In conversation with Dr KA Pandey, Associate Professor, RMLNLU on choosing academia, authoring books and the future of criminal law

Dr Kumar Askand Pandey is a founding faculty at RML National Law University, Lucknow. He is the Chairperson of the RMLNLU Centre for Criminal Justice Administration. Dr Pandey has authored multiple books on criminal law, and has been part of government panels with the State of Uttar Pradesh and the Government of India.

He has been interviewed by EBC/SCC Online Student Ambassador Vanaj Vidyan, who is currently pursuing law from RMLNLU.

 

  1. Sir, you are well known across the legal fraternity as an expert in criminal law. What made you choose a profession in academia, over options such as litigation or judicial services?

Like in any middle-class family, I had little choice to make because my parents wanted me to study science. I did my graduation with Physics and Chemistry as a major and after that got admission in the three-year LLB programme of Gorakhpur University, Gorakhpur (now DDU Gorakhpur University). The decision to pursue law was my own as my parents still wanted me to do masters in chemistry. Reading for a law course was not common for the so-called bright students having a background in science. Legal education was then dubbed as the “dustbin of higher education” – only those who would not secure admission in any other course would do law – was the popular perception.

 

The law faculty had a reputation of being a producer of the largest number of judicial officers, especially for the Hindi-speaking States. Even when no other multidisciplinary university was having a semester system, we had it at DDUGU and the curriculum and schedule was very rigorous. Interestingly, I had made up my mind to join academics during my graduation, had it not been law, it would have certainly been chemistry.

 

From day one of my LLB days, I was determined to pursue masters and each passing day in the law faculty strengthened my resolve. Fortunately, we had the best teachers teaching core law subjects and their depth of knowledge, style and pedagogy had such an impact on me that even before I joined my masters from the same university, I always knew teaching was my true calling. Probably another reason was that my father was also in academics and like every other son, it was natural to idolise him and follow him in life and profession. But I must say, everyone else in my peer group was only interested in judicial services or other competitive examinations and even in the LLM programme everyone would be writing judicial services examinations for which I never felt any inclination or motivation. Litigation was my second choice. Had I not been in academics, I would have certainly joined the Bar.

  1. Sir, you have authored multiple books, such as Juvenile Justice: A Commentary and M. Gandhi’s Indian Penal Code – both published by the Eastern Book Company. Could you take us through the process of writing a book, and how it is different from writing a research paper?

Like I always wanted to be in academics, I also always wanted to write books. Throughout my law school, I craved for quality textbooks and material which unfortunately was scarce. I would then dream of producing quality legal text.

 

I was fortunate to have had the opportunity to write and publish books with India’s leading publication, the EBC, on criminal law and allied subjects. Writing a book requires a greater degree of patience and perseverance and of course longer time. I must add here that most books in India – I mean books that students read in their law programmes  – are a mere restatement of the bare provisions supplemented by case law. There is little or no critical element in the text. Most of the books do not encourage you to think and question. Also, the older books keep the obsolete text and material even in the recent editions.

 

When I was asked to revise a very popular book on the Indian Penal Code originally authored by Shri B.M. Gandhi, I tried to chop the deadwood and infuse fresh blood into its body. It was an arduous task but I humbly claim that I was successful in doing that thanks to the complete academic freedom from my publishers. The book is serving the student community well and the feedback that I keep receiving is very encouraging.

 

The book on juvenile justice came at a time when the new Juvenile Justice (Care and Protection of Children) Act, 2015 was not subjected to judicial scrutiny and there was no or very little case law. Therefore, it was more challenging to write a book on a law that was new and had brought in certain concepts which were not previously known.  Greater imagination and articulation is required to write a book on a new law. Thankfully, the book first published in early 2019 went into reprint in 2020.

 

In 2017, I also revised a very popular textbook Principles of Criminal Law by Shri O.P. Srivastava and then this year, one-of-its-kind treatise on the Law of Evidence by ProfVepa P. Sarathi was revised by me. The latest edition of the book on evidence contains a mix of rich text and case law, noting all the recent developments in the realm of the law of evidence.

 

I must add here that books have a wider audience and are used by everyone in their law programme for gaining insight into the branch of law concerned. There is a greater need for quality textbooks as these are meant to lay the basic foundation. See, you start from a basic text and move on to the advanced. If you have to learn criminal law, you cannot start with an advanced text or an article on, say, murder. You start by referring to the bare provisions and academic commentary thereon.  A good quality textbook should not only help in bringing conceptual clarity but should also ignite your imagination and help you in critical thinking. In writing and revising books, these are the prime objectives that I keep in mind.

 

Writing quality articles require conceptual clarity that can only be had when one has already read a quality basic textbook on the broad area. Articles are often build on the basic themes of contemporary relevance.  In India, it is often believed that for writing articles, deeper research is required whereas writing a book is a comparatively shallow exercise. I do not believe in this and I must emphasise that good research is key to producing quality text, be it a book or an article/paper.

  1. You have worked as Assistant Professor at NUJS Kolkata, and have been associated with RMLNLU Lucknow as a founding faculty. It is correct to say that you have had a sprawling career in academia and multiple interactions with students.
    What would you suggest law students should do differently, and which areas should they focus on in law school?

 

Again, I have been fortunate to have worked at NUJS from where I began my academic career in the real sense, though I carried around three years’ experience at traditional law colleges to NUJS. As a founding faculty at RMLNLU, I was able to give my optimum thanks to the enriching experience at NUJS. Students entering the law programmes, especially in the NLUs, are extremely talented, bright and intelligent. The whole environment in a modern law school is conducive for learning and acquiring skills. The students should use the resources to equip themselves with the knowledge and skills critical for lawyering and advocacy. Keep learning beyond the classrooms and libraries. Think critically, question, comment, debate, discuss and come up with newer ideas. This is how one would develop intellectually, academically and professionally.

 

The key is to “think differently”. Once the students in law school start thinking differently and challenging the stereotypes, they would eventually develop in all aspects. Try to make learning law a fun exercise. Enjoy every moment of your law school days, participate in as many activities as possible and of course, remain focused.

 

There is this popular misconception that law schools do not prepare you for the challenges in your professional life. Believe me, the skills and knowledge that you acquire in law school may be inadequate, but would always help you in building your career and personality. True that you remain a student of law all your life but what you learn in law school goes a long way in determining what you learn beyond it.

  1. How important is doing proper legal research and how should law students equip themselves with legal research skills?

 

Ability to do proper research is the most important skill a lawyer should acquire and law schools are the best place to start with and learn legal research. Some law schools, including RMLNLU, have a course on legal research and writing and this underlines the importance of legal research in and beyond the law school.

 

Judicious and proper use of legal databases is something that the students should learn as the first step in legal research. Good retrieval skills come next. In all the modern law schools, excellent and very comprehensive legal databases, both electronic and physical, are made available to the students. Even during these trying times when students are not able to access libraries, remote access facilities are provided by law school libraries. With the abundance of information, the ability to separate the grain from the chaff is another key element in legal research. Think, read, articulate and write. Reading the work of others is very important as that will make you aware that what other researchers are doing and will eventually minimise the possibility of you trying to “reinvent the wheel”.  Make it a habit to regularly read the law reviews and journals. Be quality conscious and choose only the best law reviews, law journals and law reports. Read quality journals from other streams such as sociology, economics, political science, etc. This will help in developing a wider perspective and interdisciplinary approach.  Remember, legal research skills can only be acquired by what we call the “learning by doing” method.

  1. Not many people are familiar with the concept of “exhaustion of a search”. What are your views on it?

“Exhaustion of search” is when you have reached a point where there is no more information available worth pondering. In our times when usually researchers start searching for relevant information using keywords in search engines, exhaustion of search is when your search engine returns millions of pages of which only a few are relevant and important and further search does not yield any worthwhile result. For any researcher, they must be able to do an exhaustive search for relevant information. Even basic searches should be exhaustive and the researcher should be diligent in ensuring that no contemporaneously relevant information or development is left out. I have a word of advice here: the internet is a good companion to help you exhaustively search, but the point of real exhaustion cannot be reached without toiling in the good old library. A good researcher is essentially and primarily a good searcher having excellent retrieval skills and the ability to narrow down and expand the search in accordance with the need. A judicious mix of searching tools is what will lead to exhaustion of search.

  1. Sir, you have worked in multiple capacities with the State of Uttar Pradesh. You are also associated with numerous research projects funded by the Government. In your experience, does the Government consider these reports and suggestions while framing/amending laws?

 

The answer is both a yes and a no. The experience that I have had over years working with different government departments such as police, child welfare, prosecution, etc., is a mixed one. Some of the recommendations and reports are acted on while some are not. I do not know the reasons. In 2015-2016, when the Department of Women and Child Development, Government of Uttar Pradesh commissioned a social audit of child Care institutions in the State of Uttar Pradesh, our report was very well taken by the Government and key policy decisions were taken based on the recommendations. On the other hand, the draft rules under the Juvenile Justice (Care and Protection of Children) Act, 2015 submitted by us were not notified and instead the Government chose to adopt and notify the model rules framed by the Central Government. Our recommendations to establish model child-friendly police stations were not only accepted but in several districts, child-friendly police stations have been established and functioning.  The Prosecution Directorate of Uttar Pradesh published the excerpts of our report on hostile witnesses in their in-house magazine and based on our findings and recommendations, efforts are being made to remedy the situation.

  1. The last few years have witnessed a rising number of cases where the investigating agencies slap the accused with UAPA and sedition. A consequence of this is a denial of bail, as has also been seen in multiple high profile cases in the last 2 years. What is your view on the application of such laws?

 

As a student of criminal law, I am bound to view these laws from a human rights perspective. Much water has flown down the Ganges since these laws were brought on the statute book but the attitude of the State did not change. These laws are widely abused by the executive and judicial intervention is too scarce and too little. Often too late as well. We often lament the rising intolerance in society.  I daresay, the State has become the most intolerant institution of late. Unlawful Activities (Prevention) Act, 1967 (UAPA) or sedition provisions are slapped to silence voices of dissent and it must be understood that the matter is not only about the abuse of criminal law; it is much more than that, it is a matter of human rights; it is a matter of constitutional rights to dissent and disagree and make that dissent and disagreement public that is at stake.  Unfortunately, the instrument of criminal law and procedure is used to perpetuate intolerance of the State. Neither the UAPA nor the sedition law is meant to suppress the voices of dissent but that is exactly what these laws are being used for. Abuse of these laws gets more acute with the criminal process turning in punishment of sort even before one is pronounced guilty. In my view, sedition laws have no place in a functional democracy. As the Supreme Court has agreed to re-examine the constitutionality of Section 124-A IPC, let us hope that sedition, which has turned into a tool of political vendetta, shall be gone forever.  I am pinning my hope on the judiciary because every State loves a bad cop and a bad law.

  1. Sir, as Chairperson of the RMLNLU Centre for Criminal Justice Administration, a research project pertaining to hostile witnesses in POCSO was submitted to the State of Uttar Pradesh, under your supervision.

The legislature in its wisdom has raised the age of consent to 18 years, much to the criticism of progressives, as it subjects even consensual relationships between two minors to a stringent Act as POCSO. How do you view such criminalisation of adolescent interactions? In your opinion, is the State justified in raising the age of consent?

 

Age of consent is a sensitive issue. It is an issue with very wide ramifications for all the stakeholders – the children, the adults, and the society at large. Protection of Children from Sexual Offences Act, 2012 (POCSO) was legislated with the objective to protect children from sexual exploitation by adults. The object was not to punish children for sexual “experimentation”. Unfortunately, the majority of POCSO cases reaching the police stations are those where both the parties are adolescents (children) and the societal disapproval of their relationship leads to invoking POCSO. The United Nations Convention on the Rights of the Child (UNCRC) that India ratified in 1992 stipulates that a person under the age of 18 years should be treated as a child. Treating a person as a child comes with several pros and cons. One of the consequences is that the State more intensively regulates their conduct, even those conducts which are otherwise normal and permissible for persons above 18. Law does not generally regulate the sexual relationship between adults provided that the parties have consented to it. It does so between “consenting” minors, the rationale being that children cannot decide what is good for them and need adult supervision. While this assumption may be true in a limited sense, it has led to the criminalisation of even “consensual” sexual experimentation. What I think is that while children should be protected from adult manipulative sexual predators and abusers, the POCSO and similar laws must have a clause (often referred to as a “Romeo-Juliet clause”) decriminalising sexual contact when both the parties are under the age of 18. In some jurisdictions, the protection from criminal prosecution is extended to those couples where the age gap is, say four years even if one of the parties is an adult.  This can be done even without lowering the general age of consent.

  1. Criminal law is (in)famous as a tool that saves the rich and harasses the poor. The rich afford extraordinary legal services, while the poor lament outside courts without resources, harassed by the “system”.

Despite India’s extensive legal aid provisions, it has not reached the last man. And implications of absent legal aid are highest in criminal law, as an individual’s liberty is at stake.  As a criminal law expert, what in your opinion may be done to realise the objectives of legal aid in the Indian criminal justice system?

 

You very rightly pointed out that law, especially criminal law, is a cobweb where only small flies get trapped while the bigger ones come out unscathed. What you have referred to as extraordinary legal services, is in fact services of the best legal brains, which are unfortunately beyond the reach of the masses. Who is to be blamed? State? Judiciary? The answer is not that easy. The best lawyers charge exorbitant fees which is beyond the paying capacities of even the so-called middle class, forget about the poor and the marginalised. But there is this legal aid programme under the aegis of the National Legal Services Authority (NALSA), which seeks to ensure equitable access to legal aid. The NALSA even has a legal aid programme for the middle-income group. However, the poor and the marginalised are still deprived of quality legal aid and the implementation of legal aid services at the district and State level is still shoddy and not up to the mark. It is common knowledge that most legal aid lawyers empanelled by the District Legal Services Authority (DLSA) or State Legal Services Authority (SLSA) are qualitatively substandard and lack professional competence. This translates into poor quality of legal aid.

 

In criminal matters, the legal aid clinics, which we have in every law school, law college and law department, have very limited or little role to play. See, the victim gets represented by the Public Prosecutor at State expenses but the accused is required to engage a lawyer to defend himself and if the accused is unable to do so, must be provided with one. However, the lawyers so provided to the accused – as I already said – often lack motivation and competence. Therefore, there is legal aid for the namesake. No quality. Interestingly, of late, the Supreme Court has said that lack of “quality” legal aid vitiates the criminal proceeding. But there is still a long way before quality legal aid is made available to each and every deserving person. The lawyers’ community has a very important role to play in making quality legal aid accessible to all. Good and professionally competent lawyers should spare more time for pro bono cases. I hasten to add: access to quality legal aid is as much important for a society’s well-being as access to quality healthcare.

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