|Advantage of Arguments|
“In my Youth”, said his father,’I took to the Law’
And argued each case with my wife;
And the muscular strength which it gave to my jaw
Has lasted the rest of my life.”
- Lewis Carroll in a poem called You Are Old, Father William in his book Alice's Adventures in Wonderland (1865).
|Varying Methods of Teaching|
Follow Dr G B Reddy, Osmania University, Hyderabad at http://www.drgbr.goforthelaw.com/
Monday, October 22, 2012
Moot Court Guide - Dr G B Reddy, Osmania University, Hyderabad - Follow him at http://www.drgbr.goforthelaw.com/
Advantage of Arguments
Varying Methods of Teaching
Difference between Moot Courts and Mock Trials
Why Moot ?
Key skills every mooter needs
What should a mooter do?
How to Discredit Arguments of opposite side?
What a mooter should not do?
Written Memorials-Other Rules
Criteria for Assessment of Mooters
Useful Info.. on Moot Courts
LLB is a professional course, as most universities give practical legal training while teaching the legal theory. Undergraduate courses of law are basically designed to give students the knowledge of the subject. The course includes seminars, tutorial work, moot courts and practical training programmes.
To become a good advocate you need yourself equipped with the good presentation skills. To improve your skills, to become a good advocate, practice is required in presenting your case and arguing which is a big challenge for a developing student at the college level. These skills can be improved by taking part in the Moot Courts at the college level so that your presentation skills and talents in argument shall be screened and you will be in notice of your level in the competition around you. You will then seek an improvement of your position in the competition. The student of law cannot just stick only to the theoretical teaching and hence law institutions host Moot Court Competitions.
The Moot Court is basically an activity that is followed for the betterment of the presentation and argument skills of the students. It helps students equip themselves to the standards of the society. To participate you should have the confidence in you and you should be a generalist i.e. you should analyze the facts of the case in the general point of view in regard to the subject of the case and learn to apply the law to the facts of the case. You should be a specialist in Law dealing that particular subject, and be thorough with the latest case law and interpretation by the Supreme Court and the High Courts to get a better grip over the case or the position of the case.
The Moot court Hall or Room is like a practical room for a student to get accustomed to the atmosphere of the Courts as well as improve his skills in law and advocacy of law. In a Moot court a hypothetical case is given to the students and are allowed to argue the given case. Moot Court helps the students of law in many ways since it is a sort of practical legal training, which helps to build analytical reasoning, legal aptitude, team building skills and above all make them responsive.
How to go about a Moot Court?
2. The words used should be simple and easy understandable. Take the best care of the language used.
3. Need to have good communication skills to present the case with confidence.
4. You should give the introduction of the parties with their description and details.
5. Reasons of the problems and why?
6. Give a brief of the agreed party.
7. You should accept your mistakes made at the argument and show your acceptance of the mistakes by pleading the Judge to pardon. You should apologize and correct your mistakes.
8. Drafting skills are also an important aspect of the Moot Court. You need to present the case with the best language possible and the submissions made by you must be good enough to impress the Moot Court Judge.
9. Spontaneity should be the first objective while presenting or arguing.
10. The case mostly will be well balanced and is prepared in such a manner that no side (Applicant/Respondent) is strong. Therefore, a lot of research work is to be done to get better case laws and material that supports your case.
Saturday, October 20, 2012
Abuse of process is a common law intentional tort. It is a cause of action and arises when one of the parties makes a misuse of legal proceedings civil or criminal which are not justified by the nature of process. The courts have named four torts involving the misuse of litigation. These are: malicious abuse of process, malicious use of process, malicious prosecution, and abuse of process. Malicious abuse of process and abuse of process are same torts they are different in name only. An abuse of process occurs when a person misuses a legal process after the litigation has commenced. On the other hand, a cause of action for malicious prosecution is based upon the malicious initiation of litigation. The pivotal issue in determining abuse is whether a plaintiff has an ulterior motive for filing a civil suit against the defendant. For example, if a creditor files suit for a debt owed when the real reason is to force the debtor to pay off another unrelated debt, that's an abuse of process. Other examples would include filing a civil action when the ulterior purpose is to extort money or other property or using the legal process solely to harass, intimidate or inconvenience someone else.
1. For example, malicious prosecution might occur where A sues B for breach of contract, knowing that there was no breach. On the other hand, abuse of process might occur where, during the course of the breach of contract proceedings, A has arrested B and put in jail, intending to coerce a larger settlement from B.
The elements for abuse of process are:-
1.An ulterior purpose - The first element, ulterior purpose, usually consists of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money with use of the process as a threat or a club.
The ulterior motive was established directly in COPLEA V. BYBEE. Here the plaintiff proved that the defendant levied on and sold property which was not properly subject to levy and sale. The plaintiff further proved that the defendant's purpose in obtaining the illegal levy and sale was to affect the sale of the property rather than to fulfil the claim that he had against the plaintiff. This illicit purpose constituted the defendant's ulterior motive.
2. A wilful act in the use of process not proper in the regular conduct of the proceeding. -The second element involves an overt act, but actions taken in the regular course of litigation, such as threatening suit or requesting discovery, are not a proper basis for an abuse of process claim even if done with an ulterior motive.
3. The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his reputation. The plaintiff must establish that he suffered damage.
Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/215.html
Wednesday, October 17, 2012
Women is a unique creation of God understanding, hardworking, full of compassion holding high level of initiative and a trend setter for progeny inspite of these qualities the women have never been treated at par with the men . She has faced and is facing discrimination, exploitation and violence from time immemorial. Violence against women and girls continues to be a global epidemic that kills, tortures, and maims – physically, psychologically, sexually and economically. It is one of the most pervasive of human rights violations, denying women and girls’ equality, security, dignity, self-worth, and their right to enjoy fundamental freedoms.
After independence have seen tremendous changes in the status and the position of the women in the Indian society. The constitution of India has laid down as a fundamental right- the equality of the sexes. But the change from a position of utter degradation of women in the nineteenth century to a position of equality in the middle of the twentieth century is not a simple case of the progress of men in the modern era. The position of women in the Indian society has been a very complicated one. In fact, it could not be an exaggeration to say that the recent changes in the status of women in India is not a sign of progress but it is really a recapturing of the position that they held in the early Vedic period. The Declaration on the Elimination of Violence Against Women, adopted by the UN General Assembly in 1993, defines Violence Against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm, or suffering to women including threats of such acts, coercion or arbitrary deprivation of liberty; whether occurring in public or private life”. It could be seen that despite the total literacy and global model of development, Kerala tops the list in Domestic Violence, according to the survey conducted by ICRW. Domestic violence is to be perceived not as a law and order problem alone. Primarily it is a socio cultural problem. Its impact has far reaching effects on the family life, health of woman, life of children etc. Studies such as these which examine the causes, its nature and manifestations and consequences would assist the general society to understand the magnitude as well as its implications on the lives as well as the institution of family. According to the National Victims Centre, one woman is raped every minute, and 30% of all women murdered in this country are murdered by their boyfriends or husbands.
WHAT IS DOMESTIC VOILENCE?
Article 2 of the UN draft Declaration of Violence against women identifies three areas in which violence commonly takes place. They are a) violence occurring within the family b) violence occurring in the general community and c) violence perpetrated or condoned by the state. Earlier victims of domestic violence did not lodge complaints, as they feared that such complaints might create a hostile home environment. Very often, women used to endure the violence towards them in silence for fear of repercussions. In spite of the extreme physical and psychological violence meted out on many women, they do not seek divorce, as they feel their trauma and that of their children is too great a price to be paid instead. Thus to a great extent she accepts domestic violence as part of her family life. The National Family Health Survey (NFHS-2) findings released at the end of the year 2000 points out this fact. Although no direct link has been established, the survey reveals the extent to which women lack autonomy, even as more than 50percent justify, or accept violence within the home.
“Corruption and hypocrisy ought not to be inevitable products of democracy, as they undoubtedly are today”
Corruption affects the entire society at all levels and in all sectors. It is also of the most obvious concern of society and a theme of everyday discussion and debate. Apart from the moral and ethical mission to tone up the moral level of the entire society, the administrative reform is also an integral part of the overall strategy against corruption for simplification of procedure accountability and openness. In Huntington words, “Corruption is behavior of public officials which deviates from accepted norms in order to serve private ends. The character of corruption in India has not changed over time, though its magnitude certainly has. Conventional wisdom might suggest that the corruption that plagues India today is a vestige of the widespread corruption of the state-centered economy, which preceded the liberalizing reforms of 1991. Yet many of the worst cases of corruption in recent years were borne out of deregulation, privatization, and the fostering of public-private partnerships—the very processes that were meant to reduce the discretionary powers of public officials. An example is the notorious “2G spectrum scam,” in which cellphone licenses were sold for a fraction of their value, resulting in the loss of a staggering $39 billion to the national exchequer. Corruption in politics has become a plague across our country, it is draining our resources and demoralizing our nation.
Anna Hazare, is the man of initial protester- an anti-corruption crusader who is determined to establish the Jan Lokpal Bill that can bring in a strong anti-corruption law in India. In today’s generation, most of us have not seen Mahatma Gandhi and his way of fighting against the English. However, Anna Hazare has provided us a glimpse of the ‘Freedom Struggle’ His actions was reminding the shadow of Mahatma Gandhi. The question arises here: does nonviolence serve as mighty tool in the 21st century as well? & how Mahatma Gandhi would have viewed this movement?
Anna Hazare struggle against corruption was a gentle reminder of Mahatma Gandhi’s Satyagraha. His fast-unto death, has shown the world what Gandhism means in today’s world. The power of Gandhiji’s nonviolence will never cease to exist in the ages to come. While in Libya and Yemen there is bloodshed for freedom, where people are waging war against one another during the crisis, here in India, a respected social activist Anna Hazare is waging a peaceful, nonviolent war against corruption. His urge to free India of the greatest evil, corruption, commends appreciation. This fight against corruption staged at Jantar Mantar was not a one- man show. People from different parts of the country gave their support to Anna Hazare. The greatest merit of this nonviolent struggle was that no political party was involved in it. Anna Hazare and his supporters were not influenced by any political party. There was only one flag waving high in the sky and in our minds, the Indian National Flag. IT IS evident from his interviews and speeches that Hazare views corruption as the result of unchecked human greed. There is no further analysis. Gandhi too stressed the importance of personal ethics: “Be the change you want to see in the world” is one of his best-remembered axioms. But Gandhi’s understanding of why humans err was more profound, his diagnosis more structural. For Gandhi, personal greed had a wider social context, and was also rooted in the unethical choices and practices of the state. . Gandhi would surely condemn India’s bitter scourge of corruption were he alive today. Unlike Hazare, however, he would demand a more systemic answer to a more preliminary question: How did this come to pass?
Hazare and his supporters have been silent on a range of recent developments—such as illegal mining and the land acquisition process for SEZs (special economic zones)—in which corruption hurts poor farmers, fisher folk, and indigenous communities rather than well-heeled city-dwellers. Reckless and rapacious economic transformations have proceeded unchecked, even as Hazare has prayed, fasted, and stressed the importance of vegetarianism and tee totaling. Gandhi would surely have been critical of such unwillingness to connect personal ideals of moral living with a broader vision of social and environmental justice. While Gandhi curried favor with wealthy business elites—a strategy that earned him enduring opprobrium from India’s Communist Left—his primary base of support was always the rural poor, in whose service he advocated a smaller-scale and more ecologically conscious road to “development” than the one India ultimately adopted. Hazare, in contrast, has yet to formulate a position that challenges the neoliberal objectives and ill-founded nationalism of his financiers and followers. An anti-corruption route more in keeping with Gandhian principles is that of the National Campaign for People’s Right to Information (NCPRI).
This lime Unlike Gandhi, Hazare is not a deep thinker. Nor is he an educated man. More worrying, he seems to lack the Mahatma’s sense of compassion and good judgment. Hazare’s critics say that he has a soldier’s view of corruption rather than that of the spiritual leader he claims to be but these lines of Gandhi is enough to guide anyone:
"A small body of determined spirit, fired by an unquenchable faith
in their mission can alter the course of History."
In 1967, Raytheon held 99.16% of the shares in ELSI, the remaining 0.84% being held by Machlett, which was a wholly owned subsidiary of Raytheon. ELSI was established in Palermo, Sicily, where it had a plant for the production of electronic components; in 1967 it had a workforce of slightly under 900 employees. In February 1967, according to the United States, Raytheon began taking steps to endeavor to make ELSI self-sufficient. At the same time numerous meetings were held between February 1967 and March 1968 with Italian officials and companies, the purpose of which was stated to be to find for ELSI an Italian partner with economic power and influence and to explore the possibilities of other governmental support. When it became apparent that these discussions were unlikely to lead to a mutually satisfactory arrangement, Raytheon and Machlett, as shareholders in ELSI, began seriously to plan to close and liquidate ELSI to minimize their losses. On 28 March 1968, it was decided that the Company cease operations. Meetings with Italian officials however continued, at which the Italian authority rigorously pressed ELSI not to close the plant and not to dismiss the workforce. On 29 March 1968 letters of dismissal were mailed to the employees of ELSI. On 1 April 1968 the Mayor of Palermo issued an order, effective immediately, requisitioning ELSI's plant and related assets for a period of six months. On 19 April 1968 ELSI brought an administrative appeal against the requisition to the Prefect of Palermo. A bankruptcy petition was filed by ELSI on 26 April 1968, referring to the requisition as the reason why the company had lost control of the plant and could not avail itself of an immediate source of liquid funds, and mentioning payments which had become due and could not be met. A decree of bankruptcy was issued by the Tribunal di Palermo on 16 May 1968. The administrative appeal filed by ELSI against the requisition order was determined by the Prefect of Palermo by a decision given on 22 August 1969, by which he annulled the requisition order. The Parties are at issue on the question whether this period of time was or was not normal for an appeal of this character. In the meantime, on 16 June 1970 the trustee in bankruptcy had brought proceedings in the Court of Palermo against the Minister of the Interior of Italy and the Mayor of Palermo for damages resulting from the requisition. The Court of Appeal of Palermo awarded damages for loss of use of the plant during the period of the requisition. The bankruptcy proceedings closed in November 1985. Of the amount realized, no surplus remained for distribution to the shareholders, Raytheon and Machlett.
The United States claimed that the requisition had caused the bankruptcy of the company, thereby violating several substantive and procedural rights guaranteed by the FCN Treaty. Italy, raised preliminary objection to the admissibility of the claim on the ground that local remedies had not been exhausted and any event, flatly denied any violation of the treaty. In the oral hearing Italy further submitted “in a subsidiary and alternative basis only” that even supposing a violation of its obligation, no injury had been caused for which payment of indemnity would be justified.
The Chamber rejected the objection of non-exhaustion of the local remedies and after examining found that the Respondent, Italy, had not violated the FCN Treaty in the manner asserted by the Applicant, it follows that the chamber rejected the claim for reparation made by the Applicant.
This case is in respect of a dispute arising out of the requisitioning of the plant and assets of Elettronica Sicula S.p.A (ELSI), An Italian company established in Palermo, Italy; which was 100 percent owned by the two United States Corporations: Raytheon company [Raytheon] which held 99.16% of the shares and its subsidiary Machlett laboratories [Machlett] which held the remaining 0.84% of shares. The issue at the heart of the dispute was the bankruptcy of ELSI in March/April 1968 and its subsequent sale at a reduced price (due to requisition) than fair market value to the state owned Telecommunicazioni S.p.A (ELTEL).
In providing independent opinions to investors as to the credit quality of debt issuer, credit ratings have become important parameters in market acceptance and pricing of debt. Ratings are now viewed as easily usable tools for differentiating credit quality by both individual investors ill-equipped to assess credit risk, and institutional investors often required to hold instruments of given credit categories in their portfolio. This introductory note reviews the key definitions and features of credit ratings and the bases on which ratings are assigned. It briefly addresses the correlation between credit quality and default rates, and outlines some of the criteria underpinning sub-sovereign credit assessments in emerging and developing economies.
With the increasing market orientation of the Indian economy, investors value a systematic assessment of two types of risks, namely “business risk” arising out of the “open economy” and linkages between money, capital and foreign exchange markets and “payments risk”. With a view to protect small investors, who are the main target for unlisted corporate debt in the form of fixed deposits with companies, credit rating has been made mandatory. India was perhaps the first amongst developing countries to set up a credit rating agency in 1988.
The function of credit rating was institutionalized when RBI made it mandatory for the issue of Commercial Paper (CP) and subsequently by SEBI. When it made credit rating compulsory for certain categories of debentures and debt instruments. In June 1994, RBI made it mandatory for Non-Banking Financial Companies (NBFCs) to be rated. Credit rating is optional for Public Sector Undertakings (PSUs) bonds and privately placed non-conve11ible debentures upto Rs. 50 million. Fixed deposits of manufacturing companies also come under the purview of optional credit rating.
The Ratings industry in India has been built up to its present position over a period of 15 years. Over the years, credit ratings have evolved into a 90-crore market, with four agencies providing rating services, and significant pull from investors for the product. The ratings business in India has seen three phases:
· First phase, as described above, there was no experience of credit ratings, and virtually no awareness, on the part of investors and issuers.
· Second phase saw the advent of regulatory support for credit ratings, with the introduction and increasing rigor of regulations covering primarily the markets for public issue of debt and for fixed deposits. Aimed at protecting smaller investors, these measures also amounted to regulatory recognition of the role of credit ratings and the quality of the effort put in till then, in estimating credit quality. With these measures, credit ratings rapidly passed out of the arcane realm of high finance, and into the lexicon of the individual market participant.
· Third phase recent years have seen a third phase of the market’s development with public issues of debt reducing in volume; the focus has shifted to the market for private placements. Almost all the privately placed debt issued in the Indian market is rated, even though this is not a regulatory requirement. This shift is entirely driven by investors in these securities, who typically tend to be highly sophisticated financial sector entities.
Credit rating is also known as Security Rating in India. It is mandatory for the issuance of debt instruments, debentures; commercial paper issued by corporate and public deposits of all NBFCs (Non Banking Financial Companies).
Penology : Theories Of Punishment
Each society has its own way of social control for which it frames certain laws and also mentions the sanctions with them. These sanctions are nothing but the punishments. ‘The first thing to mention in relation to the definition of punishment is the ineffectiveness of definitional barriers aimed to show that one or other of the proposed justifications of punishments either logically include or logically excluded by definition.’ Punishment has the following features:
# It involves the deprivation of certain normally recognized rights, or other measures considered unpleasant
# It is consequence of an offence
# It is applied against the author of the offence
# It s applied by an organ of the system that made the act an offence
The kinds of punishment given are surely influenced by the kind of society one lives in. Though during ancient period of history punishment was more severe as fear was taken as the prime instrument in preventing crime. But with change in time and development of human mind the punishment theories have become more tolerant to these criminals. Debunking the stringent theories of punishment the modern society is seen in loosening its hold on the criminals. The present scenario also witnesses the opposition of capital punishment as inhumane, though it was a major form of punishing the criminals earlier. But it may also be observed till recently the TALIBANS used quite a harsh method for suppression. The law says that it does not really punish the individual but punishes the guilty mind.
As punishment generally is provided in Criminal Law it becomes imperative on our part to know what crime or an offence really is. Here the researcher would like to quote Salmond’s definition of crime: Crime is an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual. He further substantiates his point of view through the following illustration a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a mater of mere compensation between the murderer and the victim’s family.
Thus it becomes very important on behalf of the society to punish the offenders. Punishment can be used as a method of educing the incidence of criminal behavior either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. Theories of punishment, contain generally policies regarding theories of punishment namely: Deterrent, Retributive, Preventive and Reformative.
Punishment, whether legal or divine, needs justification. Because the justification of legal punishment has been given greater consideration by philosophers than has the justification of divine punishment by theologians, the philosophical concepts and 'theories of punishment’ (i.e. the justifications) will be used as a basis for considering divine punishment.
Many a time this punishment has been termed as a mode of social protection. The affinity of punishment with many other measures involving deprivation by the state morally recognized rights is generally evident. The justifiability of these measures in particular cases may well be controversial, but it is hardly under fire. The attempt to give punishment the same justification for punishment as for other compulsory measures imposed by the state does not necessarily involve a particular standpoint on the issues of deterrence, reform or physical incapacitation. Obviously the justification in terms of protection commits us to holding that punishment may be effective in preventing social harms through one of these methods.
As punishments generally punish the guilty mind it becomes very important on the part of the researcher to what crime really is. But it is quite difficult on the part of the researcher to say whether or not there must be any place for the traditional forms of punishment. In today’s world the major question that is raised by most of the penologist is that how far are present ‘humane’ methods of punishment like the reformative successful in their objective. It is observed that prisons have become a place for breeding criminals not as a place of reformation as it was meant to be.
It may be clearly said that the enactment of any law brings about two units in the society- the law-abiders and the law-breakers. It is purpose of these theories of punishment to by any means transform or change these law-breakers to the group of abiders. To understand the topic the researcher would like to bring about a valid relation between crime, punishment and the theories. For that purpose the project is divided into three parts:
# Crime and Punishment
# Theories of punishment
The researcher due to certain constraints of limited time and knowledge is unable to cove the area of the evolution of these theories separately but would include them in the second chapter. The researcher would now like to move on to his first chapter in which he would be vividly discussing ‘crime and punishment.’
The researcher in his first draft had included the chapter on the evolution of the theories from the early ages to the modern era, but due to certain limitations included them and discussed them during the due course of the project.
Protection of Traditional Knowledge: International and national Initiatives and Possible ways ahead by Nithin Kumar, Law Student
Traditional Knowledge (TK) is a cumulative body of knowledge which is handed down through generations through cultural transmission. Modern manufacturing industries are now commercially exploiting TK, without even sharing the benefit accrued from it with the indigenous communities.. This paper shall analyse the need for protection of TK and how commercial exploitation of TK is affecting indigenous communities and aims to find out why current IP systems cannot be invoked for the prevention of indigenous knowledge, the measures taken in the international and Indian scenario for protection of traditional knowledge. Another focus point of this paper is regarding the future of TK protection where author attempts to look into the proposals laid by developing countries and various Jurists like concept of defensive publication with special reference to Traditional Knowledge Digital Library (TKDL), Disclosure of Origin, Benefit sharing with indigenous communities for use of TK, etc.
Around the world, various local communities possess knowledge and practices gained by them through experience of centuries and transferred from generation to generation. This culturally transmitted knowledge is referred to as traditional knowledge. Traditional knowledge is the result of intellectual activities in diverse traditional contexts. The term “traditional knowledge” is a very broad concept, which encompasses within itself indigenous knowledge related to various categories like agriculture, medicine, bio diversity as well as expressions of folklore in the form of music, dance, songs, handicraft, designs etc.