The Tribune, Chandigarh, India

	Making Parliament work Reforming Question Hour long overdue LOK Sabha Speaker Meira Kumar’s announcement that Question Hour will be made more effective from the ensuing session of Parliament is welcome. Inaugurating the 75th All-India Presiding Officers’ Conference in Srinagar on Sunday, she said that some decisions have been taken to make best use of Question Hour. Some of these include, a 15-day period to members for giving notices for questions; empowering the Speaker to direct answer to a starred question of a member who was absent in the House when he/she was called; limiting a member’s number of notices of questions to 10 in a day for both oral and written answers; and enabling a member to make a statement in the House correcting the reply given by him/her earlier, irrespective of whether the reply given pertained to a starred, unstarred or a short notice question. Mrs Kumar has rightly said that disruption of Question Hour by the Opposition is a big blow to the principle of accountability. Vice President and Rajya Sabha Chairman Hamid Ansari has also said that members have no right to disrupt Question Hour. Surely, it blocks the flow of information from the executive to the legislature and from the legislature to the people. The people will find it difficult to obtain precious information on various aspects of the government’s functioning if Parliament is not allowed to function. MPs have the right to raise issues of public interest in Parliament, but they cannot raise slogans, prevent ministers from speaking and force adjournments which lead to waste of crores of rupees and loss of precious time. It is not clear whether the Question Hour will be shifted from the present 11 a.m. to the evening. Status quo ante may suit everyone — ministers, MPs and officers. While ministers in principle attend Parliament in the first half of the day, they schedule their non-parliamentary work for later in the day. It is felt that if they were summoned to Parliament in the evening, the working of their ministries would get affected. But then, it is also doubtful whether pushing Question Hour to evenings would guarantee uninterrupted proceedings. Basically, the problem lies with some troublemakers who will have to be dealt with firmly. An all-party consensus on this may help check disruptions and ensure smooth functioning of Parliament. Ultimately, the MPs need to change their mindset and make best use of Question Hour and Zero Hour.
	NDA blues in Bihar BJP again finds itself at crossroads EFFORTS to pass off the war of words in Bihar as nothing but a lovers’ quarrel between alliance partners Janata Dal ( U) and the Bharatiya Janata Party are too simplistic. Indeed, the ‘cooling period’ signalled on Monday by Bihar Chief Minister Nitish Kumar, who advised the media to relax and not get worked up over the seemingly simmering political crisis, can scarcely gloss over the bitterness that has crept into the NDA coalition in the state. A section of BJP leaders led by Yashwant Sinha has publicly dared Nitish Kumar to break the alliance while BJP supporters in Patna hit the streets and burnt his effigies. His deputy Sushil Kumar Modi publicly complained about the CM’s arbitrary functioning and the state BJP president, C.P. Thakur, declared that if push came to shove, party would be willing to contest the impending Assembly election in Bihar alone. Publicly reacting to a newspaper advertisement, cancelling a dinner for BJP leaders at the eleventh hour and returning Rs 5 crore from the state’s flood relief fund to the Gujarat government will continue to be seen as somewhat impulsive and politically immature acts of the Bihar CM. But then Nitish Kumar, who is an old hand in politics and was instrumental in catapulting the then relatively unknown Lalu Prasad Yadav as the Chief Minister, may well have been testing the water, deliberately provoking the BJP to break ranks so that JD(U) may contest the Assembly election alone. The BJP, however, is convinced that JD(U) cannot afford to do without the organisational muscle of the saffron party. Yet another dimension of the ugly spat is that both Narendra Modi and Nitish Kumar are ambitious and seem to fancy their chances of becoming NDA’s prime ministerial candidates in future. The competing game of political one-upmanship could, therefore, be designed merely to cut each other to size. It could all turn out to be sound and fury signifying nothing. But the BJP is left with the thankless and unenviable task of doing a tight-rope walk between Narendra Modi and Nitish Kumar. Fast running out of allies and with even the Shiv Sena taking pot-shots at the BJP in Maharashtra, the main opposition party is again at crossroads and needs to find the shortest way out of the jam.
	Thought for the Day I can’t stand whispering. Every time a Doctor whispers in the hospital, next day there’s a funeral. — Neil Simon
	Corrections and clarifications The headline “Evaluation confusion well confounded by CBSE” ( Page 2, June 21) is wrong. It should have been “CBSE evaluation confusion confounded” or “CBSE evaluation confusion worse confounded”. On the same page the headline “No uniform policy on putting posters” ought to have had “up” after putting. The headline “New concept in higher education” (Page 11, June 19) doesn’t say much. The headline could have been “Corporates to train varsity students”, dwelling on an HP university’s tie-up with the industry to impart training to students. The headline “Winfrey, Rowling in richest women list” (Page 12, June 18) should have been “Winfrey, Rowling on richest women list”. Despite our earnest endeavour to keep The Tribune error-free, some errors do creep in at times. We are always eager to correct them. This column appears twice a week — every Tuesday and Friday. We request our readers to write or e-mail to us whenever they find any error. Readers in such cases can write to Mr Kamlendra Kanwar, Senior Associate Editor, The Tribune, Chandigarh, with the word “Corrections” on the envelope. His e-mail ID is kanwar@tribunemail.com. Raj Chengappa Editor-in-Chief

ARTICLE

Removal of Governors
It’s better to follow a procedure
by T.V. Rajeswar

A five-member Constitution Bench of the Supreme Court on May 7 registered its strong disapproval of regime change as a ground for the removal of Governors. The Attorney-General had contended earlier that if a party, which came to power with a particular social and economic agenda, found that a Governor was out of sync with its policies, then it should be able to remove him.

The apex court’s ruling came after VHP leader BP Singhal filed a public interest litigation when the Governors of Gujarat, Goa, Haryana and Uttar Pradesh were replaced by the UPA government in June-July, 2004. This writer was one of the four new appointees and posted to Uttar Pradesh.

The removal of the four Governors in 2004, the case against it at the Supreme Court and its eventual disposal by the Constitution Bench need to be viewed in the context of events which happened 20 years earlier in 1990. After the Janata Dal government came to power in December 1989 all the Governors were asked to submit their resignation. This writer was the Governor of West Bengal at that time and was on a visit to Delhi on January 13-14, 1990. I called on President Venkataraman on January 14 afternoon, when he said that Home Minister Mufti Mohammad Sayeed was with him an hour earlier and told him that the government would like to have the resignation of the Governors.

When I told the President that it was arbitrary and that he should consider advising the government suitably, Mr Venkataraman’s reply was that it was their headache and he did not want to interfere. Later in the evening, the President issued letters under his signature to all the Governors which read as follows: “Dear Governor, I am advised that the Government desire to change the Governor of your state. You may, therefore, send your resignation letter at the earliest. With kind regards, yours sincerely, R. Venkataraman.”

President Venkataraman’s handling of the issue was puzzling. Giani Zail Singh, President Venkataraman’s predecessor, who had retired and settled in Delhi, used to receive several visitors everyday. Gianiji had told many of them that “the learned Pandit from the South” in Rashtrapati Bhawan had made such a blunder in respect of the removal of Governors which even a “dehati like me” would never have made. “Ajeeb hai! Tajjub hai” were his incredulous remarks.

A senior Supreme Court advocate, whom I knew well, insisted at that time that he would challenge the Janata Dal government’s order expressed through the President to the Governors. He referred to the apex court decision in the case of Har Gobind Pant v/s Dr Raghukul Tilak (1978), which said that it was impossible to hold that the Governor was under the control of the Government of India. He was not amenable to the directions of the Government of India, nor was he accountable for the manner he would carry out his functions and duties. It held that his was an independent constitutional office, which was not subject to the control of the Government of India. Theoretically, it sounded very well but it was entirely unenforceable.

During the first 20 years after Independence when the Congress party was in power practically in all the states, there was no problem between the states and the Centre or between the Governors and the Centre. But subsequently problems arose. The Sarkaria Commission, which went into the various aspects of the office of Governor in 1971, dealt with the issue of security of tenure. The commission said, “The question whether a special procedure should be provided in the Constitution for the removal of a Governor and, if so, what that procedure should be has to be examined by a comparison of the duties and functions of the Governor with those of other constitutional functionaries.

“The role and functions of the President, who is the constitutional head of the Union, are broadly similar to those of the Governor insofar as the latter has to function as the constitutional head of the state. The functions of both are essentially political and governed by certain conventions of the parliamentary system of government. However, the similarity ends here.

“While it is not advisable to give the same security of tenure to a Governor as has been assured to a judge of the Supreme Court, some safeguard has to be devised against arbitrary withdrawal of President’s pleasure, putting a premature end to the Governor’s tenure. The intention of the Constitution makers in prescribing a five-year term for this office appears to be that the President’s pleasure on which the Governor’s tenure is dependent will not be withdrawn without cause shown. Any other inference would render Clause (3) of Article 156 largely otiose. It will be but fair that the Governor’s removal is based on a procedure which affords him an opportunity of explaining his conduct in question and ensures fair consideration of his explanation, if any.”

Save where the President is satisfied that in the interest of the security of the state, it is not expedient to do so, as a matter of healthy practice, whenever it is proposed to terminate the tenure of a Governor before the expiry of the normal term of five years, he should be informally apprised of the grounds of the proposed action and afforded a reasonable opportunity for showing cause against it. It is desirable that the President (which, in effect, means the Union Council of Ministers) should get the explanation, if any, submitted by the Governor against his proposed removal from office, examined by an advisory group consisting of the Vice-President of India and the Speaker of the Lok Sabha or a retired Chief Justice of India. After receiving the recommendations of this group, the President may pass such orders in case he may deem fit.

We recommend that when a Governor, before the expiry of the normal term of five years, resigns or is appointed Governor in another state or his tenure is terminated, the Union Government may lay a statement before both Houses of Parliament explaining the circumstances leading to the ending of his tenure. Where a Governor has been given an opportunity to show cause against the premature termination of his tenure, the statement may also include the explanation given by him in reply. This procedure would strengthen the control of Parliament and the Union executive’s accountability to it. However, these recommendations remained mere suggestions and were not accepted.

The five-member Constitution Bench, headed by Chief Justice K.G. Balakrishnan and also comprising Justice S.H. Kapadia, Justice R.V. Raveendran, Justice B. Sudershan Reddy and Justice P. Sathasivam, agreed on a crucial point made by the Attorney-General that no reasons need to be ascribed for the summary dismissal of Governors as they continue in their post as long as they enjoyed the pleasure of the President. Arguments can be put forth on numerous issues connected with the subject, but the opinion expressed by the Constitution Bench of the Supreme Court clearly closes all arguments and the Governors should know where they stand.

The writer is a former Governor of UP and West Bengal.

MIDDLE

Lip service
by Justice S.D. Anand

THE columnist who writes without malice was being factually true when he noticed in one of the weekly writeups that the modern day lovers (with due regard to those who are not of that category and are a quality-class apart) have ‘killed’ the spirit of romance because they ‘ride’ to love instantaneously which leaves no scope for fantasising.

There indeed were times when the making of a proposal itself would be preceded by fairly longish, consensual though, mere eye-contact, not accompanied by any conversation. A letter, obviously meant for being forwarded to the quarters concerned, would stay put in the pocket for months altogether. The fear factor would not wane, impeding transfer of hand. It was, at times, a bone chilling experience to be told that a ‘paper’ in the trousers had got washed. The announcement by the domestic help would invite invocation to the Almighty wishing that it had not been read at all.

A classmate of mine had, in turn, a friend of his who fell for a pretty lass, progeny of an R.M.P. The periodic reports intimated the regular not very infrequent meetings (with complete adherence to ‘untouchability’) in a far uninhabited tract of land (towards Batala side of Gurdaspur where my father headed the District Magistracy). It was after almost one year of their togetherness that they were able to render ‘lip service’ to each other. The modern scenario (in prevalence for the last about one decade or so) reflects impatience in the members of the lip service community.

My recent (and first) overseas sojourn took me by surprise in many facets of the English societal scenario. The complete absence of beggars, the noticeable respect for age and other etiquettes, dignity of labour, disciplined traffic by patient motorists and clean streets cemented my feeling that all this can exist on earth and is applaudable. People intending a visit to Central London were patiently lined up for paying ‘congestion tax’. Those not inclined to shed extra money were in smart air-conditioned public transport buses. The choice obviously was individual and was actuated by requirement and urgency of the itinerary.

At the same time, the situation on the London bridge made a very ‘lovable’ presentation. Attired in colourful ‘economic’ clothing, young guys and girls were walking to and fro at a brisk pace. Some of them would suddenly turn stationary and render ‘lip service’, without any provocation from those around or causing any consternation amongst them. A similar prevalence in India would have brought any number of ‘senas’ to the fore.

Food for thought for addition of a salvationary penal clause. The law makers would, I am sure, be free of the Kochi controversy by then.

OPED— LAW

The Bar Council of India’s introduction of an entrance test from this December for Law graduates before they start practicing has kicked off a major controversy. Can it go ahead without an amendment to the Advocates’ Act? Will it help streamline education in Law colleges and improve the quality of the Bar and the judiciary? An in-depth look.

Raising the Bar
Hemant Kumar

WHILE launching the Second Generation Reforms in Legal Education in New Delhi recently, Prime Minister Manmohan Singh has described the current status of legal education as a "sea of institutionalised mediocrity with a few islands of excellence". An important reform in this direction is the "Bar Exam" or the all-India Bar examination for fresh lawyers from this December. However, the question remains: how will it help refurbish the image of the Bar?

In April, Solicitor-General of India Gopal Subramanium was elected new Chairman of the Bar Council of India (BCI). He accorded top priority to refurbishing the image of the Bar. The mandatory entrance test for entry into the Bar will be introduced with the help of a legal consultancy firm.

Predictably, this reform has evoked mixed reactions. Law students, especially those in the final year, are a worried lot. The BCI had informed the Supreme Court recently that it can hold the examination from December. The genesis of the move can be traced to Mr Subramaniam's submission in the apex court in December, 2009 in Bar Council of India vs Bonnie FOI Law College and Others wherein he asserted that the first Bar Exam shall be conducted in July-August 2010 by a specially constituted independent body consisting of experts of various disciplines.

The case though deals with affiliation and recognition of law colleges by the BCI. A three -member committee was set up by the apex court in 2009 for submitting a report on the future of legal profession in the country. This panel recommended that qualifying a Bar examination be made a requirement prior to enrolment in the Bar. The Directorate of Legal Education has been operationalised under the aegis of the BCI.

Recently, the BCI chief hinted in Bangalore that the exam ination would be an "Open-Book Test" involving a 60-40 split between knowledge-based and application-based questions and the pass mark would be pegged at around 40. The BCI is also considering online exams for those studying abroad. All those holding law degrees but who had never formally enrolled with Bar Councils in previous years might also have to pass the examination to practice in courts.

The idea as such is not new for India as the original Advocates Act, 1961, required law graduates desirous of joining the Bar to complete a course in practical training and also pass an examination. In 1973, this provision was deleted by an Amendment. Though the BCI attempted to introduce an apprenticeship training course during the late 90s, the apex court quashed it on grounds of the BCI's lack of competence. The BCI does not have the authority to prescribe such training (without amendment to the Advocates Act), the court held.

The authorities should aim at revamping the legal education. The Advocates' Act empowers the BCI to promote legal education and to lay down standards for entry into Bar. The National Knowledge Commission (2007) has made significant recommendations in this regard in its report on legal education.

True, in recent years we have got 14 well-equipped National Law Schools, but what about the plight of over 900 law colleges in the country? The education being imparted in these institutions depicts a sorry state of affairs. No, we can't afford so many law colleges without improving the quality of education.

In the present three-year and five-year law degree courses, the last one year and two years respectively should be devoted for learning and acquiring skills only in such areas in which the student wants to make a career. The proposal would result in availability of "Specialist Advocates'" rather than "Generalist Advocates".

Those interested to do litigation practice should be attached to a senior counsel during this period to get them acquainted with the court procedure, gain confidence and conduct oneself as an advocate. This would also warrant a service like the Indian Legal Service being contemplated on the lines of other all-India services. The BCI and State Bar Councils ought to set up national/ state legal academies to provide refresher courses for practicing advocates to train budding lawyers.

The vexed issue regarding allowing entry of foreign law firms in India also merits attention. The BCI has been opposing it vociferously. In December, 2009, it received a shot in its arm when the Bombay High Court ruled against the permission granted by the RBI in early 90s to certain foreign law firms for setting up their liaison offices in India.

The BCI should initiate a debate on the issue to dispel misgivings. Instead of asking the government to amend the Advocates’ Act, the BCI has merely inserted this in its rules under the Chapter ‘Conditions for Right to Practice’. Hitherto, the Supreme Court has either quashed or stayed all amendments to BCI rules with respect to legal education/ profession.

The writer is Advocate, Punjab and Haryana High Court, Chandigarh

A step forward
THE Bar Exam will make law students study well which will, in turn, improve the quality of the justice delivery system. There are three types of institutions imparting legal education. National Law School Universities, which are attracting young talented students at the national level after Plus Two and provide for the five-year integrated law degree. Most of them join corporate sector after completing their degree and only a miniscule of them join the profession. As most of them don’t join the subordinate judiciary, young talent doesn't come to the Bar.
Law schools in traditional universities attract students from all walks of life. Most law graduates produced by such law schools are given theoretical knowledge, but hardly any practical insight. Those with legal family background survive whereas others struggle. As for mushrooming private law schools, if a student can't get admission in any course, he can join these schools. When these graduates join the Bar, they represent the poor quality before the Bench.
Prof P.S. Jaswal, Chairman,
Department of Laws, Panjab University
Make it fair, transparent
UNDOUBTEDLY, this stiffer qualifying exam will serve as a quality control measure, but certain questions remain unanswered. Can the BCI conduct such an examination without a constitutional amendment?
Is the examination really addressing the question of “quality of law practice”? What about those undeserving lawyers already enrolled? What will be the standard of question papers? What about those law students who have already received job offers after registration with the Bar?
The focus should be on a fair and transparent grading system during graduation for the students.
Rubal Gauba, Law Student,
Panjab University
Accent on quality
ONE step forward or two steps backward? Law students must be prepared for the life and struggles of a real world lawyer by taking the Bar Exam. It's a necessary hurdle. But if this has some positives, it should be done, say, after five years with clear guidelines in advance and not retrospectively for lawyers who have already passed.
Where does the solution lie? Is it in improving the quality of education by implementing long-term measures or Bar Exam? The focus should be on imparting quality legal education.
Vikram Jain, Advocate,
Punjab and Haryana High Court
Don’t leave them in the lurch
THE degree of law is itself a certificate of a student's capability to join the Bar. Instead of the entrace examination, a degree holder can be asked to intern with a senior advocate for six months or so before he/she actually starts practicing on his own.
Usually, the graduates complete their law course after the age of 25. At this age, if they do not clear the entrance, it would leave them in the lurch. The number of seats can be reduced so that only the deserving candidates get through at the first stage.
Jassi Kaur,
Advocate-cum-television anchor
(As told to Saurabh Malik)

TRAINING is the key
Bhumika Sharma

THE legal academia and scholars constitute a strong pillar of our polity. Their comments — appreciation or criticism — will strengthen our democratic fabric and make the decision-making process more sensitive to the changing needs.

The judiciary cannot perform its duty of administration of justice without the total commitment and participation of the Bar, its main component. Over the years, its role has increasingly focused on checking the abuse or arbitrary exercise of powers by the legislature and the executive, the other two organs of the government.

In all societies — primitive, medieval, traditional, conventional and modern — the judiciary has always, with some situational constraints, played its role in moderating the public demand and the system's capacity to bear such implications of its pronouncements. According to Richard A. Posner, legal machinery, in its ideal form, consists of competent, ethical and well paid judges, who are advised by competent, ethical and well paid lawyers. The judges are numerous enough to decide cases without delay. If judicial salaries are high enough and tenure secure, the judiciary of even a poor country will be able to attract competent and honest lawyers.

To implement the recommendations of the Bar Council of India and take into account the recommendations of the Law Commission on the legal profession and legal education, a comprehensive Advocates Bill was introduced in Parliament, which has resulted in the The Advocates Act, 1961, governs the twin areas of legal profession and legal education under which the self-regulatory statutory bodies, i.e. the states' and the all-India bar councils function. The Advocates Act, 1961 has been passed by Parliament by virtue of its powers under Entries 77 and 78 of List I of Schedule VII of the Constitution of India. Section 7(1) (h) of the Advocates Act, 1961 enables the BCI to lay down "standards of legal education". It envisages a single class of practitioners at Bar in all states called as advocates. Till 1976, the dual system prevailed in the Bombay and Calcutta High Courts on its original civil jurisdiction. During that period, like in England, a litigant could approach the court and file a suit only through a solicitor and the right of audience to the courts was granted only to a Barrister or an advocate duly instructed by that solicitor. There are certain professional norms in legal profession. An advocate shall, at all times, conduct him/herself in a manner befitting his/her status as an officer of the court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate.

An advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. He has duties towards the court, client, opponent and colleagues.

Professional values include "training in professional responsibilities". These values are the value of competent representation, analysing the ideals to which a lawyer should be committed as a member of a profession dedicated to the service of clients; the value of striving to promote justice, fairness and morality; the ideals to which a lawyer should be committed as a member of a profession that bears special responsibilities for the quality of justice; the value of striving to improve the profession; explore the ideals to which a lawyer should be committed as a member of a self-governing profession; the value of professional self-development, analysing the ideals to which the lawyer should be committed as a member of a learned profession. The emergence and consolidation of a successful legal and judicial system is a valuable part of the process of development itself.

Lawyers, judges and court personnel must maintain a professional environment to better serve the needs of citizens who rely on the court system to resolve disputes, to determine rights and responsibilities, and to punish and deter crime. As pointed by the World Bank, legal training ensures that legal and judicial reforms contribute to changing the attitudes and behaviour of lawyers and citizens. So we must adopt new and efficient methods of legal and judicial training.

The writer is associated with Research Foundation for Governance in India, Ahmedabad