Remnants of imperialism
The Criminal Defense Manual I have been working on will likely consume most of my time remaining at IBJ. When Abi and I signed onto this project, we had the impression most of the work would be cutting and pasting from the previous manual, published in 2007. However, the previous manual is too outdated and did not include enough substantive information. Significant portions of the old manual cited US or international law to describe the rights of the accused. While interesting, these laws are not relevant to this project. What has made our jobs both more difficult is that we do not have access to a database to conduct legal research on. Researching US case law is quite easy with the help of Westlaw. Instead, we rely on articles and websites that discuss Indian case law. From there, we identify important cases to include in the manual, specifically, ones that interpret the Indian Constitution.
We have been working as a team to assign each chapter to an intern. Since there are 3 legal interns on this project, and 12 chapters, each of us will write the first draft of 4 chapters. I wrote Chapter 1, which discusses the overview of India’s criminal justice system. To understand India’s system of government, it is important to understand some recent history of India. India's government drastically changed under British raj, which was the period where Britain colonized India and lasted from 1858 to 1947. The East India Trading Company was really what began British colonization of India. The East India Trading Company gained trust from people in India to secure connections and allow for Britain to have influence. These connections were used to secure trade routes between Britain and India, which were imperative to Britain during the industrial revolution. Britain regulated much of what the East India Trading Company did, thereby allowing Britain to indirectly control India. Britain took control of India after the East India Trading Company when their tactics led to a mutiny by sepoy troops in 1857. Under the British raj, Britain strengthened its foothold by abolishing the East India Trading Company and changing Indian policies. One major problem was the lack of communication between Indians and Britain. Prior to the mutiny, the Legislative Council in India was made up of only Europeans. Under British raj, Indians demanded there be an Indian majority in the Legislative Council. Under British raj, much of the Indian structure of society broke down and was overtaken by western imperialism. Part of this was the judicial system. While India may have gained its independence from Britain, remants of colonization and western imperialism remain. British colonization ulitimately resulted in India being forced to conform to and undergo changes that British raj wanted, even if it went against the will of the Indian people.
The system of government in India today reflects many western systems. India has two houses of congress, Rajya Sabha and Lok Sabha. Rajya Sabha is the higher house of the two and when a law passes under Rajya Sabha, it is not subject to approval by the Lok Sabha. However, anything passed by Lok Sabha is subject to approval by Rajya Sabha. There are also the executive powers, which include the police and investigative agencies. Of course, there is also the judiciary, which interprets the law. Lawyers are imperative to the functioning of the judicial system and are afforded protections by the Indian government. The Supreme Court of India can hear cases between states, but it can also answer questions concerning interpretation of India’s Constitution, which is the longest Constitution of any country in the world. Due to Britain's colonization of India, English is such a prevelant language (still today) that in federal courts of India, all hearings are conducted in English.
Duties and Rights of Advocates
The second chapter I was assigned is Chapter 4, called “Rights, Duties, and Responsibilities of the Defence Lawyer.” There are specific laws in place that protect lawyers in India. Some of these rights are derived from India's constitution, while others come from specific acts that were passed by India's legislative bodies, like the Advocates Act. The rights of lawyers in India include:
- The right to pre-audience (this created a chain of superiority which allows those higher in the chain to be heard in court before those lower in the chain)
- The right to enter in court (meaning any lawyer in India has the right to enter any courtroom even if they are not a party. This does not give them the right to practice there, as they must be permitted by a given state's bar council to practice, but they are allowed to appear and observe)
- The right to practice any profession (this was a law that allows any person to practice any profession, trade, or business in India, which was interpreted by the Indian Supreme Court to mean that it is a violation of a lawyer’s right to prevent them from practicing their legal work).
- The right against arrest (this only extends so far as to protect a lawyer from being arrested while they are going to court, presiding in the court, or returning from court)
- The right to meet the accused
- The right to secure the privacy of the communication
- The right to take the fee (meaning lawyers have a right to collect a fee for their legal services rendered)
- The right to refuse a case
A lawyer in India also has duties to the court that they must respect, which include:
- The duty to respect the court
- The duty to not communicate privately with the judge
- The duty to refuse to do illegal work
- The duty to appear in proper dress code (which is outlined very clearly in the Rules on Professional Standards set by the Bar Council of India)
- The duty to not appear in a court where the judge is related to them
- The duty to not wear gowns or bands in public spaces
- The duty to not appear in a matter of pecuniary interest
This project has been quite daunting. Not only is the team drafting this manual made up of all law students from the US, but also none of us have ever studied India's criminal code. We created our own method of citing our sources, since there is not a uniform citation procedure in India. We also collaborate frequently on chapters that overlap so we are not doubling our research. For example in my chapter titled "Rights, Duties, and Responsibilities of the Defence Lawyer" there was a section on "Duties to the client." However, Abi worked on a chapter titled "The Client" so we decided most of the duties to the client should be included in her chapter. After we complete our chapter, we let Siddharth know. Siddharth is the IBJ staff member leading this project. He studied law in India and worked for India's Supreme Court before moving to Geneva, so his knowledge of India's justice system is vast. This is currently a work in progress, but we all hope to see it through to completion.