Law Schools

A review of Nalsar’s SBC constitution is reinvigorating student self governance

PaarasPandey_NALSARIn the early days of my first year at Nalsar, I observed that because the administration tacitly encouraged senior students to handle even grave matters such as ragging, the final year students and especially the members of the Student Bar Council (“SBC”) were considered to be above all rules.

When student self-governance gets co-opted in this manner, absurd hierarchies develop within the student body. Along with this false hierarchy, the absence of grievance redressal mechanisms, the lack of filing requirements for candidates standing elections for these offices, and the students’ inability to directly elect office bearers, added to their disillusionment with the college’s affairs.

The Constitution Review Committee (“CRC”) was established in January 2014 to draft a revised constitution for the SBC that would reinvigorate student self governance at Nalsar through greater participation. It was a nine-member body with one student from the first year, two each from the third and fifth years, and three from the fourth year batch. Its sessions were chaired by the SBC President in a non-voting capacity. Among the members, only three were women and none had ever been an office bearer before.

The body worked by creating five sub-committees, each tasked with re-drafting the SBC constitution’s preamble, representative body structures, social justice mechanisms, financial allocation, and residuary features. The final version of the re-drafted constitution was submitted on May 20, 2014.

At the time that it submitted its report, all office bearers had to first contest at the class-level from any of eight committees – academic, cultural, hostel and campus welfare, literary and debating, mess and hospitality, moot court, sports, and student welfare. In such a system of indirect representation, none of the office bearers were truly representative of the popular will of the student body (as a whole), and therefore lacked the legitimacy to make representations on its behalf. In fact, the office bearers would feel the need to function as agents of their respective batches, because those students had voted for them.

In the CRC’s proposal, the student government would have two tiers – the Executive Council (“EC”) chosen through direct elections and the activity-based committees (“legislature”) chosen by elections within batches. Each committee had to coordinate and manage different spheres of students’ lives.

Every student could be part of the general decision-making body (“GB”) of any two committees. Except for their budget formulation, committees did not have constitutionally mandated functions. Instead, they had to formulate annual plans of action after consulting their GB.

Nalsar's Student Bar Council for 2014-15

Nalsar’s Student Bar Council for 2014-15

The EC could formulate policies or schemes but implement them only with legislative approval. Each office bearer in the EC also had responsibilities such as being the primary point of contact with the administration (the President), monitoring the finances of the committees (the Treasurer), and detailing the minutes of EC meetings (the Secretary). The Vice President would handle the student government’s ‘public affairs and consultation’.

A new post, that of an ombudsperson called the Student Advocate (“SA”), was also proposed. A fourth year CRC member borrowed the idea from the Public Advocate’s post in the New York City Council. The SA would be a non-voting member with the powers to receive complaints against representatives or take suo motu cognisance of a matter relating to inaction, impropriety, or partiality. Once the SA took up a matter, the erring representative or student committee was duty-bound to prepare a report and table it before the Legislature.

In this scheme, every power of a representative had been created only to enable the discharge of a specified duty, which is linked to rights enforceable by the students. Students have the right to be consulted, the right to be informed and seek information, the  right  to  file  individual  and  collective  complaints  with  authorities  and  to receive substantiated responses and replies, and the right to initiate impeachment or recall proceedings against representatives (including office bearers).

Most of the CRC’s proposals were never even explored fully. Many students were unwilling to experiment. Some said that they were opposed to direct elections because it would reduce chances for individual batches to win office bearer posts. This was unsurprising because by the second year, Nalsar’s hierarchy becomes an inseparable part of the students’ identities.

Perhaps the proposals were idealistic, but change won eventually. For the SBC elections for 2014-15, the administration promulgated a ‘transit constitution’, which reflected some of the CRC’s proposals but ignored significant ones. Although the CRC’s draft had not proposed reservation as a means of increasing diversity at all, this new constitution created reserved posts for women in the Executive Council. One welcome change was that voting for the President’s election was opened to the entire student body.

Note: I am grateful to Divya Venugopal for her study “The Elephant in the Room: Dealing with Final Year Disengagement”, which proved very helpful in understanding the causes of and methods to tackle student disengagement.

Paaras Pandey is an undergraduate student in his final year at Nalsar. 

Law Schools

Organise into self-governing groups, NLU students, and influence decisions in your college

PaarasPandey_NALSARThe recurring controversies around the conduct of the Common Law Admission Test (“CLAT”) are merely symptomatic of the state of the country’s premier law colleges.

Perennially short of funds, the universities cannot allocate enough resources towards identifying and solving many of the problems faced by the students. They are unable to attract adequate grants (sanctioned specifically) for paying teachers’ salaries and with the resulting human resource crunch, the regular conduct of classes has become a rare phenomenon, especially for students in their fourth and fifth years.

The management of services related to food, water, sanitation, and housing fall short of acceptable standards. Fees increase every year, compelling more students to seek loans, thus coercing them to consider only corporate jobs once they graduate.

Although the National Law Universities (“NLUs”) are heavily dependent on fees from students, the students have no voice in the day-to-day affairs of these institutions. The parent statutes of the NLUs do not envision student participation in any form.

But students have been able to make useful contributions. For example, some from Nalsar, the Hyderabad-based NLU, advocated with the Greater Hyderabad Municipal Corporation to carry out regular garbage collection and disposal. Students have previously raised money to fund scholarships and even attempted tree-plantation and gardening with some success. But these programmes suffer once the individual students who initiate them graduate.

Through student self-governing organisations (“student governments”), students may perhaps be able to have a sustained influence on the day-to-day governance of colleges. They will have to arrive at practical and economically sound solutions to their problems and later, advocate with the administration for the adoption of these solutions through ‘collective bargaining’.

For instance, the academic committee of the student government (the Student Bar Council or the “SBC”) lobbied successfully for the relaxation of the unrealistic hostel curfew (9 p.m., also when the library would close) and that the library be kept open till 11 p.m. on all weekdays. When the college administration noticed a sizeable crowd in the library even late at night, the 1 a.m. closing time (applicable only on the days before an exam) was extended to non-exam weekdays as well. The library and the space around it which once seemed dead at 9 p.m. are today vibrant with student activity till much later at night.

Nalsar's Student Bar Council for 2014-15

Nalsar’s Student Bar Council for 2014-15. Photo courtesy Abhishek Singh.

Admittedly, some of the problems I have mentioned above are a tougher ask for the students to solve but the central rationale for the existence of student governments is much wider than solving problems. Sound decision-making requires deliberation between decision makers and the affected individuals. Student governments could serve as a platform to represent the concerns of students to the administration of the college.

Popular and democratic participation in student governments give their representations legitimacy. A student government would find it difficult to negotiate with the administration if it restricts itself to token representation, or where the representatives’ will is subjugated to the will of the administration, or where the will of a few dictates the will of the others.

Recently, the SBC  requested the administration to institute a committee to review its constitution. The debates that followed after the Constitution Review Committee (“CRC”) presented its draft constitution exposed many fault lines on issues such as the role of gender, reservations, models of election and diversity, but also demonstrated a commitment to tackling problems.

These experiences have showed me that the students of the NLUs can do much to change the situation they find themselves in. Were they to organise themselves into democratic self-governing groups, they could begin to influence decision-making in the college administration. They must become participants in administration through student government models that have popular support. To gain recognition from the college administration and popular legitimacy from their electorates, the representative bodies must be centred on the values of diversity, universal participation, transparency, and accountability.

Paaras Pandey is an undergraduate student in his final year at Nalsar.

Law Schools

Law schools cannot do much to improve the efficiency of arguments in courts

AbhinavSekhri_NationalLawSchoolofIndiaUniversityStarting out, every law student nurtures some ambition to argue a case in court. The reason may be the glamour associated with lawyers in pop-culture or the innocent belief that arguing in court is what being a lawyer is about. A fresh law graduate however, rarely gets an opportunity to actually argue. Instead, they can observe the various styles of argument that lawyers employ and reflect on how five long years of legal education could have been put to better use for a life in the courts.

The vernacular as an entry barrier

Arguments at the high courts and the Supreme Court are conducted in English and the lawyers sound properly deferential to their lordships. At the district courts, the vernacular often supplements English and there is more informality with lawyers resorting to idioms and phrases to lighten the mood or make pointed remarks. Skilled trial lawyers are often adept at switching languages, playing to their strengths, and reading a judge’s reaction.

Honing these skills is a matter of experience, but that comes later. The use of the vernacular is a significant entry barrier for those who want to practice law in the courts. At NLS, there were only non-mandatory Kannada classes. Provided no training in any language other than English, a Delhi boy like me for example, will almost automatically, regardless of other factors, exclude trial litigation at lower courts in the south of India from his options for a career. Law schools should do their bit to improve the diversity in the profession by at least equipping students to practice law in the state where they are studying law.

The Indian styles of argument

OralAdvocacyIndianCourtsFrom top to bottom, an overflowing docket unites Indian judges who rarely have the time to familiarise themselves with each case. This has led to the development of peculiar styles of argument across courts. Judges, it is generally believed, cannot fully appreciate the written submissions because of the heavy burden of cases. Lawyers not only argue the case in law, they also spend time providing clarity on facts. Judges rarely ask lawyers to hurry up. Without a time limit, lawyers proceed leisurely from one issue to another, repeating arguments and returning to points. Linked to this is the practice of reading extracts from the written submissions aloud before the judge. This can be seen at a magistrate’s court and all the way up to the Apex Court. Several hours are spent fleshing out settled legal propositions by rehearsing case law in trying detail.

These inefficiencies can only be partly remedied by our legal education system. Law schools already expose students to more efficient ways of presenting arguments and promote the structured presentation of arguments. Through moots, students even practice how to present arguments for the most difficult legal problems in a coherent fashion within twenty-five minutes.

Legal education however, can only do so much. Judges and clients have grown so accustomed to these inefficient methods that any deviation seems a very high-risk strategy for lawyers. Change is much more likely to come through the bench. Recently, much to my delight, it was reported that the Supreme Court was considering time limits for oral arguments to curb delays caused by lawyers taking too much time over settled points. It’s certainly a start, but there is a long road ahead.

(Abhinav Sekhri is an advocate practising in Delhi.)


Indian courts use law journals for four main reasons but doubts persist about their utility

AshwitaAmbastHow is Indian legal scholarship used by Indian courts? We have already touched upon the use of peer review in Indian journals. Now, let us look at the judiciary and legal scholarship. The jurisprudence of courts of law in India is littered with references to scholarship from India as well as from abroad. Here are some of the reasons the judiciary has used law journals.

To establish a nascent position of law

First, law reviews are used to establish a new position of law that is still nascent. A good example of the use of foreign scholarship is R. Rajagopal v. State of Tamil Nadu. This case famously referred to the article, “The Right to Privacy” by Louis Brandeis and Samuel Warren in order to establish the recognition and establishment of the right to privacy as a distinct entitlement to be provided to citizens by the state. In Official Liquidator v. United Commercial Bank, the Kerala High Court had to determine the priority of the rights of workers against those of secured creditors in the course of the winding up of a company. The court referred to academic writing in the Journal of the Indian Law Institute to buttress its characterisation of the right of workmen in this context as a social welfare effort of the state.

For clarity in the position of law

Second, the judiciary may use articles to arrive at an unambiguous position of law where clarity is lacking. In Gramaphone India v. Birendra Bahadur Pandey, the question before the Supreme Court was about the definition of the term “import” under Section 53 of the Copyright Act, 1957, in reference to whether certain materials that were illegal in India   could be brought through India into Nepal. Here, the Court referred to an article by Johan H.E. Fried (Nepal’s representative at several relevant UN Conferences) in the Indian Journal of International Law on the interpretation of the 1965 Convention on Transit Trade of Land-Locked States.

To identify problems with the current position of law

Third, academic articles are used to understand different aspects of problems associated with the existing position of law that the judiciary ,ust account for. For instance, in 2009, in the seminal death penalty decision of Bacchan Singh v. State of Punjab, two judges of the Supreme Court referred to an article by A.R. Blackshield in the Journal of the Indian Law Institute to note the problem of subjectivity in death penalty decision-making contributing to arbitrariness. On a similar note, the Court referred to a piece by Arvind Datar in the National Law School of India Review to point out some errors in the manner in which Indian courts have been treating the idea of res extra commercium.

To justify the use of an established position


Finally, extracts from scholarships are frequently used to justify a judicial approach predicated on an established position of law. In Ediga Anamma v. State of Andhra Pradesh, Justice Krishna Iyer, referring to a piece in the Yale Law Journal, lyrically stated that “(a)s a judge, I am bound to the law as I find it to be and not as I fervently wish it to be”. Accordingly, he held that despite personal predilections, individual judges are bound by the fact that the death sentence was constitutional.

While it is apparent that the Indian judiciary finds legal scholarship useful, there is less clarity on other, more nuanced questions.

Is this utility sustained and has it changed over time? Scholarship in the United States has closely scrutinised how different courts have used journal articles. For instance, in 2012, Brent Evan Newton of the Georgetown University Law Center conducted an extensive study of the characteristics of articles that were most frequently cited by judges. The general prognosis is overwhelmingly weak and describes a decline in the utility of scholarship for courts. In fact, several prominent members of the American judiciary have displayed open scepticism regarding the value of American legal scholarship. Chief Justice Roberts of the Supreme Court of the United States famously stated that “law review articles are not particularly helpful for practitioners or judges”, a thought echoed at various points by other judges of the Court including Justice Breyer (“there is evidence that law review articles have left terra firma to soar into outer space”) and Justice Scalia.

Another area that is ambiguous in India is whether there is a balanced reference to indigenous scholarship and articles from abroad. Prima facie, it appears that courts rely more heavily on international scholarship. If this is the case, why is it so, and what does it portend about the state of Indian scholarship?

Ashwita Ambast is a graduate of the National Law School of India University and the Yale Law School and has worked with the National Law School of India Review, the Yale Journal of International Law and the Yale Human Rights and Development Law Journal.

Law Schools

India’s student-run law reviews face major questions

AshwitaAmbastIt is remarkable that the guardians of the most powerful academic gateways in legal scholarship in the United States are law students. Several of the most influential American journals such as the Harvard Law Review and the Yale Law Journal are produced by top universities and are entirely student-run (and proudly so) and feature no element of peer-review  that is, some form of evaluation by someone knowledgeable in the field. The absence of peer reviewing appears to be unique to legal academia, and unsurprisingly, this fact has drawn considerable flak.

The most classic critique of American journals was penned by Professor Fred Rodell as early as 1936. In his article “Goodbye to Law Reviews”, he strongly questions the academic contribution made by the ‘Harvard Law Review-style’ article as well as the poor, fluffy quality of writing he claims it encourages. Other critics point out inter alia that student editors are unable to fully evaluate technical analyses, particularly the kind found in articles that lie at the intersection of law and other disciplines. Student editors are frequently accused of being distracted by (arguably irrelevant) details such as the position and reputation of the author, conformity with a popular style of writing, and the volume of footnotes. It is true that peer review is not free of its flaws. The objectivity and independence of peer reviewers are frequently called into question as well. But the outrage and criticism against student-run journals is far more pronounced and on the face of it, valid.

What about the reviews being produced by Indian law universities? On surveying the information available about a series of law reviews published by Indian universities, some relevant observations can be made.

Image on the left is from Janet Lindenmuth's photostream on Flickr (CC BY 2.0). Image on the top-right is from Kristopher Nelson's photostream on Flickr (CC BY 2.0)
Image on the left is from Janet Lindenmuth’s photostream on Flickr (CC BY 2.0). Image on the top-right is from Kristopher Nelson’s photostream on Flickr (CC BY 2.0).

First, like the U.S., the kind of journals Indian law universities publish are generally of two kinds. The first is the flagship journal with diverse content, such as the Amity Law Review, the NUJS Law Review, and the NLUD Student Law Review. Also, in addition to the flagship reviews, Indian law universities are witnessing the proliferation of more streamlined journals that publish articles in more niche areas. There exist journals on subjects as specific as corporate crimes, telecommunications and broadcasting law, and law and technology. It appears that both these types of journals, flagship journals as well as niche ones, are a mix of peer-reviewed and student-run.

Second, there are a handful of journals that either state that they have an ‘advisory board’ or that they are jointly run by students and professors. What role do the advisors and professors play in the running of the journals, specifically in selecting the articles and controlling their quality? Does the final say lie with the student editors? On these fronts, many contemporary Indian journals beg clarity.

Finally, there are a handful of journals that indicate in clear terms that they are peer reviewed. However, the universe of peer reviewing is complex; the term ‘peer-reviewed’ itself begs further detail. Despite liberally using serious qualifying terms such as ‘rigorous’ and ‘international’, most journals seem to be unclear about what exactly their review process is.

The overarching conclusion from the three observations outlined above is that Indian law school scholarship has not completely dodged the attendant disadvantages of student run reviews entirely. Much writing is published sans peer review. In cases where peer review is employed, the process is varied and in most cases begs detail and transparency. While this observation may appear banal, it seems fair to expect that journals be more upfront with their potential contributors about the future of their articles. Who is reading them? Who decides their fate? Where are the red lines coming from?

Legal Research AdvertisementThese observations are preliminary and can potentially be fixed. But there is a larger, more ambitious and more pressing inquiry to be made. The flaws of the existing model of legal scholarship in America (of which the student-run or peer-review debate is just a part) are making journals less relevant to the Bar and even to academia. Apparently, about 43% of law reviews have never been cited in another article or judicial decision. Are Indian law reviews, both peer reviewed and student-run, facing similar challenges of redundancy? How useful are Indian law reviews to the judiciary when decisions are being delivered? What role do university published law reviews play in the work of the Bar? Does the academy believe that these publications are fecund ground for debate? These are some of the questions that this article series seeks to answer in its next editions.

Ashwita Ambast is a graduate of the National Law School of India University and the Yale Law School and has worked with the National Law School of India Review, the Yale Journal of International Law and the Yale Human Rights and Development Law Journal.