Dr. John Varghese

S. 164 Cr.P.C. and Some Challenges

2020-08-15T00:01:00.001-07:00

S. 164 (1) -Note.

S. 164 Cr.P.C reads as follows:

"(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:"

The proviso was added by the Criminal Procedure Code (Amendment) Act, 2008, which came into effect on 31.12.2009.

Understanding the Proviso: The proviso has two aspects: (1) confession or statement made under the subsection may also be recorded by audio-video electronic means (2) in the presence of the advocate of the person accused of an offence.

"May also be recorded by audio video electronic means": One doubt may arise, whether the expression "may also be recorded" means "in addition to" or it is intended to mean "in the alternative". More over there is no clear definition of audio-video electronic means either in Cr.P.C. or in any other statute. Grammatically, and contextually the words "may also" can mean both these expressions. In order to understand the import of the phrase "may also be recorded" we need to examine which all provisions in Cr.P.C. have a similar wording. The proviso to S. 164(1) Cr.P.C. was introduced vide Criminal Procedure Code (Amendment) Act, 2008. The said Act also made similar amendments in S. 161 and S. 275 Cr.P.C.

A tabular comparison of the words in these three sections are as under:

S.161	s.164	S.275
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.	(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:	(1) In all warrant-cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf:
Provided that statement made under this sub-section may also be recorded by audio-video electronic means.	Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:	Provided that evidence of a witness under this sub- section may also be recorded by the audio-video electronic means in the presence of the advocate of the person accused of the offence."

S. 161 Cr.P.C. speaks about "reduce into writing" and "separate and true record", S. 275 Cr.P.C. mentions "take down in writing" and S. 164 Cr.P.C. mentions about "record confession and statement".

A perusal of the object and reasons of the Criminal Procedure (Amendment) Bill, 2006 would show that the purpose of introduction of these provisions are mentioned as follows:

"The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimise the risk of escape of the remand prisoners during transit and also facilitate utilisation of police personnel for other duties."

Viewed in the light of the object of introduction of these proviso, it is cannot be reasonably said that the legislature intended these new provisions to act as additional requirements to the present mode of recording of evidence. These clauses have no application regarding minimisation of risk of escape of remand prisoners and in facilitating utilisation of police personnel for other duties. The only reasonable interpretation is that the purpose of the legislature in introducing this provision was to ensure reduction of delay and increase credibility of evidence recording process by recording evidence with audio video electronic means instead of manually recording the same by pen on paper.

This position is also buttressed by fact that elsewhere in Cr.P.C., where ever, the additional means for enhancing credibility by video recording is required in addition to normal process, the words video graphs have been used. For example, S. 164(5A) second Proviso which reads as follows:

"Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video-graphed."

The other provisions where the words "video-graphed” are used are Ss. 54A¹, S. 154 (1) Second Proviso (b)², Cr.P.C. In all these provisions, the words process shall be video-graphed or recording shall be video-graphed is used. When Cr.P.C. itself uses a distinct term for "video-graphy" in addition to the normal process, it cannot be assumed that the words "audio video electronic means" would mean the same thing.

Further, the enabling section for S. 164(5A) Cr.P.C. is S. 164(1) Cr.P.C. If the words "audio-video electronic means" was used to mean an additional process, then there was no requirement of another provision in S. 164(5A) which requires the statement to be video-graphed".

Another question is whether the words audio video electronic means would mean producing the person through video conferencing. If it be so, then it would mean that only in case where the statement is recorded when the deponent appears before the court through video conferencing, the presence of counsel for the accused is to be ensured. However it can be seen that in S. 167(2) (b)³ Cr.P.C and in Explanation II⁴ to said section, the words either in person or “ through the medium of electronic video linkage” is used to denote production of person through video conferencing. As in the case of the word, “video-graphed”,when Cr.P.C. itself uses the words "medium of electronic video linkage" for production through video conferencing mechanism, there is no reason to assume that "audio-video electronic means" would mean the same as "medium of electronic video linkage" in s. 167 Cr.P.C.

This view is supported by judicial decisions also. The Hon'ble High Court of Utharanchal in Pradhuman Bisht v. State Of Uttarakhand And Another⁵ has considered the scope of the words "audio video electronic means and held held as follows:

"Proviso to sub-section (1) of Section 275 Cr.P.C. was introduced by Act 5 of 2009 w.e.f. 31.12.2009. It says about recording of evidence by audio-video electronic means in the presence of the advocate of the person accused of the offence. The recording of evidence of a witness by audio-video electronic means is discretionary and not mandatory. Moreover, the proviso deals with recording of evidence by audio-video electronic means, and not with video recording and, therefore, learned trial court did not commit any illegality while passing the impugned order, howsoever justified the apprehension or anguish of the accused-applicant might be."(Emphasis supplied).

The Hon'ble Supreme Court also had occasion to consider the term "by audio video electronic means in the presence of counsel for accused" appearing in S. 164(1) Cr.P.C in Manoharan v. State By Inspector Of Police⁶, wherein the three judge bench of Hon'ble Supreme Court, speaking through Jus. Rohington Nariman held as follows:

“The plea regarding absence of a counsel during proceedings before the Magistrate under section 164, CrPC resulting into any prejudice, are misconceived. What mandatorily is needed, as noted earlier, is that the Magistrate must satisfy himself of the voluntariness of the statement and all the statutory safeguards which includes bringing the repercussions and the voluntariness of making confessions to the knowledge of the accused, must be meticulously complied with. It is pertinent to take note of the first Proviso to Section 164(1), added with effect from 31.12.2009, which specifies that:

“Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.” (emphasis supplied)

Section 164 of the Code thus does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s), except, when such confessional statement is recorded with audio-video electronic means."(Emphasis supplied)

These two decisions recognises the discretion of the court to record the statements either in audio-video electronic means or otherwise. From these two decisions, it can seen that the words "audio-video electronic means" is used in S. 164 (1) Cr.P.C. as denoting an alternative mode of recording such statements using pen and paper and not in addition to such recording.

Thus,the words "may also be recorded" is used in the sense"in the alternative" rather than "in addition to". Further, it can be seen that the term audio-video electronic means” does not indicate video-graphing of the normal process or producing the accused through video conferencing mechanism, as distinct terms are used in Cr.P.C. itself to denote such processes was introduced through the same Amendment Act. The said term can only mean recording the statement/depositions with a system which captures audio and video in an electronic means such as using a digital camera which records audio and video on a memory card or a hard disk, creating, processing and storing, the audio and video input and output in an electronic form, instead of writing down the statement or deposition on a paper using a pen.

(2) "in the presence of the advocate of the person accused of an offence.": This brings us to the next question, whether the presence of counsel for the accused is mandatory, if the court opts to record the statement under S. 164 Cr.P.C. by audio video electronic means.

It is pertinent to note that the in the Malimath Committee Report⁷ has recommended as follows:

"Audio/video recording of statements of witnesses, dying declarations and confessions should be authorized by law." and that,

Section 25 of the Evidence Act may be suitably amended on the lines of Section 32 of POTA 2002 that a confession recorded by the Supdt. of Police or Officer above him and simultaneously audio / video recorded is admissible in evidence subject to the condition the accused was informed of his right to consult a lawyer."

The purpose of this recommendation is as given in the report of the committee as follows:

"Frequent changes in statements by the witnesses during the course of investigation and, more particularly, at the trial are really disturbing. This results in miscarriage of justice. Hence, modern science and technology should be harnessed in criminal investigation. Tape recording or video recording of statements of witnesses, dying declarations and confessions would be a meaningful and purposive step in this direction. Unfortunately, the existing law does not provide for it. It is understandable as these facilities did not exist at the time when the basic laws of the land were enacted. Now that these facilities are available to the investigating agency, they should be optimally utilised."

Thus it can be seen that the requirement of presence of counsel for the accused was recommended by this committee only in cases where the confession is recorded by a Superintendent of Police or Officer above him and simultaneously audio/video recorded, and not in other circumstances. In view of the decision of Constitutional Bench of the Hon'ble Supreme Court in Kalpana Mehta and others v. Union of India and others⁸, the report of the parliamentary standing committee can be taken aid of for the purpose of interpretation of a statutory provision, wherever it is so necessary and also can be taken note of as existence of a historical fact. In the One Hundred and Twenty Eighth Report on The Code of Criminal Procedure (Amendment) Bill, 2006 of Department Related Parliamentary Standing Committee on Home Affairs, the Parliamentary Affairs Committee had dealt with the specific amendments in S. 161, 164 and 275 Cr.P.C and in S. 167 Cr.P.C, in the following way:

"4.8.1 It has been proposed in the Bill vide clause 16 that the Magistrates may extend detention of an accused in judicial custody through the medium of electronic video linkages except for the first time where the production of the accused in person is required. Enabling provisions for video recording of statement of witnesses before police and magistrates are also introduced in the Bill vide clause 12, 14 and 27 by inserting new proviso to Section 161, Section 164 and Section 275 of Cr. PC.

4.8.2 Views of Members/witnesses :

(i) Person in judicial custody during video conferencing cannot explain whatever he wants to say had he appeared before the judge;

(ii) Recording of statement through audio/video electronic means can be misused;

(iii) The provision of video linkages should not be implemented unless a foolproof system is in place to ensure that the statement by the witness is made voluntary; and

(iv) An advocate will become a witness if he remains present during video conferencing. Then he cannot appear as an advocate.

Hence, the amendment is totally opposed."

Despite such objections, the Code of Criminal Procedure (Amendment) Act, 2006 was passed into legislation. However these objections are still valid.

Judicial decisions regarding the presence of Advocate during the stage of recording statement of accused under S. 164 Cr.P.C. are sparse. Even though the Hon'ble Supreme Court was seized of this question in Manoharan v. State, By Inspector of Police(Supra), the court only stated that S. 164 Cr.P.C. does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s) except when such confessional statement is recorded with audio video electronic means. What the court was essentially stating is that if the statement or confession under S. 164 Cr.P.C. is recorded by writing with pen on paper, the presence of the counsel for the accused is not mandatory. Before concluding that if the statement of the witness is recorded with audio-video electronic means, the presence of accused is mandatory, we need to understand the legislative history of S. 164 Cr.P.C. The same was discussed in Murugaswamy v. State and Another⁹ as follows:

"Thus, a reading of the provisions of Regulation VI of 1802 and Regulation XI of 1816 shows that the police and the Magistrates were working in tandem in the investigation of offences. On 01.01.1862, the Indian Penal Code, 1861 and the Code of Criminal Procedure, 1861, came into force under which the police and the Magistrates continued to work together in unison. Their functions often overlapped with each other. Hence, the 1861 Code of Criminal Procedure did not make a clear distinction between the terms "statement" and "evidence", as could be seen from the wordings of S.194, which contemplated recording of statement of witnesses in the presence of the accused. Only in the 1872 Code, the presence of the accused for recording the statement of a witness during investigation was dispensed with. In the 1882 Code, S.164 read as under:

"164. Power to record statements and confessions: Any Magistrate not being a police officer may record any statement or confession made to him in the course of an investigation under this chapter, or at any time afterwards before the commencement of the inquiry or trial. "

...Since 1882, in all the subsequent Codes, we have been following the same template upto the present Code, viz., the 1973 Code, of course, with some variations in individual provisions. We are emphasising this to show that after the repeal of the 1861 Code, there has been a slow and steady separation of the police from the Magistracy and after the Constitution of India came into force, in tune with Art.50, the present 1973 Code has completed the separation between the functions of the police and the Magistracy."

Thus, it can be seen that till the Criminal Procedure Code of 1882, the requirement was to record the statement of witnesses in the presence of the accused. The said position, which was altered in 1882 was brought back to the original position by the Criminal Procedure Code(Amendment) Act, 2006. A perusal of the tabular comparison of S. 161, 164 and 275 Cr.P.C. which were introduced by the said Amendment Act would show that the specific requirement under the proviso to S. 164(1) Cr.P.C. is (a) not the presence of the accused but the counsel for the accused and (b) the requirement of presence of counsel for accused is altogether absent in the proviso introduced in S. 161 Cr.P.C.. Comparing S. 164(1) and S. 275 of Code of Criminal Procedure, 1973 with S. 25(1) Proviso¹⁰ to Protection of Children from Sexual Offences Act, 2012,(POCSO Act), it can be seen that the provision which permits the presence of the counsel for the accused at the time of recording of evidence under S. 275 Cr.P.C and also confession and statement under S. 164 Cr.P.C, if done by "audio visual electronic means" is purposefully incorporated. Comparing S. 274 and S. 276 Cr.P.C. with S. 275 Cr.P.C. (where this amendment has been effected) would show that this amendment, including the requirement for presence of counsel for the accused is applicable only in warrant cases tried before a Magistrate and not in inquiries, summons trial or in Sessions trial. Further, an amendment is introduced in S. 242 Cr.P.C. In addition to the requirement under S. 207 Cr.P.C., a new proviso has been added to S. 242 Cr.P.C. which reads as follows:

"Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police."

This would show that the intention of legislature in introducing the amendments in S. 242 and S. 275 Cr.P.C. was to amend the procedure for trial of warrant cases triable by Magistrate alone to ensure a more justiciable approach towards the accused.

However, the amendment to S. 164 Cr.P.C. is in a different footing until one reads S. 164(4) and S. 164(5) Cr.P.C. the relevant portion of which are extracted as follows:

“(4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession;

(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.”

Thus, it can be seen that S.164 (4) and (5) makes a clear distinction between the manner of recording (a) Confessions and (b) Other statements. The manner of recording confession is by following the procedure under S. 281 Cr.P.C. and the manner of recording other statement is in either of the manners provided under S. 274,275 or 276 Cr.P.C.

Confession can be made only by a person accused of an offence. However, in the case of other statements there are two possibilities (a) a statement made by the an accused but not amounting to confession and (b) a statement made by any other witness. So far as the requirement for presence of counsel for the accused is concerned, there would be no confusion in the case of confessions or statement of the accused. Rule 70(6) of Kerala Criminal Rules of Practice,1982 provides that "The Magistrate shall record the Confession or statement of an accused in open court and during court hours save for exceptional purposes.". Thus if the confession or statement of the accused has to be recorded in open court, the presence of the counsel for the accused can also not be disallowed.

However, the rules does not speak about the manner of recording statement of other witnesses. Rule 71 only speaks about how the requisition under S. 164 Cr.P.C.is to be made by Police Officers and Rule 71 (2) speaks about the need for preparing the statement in duplicate,retaining one copy after duly entering the same in Administrative Form no.46. In order to have better clarity regarding the manner of recording statement of other witnesses, it is pertinent to peruse the decision of the Hon'ble Supreme Court in Doongar Singh & Others v. State of Rajasthan¹¹ where in the following directions were issued to the trial courts after finding as follows:

"It is also necessary that the statements of eye - witnesses are got recorded during investigation itself under S.164 of the Cr.P.C. In view of amendment to S. 164 Cr.P.C. by the Act No. 5 of 2009, such statement of witnesses should be got recorded by audio - video electronic means.

(i) The Trial Courts must carry out the mandate of S.309 of the Cr.P.C. as reiterated in judgments of this Court, inter alia, in State of U. P. v. Shambhu Nath Singh and Others, 2001 KHC 377 : 2001 (4) SCC 667 : 2001 (2) KLT 159 : 2001 SCC (Cri) 798 : AIR 2001 SC 1403 : 2001 All LJ 835 : 2001 CriLJ 1740, Mohd. Khalid v. State of W. B., 2002 KHC 1356 : 2002 (7) SCC 334 and Vinod Kumar v. State of Punjab, 2015 KHC 4054 : 2015 (3) SCC 220 : 2015 (1) KHC SN 17 : 2015 (1) KLD 399 : 2015 (1) KLT SN 114 : AIR 2015 SC 1206 : 2015 CriLJ 1442.

(ii) The eye - witnesses must be examined by the prosecution as soon as possible.

(iii) Statements of eye - witnesses should invariably be recorded under S. 164 of the Cr.P.C. as per procedure prescribed thereunder. (Emphasis supplied)"

In order to follow the mandate of this decision, extensive use of recording with audio-video electronic means have to be made. However, if it is taken that the essence of the decision of Hon'ble Supreme Court in Manoharan v. State By Inspector Of Police (Supra) is that if the court decides to record the statement with audio video electronic means, then the presence of the counsel for the accused is mandatory, it could give rise to certain anomalous situations. There could be situations where a statement under S. 164 Cr.P.C. is recorded even before the accused is identified or apprehended. In some cases, such statement will be recorded even before the accused has appointed a lawyer. If it has to be taken that the statement under S. 164 (1) Cr.P.C. can only be recorded after the accused appoints a lawyer, then the intention of the legislature in avoiding delay cannot be achieved. The intention of the legislature cannot be that the investigation agency/court will have to wait till the accused appoints a counsel to defend himself to record the statement under S. 164 Cr.P.C., especially since there is a mandate under S. 164(5A) Cr.P.C. to record the statement of the victim, immediately upon the detection of the case.

Hon'ble Supreme Court in State of Karnataka by Nonavinakare Police v. Shivanna @ Tarkari Shivanna¹² has held as follows:

"What we wished to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under S.164 Cr.P.C. and the same be kept in sealed cover to be produced and treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross - examine them with further liberty to the accused to lead his defence witness and other evidence with a right to cross - examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trail and thus offer a speedy remedy by way of a fast track procedure to the Fast Track Court to resort to."

This decision is in tandem with the objects and reasons of the Criminal Procedure Code(Amendment) Act, 2006 which introduced the amendments in S. 161, 164 and 275 Cr.P.C. This decision also imposes a time limit of 24 hours for taking the victim to the Magistrate on the police officer. Hence, it cannot be taken that the legislature intended to record the statement of witnesses multiple times or to wait till the accused is apprehended and he appoints a counsel. The Constitution of India vide Art. 21 also recognizes the right of a person to choose not to be represented by any counsel at all. It is also to be noted that as distinct from the wording of 1861 Code, which required the presence of accused at the time of recording of statement, the present proviso requires only the presence of Counsel for the accused and not that of the accused in person.

However, the provisions of S. 164(5) Cr.P.C. throws further light into the intention of the legislature regarding the presence of the counsel. Recording of statements (other than a confession) under S. 164 Cr.P.C. is to be done "in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case.". Thus, even though the Magistrate is given a discretion to choose the appropriate manner provided for the recording of evidence, his choices are limited: the magistrate can adopt either the procedure in S. 275 Cr.P.C. or he can opt for the procedure under S. 274 or 276 Cr.P.C. It can be seen that the manner of “recording of statement in audio-video electronic means in the presence of counsel for the accused” is not introduced in S. 274 or S. 276 Cr.P.C. If the magistrate adopts the procedure under S. 275 Cr.P.C., then considering the amendment in both these sections, the presence of counsel for the accused has to be allowed. In other cases, where the Magistrate opts for procedure under S. 274 or 276 Cr.P.C., this requirement will not be there. Another question is what is the criteria for selecting the procedure? The wording of S. 164(5) Cr.P.C. has given the Magistrate the discretion to choose the procedure which "in the opinion of such Magistrate, best fitted to the circumstances of each case". The circumstances of the case would also include infrastructural and statutory limitations of the court in recording the statement purely by audio video electronic means without having to record the same in writing. S. 164(5) Cr.P.C. also permits the Magistrate to use his discretion on a case by case basis. Moreover, at present, the requirement of recording the statement with "audio video electronic means" is also purely optional, since even though there is a direction of Hon'ble Supreme Court in Doongar Singh & Others v. State of Rajasthan (Supra), the facilities for recording the statement exclusively using audio video electronic means is not provided in all courts, and the Criminal Rules of Practice, 1982, in so far as it requires in Rule 57 that "after a deposition has been read over to the witness, the last page thereof shall be signed in full by him", does not permit the recording of statements exclusively by audio-video electronic means. In such circumstances, the Magistrate has to choose between the procedure under S. 274, 275 devoid of audio video electronic means" or S. 276 Cr.P.C. to be followed in recording the statement under S. 164(1) Cr.P.C. In neither of the cases, the presence of counsel for the accused is not an essential mandate.

Further, even though right to legal services is interpreted as a facet of Art. 21 of the Constitution of India, the same has not been held to be an indefeasible right. The clause in the presence of the counsel for the accused can be understood only as a right available to the accused in cases where the accused has already appointed a counsel at the time of recording of statement under S. 164 Cr.P.C. and has indicated to the court in clear terms that such counsel is authorised to be present at the time of such recording. Otherwise, the purpose of introduction of this proviso ie for reducing delays will be defeated and the statement will have to be recorded multiple times. Moreover, this will go against the spirit of the decision of Hon'ble Supreme Court in State of Karnataka by Nonavinakare Police v. Shivanna @ Tarkari Shivanna (Supra) regarding non disclosure of contents of such statement under S.164 CrPC to any person till charge - sheet / report under S.173 CrPC is filed, and that of Hon'ble High Court of Kerala in Varghese M.U. v. Central Bureau of Investigation, Cochin¹³ wherein after refering to decision of Hon'ble Supreme Court in Sunita Devi v. State of Bihar¹⁴, Full Bench of Hon'ble High Court of Madras in State of Madras v. G. Krishnan¹⁵, Division Bench of Hon'ble Bombay High Court in Maria Monica Susairaj v. State of Maharashtra¹⁶, it was held that:

"Disclosing the evidence collected by the Investigating Officer before the report under S.173(2) CrPC is filed will be detrimental to the investigation and is against public interest. It is necessary to ensure confidentiality of the statement, failing which it may hamper the investigation and may afford opportunity to those who are involved in the commission of the offences to abscond, or to destroy or tamper with the evidence, or to influence or to threaten the witnesses. The conclusion, I can reach, is that the proceedings in which statement under S.164(1) CrPC of an accused which does not amount to confession, or of a person other than the accused is recorded shall be conducted in camera and a copy of it shall not be given to anyone other than the Investigating Officer, who may require it for his investigation -- until and unless it is made public by him by making it part of the records of the case without any reservation. The Investigating Officer shall not directly or indirectly disclose its contents or issue its copy if it is against public interest. Indiscriminate disclosure of its contents by the Investigating Officer should be avoided."

In view of the above, it is clear that there was no intention of the legislature to invalidate statements under S. 164 Cr.P.C. which is not recorded in the presence of counsel for the accused. It can also be seen that if the provision "in the presence of counsel for the person accused on an offence" is interpreted as an indefeasible right of the accused, the provisions of S. 164 Cr.P.C. and the spirit of the decision of Hon'ble Supreme Court cannot be given effect to. Hence, the only interpretation of the proviso to S. 164(1) Cr.P.C can be as " if the accused is known, has appointed a counsel and is available for informing the right, and on being so informed, has opted to choose to exercise such right, provided in the circumstances of the case, the magistrate chooses to record the evidence in accordance with S. 275 Cr.P.C. with audio video electronic means and not otherwise".

Guidelines to record statements under S. 164 Cr.P.C.:

In exercise of the powers of Hon'ble Supreme Court under Art. 142 of Constitution of India, the following guidelines were issued by the Hon'ble Supreme Court in State of Karnataka by Nonavinakare Police v. Shivanna @ Tarkari Shivanna (Supra) taking into consideration the above reasoning also:

"We are pleased to issue interim directions in the form of mandamus to all the Police Station in charge in the entire country to follow the direction of this Court which are as follows:

(i) Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan / preferably Judicial Magistrate for the purpose of recording her statement under S.164 CrPC. A copy of the statement under S.164 CrPC should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under S.164 CrPC should not be disclosed to any person till charge - sheet / report under S.173 CrPC is filed.

(ii) The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan / preferably Lady Judicial Magistrate.

(iii) The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan / preferably Lady Judicial Magistrate as aforesaid.

(iv) If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

(v) Medical Examination of the victim: S.164 A CrPC inserted by Act 25 of 2005 in CrPC imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under S.164 CrPC."

It is particularly clear from the emphasized portion that the directions in the above case was "to all police station in charge" and not to magistrates. It is also clear that the direction is only to "make immediate steps to take the victim" to the Judicial Magistrate for the purpose of recording the statement" and " if there is delay exceeding 24 hours in "taking the victim to the Magistrate" the investigating officer should record the reasons for the same. The said judgement does not give any direction to the Magistrate to record the statement as soon as the victim is taken to such magistrate.

No further directions have been issued by Hon'ble High Court of Kerala regarding the manner in which a statement under S. 164(5A) Cr.P.C. is to be recorded.

The Hon'ble High Court of Madras in Murugaswamy v. State and Another(Supra) has also extensively come up with directions regarding the manner in which statements and confessions are to be recorded under S. 164 Cr.P.C. after considering the legislative history of S. 164 Cr.P.C. The following directions were issued in the said case regarding statements under S. 164 Cr.P.C.:

A statement of a witness / victim can be recorded under S.164, Cr.P.C. only at the instance of the Investigating Officer of the case. (See also Jogendra Nahak v. State of Orissa (AIR 1999 SC 2565) wherein it was held that the Magistrate has no power to record the statement of a witness under S. 164(1) Cr.P.C. who is not sponsored by the investigating agency).
It is not necessary for the Investigating Officer to approach the CMM / CJM with an application for nominating a Magistrate to record the statement of a witness / victim under S.164, Cr.P.C.
A Magistrate, whether he has got jurisdiction or not, to inquire into or try the case, can record the statement of a witness / victim under S.164, Cr.P.C., on the request of the Investigating Officer of the case.
The Presiding Officer of a Special Court which has been empowered to take cognizance of an offence without there being a need for committal may also record the statement of a witness / victim under S.164, Cr.P.C., on the request of the Investigating Officer of the case.
After recording the statement of a witness / victim under S.164, Cr.P.C., the Judge / Magistrate shall arrange to take two photocopies of such statement, under his direct supervision and certify the same as true copies.
He shall furnish one such certified photocopy of the statement to the Investigating Officer, free of cost, immediately, with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed. (See also State of Karnataka by Nonavinakare Police v. Shivanna @ Tarkari Shivanna (Supra))
The other certified photocopy of such statement shall be kept in a sealed cover in the safe custody of the Judge / Magistrate.
If the Magistrate who had recorded the S. 164, Cr.P.C. statement is not the jurisdictional Magistrate, he shall send the original statement to the jurisdictional Court, either through a special messenger or by registered post with acknowledgment due.
If the Judge / Magistrate who had recorded the 164, Cr.P.C. statement is himself the jurisdictional Magistrate, he shall keep the original of the statement in the case records.

Similarly with respect to the recording of confessions under S. 164 Cr.P.C., the following directions were issued:

The Investigating Officer shall make an application before the CMM / CJM for nominating a Magistrate, other than the jurisdictional Magistrate, to record the confession statement of an accused.
After recording the confession statement of an accused, the recording Magistrate shall arrange to take two photocopies of the same under his direct supervision and certify the same as true copies.
The confession statement, in original, shall be sent in a sealed cover to the jurisdictional Magistrate or Court, as the case may be, through a special messenger or by registered post with acknowledgment due.
One certified copy of the confession statement shall be immediately furnished to the Investigating Officer, free of cost, with a specific direction to him, to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.
The other certified photocopy of the confession statement shall be kept in a sealed cover in the safe custody of the recording Magistrate.

Regarding recording of dying declarations,which in essence is only a statement under S. 164 Cr.P.C., the following directions were issued:

After recording the dying declaration, the Magistrate shall arrange to take two photocopies of the same under his direct supervision and certify the same as true copies.
The dying declaration in original shall be sent in a sealed cover to the jurisdictional Magistrate or Court, as the case may be, through a special messenger or by registered post with acknowledgment due.
One such certified photocopy of the dying declaration shall be furnished by the Magistrate to the Investigating Officer of the case free of cost, immediately, with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.
The other certified photocopy of the dying declaration shall be kept in a sealed cover in the safe custody of the Magistrate.

With respect to Test Identification Parades, the following directions were issued:

An application for conduct of Test Identification Parade, shall be made under S.54 - A of the Code by the Investigating Officer, to the Court having jurisdiction.
On such application being made, the Court may direct the person so arrested to subject himself to identification.
The Court shall make a request to the CMM / CJM of the District to nominate a Magistrate, other than the Magistrate who has jurisdiction of the case, to conduct the Test Identification Parade.
Upon receipt of such request, the CMM / CJM shall immediately pass orders nominating a Magistrate, other than the jurisdictional Magistrate, to conduct Test Identification Parade and inform the same to the Magistrate so nominated and to the Investigating Officer.
The Magistrate so nominated shall conduct Test Identification Parade and after preparing the Test Identification Parade report, he shall arrange to take two photocopies of the said report under his direct supervision and certify the same as true copies. . He shall send the Test Identification Parade report in original in a sealed cover to the jurisdictional Court through a special messenger or by registered post with acknowledgment due.
One certified photocopy of the Test Identification Parade report shall be furnished by the Magistrate to the Investigating Officer of the case free of cost, immediately, with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.
The other certified photocopy of the Test Identification Parade report shall be kept in a sealed cover in the safe custody of the Magistrate.

Additional Guidelines:

Court to elicit all information which the witness wishes to disclose and should ask explanatory questions.(In Shaji v. State of Kerala¹⁷ the Hon'ble Supreme Court has held that the Magistrate, when required to perform the duty of recording a statement under S. 164 (1) Cr.P.C. is under an obligation to elicit all information which the witness wishes to disclose and should ask the witness explanatory questions and obtain all possible information in relation to the said case. )
Statement under S. 164(1) Cr.P.C. of a person other than the accused shall be conducted in camera.(The Hon'ble High Court of Kerala in Varghese M.U. v. Central Bureau of Investigation, Cochin¹⁸ has held that proceedings in which statement under S.164(1) CrPC of an accused which does not amount to confession, or of a person other than the accused is recorded shall be conducted in camera and a copy of it shall not be given to anyone other than the Investigating Officer, who may require it for his investigation -- until and unless it is made public by him by making it part of the records of the case without any reservation. The Investigating Officer shall not directly or indirectly disclose its contents or issue its copy if it is against public interest. Indiscriminate disclosure of its contents by the Investigating Officer should be avoided.)
Accused is not entitled to a copy of statement of witness recorded under S. 164 Cr.P.C.¹⁹
Informant cannot get copies of her statement under S. 164 Cr.P.C. but the can approach the investigating officer to peruse through the statement in the presence of police officers and to take notes regarding the brief summary of the contents, but she cannot make a verbatim transcript of the contents of the statement.²⁰
Confessions and statement of the accused under S. 164 (1) Cr.P.C. shall be recorded in open court. (See R. 70 Kerala Criminal Rules of Practice, 1982)
Magistrates shall see that statement of witnesses recorded under S. 164 Cr.P.C. and the carbon copy shall be put in separate covers and that the covers containing the statement are sealed in their presence immediately after recording the statement and shall further ensure that the certified copy of the statement of witnesses recorded under S. 164 Cr.P.C. is given only to the person to whom it has been ordered to be issued²¹.
The statement of child victims under S. 164 Cr.P.C. are to be recorded in the chamber of the Magistrate concerned²².
The procedure for recording of statement under S. 164 Cr.P.C. is applicable to missing persons also²³.²⁴
If the witness is a child under the age of 12 years of age, if the child does not understand the nature of oath or affirmation, the provisions of Oaths Act, 1969 will not be applicable to such witnesses and administering oath is not necessary in the case of such witnesses²⁵.
Statement under S. 164 Cr.P.C. can be generally used only for corroboration or contradiction but not as substantive evidence, but S.164(5 - A) Cr.P.C. states that if the maker of the statement is temporarily or permanently, mentally or physically disabled, the statement made by such a person shall be considered as substantive evidence by the Trial Court²⁶.
A statement recorded under S.164, Cr.P.C. is a public document within the meaning of S.74(iii) of the Evidence Act. The original of the statement, which would form part and parcel of the Court records, is a primary evidence under S.62 of the Evidence Act for proving the fact that the said witness had appeared before the Magistrate on the date found thereon and had given a statement, but, it does not prove the veracity of its contents²⁷.

Summary: Thus, it has to be taken that the words "audio video electronic means" used in S. 161, 167 and 275 Cr.P.C. is used in a different sense than the words "video-graphed" appearing in Second Proviso to S. 164(5A)(b), S. 54A and S.154(1) Second Proviso to Cr.P.C. and " medium of electronic video linkage" appearing in S. 167 (2) (b) and Explanation to S. 167 (2) Cr.P.C. The intention of the legislature, in introduction of these terms in S. 161, 164,275 Cr.P.C. is clearly to alter the process of recording of the evidence/statements by use of technology. Therefore, these words can only mean that the police/court, can either record the statements under these sections by pen on paper or entirely by audio video electronic means, without recording the same on paper. Furhter, the only interpretation of the proviso to S. 164(1) Cr.P.C can be as " if the accused is known, has appointed a counsel and is available for informing the right, and on being so informed, has opted to choose to exercise such right, provided in the circumstances of the case, the magistrate chooses to record the evidence in accordance with S. 275 Cr.P.C. with audio video electronic means and not otherwise". While recording the statements under S. 164 Cr.P.C. the guidelines of the Hon’ble Supreme Court and various High Courts have to be kept in mind.

1Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be video-graphed."

2(b) the recording of such information shall be video-graphed;

3(b) no Magistrate shall authorise detention of the accused in custody of the police under this Section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

4Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be."

5https://indiankanoon.org/doc/28747520/

6https://indiankanoon.org/doc/159073234/

7Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, March 2003) Vol I, at p. no. 276.

82018 KHC 6405: AIR 2018 SC 2493: 2018(7) SCC 1

92017 KHC 5630: 2017 Cri.L.J. 5011: 2017(4) KLJ NOC 9

10"Provided that the provisions contained in the first proviso to sub-section (1) of Section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case."

112017 KHC 6819: 2018 (1) KLT 629: 2018 (13) SCC 741

122014 KHC 4321: 2014(2) KLT 767: 2014(8) SCC 913

132015(3) KHC 417: 2015(3) KLJ 4: 2015 (3) KLT 54: ILR 2015(3) Ker. 398

142005 KHC 124 : 2005 (1) SCC 608 : 2005 (1) KLT 748 : AIR 2005 SC 498

15AIR 1961 Mad. 92

162009 KHC 5545 : 2009 CriLJ 2075

17AIR 2013 SC 651

18Supra n.

19See Shakkeer v. State of Kerala (2014(3) KHC 759: 2014(4) KLT 650), where in the Hon'ble High Court of Kerala has held that the accused is not entitled to get a certified copy of the statement of a witness recorded under S. 164 Cr.P.C. as of right, till final report is filed.

20See Athulya v. State of Kerala (2019 (5) KHC 920: ILR 2020 (1) Ker. 129)wherein the Hon'ble High Court of Kerala has held that the victim may have to know the precise details of the contents of the statement so that her rights and interest for effectuating the prosecution of the case are duly protected. Accordingly, it is ordered that the petitioner along with her Advocate may approach the investigating officer concerned after prior intimation and make a request to give her an opportunity to peruse through the said statement and to make some brief notes regarding its contents. Thereupon the investigating officer will permit the petitioner / and her Advocate, if any to peruse through the said statement in the presence of Police officials and the petitioner may be permitted to make notes regarding the brief summary of the contents of the said statement. However, it is made clear that the investigating officer need not give any copy of the said statement to the petitioner and she cannot make a verbatim transcript of the contents of the said statement in the above process and she may only make a brief summary regarding the contents of the said statement after proper perusal and the petitioner shall not disclose the contents to any third parties.)

21See High Court OM No. D3-76266/2016 dated 18.11.2016.

22See High Court OM no. D2-54663/2014 dated 05.11.2015.

23See Valsala Devi and another v. State Police Chief, TVM and others (2016(5) KHC 801: 2016(4) KLJ 738: 2016(4) KLT 864: ILR 2017(1) Ker. 373) wherein it was held that "The above observation of the Supreme Court in Jogendra Nahak's case is squarely applicable when a person claiming to be the missing person in respect of whom a case has been registered under S.57 of the Kerala Police Act appears before him in the course of the enquiry conducted by the police. The Magistrate should be concious of the risks involved in recording statement of such a person. There is no means for him to ascertain the identity of the person or the genuineness of the documents that may be produced by her / him. The probability of impersonation or of the person who allegedly kept her in illegal detention threatening her / him into giving a statement favourable to him and thereafter producing her / him before the Magistrate cannot be ruled out. When such a person appears before the Magistrate, he shall immediately give notice to the Investigating Officer, who shall without delay ascertain her / his identity and the circumstances under which she / he happened to appear before the Court. He shall ask the missing person about the circumstances in which she / he happened to leave the place from which she / he was reportedly missing, the persons with whom she / he came into contact, the places she / he visited or at which she / he stayed and the transactions in which she / he was involved till she / he appeared before him. It is the duty of the Magistrate to bring out the facts which are necessary to know whether she / he was abused by anyone or whether any offence was committed in respect of her / him. If she / he is a minor or person under other disability, the Magistrate shall get her / him examined by a medical officer with the consent of her / his guardian.

24See also Varghese M.U. v. Central Bureau of Investigation, Cochin(Supra) wherein the Hon'ble High Court has noted that "Often police produce persons, especially women, who have been abducted, kidnapped or wrongfully confined, or suspected to have been abducted, kidnapped or wrongfully confined at the residence of Magistrates after they are taken into protective custody. The Magistrate immediately records the victim's statement at his residence as it is made not in the course of an enquiry or trial." approving the practice of recording the statement of missing persons at residence of the Magistrate). However also see Rule 5 (2) of Kerala Criminal Rules of Practice, 1982 which states that "No case shall be heard and no judicial act shall be formally announced or done on a holiday save in case of absolute urgency." read with Rule 5(3) of the said Rules which state that " (3)Nothing in sub-rule (2) shall affect the jurisdiction of a Magistrate to authorise detention of an accused person under sub-section (2) of Section 167 of the Code or to deal with a lunatic in accordance with the provisions of the Indian Lunacy Act, 1912 (Act 4 of 1912) or to record a dying declaration when required to do so by a competent authority or to release an accused from custody." and the Mandate in s. 164 Cr.P.C. that the statement shall be recorded in the manner of recording evidence, which can only be done in the open court under S. 274,275 and 276 Cr.P.C.

25See Ali K.B. v. State of Kerala (2019 (1) KHC 898:2019 (2) KLJ 124: ILR 2019 (3) Ker. 91)

26See Murgaswamy v. State and another (Supra)

27See Murugaswamy v. State and another (Supra), Kunju Muhammed and others v. State of Kerala (2014 KHC 3116: 2014(2) KLJ 860) and State of Madras v. Krishnan (AIR 1961 Mad. 92)

COVID 19 Challenge to Legal Profession and Legal Education #legalprofession #lawpractice #businesslaw #lawyering #covid19

2020-04-11T04:11:00.001-07:00

According to Business Insider, a third of the global population is in corona virus lock-down. Countries around the world are implementing measures to slow down the spread of corona virus, from national quarantines to school closures. Courts, throughout the world, faced with an unprecedented lockdown in history, are working in a limited manner, perhaps for the first time in history, to meet its objectives. Law schools world over are closed down and lawyers are working within their limitations to uphold the dignity of law.

Considering the spread of the pandemic, no one knows outer time limit of restrictions, or whether there will be a second or third wave of viruses and lock-downs. It is generally understood that significant changes may happen to the society, economy and governance, which may stay for sometime and change the landscape of governance, economy and social interactions.

The world is going to see huge reliance on technology, especially in the area of remote governance and healthcare in the post COVID-19 scene. There is already a change in the mindset of the governments, media and public regarding adaptation of technology. These changes will also reflect in the legal and Judicial landscape.

In bullet points it is presumed that the following changes may occur in the legal landscape in the post covid-19 world:

Less Funds and Inflow: The expected plunge in the global economy will have its toll in the legal industry also.
Use of Technology: Reliance on technology, especially remote working and connecting technology is going to increase in the judicial and legal world. There will be implementation of more effective case management, integrated video conferencing and document collaboration, sharing and judicial data storing technologies through out the judicial structures.
Globalisation: On a positive note, COVID 19 may usher in the positive sides of globalisation to the legal industry in an unprecedented manner. If the courts and arbitrators are connecting to the parties and counsels using video conferencing, why can't party with deeper purse bring in an accredited lawyer from another part of the country or world to appear for him?
Courts will be more open: Judicial structures may see a readjustment, and the concept of courts in fixed locations may see a change. Courts will be where the judges sit, and court rooms will restrict physical presence of public. Live streaming, video recording etc. of judicial proceedings may become the order of the day, which will make the courts more open than at present.
Less Arbitrariness and Discretion in Judicial Decision Making Process: Increased reliance on audio video recording of judicial proceedings, will reduce the third party interpretation of view of the witnesses. Investigating officer and the judge will lose the freedom to determine what portion of the deposition of a witness has to be taken down in writing and what to be omitted while taking down when entire deposition will be audio and video recorded as spoken by the witness. This will give the appellate courts also the capability of assessing the exact demeanor and tenor of the deposition of a witness rather than relying on the verbal record made by the trial court judge or investigating officer. This will usher in more fairness into the system and better witness, and court management. The quality of the judicial decisions including the Appellate orders will improve and the Judicial system will become fair and transparent. It will increase the reliability and credibility of judicial systems.
Reduction of Cost of Litigation: implementation of remote access to courts through video conferencing and online filing will reduce actual and hidden costs of litigation. Lawyers, litigants and witnesses can save commutation costs to courts and access their litigation details and proceedings at their comfort zones. Cost of papers, and other incidental expenses for ensuring the physical presence of lawyers, litigants and witnesses in the court room will also so be reduced. Cost making copies, of storing stacks of papers in lawyer's offices and courts and of managing the litigation will also be reduced.
Better Time Management: Courts and lawyers and even litigants will be able to manage time spend for the litigation in a better manner with the use of technology in case management software's.
Safe Litigation: Vulnerable Witnesses appearing from their safe zones through use of video conferencing technology will increase the confidence of parties in the litigation process.
Online Arbitration: Even the arbitration landscape will see consequent changes and will usher in technology based solutions for remote arbitration.
Sleek Lawyering: Use of technology will reduce the cost of setting up a huge office by lawyers near courts. Physical location of the lawyer will become irrelevant and the competency levels of lawyers will be recognised irrespective of their physical location. Currently law practice has a lot to do with the ability of the lawyer to relocate physically. This is bound to change and a competent lawyer can represent before any court or tribunal using remote access technology. Capital expenditure on technology may increase marginally but there will be reduced expenses in several areas including travel to legal professionals.
Better Analysis of Effectiveness: Increased reliance on case management and remote access software's, and recording and live streaming of court proceedings, may help better statistical analyses of judicial proceedings which will ultimately increase efficiency and effectiveness.
Legal Tech Business: increased reliance on technology by various stakeholders in legal industry will also see the rise of specialised legal tech businesses including document management business.
Impact on Legal Education: These and several other changes that happen in the legal landscape will also affect the Legal education scenario. Many Law schools have already moved to include technology classes in their curriculum. COVID-19 has also made Law schools to think about remote classes. Availability of lectures in online mode will give flexibility to the students to choose the better ones. This will increase efficacy of law teachers. Universities may also move towards online law examination systems, which is at the same time more foolproof, challenging and transparent.

Judicial IT Infrastructure: A Vision

2020-03-23T11:48:00.001-07:00

Background: Information Technology is going to be the back bone of judiciary. As per the Policy and Action Plan Document-Phase II of the E-Courts Project of the e-committee of the Hon’ble Supreme Court of India(herein after referred to as Policy Action Document), the following functions will have to be discharged by the Hon’ble High Courts:

1. Project Management and Monitoring Mechanism

2. Procurement of Hardware Resources and their deployment as per the specifications approved by Hon’ble Supreme Court e-committee.

3. Periphery Software Development and deployment for e-CIS to suit the requirements of the state.

4. Managing the networking and data including monitoring the quality and completeness of data available in CIS.

5. Training, deployment and management of the end staff who will manage the e-CIS at court level.

At present, our Information Technology Initiatives working on judicial side are (a) Case Information System(CIS) which is the back bone of IT Infrastructure initiatives and is basically an information management system regarding the filing, processing, managing and disposal of cases in court (b) E-Courts for Subordinate Judiciary which ensures flow of case management information to the public (c) National Judicial Data Grid(NJDG) which is basically a Management Information System(MIS) for CIS (d) Mobile Initiatives such as ecourts, JUSTIS etc. which are basically information dissemination systems for specified population like judicial officers (e) Video Conferencing equipments for judiciary. In addition, there are upcoming applications, initiatives like Integrated Criminal Justice System, Virtual courts, E-filing, NSTEPS etc. which gives more spread to the IT initiatives of the judiciary and will bring more public interaction with out IT initiatives. Salary of staff is managed to SPARK and office expenditure is managed through BIMS. There are also other administrative IT tools like e-office deployed in other administrative offices but have not yet deployed in judiciary, which will help the judicial administration also to go paperless.

It can be seen that the basic design of all these initiatives is of a hub and spoke; CIS is acting as the hub for all the activities and all other applications/initiatives will seamlessly integrate with CIS and work by giving and taking information from CIS. CIS being an initiative of Hon’ble e-committee of Supreme Court intending to give a common platform for all judiciary related information, one High Court cannot by its own make any changes to the structure of CIS or any existing initiatives and hence all future IT infrastructure initiatives at the level of Hon’ble High Court will have to be taken keeping this aspect in mind. Further, CIS being basically an information management portal, has been designed to capture information and its primary aim is not to ease the work of the judiciary but to capture and disseminate information regarding the judiciary. Hence, by design, CIS is not going to ease the work of judiciary or ensure more effective dispensation of justice. This is at the same time an advantage and disadvantage of the current judicial IT initiatives. It is a disadvantage since it will not ease work, and it is an advantage because it gives an accurate picture of the state of affairs in judiciary without any significant change in operating procedures. Any initiative that changes current operating procedures requires much more extensive training and change management mechanisms. While creating a vision document, it is most humbly suggested that all the necessary requirements to ensure effective administration of justice shall be kept in mind, and moving to the aim of paperless judicial administration should be balanced with the need to ensure accuracy, sufficient back up capacity for our servers and protection of existing workforce.

Software Infrastructure part of Judicial IT Infrastructure:

Objectives:

Primary aim of the Judicial IT initiatives should be to ensure effective access to speedy justice by effectively managing the judicial work.
Judicial IT initiatives should also aim at automation that would reduce technical or mechanical aspects of judicial functioning, thereby increasing efficiency of the judicial functioning.
Reduction of the use of paper in judicial work as far as possible by deploying tools like e-office for administrative work, SPARK and BIMS for financial aspects with CIS for case management so that data where ever given once need not be replicated again manually should also be another aim of Judicial IT initiatives.

Automation:

As far as possible all communications, summons, warrants, reports etc. issued by the court should be digitally created using the data available in the CIS automatically upon the judicial officer making an order in that regard in the judicial software and digitally transmitted to the concerned outside authorities by email or through the software of the department concerned. There should also be facility to receive reports required to be filed before the court from other authorities in response to the communication issued by the court digitally, as authenticated by the digital signature including aadhar authenticated signature of the respective authority.
Judicial Softwares being developed should be capable of automating the judicial work without affecting the discretion. For example, if instead of manually providing dates for each case, Software can itself put the date on a pre-defined logic, based on Case Flow Management System, with facility to manually override the system provided dates, and to automatically move from stage to stage based on compliance/non compliance of statutory requirements with facility for judicial intervention on application by parties or suo moto, it can go a long way in managing day to day work in courts and court staff can be utilized for more productive work.
Mobility:
Outbreak of pandemics like CoViD19 have made the entire government machinery think of avoiding physical workforce. When designing judicial IT infrastructure for the future, manpower portability and the ability of the workforce to augment their work even from outside geographic parameters should be taken into account. Hence, all equipment procured should be capable of having optimal performance both within a specified geographical location and away from such specified geographical locations.
In future, physical positioning of parties, including litigants and lawyers inside the court hall may go and instead, the parties and lawyers may log in from the outside locations. Even entire trial proceedings may be done by video conferencing. This would require connecting outside devices to judicial IT networks. Hence appropriate security protocols should be developed for this purpose.
Going forward, mobile and hand held devices will replace the computers. Police officers are currently using softwares like e-beat to connect with officers while on work outside police stations. Judicial Officers such as Magistrates also will have to work from outside court premises from their home or at other locations for works like remanding prisoners and preparing dying declarations. Hence, judicial softwares should be so tuned that requests for outside works such as remanding prisoners, making dying declarations can be made online, and the judicial officers can access such requests and act upon the same online. If remand warrants can be also generated and send to prisons online, authenticated by the digital signature of the judicial officers or by bio-metric/finger print/aadhar authentication, it would go a long way in ensuring their accuracy. This would require interaction between portals of police, judiciary and the prisons department, and hence ICJS modules should be developed to facilitate such aspects. This would also require that the judicial softwares should be made available outside court premises. Hence, appropriate protocols permitting connection of judicial software in the personal communication devices of judicial officers should be developed. As I understand, there is a demand from the police and prison authorities for such facilities to be incorporated in judicial softwares.
Equipments and Hardware:
The available infrastructure should be put to optimum use and overcrowding of court rooms or offices with multiple electronic equipment with same/similar functioning should be avoided.
While purchasing equipment, equipments that aesthetically fit with the available courtroom atmosphere should be selected and when ever selection of the equipment for a particular court is made, the views of the officer and staff therein should also be solicited, as far as possible.
All computers and printers should be networked, and where ever possible Multi functional printers with enabled print/scan/fax/copy facility connected in a network, should be deployed to put the available printers/scanners to optimum use. If there are more courts in one court complex, all the printers in different courts should be interconnected with sufficient privileged access facility incorporated so that where ever printers in one court is not functioning, printers in other courts can be used.
Softwares:
CIS should be understood as an information management tool and it should not be looked upon as an all out solution for judicial IT requirements. Softwares which speak to and provide necessary inputs and take output from CIS should be developed.
While developing such softwares, data security and measures to prevent breach of data security should also be given prime importance.
Currently the same data will have to be entered at multiple points, for example the data in proceeding sheets also need to be reproduced in CIS. If such multiple data entry can be avoided, a lot of judicial time can be saved.
Instead of using separate proceeding sheets, judicial orders should be directly typed into either by judicial officers or at their dictation by typists into judicial softwares.
Predictive text should be enabled so that similar short orders can be typed with ease.
Handwriting enabled tablets should be given to judicial officers, and bench clerks so that instead of typing, orders can easily be written in the tablets.
Digital signature and water marking should be enabled for judicial orders so that compliance of copy applications can be speeded up/dispensed with.
E-filing, E- Stamping and digital payment protocols should be enabled at all courts and all the payments in and out of the court should go in digital manner.
All documents filed in court should be filed in digital formats, so that at all the documents can be made available at all stages of the trial and in different courts simultaneously, without affecting the trial at lower courts when the records are send to higher courts.
S. 275 of Criminal Procedure Code enables recording of evidence of witnesses by audio-video recording. This enables witness testimonies to be recorded in audio visual mode, rather than by writing them by hand or by typing the testimonies, and the video recording can be used as evidence by putting it in a password protected mode, so that access privilege can be managed to ensure tampering.
Proviso to S. 161(3) Cr. P.C., provides that statements under S. 161 Cr. P.C. can be recorded by audio-video electronic forms. Once the process of investigation is complete, the electronically prepared FIS, other case records and entire video files with metadata including video files of s. 161 Cr. P.C. statements can be shared with the court along with report under s.173(8) Cr. P.C. A copy of this file can be shared with the accused digitally with or without copying facility. If any files contain sensitive material that may affect privacy of individuals, the investigation agency can indicate the same and the said file will not be shared. Upon completion of formality when the case comes up for trial, the witnesses can be cross examined based on their video recorded testimony, including the data of analysis of emotional aspects. These depositions can also be recorded using facial recognition camera so that there can be a real time analysis of the emotional aspects (demeanor) revealed on such recording.
Service of copies to the accused and lack of clarity of copies are currently one of the factors affecting the disposal time. If all copies of documents can be electronically given to the opposite side, it can save a lot of time in judicial proceedings. If the softwares are so developed that while E-filing, either by the advocates or the police officials, the scanned copy of the documents are uploaded, it becomes easily shareable. The opposite party, upon entering appearance, can be given username and password to access the case records and case progress details. All documents filed by both parties becomes automatically available to opposite side, and the issue of not receiving proper copies of applications and records can be resolved for ever. When ever a party files a document, he should produce the original before the office of the court, and get the verified and returned. If any party want the original document to be produced before the court, then such party can utilise the provisions of O. XI CPC or Chapter VII Cr. P.C. respectively. Similarly, if all material objects are video graphed and photographed with three dimensional measures, and these videos and photographs are produced along with case records, while the original object be either returned, or disposed off as per rules, it will save a lot of space in court rooms and these documents/photographs/video-graphs can be made available at all stages of the case. If amendments are required in the rules for this, the same should also be envisaged.
If time can be assigned for hearing of cases in judicial softwares, with automatic advancement where the case is disposed early and automatic adjournments if the case takes more time, it would help in managing the judicial time. For example, if the parties can specify time taken by them for arguments, and the software automatically gives a date based on the available time on board, and if the opposite side is having inconvenience, they can specify the same in the software, so that another date is assigned, it will help to manage judicial time. If the cases take lesser time, cases posted subsequently can be advanced, with facility to the lawyers to show their inconvenience, in which case, the case will be automatically removed to another available time slot, it will help to manage the time of both judges and lawyers. Similarly if a case takes more time than usual, the lawyers would get a notification for taking further time slots, and if such time slots are not available in a given date, the case can be moved to such dates on which the time slots are available.
Automatic Text Summarisation tools to summarise pleadings from the uploaded documents can be made use of to assist the judicial officers in preparation of judgment and orders.
Judicial Officers should be allowed to update and upload their own templates for various orders/judgments in the judicial IT softwares. In the alternative, if the Hon’ble High Court can fix a uniform template for all types of orders/judgments, the same has to be made available in the judicial IT softwares.
There should be a facility to interlink various judicial and non judicial softwares, so that data commonly required in both softwares need not be again entered.
Data Security:
Currently there is no security or inter linking mechanism to various softwares including CIS and SPARK. This is partly because of lack of awareness of the staff and partly because while designing the softwares, logins are created not based on actual work but based on designation. For example, in SPARK bills are prepared by clerical staff using DDO’s log in. Going forwards, creation of login profiles based on job requirement, and creating robust features like bio-metric/fingerprint log in, with auditing features will be required since with the coming into force of Personal Data Protection Act, the responsibility of the intermediaries will be increased and there will be requirement for restricting access to personal data and for auditing the access points.
While developing an IT protocol for judiciary, it must be kept in mind that technology grows much faster than rules. Rules made with the current technology in mind may soon get outdated. Concept of data ownership, security and even work environments are subject to very fast changes. Hence it is most humbly submitted that Sufficient leeway should be given in the new rules for adapting to better and more effective technology quick without wasting time.
Cadre Wise Initiatives:A permanent IT Cadre: Ideally, a permanent IT Team should be able to manage all these functions under the supervision of the Hon’ble High Court. Only those who have actual work experience in the subordinate judiciary will be in a position to ensure that the IT resources for subordinate judiciary will be put to optimum use. Unless the permanent cadre is comprised completely of the officers and staff who has experience in the functioning of Subordinate judiciary, the IT activities envisaged cannot be put to optimum use.
Registry:
There should be a Separate Registry for IT Strategy consisting of (1) Five Deputy Registrars, one each for each of the functions as envisaged by the Policy Action Document. The Deputy Registrars should be invariably serving judicial officers of the Cadre of Munsiff Magistrate having at least 3 years experience as a judicial officer (2) two Joint Registrars, who should be invariably serving judicial officers of the Cadre of Sub-Judge one responsible for Hardware and maintenance related issues and one responsible for software and training related issues, and (3) One Registrar-(IT Strategy and Implementation), who should be invariably a District Judge having at least 3 years experience. Registry for IT Strategy and Implementation shall be responsible for all the activities relating to Information Technology management, the procurement and deployment of IT resources and their timely maintenance and training and deployment of staff members who will be end users of IT resources.
Permanent IT Cadre shall function in a hub and spoke manner. The Registry for IT Strategy and Implementation will be the centralized IT hub for procurement development maintenance of IT resources. It will be supported by personnel in each Court Complexes who will be responsible for the actual ground level implementation of the Strategy. Such persons will work under the general direction of Registry of IT Strategy and Implementation, but will be subject to the administrative Control of Hon'ble District Judge. Where the Court Complex is not in the district center, such personnel shall also be answerable to the Senior most Judicial Officer of that center. The data and logs relating to all centralized equipments such as servers shall be the responsibility of these personnel. They shall maintain separate electronic logs for the purpose.
In addition there shall be two persons in each Court who can either be a clerical staff belonging to Permanent IT Cadre or who have been given specialized training by the Registry. One such person shall be responsible for and will be the one point contact for deployment, management and maintenance of hardware resources and shall act as the Electronic Equipment Officer, who shall be responsible for keeping a register of all electronic equipments in the said court. The other person shall be responsible for managing the software issues arising in the said court and give training and assistance to other staff members on an on going basis on the relevant software as per directions of the Registry of IT Strategy and Implementation. These two personnel shall be the contact for all hardware and software related matters respectively in the individual court level and shall liaison with the personnel at the District level and Registry level to manage ground level issues.
Staff members from civil and criminal wings of the subordinate judiciary can to be appointed on deputation basis initially. Only upon proven competency should be absorbed permanently into the IT Cadre. Ideally only persons with at least 1 year experience in the subordinate judiciary shall be deputed to the permanent IT Cadre.
The personnel selected to the permanent IT cadre including the Deputy Registrars, Joint Registrars and Registrar’s shall be given custom made training on software and hardware development and deployment with the help of NIC/CDIT. After assessing their aptitude, they should be deployed either in the software wing or in the hardware wing.
A team of at least 20 officers including staff shall be retained at the Registry. Each Deputy Registrar shall have a team of at least 4 staff members under them responsible for the activities in their domain. The there shall be at least 2 officers at the District level one for managing issues relating to hard ware issues at the District level and one for managing issues relating to software.
Where ever possible, assistance of experts from the field of IT and computer science including internship projects should be availed for which the policy should be made.

Rethinking Evidence and recording depositions.

2020-01-13T19:32:00.001-08:00

We are living in a world where Artificial intelligence is fastly developing. One key area which the judges are having trouble with is to distinguish between an honest witness and a dishonest witness. There are witnesses who can lie without a bait of an eye. Some witnesses imagine and recreate facts, events and things which never existed and present them as if that is the truth. It is always difficult to find out the truth from the ordinary look at the face of these witnesses and also by normal cross examination especially when the witnesses are coached.

Another big issue in relying on oral depositions is the twisting of depositions by intermediaries including police and counsels. Twisting can occur for a number of reasons including a genuine concern for the betterment of the party. But these concerns are a challenge to the judicial process in finding out the truth. One of the major challenges in the current Indian judicial system is the practice of taking down in writing the testimony of witnesses. The practice of taking down in writing the deposition of witnesses is the advent of modern criminal justice system. While this practice helped to capture the depositions of witnesses more accurately than relying on the memory of the officials involved in the criminal justice process, at an era when even photography was new technology, much water has flown since then. Taking down depositions in writing has the following disadvantages:

✓ Written words does not capture emotional aspects including tone and accent that accompany the spoken words.

✓ Writing of spoken words by another person will invariably involve the mental exercise of the person taking down the evidence, which may tend to twist the actual spoken words and give them an entirely different perspective.

✓The difference in dialects can mislead the reader.

✓ Taking down something in writing involve an exercise of discretion by the writer who may in the exercise of such discretion include things not intended by the speaker.

What is the way forward? Technology has developed many tools for accurately capturing even the emotional aspects of the speaker. (See https://youtu.be/CVClHLwv-4I, https://youtu.be/lDC90ObdMEs ). If all agencies including crime detection and justice administration team uses these AI models to record the deposition of witnesses using video cameras with face recognition technology capable of capturing and analysing emotional aspects of the speaker, the error margin in criminal justice system can be reduced to a great extent. Further recording of oral testimony by crime detection agencies and using it in evidence instead of testing the memory of the witnesses by requiring them to accurately remember the sequence of events at a future date would help in removing trauma of the victims, especially of violent crimes, in recreating what they went through at the time of crime several times and giving chances for distortion. It will also help the criminal justice administration mechanism to accurately capture the oral testimony of witnesses including the tonal variations, dialectical features and the emotional aspects attached to the deposition enabling judges to accurately decide regarding the truth of the depositions.

Imagine a scenario where the victims and witnesses's depositions are recorded by the police under s.161 CrPC using a face detection camera which captures emotional aspects while the victims/witnesses speak. The police can use this to analyse the accuracy of the deposition to arrive at a conclusion regarding the occurrence. Immediately on recording this video will get uploaded into the criminal justice server kept centrally under the management of judiciary to avoid tampering. This recording with all metadata can be shared to the various stakeholders including medical professionals who conduct medical examination of the witnesses. The doctors while making physical examination of the victims can assess this recording and use it to compare with the results of their examination to arrive at an opinion. The original recording of depositions can also be done at the hospital while the doctors conduct medical examination in a similar way using a software which uploads the recording to the judicial server which can then be used by police also. The doctors can upload their report online, which can be accessed by the police and other investigation agencies. The scene of occurance can be captured using a Geo Information enabled camera (see:https://youtu.be/CK9m0Sn37v0, https://youtu.be/mIaG6EDBtao). Once the process of investigation is complete, the entire video files with metadata can be shared with the court along with report under s.173(8) Cr.P.C. A copy of this file can be shared with the accused digitally with or without copying facility. If any files contain sensitive material that may affect privacy of individuals, the investigation agency can indicate the same and the said file will not be shared. Upon completion of formality when the case comes up for trial, the witnesses can be cross examined based on their video recorded testimony, including the data of analysis of emotional aspects. These depositions can also be recorded using facial recognition camera so that there can be a real time analysis of the emotional aspects revealed on such recording. The original depositions recorded by the police can be used for chief examination instead of repeating the deposition. A witness need to be called for cross examination only if the defence counsel seeks to clarify something from that witness by a written application. If a witness is not called for cross examination, the deposition recorded by police should be accepted in evidence and the same should be used for any evidencial purpose. If a witness is called but the witness fails to appear either in person or through video conferencing after proper service of summons, the deposition has to be discarded in toto. This will save a lot of time in judicial process and will enhance the quality and efficiency of criminal justice system.

Rethinking Bail

2020-01-13T19:04:00.000-08:00

Bail is the rule and jail is an exception. However, the present rules regarding bail are very outdated and requires amendment. At present media and public considers that a person arrested for an offence is guilty, and granting of bail is to an extent considered as almost equivalent to acquittal. Fundamental legal principle that a person is presumed innocent until found guilty is often forgotten by the police, press and consequently media. This infact is a result of the rigour of the colonial era bail provisions. Even though the purpose of custody is to ensure that a person is made available for investigation enquiry and trial, in popular myth it is the first confirmation of guilt of the accused. Keeping a person accused of an offence in custody affects his fundamental right to life guaranteed to him under Art. 21 of the Constitution. Further in India, the arresting officer himself deals with the entire case, which has the potential of skewing facts for a multitude of reasons including self aggrandisement. Hence the following suggestions are made to improve the bail provisions-

(a) The investigation and arrest and custody shall be done by separate officials. There should be at least one investigation and one arresting and custody officer in each police station. Investigation and Arresting and Custody officer should have distinct hierarchy and invariably arresting and custody officer shall be superior in rank to the investigation officer.

(b) In case of grave urgency only the investigation officer has right to arrest. In such cases, immediately after the arrest the arresting officer shall hand over the custody of the arrested person to the arresting officer.

(c) All arrested persons shall be entitled to get released immediately on bail if such person meets the following criteria -

(1) The offence alleged is not punishable with more than 7 years imprisonment.

(2). The arrested person is capable of and agrees to cooperate with investigation, inquiry and trial and for the purpose agrees to

(i) submit to surveillance of any lawful nature by law enforcement agencies

(ii) furnish such persons and near relatives complete identification details including physical address, telephone, email,social media addresses and agree further that the communication to any of the given addresses is sufficient service of notice to such person for any purpose during investigation inquiry and trial, including appeal, that any change in any of the addresses shall be promptly informed to law enforcement agencies and the forums before which the case is subsequently put up, that such person does not require any further notice than intimation through such addresses including social media accounts email and phone numbers, that in case of any failure to appear in pursuance to a notice addressed to any of the addresses or accounts furnished by such person, such person agrees to forfeit his right to bail until such time that such person is able to convince the arresting officer where the case is in investigation stage and the forum where the case is pending that such person will cooperate with the legal process, and that such person also forefeits all his rights as a citizen, including right to property and right to obtain and keep a passport upon failure to appear before the investigation officer or the forum as the case may be provided the forum where his case is pending can restore the rights upon his appearance.such person appears before the court.

(iii) agree further that he shall not involve in any wilful criminal activity during the period of bail failing which his right to bail is forefeited.

(3). The offence does not involve violent crimes of serious nature punishable with more than 3 years or crimes that affect psychological aspects of the victims.

Justice Administration Reforms: Bullet Point Agenda

2020-01-01T08:30:00.001-08:00

Talks are going on regarding reform of procedural and evidentiary law to bring more efficacy to justice administration process in India.(https://www.indiatoday.in/amp/india/story/home-ministry-criminal-laws-overhaul-ipc-crpc-evidence-act-ndps-1625600-2019-12-05). Several opinions are also expressed regarding how and what reforms should be made in Criminal justice system. (See

(https://www.thehindu.com/opinion/op-ed/a-road-map-for-criminal-justice-reforms/article29760563.ece/amp/) &(https://economictimes.indiatimes.com/blogs/cursor/why-there-is-an-urgent-need-to-reform-indias-judicial-system/). This article is a an attempt to iterate the urgently needed reforms and put up an agenda for reform of Indian legal system.

Purpose of Reform:

1. Impact of reforms: Need for legal impact analysis

2. Faster and efficient procedure

3. Evolving Criminal Justice administration as a service to society rather than as an instrument of sovereign authority.

4. Transparency in procedures.

5. Better respect to rights of:

5.1. Victims and their relatives and those interested in their welfare.

5.2. Witnesses.

5.3. Accused, their relatives and those interested in reforming and integrating criminal into society as a person useful to society

5.4. Law Enforcement officials and their families.

5.5. Judiciary

5.6. Law Implementation officials and their families.

5.7. Society as a whole.

6. Restoring faith in justice administration system.

7. Evolution of clear and measurable goals in each limb of criminal justice administration.

8. Introduction of social auditing into criminal justice administration without succumbing to mob psychology.

9. Providing protocols for adaptation of technological advance in evidence collection and presentation before judicial forums automatically.

10. Adaptation of justice administration system to the changing pace of social expectations.

Reform Agenda Bullets:

1. Simple, uncomplicated and understandable language.

2. Simplified procedure in:

2.1. Arrest

2.2. Bail:

2.3. Processes

2.4. Trial

2.4.1. Appearance of parties including summons.

2.4.2. Pre trial procedure.

2.4.3. Trial procedure

2.4.2. Post trial procedure.

3. Integrating technology into criminal justice administration to:

3.1. Transparency

3.2. Simplicity:

3.4. Efficacy

3.5. Costs

Technology has low shelf life. It is most important that there should be a protocol where technology is prima facie relied and used rather than suspected. The orientation of our justice administration system should be to accept technology till it is proved disadvantageous or tampered. Ideally the provisions of Evidence Act should be amended to incorporate this principle and restrictive provisions should be removed. Suggested wordings are:

It shall be presumed that all products of technology and all electronic documents and electronic and software imagery, audio and video products accurately gives the outcomes that they are intended to and promises to achieve unless it is proved other wise.

3.6. Eliminating unnecessary exercise of discretion to avoid delays.

3.7. Faster dispensation of justice.

3.8. Avoiding unnecessary deployment/ use of human resources.

3.9. Reducing unnecessary clerical work.

4. Improving and simplifying the court procedures and structures.

5. Simplified procedure for accepting evidence.

6. Reform of bail mechanism to ensure:

6. 1. Liberty of individual irrespective of financial and/or social status

6.2. Purposive use of bail to ensure liberty.

6.3. Simplified bail procedures

6.4. Avoiding unnecessary detention.except where:

6.4.1. Accused has the potential

6.4.1.a. to harm the victim

6.4.1.b. tamper with evidence.

6.4.1.c. abscond from process of law.

6.5. Managing productivity of undertrial prisoners.

7. Better methods for identification of persons involved in all stages of criminal justice administration.

8. Better management of victim expectations in the justice administration mechanism.

9. Management of reputation and privacy of all parties in criminal justice administration including victims, accused, witnesses, law enforcement, judiciary and prison management officials.

10. Avoiding multiple recitals of their trauma by victims by use of technology.

Legal Education- Some Thoughts

2013-01-14T05:55:00.000-08:00

In the last two blogs, I have be iterating the problems that are being faced by Legal Education in Kerala. The same can be summarised as follows:
1. Lack of long term planning
2. Lack of motivation amongst a large majority of students
3. Improper utilisation of available resources
4. Absence of motivating factors for teachers
5. Lack of political will in government to change things.

Recently I had an occassion to interact with the eminent members of the committee appointed by Government of Kerala to study the legal education reform in Kerala. While discussing with them, I had a feeling that the discussions of committee was mostly moving towards an idea of abolishing the existing law colleges and come up with a set of premier law colleges in the model of National Law school.

I had been watching the growth of National Law Schools into prominance for quiet some time. Since I had been in the industry, I was also able to observe the performance of many National Law School products from close quarters and compare the same with students who pass out from other institutes. Keeping aside the euphoria with which many employers approach National Law school products, from the work parameters, I have felt that many other law school products have greater capabilities than National Law school products, but the National Law School products have a refinement which makes them instantly acceptable in the industry. Going deeper, the reasons for these students achieving refinement is mutifold and it has roots in the fact that most of the national law school prodigy come from well to do families, which themselves give a sort of refinement to these students. In addition the high level of motivation, the academic atmosphere prevailing in national law schools and the instant adaptablilty of National Law school prodigies to the office politics- all could be factors which make them successful. On the other hand, the students from other institutes lack the academic atmosphere and upbringing, which put them at least a year back of national law school products in competition to survive.

So the first and foremost problem to be addressed is to bring in a proper academic atmosphere in law colleges, and other institutes. Proper academic atmosphere is a very vague concept and is suseptible to interpretation. My idea of a "Proper" academic atmosphere are as follows:
1. Research facilites: a.Libraries that work 24X7, with little restriction to students to access books.
b. Computer facilities and internet access
c. Regular teachers, with research motivation and capabilites
d. Proper academic workload for students and ensuring a strict regime of classroom lectures there by taking away spare time from students in colleges.
e. Academic freedom enabling individual teachers to frame and conduct their courses, of course with the approval of college and university
2. Motivated Academics: High level of motivation amongst students and teachers, characterised by increased preparation for classes, increased class room participation in discussions, a free atmosphere where every student can freely express their ideas and feelings, proper career advancement map for teachers, and refresher courses and workshops for teachers in regular intervels, proper feed back mechanism for students to assess the teaching performance etc.

Once these two basic and simple things can be achieved, my personal feeling is that every law college can become much greater than national law schools. For this what is required is abundant political will to control the forces that deny these to the law colleges. But who will bell the cat!!!

My Idea about Law Library

2013-01-14T05:54:00.001-08:00

A library is the heart of a law school. More than lectures, what a law student needs is how to find the relevant law, where to find it fast and how to apply it to a practical situation. Guidebook exams, like what we see in Indian legal education scenario today cannot create good lawyers- just poor academics and legal apprentices. Law library is not just a storehouse of old books, it is a research lab for a law student, a place for meditation and reflection and reference and a touch stone to check the accuracy of classroom blah blahs. A good law library is one which would attract the students and researchers to it and not one which would turn away everyone who approaches it by its dusty atmosphere. It should have a calm and soothing atmosphere, where one can relax, read and reflect upon the theoretical expositions in the class room discussions. An ideal law library is a place where you can develop a liking to law, which does not restrict discussion except where it disturbs others and where there are facilities to enjoy and enhance your reading experience. My concept for a good law library for the future is a combination of online and offline legal resources available. We cannot expect law students of tomorrow to go to a library and take time to browse books to find the relevant law. There is too much of legal information already available online including legal databases and what is required is to train them not to find law, but to analyse it. Offline Law Library: A good offline library would have a mix of the following resources: a. Staff: Committed staff, with passion and understanding about law and its divisions is an unavoidable must for a good law library. Some one who does not know the difference between intellectual property law and property law would only create a havoc in a law library. b. Space: Library make one feel nauseated upon entering. A clustered library would do more harm than good- it will turn away even those students who are willing to read. A good library should have adequate stacking space, a well lit and cozy reading space and discussion space. If necessary, cameras should be used to check on the behaviour of users rather than the penetrating eyes of a nosy staff. A good reprographic facility with printing, scanning and copying facility is a must for a library. A stationery store, from where students can buy essential stationery items for immediate use in the library would be a good addition to a library. Though many libraries add internet and printing facilities to a library, it is better to separate internet facility from library many a times traditional library timings my clash with internet accessibility requirements. c. Resources: There should be a good mix of law books and general books for a good law library. To assume that a law student requires only law books is a fallacy; law derives its source from literature, politics, sociology, science and any subject that can be found on earth. A good law library would have a not less than 70:30 proportion of law and non law subjects. d. Timing: A good law library should be open 24*7 because God only knows when a person has mood to read, and when he/she gets into that mood, he should be able to find the book and a place! If 24*7 is not possible due to staff constrains, at least an 8 to 8 schedule during week days is a must if library should do any good. Online Law Library: Online law library of tomorrow is not going to have a locus: which means that it will not be located at some fixed place like an offline law library. Yes, it will be located in servers inside the college campus, but the way users access it would be much different from how people access an offline library: it would be accessible anywhere and everywhere to those who have the secure credentials to log in to the online law library. People can access it from their tabs, laptops and even mobiles, so that information is disseminated without constraints of time, location and space. The only constraint would be your internet or 3G speed and accessibility. While and offline library is a place where you relax and reflect, an online database is a repository of all knowledge you have in the world. It just needs a click of your finger to get what you need before your eyes. The thrust of an online law library is the availability of knowledge and its accuracy in your finger tips rather than its display. Currently available legal resources for an online law library in India: Online legal resources can be divided into free and paid: Paid Resources: Paid legal resources like manupatra.com, westlawindia.com,lexisnexis.com, http://www.indlaw.com/, http://www.scconline.com/,etc. would cost you somewhere between Rs 30000/- to 3.5 lakh per user. You can also try JUSTOR, which is a comprehensive resource of around 20-30 thousand journals, but it is known to cost somewhere between 9-12 lakhs per annum. (The rate of most databases are subject to negotiation and if you are a good negotiator, you could get a good offer). Free Resources: Free resources can be divided into databases and journals: Databases: 1. Indian Database Resources: Indian Kanoon (www.indiankanoon.org) is a good site of Indian judgments and statutes. It gives a good search facility, though occasionally you come across judgements which is incomplete. Its search facility helps you to search through the text of judgement, so that you can find the exact word or phrase you are searching for. It is one of the best resource currently available in India and gives better features than may paid legal databases for free! Mr Sushant Sinha, the brain behind Indian Kanoon deserves full credit and support for this marvelous free database. If you are looking for judgement from horses mouth you have judis.nic.in, which is the official Indian judgement information system It gives link to most High Courts and Supreme Court websites. 2. Indian Journal Resources: The e-library link of Bombay High Court website (http://bombayhighcourt.nic.in/libweb/judlibwebindex.html) is a good resource for online legal research and has been maintained excellently.I have not come across any other High Court as so well maintained as Bombay High Court and I hope if other High Courts follow suit, it is not far that Indian law enthusiasts would have a hey day. All cudos to Mrs Uma Narayan, Chief Librarian & Mr Anant Pawar, Section Officer, Bombay High Court Judges' Library, who developed such an excellent website and providing links to many interesting legal websites. If someone is interested in historical cases from India, don't look any where else but to the Bombay High Court website. Indian Legal Information Institute(http://www.indlii.org/index.aspx) has also tried to set up a free legal database in the model of balii.org and commonlii.org but compared to search facility and presentation of indiankanoon.com it is just a kid that has potential to grow. As of now it is just a link repository, with no additional features. 3. UK Legal Resources: Current UK Supreme Court cases can be found from http://www.supremecourt.gov.uk/decided-cases/index.html . Historical and older UK cases can be found from: http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm &http://www.bailii.org/ew/cases/EWHC/Ch/. While British and Irish Legal Information Institute's www.Bailii.org is a good resource for British and Irish cases, the official website for UK statutes is http://www.legislation.gov.uk/.http://www.parliament.uk/ is also another good resource for UK statutes. 4. Commonwealth Legal Resources: http://www.commonlii.org/ is a good resource for common wealth cases and statutory material. 5. US Legal Resources: Legal databases in United States, with is stringent copyrights laws is almost monopolised by a few paid database providers, which is recently brought to light by the tragic suicide of internet hackivist Aron Swartz. However, legal databases are available free of cost in US too. Free US cases can be found in http://www.supremecourt.gov/ while http://uscode.house.gov/ provides a consolidation of federal laws in US free of cost. Legal Information Institute(http://www.law.cornell.edu/statutes.html &http://www.law.cornell.edu/), an endevour of Cornell University Law School also gives links to US Code and state statutes including bills in the offing. 6. Other Legal Resources: Legislate online is a good site for statutes across the world. (Legislate Online-Criminal law for Eastern European Countries: http://www.legislationline.org/documents/section/criminal-codes). Chinese law can be found from http://www.lawinfochina.com/ & (http://www.chinalawinfo.com/). While China Law Info website is in chinese and you would need a google translation service to read the contents if you do not understand Chinese much, Law of China website has pretty much english contents as well. http://goov.org/ is a good resource for French legal system. While Europa(http://europa.eu/eu-law/index_en.htm)gives a fair idea about EU law and legislation. Journals: Social Science Research Network's Legal Scholarship Network (www.ssrn.com) is one of the best research site where we can get almost 100 odd online research journals free of cost. The articles are downloadable free of cost from SSRN. It contains an ever growing database of quality legal articles in every branch of law and other social sciences, and is the future of legal & social science research of the future. law.com, findlaw.com, www.lawgazette.co.uk, http://lawyerist.com, http://abovethelaw.com etc are some good legal journals. Other legal materials available online are: Washburn Univeristy School of Law's A-Z list of online law journals: http://www.washlaw.edu/lawjournal/ Hg.Org: http://www.hg.org/journals.html Directory of Open Access Law Journals:http://www.doaj.org/ University of the West of England Website: http://www.uwe.ac.uk/library/resources/law/freejournals.htm Harvard BlackLetter Law Journal:http://www3.law.harvard.edu/journals/hjrej/ Harvard Civil rights and Civil Liberties law journal:http://harvardcrcl.org/ Harvard Human Rights Law Review:http://harvardhrj.com/ Harvard International Law Journal:http://www.harvardilj.org/ Harvard Journal of Law & Technology: http://jolt.law.harvard.edu/ Harvard Journal of Law & Public Policy:http://www.harvard-jlpp.com/ Harvard Journal of Law and Gender:http://harvardjlg.com/ Harvard Journal on Legislation:http://www.harvardjol.com/ Harvard Latino Law Review:http://harvardllr.com/ Harvard Law review:http://www.harvardlawreview.org/index.php European Journal of Law and Technology:http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/ Law and Contemporary Problems: http://lcp.law.duke.edu/ University Law Review Project: http://www.lawreview.org/ World Legal Information Institute Website: http://www.worldlii.org/ Yale Law Journal: http://www.yalelawjournal.org/index.php

My articles-Published and Quoted:

2012-02-08T08:54:00.000-08:00

Published:

1. All India Bar Examination-Facts Reality and Law, Amity Law Review Vol 7, (Nos 1 & 2), July-December 2011 page 31.

2. Unit linked insurance products (ULIP) and Regulatory Tangle, (2011) PL February S-12

(Web link: http://www.supremecourtcases.com/index2.php?option=com_content&itemid=135&do_pdf=1&id=20388)

3. Regulation of Financial Derivatives: Some Policy Considerations- IUP Law Review July 2011(IUPLR21107)(web link: http://www.iupindia.in/1107/Law%20Review/Regulation_of_Financial_Derivatives.html)

I am quoted in:

1.Prof John Flood "Legal Education in the Global Context", http://blenderlaw.umlaw.net/wp-content/uploads/2010/09/Global_Legal_Ed.pdf, www.johnflood.com/summerschool/Flood_Legal%20Education1.doc & also in http://www.legalservicesboard.org.uk/news_publications/latest_news/pdf/lsb_legal_education_report_flood.pdf)(Quoted two articles: “Global Legal Education and India—A Blueprint for Raising Indian Legal Education to Global Standards” & All India Bar Examination—Facts, Reality and Law)

2. A K M AZAM CHOWDHURY, "MILITARY STRATEGY OF BANGLADESH TO COUNTER TERRORISM IN NEAR FUTURE",http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA547353(Quoted my article: Police Structure: A Comparative Study of Policing Models)

3.Farrukh B Hakeem et al, "Policing Muslim Communities-Comparative International Context" Springer, New York, 2012(http://books.google.co.in/books?id=qe4G9HF5umQC&pg=PA115&lpg=PA115&dq=%22Police+Structure:+A+Comparative+Study+of+Policing+Models%22&source=bl&ots=MV_uSSvAel&sig=AnsCyBUFNbN9nS_mSw2SZMCdraA&hl=en&sa=X&ei=mUQkUaqBL4nKrAevm4H4Dg&ved=0CFEQ6AEwBA#v=onepage&q=%22Police%20Structure%3A%20A%20Comparative%20Study%20of%20Policing%20Models%22&f=false)(Quoted my article: Police Structure: A Comparative Study of Policing Models).

4. Nabil Quassini, Arvind Verma, “Policing Minorities in the Arab World”, Springer, 2012(Quotes my article: Police Structure: A Comparative Study of Policing Models)

5. Portal of the Chamber of Deputies, Brazil, http://www2.camara.leg.br/documentos-e-pesquisa/fiquePorDentro/temas/unificacao-de-policias/legislacao-comparada(cites my article: Police Structure: A Comparative Study of Policing Models, in Comparative legislation section).

6.Also quoted as an online resource for CMRJ506 International Crime in http://apus.campusguides.com/content.php?pid=383143&sid=3139806

7. https://permanentsocialism.wordpress.com/2013/01/22/an-investigation-into-saudi-arabian-exceptionalism/

8. Routledge Handbook of Transnational Organized Crime edited by Felia Allum, Stan Gilmour.

9. "Corporate Crimes Committed During the Phase of http://ro.uow.edu.au/cgi/viewcontent.cgi?article=4671&context=theses

Review of my articles by bloggers:

2010-09-02T09:25:00.000-07:00

My papers appearing in various blog reviews:
1. Judicial Appointments:http://lawprofessors.typepad.com/civpro/2010/06/varghese-on-comparative-evaluation-of-judicial-appointment-processes.html
2.All India Bar Examination: http://legalperspectives.blogspot.com/search/label/SSRN%20papers
3. Social Dimensions of legal Education: http://www.legalethicsforum.com/blog/2012/02/social-dimensions-of-legal-education.html#more

Two books law students in Kerala must read!!!

2010-08-27T09:18:00.000-07:00

I am currently reading two Malayalam books- "Abhibhashakavrithiyile Abicharngal(translation of title:"Exorcism in Advocacy") and Judiciariyile Abhicharangal(translation of title: "Exorcism in Judiciary") both written by Shri P C Ulahannan, an advocate and former Government Pleader of Kerala High Court,and published by Pen Books. These books reveal the darker side of legal profession and judiciary and brings home the truth that everything is not rosy in either advocacy or judiciary. The author, using very harsh words, borne from his background as a struggling lawyer, has brought out the worst side of judiciary and legal profession through these books. Every person who has ever worn the garb of lawyer would certify that most of the pictures drawn by the author are nothing but the grim reality of legal profession. A passage that has especially drawn me to absolute agreement is that legal profession in India, which is fighting for the legal rights of others is the only profession which does not have minimum wages,- an irony which should open the eye of every practicing lawyer and administrators. Many of the stories narrated by the author are known to everyone, but those which no one dares to speak. All kudos to the moral courage shown by the author who is also a member of the profession to come out in open with these stories, so that they do not end up as tea time stories or gossips going round in the bar association halls, but are put down in writing to be discussed those interested in the welfare of the profession.
One of my students once told me about a proposed meeting in Calicut to demand minimum wages for junior lawyers-I was told that the seniors had threatened that those who participate in the meeting would be ousted from their offices, and ultimately many of the organizers themselves did not attend the meeting!! I am not personally sure whether the story is true or a fiction, but what I know is that during the entire period I had practiced, I was never paid anything by my seniors!! Every law student and every new entrant to legal profession must read both these books, and should make up their mind to change the situation. I firmly believe a change can be brought in only through reorganising the bar into corporate set up, instead of leaving legal practice to individual lawyers. This needs to be done through legislation rather than leaving it to the individual choice of lawyers, as this is the only way minimum wages and decent working conditions can be ensured to lawyers.It is hoped that the administrators and legal profession will wake up to the reality that it is their duty to ensure that every new incumbent into the profession is given a decent means of livelihood so that general public does not look down on the profession as a resting place for unworthy citizens!!!

My SSRN pages

2010-05-19T02:45:00.000-07:00

John Varghese
--------------------------------------------------
View my research on my SSRN Author page:
http://ssrn.com/author=1481995

Government Law College, Kozhikode-Dream 2020

2010-05-05T01:26:00.000-07:00

You cant call it a vision, because a vision is something you foresee to happen in near future and so I call it a dream- a dream which may sometimes come true!

Here is how I visualise the infrastructure and acadamic changes in Govt Law College, Kozhikode by the year 2020. This would be in the backdrop of dual degree programmes as suggested by BCI for Law degree courses.

Academic:

1. There will be combined degree courses such as BA(Psychology)-LLB, BSc(Forensic Science)-LLB, BBA-LLB, BA (Criminology)-LLB, BSc (IPR)- LLB,BCom-LLB, BTech-LLB, MBBS-LLB, BA (Economics)LLB, BA (Politics) LLB in collaboration with other Government educational institutions in and around Calicut.
2. Entrance will be through CLAT or similar examinations and +2 or degree marks with no compromise on the student quality.
3. All the courses will be in the Credit and Semester system, and the students who are enrolled in Govt Law College, Kozhikode, can attend classes in the various colleges in collaboration with Govt Law College for the courses conducted by them. The credits scored by the students will be shared at an institutional level and the final score card will be prepared by the Govt Law College, Kozhikode. Similarly, students enrolling for courses in other partner institutions can also attend classes in Govt Law College, Kozhikode.
4. The examination would be for each course, and completely internalised, with marks divided into 50% for assignment, presentation, moot courts & viva and the rest 50% for an online examination conducted by an external agency, in the pattern of GMAT(1 word +2 essays.)The one word questions will be set from a question bank of which would intitially start with about 100 questions for each subject, which will be edited and added to by the teachers from time to time, and the question bank and the answerkeys would be accessible to the students. The questions will be finalised after seeking objections from the students and the lawyer community in general.
5. Instead of current system of conducting moot courts as a seperate course, moot courts and mock trials, where ever possible would be an integral part of each subject, and the students have the option to choose between taking moot courts or assignments, with the condition that a student should take at least one moot court in a semester, with freedom to choose the subject for which he takes the moot court.
6. The University would have duty only to provide the final degree certificate on the basis of credit sheets forwarded by the college.
7. There should be no more than 25-30 students in each batch, though the college can have more than 1 LLB batch eg 1 batch for BA(Psychology)-LLB, 1 for BSc(Forensic Science)-LLB, 1 for BBA-LLB, 1 for BA (Criminology)-LLB,1 for BSc (IPR)- LLB,1 for BCom-LLB,1 for BTech-LLB,1 for MBBS-LLB etc.,the total student intake however not exceeding 100-150 in a year.
8. There should be a feed back mechanism for the students to give their views about the teaching style and attitude of the teachers, which would not have any bearing on the teachers performance assessment, but would be shared to the teacher to for better management of classes. It would be ideal if such a survey is conducted by an independent agency, and the data of individual student participating in the survey is not shared with the teachers, though overall data and results shall be shared with the teachers privately and individually.
9. Visiting faculty from other law colleges in and out of India would be taking courses and addressing students at least once in a year in Government Law College, Kozhikode.
10. The legal aid clinic should be providing legal advice-free as well as paid advice to outside clients and general public, charging fee based on the income criteria of the clients, and there would be an ADR center in the college, which will utilise the experience of both teachers and outside experts where students can get on the job training on ADR activities.
11. Students to undergo mandatory internship in any 5 of the following organisations-an NGO, a trial court lawyers office, an appellate court lawyers office, corporate legal department, a law firm, judicial clerkship, law library.
Infra Structure:
1. State of the art class rooms, with Interactive boards and touch screens for teachers and students and public address systems in all class rooms. The class rooms will be dust free and as far as possible cool. Wooden furniture will be replaced by custom made and Eco-friendly furniture, with individual seating. The students will be responsible for the maintainance of the college furniture in an individual and collective manner and unless the cost of furnitures destroyed by the students is not reimbursed the degree certificates would not be released and further the future employer, and Bar Council of India would be informed about the loss to be recovered from the student and no enrollment or employment would be permitted unless such amount is paid by the student to the college.
2. Tiling of the entire buildings to be completed.
3. Digital library and internet room with at least 40 seats. Digital library to have all the major online and CD rom resources in the world.
4. Automation and extension of current library converting it to a separate library complex, with all books RFID tagged and bar coded. The interiors should be dust free and cozy, with sofas replacing chairs and tables. Air conditioning if possible. Library should be open 24*7. Access to the library to be controlled by biometric identifier.
5. All students should have biometric ID cards. Course system with about 25 students in each class would facilitate moving completely to an automated attendance management system.
6. Bio gas to manage waste and solar electricity to manage the power systems.
7. Academic complex for class rooms and faculty rooms, with each faculty in charge of a separate class room. Instead of teachers going to classes, it would be students coming to each teachers class. Faculty rooms would be adjacent to each class room.
8. All class rooms to have internet and digital library content access through wifi and wired connections.
9. Hostel rooms to have better facilities like chairs, dust free atmosphere, restricted entry.
10. Full fledged canteen in the campus.
11. Faculty and students rest rooms, with Air Conditioner and wifi internet access.
12. Separate reading room for news paper reading.
13. Open air arena-cum multi purpose ground.
14. Jogging track
15. Multi gym.
16.At least 1 Guest room with air conditioning and toilet facilities for visiting faculty.
17. Complete automation of the office and student attendance management.
18. Conference room with conferencing facilities.
19. Backside exit to Principals room to avoid locking up by students.
20. Moot Court hall with state of the art facilities.
21.Renovation of auditorium with sound proofing, air conditioning, carpeting,non permanent cushioned seats and stage arrangement.
22. Seminar halls for conducting small seminars.
23.Garbage bins at various points in the college, with the bio waste moving to centralised bio gas plant and other waste to be recycled.

The list is large to make the readers feel I am mad!! But its a dream and I think the achievement of each of items in this list is not an impossible one! It needs the teachers and students working together. It also needs a huge,no gigantic governmental support since the infra structure and academic changes cannot be financed through internal methods, though consultancy to teachers and st

Some Suggestions to improve quality of legal Justice administration in India

2010-04-12T11:41:00.000-07:00

1. Complete computerisation of courts and interconnection of court network giving real time court room picture to lawyers, litigants and public.
2. Enabling e filing
3. Promoting arbitration and mediation as not just alternative methods but mandatory preliminary steps before litigation.
4. Where ever possible chief examination to be made by affidavits
5. Recording of trials-
a. help review, revision and appeal judges to better appreciate oral evidence,
b.help to preserve the "lost evidence"
c.promote quality of trials
d.provides additional resource for legal education
6.Digitisation of entire court records-
a.help transfer of trial record seamless, and gives an efficient back up mechanism.
b. helps better space management of courts
7. E filing to be made mandatory-
a.promotes access to justice to lay litigants from far off places
b.helps simplify litigation process
c.reduce paper load and storage space required in courts
8. Make court room furniture litigant friendly
a. more room for litigants and public
b. separate seats for witnesses who are public spirited citizens, and deserve better treatment in courts.
c. witness boxes to be removed and instead witness seats to be given,from where witnesses can give evidence in a friendly atmosphere.
8. Law colleges to be made permanent seats of arbitration and mediation-
a. helps sharpen the mediation and arbitration skills in lawyers at early stages
b. instills firm belief in utility of arbitration methods in young lawyers
c.makes real term clinical legal education a reality
d. clinical methodology can be imparted without much efforts.
9.Expertise of law teachers to be utilised for improving efficiency in administration of justice-especially since Indian constitution provides that jurists of eminence can be appointed as Supreme Court judges and jurists interalia includes law teachers and the qualification of law teachers interalia includes those required for a judge.
10. Legal education systems to be strengthened to create an ethical bar and a sensitive and academic bench. Value education to be made compulsory topic of legal education in the opening semesters.

Free Online Law books in India

2010-02-26T09:02:00.001-08:00

Some free online law books:
ebookee.com/law.html
sites.google.com/site/gyanendrasinghchauhancom/
indiankanoon.org/
judis.openarchive.in/ (scc)
judis.nic.in/
judis.nic.in/supremecourt/chejudis.asp (SCC)
supremecourtcaselaw.com/ (SCC)
indiacode.nic.in/
lobis.nic.in/mhc/srjud.php (MP HIGH COURT JUDGEMENT)
legalserviceindia.com/
dictionary.law.com/
lectlaw.com/def.htm (law dictionary online)
books.google.co.in/books?q=law
vakilno1.com/
gigapedia.com/
answeringlaw.com (scc)
gunaccessories.com/ (ARMS)
indiabook.com/Government/Law/index.html
indianlawcds.com/Free_indian_bare_Acts.htm
india.gov.in/govt/acts.php
legalhelpindia.com/cause-lists.html
lawzonline.com/
legalindia.in/
legalapproach.net/
lawguru.com
indlegal.com/
rtiindia.org/
indlii.org
loc.gov/law/help/guide/nations/india.php
forensic.jouwbegin.nl/
divorcelawyerindia.com/
stpl-india.in/

My Lessons as a Seminar Organiser..what i didnt learn before and learnt after!

2009-11-23T07:58:00.000-08:00

1. Never under estimate your capabilities. You can achieve what ever you want if you work with single minded devotion.
2. A good support system is a must to be a good organiser. Bank on your friends.
3. It is not enough to give your students a great lunch! You have to beg to them to come and have it or else they will try to defeat you by not eating the lunch!.
4. Law students of this generation have not even heard of a concept called direction-especially if they are studying in a University which tries to take away even the small direction the teachers try to give by unscientific examination system!
5. There are a few good students, among all lots.Keep eye on them alone and leave the rest behind..u will succeed!

New Challenges in Legal Education:

2009-10-03T10:53:00.000-07:00

Nothing is static-nor is legal education. Law being an instrument and creation of social change at the same time, legal environment changes with the change in the society. And society changes with the advancement of time. It would not be wrong to say that every second the legal system goes through some change or other. Some changes are made by courts, some by legislature, but most by the natural forces-human behaviour, perceptions about law, natural climate etc. do have some or other bearing on the legal system of the country.
As some realists say law is like a living organism. Its growth-whether direct or collateral is as amazing as the development of the Universe. Along with the growth of law, the legal professional also needs to equip himself with new tools for survival. Traditionally law is regarded as a self study subject. What ever be the jurisdiction, law schools could never boast that they teach the students a-z of law. Nor could they boast that the entire basics of law could be imparted during the students tenure in law school. What the best of the law schools can claim is that they are able to equip the students with an outlook which would help the students to understand the law, if they have time to devote for law.
This is exactly where the legal education differs from other education streams. A doctor get most of his training from the medical school, and engineer or a science/arts/history student gets his basics from the engineering school or basic graduate school, but a lawyer never gets any skill from the law school. What he gets is an approach and an aptitude for law, which he has to horn himself. Perhaps this is what many law students do not understand while undergoing a law course. Most of the students join law courses with an intention to learn law-which many law schools try to deliver, but fail miserably because of the ever changing facet of law.

Report of the Legal Education Review Committee

2009-07-30T12:35:00.000-07:00

Finally a copy of the report is out. While one should appreciate the academic initiatives suggested in the report including increasing work efficiency, which aims at improving the standard of legal education, and has some stains of a genius mind working on it, when one reads through the other suggestions, including the draft bill, it reminds of the story of a hard working ant forwarded to me by a friend.
The story goes like this:
Once there was a hard working ant which was working very productively without much supervision.The owner of the factory, lion was very happy with ant's work and thought that if the ant can be so productive without supervision, how much more productive she can become with a little supervision. So lion recruited a fox to supervise the ant, whose first task on the job was to get a posh office for herself.Fox was very good in preparing reports and making presentations, and hence started demanding from ant all types of reports to be forwarded to lion. Ant got depressed in her work as more of her time was devoted to preparation of reports and less on productive things. When the reports become numerous, fox appointed a secretary, then a work flow manager and purchased several computers to analyse the work. It was revealed in the reports that the factory has suddenly become un productive and the company decided to appoint a commission to enquire into the reasons for unproductive work. The commission identifies one employee as the root cause for the loss, as she was a low motivated and an un productive employee- guess who was recommended for termination-----the ANT.
Well, till I read the report, I thought this story was just a fiction,and it cannot affect me. Now I understand that the Legal Reform Education Committee has just done the same- Dismissing the ant called Government Law Colleges.
What I decipher from the report is:
The major maladies that face the law education in Kerala are:
1. Government Law Colleges- so reduce them as Undergraduate institutions!
2. Law Students- so make them pay higher fees and throw them out!
3. Law Teachers- Dismiss them-er abolish the posts! or be a slave to the principal(Director) of the law college!
The result will be:
Only people who have money need study law- (when you have cake why should you eat bread!)
Law teachers can be selected by Principal- (Well relatives of Politicians and Principal's children should also live and eat!)
Law teachers would have to work like slaves of Principal, or Members of the Board of Legal Education- (Well lawyers should not have ego and so law teachers, should not have back bone!)
Establish a legal education board- (Well some secretariat employees, who joined as assistants need a deputation posting at a convenient place to rule over law teachers!)
While I do not question the stature of the eminent members who were members of the commission, including my teachers, what I do not understand is: Why has the Government not included a representative from Government Law College as all the previous governments did, when a commission to reform the legal education sector was constituted? Or was the Government also wanted to do away with the law colleges in the government sector?
Secondly, when the commission is assuming that most of the law college teachers would join the Board for better emoluments, why was not there a single question in the long questionnaire prepared for teachers, whether they are willing to opt for the alternate service?(Obviously to avoid conflicts in the commission sittings!)
After reading through the entire report, what I feel is that the commission has utterly failed to discharge its task in understanding the problems faced by legal education infrastructure in Kerala in its socio- political and economic context. If one reads the entire report, it can be seen that the report has not mentioned how it has come to the conclusion that the present method of appointment of law teachers through Public Service Commission and their functioning as government servants is the reason for the low standards of legal education. It has also failed to note that the students who are joining the elite institutions like National Law Schools are selected by a national level test and interview, by law teachers themselves under the guise of CLAT, there are no quality checks for the standard of questions or chareterists tested through the questions prepared for Kerala LLB Entrance. I am giving an open challenge- give functional autonomy to Government Law Colleges including conduct of examinations, give us the students selected in CLAT, and give us four year-we can show how cost effectively we can improve the quality of law colleges!If you have good students, and a good infrastructure with committed non teaching staff, we can show how far better we can make our students than any student of National Law Schools. Instead of concentrating on the issues of functional autonomy and student development what the commission did was to concenrate on closing down the Government Law Colleges and throwing out government law college teachers and that too without even asking a single question to law college teachers on the acceptablity of serivce conditions. The whole report is made on a misconception that Government Law College teachers have a different scale of pay and they do not get the UGC scale of pay, while the reality is that there is no real pay scale difference, except in some fringe benefits, which would otherwise be available in their status as government servants. So the bottomline is- while it is undisputable that Shri Madhava Menon is a doyan of "Indian elite legal education" what the Government Law Colleges is planning to do in the country is to provide accessible legal education to all, which objective was never seen by any member of the Legal Reform Committee. In fact if the committee had reported regarding the change in curriculum, increasing the new subjects, making Kerala Law Colleges globally competitive, all the while making it less expensive by allowing private participation in specific projects, and taking up consultative arrangements for private enterprenuers, and giving incentives to faculty members who would actively participate in the income generating projects, without sacrificing academic duties, it would have been much more acceptable. But perhaps that is more acceptable to level headed people- but may be not to those people who want to head the "Legal Education Board" and ensure that all the teachers bow before them!! What every one is forgetting or failing to forget is that if one takes the list of best law colleges in the country, Government Law College, Mumbai stands prominently and without losing any government character! So the bottom line is- it is not the government character, but the curriculum and initiative for teachers and students to indulge in academic activities is much more important in developing a global legal educational standard. The bottom line there fore is that the part of the report regarding changing the government nature of Government law colleges and making law college teachers bow before The so called under ground players who want to get into plum postings in the board, is thoroughly misconceived.

Disclaimer: Please note that the views expressed here in are not meant to hurt any one, including Dr Menon and other members of the Legal Education Reform Committee, whom I consider as my teachers and honourable persons, and this blog is intended just to kick off an academic debate.

Report of the Legal Education Reform Committee

2009-07-25T20:46:00.000-07:00

The Legal Education Reform Committee headed by Hon'ble Shri N R Madhava Menon has submitted its report to the Government of Kerala on Saturday, July 25, 2009, The committee has rightly identified that the legal education in Kerala needs reforms, and has advised the government for reform in the legal education sector. The full report of the commission is yet to be made available to the public, but as per press reports, the salient features of the report titled: "Reforming Legal Education System in Kerala: Goals, Strategies and Management" are:
1.A Legal Education Board should be established in the state, and all law colleges should be bought under the board.
2. More self-governing powers to be given to the law colleges, which would be gradually upgraded to universities. Curriculum, appointment should be done by law colleges themselves.
3. Exam system to be completely internalised, and curriculum development to be left to individual colleges.
4. More refresher courses for law teachers.
5. Accountablity for law teachers, with assessment of teachers by students.
6. Each law College to come out with a vision statement
7. Law Colleges to offer paralegal courses and non law courses.
8. Legal education from class 10th.

There are conflicting reports regarding how the report has dealt with the LLM education. While some reports say the committee recommended removal of LLM from the law colleges, other reports suggest that LLM should continue in the present manner.

While its is preliminary to comment on the report without seeing the full report, it is worthwhile to note that no one would disagree with the committee that there is an urgent need for reform in legal education.

While an analysis of the positives and negetives can wait till the full report is made available, there are some concern areas in the committee report(as reported in the press) which has to be examined in detail before the committee report is implimented. Some of this are:
1. Autonomy in appointments: Currently the appointment to law colleges in Kerala is being done by Public Service Commission, which is an independent body. As a result there had been lesser(one can even say nil complaints) of favouritism in the law college recruitment system, which is more merit oriented than the selection for the posts in University departments.(In the recent past there have been reports of political interferrence in the selections made in at least three university departments- (When the ranked list for selection of lecturers were out in Kerala, M G and CUSAT, the top rank "incidentally" went to a candidate who happened to be the wife of a "journalist political leader" of the ruling party, whose "relative merit" might have helped her selection!What is known is that all these appointments are currently being challenged in courts). Further selection for lecturership in the university departments are known for nepotism and political interferrence and giving autonomy to the law colleges in selection of lecturers without proper guidelines would only add to the nefarious reputation of legal education in Kerala.
2. LlM Education: Some reports have suggested that the LlM education is to be dissociated from law colleges and confined to university departments. If this is correct, it would be a retrograde step, as the aim should be the spread of quality legal education and not the restriction of education to a few university departments. Instead if the suggestion was to strengthen the Llm education in the law colleges by raising the infrastructure and ensuring quality, the long term goal would have been met.

Since these are just preliminary comments, without seeing the contents of the report, there may be misconceptions, which will be corrected once the report is available. However, it is suggested that the government should involve all the stake holders including law college teachers and students before finally acting on the report.
It would be interesting to read the following materials along with this blogport(blog report):
1. Report of the Legal Education Reform Committee appointed by National Knowledge Commission, where in Dr Menon was a member( Available for download from :http://www.knowledgecommission.gov.in/recommendations/legaleducation.asp.)
2.C Rajkumar, "Global Legal Education In India: Opportunities And Challenges", Halsbury's Law Monthly(http://www.halsburys.in/global-legal-education-in-india.html)
3. Law Commission Report on Reform of Legal Education:(lawcommissionofindia.nic.in/reports/184threport-PartI.pdf)
4. Bar Council of India Rules on Legal Education:(http://www.barcouncilofindia.org/legal-education/rules-legal-edu.php)

National ID Project

2009-07-06T03:52:00.000-07:00

Recently the government has announced the prestigious National ID project,appointed Mr Nandan Nilekeni, Former CEO, Infosys as the chairperson of Unique Identification Authority,and allocated Rs 150 Crore in the Central Budget 2009-10 for the project. The Unique ID Authority of India (UIDAI), under the aegis of the Planning Commission, is aimed at providing a unique identity Card to every citizen in the country.

Some of my thoughts in this regard is as follows:
1. National ID is one of the most progressive project proposed by the Country in recent years, which can have wide spread impact in population management.
2. It is not a project unique to India, as many countries across the world have already gone ahead with similar project. But what makes the Indian project different is the huge population involved making it logistically and physically impossible to reach each and every citizen of India, and the UIDAI, should take steps to overcome this hurdle.
3. As per the initial reports, UID is going to be biometric enabled photo smart card. If the card is biometric enabled ie the finger print of every citizen is captured in the card, why can't the card be a replacement of all the current national ID's including passport, pan card,ration card etc. In addition, if a law can be brought in to include all major events in the persons life, including date of birth, date of marriage, spouses name, spouses' date of birth, parents name & date of birth,physical details like blood group, distinguishing marks etc. as well as all medical records,credit history and scorings etc so that the card can be used as a complete encyclopedia about a citizen,it will be of advantage in the following manner:
a. It can serve as a one point reference point about a person,which can be the basis of every commercial transaction with the person.
b. If the card be made in such a way that it is ATM enabled, all bank accounts (Credit and debit) can be linked to the UID card, which will dispense with the need of multiple plastic cards to hold the credit and debit information of the person. Since the data can be decrypted only with the finger print of the holder of the card, which would make it the most private card ever made available in the country and at the same time the most comprehensive record of the monetary transactions of a person. On a citizen front it would save the citizen from hazzles of keeping multiple records of his monetary transaction. Slowly it can become the starting point of moving into plastic currency, which is fully accountable. Such a step would end the menace of black money market as well.

Legal Education in Kerala

2009-04-09T11:44:00.001-07:00

Yesterday I just sketched the facts relating to the place where I am teaching. I didnt leave any remedies, because I dont have any panacae for this state of affairs. I am aware as any one else who is genuinely interested in bettering the state of affairs that it won't be possible for any single person with a majic wand to change the state of affairs in a day. I am fully aware that it will take at least a full academic year to at least move things in the right direction. Within the short span of 6 months, I think that we were able to take at least some priliminary steps towards this goal.

As mentioned in my previous post, we have been blessed with the whole hearted co operation of the teachers in improving the situation. One of our teachers have successfully conducted at least 3 seminars which got great attention of the students. Next semester onwards a compulsory seminar class is proposed for all classes. We are also proposing to conduct an international Seminar in Banking Law, so that students can get a feel of what is evolving in these fields.

While trying to work out a mutually profitable solution, there is one aspect which is worth noting. One of my collegue who had been a teacher for last 14 years had commented that ever since Kerala Government started conducting entrance examination for admission to 3 year LLB course the quality of students deteriorated significantly! Common entrance examination was intended to find out students with the right attitude and aptitude so that they undergo the 3 or 5 year course with the right set of mind. I am also not ignoring the fact that the Common Entrance Test for 5 year LLB courses have helped to identify some students with right potential, the experience with 3 year LLB course is entirely different.

For the readers from other countries, India has three (or four or more) types of LLB courses. While there is an integrated BA LLB(Hons) in National Law Schools, other law colleges follow a 3 year LLB in 10+2+3+3 model and 5 year LLB in 10+2+5 model of higher education. Some universities even now call the law degree as BL (Bachelor of Law)while most others have renamed the degree as LLB(LLegum Baccilareum). Some IIT's have recently started MBA LLB and B Tech LLB, which as the name suggests integrates Master of Business Studies and Bachelor of Technology(Engineering Degree) with Law.

Now going back to the old story- what ails the 3 year course? To understand this we need to first understand the age factor of the students undergoing 3 year LLB course as compared to those undergoing 5 year course. While most of the students who had been undergoing 5 year LLB course are of the age group 17-21, the age of a student undergoing 3 year LLB course earlier used to vary from 21 to 61 or even greater! But now a days, you seldom find an aged person in the LLB course as compared to those good old days!

Now what is the problem? As I see it, we need to distinguish 3 year LLB course as a finishing course compared to 5 year LLB course as a professional course. Earlier many elder persons who were genuinely interested in pursuing Law used to joing LLB course. Now since many do not want to go throught the ignomity of writing an entrance examination along with their children, such persons have stopped coming to study law, even though they have a genuine interest in the subject. As a result the number of students appearing for entrance examination is very low and inorder to fill the available seats, it is said that even those who get 0 marks in entrance examination are given admission! Now how can you expect those 0 marks students to have the right aptitude?

When I joined teaching, I had in mind the standard of students who had interacted with me during my college days and professional days. During the past 6 months I have tried to make my students speak up.! To my astonishment I have found that many of the 3 year course students are unable to properly express their thoughts even in their mother tongue.A hand full of answer papers valued were so pathetic that even Samuel Johnson would wonder about the language!!

Geomap

2009-04-09T03:08:00.001-07:00

An Introduction to Law Teaching..a law teacher looking back

2009-04-08T11:15:00.000-07:00

Taking into law teaching has been an interesting turn in my life. While I was a Legal Manager, I always thought teaching was more an academic exercise rather than a managerial exercise. But now I can vouch that teaching is more a managerial experience than anything else.
The foremost subjects to your management skill is ofcourse students- though you have to manage your time, resources and mind equally well. While so far I have been blessed with exemplary collegues, who are willing to take any effort, the lack of resources have been a bane for these spirited teacher collegues of mine.
Students come from different sections of the society, have different temperements and different outlook towards their future and every aspect in life. While as a manager, you may often be blessed with an almost homogenous group, with somewhat similar temperements and outlook to life(if you happen to build a legal department, then this almost can be taken away!) in a law school, you get students as hetrogenous as anyone can imagine.

Traditionally a government law college in India looks like a government hospital except in one count- in law college, you see empty or almost empty class rooms where as in a government hospital you cant even imagine one empty bed!. One can even say it looks like a government poundry these days...ugly and smelly class rooms, scarce commodity called students,political hue and cry and frequent quarrels among inmates! A collegue had remarked once that the biggest skill a teacher acquires from a law college is the skill to take class to a switch board!

My grandfather who had his legal education in 1920's remembers a time when many students used to attend classes. I have seen National Law Schools where a majority of students attend classes. While I have felt that the quality of teachers is almost same every where(ofcourse there is a difference in outlook towards education) what is lacking is perhaps a motivation among students to attend classes.

Prof Madhava Menon, who headed a committee for legal education reform in Kerala while interacting with students of government law college is said to have remarked is that the reason for non attendance is the low fees that is being collected from the students,and once the fees is hiked to Rs 50000/- students will not dare to bun classes. I strongly disagree with this proposition, since fees does not have any bearing on the attitude of students. I can visualise a student, and I have seen many behaving in this fashion- who thinks it is the duty of his parents to bear the cost of his education and his duty to enjoy his life! Now if his father is paying Rs 50000/- or Rs 100,000/- what difference does it make to him?

But then what is that which tends to keep students away from class? One obvious reason is lack of motivation. Every one here knows that even if you dont attend the class you can pass. Every one here knows that leaders of politcal outfits doesnt attend even a single class and still they sit for examination after obtaining duty certificates for drama competitions, and even for food committees for university youth festival. Every one here knows that even if you dont study, you can get away in the examinations since examiners are afraid of student power. Now what is then your motivation to study?

The question is how can we clean up?

2008-08-07T22:44:00.000-07:00

When i started this blog, i thought of using it as a platform to share whatever i have earned through experience with others. Personally, i hate intellectual property, as a concept, which prevents free sharing of information. Indian tradition teaches that knowledge develops through sharing, and any knowledge that is kept in wraps, which is away from the reach of the world is no knowledge at all.
I had been in corporate world for more than 5 years. I am proud to say that through out this short career, i have got appreciation from my employers and peers. With a total experience of around 10 years, i felt that it is time for me to pass on some of my learning to others. Hence i am moving out from the corporate world into teaching...Wish me good luck!(some times what ever knowledge i have could be half baked.but even then i would prefer to roast it in the academic crucible, and i would be happy to be a link between academica and industry...if some one from industry would care!!!)
I come from Kerala. I have seen that most of the Inhouse legal departments in the country have atleast a malayalee law officer. However sadly, when it comes to campus recruitment of law officers, no one would prefer to try a law college in Kerala, quoting a variety of reasons. I have also seen that many a times campus recruitment has turned out to be a mere hype. It has become a fashion for companies and law firms to rush to one or other law school. Now a days it is more or less like a fashion symbol to have gone to a premier law school and recruit from there. This is almost like the competition between society ladies in getting some goodies..like having a particular breed of a pup...she just wants it because her friend has it..there is no other apparent reason for her to have a pup.... In this process the quality suffers a lot. Further many worthy students of law schools which do not come within the premium list have to stand outside, without getting an opportunity to prove themselves. As a result both the industry and academicia suffer. It should be the endeavour of both the industry and academicia to find a way for quality check. Unless a tougher and more objective quality check is put in place, the academica and industry would both suffer on account of this frenzy, and the next decade would show a reverse drive of campus recruitments.

Litigations Management:

2008-05-02T09:36:00.000-07:00

Lot has been said about managing litigations. Lawyers would ask: what is the big deal, we are managing this day in and out. Managers would say: This is simple, just entrust the case to a lawyer and sleep over it!. But for a corporate an ill-managed litigation can lose it a fortune and in a worst scenario, even its existance will be at stake. A company can be even wound up if a litigation involving a few thousands are not managed properly.

Many small companies entrust the handling of litigations either to finance department or to some other generalists. For those who do not know law, managing litigation is to entrust the matter to a lawyer and report the developments to the management. Thus litigations become too much reliant on the lawyers, and if the lawyers are not competent enough or they fail to understand the intricacies of business undertaken by the company, the matter goes for a toss. Hence it is important for a corporate to have a full fledged legal department, who can manage the litigations and legal affairs in a co herrent manner.
Core issues in litigation management:
1. Understanding the business logic
2. Understanding the legal risks involved in the business
3. Understanding the stand taken by the opponent
4. Understanding the lawyer who handles the matter
5. Understanding the court which hears the matter
6. Understanding the public perception about the matters involved in the litigation.
Many seasoned litgators would frown when I am saying about these 6 understandings, especially about the last understanding-public perception. But before any litigation goes to court, one should understand that any trial in common law countries is public trial and all matters involved in the matter would be laid open to the public. So if you dont want to make the issues public the thumb rule is : settle and close the matter before it reaches court.
Strategy:
It is imperetive that before one enters into a litigation, one has to formulate a proper strategy. Many a times, legal departments of corporates, just become a post office for forwarding the litigation file they receive from the internal departments to the lawyers and obtaining the details from the lawyers and reporting the same to concerned departments. Enthusistic law students who join legal departments come out after some years as senior clerks, and move on to other departments, all the while claiming that they have understood handling litigations. The maximum they have understood would be to manage litigation mis's being maintained in legal departments to inform the management about the status of pending litigations.
The base strategy for any litigation is that litigations should be seen as a war. Both in war and litigations, you have no option but to win. The strategisation should also be more or less similar to a war. Many serious litigators keep a copy of Lao Tse's "Art of War" in their library along with the law books.
The 6 understandings mentioned above are those which are also considered by a serious general going to war. He will have to understand his ground before he launches an attack. If he knows that he is on a losing front, a good general would only try to minimise the loss of his man power by making a strategic withdrawal. However, a strategist general would also keep in mind the boost in morale a victory can give to his men and the harassment such a withdrawal can make.
There are variety of books detailing the strategy to be adopted in litigations. Since my purpose is only to give a birds eye view, I am not dealing much into these strategies.
Some important tips:
1. Dont rely too much on either your individual judgement or a single lawyer's judgement while handling litigations. While in doubt, dont hesitate for a second opinion. God knows, perhaps this second opinion may save the day.
2. Always have the saddle of litigation in your hand. If necessary do discret checks or surprise visits to the courts to understand the manner in which the lawyer is handling the litigations.
3. Always understand that more than law, several other factors including the mood of the judge on the particular day of hearing may count in winning and losing of litigations. Sometimes, just some crank call from some telemarketer might turn the judges mood against a corporate which is other wise running good business, which would ultimately end up in the corporate losing a cake walk case. There have been even instances where judges have got confused between two companies by similarity in name and have passed strictures one company quoting faults of the other, which had personally peeved the judge.
4. More than others the litigator should understand that litigation is time consuming and long term strategies should be drawn rather than for short terms, unless business interest demands a short term strategy only.
5. Litigations is having more a nuisance value among opponents than any actual hit, more so when both the sides are corporates. So in such scenario, the advantage would go to the one who is able to inflict maximum injury to the other in short term, since there is a greater chance that the other side may come forward for a compromise after one or two such hits.
To conclude, a serious litigator would be one who keeps his eyes and ears open, understand his and his opponents, and his lawyer's and opponent's lawyer's and some times even the judges' weakness and strengths and seize the first opportunity to get maximum advantage.