports are important summaries and statements of Indian law. They are referred to frequently by our Supreme Court, and they are usually well-written. I've downloaded the first report by M.C. Setalvad. He wrote it, apparently, while in Ooty during his summer vacation. There is a picture in his book, "Law and Other Things" (which is how this blog derives its name). The report is on state liability in torts. I remember reading about it in my first week at law school, but I never actually read the full report. I've recently been re-reading the Privy Council's decision in P.O. Steamship Navigation Company, which is extensively discussed in the report. Students of Indian law will recall that case as among the first ones we learn in law school.

Well, I'm looking forward to reading Setalvad on my trip to Jordan next week. I hope you take a look at some of these reports too. The Law Commission's website is located at
http://lawcommissionofindia.nic.in/. I hope they get to publishing the pre-independence reports too.