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Does the legal field show that India is globalised?

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After the New Economic Policy was rolled out by the government in 1991, the country made commitments for a liberalised, globalised and privatised economy. The reforms aimed at competitiveness, innovation and expertise. In light of such reforms, the researcher aims to look at the developments in the legal field which has social, political and moral implications. As such, this field has a plethora of implications if any developments happen. For this reason, the developments and implications of reforms in this field have to be carefully understood.

In pursuit of finding answers to the question of globalisation in this profession, the researcher analyses the precedents and provisions for practice oflawfor understanding the qualifications and restrictions in this profession. Cues are also taken from developments in similar professions as well.

The sensibility as far as competition in the legal profession is concerned; continues to remain xenophobic and protective. Its restrictive stance on allowing foreign law firms to practice in India substantiates such xenophobic attitude. As such, India may have become globalized in many arenas, but legal profession is not one of them. The restrictive stand is also identified by two leading advocates of the Indian bar, Mr. Harish Salve and Mr.Gopal Jain. Standing in dissent of the Supreme Court’s decision, they remarked :

“If 20 global law firms hire 2000 youngsters from India whose future are we stealing”-Salve

“If foreigners are allowed to play cricket in India why not practice law?”-Jain

“Fiat justiciaruatcaelum: to spirit of competition or corpus of protectionism”

The maxim says justice be ensured till the walls of heaven fall. This refers to the eternity of justice to be ensured to everyone. There is need to understand whether the possibility of threat should avoid globalisation to permeate to the profession or should the needs and benefits of globalisation be understood. The following section seeks to understand the answer to this question.

The provisions as to practicing in India are provided in the Advocates Act,1961. There is a condition of being an Indian Citizen and being enrolled in state bar associations for practicing law ,reciprocity in home country of the foreign lawyer to recognise Indian lawyer  and the liberty to frame rules for non-citizens to practice in India  are restrictions that the statute places on the profession.In the present times, there have been three landmark cases in this regard.

In the first case, Lawyers Collective v Bar Council of India, legal profession was propounded to be different from commercial activity. RBI was not justified in granting the foreign firms, entry to India to open liaison offices in India. This case highlights the rationale of court in not taking the reforms to apply in legal profession the way it applies in commercial activities.

In the second case, A.K. Balaji v Government of India,the Madras High court held that lawyers can be allowed on “fly in and out basis” and also for international commercial arbitration. As such, it relaxed the restrictions a bit with this exception.

In the third case, the Supreme Court in Bar Council of India v A.K. Balaji&Ors., upheld the verdict of Madras High Court regarding the “fly in and out” doctrine. The case allows for limited liberty to be given for practicing the profession outside home country.

All the above provisions and developments imply that the legal profession has not being receptive to globalisation. It’s an irony that India has been a member of GATS (General Agreement on Trade in Services) and has taken up various steps for fostering trade in services like: insurance, banking, engineering, software etc. But sadly the steps in furtherance of legal services and its liberalisation and globalisation have not been taken in tandem. This also means that the precedents on the entry of foreign law firms are in opposition to the GATS Agreement to which India is a signatory.

It is noteworthy that the country restrictive to Google, Snapchat, Instagram and Facebook i.e. China also liberalised the legal sector in restrictive ways. It allowed only representative officers with two years of experience but excluded the field of only Chinese legal affairs.

As far as India is concerned; linguistic, psychological, semantic, regional and sentimental barriers are enough to avert the firms coming into the domestic country for international collaboration. The moral and social arguments are taken in direct relation to the ‘nobility of the profession’. Because the legal service sector is underestimated to be of low addition to FDI and GDP, the reforms might have been ignored. Moreover,it could be considered politically motivated. The goals of liberalisation have been to foster competition, innovation and economies of scale and our experience post-1991 has countered the idea that liberalisation will lead to monopolisation, unaffordability, and unemployment. As such, the challenges and threats to reforms are not the way they were contemplated.

The business houses and corporations prefer to have lawyers with expertise in issues like international law, intellectual property rights etc. to be represented in international suits in India. The domestic practitioners conventionally stick to the bar and do not offer extensive practice on these contemporary issues. Hence, they find it hard to defend themselves without lawyers of their choice. As part of ways to counter these restrictions, many lawyers have started living on borders as natural persons -individuals, professionals and even partners of a foreign law firm.  This again illustrates the need for globalisation in the field.

The Madras High Court identified that lawyers should have expertise in foreign law in this age of FDI and foreign companionship. In yet another similar case regarding capital gains , the Supreme Court held that an international commercial arbitration centre is important for overall economy. As such, the field is demanding the reforms to cope with the dynamic environment which is interactive in nature.

Developments in similar professions

Health and justice are considered to be essential social needs. Both of these fields have practical pedagogy, qualifying exam to practice, professional ethics, code of conduct & consultancy as a way of practicing. These are the similarities between the two professions and hence the way foreign practitioners have provisions of practice in India, legal profession can imbibe those as well.  To practice medicine in India, an Indian citizen has to qualify a screening test given that s/he has qualified the practitioner test in that different country.  Foreign doctors visiting India for a short duration of time also require permission from the Medical Council of India.

There is only one lawyer for 886 non-lawyers   and 3.3 crores pending cases in Indian courts. Hence, there is a need to expand the spectrum of legal practitioners. As such, provisions similar to the medical profession can be made for legal profession as well. All India Bar Exam provides ‘certificate of practice’ to the passing candidates as the entry to legal practice. In a similar manner, foreign practitioners and firms can also be tested by a basic screening test.

As far as consultancy, expertise and experience are concerned, audit firms follow the legal profession. In the latest amendment, FDI guidelines for audit firms were relaxed. If the investor wants a foreign audit firm, joint audit can be carried in which one players should not be international. This provides domestic firms safeguard and opportunity. This model can address the threats and opportunities simultaneously.

Conclusion and the way forward

The researcher believes that foreign law firms should be allowed to practice the legal profession in India. The mode of entry can be certainly guided by a few requisites as they exist in other similar professions. For years together, the domestic players have been protected from the sort of competition that could have been there.

However, to ensure equitable opportunities to both these players, the BCI must relax the rules in a phased and justified manner. As the need to allow international arbitration was felt and foreign firms were allowed in this area, other arenas can be introspected as well. In the researcher’s opinion, such a process should be in phases. In the first phase, intellectual property rights, human rights, corporate law, immigration law can be globalised. This is because these areas are related to international collaboration because they deal with issues in other jurisdictions as well.  In the second phase, consumer law, cyber law, computer law, space law etc. can be liberalised and globalised.This would ensure excellence and precision in these contemporary areas which are coming up in recent times. And lastly, the traditional areas-civil, criminal and family law could be taken up. This will ensure that the legal profession gets globalised in a wholesome and phased manner. This stratification is based on the hierarchy of reforms needed in the current times. The researcher agrees to the argument about justice being important than competition and the threats that could come to the society if the reforms are carried out irresponsibly. The phased process will uphold the morality and societal argument in the field along with contemporary discourse. This would bear the fruits of economic policy and ensure opportunities to all.

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More about how democracy should be elected -Interview with Tannisha Avarrsekar

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Tannisha Avarrsekar. Image source: startocure.com

Tannisha Avarrsekar, a political activist who wants to increase equality in the representation of political candidates in India. In this interview, Tannisha discusses more about her journey, political beliefs and her platform Lokatantra.

Why did you start Lokatantra?

I started it because I wanted to make politics more accessible for the youth.

I moved to London for my undergrad when I was 18, so 2019 was the first election that I was able to vote in. But after I came back, I found that gathering information about the registration process, as well as probable candidates took more time and effort than it should.

I began realizing that for citizens like me, who wanted to be more politically aware or socially conscious, there was the dearth of a platform where they could educate themselves and engage with those they were considering electing. And that’s how Lokatantra came along.

Tell us more about Lokatantra.

Lokatantra.in is an online political platform that aims to make the youth more politically aware and socially conscious. It attempts to bridge the gap between voters and politicians by empowering voters with comprehensive information about their candidates and the voting process, after verifying its authenticity and organizing it in a manner that makes it quick and easy to understand. It also does telephone voter registrations for those having trouble with it.

On the flip side, the social enterprise also collects data on citizens’ opinions on key issues through polls and surveys, and then analyses and publishes the results, to aid in the decision-making of leaders. In this way, the platform sheds light on the accomplishments of politicians- especially independents who can’t afford expensive campaigns, as well as the troubles of the common man.

The Lokatantra.in website and mobile application prides itself on its treasury of information about each and every candidate from the Mumbai City district. This extensive material includes details about these candidates’ educational qualifications, past political affiliations, career highlights, controversies, criminal records, and standpoints on critical debates. The platform also allows users to ask candidates questions, as well as rate them so as to help other voters from their constituency make their choice.

What do you think can make journalism more neutral?

More crowdfunded platforms. Limits on investments by big corporations, and complete transparency in the finances of media houses. Also, stricter penalties on misinformation.

Why is equal representation in politics important?

Equal representation in politics is important because it encourages newer political faces and fresh ideas into our country’s governance, which has been largely polarized and dominated by big political parties, with old loyalists and deep pockets. It allows us to choose our leaders based on more than just their party symbol and spending power, and instead take into account their character, ideology and objectives.

How is Lokatantra a unique platform? What do you do differently?

Before an election, Lokatantra interviews all the candidates standing, with a uniform questionnaire to gather their opinions on issues that play a key role in deciding who to vote for and are yet often not a part of mainstream discourse. The answers from these interviews are then fed into an algorithm, which allows voters to answer the very same questions, and then ranks the candidates in their constituency based on how much their political opinions match. What makes this quiz truly extraordinary is the fact that it takes into account the nuances of one’s answers, by letting you weigh how much each issue affects your vote.

We also spend a lot of time answering personal questions and engaging in individual conversations about politics, with members of our community that message us.

Tell us more about your personal political affiliations.

As the face of a politically neutral platform, I’m not permitted to have political affiliations. But I would describe my personal ideology as socially liberal and fiscally conservative.

What do you think are the biggest electoral problems India is facing at the moment and what do you think are the solutions?

I think it is the shocking mass disappearances of voter names from electoral lists, which has caused erosion of public faith in the democratic process.

A colleague of mine- Siddhant Kesnur and I, recently wrote a policy memo about the solutions to this, and if I had to pick one that I think would be most effective it would be stopping the misuse of the ECI’s Form 7, which is an application for voter deletion that ridiculously enough can be sent on behalf of any citizen by any citizen. Simply communicating the receipt of this form to those on whose behalf it has come in, would significantly curb its abuse.

What do you think will pose the greatest challenge to India’s growth in the future?

The move from patriotism to nationalism. In May 2018, Kaushik Basu the economist had cautioned Bangladesh saying that “vibrant economies have been derailed by zealotry many times throughout history”. He had given three examples to support his point: (1) the golden era of economic growth in Arab cities like Damascus and Baghdad which passed when religious fundamentalism began to spread about a thousand years ago (2) Portugal’s position as a global power in the 15th-16th century, which ended when Christian fanaticism became it’s driving political force, and (3) Pakistan’s economy, which after performing fairly decently started slipping from 2005 onwards because of military rule and Islamic fundamentalism.

It makes me sorry to say that the extremist rhetoric we witness in India these days is an alarming harbinger of this kind of zealotry, which has the potential of not just derailing us economically but also causing lasting damage to the social and cultural fabric of our nation.

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India: Metamorphosis from disinformation to stark lies

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When European Disinfo Lab exposed India’s disinformation network, India apologized. But, the portents are that India continued spreading disinformation, nay stark lies against Pakistan. India’s usual modus operandi was  to employ dubious  thinktanks and journalists of doubtful credentials to tarnish Pakistan’s image. For instance, Macdonald-Laurier Institute, a registered Canadian charity, published a Pakistan-bashing report ‘Khalistan—A project of Pakistan’ which found mention in almost all leading Indian newspapers. Now, Indian government  has told its Supreme Court that farmers’ protest in India are being pro-Pakistan and pro-Khalistan elements. The SC has called upon Indian government to submit an affidavit about its allegation along with corroborative evidence.

Another pro-India “thinktank”, spouting venom against Pakistan is the “International Terrorism Observatory”. It is chaired by Roland Jacquard. Prestigious French newspaper Le Monde (The World) pointed out in 2015; he is the only member “without publications, without a website, without postal address and without any legal existence”. He runs a bookstore stacked with books on “networks of Islamist terrorism’. According to journalists Didier Bigo, Laurent Bonelli and Thomas Deltombe, Roland Jacquard’s claim of being a media expert is questionable.

 India-sponsored think tank  International Institute for Non-Aligned Studies run by Srivastava Group of India shot into limelight when it paid for the travel and accommodation of an unofficial far-right delegation of 23 European Union parliamentarians to Srinagar on October 30, 2013. The trip was arranged by Indian intelligence surrogate, Madi Sharma, who posed as a self-styled “international business broker”.

India’s metamorphosis from disinformation to stark lies

It appears India has now realized that its disinformation is losing clout. So, instead of banking on dubious journalists and think tanks, it has begun to churn out lies against Pakistan through its own agencies, including the prestigious India Today.

Almost all media outlets and TV channels disseminated the false report that an ex diplomat  has admitted that India did actually kills 300 men in Balakot  air strike on February 26, 2019. Some channels have retracted the false rreport while others are staying mum.

What did the news agency ANI say?

The statement falsely attributed to diplomat Agha Hilaly was carried by several news organisation, including India Today, and was based on an input by news agency ANI. The News agency ANI quoted Pakistani diplomat Agha Hilaly as saying, “India crossed the international border and did an act of war in which at least 300 were reported dead. Our target was different from theirs. We targeted their high command. That was our legitimate target because they are men of the military. We subconsciously accepted that a surgical strike — a limited action — did not result in any casualty. Now we have subconsciously told them that, whatever they will do, we’ll do only that much and won’t escalate.”

Truth

The video was misattributed and the quote was actually a snippet of a larger quote made by former diplomat Zafar Hilaly in a television debate.The full quote by Zafar Hilaly is as follows:: What India did was an act of war. By crossing the international boundary India committed an act of war in which they intended to kill at least 300 people. Coincidentally, they [Pakistani people] did not die and India bombed a football field. “Hilaly has also said that the viral video is edited and does not represent his full quote. He also shared the full video on his Twitter account. A fact-check by “Alt News” found that the comments were misreported and the ex-diplomat who made the comments was “Zafar Hilaly”.In the debate posted on YouTube by HUM news as part of a program called “Agenda Pakistan”, Hilaly  had said, “What you did, India, was an act of war. India ne jo kiya, international boundary ko cross karke ek act of war. Jisme kam se kam 300 logo ko unhone marna tha. (What India did was an act of war. By crossing the international boundary India committed an act of war in which they intended to kill at least 300 people).”Zafar Hilaly also tweeted a video saying his statement was spliced and edited. Alt News said a version of the video posted on Twitter had an abrupt cut “around 0:7-0:9 seconds” and the word “marna (to kill)” sounds as if Hilaly said “mara (killed)”. The news has since been removed by websites.

Conclusion

A basic principle of disinformation is ‘never lose sight of truth’.  A half-truth or even .005 per cent to 5% untruth, a twisted truth, or sometimes a truth concealed may appeal more to readers or viewers than a stark lie.  Goebels is not alive to tell that he never said ‘the bigger the lie the more it will be believed’. Pathological lying is not the art of disinformation. Psychologists would tell that, even under stress, a mature person would suppress truth rather than tell a lie.

Richard Deacon  says,  ‘Truth twisting…unless it is conducted with caution and great attention to detail, it will inevitably fail, if practiced too often… It is not the deliberate lie which we have to fear (something propaganda), but the half-truth, the embellished truth and the truth dressed up to appear a something quite different’ (The Truth Twisters, London, Macdonald & Company (Publishers) Limited, 1986/1987, p. 8). 

He gives several example of disinformation including sublimininal disinformation by which the truth can be twisted so that the distortion is unconsciously absorbed, something which both television and radio commentators have subtly perfected’. (Ibid. p. 9).

Role of India’s foremost intelligence agency, the Research and Analysis Wing (RAW), in conducting disinformation campaigns has, by and large, remained hidden from the media watch.  It is now being exposed. RAW is burning midnight oils to exploit USA’s sensitivity about certain ticklish subjects like Hawala transactions for funneling funds to “terrorists’, nuclear proliferation, use of missiles to hit aircraft, and development of chemical biological and nuclear weapons and delivery systems.

The RAW’s disinformation campaign, often bordering on lying, is well reflected by innocuous-looking news (unsupported by reference to information sources) that appear, from time to time, in Indian media. Hilaly debacle is a case in point.

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Casteism inside RSS, and its’ abhorrence

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Dr Ambedkar, the architect of Indian Constitution, believed that ‘RSS is a dangerous association’. The latest to join this belief is Bhanwar Maghwanshi, a former RSS worker and also the author of the book ‘I could not be Hindu’ (2020)

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At the age of 13, Bhanwar Maghwanshi joined RSS. Instead of playing, learning and exploring, he opted to do something ‘bigger’ in his life. But, unfortunately, he was shocked to learn how RSS practices casteism without using the term ‘Dalit’ in its shakhas. He was active with RSS, as a sevak, during the so-called Janmbhoomi movement of Ayodhya in late 1980s. In his panchayat in Rajasthan, he never listened to azan or interacted with any Muslim – in person, but developed strong abhorrence for the Muslims when he was learning ‘skills’ in RSS. His dad was a Congress activist and discouraged him to join RSS (because, for him, RSS would never want ‘brahmin’ sevaks to sacrifice their lives) but BhanwarMeghwanshi – on positive note – entered RSS.

RSS is a hydra of Hindutva, Hindu Nationalism and Hindu Rashtra. BJP is its outcome. Since 2014, India is witnessing a systemic degradation of free speech, social equity, human development, economy, environment and women safety. The Modi government came to power in 2014 chanting ‘minimum government, maximum governance’ slogan but unfortunately it transformed India into ‘new’ India with the maxims of ‘minimum governance, maximum statism’. One of the oldest, yet contemporary, [social] statism is casteism. It’s 21st century and the elements of caste as a whole continues to haunt the democratic features of India. A recent NCRB data suggests that India is unsafe for Dalit and Adivasi girls. There’s an increase of 300% in hate crimes. The architect of India’s constitution Dr Ambedkar was ‘untouchable’ and had come to conclusions that Hinduism can’t be reformed. He chose Buddhism in October 1956 and found emancipation through the teachings of Buddha. The same is the case with BhanwarMeghwanshi who is an Ambedkarite today, learned a different version of Ambedkar in his RSS years. Even God knows that RSS has appropriated Dr Ambedkar conveniently, for its own political agenda.

Bhanwar’s ethnographic encounter in his book “I could not be Hindi – the story of a Dalit in the RSS” is essential to refute the pseudo-science of RSS or Hindutva trollers on the subjects of Islam, untouchability and other narratives. The book sheds a detailed light on what RSS is, casteism in the RSS, and how RSS makes its ground in the society. Navayana Publishing House mustered the courage to publish the book, unlike other ‘popular’ publishing houses, according to Bhanwar. He dreamt of becoming a ‘pracharak’ but was stopped to become a ‘vistarak’ because of his ‘caste’ and this is where he learned that he is a lesser Hindu than other Hindus in RSS. He left RSS after a very bitter experience. He writes, “We had organised an event of Sangh in my hometown, I was heading the event as I was the most active and passionate worker in my area. I had planned to make food at my home only for the senior guests and the priests who would join the event. My father strongly opposed and said that they would never eat food cooked by us. I did not listen to him. I cooked good Rajasthani food with pure ghee and invited them. They did not come home but said that ‘you just pack the food we will eat it in the next village, as we are running out of time’. I packed the food for them, I later learned that they did not have my food but threw it in a naala (gutter). As the district chief, I got angry with them and asked the reason, but did not get satisfactory answers. I was reminded of my father’s words that ‘people like us did not own any place in the Sangh’, it solely belongs to the upper castes.”

The book smashes the rosy picture of RSS and explains that the Dalits’ role in RSS is mere foot soldiers for the communal polarisation and Hindutva activities. In an interview to Caravan magazine (14th March 2020), Bhanwar Meghwanshi made it clear that “In the eyes of the Sangh, the Hindu Rashtra is a Brahmin nation with the varna system, the four vedas and the Manusmriti. The Sangh wants to run the nation on this very base. I feel that in the Sangh’s Hindu Rashtra, shudras or untouchables will be slaves, and Muslims, heretics or foreigners, will be given a second-class status.”

In this memoir, Bhanwar also writes that in his village, low caste people joined the RSS in large numbers: “Of the fifty or so children who attended the shakha in my village, most were OBCs—Kumhar, Jat, Gurjar, Mali and so on.” They joined because of the Sanskritization processes and because of the games they played in the shakha, but they resided for ideological reasons too as, slowly, they learnt that “hindukhatre main hai” (Hindus are in danger) because of Muslims and Christians. He also recalls that, while in the Sangh, he “heard a lot about weapons being stored in the basements of mosques” and that getting rid of the Babri Masjid was like “a second battle for independence”.

Bhanwar is not new in this race. A sarcastic letter authored by a Dalit activist P.D. Shelare, on 13/1/1934, published in ‘Janata’ divulged about casteism or caste segregation practices in some shakhas of RSS. Shelareratiocinated that RSS was aware of the practices but it did not react. It’s obvious to learn that Hinduism is incomplete without casteism. The caste practices made me leave Hinduism too, on 30th December 2018. I adopted Buddhism, on par with Dr Ambedkar’s teachings. While reading the book, I could resonate my experiences too. In the current landscape, interactions and social relations have changed a lot. Caste dynamics too. To add to the woes, love jihad law will further strengthen more endogamy and discourage intercaste marriages. Dining with Dalits alone would not bring about social changes. The ‘safe space’ for the dissents and Dalits is diminishing, whereas love for hatred is openly normalised. 

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