The debate on capital punishment has been running over the past so many decades, but yet nothing concrete is coming up. Many may be satisfied with the present legislation on giving of capital punishment but to many of us its still not serving the purpose that it is deemed to serve. Is it actually working as a deterrent to crime? Which as far as our understanding goes is increasing day by day. History is evidence to the fact that capital punishment has never acted and would never act as deterrence to crime.
Would it be right to say that its more like another divide between the rich and the poor? Till date the capital punishments have only acted as deterrence for those families who could hardly earn bread and butter forget about hiring a smart lawyer who could effectively play with the facts of the case to serve his clients. Only few months back a man named Dhannajay was given capital punishment for raping and then killing a minor girl. His act as such was brutal calling for severe action against him, but it seems that the ends of justice have not actually been met out. So many cases of murder go not unnoticed but without any punishment to the doer only because he has money to meet out whatever expenditure might come in defending his case.Be it by influencing or so to say compensating the families of those killed or hiring an efficient lawyer to prove the case in their favor. Talk about so many politicians engrossed form top to bottom in so may corrupt t activities known to every one still go out of the Court smiling.
The rarest of the rare principal embodied by the S.C. of India in the case of Bachan Singh vs. State of Punjab in giving of capital punishment seems to have been applied only when the defendant is a unprivileged person coming from that strata of the society where people do anything to earn bread and illiteracy has only caused misery. Not than the Court wants to do injustice to these persons but the fact that they are not capable of fighting their case because they cannot hire a lawyer who has master minded the provisions of Article 21 of the Constitution of India to save his client. Nor has he the money to change the evidences against him as has happened recently in so many cases before us where we knew the culprit, where even the Judge is himself so shure of the culprit but yet the culprit goes off scot-free because of lack of evidences against him.
In order to do justice to one person we cannot do injustice to so many others. Why should the innocent family of the rapist suffer for an act for which he the culprit is the only one responsible? Moreover would capital punishment really bring justice? Thanks to the idea of capital punishment that an easier way to do away with the crime has been found by the doers of the heinous crime. To kill the victim throw her somewhere and move away and if lucky enough then the crime would never be traced back to the offender. The cardinal question to be asked here is are the circumstances of the crime as such that there is no alternative but to impose death sentence?
Hindu dharma talks of nark for evil doers, Muslim talks of jhanum and Christianity talks of hell for evildoers but at the same time without any exception every religion talks of reforms. Giving a chance to the culprit to compensate the victim would go a long way in reforming the person. Moreover Social protestation towards such things would also help in the long run.
The unfortunate part is that even the law is very restricted and limited in its definition about rape. Section 375 of the IPC.,1860, specifies that sexual intercourse comprises rape wherein penetration alone suffice to constitute that sexual intercourse which amounts to offence of rape. Least heed has been paid to the fact that rape is much wider a term and as such should be given a much wider interpretation. Though giving it a wider interpretation may call for some difficulty but a solution should be devised if we want to completely do away with this phenomenon of outraging a females modesty.
The definition does makes it easy for the plaintiff to prove her case. In the given society a gargantuan amount of social stigma is attached with the concept. Even if rape is not done in the strict sense of Section 375 of IPC, the prima facie impression of rape having been committed does an equal harm to the victim. Not always may it be possible to prove the case beyond doubt that a rape has been committed if we go according to the strict interpretation of Section 375 of IPC.
An empirical study manifest that people who have been meted out with capital punishment in India were poor or in minority or both. Nonetheless we do not intend to take sides all that we are trying to say that if justice is to be delivered it should undoubtedly be fair and reasonable. Justice should mean justice.
An overall rethinking about it as a societal as well as legal issue is required. Also if torture is deemed best for the rapist then, why not this torture be constructive? For instance, the convicted can be made to compensate the victim or her family by his income through employment or community services. The act of rape is the most heinous crimes against the humans so the punishment should also be very painful. So that others fear the crime.
Even if all this sound a bit dissatisfactory to the victim of rape or her family then it is submitted that capital punishment is quite a merciful punishment for a crime as heinous as rape.
Why should the rapist be killed with a pain of just two seconds contrary to the victim who in a society like ours would still live with so much shame and un-acceptance? If the girl has to continue with this stigma throughout out her life let the rapist also live with the stigma of rapist. He should be made to suffer equally, if not to avenge then at least to strike a balance.
Saturday, September 22, 2007
FIR: Meaning of:
Report (FIR)
The information given to a police officer and reduced to writing as required by the following sections is known as the "first information" and the corresponding report is understood to mean the "first information report (FIR)"Section 154(1) of the Code of Criminal Procedure provides that every information relating to the commission of a cognizable offence (i.e. an offence for which a person may be arrested even without warrants), if given orally to an officer in charge of a police station,shall be reduced to writing by him or under his direction, be read over to the informant, every such information whether given in writing or reduced to writing, shall be signed by the person giving it, substance thereof shall be entered in a book in a prescribed manner.S154 (2) provides that a copy of the information as recorded under sub section (1) shall be given free of cost to the informant.S154(3) provides that if the information is not recorded by the police officer,the informant can approach the Superintendent of Police by sending him the substance of the information by post. Such officer can investigate the case himself or direct an investigation by his surbodinate officer.Where any information disclosing a cognizable offence is laid before the officer-in-charge of a police station, he has no option but to register the case and thereafter start investigations. The principal object of the FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty.The word "information" means something in the nature of a complaint or accusation, or at least information of a crime, given with the object of putting the police in motion in order to investigate, as distinguished from information obtained by the police when actively investigating a crime.In determining whether a report is or is not a FIR, regard should be had to the following:-It should not be vague or indefinite but an information of facts showing commission of a cognizable offence enabling the police or giving scent to take up investigation. It may be given by any one, not necessarily the person aggrieved or by someone on his behalf. It need not name any one as offender or witness; nor need it state the circumstances of the commission of the crime. It is the first information, which sets the police in motion. No duration of time is fixed as reasonable for giving information to the police. Mere delay, therefore, in lodging the FIR is not necessarily, as a matter of law, fatal to the prosecution. Where delay in filing the FIR in a rape case had taken place, the Court was satisfied by the explanation that since the honour of a family was involved, the complaint was delayed. FIR does not constitute substantive evidence (cannot be used as evidence in itself), and it can, however, be used as a previous statement for the purpose of corroboration or contradiction of its maker. The FIR can in no means be utilised for contradicting or discrediting other witnesses.FIR by the Accused to the police stands on the same footing as an information by another person except that the confessional part, if any, must be excluded.S 155 deals with information relating to the commission of a non-cognizable offence (arrest with a warrant). S155 (1) provides that a police officer receiving information of a non-cognizable offence must enter the substance of it in a book kept in such form as the State Government may prescribe and then refer the informant to the Magistrate.The word "offence" includes an intended offence or offence imminently likely to take placeS155 (2) provides that a police officer must not investigate a non-cognizable case without an order of a Magistrate having the power to try the case or commit it for trial.Court has held that a Magistrate should not order investigation in a non-cognizable offence arbitrarily and capriciously. He must apply his mind to the facts and see whether there are reasonable grounds for believing that an offence has been committed.
Wednesday, September 19, 2007
Why Intellectual Property Rights?
God gifted a wonderful thing called Brain to Man and Mother Nature endowed him with the abundant physical and biological resources on the earth. Man started creating his own world by application of his brain or mind and by utilization of these natural resources. Man has also been bestowed with imagination and creativity. With his imagination and creativity, he has been producing various articles or products for his needs, comfort and convenience. In the earlier era, the creations and inventions by him fell in a public domain. These were the common properties. Anybody could use and copy these creations and inventions without any restriction, reservation or payment. However, with the passage of time, the importance and value of these creations was realized. The commercial aspect started playing a significant roll in these creations. By end of Twentieth Century, the things created and invented by the human mind were recognized as an intellectual property of the owner .The owner's right over these properties was accepted and is known as an Intellectual Property Right (commonly called I.P.R.). A new set of laws called Intellectual Property Right Laws, were enacted to protect these property rights. These I.P.R. laws provided a protection to the owners under different categories and names like Patents, Industrial designs, Copyrights, Trade- Marks etc.
Why Intellectual Property Rights?
The intellectual property rights were essentially recognized and accepted all over the world due to some very important reasons. Some of the reasons for accepting these rights are:-a. To provide incentive to the individual for new creations.b. Providing due recognition to the creators and inventors.c. Ensuring material reward for intellectual property.d. Ensuring the availability of the genuine and original products
Kinds Of Intellectual Property RightsThe knowledge of intellectual property rights is must to a common man. A common man everywhere and every time come across the things created, invented, discovered and produced by some human mind. A design of a house , the material used in a house , its furnishings like a carpet, sofa, fridge ,television, telephone, paintings, photographs, wall clock ; the articles of daily use like a pens, books, the newspapers ,tissue papers, shoes etc ; the things that are worn by him like Jeans ,T-shirts , trousers, hats ties , shoes etc ; the items of conveyance like cycles, cars, bikes etc...The list is endless! Almost all the things that surround a common man are one way or other, property intellectual properties of some one. Somebody has spent his time, money and energy to invent and create them. Therefore, these all common things are intellectual property of someone and are protected by law. These items of intellectual properties can be classified into two main categories:-a. Industrial Property itemsb. Copyright and related rights items.
The industrial properties items include all sort of inventions, trade marks, industrial designs, and geographic indicators of source. The copyrights and related rights items include all literary works which range from articles, news-paper items, novels, story books, poetry books etc... The drawings, photographs, paintings, architectural design, music, dance, films and artistic performances.
The industrial property items are found all around us. All inventions are covered under this category. An invention has been defined as a process or a product which provides a new way of doing some thing or provides a new solution to a problem. Inventions are protected by the Patents. The owner of inventions can get his invention registered under a Patent. A Patent is granted for a period of 20 years form the date of filing the application of patent. After this period the invention is available to all for commercial exploitation and it becomes a public property.
Some of the products we use in daily life are protected by Trade-mark laws. A Trade- mark can be patented like invention and industrial designs. The trade mark can be combination of words, letters, numbers, drawings, images, symbols, and even sounds. The trade marks not only protect the owner rights but also required for consumer to have confidence in the product purchase by him. The reputation and the quality are also associated with trade-marks. The trade-marks are generally registered for seven years but they can be renew indefinitely by applying again and paying the required fee.
A design is the aesthetic or the ornamental aspect of an article. The design can be two-dimensional like patterns, lines or colors. They can be three-dimensional like surface or shape of an article. These designs are made to look things attractive and beautiful. They also have the commercial value. Due to these reasons, the industrial design is protected. One has to register this design against limitation and un-authorised copying. The protection is provided for five years and it can be renew for fifteen years.
Some of the products we use have association with geographical indicators of source. The things like Basmati rice of Dehra dhun, Champagne of France, Darjeeling tea etc. are the product which can be protected by laws and international agreements because they are the geographical indicators of source.
The Copyrights are provided for items like literary, musical, artistic works like songs, musical scores, poetry, paintings, sculpture, films, architecture, maps, technical drawings; computer programs, data base etc are provided to the creators. Copyrights provide exclusive right to the creator to use or authorized other to use their workers. The reproduction in various forms, copying, printing, recording, public performance or adaptation are prohibited. This right provides economic right to the creator that is the financial benefit for a lasting period of fifty years after the creator's death.
A common man comes across literary, artistic, musical works in his daily life. The literary works include novels, short stories, screen play, nonfiction works, news papers, history, biography, magazine, articles, encyclopedias; dictionaries, computer programs, data bases, and others published works. The artistic works which are important to a common man include paintings, drawings, lithograph, etching, photographs, sculpture, films, videotapes, videodisk etc. The musical works include songs, lyrics, recorded on a compact disk, broadcasted on radio or performed in public are covered 100 years copy rights. The architectural works includes the designs, drawing and plans. The furniture is protected under industrial design whereas toys are protected under industrial design and copy frights.
Even the traditional craft items like hand- woven articles like carpets, cotton bed covers can also be registered for protection as an Industrial design. The protection of indigenous and traditional knowledge, folklore, culture and innovations are the some of the latest entries in the field of intellectual properties rights.
God gifted a wonderful thing called Brain to Man and Mother Nature endowed him with the abundant physical and biological resources on the earth. Man started creating his own world by application of his brain or mind and by utilization of these natural resources. Man has also been bestowed with imagination and creativity. With his imagination and creativity, he has been producing various articles or products for his needs, comfort and convenience. In the earlier era, the creations and inventions by him fell in a public domain. These were the common properties. Anybody could use and copy these creations and inventions without any restriction, reservation or payment. However, with the passage of time, the importance and value of these creations was realized. The commercial aspect started playing a significant roll in these creations. By end of Twentieth Century, the things created and invented by the human mind were recognized as an intellectual property of the owner .The owner's right over these properties was accepted and is known as an Intellectual Property Right (commonly called I.P.R.). A new set of laws called Intellectual Property Right Laws, were enacted to protect these property rights. These I.P.R. laws provided a protection to the owners under different categories and names like Patents, Industrial designs, Copyrights, Trade- Marks etc.
Why Intellectual Property Rights?
The intellectual property rights were essentially recognized and accepted all over the world due to some very important reasons. Some of the reasons for accepting these rights are:-a. To provide incentive to the individual for new creations.b. Providing due recognition to the creators and inventors.c. Ensuring material reward for intellectual property.d. Ensuring the availability of the genuine and original products
Kinds Of Intellectual Property RightsThe knowledge of intellectual property rights is must to a common man. A common man everywhere and every time come across the things created, invented, discovered and produced by some human mind. A design of a house , the material used in a house , its furnishings like a carpet, sofa, fridge ,television, telephone, paintings, photographs, wall clock ; the articles of daily use like a pens, books, the newspapers ,tissue papers, shoes etc ; the things that are worn by him like Jeans ,T-shirts , trousers, hats ties , shoes etc ; the items of conveyance like cycles, cars, bikes etc...The list is endless! Almost all the things that surround a common man are one way or other, property intellectual properties of some one. Somebody has spent his time, money and energy to invent and create them. Therefore, these all common things are intellectual property of someone and are protected by law. These items of intellectual properties can be classified into two main categories:-a. Industrial Property itemsb. Copyright and related rights items.
The industrial properties items include all sort of inventions, trade marks, industrial designs, and geographic indicators of source. The copyrights and related rights items include all literary works which range from articles, news-paper items, novels, story books, poetry books etc... The drawings, photographs, paintings, architectural design, music, dance, films and artistic performances.
The industrial property items are found all around us. All inventions are covered under this category. An invention has been defined as a process or a product which provides a new way of doing some thing or provides a new solution to a problem. Inventions are protected by the Patents. The owner of inventions can get his invention registered under a Patent. A Patent is granted for a period of 20 years form the date of filing the application of patent. After this period the invention is available to all for commercial exploitation and it becomes a public property.
Some of the products we use in daily life are protected by Trade-mark laws. A Trade- mark can be patented like invention and industrial designs. The trade mark can be combination of words, letters, numbers, drawings, images, symbols, and even sounds. The trade marks not only protect the owner rights but also required for consumer to have confidence in the product purchase by him. The reputation and the quality are also associated with trade-marks. The trade-marks are generally registered for seven years but they can be renew indefinitely by applying again and paying the required fee.
A design is the aesthetic or the ornamental aspect of an article. The design can be two-dimensional like patterns, lines or colors. They can be three-dimensional like surface or shape of an article. These designs are made to look things attractive and beautiful. They also have the commercial value. Due to these reasons, the industrial design is protected. One has to register this design against limitation and un-authorised copying. The protection is provided for five years and it can be renew for fifteen years.
Some of the products we use have association with geographical indicators of source. The things like Basmati rice of Dehra dhun, Champagne of France, Darjeeling tea etc. are the product which can be protected by laws and international agreements because they are the geographical indicators of source.
The Copyrights are provided for items like literary, musical, artistic works like songs, musical scores, poetry, paintings, sculpture, films, architecture, maps, technical drawings; computer programs, data base etc are provided to the creators. Copyrights provide exclusive right to the creator to use or authorized other to use their workers. The reproduction in various forms, copying, printing, recording, public performance or adaptation are prohibited. This right provides economic right to the creator that is the financial benefit for a lasting period of fifty years after the creator's death.
A common man comes across literary, artistic, musical works in his daily life. The literary works include novels, short stories, screen play, nonfiction works, news papers, history, biography, magazine, articles, encyclopedias; dictionaries, computer programs, data bases, and others published works. The artistic works which are important to a common man include paintings, drawings, lithograph, etching, photographs, sculpture, films, videotapes, videodisk etc. The musical works include songs, lyrics, recorded on a compact disk, broadcasted on radio or performed in public are covered 100 years copy rights. The architectural works includes the designs, drawing and plans. The furniture is protected under industrial design whereas toys are protected under industrial design and copy frights.
Even the traditional craft items like hand- woven articles like carpets, cotton bed covers can also be registered for protection as an Industrial design. The protection of indigenous and traditional knowledge, folklore, culture and innovations are the some of the latest entries in the field of intellectual properties rights.
Emergence of Copyright and Related issues:
Emergence of Copyright:
The idea of Copyright protection only began to emerge with the invention of printing, which made it possible for literary works to be duplicated by mechanical processes instead of being copied by hand. This led to the appearance of a new trade - that that of printers and booksellers in England called " Stationers". These entrepreneurs invested considerable sum in the purchase of paper, in buying or building press, and in the employment of labour involving an outlay which could be recouped with a reasonable return over a period of time.
By the end of the Seventeenth Century the system of privileges i.e. the grant of monopoly rights by the Crown was being more and more criticized and the voice of authors ascertaining their rights began increasingly to be heard; and this led in England in 1709 to what is acknowledged to be the first Copyright Statute - "The Statute of Anne".
In the 18th Century there was continuous dispute and litigation over relationship between Copyright subsisting at Common Law and Copyright under the Statute of Anne. This was finally settled by the House of Lords in the case of Donaldson Vs. Beckett in 1774, which ruled that at Common Law the author had sole right of printing and publishing his books, but that once a book was published the right in it were exclusively regulated by the Statute.
Harmonization of Copyright Law and Procedure : Milestones 1886 Berene Convention for Protection of Literary and Artistic Work.1952 Universal Copyright Convention.1961 Rome Convention - Performer’s, Producer’s of Phonograms and Broadcasting Organizations.1971 Geneva Convention - Producer’s of Phonograms against Unauthorized Duplication of their Phonograms.1972 Brussels Convention - Distribution of Programme - Carrying Signals Transmitted by Satellite.1996 WIPO Copyright Treaty.1996 WIPO Performance and Phonogram Treaty. Copyright Law can be broadly divided into two parts : I. Copyright Law in the strict sense of the word i.e. in the protection of intellectual creativity; and II. Law of neighboring rights.
IPR's Criminal Jurisprudence : Changing Scenario :Sophisticated methods of commission of different crimes adopted by the criminals in any branch of Criminal Law haven't left the field of IPRs untouched. Cracking of websites, hacking of internet, demolishing of security, use of common trade names as domain names without permission from the owners of the same is done regularly and unscrupulously by highly trained professionals in order to make wrongful economic gains at the expense of IPR's of the others.
Cyber Crimes and IPRSeeing in retrospect, problem of infringement of IPR's was not very acute because there was no photocopiers, no computers, no internet. Now the canvas has changed; the milieu is different.
The IT Act, 2000 It hardly addresses itself to the broader problems of protection and enforcement of IPR. The Act provides for investigation, trial and punishment for certain offences like tempering with the computer source documents, hacking of computer system piracy, etc.
Indian Law dealing with CopyrightThe Indian Copyright Act was first passed in 1957. A few amendments were made in 1983 & in 1984. However keeping in view with the latest developments in the field of technology, especially in the field of computers and digital technologies. The new amendment Act called the Copyright (Amendment) Act, 1994 (38 of 1994) was passed and this made Indian Copyright Law is one of the toughest in the world. This included the definition of "Computer Program" also in its ambit. It clearly explains the rights of Copyright holder, position on rentals of software, the rights of the user to make backup copies and the heavy punishment and fines on infringement of Copyright of software. It also make it illegal to make or distribute copies of copyrighted software without proper or specific authorization.
Main Changes in the new Amendment Act Now "Literary work" includes "computer" and "computer program" also.Offences :Section. 63 of the Act provides for the provision of punishment for infringement of Copyright provided in the Act.Section. 63A: Enhanced penalty on 2nd and subsequent convictions.Section. 63B: Any person who knowingly makes use on a computer of an infringing copy of a computer program, shall be punished with imprisonment for a term which shall not be less than 7 days but which may be extend to 3 yrs. and with fine which shall not be less than Rupees 50,000/-, but which may extends to Rupees 2 lacs.Section. 64 : Power of police to seize infringing copies.Section. 65 : Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which Copyright subsists is punishable with imprisonment which may extends to 2 yrs. and with fine.
What is Infringing Copy ?It means any reproduction, copy or sound recording, as the case may be, made or reported in contravention of the provision of the Act.
Performer's RightThis is conferred by Section 37 of the Copyright Act.
Knowledge of the Accused This is an essential in criminal proceedings,In Cheria P Joseph Vs. Prabhakarn AIR 1967 Kar. 234 held that clear and cogent proof of knowledge is necessary to establish the commission of offence.
Burden of Proof is on prosecution.Section. 65 to 70 of the Act deals with the offences, relating to infringement of Copyright. The Copyright (Amendment ) Act, 1996 enhanced the punishment and provides with imprisonment which may be extended for a minimum period of 6 months to maximum of 3 yrs. And with fine which not be less than Rupees 50,000/-. The court has discretion to reduce the imprisonment and fine as well, in special cases. For 2nd and subsequent convictions the minimum term of imprisonment is enhanced to 1 yr. and minimum fine to Rupees 1 lac.
Computer ProgramAny person who knowingly makes use on a computer of an infringing copy of a computer program will be punishable with imprisonment for a term which will not be less than 7 days, but which may extend to 3 yrs. And with fine which will not be less than Rupees. 50,000/-, but which may extend to 2 lacs of Rupees.
Proceedings in matters of InfringementThe Act provides not only Civil but also Criminal remedies, in case of infringement of Copyright, against the infringer. The two remedies are distinct and independent and can be availed of simultaneously.
But in Cheran P. Joseph Vs. K. Prabhakarn Nair AIR 1967 Kar, 234. held that, a criminal court may not give a finding on the question of infringement if the same issue is pending for the decision in a civil suit.
However, a criminal proceeding does not enable the owner to get an injunction i.e. if a convict infringer repeats the infringement the owner will have to initiate a fresh proceedings. So, in such cases it is advisable to initiate Criminal as well as Civil proceeding simultaneously, if the stakes are very high.
In the matters of criminal proceedings the knowledge or mens rea is essential.
Breach of Copyright Vs TheftIf anyone stoles some copyrighted work to copy, then he is liable for infringement of Copyright and not of theft.
Seizing PowerPolice officer of the rank of sub- inspector and above has been given the power to seize without warrant, if he satisfied that an infringement or an abetment of, infringement of Copyright in any work has been or likely to be, committed, all infringing copies or plates of the work, wherever found, to be produced before a Magistrate [ Section 64(1) ], as soon as practicable. Even such copies found at the place of retailer may also be seized. Private individuals who might be possessing infringing copies for their private and domestic use, is not covered by the definition of the infringement u/ Sec. 51. Further this provision applies only to infringement of Copyright and not to broadcasting reproduction rights u/Sec. 37 and the performer's right u/ Sec. 38.Any person having an interest in any copies of the work or plates so seized may within 15 days of such seizure, make an application to the Magistrate for the return of such copies or the plates to him.
Disposal of Infringing Copies or Plates (Sec.66)The court trying the offence may order that all the copies of the work which appears to be infringing copies or plates, for the purpose of making infringing copies in possession of alleged offender, be delivered up to the owner of the Copyright without any further proceedings, whether the accused is convicted or not.Jurisdiction (Sec. 70)No court inferior to that of Presidency Magistrate or a Magistrate of First Class can try an offence under the Act.An offence can be tried in a court within whose territorial jurisdiction the offence is committed. If the copies are circulated at many places, the offence is committed at every place, where the copies are intended to reach and has in fact reached.
Who Can File Complaint ?Generally speaking anyone can file unless there is a specific provision to the contrary under Sec. 4(2) & 190 of Cr.PC, a Magistrate will be competent to take cognizance of any offence specified in Sec. 190 upon receiving a complaint of facts which constitutes such offence irrespective of the qualifications or eligibilities of the complainant to file a complaint unless contrary provision is made in any Statute.
Procedure after filing of FIR in case of infringement under Copyright Act1. The investigation of a cognizable offence (as in the case of copyright infringement ) begins when a police officer in charge of a Police Station has reason to suspect the commission of the offence under the Copyright Act, after registering of FIR under Sec. 154 of CrPC. In such cases it is possible hat the suspicion may be based on any other information of the police (Sec. 157(1)).2. When a reasonable suspicion of the commission of infringement of Copyright exists, the SHO, must immediately send a report of the circumstances creating the suspicion to a Magistrate having power to take cognizance of such an offence on a police report (Sec. 157(1)).3. The SHO shall then proceed in person, or shall depute his sub-ordinate officer ( not lower the rank of Sub-Inspector) to proceed to the spot, to investigate the facts and circumstances of the case, and to take measures for the discovery and seizure.
Efforts of NASSCOM and BSAThese two are working in tandem to stop the menus of piracy from the society. They have established a special Anti-Piracy (Hotline) in Delhi. This alliance, with the help of the Police and Judiciary appointed Commissioners are carrying out the operations against anti-piracy. They are facilitating police raids against this menus, providing information of infringement.
Note: For speedy and more effective remedy complaint/FIR can be made to special cells established for the purpose in various States viz. Economic Offences Wing of Delhi Police, in Delhi, which conducts raids along with the IPR section of the Crime Branch of Delhi Police.
The idea of Copyright protection only began to emerge with the invention of printing, which made it possible for literary works to be duplicated by mechanical processes instead of being copied by hand. This led to the appearance of a new trade - that that of printers and booksellers in England called " Stationers". These entrepreneurs invested considerable sum in the purchase of paper, in buying or building press, and in the employment of labour involving an outlay which could be recouped with a reasonable return over a period of time.
By the end of the Seventeenth Century the system of privileges i.e. the grant of monopoly rights by the Crown was being more and more criticized and the voice of authors ascertaining their rights began increasingly to be heard; and this led in England in 1709 to what is acknowledged to be the first Copyright Statute - "The Statute of Anne".
In the 18th Century there was continuous dispute and litigation over relationship between Copyright subsisting at Common Law and Copyright under the Statute of Anne. This was finally settled by the House of Lords in the case of Donaldson Vs. Beckett in 1774, which ruled that at Common Law the author had sole right of printing and publishing his books, but that once a book was published the right in it were exclusively regulated by the Statute.
Harmonization of Copyright Law and Procedure : Milestones 1886 Berene Convention for Protection of Literary and Artistic Work.1952 Universal Copyright Convention.1961 Rome Convention - Performer’s, Producer’s of Phonograms and Broadcasting Organizations.1971 Geneva Convention - Producer’s of Phonograms against Unauthorized Duplication of their Phonograms.1972 Brussels Convention - Distribution of Programme - Carrying Signals Transmitted by Satellite.1996 WIPO Copyright Treaty.1996 WIPO Performance and Phonogram Treaty. Copyright Law can be broadly divided into two parts : I. Copyright Law in the strict sense of the word i.e. in the protection of intellectual creativity; and II. Law of neighboring rights.
IPR's Criminal Jurisprudence : Changing Scenario :Sophisticated methods of commission of different crimes adopted by the criminals in any branch of Criminal Law haven't left the field of IPRs untouched. Cracking of websites, hacking of internet, demolishing of security, use of common trade names as domain names without permission from the owners of the same is done regularly and unscrupulously by highly trained professionals in order to make wrongful economic gains at the expense of IPR's of the others.
Cyber Crimes and IPRSeeing in retrospect, problem of infringement of IPR's was not very acute because there was no photocopiers, no computers, no internet. Now the canvas has changed; the milieu is different.
The IT Act, 2000 It hardly addresses itself to the broader problems of protection and enforcement of IPR. The Act provides for investigation, trial and punishment for certain offences like tempering with the computer source documents, hacking of computer system piracy, etc.
Indian Law dealing with CopyrightThe Indian Copyright Act was first passed in 1957. A few amendments were made in 1983 & in 1984. However keeping in view with the latest developments in the field of technology, especially in the field of computers and digital technologies. The new amendment Act called the Copyright (Amendment) Act, 1994 (38 of 1994) was passed and this made Indian Copyright Law is one of the toughest in the world. This included the definition of "Computer Program" also in its ambit. It clearly explains the rights of Copyright holder, position on rentals of software, the rights of the user to make backup copies and the heavy punishment and fines on infringement of Copyright of software. It also make it illegal to make or distribute copies of copyrighted software without proper or specific authorization.
Main Changes in the new Amendment Act Now "Literary work" includes "computer" and "computer program" also.Offences :Section. 63 of the Act provides for the provision of punishment for infringement of Copyright provided in the Act.Section. 63A: Enhanced penalty on 2nd and subsequent convictions.Section. 63B: Any person who knowingly makes use on a computer of an infringing copy of a computer program, shall be punished with imprisonment for a term which shall not be less than 7 days but which may be extend to 3 yrs. and with fine which shall not be less than Rupees 50,000/-, but which may extends to Rupees 2 lacs.Section. 64 : Power of police to seize infringing copies.Section. 65 : Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which Copyright subsists is punishable with imprisonment which may extends to 2 yrs. and with fine.
What is Infringing Copy ?It means any reproduction, copy or sound recording, as the case may be, made or reported in contravention of the provision of the Act.
Performer's RightThis is conferred by Section 37 of the Copyright Act.
Knowledge of the Accused This is an essential in criminal proceedings,In Cheria P Joseph Vs. Prabhakarn AIR 1967 Kar. 234 held that clear and cogent proof of knowledge is necessary to establish the commission of offence.
Burden of Proof is on prosecution.Section. 65 to 70 of the Act deals with the offences, relating to infringement of Copyright. The Copyright (Amendment ) Act, 1996 enhanced the punishment and provides with imprisonment which may be extended for a minimum period of 6 months to maximum of 3 yrs. And with fine which not be less than Rupees 50,000/-. The court has discretion to reduce the imprisonment and fine as well, in special cases. For 2nd and subsequent convictions the minimum term of imprisonment is enhanced to 1 yr. and minimum fine to Rupees 1 lac.
Computer ProgramAny person who knowingly makes use on a computer of an infringing copy of a computer program will be punishable with imprisonment for a term which will not be less than 7 days, but which may extend to 3 yrs. And with fine which will not be less than Rupees. 50,000/-, but which may extend to 2 lacs of Rupees.
Proceedings in matters of InfringementThe Act provides not only Civil but also Criminal remedies, in case of infringement of Copyright, against the infringer. The two remedies are distinct and independent and can be availed of simultaneously.
But in Cheran P. Joseph Vs. K. Prabhakarn Nair AIR 1967 Kar, 234. held that, a criminal court may not give a finding on the question of infringement if the same issue is pending for the decision in a civil suit.
However, a criminal proceeding does not enable the owner to get an injunction i.e. if a convict infringer repeats the infringement the owner will have to initiate a fresh proceedings. So, in such cases it is advisable to initiate Criminal as well as Civil proceeding simultaneously, if the stakes are very high.
In the matters of criminal proceedings the knowledge or mens rea is essential.
Breach of Copyright Vs TheftIf anyone stoles some copyrighted work to copy, then he is liable for infringement of Copyright and not of theft.
Seizing PowerPolice officer of the rank of sub- inspector and above has been given the power to seize without warrant, if he satisfied that an infringement or an abetment of, infringement of Copyright in any work has been or likely to be, committed, all infringing copies or plates of the work, wherever found, to be produced before a Magistrate [ Section 64(1) ], as soon as practicable. Even such copies found at the place of retailer may also be seized. Private individuals who might be possessing infringing copies for their private and domestic use, is not covered by the definition of the infringement u/ Sec. 51. Further this provision applies only to infringement of Copyright and not to broadcasting reproduction rights u/Sec. 37 and the performer's right u/ Sec. 38.Any person having an interest in any copies of the work or plates so seized may within 15 days of such seizure, make an application to the Magistrate for the return of such copies or the plates to him.
Disposal of Infringing Copies or Plates (Sec.66)The court trying the offence may order that all the copies of the work which appears to be infringing copies or plates, for the purpose of making infringing copies in possession of alleged offender, be delivered up to the owner of the Copyright without any further proceedings, whether the accused is convicted or not.Jurisdiction (Sec. 70)No court inferior to that of Presidency Magistrate or a Magistrate of First Class can try an offence under the Act.An offence can be tried in a court within whose territorial jurisdiction the offence is committed. If the copies are circulated at many places, the offence is committed at every place, where the copies are intended to reach and has in fact reached.
Who Can File Complaint ?Generally speaking anyone can file unless there is a specific provision to the contrary under Sec. 4(2) & 190 of Cr.PC, a Magistrate will be competent to take cognizance of any offence specified in Sec. 190 upon receiving a complaint of facts which constitutes such offence irrespective of the qualifications or eligibilities of the complainant to file a complaint unless contrary provision is made in any Statute.
Procedure after filing of FIR in case of infringement under Copyright Act1. The investigation of a cognizable offence (as in the case of copyright infringement ) begins when a police officer in charge of a Police Station has reason to suspect the commission of the offence under the Copyright Act, after registering of FIR under Sec. 154 of CrPC. In such cases it is possible hat the suspicion may be based on any other information of the police (Sec. 157(1)).2. When a reasonable suspicion of the commission of infringement of Copyright exists, the SHO, must immediately send a report of the circumstances creating the suspicion to a Magistrate having power to take cognizance of such an offence on a police report (Sec. 157(1)).3. The SHO shall then proceed in person, or shall depute his sub-ordinate officer ( not lower the rank of Sub-Inspector) to proceed to the spot, to investigate the facts and circumstances of the case, and to take measures for the discovery and seizure.
Efforts of NASSCOM and BSAThese two are working in tandem to stop the menus of piracy from the society. They have established a special Anti-Piracy (Hotline) in Delhi. This alliance, with the help of the Police and Judiciary appointed Commissioners are carrying out the operations against anti-piracy. They are facilitating police raids against this menus, providing information of infringement.
Note: For speedy and more effective remedy complaint/FIR can be made to special cells established for the purpose in various States viz. Economic Offences Wing of Delhi Police, in Delhi, which conducts raids along with the IPR section of the Crime Branch of Delhi Police.
Our Constitution: In The Making Of:
Making Of The Constitution ..............
The Constituent Assembly which had been elected for undivided India and held its first sitting on 9th Dec.1946, re-assembled on the 14th August 1947, as The Sovereign Constituent Assembly for the dominion of India. In regard to its composition the members were elected by indirect election by the members of The Provisional Legislative Assemblies (lower house only). According to the schemes recommended by the Cabinet the essentials of the Schemes were as follows: -
1. Each Province and each Indian State or group of States were allotted the total no. of eats proportional to their respective population roughly in the ratio of 1:1000000. As a result The Provinces were to elect 292 members while the Indian States were allotted a minimum of 93 seats.
2. The seats in each Province were distributed among the three main communities, Muslims, Sikh and general, in proportion to their respective populations.
3. Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representations with single transferable vote.
4. The method of selection in the case of representatives of Indian States was to be determined by consultation.
Unfortunately as a result of a partition under the plan of June3, 1947.The territories, which fell under Pakistan and those members who were part of The Constituent Assembly, ceased to be members of the Constituent Assembly, which re-assembled on the 31st Oct.1947. The members of the house was reduced to 299 of these 284 was actually present on the 26th Nov. 1949 and appended their signature to the Constitution as finally passed.
____________________________________________________________________
Constitutional Background The constitution was passed by the Constituent Assembly on 26 Nov 1949 and is fully applicable since 26 Jan 1950. Thanks to the help of Prof. K.B. Agrawal, the ICL-Edition of the Constitution now incorporates all amendments until and including the 78th amendment (1995) [30 Aug 1995]; there are no newer amendments until Dec 1996. Amendments after Dec 1996 have not yet been included. India is a federal democratic republic of 25 states and seven Union Territories. Each state is administered by a Governor appointed by the President while each Union Territory is administered by the President through a Minister. The bicameral parliament is composed of the Council of States, Rajya Sabha, and the House of the People, Lok Sabha. The Council of States will consist of 250 members out of which the President of India will nominate 12 persons having special knowledge or practical experience in respect of literature, art, science and social service. The remaining 238 seats are to be filled in by the persons to be elected by the legislative assemblies of their respective states in staggered re-elections of one-third every second year. The House of People is composed of 550 members, i.e., 530 members from the States and 20 members from the Union Territories. The states of Bihar, Jammu and Kashmir, Karnataka, Maharshtra, and Uttar Pradesh have bicameral legislatures while the other 20 states have unicameral legislatures. Upper houses (Legislative Councils) are re-elected to one-third of their members every two years. Legislative Assemblies are chosen by direct election. There are some extraordinary features of the Indian system of government. For example, the Constitution encourages the states to introduce the prohibition. The states of Andhra Pradesh, Manipur, and Haryana have already banned the production, possession, and consumption of alcohol. ................................................................................................................
Commencement :
The provisions relating to Citizenship, elections, provisional Parliament, temporary and transitional positions were given immediate effect on The 26th Nov.1949. While the rest of the Constitution came into force on the 26th Jan. 1950. And this date is referred to in the Constitution as The Date of its Commencement.
................................................................................................................
Preamble : The Preamble to the Constitution, which as amended in 1976, summarizes the aim and objective of the Constitution: -
WE THE PEOPLE OF INDIA, having solemnly resolved to Constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY, of thought, expression, belief, faith and worship;
EQUALITY, of status and of opportunity; and to promote among them all;
FRATERNITY, assuring the dignity of the individual and the unity and integrity of the nation;
IN OUR CONSTITUENT ASSEMBLY this 26th day of November, 1949, do HEREBY ADOPT, INACT AND GIVE TO OURSELVES THIS CONSTITUTION.
The Preamble to our Constitution serves two purposes: -
A) It indicates the source from which the Constitution derives its authority;
B) It also states the objects, which the Constitution seeks to establish and promote.
The Preamble seeks to establish what Mahatma Gandhi described as The India of my Dreams,
“…an India in which the poorest shall feel that it is their country in whose making they have an effective voice; …an India in which all communities shall leave I perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of Intoxicating drinks and drugs. Woman will enjoy as the same rights as man.”
................................................................................................................
Fundamental Rights:The provisions of Part III of our Constitution, which enumerates the Fundamental Rights, are more elaborate than those of any other existing written Constitutions of the World and cover a wide range of topics.
The Purpose of the Fundamental Rights are to act as limitations not only upon the powers of the Executive but also upon the power of the Legislature. The model has been taken from the Constitutions of The United States, though The Indian Constitutions does not go so far, and rather affects the compromise between the doctrines of Parliamentary Sovereignty and Judicial Supremacy.
The Constitutions itself classifies the Fundamental Rights under seven groups as follows: -
Right to Equality
Right to Particular freedoms
Right against Exploitation
Right to freedom of religion
Cultural and educational rights
Right to Constitutional remedies
Right to property – has been eliminated by the 44th amendment Act, thus only six freedom now remain, in Article 19 (1).
................................................................................................................
Fundamental Duties:A countervailing factor has been introduced by the 42nd amendment Act of 1976, known as the Fundamental Duties. These duties are mentioned in Art. 51A.
Under this Article, it shall be the duty of every citizen of India: -
I.To abide by the Constitution and respect the national flag and the national anthem;
II.To cherish and follow the noble ideals which inspired our national struggle for freedom;
III.To protect the Sovereignty, unity and integrity of India;
IV.To defend the country;
V.To promote the spirit of common brotherhood amongst all the people of India;
VI.To preserve the rich heritage of our composite culture;
VII.To protect and improve the natural environment;
VIII.To develop the scientific temper and spirit of inquiry;
IX.To safeguard Public property;
X.To strive towards excellence in all spheres of individual and collective activity.
These duties are not themselves enforceable in The Courts nor their violation, as such, punishable, nevertheless, if a Court, before which a Fundamental Right is sought to be enforced, has to be read all parts of the Constitution, it may refuse to enforce a Fundamental Right at the instance of an individual who has patently violated any of the duties specified in Art. 51A.
................................................................................................................
Directive Principles:
PART IV of the Constitution Art. (36-51) Contains the Directive Principles of State Policy. These Principles are in the nature of instruments of instruction to the govt. of the day to do certain things and to achieve certain ends by their actions in other words Directive Principles are essentially guidelines to the State. A Directive Principle required to be implemented by legislation and so long as there is no Law carrying out the Policy laid down in a Directive, neither the State nor an individual can violate any existing Law or legal right under the color of a Directive. Further still the Directives are not enforceable in the Courts and do not create any justicable rights in favor of the individuals.
Incase of a conflict between Directive Principles and Fundamental Rights of the Constitution, the latter shall prevail.
These Directive Principles may be classified as follows: -
a) Certain ideals, particularly Economic, which according to the framers of the Constitution, State should strive for.
b) Certain directions to the legislature and the executive intended to show in which manner The State should exercise their legislative and executive powers.
c) Certain Rights of the citizen shall not be enforceable by The Courts (Fundamental Rights) nevertheless The State Govt. shall aim to secure by regulations of its legislative and administrative policy. It shall be the duty of The State to follow these Principles both in the matter of Administration as well as in the making of Laws.
................................................................................................................
Parliament:
The Parliament of India consist of The President and two houses. The upper house (Rajya sabha) the Presiding Officer is called The Chairman, popularly known as The Vice President The members of this house are indirectly elected by proportional representation by means of the single transferable vote The total strength of the house is 250 members of whom 12 are nominated by the President, the purpose of the house is to serve a check on the hasty laws passed by the lower house. Whereas the lower house (Lok Sabha) is presided over by The Speaker. The members are elected directly by the people; the total strength of the house is 545 members of which 2 are nominated by The President.
Functions of The Parliament are as follows:
Providing The cabinet: The first function of The Parliament is that of providing the Cabinet and holding them responsible. Thought he responsibility of The Cabinet is to the popular chamber (Lok Sabha), the membership of the cabinet is not necessarily restricted to that chamber.
Control of The cabinet: It is a necessary corollary from the theory of Ministerial responsibility that it is a business of the popular house to see that The Cabinet remains in power so long as it retains the confidence of the majority in that house.
Criticism of The Cabinet & of individual Ministers: While The Cabinet is left to formulate The Policy, the function of The Parliament is to bring about a discussion and criticism of that Policy on the floor of the house, so that not only The Cabinet can get the advice of the deliberative body and learn about its own errors and deficiencies.
An Organ of Information: As a organ of Information, Parliament is more powerful than the Press, for parliament secures information authoritatively, from those of The know of things.
Legislation: Since the inauguration of The Constitution the volume of Legislation is steadily rising. In order to carry out the manifold development and other measures necessary to establish a welfare state.
FINANCIAL CONTROL: Parliament has the sole power not only to authorize expenditure for public service and to specify the purposes to which that money shall be appropriated but also to provide the ways and means to raise the revenue (Taxes, and other impositions) and also to ensure that the money granted has been sent for authorized purposes.
................................................................................................................
Political Parties :General elections in May 1996 made the Bharatiya Janata Party (BJP) the biggest party capturing 161 seats along with Shiv Sena (15), Samata Party (8), and HVP (3) totalling 195. A.B. Bajpai (BJP) became Prime Minister but could not muster majority in the House of People and as such had to resign after holding the office for 13 days. The Congress Party of former Prime Minister Narasimha Rao is the second biggest force in the House of Peoples having 138 seats. The National Front and the Leftist Front secured 118 seats. H.D. Deve Gowda (National Front) became the new Prime Minister with the union of 13 parties and the support of the Congress Party.
The Constituent Assembly which had been elected for undivided India and held its first sitting on 9th Dec.1946, re-assembled on the 14th August 1947, as The Sovereign Constituent Assembly for the dominion of India. In regard to its composition the members were elected by indirect election by the members of The Provisional Legislative Assemblies (lower house only). According to the schemes recommended by the Cabinet the essentials of the Schemes were as follows: -
1. Each Province and each Indian State or group of States were allotted the total no. of eats proportional to their respective population roughly in the ratio of 1:1000000. As a result The Provinces were to elect 292 members while the Indian States were allotted a minimum of 93 seats.
2. The seats in each Province were distributed among the three main communities, Muslims, Sikh and general, in proportion to their respective populations.
3. Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representations with single transferable vote.
4. The method of selection in the case of representatives of Indian States was to be determined by consultation.
Unfortunately as a result of a partition under the plan of June3, 1947.The territories, which fell under Pakistan and those members who were part of The Constituent Assembly, ceased to be members of the Constituent Assembly, which re-assembled on the 31st Oct.1947. The members of the house was reduced to 299 of these 284 was actually present on the 26th Nov. 1949 and appended their signature to the Constitution as finally passed.
____________________________________________________________________
Constitutional Background The constitution was passed by the Constituent Assembly on 26 Nov 1949 and is fully applicable since 26 Jan 1950. Thanks to the help of Prof. K.B. Agrawal, the ICL-Edition of the Constitution now incorporates all amendments until and including the 78th amendment (1995) [30 Aug 1995]; there are no newer amendments until Dec 1996. Amendments after Dec 1996 have not yet been included. India is a federal democratic republic of 25 states and seven Union Territories. Each state is administered by a Governor appointed by the President while each Union Territory is administered by the President through a Minister. The bicameral parliament is composed of the Council of States, Rajya Sabha, and the House of the People, Lok Sabha. The Council of States will consist of 250 members out of which the President of India will nominate 12 persons having special knowledge or practical experience in respect of literature, art, science and social service. The remaining 238 seats are to be filled in by the persons to be elected by the legislative assemblies of their respective states in staggered re-elections of one-third every second year. The House of People is composed of 550 members, i.e., 530 members from the States and 20 members from the Union Territories. The states of Bihar, Jammu and Kashmir, Karnataka, Maharshtra, and Uttar Pradesh have bicameral legislatures while the other 20 states have unicameral legislatures. Upper houses (Legislative Councils) are re-elected to one-third of their members every two years. Legislative Assemblies are chosen by direct election. There are some extraordinary features of the Indian system of government. For example, the Constitution encourages the states to introduce the prohibition. The states of Andhra Pradesh, Manipur, and Haryana have already banned the production, possession, and consumption of alcohol. ................................................................................................................
Commencement :
The provisions relating to Citizenship, elections, provisional Parliament, temporary and transitional positions were given immediate effect on The 26th Nov.1949. While the rest of the Constitution came into force on the 26th Jan. 1950. And this date is referred to in the Constitution as The Date of its Commencement.
................................................................................................................
Preamble : The Preamble to the Constitution, which as amended in 1976, summarizes the aim and objective of the Constitution: -
WE THE PEOPLE OF INDIA, having solemnly resolved to Constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY, of thought, expression, belief, faith and worship;
EQUALITY, of status and of opportunity; and to promote among them all;
FRATERNITY, assuring the dignity of the individual and the unity and integrity of the nation;
IN OUR CONSTITUENT ASSEMBLY this 26th day of November, 1949, do HEREBY ADOPT, INACT AND GIVE TO OURSELVES THIS CONSTITUTION.
The Preamble to our Constitution serves two purposes: -
A) It indicates the source from which the Constitution derives its authority;
B) It also states the objects, which the Constitution seeks to establish and promote.
The Preamble seeks to establish what Mahatma Gandhi described as The India of my Dreams,
“…an India in which the poorest shall feel that it is their country in whose making they have an effective voice; …an India in which all communities shall leave I perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of Intoxicating drinks and drugs. Woman will enjoy as the same rights as man.”
................................................................................................................
Fundamental Rights:The provisions of Part III of our Constitution, which enumerates the Fundamental Rights, are more elaborate than those of any other existing written Constitutions of the World and cover a wide range of topics.
The Purpose of the Fundamental Rights are to act as limitations not only upon the powers of the Executive but also upon the power of the Legislature. The model has been taken from the Constitutions of The United States, though The Indian Constitutions does not go so far, and rather affects the compromise between the doctrines of Parliamentary Sovereignty and Judicial Supremacy.
The Constitutions itself classifies the Fundamental Rights under seven groups as follows: -
Right to Equality
Right to Particular freedoms
Right against Exploitation
Right to freedom of religion
Cultural and educational rights
Right to Constitutional remedies
Right to property – has been eliminated by the 44th amendment Act, thus only six freedom now remain, in Article 19 (1).
................................................................................................................
Fundamental Duties:A countervailing factor has been introduced by the 42nd amendment Act of 1976, known as the Fundamental Duties. These duties are mentioned in Art. 51A.
Under this Article, it shall be the duty of every citizen of India: -
I.To abide by the Constitution and respect the national flag and the national anthem;
II.To cherish and follow the noble ideals which inspired our national struggle for freedom;
III.To protect the Sovereignty, unity and integrity of India;
IV.To defend the country;
V.To promote the spirit of common brotherhood amongst all the people of India;
VI.To preserve the rich heritage of our composite culture;
VII.To protect and improve the natural environment;
VIII.To develop the scientific temper and spirit of inquiry;
IX.To safeguard Public property;
X.To strive towards excellence in all spheres of individual and collective activity.
These duties are not themselves enforceable in The Courts nor their violation, as such, punishable, nevertheless, if a Court, before which a Fundamental Right is sought to be enforced, has to be read all parts of the Constitution, it may refuse to enforce a Fundamental Right at the instance of an individual who has patently violated any of the duties specified in Art. 51A.
................................................................................................................
Directive Principles:
PART IV of the Constitution Art. (36-51) Contains the Directive Principles of State Policy. These Principles are in the nature of instruments of instruction to the govt. of the day to do certain things and to achieve certain ends by their actions in other words Directive Principles are essentially guidelines to the State. A Directive Principle required to be implemented by legislation and so long as there is no Law carrying out the Policy laid down in a Directive, neither the State nor an individual can violate any existing Law or legal right under the color of a Directive. Further still the Directives are not enforceable in the Courts and do not create any justicable rights in favor of the individuals.
Incase of a conflict between Directive Principles and Fundamental Rights of the Constitution, the latter shall prevail.
These Directive Principles may be classified as follows: -
a) Certain ideals, particularly Economic, which according to the framers of the Constitution, State should strive for.
b) Certain directions to the legislature and the executive intended to show in which manner The State should exercise their legislative and executive powers.
c) Certain Rights of the citizen shall not be enforceable by The Courts (Fundamental Rights) nevertheless The State Govt. shall aim to secure by regulations of its legislative and administrative policy. It shall be the duty of The State to follow these Principles both in the matter of Administration as well as in the making of Laws.
................................................................................................................
Parliament:
The Parliament of India consist of The President and two houses. The upper house (Rajya sabha) the Presiding Officer is called The Chairman, popularly known as The Vice President The members of this house are indirectly elected by proportional representation by means of the single transferable vote The total strength of the house is 250 members of whom 12 are nominated by the President, the purpose of the house is to serve a check on the hasty laws passed by the lower house. Whereas the lower house (Lok Sabha) is presided over by The Speaker. The members are elected directly by the people; the total strength of the house is 545 members of which 2 are nominated by The President.
Functions of The Parliament are as follows:
Providing The cabinet: The first function of The Parliament is that of providing the Cabinet and holding them responsible. Thought he responsibility of The Cabinet is to the popular chamber (Lok Sabha), the membership of the cabinet is not necessarily restricted to that chamber.
Control of The cabinet: It is a necessary corollary from the theory of Ministerial responsibility that it is a business of the popular house to see that The Cabinet remains in power so long as it retains the confidence of the majority in that house.
Criticism of The Cabinet & of individual Ministers: While The Cabinet is left to formulate The Policy, the function of The Parliament is to bring about a discussion and criticism of that Policy on the floor of the house, so that not only The Cabinet can get the advice of the deliberative body and learn about its own errors and deficiencies.
An Organ of Information: As a organ of Information, Parliament is more powerful than the Press, for parliament secures information authoritatively, from those of The know of things.
Legislation: Since the inauguration of The Constitution the volume of Legislation is steadily rising. In order to carry out the manifold development and other measures necessary to establish a welfare state.
FINANCIAL CONTROL: Parliament has the sole power not only to authorize expenditure for public service and to specify the purposes to which that money shall be appropriated but also to provide the ways and means to raise the revenue (Taxes, and other impositions) and also to ensure that the money granted has been sent for authorized purposes.
................................................................................................................
Political Parties :General elections in May 1996 made the Bharatiya Janata Party (BJP) the biggest party capturing 161 seats along with Shiv Sena (15), Samata Party (8), and HVP (3) totalling 195. A.B. Bajpai (BJP) became Prime Minister but could not muster majority in the House of People and as such had to resign after holding the office for 13 days. The Congress Party of former Prime Minister Narasimha Rao is the second biggest force in the House of Peoples having 138 seats. The National Front and the Leftist Front secured 118 seats. H.D. Deve Gowda (National Front) became the new Prime Minister with the union of 13 parties and the support of the Congress Party.
Tuesday, September 4, 2007
Is Law Equal for all?
Is Law equal for all?
This is the question raised by Timesnow Newschannel yesterday after Salman Khan was arrested by Jodhpur police and sent to Jail. Unequal treatment of Law also leads to terrorism and agitation in people. There is a strong belief in the Kashmiri leaders that I often witness in programs like We The People, that people against whom crimes were perpetrated by Security forces did not get justice. They use that argument as a justification of acts of terrorism.
When we ask the question – Law equal for all, it sounds as if we are driving people to the conclusion that as people like Salman Khan and Sanjay Dutt are arrested by police and sent to prison for a few days, Law is equal for all.
But that is not true. The socio-economic inequalities, the class differences, the difference between haves and have-nots have a strong bearing on the criminal justice system.
60 percent of the people of India are Agricultural laborers, Industrial workers, and other Laborers in other shops and establishments. They either belong to poor sections of Indian society or Lower middle class. When a Lower court delivers a verdict against them, they don’t have the capacity to appoint an advocate and fight their case in Higher courts like High court and Supreme Court.
But people like Salman Khan and Sanjay Dutt can afford to do that.
20 percent of the remaining 40 percent population belongs to Middle classes (ie., 20 every 100 people in India belong to middle class). Out of remaining 20 percent population 15 percent belong to Higher middle classes and 5 percent belong to Elite sections.
This is my reading about the spread of population across the various classes.
60 percent
Lower Middle class and Poor sections
20 percent
Middle class
15 percent
Higher Middle Class
5 percent
Elite sections
Even Middle class people cannot afford to fight their cases in courts at the most they can afford to fight up to High Court. And only 20 out of every 100 people can afford to fight their cases up to Supreme Court.
The Elite people of this country always say, “we respect Judiciary”. The statement will be lingering on their tongues. But the fact is the only part of Judiciary that they respect is Supreme Court. Till Supreme Court delivers a verdict they keep on disrespecting the verdict of every lower court that goes against them by challenging it in a Higher court, whether it is the verdict of Lower Judiciary or High Court. In fact all of them feel nice if there is another tier above Supreme Court where they can challenge even the Supreme Court verdict so that they can waste time fighting their cases till they die. It is only because Supreme Court is the final judge, they respect the verdict of Supreme Court, otherwise, if there is some other Court above Supreme Court where they can challenge the verdict of Supreme Court, they will even challenge the verdict of Supreme Court, because they can afford it.
Hence we say, law is not equal for all. Law is meant for people who can afford to pay the advocate fees and fight their cases till Supreme Court. Not all people are capable of fighting their cases up to Supreme Court. Hence they take law into their own hands. That is one of the reasons for Terrorism, whether it takes the sentiment of Anti-national movement as we see in Kashmir or Anti-rich movement as we witness in Naxal activities.
...............
Law equal for all? - II
In a nutshell what I mean to say is 80 out of 100 Indians are not capable of filing appeals against judgments of lower courts. They accept the judgments of lower courts and undergo punishment because they can’t afford to make an appeal, file revision petitions etc. in higher courts.
Earlier I have given a suggestion that the cases of VIPs and Celebrities must not be clubbed with the cases of ordinary people, there shall be separate wing at all levels, (i.e., Lower Judiciary, High Court and Supreme Court) to try the cases belonging to Celebrities and VIPs.
That was not heard and intentionally ignored by people concerned. When asked by Media people – ‘whether being a celebrity is an advantage or disadvantage when it comes to facing trial in courts’, the Celebrities often say, “it is a huge disadvantage to be a celebrity…..as the attention of people, Media is more on us, we don’t get the same treatment from judiciary as a common man gets and that works against us….”.
That is true. We all think that being a Celebrity he can influence witnesses, appoint best legal brains to fight his cases, influence the public prosecutor, police etc in such a way that they file weak cases against them. But we forget that when the attention of Media is on the Judiciary it becomes difficult for the judiciary in lower courts to do such favors to the Celebrity accused that they normally do to other citizens.
For instance Salman Khan files a “Bail petition” in court. Everybody is interested to know whether he will get bail or not. Media will be concerned, if he gets bail, whether he is given the bail on valid grounds or not, whether any favoritism is shown because he is Celebrity. That acts to his disadvantage. If no body is watching the magistrate will give bail even on invalid grounds for consideration of money or influence. Generally common people escape like that in lower courts. But being a Celebrity is a disadvantage because the magistrate cannot dare to issue a Bail order without having valid grounds.
That is why Celebrities often say, “being a Celebrity acts against us….”. The privileges that a common man can enjoy, “like bribing the magistrate…without anyone’s attention” cannot be enjoyed by the Celebrities.
The celebrities don’t have the advantage of being ignored by Media and People when they make attempts to bribe the judiciary.
That is why they say, we pay much heavier price for our crimes than ordinary people pay. What they mean is, “while ordinary people get away from their crimes by bribing the judiciary, police, public prosecutor etc…..we can’t get away because against us the Trial will be extremely fair…because Media will be watching….”. It may also mean that while ordinary citizen pays Rs.10000/- to get a Bail order, the Celebrity has to pay Rs.10 lacs to get the same Bail order.
How sad that the courts don’t treat Celebrities at par with “ordinary bribers”? They (Celebrities) will feel, “we got a fair trial” if they can also be treated by Judiciary at par with ordinary bribers.
We have a good joke on the Judiciary about this kind of Trials:
________________________________________________________________________
The judge declared at the beginning of trial: "Counsel for the defense has paid me $15,000 to find for his client. Counsel for the plaintiff has paid me $10,000 to find for hers. In order to make this a fair trial, I am returning $5,000 to the defense."
________________________________________________________________________
And what about Industry reactions? We don’t know whether Law is equal for all or not, but we surely know that the Society’s reactions is not equal for all.
When I was working for a financial institution, I faced criminal charges in one petty case. I was terribly scared at that point of time that the legal case would cost me my job. Every common man has this fear in his psyche, and so he does not want to land up in any criminal case while he is employed under some employer. If any common man lands up in such a situation as Salman Khan or Sanjay Dutt is landed up today, he will be under a deep fear psychosis and he will be deeply in search of such people who will lend “moral support”.
They realize that none of their colleagues is speaking in their favor once they landed up in trouble of facing a trial in court. Moreover they find that everybody is speaking ill of them behind their backs when they are facing any trial in court or departmental inquiry.
But you see the reactions of film industry. Everybody in the industry is speaking for Salman Khan and Sanjay Dutt. Everyone is praying for their release.
It does not happen in any other industry for any other Citizen employed in such industry. Moreover there will be such Conduct rules and DA regulations framed for those employees that if they land up in any criminal case the employer reserves the right to remove him from job. But the same is not true for Film Stars and Politicians too. Our beloved Speaker Somnath Chatterjee recently commented that unless Supreme Court delivers a verdict against MP Shahabuddin, he cannot be disqualified from Parliament.
Can you see the difference between ordinary accused and Celebrity/VIP accused?
The Elite society stands strongly behind the accused and lend moral support to him. While the ordinary citizen immediately gets bad name when he faces a criminal trial, suffers loss of face and reputation in his social circles and he is alienated and deserted by his own friends, colleagues, family members etc.
Remember I am not speaking anything against Salman Khan or Sanjay Dutt when I say all this!
I am only trying to show the differences between the way a Criminal trial proceeds in case if you belong to High class or Higher Middle class society and in case you belong to other Classes, and how society reacts to people belonging to Elite society and people belonging to Middle class and Poor societies when they face criminal trial.
Generally it all depends on the quality of Advocates you appoint to fight on your behalf whether you can get acquittal or not. The strategy adopted by legal practitioners in Celebrity cases is :
Waste as much time as possible and keep the Celebrity out of prison on Bail for as much time as possible while simultaneously arguing the case the best way possible…in the meanwhile, out of court, you try all methods to dilute the case…by purchasing witnesses, changing documents, destroying evidences etc.
For instance in Salman Khan’s case a “revision petition” is filed. “What is the difference between Revision petition and Appeal against lower court judgment” is only known to good lawyers. And you get good lawyers by paying good moneys. By filing a revision petition you may spend some more time than by directly appealing against lower court judgment.
That is why I say, Law is not equal for all.
Bad lawyers don’t know how to waste time. Bad lawyers don’t know how to maintain relationships with magistrates and judges in such a manner that they can take as many adjournments as possible during hearings so that the case prolongs for at least one decade. That is why when a common man faces the same trial, if he does not have even the capacity to bribe the small amounts that judiciary expects from common man, he will get the sentence very soon. And he will have to accept the verdict of the lower court and treat it as “final judgment” in his case without challenging it higher court. I doubt whether the legal community would even take the pain of educating the convicted that he has a privilege to appeal in a higher court.
In some cases we noticed that police have kept some accused in Jail for 50 years or so, without even filing charge-sheet in courts. Media brought out such case into light recently.
One side you have Celebrities who get all kinds of attention from best legal practitioners to help them challenge every lower court’s verdict and help them enjoy their lives coming out on Bails, the other side, we find such people who are imprisoned without even being produced in front of Magistrate, without even being filing a chargesheet for 50 years or more because they don’t know the law of land, they don’t know how to claim their rights when police arrest them.
We the people in Media is worried when Salman Khan is in prison for two days. No one bothered about the man who remained in prison for 50 years without even being convicted or tried by magistrates!
Law is equal for all?
What about the attitude of prosecuting agencies like Police, CBI etc. towards the accused?
You can see what is happening in Prof. Sabharwal’s murder case. Media reported yesterday how the CBI favored L.K. Advani by dropping charges against him when NDA government was in place to help him get out of his Ayodhya Mosque Demolition case. You know how the police did not respond to the demands of Sikh community in Delhi to arrest the supporters of Congress party who perpetrated violence against them after the assassination of Indira Gandhi in 1984.
Your respect for law depends on your ability to influence the Law enforcing agencies and your ability to afford to fight cases and bribe the judiciary/police etc. If you can afford to fight the case up to High court, you need not respect the verdict of lower court. If you can afford to fight the case up to Supreme Court, you need not respect the verdict of the High Court.
The question is, how many people can afford to fight up to High Court and how many up to Supreme Court and how many simply obey the order of Lower court itself because they can’t afford to fight by appealing in higher courts?
I have already answered this question.
I want to conclude by saying, that the question whether law is equal for all is important, and it depends on the level of Socio-economic equality achieved by the Nation. Where the status difference is too wide, as is the case with India, the law cannot be equal for all. Those who belong to privileged and elite classes can afford to fight for justice till Supreme Court, and those who belong to middle classes and poor sections would simply obey the orders of lower court and suffer punishment.
…………..
Law is equal for all? - III
How lawyers make money in India?
Many people, budding professionals of law, the students of law, the Media, the Parliamentarians may be interested to know how Lawyers make money in India. Why the process of getting justice by the victims become so complex in our system, when the only thing any Court has to do is to simply listen to the arguments made by both sides and deliver judgment? Isn’t it? It looks so simple, but it is truly so complex, or rather made complex. When we know how lawyers make money in India we come to know several reasons why there are millions of cases pending in Courts in India at all levels, and also the reasons why the judicial process has been made so complex by the people and law enforcing agencies involved. Seeing the way the criminal justice system failed in our country and lawyers making money, I wanted to write something in the style of book , “What they don’t teach you in Business schools/Harvard Business school”.
Earlier we heard in our childhood fables that in India, the Kings used to listen to both sides and deliver judgments. In a nutshell what the judges, whether they are the judges of Lower/Trial courts or High Court or Supreme Court is to give a patient hearing to the arguments, statement of facts, evidences, witness accounts etc and arrive at the truth of the case and awarding punishment to the accused. The authority exercised by Kings in those fables is delegated to the Courts, Judges in our present Democracy.
My encounters with legal professionals in the year 2003 when I was given ousting orders by my employer gave me some insight into this subject. Ever since, I was struggling to learn as much as possible about the subject of law and in the process I came to know several ways, as to how the legal professionals make money in India.
Let me first begin with my encounter with one Law firm in the year 2003.
When I stepped into the firm, I was under the impression that I can proceed against my Employer under Industrial Disputes Act, 1947. The only mistake I made while discussing with the Advocate sitting in the Law firm is to make an attempt to know the truth, whether I can proceed under Industrial Disputes Act. He has shown me one book containing Industrial Disputes Act and conveyed to me, being an Officer and earning more than 2500 rupees per month does not allow me to proceed under Industrial Disputes Act, 1947.
For giving that information to me he charged Rs.275/-.
It amazed me. What is it that he did? He did nothing to me. Just for giving a small information that already exists in law, he charged Rs.275/-!
Later I went to another Advocate. He saw the documents I have shown to him. He said, “your case is very weak….”. I told him, “no my case is very strong…you can easily build a strong case against my employer…”. Generally lawyers don’t like people with self-confidence. When they say, “you case is very weak”, what it means is you should immediately get scared and start begging him, “please help me out….I am in big trouble…”. To scare you out and compel you to beg them, they use this kind of tricks.
He was not interested in my case, because, “I was not appearing ignorant…”.
In other words, the earning of lawyers start the moment they start listening to your case and give their opinion as under which laws, you can proceed against the client’s respondent/plaintiff. This brings me to the first learning as to how lawyers make money.
i) Lawyers make money by listening your case, studying your documents and offering you some preliminary advice as under which laws you can proceed and under which laws you cannot proceed in your case.
Creating fears in the clients and playing on their ignorance and fears is one of the ways of earning money by lawyers.
My next step after leaving that Advocate is to start studying various Employment laws available in Internet. There I found that almost all the Laws of the country are available it only requires some patience to know and prepare a draft of your case, the statement of facts, arguments etc. I studied very deeply in the light of my case, under which law, I can proceed against the employer. And I neatly prepared a Writ petition to be presented in High Court without the help of an Advocate. Later I telephoned to one Law firm in Madras where the cause of action arose and asked the help of one Advocate sitting there to file my case in Madras High Court.
When I told the Lady Advocate, I myself prepared the draft petition, she did not like me. She advised me, “you better file your case in Civil court first, and then go to High court if necessary….you should not directly go to High court….”.
I did not like her idea. I did not understand then, why she advised me to first go to Civil Court instead of filing a writ petition directly in High court. Later I understood that it would fetch them lot of money as it takes at least 10 years for Civil courts to deliver judgments. There are two things that the Lady Advocate did not like :
1. She did not like my idea of drafting petition on my own without the help of Advocate, hence she said, we can’t accept drafts prepared by plaintiffs, we will prepare on our own (they say like that, because they can charge for that).
2. She did not like my idea of directly going to High court. I told why she wants me to first file my affidavit/case in Sessions court.
I came to realize that it is impossible for me to proceed through any Advocate if I prepare Draft/Petition myself and on that ground ask him to charge less for taking up my case. They will never take such cases, because they would not get good money on such cases.
This brings us to our second learning :
ii) Lawyers make money by compelling people to first file their cases in Trial courts/Lower judiciary/Session courts even if it is not necessary for them to go through that tier.
My thinking was very clear at that stage itself. I worked very hard to prepare the petition. I have quoted all the Acts, Sections under which I wanted to proceed against the respondent. I took all the care to file the evidences in such manner that Courts expect us to file. I recorded the statement of facts the way they expect us to record. I made arguments, I also made my request in the petition. I studied many drafts of petitions available on Internet before I did this exercise and I also studied the requirements of High court by visiting High court website as to how the petition should be like.
In other words, I did not leave any work for the Advocate, he simply has to take it and get it admitted in the Court. I was wondering at that stage, when the Young Lady Advocate told me, I have to first file my case in Civil court as to what difference would it make whether my petition is heard by the Lower court judge or High court judge.
But they know very well that it is necessary that we should first go through Lower judiciary, get judgment of the judge of inferior court and then file an appeal in the Higher court. Then that would fetch lot of money for them. It is not in my interest that she was telling me, ‘you first go to Civil court…”. It was purely in her own business interest, she told me that.
Once a case is filed in Lower court, then you have keep spending money for various actions of advocates like filing the case in the court, at right place, for getting a date for hearing, for passing stay orders, interim orders, bails, for getting adjournments of the case if the plaintiff/respondent wants to prolong the case for any reason.
Generally the plaintiffs, respondents want to delay the case by getting adjournments to demoralize the opponent. If the opponent is not a sound party, if he cannot bear the legal expenses on fight his case, then he will come for a compromise or he will stop fighting the case. In order to drive the opponent for making an appeal to us to compromise, the lawyers in collusion with the Lower court judges (especially in Civil courts) keep on forcing adjournments on one pretext or the other. The opponent loses patience because the case is never coming to the stage of hearing of arguments itself, even after 5, 6, 7 or more years.
This brings us to the third learning as to how lawyers make money :
iii) Lawyers make money by influencing the Court administration and Judges to post-pone the date of hearings on one, two or several technical grounds. You need to know the Civil Procedure Code and Criminal Procedure Code thoroughly to do this. For having this knowledge of forcing the Judges, courts either on technical points or by influencing them they get money from their clients.
The demoralization of opponent to approach the client/lawyer happens because of two reasons :
A. the courts, when they adjourn cases, adjourn them for a long time, sometimes they even adjourn the date of hearing to a date after six months or eight months or more. This happens because there are millions of pending cases in courts.
B. Apart from that the corruption in Lower court administration helps them to adjourn the cases for as long as the Lawyer wants. In some courts if they want they can either adjourn the case for a period more than 8 months or more, or get an early date of hearing. Both or possible. It all depends on what the Lawyer wants to do. Does he want to demoralize by taking adjournment for date of hearing the case for a long time, or does he want to get the next hearing date in just a month or two for a different reason?
You don’t require any study of law, to earn money like this. What you need to know is how to get postponements, adjournments by using provisions of CPC, Cr.P.C on technical grounds. For instance, one lawyer told me that when a witness of the opponent came to give his evidence, he was misled by some miscreants outside the court, when he inquired about the place of Judge sitting and hearing. It was big building, it is difficult to arrive at the judge easily. As he was misled, the witness could not approach in time. By the time he approached the judge, the time of hearing of that case on that date was over.
That became a reason for seeking adjournment. The lawyer delayed the arrival of opponent’s witness using some miscreants who work for these causes in Court compounds/complexes. When witness did not appear, he asked the judge for adjournment of the case.
Do you require the knowledge of law for doing this?
We often wonder why, we find so many lumpen elements roaming around Courts in India and what they do there. Their job is to help the lawyers like this, threaten the witnesses, mislead the witnesses, purchase the witnesses, collect bribes on behalf of advocates, giving false evidences etc. The lawyer collects money from his clients (who are often wealthy) and share some of it with these lumpen elements.
This brings us to our fourth learning :
iv) Lawyers make money by influencing the witnesses of the opponents either by misleading them or by threatening them or by bribing them, for that they charge their clients. In order that they make more money, it is necessary that their client should be on the wrong side. In other words, they can make more and more money if they fight cases on behalf of wealthy criminals.
Evidences given in courts are generally of two types :
A. Oral evidences given by eye witnesses
B. Documentary evidence
It is already explained how Lawyers make money by meddling with the process of witnesses giving their evidence. Next comes documentary evidence. Lawyers should have good social circle in all government departments, police department to ensure that they create, mould, destroy the documents required to be produced as evidence in Courts.
You don’t require legal knowledge for that.
In fact one Lawyer practicing Civil Law told me that even Chief Justice of India cannot understand the way we earn money in this profession. It is not the intellect that pays in legal profession what you require is all these skills. You need to have good contacts with Judges, Public prosecutors, various government officials etc. That will help you to mould the case in your favor. Generally the big advocates win cases because of these contacts. People who already made their mark in this profession know where lies what loop hole in the law, and how to win the cases by using the Social contacts they already have.
You may be excellent lawyer. You may have great intellect to present your case and building your arguments.
Truly your arguments and the presentation style may be better than the arguments and presentation of the Leading lawyer who is fighting against you. But what influences the judge is his social contact with the leading lawyer. He (the judge) will first assess the possibility of you and your client approaching the High court. If there is no possibility that you and your client approaching the High court, the judge will deliver the judgment in favor of your opponent though his case, his arguments are weak.
There could also be some “understanding” to share the moneys between “leading advocate” and “judge”. That is why generally people prefer “leading and famous advocates” rather than budding and efficient advocates.
This brings us to the fifth learning :
v) Lawyers make money by having good social contacts with the judges, police, public prosecutors, government officials, etc.
It is not written in any Law book, one has to learn it by experience. You don’t require the knowledge of law for this too. What this tells us, it is something else that helps the lawyers to make money, not the knowledge of law. This way, the young professionals of law is always at disadvantage because many of their cases get defeated because their opponent lawyer being a leading lawyer can influence the judge to deliver judgment in his favor even though his case is weaker than yours.
You will be knowing that you have done good job than your opponent. You will be knowing that the judgment of the judge is terribly unreasonable. But you can’t prove that judge wrong, unless your client can bear the expenses of filing an appeal in High Court.
And being experienced people, they know very well which client is capable of fighting his case up to which level (i.e., up to Lower court level, or High court level, or Supreme Court level).
Even if you are capable of going to High court to file an appeal against the verdict of lower court, there is nothing the High court can do other than knowing that the judgment was bad. That is why the judges of lower judiciary often collude with the Senior Advocates and Criminals to give judgments in their favor even though the case of their opponents is strong and their lawyers made better arguments.
Broadly speaking there are only three simple steps involved in a judicial process :
1. File your case in court
2. Get it heard following principles of natural justice
3. Let the judge hear the other side too
4. Get the judgment
That is all! This requires legal knowledge, and ability to present your case, build your arguments, gathering evidences (documentary/oral). But when the administrative processes and technicalities become more important than hearing the case, arguments and delivering judgment that will become hunting ground for people who enter the profession of law with a motive to make riches.
When legal professionals start making money using the loopholes in laws, exploiting the administrative processes to their advantage to demoralize the opponents, building social contacts with police, public prosecutor, judges etc., destroying evidences, influencing the witnesses, concocting false evidences, then knowledge of law becomes irrelevant.
What you need to know is how to use your ability to influence various authorities, people, witnesses etc to get the judgment in favor of your client.
If everything goes right, there is nothing in law and its practice that says, that a young and budding advocate cannot present a better case than a Senior Advocate. But generally the young advocates cannot win cases against the Senior Advocates because the Senior Advocates know how to exploit the system and people involved in the system to their favor.
That is why we see so many young Advocates even after passing the Bar Council Exam working under Senior Advocates. They may have already learnt a great deal about law. What they need to know is these crooked methods to influence judiciary. In other words, there can’t be a “fair trial” if there is a Young advocate pitched against a Senior Advocate, though he has better intellect than the Senior Advocate.
You require something else to win cases, not the knowledge of law alone.
Senior Advocates offer training to young Advocates on several aspects like these :
1. What type of Clients they should entertain (generally rich clients they prefer because they can afford to fight up to Supreme Court)
2. What type of advice/work to be given/done at what stage while dealing with those clients so that they can make maximum money out of their case
3. How to build social contacts with various people in Court administration. Even a Clerk in Court administration is VIP for lawyers, because with their help they can get the administrative processes like fixation of date of hearing, filing various documents, confusing the opponents and their counsels etc to their favor.
4. How to use the influence of Senior Advocate to influence the judiciary on their own like purchasing witnesses, concocting false documents, getting desired dates of hearing, getting bail orders, etc.
5. How to use money for various crooked purposes like purchasing witnesses, concocting false documents, getting desired dates of hearing, getting bail orders, etc.
In other words, if you start practice on your own, you will not have the advantage of being the Junior of a Senior Advocate. If you practice under a Senior Advocate, you will come to know which people lie at what places in Courts, and how they quickly respond to you by virtue of being the Junior to your Senior. In other words, you will quickly form a “social platform” for yourself, to get various works of yours done through various officials, judges etc. involved in judicial processes.
For example, if you practice on your own, then the time taken to file a case in some Lower court will be one month and if you practice under some Senior Advocate, it will take one day because you operate through his acquaintances. That is why lawyers practicing under the Senior Advocates appear smarter to clients and people than the lawyers who practice on their own without the help of any Senior Advocate.
The difference is not the intellect, knowledge of law. The difference they make is the “social circle” and the “influence of the Senior Advocate” among the judges and officials of court administration. The difference is the methods they adopt to win cases which is not known to Advocates practicing on their own with out the training of a Senior Counsel.
The more confusing the administration of affairs in Courts, the complex the administrative processes, the more the Senior Advocates can make money out of their clients saying that, “this work can only be done by me, if you go to any other advocate, it will take six months….because there will be no one to hear them….”.
In other words, what the Senior Advocate or Junior working under him wants to convey is, “as I have good influence in legal circles, your work is being done efficiently…”. On that pretext they charge. This advantage would not be there for someone who does not practice law under a Senior Lawyer.
I already told that in India people in various positions in government departments or legal departments charge people for doing their work. They don’t do any favor to people by doing some work. It is the work that they are expected to do and they are paid for that only. Still they demand something from people to do that work. For Senior Lawyers they may do it free, because he is capable of threatening because of his status. The more confusingly the Clerks, Officers etc in courts keep the administration, the more efficiently they can get the hearing dates etc the way the Senior Advocates want either early or lately.
People don’t know who comes first in the hearing and who comes next. If some Salman Khan’s bail petition has to be heard by the Magistrate then it is possible for the Clerks and Officers to give an early date of hearing by meddling the records and postponing the bail petitions of other ordinary people.
Salman Khan’s number may be 100 and he may be heard after 10 days if he goes in line. But he is a Star. He has lot of assignments in film industry. He can use any amount of money to bribe the magistrates, court officials through his Senior Advocate to get a number of 9 instead of 100 so that his bail petition is heard just after a day or two. That will save him from being in Jail for 10 days!
You need these kinds of skills to make money in the legal profession in India.
This brings us to the sixth learning :
vi) Lawyers make money by influencing the officials in court to the advantage of their clients.
Now comes the role of police and public prosecutors in helping the Advocates make money. Some Advocates go the extent of influencing police to file an FIR against some innocent. He will come for the help of Lawyer. Both the police and lawyer create a fear psychosis in that fellow that if he is caught and proved guilty he will be sentenced for minimum 10 years. That innocent fellow does not know that the crime he is alleged to have committed by police does not attract 10 years punishment.
The lawyer, because of his influence, ensures that the FIR is removed from the police files! For that they collect fees and it is distributed between Police officer filing the FIR to threaten the accused and the lawyer.
Do you require knowledge of law for this? You need to be good friend of Police officials for this.
Next, if it is not possible for the police to remove FIR because the victim is strongly following up the case, or the lawyers and police feel that they can milk the accused by prolonging the case by dragging him to court, they will go up to the stage of filing a charge-sheet in court. They will bargain with the accused if you pay this much, I will remove this evidence, if you pay that much, I will not file this charge etc.
The magistrate framing the charges may also be corrupt and he may drop some charges against the accused if he gets his share of money.
This brings us to the seventh learning :
vii) The police and the lawyer of the accused will get money from the accused :
A. for not investigating the case properly
B. for not gathering the evidences against the accused properly
C. for not filing the charge-sheet properly or dropping certain charges
D. for creating another FIR by destroying the original FIR
E. for not arguing the case properly that is entrusted to Public prosecutor (he will have his share of money for not arguing the case properly)
F. for threatening the victim and the witnesses to drop their case
This could happen in Civil proceedings too. If you can influence the opponent’s lawyer then you can get judgment in favor of your client or compel the opponent’s client to come for a compromise/out of court settlement to his disadvantage.
Though there is no provision for compromise in cases under Law, the opponent’s client will be (informally) informed that he will be losing the case subsequently, but he will be paid some good amount (not as good as the amount that he gets if he wins the case) for not making further appeal in a Higher court and for losing the case.
You don’t require the knowledge of Law for this too!
What all this suggests is that like many other professions, like films and politics, in the profession of law too, what is the influencing factor is money, power and influence not the intellect. You cannot survive in this profession only with talent or intellect. What you require is wealthy background (seeing that any Senior Advocate would prefer to allow you to practice under him) and the support of a Senior Advocate who already made his mark in winning cases with crooked methods not with power of intellect.
My assessment is 50 percent of victim’s cases get unfavorable treatment before they enter the courts from police, lawyers and public prosecutors hence they drop out without even filing a case in courts. Out of remaining 50 percent cases, 35 percent cases get unfavorable judgments at the level of Lower judiciary and because they can’t afford to fight up to High Court/Supreme Court they accept the judgments of Lower courts without proceeding further in their cases. Remaining 15 percent victims are capable of fighting their cases up to High court/Supreme court, but the wait for justice will become so long and harassing for them that by the time they get the favorable judgment they will lose faith in the system and interest to fight their cases.
In other words, 85 percent of the cases where people are victimized are won by their opponents with the help of these Advocates who know how to make money without using their intellect by fishing in troubled waters.
In other words, only 15 out of 100 victims probably get justice through our judicial system. But when we talk of these 100 victims we should realize that these people constitute that percentage of people who are capable of taking their case up to police and courts. My assessment is only 1 out of 4 people in India go to police and courts when they are victimized, rest of the people silently suffer.
In other words, out of 400 victims, only 15 victims can get justice from Indian courts. That is a poor percentage of 3.75%! This is one of the reasons why rich get richer and poor get poorer in our country and the strong always remain strong by oppressing and suppressing the underprivileged classes. This is also one of the reasons why 80 out of every 100 law graduates produced by Indian Universities cannot make their impact in their professions because they don’t get the support of Senior Counsel’s like the Advocates belonging to privileged classes.
The learning that I have given in this Article they will get after practicing in futile for 5 to 10 years and finally one fine day they discover that what you need to make money or survive in this profession is not knowledge or intellect but something that has nothing to do with what they have learnt in Law colleges.
Samar Inam Khan
Advocate
This is the question raised by Timesnow Newschannel yesterday after Salman Khan was arrested by Jodhpur police and sent to Jail. Unequal treatment of Law also leads to terrorism and agitation in people. There is a strong belief in the Kashmiri leaders that I often witness in programs like We The People, that people against whom crimes were perpetrated by Security forces did not get justice. They use that argument as a justification of acts of terrorism.
When we ask the question – Law equal for all, it sounds as if we are driving people to the conclusion that as people like Salman Khan and Sanjay Dutt are arrested by police and sent to prison for a few days, Law is equal for all.
But that is not true. The socio-economic inequalities, the class differences, the difference between haves and have-nots have a strong bearing on the criminal justice system.
60 percent of the people of India are Agricultural laborers, Industrial workers, and other Laborers in other shops and establishments. They either belong to poor sections of Indian society or Lower middle class. When a Lower court delivers a verdict against them, they don’t have the capacity to appoint an advocate and fight their case in Higher courts like High court and Supreme Court.
But people like Salman Khan and Sanjay Dutt can afford to do that.
20 percent of the remaining 40 percent population belongs to Middle classes (ie., 20 every 100 people in India belong to middle class). Out of remaining 20 percent population 15 percent belong to Higher middle classes and 5 percent belong to Elite sections.
This is my reading about the spread of population across the various classes.
60 percent
Lower Middle class and Poor sections
20 percent
Middle class
15 percent
Higher Middle Class
5 percent
Elite sections
Even Middle class people cannot afford to fight their cases in courts at the most they can afford to fight up to High Court. And only 20 out of every 100 people can afford to fight their cases up to Supreme Court.
The Elite people of this country always say, “we respect Judiciary”. The statement will be lingering on their tongues. But the fact is the only part of Judiciary that they respect is Supreme Court. Till Supreme Court delivers a verdict they keep on disrespecting the verdict of every lower court that goes against them by challenging it in a Higher court, whether it is the verdict of Lower Judiciary or High Court. In fact all of them feel nice if there is another tier above Supreme Court where they can challenge even the Supreme Court verdict so that they can waste time fighting their cases till they die. It is only because Supreme Court is the final judge, they respect the verdict of Supreme Court, otherwise, if there is some other Court above Supreme Court where they can challenge the verdict of Supreme Court, they will even challenge the verdict of Supreme Court, because they can afford it.
Hence we say, law is not equal for all. Law is meant for people who can afford to pay the advocate fees and fight their cases till Supreme Court. Not all people are capable of fighting their cases up to Supreme Court. Hence they take law into their own hands. That is one of the reasons for Terrorism, whether it takes the sentiment of Anti-national movement as we see in Kashmir or Anti-rich movement as we witness in Naxal activities.
...............
Law equal for all? - II
In a nutshell what I mean to say is 80 out of 100 Indians are not capable of filing appeals against judgments of lower courts. They accept the judgments of lower courts and undergo punishment because they can’t afford to make an appeal, file revision petitions etc. in higher courts.
Earlier I have given a suggestion that the cases of VIPs and Celebrities must not be clubbed with the cases of ordinary people, there shall be separate wing at all levels, (i.e., Lower Judiciary, High Court and Supreme Court) to try the cases belonging to Celebrities and VIPs.
That was not heard and intentionally ignored by people concerned. When asked by Media people – ‘whether being a celebrity is an advantage or disadvantage when it comes to facing trial in courts’, the Celebrities often say, “it is a huge disadvantage to be a celebrity…..as the attention of people, Media is more on us, we don’t get the same treatment from judiciary as a common man gets and that works against us….”.
That is true. We all think that being a Celebrity he can influence witnesses, appoint best legal brains to fight his cases, influence the public prosecutor, police etc in such a way that they file weak cases against them. But we forget that when the attention of Media is on the Judiciary it becomes difficult for the judiciary in lower courts to do such favors to the Celebrity accused that they normally do to other citizens.
For instance Salman Khan files a “Bail petition” in court. Everybody is interested to know whether he will get bail or not. Media will be concerned, if he gets bail, whether he is given the bail on valid grounds or not, whether any favoritism is shown because he is Celebrity. That acts to his disadvantage. If no body is watching the magistrate will give bail even on invalid grounds for consideration of money or influence. Generally common people escape like that in lower courts. But being a Celebrity is a disadvantage because the magistrate cannot dare to issue a Bail order without having valid grounds.
That is why Celebrities often say, “being a Celebrity acts against us….”. The privileges that a common man can enjoy, “like bribing the magistrate…without anyone’s attention” cannot be enjoyed by the Celebrities.
The celebrities don’t have the advantage of being ignored by Media and People when they make attempts to bribe the judiciary.
That is why they say, we pay much heavier price for our crimes than ordinary people pay. What they mean is, “while ordinary people get away from their crimes by bribing the judiciary, police, public prosecutor etc…..we can’t get away because against us the Trial will be extremely fair…because Media will be watching….”. It may also mean that while ordinary citizen pays Rs.10000/- to get a Bail order, the Celebrity has to pay Rs.10 lacs to get the same Bail order.
How sad that the courts don’t treat Celebrities at par with “ordinary bribers”? They (Celebrities) will feel, “we got a fair trial” if they can also be treated by Judiciary at par with ordinary bribers.
We have a good joke on the Judiciary about this kind of Trials:
________________________________________________________________________
The judge declared at the beginning of trial: "Counsel for the defense has paid me $15,000 to find for his client. Counsel for the plaintiff has paid me $10,000 to find for hers. In order to make this a fair trial, I am returning $5,000 to the defense."
________________________________________________________________________
And what about Industry reactions? We don’t know whether Law is equal for all or not, but we surely know that the Society’s reactions is not equal for all.
When I was working for a financial institution, I faced criminal charges in one petty case. I was terribly scared at that point of time that the legal case would cost me my job. Every common man has this fear in his psyche, and so he does not want to land up in any criminal case while he is employed under some employer. If any common man lands up in such a situation as Salman Khan or Sanjay Dutt is landed up today, he will be under a deep fear psychosis and he will be deeply in search of such people who will lend “moral support”.
They realize that none of their colleagues is speaking in their favor once they landed up in trouble of facing a trial in court. Moreover they find that everybody is speaking ill of them behind their backs when they are facing any trial in court or departmental inquiry.
But you see the reactions of film industry. Everybody in the industry is speaking for Salman Khan and Sanjay Dutt. Everyone is praying for their release.
It does not happen in any other industry for any other Citizen employed in such industry. Moreover there will be such Conduct rules and DA regulations framed for those employees that if they land up in any criminal case the employer reserves the right to remove him from job. But the same is not true for Film Stars and Politicians too. Our beloved Speaker Somnath Chatterjee recently commented that unless Supreme Court delivers a verdict against MP Shahabuddin, he cannot be disqualified from Parliament.
Can you see the difference between ordinary accused and Celebrity/VIP accused?
The Elite society stands strongly behind the accused and lend moral support to him. While the ordinary citizen immediately gets bad name when he faces a criminal trial, suffers loss of face and reputation in his social circles and he is alienated and deserted by his own friends, colleagues, family members etc.
Remember I am not speaking anything against Salman Khan or Sanjay Dutt when I say all this!
I am only trying to show the differences between the way a Criminal trial proceeds in case if you belong to High class or Higher Middle class society and in case you belong to other Classes, and how society reacts to people belonging to Elite society and people belonging to Middle class and Poor societies when they face criminal trial.
Generally it all depends on the quality of Advocates you appoint to fight on your behalf whether you can get acquittal or not. The strategy adopted by legal practitioners in Celebrity cases is :
Waste as much time as possible and keep the Celebrity out of prison on Bail for as much time as possible while simultaneously arguing the case the best way possible…in the meanwhile, out of court, you try all methods to dilute the case…by purchasing witnesses, changing documents, destroying evidences etc.
For instance in Salman Khan’s case a “revision petition” is filed. “What is the difference between Revision petition and Appeal against lower court judgment” is only known to good lawyers. And you get good lawyers by paying good moneys. By filing a revision petition you may spend some more time than by directly appealing against lower court judgment.
That is why I say, Law is not equal for all.
Bad lawyers don’t know how to waste time. Bad lawyers don’t know how to maintain relationships with magistrates and judges in such a manner that they can take as many adjournments as possible during hearings so that the case prolongs for at least one decade. That is why when a common man faces the same trial, if he does not have even the capacity to bribe the small amounts that judiciary expects from common man, he will get the sentence very soon. And he will have to accept the verdict of the lower court and treat it as “final judgment” in his case without challenging it higher court. I doubt whether the legal community would even take the pain of educating the convicted that he has a privilege to appeal in a higher court.
In some cases we noticed that police have kept some accused in Jail for 50 years or so, without even filing charge-sheet in courts. Media brought out such case into light recently.
One side you have Celebrities who get all kinds of attention from best legal practitioners to help them challenge every lower court’s verdict and help them enjoy their lives coming out on Bails, the other side, we find such people who are imprisoned without even being produced in front of Magistrate, without even being filing a chargesheet for 50 years or more because they don’t know the law of land, they don’t know how to claim their rights when police arrest them.
We the people in Media is worried when Salman Khan is in prison for two days. No one bothered about the man who remained in prison for 50 years without even being convicted or tried by magistrates!
Law is equal for all?
What about the attitude of prosecuting agencies like Police, CBI etc. towards the accused?
You can see what is happening in Prof. Sabharwal’s murder case. Media reported yesterday how the CBI favored L.K. Advani by dropping charges against him when NDA government was in place to help him get out of his Ayodhya Mosque Demolition case. You know how the police did not respond to the demands of Sikh community in Delhi to arrest the supporters of Congress party who perpetrated violence against them after the assassination of Indira Gandhi in 1984.
Your respect for law depends on your ability to influence the Law enforcing agencies and your ability to afford to fight cases and bribe the judiciary/police etc. If you can afford to fight the case up to High court, you need not respect the verdict of lower court. If you can afford to fight the case up to Supreme Court, you need not respect the verdict of the High Court.
The question is, how many people can afford to fight up to High Court and how many up to Supreme Court and how many simply obey the order of Lower court itself because they can’t afford to fight by appealing in higher courts?
I have already answered this question.
I want to conclude by saying, that the question whether law is equal for all is important, and it depends on the level of Socio-economic equality achieved by the Nation. Where the status difference is too wide, as is the case with India, the law cannot be equal for all. Those who belong to privileged and elite classes can afford to fight for justice till Supreme Court, and those who belong to middle classes and poor sections would simply obey the orders of lower court and suffer punishment.
…………..
Law is equal for all? - III
How lawyers make money in India?
Many people, budding professionals of law, the students of law, the Media, the Parliamentarians may be interested to know how Lawyers make money in India. Why the process of getting justice by the victims become so complex in our system, when the only thing any Court has to do is to simply listen to the arguments made by both sides and deliver judgment? Isn’t it? It looks so simple, but it is truly so complex, or rather made complex. When we know how lawyers make money in India we come to know several reasons why there are millions of cases pending in Courts in India at all levels, and also the reasons why the judicial process has been made so complex by the people and law enforcing agencies involved. Seeing the way the criminal justice system failed in our country and lawyers making money, I wanted to write something in the style of book , “What they don’t teach you in Business schools/Harvard Business school”.
Earlier we heard in our childhood fables that in India, the Kings used to listen to both sides and deliver judgments. In a nutshell what the judges, whether they are the judges of Lower/Trial courts or High Court or Supreme Court is to give a patient hearing to the arguments, statement of facts, evidences, witness accounts etc and arrive at the truth of the case and awarding punishment to the accused. The authority exercised by Kings in those fables is delegated to the Courts, Judges in our present Democracy.
My encounters with legal professionals in the year 2003 when I was given ousting orders by my employer gave me some insight into this subject. Ever since, I was struggling to learn as much as possible about the subject of law and in the process I came to know several ways, as to how the legal professionals make money in India.
Let me first begin with my encounter with one Law firm in the year 2003.
When I stepped into the firm, I was under the impression that I can proceed against my Employer under Industrial Disputes Act, 1947. The only mistake I made while discussing with the Advocate sitting in the Law firm is to make an attempt to know the truth, whether I can proceed under Industrial Disputes Act. He has shown me one book containing Industrial Disputes Act and conveyed to me, being an Officer and earning more than 2500 rupees per month does not allow me to proceed under Industrial Disputes Act, 1947.
For giving that information to me he charged Rs.275/-.
It amazed me. What is it that he did? He did nothing to me. Just for giving a small information that already exists in law, he charged Rs.275/-!
Later I went to another Advocate. He saw the documents I have shown to him. He said, “your case is very weak….”. I told him, “no my case is very strong…you can easily build a strong case against my employer…”. Generally lawyers don’t like people with self-confidence. When they say, “you case is very weak”, what it means is you should immediately get scared and start begging him, “please help me out….I am in big trouble…”. To scare you out and compel you to beg them, they use this kind of tricks.
He was not interested in my case, because, “I was not appearing ignorant…”.
In other words, the earning of lawyers start the moment they start listening to your case and give their opinion as under which laws, you can proceed against the client’s respondent/plaintiff. This brings me to the first learning as to how lawyers make money.
i) Lawyers make money by listening your case, studying your documents and offering you some preliminary advice as under which laws you can proceed and under which laws you cannot proceed in your case.
Creating fears in the clients and playing on their ignorance and fears is one of the ways of earning money by lawyers.
My next step after leaving that Advocate is to start studying various Employment laws available in Internet. There I found that almost all the Laws of the country are available it only requires some patience to know and prepare a draft of your case, the statement of facts, arguments etc. I studied very deeply in the light of my case, under which law, I can proceed against the employer. And I neatly prepared a Writ petition to be presented in High Court without the help of an Advocate. Later I telephoned to one Law firm in Madras where the cause of action arose and asked the help of one Advocate sitting there to file my case in Madras High Court.
When I told the Lady Advocate, I myself prepared the draft petition, she did not like me. She advised me, “you better file your case in Civil court first, and then go to High court if necessary….you should not directly go to High court….”.
I did not like her idea. I did not understand then, why she advised me to first go to Civil Court instead of filing a writ petition directly in High court. Later I understood that it would fetch them lot of money as it takes at least 10 years for Civil courts to deliver judgments. There are two things that the Lady Advocate did not like :
1. She did not like my idea of drafting petition on my own without the help of Advocate, hence she said, we can’t accept drafts prepared by plaintiffs, we will prepare on our own (they say like that, because they can charge for that).
2. She did not like my idea of directly going to High court. I told why she wants me to first file my affidavit/case in Sessions court.
I came to realize that it is impossible for me to proceed through any Advocate if I prepare Draft/Petition myself and on that ground ask him to charge less for taking up my case. They will never take such cases, because they would not get good money on such cases.
This brings us to our second learning :
ii) Lawyers make money by compelling people to first file their cases in Trial courts/Lower judiciary/Session courts even if it is not necessary for them to go through that tier.
My thinking was very clear at that stage itself. I worked very hard to prepare the petition. I have quoted all the Acts, Sections under which I wanted to proceed against the respondent. I took all the care to file the evidences in such manner that Courts expect us to file. I recorded the statement of facts the way they expect us to record. I made arguments, I also made my request in the petition. I studied many drafts of petitions available on Internet before I did this exercise and I also studied the requirements of High court by visiting High court website as to how the petition should be like.
In other words, I did not leave any work for the Advocate, he simply has to take it and get it admitted in the Court. I was wondering at that stage, when the Young Lady Advocate told me, I have to first file my case in Civil court as to what difference would it make whether my petition is heard by the Lower court judge or High court judge.
But they know very well that it is necessary that we should first go through Lower judiciary, get judgment of the judge of inferior court and then file an appeal in the Higher court. Then that would fetch lot of money for them. It is not in my interest that she was telling me, ‘you first go to Civil court…”. It was purely in her own business interest, she told me that.
Once a case is filed in Lower court, then you have keep spending money for various actions of advocates like filing the case in the court, at right place, for getting a date for hearing, for passing stay orders, interim orders, bails, for getting adjournments of the case if the plaintiff/respondent wants to prolong the case for any reason.
Generally the plaintiffs, respondents want to delay the case by getting adjournments to demoralize the opponent. If the opponent is not a sound party, if he cannot bear the legal expenses on fight his case, then he will come for a compromise or he will stop fighting the case. In order to drive the opponent for making an appeal to us to compromise, the lawyers in collusion with the Lower court judges (especially in Civil courts) keep on forcing adjournments on one pretext or the other. The opponent loses patience because the case is never coming to the stage of hearing of arguments itself, even after 5, 6, 7 or more years.
This brings us to the third learning as to how lawyers make money :
iii) Lawyers make money by influencing the Court administration and Judges to post-pone the date of hearings on one, two or several technical grounds. You need to know the Civil Procedure Code and Criminal Procedure Code thoroughly to do this. For having this knowledge of forcing the Judges, courts either on technical points or by influencing them they get money from their clients.
The demoralization of opponent to approach the client/lawyer happens because of two reasons :
A. the courts, when they adjourn cases, adjourn them for a long time, sometimes they even adjourn the date of hearing to a date after six months or eight months or more. This happens because there are millions of pending cases in courts.
B. Apart from that the corruption in Lower court administration helps them to adjourn the cases for as long as the Lawyer wants. In some courts if they want they can either adjourn the case for a period more than 8 months or more, or get an early date of hearing. Both or possible. It all depends on what the Lawyer wants to do. Does he want to demoralize by taking adjournment for date of hearing the case for a long time, or does he want to get the next hearing date in just a month or two for a different reason?
You don’t require any study of law, to earn money like this. What you need to know is how to get postponements, adjournments by using provisions of CPC, Cr.P.C on technical grounds. For instance, one lawyer told me that when a witness of the opponent came to give his evidence, he was misled by some miscreants outside the court, when he inquired about the place of Judge sitting and hearing. It was big building, it is difficult to arrive at the judge easily. As he was misled, the witness could not approach in time. By the time he approached the judge, the time of hearing of that case on that date was over.
That became a reason for seeking adjournment. The lawyer delayed the arrival of opponent’s witness using some miscreants who work for these causes in Court compounds/complexes. When witness did not appear, he asked the judge for adjournment of the case.
Do you require the knowledge of law for doing this?
We often wonder why, we find so many lumpen elements roaming around Courts in India and what they do there. Their job is to help the lawyers like this, threaten the witnesses, mislead the witnesses, purchase the witnesses, collect bribes on behalf of advocates, giving false evidences etc. The lawyer collects money from his clients (who are often wealthy) and share some of it with these lumpen elements.
This brings us to our fourth learning :
iv) Lawyers make money by influencing the witnesses of the opponents either by misleading them or by threatening them or by bribing them, for that they charge their clients. In order that they make more money, it is necessary that their client should be on the wrong side. In other words, they can make more and more money if they fight cases on behalf of wealthy criminals.
Evidences given in courts are generally of two types :
A. Oral evidences given by eye witnesses
B. Documentary evidence
It is already explained how Lawyers make money by meddling with the process of witnesses giving their evidence. Next comes documentary evidence. Lawyers should have good social circle in all government departments, police department to ensure that they create, mould, destroy the documents required to be produced as evidence in Courts.
You don’t require legal knowledge for that.
In fact one Lawyer practicing Civil Law told me that even Chief Justice of India cannot understand the way we earn money in this profession. It is not the intellect that pays in legal profession what you require is all these skills. You need to have good contacts with Judges, Public prosecutors, various government officials etc. That will help you to mould the case in your favor. Generally the big advocates win cases because of these contacts. People who already made their mark in this profession know where lies what loop hole in the law, and how to win the cases by using the Social contacts they already have.
You may be excellent lawyer. You may have great intellect to present your case and building your arguments.
Truly your arguments and the presentation style may be better than the arguments and presentation of the Leading lawyer who is fighting against you. But what influences the judge is his social contact with the leading lawyer. He (the judge) will first assess the possibility of you and your client approaching the High court. If there is no possibility that you and your client approaching the High court, the judge will deliver the judgment in favor of your opponent though his case, his arguments are weak.
There could also be some “understanding” to share the moneys between “leading advocate” and “judge”. That is why generally people prefer “leading and famous advocates” rather than budding and efficient advocates.
This brings us to the fifth learning :
v) Lawyers make money by having good social contacts with the judges, police, public prosecutors, government officials, etc.
It is not written in any Law book, one has to learn it by experience. You don’t require the knowledge of law for this too. What this tells us, it is something else that helps the lawyers to make money, not the knowledge of law. This way, the young professionals of law is always at disadvantage because many of their cases get defeated because their opponent lawyer being a leading lawyer can influence the judge to deliver judgment in his favor even though his case is weaker than yours.
You will be knowing that you have done good job than your opponent. You will be knowing that the judgment of the judge is terribly unreasonable. But you can’t prove that judge wrong, unless your client can bear the expenses of filing an appeal in High Court.
And being experienced people, they know very well which client is capable of fighting his case up to which level (i.e., up to Lower court level, or High court level, or Supreme Court level).
Even if you are capable of going to High court to file an appeal against the verdict of lower court, there is nothing the High court can do other than knowing that the judgment was bad. That is why the judges of lower judiciary often collude with the Senior Advocates and Criminals to give judgments in their favor even though the case of their opponents is strong and their lawyers made better arguments.
Broadly speaking there are only three simple steps involved in a judicial process :
1. File your case in court
2. Get it heard following principles of natural justice
3. Let the judge hear the other side too
4. Get the judgment
That is all! This requires legal knowledge, and ability to present your case, build your arguments, gathering evidences (documentary/oral). But when the administrative processes and technicalities become more important than hearing the case, arguments and delivering judgment that will become hunting ground for people who enter the profession of law with a motive to make riches.
When legal professionals start making money using the loopholes in laws, exploiting the administrative processes to their advantage to demoralize the opponents, building social contacts with police, public prosecutor, judges etc., destroying evidences, influencing the witnesses, concocting false evidences, then knowledge of law becomes irrelevant.
What you need to know is how to use your ability to influence various authorities, people, witnesses etc to get the judgment in favor of your client.
If everything goes right, there is nothing in law and its practice that says, that a young and budding advocate cannot present a better case than a Senior Advocate. But generally the young advocates cannot win cases against the Senior Advocates because the Senior Advocates know how to exploit the system and people involved in the system to their favor.
That is why we see so many young Advocates even after passing the Bar Council Exam working under Senior Advocates. They may have already learnt a great deal about law. What they need to know is these crooked methods to influence judiciary. In other words, there can’t be a “fair trial” if there is a Young advocate pitched against a Senior Advocate, though he has better intellect than the Senior Advocate.
You require something else to win cases, not the knowledge of law alone.
Senior Advocates offer training to young Advocates on several aspects like these :
1. What type of Clients they should entertain (generally rich clients they prefer because they can afford to fight up to Supreme Court)
2. What type of advice/work to be given/done at what stage while dealing with those clients so that they can make maximum money out of their case
3. How to build social contacts with various people in Court administration. Even a Clerk in Court administration is VIP for lawyers, because with their help they can get the administrative processes like fixation of date of hearing, filing various documents, confusing the opponents and their counsels etc to their favor.
4. How to use the influence of Senior Advocate to influence the judiciary on their own like purchasing witnesses, concocting false documents, getting desired dates of hearing, getting bail orders, etc.
5. How to use money for various crooked purposes like purchasing witnesses, concocting false documents, getting desired dates of hearing, getting bail orders, etc.
In other words, if you start practice on your own, you will not have the advantage of being the Junior of a Senior Advocate. If you practice under a Senior Advocate, you will come to know which people lie at what places in Courts, and how they quickly respond to you by virtue of being the Junior to your Senior. In other words, you will quickly form a “social platform” for yourself, to get various works of yours done through various officials, judges etc. involved in judicial processes.
For example, if you practice on your own, then the time taken to file a case in some Lower court will be one month and if you practice under some Senior Advocate, it will take one day because you operate through his acquaintances. That is why lawyers practicing under the Senior Advocates appear smarter to clients and people than the lawyers who practice on their own without the help of any Senior Advocate.
The difference is not the intellect, knowledge of law. The difference they make is the “social circle” and the “influence of the Senior Advocate” among the judges and officials of court administration. The difference is the methods they adopt to win cases which is not known to Advocates practicing on their own with out the training of a Senior Counsel.
The more confusing the administration of affairs in Courts, the complex the administrative processes, the more the Senior Advocates can make money out of their clients saying that, “this work can only be done by me, if you go to any other advocate, it will take six months….because there will be no one to hear them….”.
In other words, what the Senior Advocate or Junior working under him wants to convey is, “as I have good influence in legal circles, your work is being done efficiently…”. On that pretext they charge. This advantage would not be there for someone who does not practice law under a Senior Lawyer.
I already told that in India people in various positions in government departments or legal departments charge people for doing their work. They don’t do any favor to people by doing some work. It is the work that they are expected to do and they are paid for that only. Still they demand something from people to do that work. For Senior Lawyers they may do it free, because he is capable of threatening because of his status. The more confusingly the Clerks, Officers etc in courts keep the administration, the more efficiently they can get the hearing dates etc the way the Senior Advocates want either early or lately.
People don’t know who comes first in the hearing and who comes next. If some Salman Khan’s bail petition has to be heard by the Magistrate then it is possible for the Clerks and Officers to give an early date of hearing by meddling the records and postponing the bail petitions of other ordinary people.
Salman Khan’s number may be 100 and he may be heard after 10 days if he goes in line. But he is a Star. He has lot of assignments in film industry. He can use any amount of money to bribe the magistrates, court officials through his Senior Advocate to get a number of 9 instead of 100 so that his bail petition is heard just after a day or two. That will save him from being in Jail for 10 days!
You need these kinds of skills to make money in the legal profession in India.
This brings us to the sixth learning :
vi) Lawyers make money by influencing the officials in court to the advantage of their clients.
Now comes the role of police and public prosecutors in helping the Advocates make money. Some Advocates go the extent of influencing police to file an FIR against some innocent. He will come for the help of Lawyer. Both the police and lawyer create a fear psychosis in that fellow that if he is caught and proved guilty he will be sentenced for minimum 10 years. That innocent fellow does not know that the crime he is alleged to have committed by police does not attract 10 years punishment.
The lawyer, because of his influence, ensures that the FIR is removed from the police files! For that they collect fees and it is distributed between Police officer filing the FIR to threaten the accused and the lawyer.
Do you require knowledge of law for this? You need to be good friend of Police officials for this.
Next, if it is not possible for the police to remove FIR because the victim is strongly following up the case, or the lawyers and police feel that they can milk the accused by prolonging the case by dragging him to court, they will go up to the stage of filing a charge-sheet in court. They will bargain with the accused if you pay this much, I will remove this evidence, if you pay that much, I will not file this charge etc.
The magistrate framing the charges may also be corrupt and he may drop some charges against the accused if he gets his share of money.
This brings us to the seventh learning :
vii) The police and the lawyer of the accused will get money from the accused :
A. for not investigating the case properly
B. for not gathering the evidences against the accused properly
C. for not filing the charge-sheet properly or dropping certain charges
D. for creating another FIR by destroying the original FIR
E. for not arguing the case properly that is entrusted to Public prosecutor (he will have his share of money for not arguing the case properly)
F. for threatening the victim and the witnesses to drop their case
This could happen in Civil proceedings too. If you can influence the opponent’s lawyer then you can get judgment in favor of your client or compel the opponent’s client to come for a compromise/out of court settlement to his disadvantage.
Though there is no provision for compromise in cases under Law, the opponent’s client will be (informally) informed that he will be losing the case subsequently, but he will be paid some good amount (not as good as the amount that he gets if he wins the case) for not making further appeal in a Higher court and for losing the case.
You don’t require the knowledge of Law for this too!
What all this suggests is that like many other professions, like films and politics, in the profession of law too, what is the influencing factor is money, power and influence not the intellect. You cannot survive in this profession only with talent or intellect. What you require is wealthy background (seeing that any Senior Advocate would prefer to allow you to practice under him) and the support of a Senior Advocate who already made his mark in winning cases with crooked methods not with power of intellect.
My assessment is 50 percent of victim’s cases get unfavorable treatment before they enter the courts from police, lawyers and public prosecutors hence they drop out without even filing a case in courts. Out of remaining 50 percent cases, 35 percent cases get unfavorable judgments at the level of Lower judiciary and because they can’t afford to fight up to High Court/Supreme Court they accept the judgments of Lower courts without proceeding further in their cases. Remaining 15 percent victims are capable of fighting their cases up to High court/Supreme court, but the wait for justice will become so long and harassing for them that by the time they get the favorable judgment they will lose faith in the system and interest to fight their cases.
In other words, 85 percent of the cases where people are victimized are won by their opponents with the help of these Advocates who know how to make money without using their intellect by fishing in troubled waters.
In other words, only 15 out of 100 victims probably get justice through our judicial system. But when we talk of these 100 victims we should realize that these people constitute that percentage of people who are capable of taking their case up to police and courts. My assessment is only 1 out of 4 people in India go to police and courts when they are victimized, rest of the people silently suffer.
In other words, out of 400 victims, only 15 victims can get justice from Indian courts. That is a poor percentage of 3.75%! This is one of the reasons why rich get richer and poor get poorer in our country and the strong always remain strong by oppressing and suppressing the underprivileged classes. This is also one of the reasons why 80 out of every 100 law graduates produced by Indian Universities cannot make their impact in their professions because they don’t get the support of Senior Counsel’s like the Advocates belonging to privileged classes.
The learning that I have given in this Article they will get after practicing in futile for 5 to 10 years and finally one fine day they discover that what you need to make money or survive in this profession is not knowledge or intellect but something that has nothing to do with what they have learnt in Law colleges.
Samar Inam Khan
Advocate
Subscribe to:
Posts (Atom)
Posts
.jpg){kind=link}