Legal Advice and Information Relating to the Law

Legal Advice and Information Relating to the Law

The story of how they became legal eagles

As compared to those lawyers who cannot be called legal eagles, a legal eagle is one who is clever and aggressive.  Therefore, journalist Indu Bhan’s book, [Legal Eagles, Random House India, Rs.399] narrating the success stories of the top seven Indian lawyers, would necessarily make its readers curious about what is so clever and aggressive about them that sets them apart from others of similar ilk.

Indu Bhan’s choice of seven is partly influenced by practical considerations of narrowing one’s focus for writing a book of this kind.  As there are surely more than seven successful lawyers, what justifies her criteria of including one and excluding someone else? Are those excluded in the book less clever and aggressive?  While one has to read the book to get the right answers, one can take her word that she narrowed her area of choice to post-liberalization era.  She regrets that she could not include a woman, despite being a woman.  But many would find her inability to find a woman subject for her book unconvincing.

That apart, there can be no dispute with her rationale that lawyers – top lawyers especially – contribute a lot to the reasoning of the Judges in their judgments, which become binding on all of us, but there is very little literature on successful lawyers.  But what makes them successful in the first place – or to borrow the literal meaning of the book’s title – clever and aggressive?  A legal lineage, with parents also in the legal profession, certainly helps.  It is not surprising that parents of five of the seven subjects of Indu Bhan were or are successful lawyers.

 Thus Harish Salve’s legal career began when he assisted his father, who was a chartered accountant, in 1975 in actor Dilip Kumar’s case.  Our present AG, Mukul Rohatgi’s  father was a lawyer practising in Delhi and later became a judge of he Delhi High Court in 1972.  Abhishek Manu Singhvi’s father, L.M.Singhvi was himself an eminent lawyer.  As he tells the author, “I could see law, I could smell law, and everything had the flavour of law at home”.  Both Prashant Bhushan and Rohinton Nariman are children of hugely successful lawyers – Shanti Bhushan and Fali S. Nariman.  The author apparently had no choice but to include Rohinton in the book, despite his becoming a Judge of the Supreme Court during the time when her book was in the making.

As I turn my attention to the two lawyers, who hail from non-legal families,  I find that they too came under the influence of renowned lawyers very early in their lives, which helped them to choose law as their career.  Thus Arvind P.Datar, the son of a captain in the merchant navy, was spellbound by the lectures of Nani Palkhivala, which made him aspire to be a tax lawyer.  Datar showed his gratitude to his mentor by writing his biography recently.  Aryama Sundaram’s (the book could have solved the mystery of why he is called Aryama, whereas in the court records, he is simply C.A.Sundaram) father, C.R.Sundaram was the Chairman of the National Small Industries Corporation, a public sector enterprise.  But there is no mistaking Aryama’s legal lineage.  His grandfather, C.P.Ramaswamy Aiyar was a renowned lawyer, apart from being a prominent and a well-known face in India’s public life.

The role of a privileged background in the making of a legal eagle is best brought out by Prashant Bhushan, who tells the author, when asked about his role in PILs:  “For me, money is not a constraint, but I understand that it can be one for many people who do not come from such a privileged background”.

The book is sure to fill a crucial gap in the legal biographies.  I am inclined to suggest that another book, choosing legal eagles, who do not owe their success to legal lineage, may perhaps be justified to correct the impression that this book might have unwittingly created among the readers.

The book can be purchased from here.

Reminiscing Justice H.R.Khanna and the Emergency

LAOT is pleased to offer excerpts from the speeches of Justice J. Chelameswar and Justice A.K.Sikri at the Indian Law Institute, New Delhi, while releasing a book, on September 3.

Addressing a gathering of academics and lawyers at the Indian Law Institute, New Delhi,  Justice J.Chelameswar on September 3 released a book on Justice H.R. Khanna, co-authored by Lokendra Malik and Manish Arora.  The book, Justice HR Khanna: Law, Life and Works has been published by Universal Law Publishing, an imprint of Lexis Nexis.

Recalling Gibbon’s famous words that as long as mankind shall continue to bestow more liberal applause on their destroyers than on their benefactors, the thirst of military glory will ever be the vice of the most exalted characters, Justice Chelameswar said the late Justice HR Khanna is more remembered for his dissent in ADM Jabalpur judgment,
delivered during the Emergency, while people rarely recall the respondent in that case, Shivkant Shukla, who had suffered imprisonment.

While Justice Chelameswar underlined Justice Khanna’s contribution in Kesavananda Bharati and Indira Gandhi election cases, he said Justice Khanna’s judgment in Balmadies Plantation Ltd vs State of Tamil Nadu,  delivered in 1972 was equally noteworthy for his insights in the subject of land tenure, although he did not have to deal with the subject before he came to the Supreme Court.

While Justice Khanna demonstrated judicial statesmanship in the cases of Kesavananda Bharati and Indira Gandhi election appeal, it was in Shivkant Shukla that his courage of conviction and commitment to liberty of human beings stood out as his unique attributes, Justice Chelmaeswar said.

Justice Sikri compared Justice Khanna’s dissent in Shivkant Shukla to Victor Frankl’s tragic optimism.  Echoing Frankl’s book, Man’s search for meaning, Justice Khanna created feelings of hope through a very small window in his dissent, Justice Sikri said.

In Shivkant Shukla, Justice Khanna knew that he was in a minority; still, he wrote according to his conscience.  He wrote that the SC would correct itself; but that opportunity never came, because the judgment in Shivkant Shukla was buried by constitutional amendment, Justice Sikri recalled.

Justice Sikri said in the history of the Supreme Court, there were only two Judges who never became the Chief Justice of India, but were taller than the CJIs.  They were Justice Khanna and Justice Krishna Iyer.

Recalling the days of Emergency when he was a student, Justice Sikri said in those days the atmosphere was such that he used to whisper in the Delhi Law Faculty’s coffee house, so that he did not openly say anything which was not palatable to others. But Justice Khanna did not come under pressure, even though it cost him the post of the CJI, [as he was superseded by the  then Indira Gandhi Government as a punishment for his dissent in Shivakant Shukla, following which he quit], Justice Sikri recalled.

Senior advocate, PP Rao, who also spoke on the occasion, described Justice Khanna as a ‘tilting Judge’, who gave the basic structure doctrine to the nation and saved the country from elected representatives who were uncontrollable.  It was Justice Khanna who stood between the six pro-basic structure doctrine Judges and the six anti-basic structure doctrine Judges in the Kesavananda Bharati case, and tilted the scales in favour of basic structure doctrine, considering the future of the country, Rao said.  He was also a picture of balance, as he held that the right to property was not a part of basic structure doctrine, in order to prevent the right from halting the progress of the country, Rao recalled.  Rao represented the Andhra Pradesh Government in the Kesavananda Bharati case, and was a witness to the great arguments advanced by Nani Palkhiwala and H.M.Seervai in that case.

Lokendra Malik and Manish Arora’s book carries two Forewords,one by Justice TS Thakur and another by Justice Sikri. The book is divided into three parts, namely, biographical sketch, selected articles of Justice Khanna and Justice Khanna’s Memorial lectures.

Research Associate Position at the Centre for Policy Research Land Rights Initiative

The Land Rights Initiative at the Centre for Policy Research is looking to hire a research associate for a short term contractual period (six months subject to extension based on performance) . Interested candidates must meet the following eligibility criteria:

1. Hold Bachelor’s and Law degrees from reputed institutions. A Master’s Degree in Law is preferred but not required; 
2. Possess excellent research and writing skills; 
3. Have a demonstrated interest (either through academic writings or work experience) in the working of the Indian Constitution, particularly with respect to the Fifth and Sixth Schedules, and laws relating to land rights, land reform, and land acquisition; 
4. Have a curiosity to learn, a commitment to research and the ability to be a team player. 

Interested candidates should submit a resume (in line with the listed eligibility requirements), a one-page statement of interest, and a writing sample to Shortlisted candidates will be invited for an interview with the Director of the Initiative.
Candidates may familiarise themselves with the Land Rights Initiative website:, Facebook page: and youtube channel: 

Remuneration will be at par with industry standards.

Legal Consciousness in Medieval India

One of the major challenges for Indian legal historians has been to try and understand the legal systems of pre-colonial India. For a variety of reasons, there are no surviving central court archives or large documentary repositories that scholars of Ottoman Turkey and China have drawn upon. There is some awareness of legal treatises and codes but it remains debatable the extent to which they were actually applied in everyday life or formed a part of legal consciousness. In a recent article, Donald Davis and John Nemec turn to medieval literary texts and story collections to trace the ways “law is experienced and interpreted by specific individuals as they engage, avoid or resist the law”. The texts include Kalhana’s Rajatarangini (The River of Kings) and Somdeva’s Kathasagar (Ocean of Stories). Departing from formal studies of law and literature in medieval India, which have tried to see how far literature departs from the Dharmasastras, this article (and what I hope is a larger project) argues that in the absence of court texts and narrative legal sources, literary narratives become important sites to understand how legal ideas could be deployed and received. 

Guest Post: Is RTE based regulation choking quality education?

The following is a guest post by Dolashree Mysoor, who is a Research Associate at the Azim Premji University, and works with the University’s Hub for Education Law and Policy (hELP). hELP is engaged in research and intervention in the area of education law and policy in India. 

A recent article by Professor Geeta Kingdon makes a case for de-regulating private schools under the RTE Act on the grounds that this law restricts autonomy of private schools and that thousands of low cost private schools face closure. This debate is not new in the Indian context. However, these arguments come without a view on the consequences of de-regulating private school education.
The RTE Act has come under severe criticism for imposing excessive regulations and penalties on private schools and that it does not guarantee educational outcomes. The reality is that India houses more than 1.3 million schools (Source: Statistics of School Education 2010-2011), and many of them pose severe risks to the health and safety of children enrolled in them. Given this picture, we need to closely examine the consequences of deregulating schools.
I argue that the push for deregulation of private schools is misplaced because it is necessary that the law ensure equal access to safe and nurturing learning environments for all children. 
Regulation under the RTE Act
What are these highly contested RTE norms? Briefly, they require schools to provide distinct classrooms, separate toilets for boys and girls, drinking water facilities, a compound wall, a library and a separate kitchen shed. Further, the RTE Act also requires schools to employ trained teachers, regulates teachers, and follow prescribed curriculum. Finally, they stipulate certain institutional mechanisms for school development. These norms are aimed at ensuring a safe and nurturing learning environment for school going children.
Schools are regulated through a process of obtaining official recognition from local educational authorities. This recognition is granted based on a school’s compliance with the law. Failure to obtain a recognition certificate or functioning without a recognition certificate attracts monetary penalties or closure of the school. This form of regulation is not new in the Indian educational context – state laws that were already in operation before the RTE Act had similar requirements.
The only difference is that RTE norms and standards are now linked to a child’s right to education under Article 21 A. They ensure access to education and prohibit harassment of all kinds. The novelty lies in the expectation that private schools will now play a part in providing free and compulsory education to children from socio-economically weaker sections.  
Another criticism of the RTE Act is that it suffers from severe implementation failures. This reason is often cited to argue that the law must be repealed. It may be important to note that failure to implement the law does not always involve a problem with the law. Repealing a law on the grounds of implementation failure will also not resolve the problem at hand. Let us consider an analogous situation, say traffic rules that are constantly violated – should traffic rules be repealed because they are not enforced?
Negating the need for regulating any type of school will allow schools that are health and safety hazards to operate. Confusing regulation of schools with the achievement of learning outcomes or implementation failure seems to obscure the need for safe and nurturing environments in schools. 
Autonomy of Private Schools
Kingdon and others have argued that the RTE Act violates the autonomy of private schools.  The reason provided is that the act places enormous constraints on running low-income private schools. This argument often confuses autonomy of schools with the power of the state to regulate them. It is based on a misinterpretation of the Supreme Court’s judgment in T.M.A. Pai Foundation v State of Karnataka [(2002) 8 SCC 481].
First, it must be noted that this case relates to institutions of higher education and therefore has limited applicability to schools. The majority judgment in this case held that private educational institutions are autonomous in matters relating to fees, admission of students, day-to-day management and employment of staff.
Second, nowhere does the Court negate the need for regulation of private institutions. Instead it seeks to check excessive regulation while maintaining minimum standards in educational institutions. The state has the power to regulate on infrastructure, qualification of teachers, prevention of mal-administration, and maintenance of proper academic standards in an institution [paragraph 54 of the majority judgment].
The argument that regulations place enormous constraints on private schools is legally untenable. Do private hospitals loose their autonomy because they are expected to comply with hygiene and safety regulations? Why, then, do educationists want to make an exception for private schools?
 Closure of Schools
Recent educational debates unnecessarily create a heightened sense of empathy for low cost private schools that may face closure or penalties on account of non-compliance with RTE norms and standards. The source of this data is unclear. The information appears to be sourced from newspaper reports that describe state governments threatening to close schools, however little conclusive evidence of actual closure of schools is available.
This claim about closure of schools is also based on ongoing litigation before High Courts, one that needs careful examination. So far, eighteen judgments have been delivered under Sections 18 and 19 of the RTE Act across all High Courts and the Supreme Court (Source: Manupatra). Of these, only 6 judgments relate to closure of schools for non-compliance with the law. Courts have consistently held that the need for recognition from the state and regulations that ensure safety in schools are not negotiable.
In the event private schools fear harassment from the government, institutional mechanisms such as courts can check overzealous and arbitrary governmental action. To illustrate, a case before the Punjab & Haryana High Court challenged two government orders that were aimed at closing down 1170 schools for non-compliance. The court quashed the two orders for reasons of procedural impropriety and arbitrary action. Further, the court directed the government to close down schools that were proved to be non-compliant upon inspection. [A.V. Public School v State of Haryana and Others (CWP No. 21269 of 2013)].
In light of the above, the push for exempting private schools from regulation is deeply problematic. We may want to ask – should non-compliant private schools that do not (or cannot) provide a safe and nurturing environment be allowed to operate?
It is difficult for us to imagine a space where any type of school operates without any regulation. The fact that government, minority and residential schools are exempt from RTE regulations is deeply problematic and requires immediate rectification. By expecting schools to meet basic conditions, the RTE Act ensures safety, dignity and a nurturing environment for all school going children. De-regulation of private schools is not an answer to the problem of declining learning outcomes. Even if empirical research shows little connection between school infrastructure and learning outcomes, we may need to employ common sense to examine whether schools need to be safe and nurturing spaces for children.