This article is written by Oindrila Mukherjee.
The highly competitive environment of legal internship/ traineeship in India functions without any statutory or judicial regulation making it a hub for exploitation. The newly released National Education Policy,2020 along with Rule 25 of Schedule III BCI Rules mandates hand on experience on vocational subjects like law. In the struggle to complete 20 weeks of internship, legal interns often get physically, mentally and sexually exploited by their seniors by virtue of their position. This Article analyses the day to day issues faced by law interns in India in an attempt to highlight the need for Intern protection laws in the country.
Unpaid Internships: Can I pay my rent with experience?
“The democratic foundations are missing when equal opportunity to grow, govern, and give one’s best to the society is denied to a sizeable section of the society.”
Unpaid internships enable privileged students who don’t require the money to get ahead of those who need to be paid for rent, food and transportation. It’s a perpetual cycle that allows privileged students to capitalise on an opportunity that others probably can’t afford. Unfortunately, the legislature and the judiciary have failed to provide statutory protection to legal interns in India. Unlike UK, USA and Canada unpaid internships that provide immediate advantages to the employer are legal in India.
The scope of the Minimum wages Act, 1948; The Employee’s Compensation Act, 1923; Industrial Disputes Act, 1947; Payment of Wages Act, 1936 or the Payment of Bonus Act, 1964 does not include the rights of a legal intern making them susceptible to mental and economic exploitation. The Ministry of Labour and Employment on 22nd September, 2014 vide a notification specified the minimum rate of stipend per month payable to ‘Trade Apprentices’. Though the concept of an internship is similar to that of apprenticeship, the Apprentice Act, 1961 makes it amply clear that legal interns cannot be treated as an apprentice under the ambit of the Act rendering them unprotected and unrecognized in the legal society.
The Myth of Equal Opportunity
“The Bar Council of India shall ensure that the arrangement and placement for Internship shall be ensured by the BCI and by the law school itself and the students will not be required to make arrangements for their internships at Regulatory Bodies, Government Organization, Law firms, Advocates, etc., on their own.”
Schedule III of Part IV of BCI Rules of Legal Education, Bar Council of India, Rule 25 prescribes that the minimum period of internship for registered law students is 12 weeks for a 3 year Course Stream and 20 weeks for the integrated 5 years Course. Though the BCI Rule does not specify under which institution a law student should intern, most universities and law colleges across India require the students to do an internship under an advocate practicing in the Hon’ble Supreme Court or the High Court. Such requirements set by the universities require a lot of investment in food, transportation and lodging of the interns who seldom get any monetary assistance from the law firms they are working in. The Delhi High court on 10th January,2020 recogised the undue pressure on young law students to search for internships even when they don’t have ways and means to secure the same.
The Division Bench of Justices Siddharth Mridul and Najmi Waziri through a Suo motto order assured that the Bar Council of India and the law colleges together will be responsible for providing equal internship opportunities to all law students to meet the BCI internship requirement. Though the judiciary acknowledged that the BCI Rules for internship for law students in completely obsolete and requires amendment it failed to recognise the need for monetary assistance to the less fortunate students to ensure equal internship opportunity to all. Unpaid internships in India violates Article 14 of Part III of the Constitution as it fails to provide an equal playing ground to all the interns coming from different economic backgrounds. The Legislature and the Judiciary needs to address this issue on priority basis to ensure compliance to the principle of equity before we lose another Sushant Rohilla.
“When you have wit of your own, it’s a pleasure to credit other people for theirs.”-Criss Jami, Killosophy.
Justice Markandey Katju, while rendering the celebrated Aruna Shaunbaug Judgment thanked all his legal interns and clerk for their relentless effort in structuring the judgment and further recognised their intellectual contribution in it.
On the other hand on 27th November 2015 a division bench comprising of Justices Pradeep Nadrajog and Mukta Gupta delivered a judgment where a portion of the judgment was plagiarised by one the law interns who wrote a part of the 275 page judgment. The Judges apologised for the mistake and took the liability upon them. Judges and Senior Advocates have always been very encouraging and protective towards legal inters. However, there have been several instances where an Article/ draft/ legal opinion/ any other intellectual work of an intern has been published in the name of the law firm or the advocate or institution under whom the law student is interning without giving due recognition to the real author of the work. Such incidents demand a special law recognising the intellectual property right of a legal intern to provide her the credit that she deserves.
What to do if you are denied your Certificate
How would it feel if you were denied your internship certificate after investing your blood and sweat for 30 days?
Unfortunately, legal internships in India are largely unregulated as there are no laws or judicial guidelines protecting the rights of an intern. Most institutions, law firms and government bodies don’t provide an internship agreement and function solely on the basis of oral promises leaving very little remedy to the interns in case of a breach. The best possible remedy available to an intern is to file a complaint against such lawyer(s) in the Disciplinary Committee of the State Bar Association.
After hearing the matter the State Bar council can pronounce a decision under section 35 of the Act. If the parties are aggrieved by the decision they can appeal in the Disciplinary Committee of The Bar Council Of India within 60 days of the order which can further be challenged before the Hon’ble Supreme Court of India within a time period of 60 days.
The Judiciary in several occasions has upheld the right to get an internship certificate upon successful completion of a ‘Medical’ internship but has not provided the same protection to legal interns in India. The Judiciary and the legislature has time and again failed to acknowledge the fact that both medical & law students mandatorily require the completion of a minimum period of internship in order to avail their degree certificates.Therefore, legal interns should essentially get equal legal protection like the medical interns of our country following the model adopted in the United States of America.
Mental and Physical Harassment of Interns
26 year old law intern Archana Lal hanged herself on November 24th,2018 after constant physical, mental and sexual abuse by senior lawyers using their position in office. On 23rd April, 2020 a junior lawyer committed suicide in Gurugram blaming a senior lawyer of mental and sexual abuse at workplace. The list went on till one day, 21 year old Sushant Rohilla succumbed to the pressure of Schedule III of Part IV of BCI Rules of Legal Education, Bar Council of India, Rule 25. A Rule that claimed several lives. The Hon’ble Delhi High Court vide Suo moto order dated 7th February, 2020 brought a major relief to the law students of the country by promising that internships will be provided by BCI and Law Colleges together. However, this was just the tip of the iceberg.
The Prevention of Sexual Harassment at Work Place Act, recognises (legal) interns within the definition of an ‘employee’. However, in a profession where interns are very often mistreated and are just used to carry files and coffee mugs, it is extremely essential to make protective laws for this highly unregulated and exploited section of the legal world. The growing number of suicides amongst young interns demands special attention to the physical and mental health of the young interns to ensure a better work environment.
A Way Forward
Labour rights and the ‘Internship culture’ in India Clearly don’t go hand in hand. To avoid enabling a boom of unpaid internship and copyright infringement of interns it is very important to introduce a specialised statute defining the role of an ‘Intern’ and her rights. The Indian legislature can adopt the ‘Six-factors’ test used in the United States of America to establish the primary beneficiary or the South African model of ‘Employer-employee relationship’ to enact Specific regulation which set minimum standards for safe workplaces, accident compensation, protection from abuse, stipend, etc. Allowances should be issued to ensure that the marginalised students are given equal opportunities for internship. Appropriate authorities should be set up to monitor internships, deal with complaints and ensure regulations are enforced to prevent interns from getting precarious without any legal protection.
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