MOOTING #StudentsOutlook

MOOTS: WORTH THE TIME OR JUST AN EXPENSE

‘Trials’, ‘eliminations’, ‘memorials’, ‘counsel’, “LORDSHIPS” – these are the most commonly heard words in  any law school and till now even the fresher’s must have become familiar with this terminology. After all, the number of moots that you do is like your tag of success as a student of law. Being a member of the Hon’ble Moot Court Society is a privilege.

But wait. Take a break. Just imagine the scenario that would prevail after few years- when each one of you would have settled down somewhere in your life and would have become a successful lawyer, a judicial officer, a legal advisor in some renowned firm, a civil servant or may be a great professor. Would then anyone bother about that “number” for which you are furious right now. I guess the answer is pretty obvious.

But then again, moots indeed form a major part of the life of a law student. For some, it is a long driven passion who try to make records by doing a large number of moots. While others see it as something “additional”, experienced only when it becomes compulsory in the final year and they try to get hold of the theory instead of doing it practically. And trust me, it does not make much of a difference. The discretion is wholly yours, depending on your career choice.  For a more realistic view, here are the personal opinions of some law students.

Student's Perspectives-

• Mooting is not just an expense, neither in terms of money nor time. It enhances your knowledge to a great extent, which is totally incomparable to any other thing.”

-Nazuk Singhal, Graduated from UILS this year

• “Moots are worth the time. They evolve your knowledge skills and are the closest encounter a student can get of a courtroom.”

-Mamta, Final year student at Deptt. of Law, Panjab University

• “I think moots are quite helpful. You get an opportunity to research about a particular topic in depth along with the practical application of the law. So even if you want to go for judiciary or civil services it’s better to do the moots, it gives you more clarity.”

-Akhil Kamra, B.Com. LL.B., 7^th Semester, UILS
(Winner of numerous moots plus ex-co-convener of the Moot Court Society)

• “I believe this question is framed either by a student who is from non-law background or the one who has not done any moot during his LL.B. course. Moots are something which acquaint you with the actual law which exist outside the theory world. You are getting a chance to do exactly the same things which you will do after your degree that also without any implications. From research to framing issues to forming arguments and arguing case is all what an enthusiastic law student can aspire to do. Moots are worth each and every second of the time and effort you put in.”

-Anirudh Nanda, B.Com. LL.B., 5^th Semester, UILS

(Co-Convenor of the Moot Court Society, winner of the intra moot competition 2016 held at UILS and trial advocacy held at KIIT Bhubaneshwar)

• “Moots are worth the time. It is an investment to be precise. You learn to argue and be confident. You learn about the subjects before you actually start studying them. Activities in law schools make us different from the normal colleges. That’s the beauty of it. And pertaining to this moots serve a purpose of inculcating in the mind of a student, the various practical aspects that they need to work on."

-Nikhilesh Verma, B.Com. LL.B., 5^th Semester, UILS

 (DR Candidate :P plus winner of Intra Moot Court Competition 2016 and also Trial Advocacy Competition held at KIIT, Bhubaneshwar)

• "It's amazing how we take up a moot; give almost a month of our lifetime analysing it. It enhances our skill to put an argument in a structured manner and tells you how amazing people are and why you should thrive for more. I remember on one of the moots I met this amazing Chennai dude who knew almost every provision in almost every bare act present till date. 

I don't remember much what the professors taught me in the last 2 years, but do remember all the laws with the landmark cases and their citations which I prepared for the moots. Moots are definitely worth experiencing. 

P.S.- The department sponsors it, what else is required?"

- Aman Walia, B.Com. LL.B., 5th Semester, UILS

• “Speaking from my personal experience, our Constitution exam was not according to the last 10 year question papers.  Just because I had done a moot in the previous semester, I was able to frame an entire 15 marks answer on minor articles, along with the case laws."

-Amaninder Sandhu, B.Com. LL.B., 5^th Semester, UILS

• “Definitely worth the time. Mooting is a pre-hand experience for my future profession. You get to learn how to work in a team and co-ordinate for research. Lectures on mooting and memorials were of no use until I participated and got to know how it actually works. It made me more confident."

-Tamanna, B.A. LL.B., 3^rd Semester, UILS

• “Moots are worth the time. As Swami Vivekananda has beautifully stated,‘Experience is the only source of knowledge.’ Putting this in perspective with our field, mooting is the only avenue for gaining the requisite practical experience and hence knowledge in this field.”

-Aseem Mahajan, B.Com, LL.B., 3^rd Semester, UILS

• “I cannot give any personal experience as I have not participated yet. But yes this is indeed a very subjective topic. It is beneficial for those who see their career in litigation and arguing before the judges definitely make you more patient and teaches you to behave in a sophisticated manner.”

-Hemlata Malik, B.A. LL.B., 3^rd Semester, UILS

So the whole point is listen to your inner voice. Do not go for moots just for the sake of it or because everybody is doing it. Do it if you are actually interested and hungry for law, and bitten by the law bug. If you think you can invest this much of time and energy without bothering about the results, just keep yourself updated and try on every moot problem published on lawctopus. And yes, for the first year students-do participate in the intra moot. It is one of a kind experience.

P. S. There are other things to do as well; research papers, fests, internships and a lot more. Stay tuned to Legal Daftar for the further aspects.

                                                                                           

ABOUT THE WRITER:

Bhumija Bhaskar is a 2nd year student pursuing B.A.LL.B.(Hons.) from University Institute of Legal Studies, Panjab University. She is a proficient writer and has been featured in a Youtube video on the channel 'Rhythms of Rhyme'. She is a keynote speaker in All India Mushaira held annually in Ferozepur, her hometown. 

EXPERTS REVIEW #4#Article356

A TALE OF TWO STATES and ARTICLE 356

The incorporation of emergency powers in the Constitution of India was subject to lot of debate and discussion in the Constituent Assembly with regard to its possibility of endangering the federal polity. The Article 356 has always been used to dismiss State Governments where the party in power is not the same as that ruling at the Centre. Since Independence, India has seen 124 cases of the imposition of President’s Rule in different parts of the country.

The use of the same Article is now regulated by the landmark judgment of Supreme Court in the Bommai’s case, which laid down two propositions:

1.      The proclamation issued by the President under Article 356 is subject to judicial review and;

2.     The question of majority should be decided on the floor of the legislature and not in the Raj Bhavan.

The recent developments in Uttarakhand and Arunachal Pradesh have turned the spotlight on the office of the Governor. 

Is bribing a legitimate ground?

• It was perfectly legitimate for Governor K. K. Paul in Uttarakhand to ask former Chief Minister, Harish Rawat to prove his majority in the assembly on March 28, after 9 Congress members broke away from the party. 
• But a day before the floor test was to be held, the Union cabinet held an emergency meeting and advised President Pranab Mukherjee to impose Central rule in the State. 
• What triggered the emergency meeting was the Governor’s report after a sting operation showed Rawat offering money to MLAs for their support. 
• In a fit of great moral outrage, the Centre decided to act quickly. Mukherjee was said to have signed the proclamation when he was shown the video, which was certified as genuine by a forensic lab. 
• This means that President’s rule was imposed on the ground that the Chief Minister had attempted to bribe some legislators for their support.  

Political crisis in Arunachal Pradesh

• On the other side, the north eastern state of Arunachal Pradesh had plunged into political crisis in November 2015 after 21 of the Congress’ legislators of the total 47 had rebelled against then CM Nabam Tuki. 
• The rebellion had reduced the Congress government to 26 legislators (i.e. in minority) in the 60-member assembly. 
• Following the political crisis, the Union Government had imposed President’s rule under Article 356 of Constitution on January 26, 2016. 
• Later the leader of Congress dissidents’ faction, Kalikho Pul, was sworn in as the 9th Chief Minister in February 2016 with support of 20 rebel Congress legislators and 11 BJP legislators.
• The Supreme Court has ordered the restoration of former Chief Minister Nabam Tuki’s Congress Government in Arunachal Pradesh.

First Time in Indian History:

• Supreme Court has quashed the Governor's decision and restored a State Government that had been dismissed by the Centre under the President’s rule.

With the Supreme Court driving the return of Congress Governments in two states in less than three months, the BJP government at the Centre has earned the dubious distinction of having been pushed back on the imposition of President’s Rule is perhaps the quickest succession in Indian judicial history.

ABOUT THE WRITER:

Ms. Shikha Dhiman under the aegis of Prof. Rattan Singh is pursuing LL.M. from the University Institute of Legal Studies, Panjab University. She has obtained her LL.B. and B.Com. degree from Guru Nanak Dev University, Amritsar and APJ College, Jalandhar respectively. She is a learned writer who looks forward to join the teaching profession. She is grateful to Prof. Rattan Singh for his continuance guidance and support, and providing her with an opportunity to publish her article, 'Sampling in Legal Research' in his book titled, 'Legal Research Methodology'.

   LIFE AT NLU DELHI

Greetings to readers!

 I did fairly well in academics consistently over years, which is why my well wishers thought that I was cut out to be an engineer. I acquiesced, ignoring the myriad career options which I hesitated to explore. It was only when I was in XII standard that I realised that I had acumen for legal studies, a field which many of you readers love. I fell in love with this arena because of the simple reason that it involves exploration of the society you live in.

So here I am today, in a crème de la crème of institutions ...NATIONAL LAW UNIVERSITY DELHI. When I entered the campus for the first time, the greenery and serenity of the campus assured me that I was at the right place. The best part is Justice TPS Chawla Library, which is so well equipped and maintained that every legal practitioner in this city wants to have access to it. The library along with its online portal caters very well to all our research project needs. Every student has to do five research projects a semester, which allows us to gain detailed knowledge about a subject.

I met the vice chancellor Dr. Ranbir Singh the very first day and was left impressed by his amicable behaviour (because I had expected a man of such stature to be bossy). You will love the way our curriculum has been framed so that in the first semester the emphasis is on building your rationale rather than learning laws. We undoubtedly have excellent faculty here and every student finds  Mr. Anup Surendranath’s Legal Methods classes the best because he involves the entire class in discussions over relevant topics. 

The university organises seminars and workshops on a regular basis, which is, you all will agree, the best way to gain expertise in a field you have a vague idea of. Last week only, the university hosted a seminar organised by National Human Rights Commission; thereby we had an opportunity to listen to former CJI H L Dattu and other luminaries.

The first month here is vibrantly full of activities. The seniors here are very chill, always ready to help you (be it about projects or parties).Then there are so many student committees, Debating society, moot court committee ,quiz committee, sports committee, cinema club to name a few to give you an all round feeling of a college. There are others like Gender circle, Ambedkar Periyar Phule Study circle which involve students into a dialogue over issues that matter.

Since the university believes in the holistic development of its students, we have umpteen extracurricular activities like the sports fest and we have the talent fest coming up next. 

My batch has extremely talented and experienced sportspersons (not bragging though). This place offers numerous opportunities to imbibe the values to be a successful legal professional. You just need to strike the right balance and I guarantee that you won’t find this place burdensome ever.

I believe that five years in this place is a great investment. There’s nothing more you would ask for. This place has a great pool of talent and I know it will very soon be the best law school in India.

Best wishes.

ABOUT THE WRITER:

Shambhavi Singh, a first year B.A. L.L.B. (Hons.) student at NLU Delhi. She was born in Bihar and brought up in Madhya Pradesh. She did her  schooling from Carmel Convent School, Gwalior.  

EXPERTS REVIEW#3#Surrogacy Special

SURROGACY: A MARKET OF EXPLOITATION

Surrogacy is a method of carrying pregnancy for intended parents.  Intended parents mean those who need a woman to carry their embryo in her womb till the time of delivery. In this process, an embryo created by IVF (in vitro fertilization) is being transferred to the surrogate mother. And in this manner the resulting child is genetically unrelated to the surrogate.

When the surrogate receives money for the surrogacy,  then the arrangement is known as Commercial Surrogacy. Recently, Government of India after going through the pros and cons of this whole process has cleared The Surrogacy (Regulation) Bill, 2016 that seeks to completely ban commercial surrogacy. And the same will be introduced in next session of Parliament.

The legislation will ensure effective regulation of surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile couples.

The Bill will regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards

ALTRUISTIC SURROGACY WILL BE ALLOWED ONLY FOR:

1) Infertile Indian married couples.

And not NRIs or OCI card holders. Single parents, homosexual couples, live-in relationships couples will also not be allowed altruistic surrogacy.

2) The couple must be married for at least five years and will have to produce a medical certificate testifying that either partner is medically unfit to produce children.

3) Commercial surrogacy will be prohibited, including sale and purchase of human embryo and gametes.

RIGHTS OF CHILD:

The child will have all the rights that a biological child has, including right to property.

The bill makes it mandatory:

1) That surrogate mothers to be married.

2) That she is a close relative of couple wanting a child 

3) She must have given birth to a healthy child before becoming a surrogate mother.

4) A woman can only be a surrogate mother once in her life.

Surrogacy clinics must be registered with the government. Provisions regarding imprisonment and imposition of fine have been included for  defaulters.

WHY WAS IT NECESSARY?

In the absence of a statutory mechanism to control commissioning of surrogacy at present, there have been reported incidents concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos.

There have been past cases where couples took home one child from a twin birth or couples left a disabled baby with the surrogate.

If a medical situation were to arise in which the clinician must act either to save the life of the fetus or the surrogate, he has a strong financial incentive to choose on behalf of the paying client, and thus the fetus. And it represents clear cut exploitation of humanity. 

CRITICISMS:

1) The fear is that this bill will end up creating an underground surrogacy network in India which will end up compromising the rights and health of the surrogate mother even more.

2) This is a situation akin to the organ racket in India where though it is forbidden it still thrives illegally. Women activists wanted rights of the surrogate secured, removal of the middle-man etc. However the Bill in its current form is an extreme one.

3) It takes away the freedom of using her own body in any way she wants. A surrogate gets around $5000 for a pregnancy,  hence we can say that a mean of livelihood has been taken away from poors.

4) By excluding whole sets of people from the ambit of surrogacy, the bill betrays a discriminatory attitude towards them.

5) The present draft would impact medical tourism in the country. The multi-million dollar surrogacy industry will be completely destroyed. Some 2,000 infertile couples hire the wombs of Indian women to carry their embryos through to birth every year, according to the government.

CONCLUSION:

It represents the most heinous form of human labour in front of whole world, in which a woman has to sell her own body in order to survive out of poverty.  It unfurls the curtains from unemployment,  inequality,  illiteracy and brings the real and ugly reality to everyone.  Though the step taken by government should be welcomed but with a suggestion I would like to close my article, that rather than trying to ban a practice, State Institutions must try to fight and resolve the reasons because of what, women have been forced to go through such type of inhumane and painful practices.

ABOUT THE WRITER:

Arun Singh Punia is a alumnus of the University Institute of Legal Studies, Panjab University, Chandigarh. He is an amazing poet and have done internship in NHRC and parliamentary internships.He have also been in the National Defence Academy for a year.

LEGAL BULLETIN#6#Supper Special

PARLIAMENT SPECIAL

1)Revised India-Cyprus DTAA approved 

The Union Cabinet approved the signing of the revised Double Tax Avoidance Agreement(DTAA) with Cyprus.It is considered as a mojor step in the fight against tax evasion, "round tripping" and "base erosion/profit shifting". 

HISTORICAL FACTS:

1)India & Cyprus had entered into a tax treaty in 1994 & are obliged to exchange information.

2)Cyprus is considered a major haven for money laundering, round tripping & profit-shifting.

3)Cyprus was the only country to have been blacklisted by India as a non-cooperative jurisdiction(notified on November 1,2013 by Finance Ministry).

KEY FACTS:

1)It will give India the right to tax capital gains on investments routed through Cyprus.

2)Capital gains will be taxed in India for entities resident in Cyprus, subject to double tax relief.

3)Provides for source-based taxation of capital gains on transfer of shares instead of one based on residence.

5)Also includes a provision for assistance in collection of taxes.

Signing the revised agreement will lead to the avoidance of double taxation prevention, prevention of fiscal evasion and removal  of Cyprus from the list of "Notified Jurisdictional Areas".

2)POCSO e-box launched

Protection of Children from Sexual Offences(POCSO) e-box has been launched by the Union Ministry of Women and Child Development in New Delhi.It is an initiative of National Commission for Protection of Child Rights(NCPCR).It is an online complaint management system for easy & direct reporting of sexual offences against children & timely action against offenders under POCSO Act,2012.

AGAINST THE MOTION

Talking about the year of 1985 wherein, a NGO for its very first time introduced a draft bill according to which the concept of regulation of working conditions, rather than complete prohibition of child labour was brought in. On one hand, people believed that it is not at all possible to eradicate child labor from this country, but every move taken regarding this concept should be as if it is to be eliminated.

 The other group felt that ‘child labour’ is a grinding reality in our society and since the future can always be taken care of, steps should be implemented to avoid their further exploitation. This draft bill was taken into consideration and was then transformed into the Child Labour (Prohibition and Regulation) Act 1986. Recently however, the government made some changes after which it is now known as the implementation of child labour (prohibition and regulation) amendment act, 2016.

The PIB release that released on May 16, 2015 says - However, while considering a total prohibition on the employment of child, it would be prudent to also keep in mind the country’s social fabric and socio-economic conditions. In a large number of families, children help their parents in their occupations like agriculture, artisanship etc. and while helping the parents, children also learn the basics of occupations. 

Therefore, striking a balance between the need for education for a child and the reality of the socio-economic condition and social fabric in the country, the Cabinet has approved that a child can help his family or family enterprise, which is other than any hazardous occupation or process, after his school hours or during vacation”. 

The same debate came in 1985-86 also, which was later concluded by stating that children are allowed to work in family enterprises. The only exception that lies in the newly changed implementation of child labour (prohibition and regulation) amendment act, 2016 is that the family enterprises in which the child is working should not be hazardous. But then again, there lies a loophole in this law.

 India is a diverse country with complex relationship trees.The new bill introduced by the government continues to allow children to work in the family enterprises; however, the term ‘family’ in India is still very extensive and ambiguous leading to its wide misuse. The term ‘family’ is defined in the proposed bill as the child’s mother, father, brother, sister and father’s sister and brother and mother’s sister and brother. The bill utilizes the word ‘help’ in order to state a child’s inclusion into any family enterprise. The duration however should be after the school hours, or during vacations.

 India is a country which is feudal in nature. At the same time,  caste driven Indian society,is what covers the major portion. ‘Child labour’ is an evil on the society which needs to be curbed down. But due to its excessive normalization, there is neither shock nor shame. 

Children will always support their families or ‘help’ their parents as they do in the present time. The problem lies in the inclusion of this provision in the law, but as specified earlier too, we are well aware that the notion of family is a very wide, vague and ambiguous concept in India. The past experience related to the implementation of this law had a similar provision in this respect. Section 3 of the CLPRA, 1986 clearly stated that this section was often misused to tie the children to home based work and exploitation.

Child trafficking is so common these days that those traffickers often claim that the children working are a part of the ‘family’. In the absence of birth registrations and certificates, it is not at all possible to discover whether or not a child is really part of the family or not. If people say medical tests can remove that problem, is it really possible in a country like India to conduct medical tests where the population is on the verge of leaving China behind?

The answer is a straight NO! In addition to this, many families may host children from the extended family as part of informal kinship care. 

The exception of Section 3 in this law, will again be acting as a loophole as the caste system will continue to exist. For example, a potter's son/daughter will be a potter; a weaver's child will be a weaver and so on. A vicious circle will be formed making it difficult for the poor to come out. Dalit community will be the worst affected as Dalits are the ones who are at the bottom of the caste hierarchy. Although, there have been numerous arguments, the Ministry officials continue to reinstate their say of this explanation being too far!

The Parliamentary Standing Committee clearly explained how the ministry is itself creating loopholes in the law. The only question now arises is that how are we going to distinguish between the children who are merely helping their parents and those who are working to supplement the family income. It is very important to draw a difference between these two in order to prevent criminalization of parents and families. If it is not done, it will just become another law which the general public would be able to misuse; just like the Dowry law.

A quick look at the government’s own statistics of prosecution tells us how limited the use of the law has been in the past:

Details of Action Taken Against Employers Under the CLPRA, 1986
Year	Violations	Prosecutions	Convictions
2011	14423	6017	984
2012	12052	5018	1144
2013	8991	3563	1061
2014	1027	792	754

Even if we manage to define the terms such as ‘family’ and ‘child labour’, we still can’t ignore the fact that there is absolutely no solution to the question of distinguishing between the two sets of children. Not only this, if children are allowed to work after their school hours, it could have an adverse affect on their health as rest and recreational activities are equally necessary for the physical and cognitive development as their work is.

 Ensuring a child’s overall development is always linked with the some rest which will ultimately get eliminated due to children being allowed to work even after school. More work even after school hours/vacations would create a direct impact on their regular schedules too.

Yet again there comes another loophole of defining the ‘hazardous occupations’. Earlier, there were 16 occupations and 65 processes which were listed as hazardous in the 1986 law which have recently been replaced with mines, inflammable substance and hazardous processes which have the meaning assigned to it in clause (cb) of the Factories Act, 1948. 

Since there has been a reduction in list of hazardous occupations/works, it becomes all the more difficult to eliminate the children from working in hotels and dhabas. This law disregards the fact that every day new ‘occupations’ are coming up which are equally hazardous and dangerous as stated in the list.

Even if such loopholes are accepted by this country, what about the children who lie between the age-group of 14-18 years? Isn’t it high time that we finish the prolonged silence on the employment of children above the age of 14 years and allow a required distinction between ‘hazardous’ and ‘non-hazardous’ sectors of employment?

 When are we going to consider the rights of the children? Even after the amendment, the law still remains mum on the issue of children aged between 14-18 years. It is quite evident from this amendment that the main objective of the government is to create jobs in order to meet the manufacturing requirements. The focus from the protection of children has clearly been shifted. This law keeps alive the unregulated form of labor wherein corporates are not going to have to deal with labor unions.

 When we see production being pushed into the homes, this is nothing but keeping the un-scrutinized and the unregulated informalization of labour alive, so that corporates can ‘make in India’ without having to deal with the labour unions and the labour laws. There is absolutely no provision provided in the law as to who is to be held responsible in order to regulate the entry of children into the work force.

This law is happy enough to place the entire burden on the Dalits, Muslims, and most importantly the tribal families in the name of ‘The Make in India’ project. Shouldn’t a country jostle for making the children a priority before any project and hidden agenda?

Laws can be used to lead the change and this is one such opportunity that has come after 29 years. Let us not lose it.  

 REFERENCES

Government of India, Ministry Of Labour and Employment, Lok Sabha, Unstarred Question No.1285, Answered on 01.12.2014, Conviction under Child Labour Laws

Standing Committee on Labour (2013-2014) Fifteenth Lok Sabha Ministry Of Labour And Employment The Child Labour (Prohibition And Regulation) Amendment Bill, 2012 Fortieth Report.

ABOUT THE WRITER:

Bhavyata is a second year student of the University Institute of Legal Studies, Panjab University.She has won the written debate competition organised by legal daftar.#KUDOS