This article is not about how to write a good project, nor is it about how to scam it well. Instead, this article is about how to make sure that project writing becomes an ‘activity’ in law school, beyond a mere ‘course component’. 68 exams, 37 projects, 4 internships, and a few conventional law school competitions later, I have realised that the best way to learn and understand law is to write about it. Though a lot of ink has been spent on why academic writing is important, this analysis can be left to some other piece on some other day. However, this article proceeds with the assumptions that project writing per se (not necessarily in the current format) is an important activity, so much so that we need to actively promote it. In the first part of the piece, I explore the seemingly obvious reasons for the failure of the current incentive structure. In the second part, I argue for generating some incentives (and subsequently, culture) from within the student community, instead of waiting for systemic reforms (apologies for sounding like a research methodology at this point). Obviously, many things can be done from the side of the administration and faculty to make project writing more meaningful. However, in this piece, I am only concerned with what we (the students) can do.

Project Writing as a Course Component: Why our Incentive Structures are Broken

Arguably, project writing lies at the heart of academics at NLS. Projects, by design, are actually meant to be the part of our coursework that allows us at least a modicum of autonomy and an opportunity to be creative. One can make innovative arguments, and use projects as a means to getting a grasp on some interesting ideas. In some cases, one can even choose their own project topic for a given course. Then why are projects that should ideally be the most exciting part of our coursework still such a burden for most? I believe, the reason lies in broken incentive structures, and consequently, a lost culture of academic writing.

Better Projects, Better Marks?

First, perhaps, is the absent correlation between quality of projects and the marks awarded, the most tangible of all benefits to us. Most of the teachers mark us within a defined band – so, the difference between an excellent project and a below-average project only translates into a difference of a few marks. For many of us, getting those extra marks is not worth the effort required to make an excellent projects. Even if those marks are relevant for some, they are often fooled by the randomness in marking of projects. Many teachers mark projects without even glancing through them, judging you based on your ability to sound impressive for five minutes. Sometimes it’s plain favoritism. Therefore, the most obvious of the incentives, i.e., ‘more marks’ has clearly failed to be a good incentive.

So why should we still think projects are worth sweating over? Because, there may be other incentives beyond your course. Let’s explore the other incentives that may motivate some of us to write good projects.

Personal Satisfaction

One such incentive can be personal satisfaction. Writing good projects improves your research and writing skills. These skills may be relevant to you in the long-term. In the short term, it only gives you personal satisfaction. What does ‘personal satisfaction’ mean here?

For many of us, there is a loss of confidence in our intelligence over time, if we don’t satisfy ourselves of our capacity to produce good work. Sustained progression of courses where project making is a painful, uninspiring process and coursework which is sub-par often blot out inspiration to produce something we can be proud of. And without it, we have limited avenues to enhance our legal thinking, research and writing skills (our soon to be bread and butter). This mixture of growth, actual learning, and confidence is what I mean by personal satisfaction.

So, can the sinking boat of legal writing survive on this incentive? I believe not. Incentives like this are very personal, and may not work with a majority of students. If we believe that project-writing has to sustain successfully at an institutional level, it is probably not a good idea to rely on this essentially personal incentive.

A Pat on the Back

For many of us, there is another very important incentive – honest appreciation by the professor. Let’s call it ‘appreciation incentive’. However, central to generating these opinions/appreciation, lies a basic requirement – for appreciating a paper, one has to read it. Unfortunately, 45 compulsory courses and 37 projects later, I won’t even exhaust ten fingers to count the number of teachers who actually read my projects. For the subjects where we are aware that teachers actually read and care about the projects, this ‘appreciation’ incentive clearly worked for me, as well as a significant number of my batchmates. Several of them outdid themselves, put in honest hours at the library, and made projects they were excited to present and defend before these handful of teachers who read them and engaged with them.

For some other subjects, I relied on a mixture of ‘personal satisfaction’ incentive and ‘more marks’ incentive. For the ones left, I couldn’t care much. This is the story of another broken incentive.

Getting Published

There can be another important incentive – that of getting published. It is not only one of the most coveted things you can have on your CV, but will also be something which will permanently contribute to the literature on that issue. Ideally, at least this incentive should work with a large number of students, but it doesn’t. There are, again, obvious reasons for the failure of this incentive. In an environment where every second day the Lawctopus feed gives you a list of 10 scam journals, publishing per se doesn’t seem to be a difficult task. But, publishing worth achievement requires much more than writing a good project. There are very few good journals at national level. Most of these journals are either annual or bi-annual, so they automatically limit the number of slots. Further, the effort required for an international journal is way more than what is required even for an excellent project. Finally, the selection of an article for publishing is also hurdled by a bunch of random factors like the relevance of topic, your position, etc. Due to sheer lack of opportunities and due to the amount of hard work that is required, publishing does not work as a strong enough incentive for a large section of students.

Therefore, my conclusion at this point is that though the aforementioned incentives at play may work with certain individuals, they are not sufficient to promote project writing at the institutional level.

So, what do we do?

What do we talk about when we talk about legal writing as an ‘activity’

Simply put, an activity, as opposed to course component, is something that does not form part of curriculum. Hence, the primary incentives that make students involve themselves in activities are external to curriculum. Barring a few exceptions, we have largely excelled at such activities at NLS. According to me, at least in part, these successes can be attributed to them being activities, that is, their incentives are beyond curriculum.

Moot courts can prove to be a good comparison.They are also academic in nature, most of the major moots requiring as much or probably more hard work than a good project would require. What can be the reason that students at law school are continuously striving towards producing high quality moot memorials (without their exemption marks really dependent on the quality of arguments in the memorial), and not projects?

Arguably, it may be because some may find researching for moot courts more intellectually stimulating than projects. But that is not universally true. Unlike in moot courts, where the issues are already identified for you in most cases, a good academic argument requires you to also identify the issues yourself. This act of problematising a seemingly simple legal provision or principle is often more challenging and interesting for some individuals than working on a given set of problems. Therefore, the importance given to moot court as an activity over legal writing in law school is not merely due to characteristics inherent to mooting, but because of an institutional predisposition to consider and promote it as a highly valuable activity.

What makes it a highly valuable activity? Apart from the fact that you learn a new area of law and the CV value (which the humble academic paper can also deliver), other factors such as immediate peer appreciation, travelling, etc truly make it a valued activity. This immediate peer appreciation goes a long way in creating a culture where moot memorials are not seen as mere replacement of projects. Therefore, though there is a curricular incentive with moot courts, i.e., project marks, our attitude towards moot courts is not that of ‘course component’, but that of an ‘activity’.

The challenge that lies ahead of us, as students, is – can we, as a student body, make academic writing a thriving activity at NLS?

The erstwhile Student Advocate

Before we explore what we can do, it’s important to know what used to exist. What we know now as ‘NLSIR’ was earlier known as Student Advocate. In its early days, it did not comprise of articles by area experts, but articles by students at NLS. Therefore, getting your article selected for Student Advocate and subsequent publication used to be a ‘thing’. It not only got you published but also got you some immediate peer appreciation. However, Student Advocate later became a leading law review of the country. It was no longer restricted to students at NLS. With its transformation into a law review, it ceased to provide a viable avenue of publishing to current students at NLS.

SBA Working Paper Series

Therefore, while we are no longer have Student Advocate, there is probably a need to fill that void. Starting an SBA Working Paper Series, either under the SBA or by relevant committees/research centers, that provides students with an avenue to publish their projects can be one such solution. It may also incentivize students to write better projects, so that they can get published in the next series of Student Working Papers. In fact, after every trimester, it should be one thing that students look out for. Apart from the purpose of promoting project writing, it can also serve another purpose beneficial to our institution – that of contribution of knowledge to outside world.

Students produce knowledge by writing good projects, but once those projects are marked,they often turn into paper waste. Some of these projects contain very valuable research that may be relevant for people looking for such knowledge, may it be for research, for policy or for something else. The SBA Working Paper series is a good way of ensuring that the knowledge that is produced within the confines of project writing is also managed properly. As compared to IIMs and IITs, the studies by whom are continuously reported about and published publicly, NLS as an institution produces little knowledge for the public. We have the benefit of being the best law school of the country (isn’t that what the rankings say?). Good research work by the students on any area of law has to be taken seriously by outsiders. SBA Working Paper Series can be one such way where the knowledge produced within the boundaries of NLS is thrown out in public. This further incentivizes the students to work on their projects with the incentive of being published in mind.

Culture of Academic Writing

While the incentives definitely play an important role in promoting an activity, we need to generate a culture of academic writing. Generating such a culture will require us to take multiple steps – such as seniors organizing legal writing sessions for juniors (like we have debate training sessions) and having paper discussion groups, wherein one can discuss her paper with her peers (part of what PLDG currently seeks to do). Above all, it is important for younger batches to not treat project writing just as a course component that has to completed for those 35 marks, but start taking them as lessons for learning legal writing.
Perhaps, we all agree that glass house libraries and classes in law school do not equip us with everything that a professional lawyer requires, may it be in litigation, corporate job, teaching or policy work. To be fair, we don’t even expect such training from law schools. However, the bare minimum that law school environment successfully does, or at least is supposed to do, is to teach us to research and write well. Through the system of written project assignments, law schools aim at achieving that purpose.

The author would like to thank Sharwari Pandit and Akshat Agarwal for their inputs and discussions without which this article would not be possible. 

A recurring theme in conversations with lawyers who oppose the death penalty, and who have been involved in defending convicts from capital punishment, has been their aim of making the death penalty procedurally impossible to inflict. Stated simply, this goal is to ensure that the State cannot, in fact, execute a person without considerable difficulty, finally rendering the death penalty itself unviable, and therefore, undesirable.

This goal was evolved as a response to the fact that the judiciary has refused to declare the death penalty unconstitutional, and the fact that there is little legislative will to do away with the punishment. The goal, if achieved, would work to ensure that the state discovers that there is no procedurally acceptable way of imposing the death penalty, and therefore ensure that such sentences are not carried out. As the final assault, the uselessness of the penalty on the statute book would be discovered, and the penalty dropped completely as even a theoretical possibility. Of course, this method was fraught with dangers, the prime one being the State becoming much more efficient at imposing the penalty, following the procedure as provided, and rendering the entire argument fallacious.  But given the limitations that have been outlined above, this was all these lawyers had. This short comment argues that the case of Yakub Memon shows the limitation of the strategy that was adopted by death penalty abolitionist lawyers, and the way the state has circumvented the entire argument points in a dangerous direction, where instead of increased efficiency and compliance, procedure is violated completely.

Let’s call the argument of the abolitionist lawyer the impossibility thesis. To be fair, this line of reasoning has had considerable success till very recently, aided by a judiciary which has successively increased procedural requirements for the taking of life by the state but always shied away from declaring the penalty unconstitutional. Of course the genesis of the impossibility thesis may not be accurately identified. However, Bachan Singh and Machhi Singh ensured that the death penalty was recognised judicially as a class of punishment of its own and to be imposed only in the “rarest of rare” cases. The constitution bench of the Supreme Court in rendering S.303 of the IPC unconstitutional was another victory, ensuring that the death penalty could not be mandatorily imposed under ordinary criminal law. Of course, the Indian Supreme Court was aware of what was happening throughout the world on matters of capital punishment, mostly the SCOTUS, which having rendered the death penalty, as practiced, unconstitutional in Furman in 1972, allowed the penalty to be restored in 1976 in Gregg v. Georgia.

The impossibility thesis scored another major victory in the case of Triveniben v. State of Gujarat, where delay on death row was recognised as a factor on which the death penalty could be commuted by the judiciary. That case was referred to a constitution bench because lower strength benches had differed in the precise effect of such delay, T.V. Vatheeswaran v. State of Tamil Nadu declaring even a delay of two years to be unduly long delay entitling the prisoner to commutation.

The impossibility thesis has been based largely on the procedural safeguards that a prisoner on death row is entitled to. The Constitution having guaranteed consideration for mercy at the hands of the executive, a prisoner could apply for the same and if there was delay in the rejection of such a petition, the prisoner could approach the judiciary on that ground. As thinking on the death penalty evolved globally, the Indian judiciary adopted several other safeguards as well, such as insanity at the time of execution being a ground to commute the sentence, recognition of the death  row syndrome etc. Finally, the impossibility thesis saw what can be called its greatest victory in the case of Shatrughan Chauhan v. Union of India, where the Supreme Court commuted fifteen death sentences on several grounds.

However, some cases have increasingly displayed that the reaction to making the death penalty more difficult to execute has been, in part, to ensure that the procedures which are guaranteed by law are not followed and the prisoner is executed. As the death penalty is irreversible and final, there is nothing which can be done once the actual execution is carried out. The cases where procedural violations have deliberately been carried out by the state leading up to an actual execution are all examples of terror related cases. One saw the same happening in the case of Ajmal Kasab, where the Maharashtra Prison Manual was violated and top ministers of the state had gone on record to say that the penalty has been carried out in secrecy precisely to ensure that Kasab could not approach the courts. Again, in the case of Afzal Guru, one may point out to factors in the actual execution that were violated. In the case of Yakub Memon, the execution showed that there are procedural violations committed, and which were condoned by the judiciary. In fact, this case displayed how determined the government was that the sentence be carried out on the same day as fixed by a legally flawed death warrant. It may, in a perverse way, be called efficient to reject the mercy petition on the same day it was referred to the Home Ministry, and by the Governor, minutes after the dismissal of his petition before the Supreme Court on 29th July. Leaving aside the procedural rules violated, such as the Mercy Petition Rules notified by the Home Ministry, which mandate a period of at least fourteen days after the rejection of any mercy petition before the sentence can be carried out, one may see that government action has been to ensure that the prisoner cannot take advantage of his ordinary rights under Article 32. Whether Yakub would have challenged the rejection of his mercy petition on the grounds on which executive action can be challenged, one does not know. But it cannot be said that he was not entitled to challenge it. Of course, fidelity to the law, as laid down by the Supreme Court itself, should have ensured that the letter of the law be followed. However, the entire state machinery ensured that it was not.

It seems therefore, that the impossibility thesis has been outwitted by a system where procedural safeguards may be discarded at will by the government in power to ensure that the penalty is carried out. The only justification coming from the other side seems to be that this case involved an instance of terror. But I would caution against celebrating the defeat of the impossibility thesis as any triumph for brilliant legal thought. It is in fact, quite the reverse. It is a deliberate blindness to an instance of illegality.•