Courts must interpret the spirit of laws
Since beginning his career as a journalist, followed by stints as an advocate and a university teacher, octogenarian Dr Subhash C Kashyap has come a long way. His association with Parliament of India for over 37 years, as Secretary General of the 7th, 8th, and 9th Lok Sabha, and vast experience of the Indian polity are well-known and he is recognised as a noted political scientist, scholar and an expert in Indian Constitution and Constitutional Law. Currently president of the National Bar Association of India (NBAI), Dr Kashyap talks to AJITA SINGH about the scope and future of the legal profession in India, besides exploring various raging issues.
Never before have so many law students graduated every year. Do you think they will have enough career opportunities before them?
It is true that with Bar Council of India recognising many institutions (in India and abroad) providing law degrees, there has been sudden spurt in institutions and the number of law graduates. It is a very positive development for India&’s legal profession. India needs strong administration of justice and more legal professionals will help fill this vacuum. The country needs more judges, prosecutors, corporate lawyers, cyber & IT lawyers, and intellectual property and tax experts for strong business and economic growth.
Has the job scenario improved for law graduates? Are there as many employment options available?
With the growth of the private sector and multinational companies, law graduates are finding new avenues of employment. Chamber practice is no longer the only option for young lawyers. Today&’s business environment requires new expertise in the area of legal journalism and reporting, patents, cyber laws, international transactional work, among other things. The opportunities for young and bright law graduates are immense, and ever-growing in the global economy.
Corruption and irregularities of every form are increasing all around. Will ethics prevail in legal practice? What is NBAI doing towards ensuring ethical standards?
It is unfortunate that corruption seems to be increasing in all spheres. There are aberrations in every field and the legal field is no exception. NBAI has developed an ethics code and our members are administered a solemn oath (formulated by NBAI chief patron Mr Ram Jethmalani) to remind them of their obligations towards this noble profession. NBAI Academy intends to focus on the training of lawyers on continuous basis. This is again a good opportunity for us to remind our brethren in the legal profession about commitments and obligations.
There has been a lot of talk about the recently-passed anti-rape law that seeks to ensure safety and security of women. Is the law, in your opinion, adequate? Would it be able to serve its purpose?
India does need stronger laws to protect and provide safety to women. We cannot progress, socially or economically, if our laws do not take care of inherent gender biases. NBAI also believes that we should have stronger implementation of laws for safety and security of women. This can be done if police investigate cases fast and courts pronounce verdicts without delays.
The Delhi gangrape incident last December also brought the Juvenile Justice Act into sharp focus.
Do you think the Act needs to be modified, particularly in view of the 16 December gangrape?
Certainly, the Juvenile Justice Act is intended to be a reformist piece of legislation for our younger generation. The intention of the Act is very good. However, the 16 December incident saw such a ghastly act by an alleged juvenile that society&’s collective conscience was shaken.
No doubt everyone thinks that the alleged juvenile is beyond reforms and should be handed the severest punishment. This is a test of our Juvenile Justice Act; our courts have wide power to interpret the Act and make exceptions to punish an alleged juvenile.
Do you think the government was right in not changing the definition of “juvenile”?
Parliament can only change the legislation, and government can only propose. However, is changing the definition of a juvenile the only solution? As mentioned earlier, Indian courts have wide power to interpret and carve out exceptional cases. If a juvenile is acting brutally in a manner that is not acceptable to society, courts do have the power to punish them in the severest manner. What if Kasab was a juvenile? Would the courts have spared him, in spite of the fact that he had waged war against our nation? I am sure the Supreme Court of India and other subordinate courts cannot be bound merely by the letter of a piece of legislation; they must also look into the spirit of the legislation and formulate sentences accordingly.
If the IPC earlier mentioned age of consent for sex as 16 years, why has there been a reluctance to make it so in the new anti-rape law?
Rising crimes against women is the reason the government (and Parliament) raised the age of consent to 18 years. If our elected representatives think that a girl is incapable of forming a correct decision about her relationships even at the age of 18, they would be right in changing the age of consent. For any legislation to be effective, a long-term view has to be taken. Any change in legislation should not be guided by only a single case. Therefore, we will rely on the collective wisdom of our parliamentarians to decide on the age of consent for women.