Reforms in Legal Education: In conversation with Ms. Upasana Dasgupta via Journal of Indian Law & Society of WBNUJS, Kolkata

Ms. Upasana Dasgupta is extremely experienced in the legal industry, with a penchant for Air and Space Law. Having completed her bachelor’s degree in law from a reputed National Law University, Ms. Dasgupta pursued her masters in Air and Space Law.

Ms. Dasgupta has a vast experience working for Indian law firms as well since 2013. She is currently pursuing her PhD and is working as a Research Assistant in the Institute of Air and Space Law, McGill University, Canada.

Ques 1: To begin with, would you like to share with us your experience as a law student, an associate, and a Research Assistant? What has the transition been like, having experienced different legal spaces?

I completed my under graduation in law in 2012 from RMNLU. Then, I did my masters at McGill University in Air and Space Law, and after that, I worked for around 2.5 years in Argus Partners and in Amarchand in capital markets branch and then, I started my PhD at McGill in 2016.

I think my journey caters to my aspirations and the kind of person I am. That, of course, would be different for different people. For me, I wanted to do some in-depth research and go to the basics and theory of things, which is why I started pursuing a PhD in the first place.

My love for Air and Space law started in 2009-10 when I was participating in the Manfred Lachs Moot Court Competition. Although generally, I liked national law, I realised that international law is interesting. Space law is even more interesting because it is open to so many interpretations and I really liked the academic aspect of it.

Later, when I was in my fifth year, I had to take a call- I wanted to do my masters from a reputed university where they would go into the depth of things, as that was the general idea at that time. I applied almost everywhere in the UK in commercial law, and I got through them, but I did not get the scholarship, and that’s when I thought that maybe I should also consider pursuing my dream and apply for Air and Space Law in McGill.

But to be fair, I applied to other subjects because they interested me too, it’s just that Air and Space law was more interesting to me- it was more like a calling rather than something that just interests me.

I got through, but, I also wanted to pursue the commercial aspect of the law, and that’s why I went back to India after my masters and worked in two law firms for 2.5 years. I think all these experiences have helped me become who that I am today.

Ques 2: (a)Can you help us understand what does Space Law entail, considering it’s a niche field that is growing very quickly?

Space law is basically the law governing outer space activities, and I mostly dealt with the international aspect of it, but there is a national aspect too. The international aspect is governed mainly by five treaties, and the most important is the Outer Space Treaty which says that outer space is open for use and exploration by all countries.

That’s why it’s very different from Air law or any other law we have in terrestrial land except, of course, the High Seas Treaty, which is also open for exploration and use by all.

It is because of this along with the non-appropriation principle, which is entirely opposite of this principle but has to be read together, that you cannot use your freedom to take away the freedom of another country

Space law is also different from general international law, where the state is not generally responsible for say, the murder committed by a person X. But, the law in outer space is that if anyone does anything in outer space which is licensed by the state, then the state is directly responsible for the private act also.

In space law, liability and responsibility are taken differently. Liability, which is dealt with under the Space Liability Convention and also the Outer Space Treaty, is considered for actual damage as opposed to legal damage.

(b): So ma’am, could you give us some instances in India or abroad which deal with the issues of liability and responsibility in outer space?

India once launched four small satellites for a US company, Space B. These satellites should ideally have been licensed by the US because the company is incorporated in the US. Later, it was found that the satellites were launched without US permission. The good and bad part about satellites is that once they are up, taking them down would take more time.

The US penalised the company, and India got a lot of criticism too because of that. The standard term in contracts where an Indian company, or more importantly, the Indian government is dealing with a foreign company is that “For all foreign licenses, you are liable”.

This is because Indian law firms generally don’t want to deal with something that deals with foreign law, because, of course, there is a question of competence as to whether they are allowed to do that. The Liability Convention says that there are four states which can be liable- the state from whose territory the launch happens, the state from whose facility the launch happens, the state which launches and the state which procures the launch.

My take in that is, for responsibility, you can argue that India is not responsible because India was merely acting as a commercial entity and not in a governmental capacity. But, for liability, the law is clear that since Indian territory was used for the launch, in case these satellites go and hit other satellites resulting in a collision, India would be liable.

Ques 3(a): What sort of tribunals or courts are these disputes referred to, considering they are inter-governmental or mostly beyond borders? Are they resolved mostly through arbitration or mutual understandings and mediation?

Yes and no. There is no particular method through which it is done. It is a combination of ICJ, arbitration and negotiations between states.  The things which deal with space law deal with other laws as well. For instance, the case of ISRO Devas, which is also a huge investment arbitration case.

(b): Are there different laws which apply to government space agencies vis-a-vis private agencies? For example, Elon Musk’s SpaceX is a private entity, while ISRO is a government organisation- so are there different laws for these agencies?

In international space law, it is the state which is responsible. But the state, of course, doesn’t want to be held responsible without insurance, so, it generally asks the private party to insure. This insurance license has to be rigorous, as for state, there is a huge liability in case there is a problem.

But in India, we do not have a national space law, we have a space activities bill which was tabled in the parliament in 2017, but there hasn’t been much movement since then. There was a talk where they said that we are still reconsidering and redrafting it because when the initial one came out, the Indian private space sector had a lot to say about it.

Now they are saying that they are going to redraft it, and ISRO is saying that it is going to allow some private entities to use its facilities. The reason you need a law is that if you don’t have one, how are you going to govern a private activity? For government activity, you don’t need it, because there are different ways of regulating the government internally, like the department of space can regulate ISRO through government procedure, but if a private party is taking part, then it’s a different procedure altogether.

Ques 4: (a) Ma’am, considering that not all countries have national laws on the subject, and many have not ratified international treaties. So, how do you approach the international disputes that arise?

The international disputes which do not deal with investment, commercial goods, or sale of such goods, are generally resolved through arbitration. The only time an attempt was ever made to enforce the Liability Convention, was during the cosmos disaster in Canada when a Russian satellite fell in northern Canada.

But then, both the states agreed, particularly because Canada didn’t want other countries to come and help inside their country because of sovereignty issues, to get it settled out of court through arbitration chambers, but here the amount was pretty less.

So, I think that the way it is generally handled now is through protests, diplomatic negotiations or push-back by the international community.

Ques 5: Considering that the branch of Space law is evolving at an impressive pace, how, in your opinion, should teaching in law schools move to keep up with that pace?

It’s not just in India. If you look around, there are not too many places around the world where space law is taught. In some of the countries, the US, for example, companies don’t know whether the space industry’s demand will remain the same.

There is a lot of money that is given to the people currently who work or teach, but they are not in permanent positions. This changes the lucrativeness of the job.

I think one of the reasons why I started working in law firms is because I knew I couldn’t get a commercial job in space law in India.

After all, there isn’t any practice per se. Now it’s really starting- I know there are some law firms which are working on it, but to be very fair, the aspect of space law that goes to disputes are those that deal with the sale of goods, which you can put in the brackets of other aspects.

Ques 6: What are the primary law firms or organizations which operate in Space Law? What is the kind of career opportunities available in this field for young law students?

There is one Bangalore based law firm started in 2017/18 that works in the field of international law, in general. Then, there is the Observer Research Foundation, which is doing pretty good work in the space industry.

So, of course, there are opportunities, and there are other ways to explore- and I know for sure that ISRO sometimes asks you to give an opinion, for example on the draft space bill. And I spoke with some people saying that new space industries are really coming up, not lawyers, but people in other disciplines, and they said that the industry is growing.

As it grows, I am sure there will be more jobs for lawyers. But to be fair, space law in law firms would be more private law than public law. In the US, for example, most of the work is financing and insurance, so you need space law knowledge, of course, but you also need knowledge of how to structure finances and insurance.

This is because you don’t have standard insurance, you have insurance for every occasion. Of course, you need to know certain things, and certain principles that are important, but equally important are general financing laws and project financing.

Ques 7: What are the fundamental differences in opportunities that are offered in India vis-a-vis those abroad? Is it always advisable to go abroad to seek opportunities in such fields?

Not necessarily. Few countries have opportunities- US, Luxembourg, France and Germany. Of course, China, the US and Russia are very active, but they have restrictions on nationality. But, it may not be a bad idea to stay in India and work here, if not study here, it may not be a bad idea to study there too.

The reason being that you are an Indian qualified lawyer already, and you are an Indian citizen. Space is a very strategic sector, so almost every country has the restriction that you have to be a citizen of their country or a permanent resident.

So, if you want to work with the government agencies in the space sector, for example, you have to be a citizen and a lot of times, they ask you to be a qualified lawyer in that place. So, for private industry, I think it makes more sense to work in India rather than somewhere else unless there are other considerations involved.

But, academic jobs, of course, you can do anywhere as it is an open and different field in that way. But in the US, you can’t take up academic jobs, at least in the space sector, unless you are a US qualified lawyer.

Ques 8:  What was your motivation behind shifting from a corporate, commercial job working for law firms in India to academia, after a couple of years of gaining experience?

To be fair, I always wanted to do my PhD sometime, and it had a lot to do with the kind of person I am and not with opportunities in India or anywhere else. I think I enjoy doing certain things which are the characteristics of academia, which is that you read a lot, go to the theoretical basis of it and understand things.

If you have read jurisprudence, law firms in India are very positive law-based, whereas, for me, I don’t perceive law as such. So, that is why I always had an inner conflict that I wanted to explore my non-positivist ideas, but I realised that was not the best place to do it.

So that was one of the reasons, and I always wanted to be in academia. It’s just that there is a difference between I know I want to and the urge to actually do it.  When I had that urge, I applied for my PhD.

Ques 9:  Ma’am, with your diverse experience in an Indian NLU vis a vis a Canadian university which specialises in such a niche field, do you identify any differences in the way these two approach anything- be it teaching or how the courses are conducted?

I am speaking from my general experience as a student, and not just as a student of air and space law. Most of the people here have already done a degree and law is their second degree, so people here do it because they want to do it, and not because they had to do it.

Thus, it’s very competitive. And we don’t feel like a graduate student, because we can choose classes, but from what I can see in undergrad students especially is that people are very stressed. Being a student of an Indian National Law School helps here.

At least my experience was that I wasn’t very stressed as a person, of course, there was work to be done, but it wasn’t going beyond my capacities, and it did not overcome my work-life balance.

Now that I think of my law school experience in India, I would say it was quite fun. But, here it’s more like work hard party hard for the undergrads. So, work like crazy in weekdays, and take it off in the weekend.

Teaching wise, I think if I go to my class without doing my readings, which is often 50-100 pages per class, and for each subject, we have classes once or twice a week,  I wouldn’t understand a thing. So, most of the professors follow that why don’t you start by discussing what problems you faced, and if no one says anything-which can happen, so they ask someone to introduce a topic.

This is done to engage the students. Then we have class participation, and that is not five marks, but 33 per cent of the entire 100 marks. So that is why people here are more actively involved in discussions. But there is no set pattern that is followed.

Also, some professors employ active learning, which is a process of engaging students in different ways other than just lecturing them. So, there are good and bad parts of both. So for a class, say there is no lecture, and if you begin and ask some students to start discussing, sometimes, people find it really difficult to understand the readings, but a little introduction helps.

I feel that there should be a mixture of both lecture and active learning methods. I find it very difficult to listen to something for more than 30-40 minutes. Breaking the pattern after sometimes through the introduction of games is a good idea. Teaching with another person can also be interesting. It means more effort, but it can be really interesting and help increase the focus span.

Ques 10:  Ma’am, if I stick to NLUs in India for this question, there are problems wherein students aren’t as engaged in the classrooms concerning their course work. A lot of students in law school are active in diverse areas like mooting, writing research papers, doing ADR competitions but do not pay ample attention in class vis-à-vis their course material. Could you comment on whether that is something we’re doing wrong in national universities?

I don’t think it’s necessarily a bad thing because even while you’re mooting, you’re learning about a subject and that is the aim. However, this pattern of learning works for some people and doesn’t work for some. At that age, we’re too young to realise whether it is working for us or not.

Of course, we have groups of friends, and we end up doing the same things, but what might work for one person might not work for the other. But I personally learnt a lot while I mooted. That’s how I developed my interest in International law in general. However, that being said, I also learnt so much from my professors.

A good thing done here in foreign universities is that they incorporate such activities into their legal course structure – like here, mooting is a subject. I know for a fact that national law universities provide concessions and extensions for mooters, however, here, if you’re participating in a national or international moot, you can take one less law subject in your curriculum.

Therefore, mooting is equivalent to a subject. However, it will be difficult for the Moot Court Societies and college administrations in India to enforce this because there are various types of moots; bigger and smaller. They can apply this system here because the law society hardly participates in four or five moots.

Ques 11: Ma’am, for a law student, as an individual, what changes do you suggest one can bring about in their schedule or in the way they approach a particular subject to have a better understanding of the subject or just to stay interested in the subject?

I think the interest comes when you understand why that subject is important; what is the impact of the subject, how can it be applied and how does it benefit people. When you can understand that this is the subject, this is what it can do, and that aligns with your personal goals, that is when you generate interest in it.

Of course, there are other factors involved like the book you’re reading or the faculty that is teaching the subject. Many people say, and I shall repeat it that the motive behind studying must not be exams or marks. But all said and done, I think it’s most important to go to the basics and understand why something works the way it does, and we’re taught the same to some extent in law schools; however, we just fail to pay attention to it.

What I mean by this is that we misinterpret it sometimes. You must realise why you are reading Contracts, why you are reading International law and what is its utility. If you have questions regarding the very reasoning of the laws, those are valid questions. As a second or third-year law student, one might think that they’re stupid to have such questions, but it’s the contrary, they’re ahead of their classmates.

Ques 12: Ma’am, since you were talking about different culture of approaching exams or various courses in McGill’s, is there a different culture to approaching other activities like ADR as well? I know that there is a culture of writing research papers in every law school but concerning ADR or other such events which law students usually take up in NLUs in India, how do the students there approach such activities?

I think how we do it in India is great. There is this legal education paper I wrote comparing Indian and Canadian law schools, and through it, I found that the underlying problems everywhere are the same.

No-one knows what to teach; where to draw the balance between practical and theory, which has been a problem faced by law and policy makers since the inception of legal education. There’s no correct answer. But it’s interesting to know that India does such great stuff in clinical legal education.

I think the problem is not the policy, but the implementation. I think the problem with implementation is, though I don’t know if I want to quote it like this, that we as law students are dealing more with quantity than quality. So, the whole idea is to convert the internships and work into jobs, which is definitely essential but it ends up becoming our goal, and we tend to add more internships so that our CV looks better.

Regarding the previous question, about why academics is not being taken seriously among other activities. The answer ultimately ties up to one thing – CV building, which is important but perhaps, what is more important is to love what you do and then the CV will eventually build-up. In no way does this mean that I’m asking people to be lazy.

Ques 13: Ma’am I understand what you’re saying regarding finding a passion for a particular subject or for a specific field of law which you enjoy reading and learning about. But we’re taught multiple courses in the five-year curriculum. Even the students abroad will be taught Civil, Criminal and Constitutional law and they really don’t have a choice at that front, so when it comes down to that, what methods worked for you as a law student or as an LLM student when you didn’t like a subject per se, but you still had to do well in it?

I think it goes back to the point that if you understand why something clicks or its practical application, it helps. We used to speak about this a lot in my law school, and I’m sure it’s done in NUJS too.

The problem I think, is that we have a very confusing situation as law students wherein we’ve too much to focus on, and it’s challenging to get the broad picture because either the broad picture is too complex to digest or we’re sometimes not provided with the broad picture in the first place. But what do we do when there’s little clarity about a subject, but we still have to do well in it?

To demonstrate, let’s take a procedural subject like CrPC or CPC, if you are not allowed a bare act, you’ve to remember things and for that, you must re-read the bare act several times. Extensive reading will lead to an understanding of the broader picture.

Personally, I grasp a subject better when I read about it more than I normally would. That being said, I am not implying that one must mug up when it is not necessary. Most of the times, bare acts are allowed in examinations but what I’m essentially getting at is that you need to read it more than once and get an overview of the subject.

Ques 14: Also, ma’am, digressing from this, we were talking about legal research. How does one go about finding what interests them since there is an active culture of writing more research papers and getting publications? At times, legal research gets extremely laborious, and one can get stuck while writing a paper and feel like the content is directionless and can start questioning the very need to write the paper. Questions on the very necessity to write papers haunts law students. Therefore, how can one try to make research an interesting process in itself?

I think the confusion is part of the process. One must remember that the research paper you’re writing is going to stay with you twenty years down the line, if you write a bad research paper and publish it, it will reflect on you. It definitely adds to your CV, but the problem is that people do read research papers, especially in academia.

I remember, during my placement interviews in legal firms, some of them asked for copies of my publications. So you must remember that unlike your moot experience, which even if you don’t do so well in, it doesn’t stay with you, your publication, even if you’re not satisfied with it or it isn’t written as per what you think your standards are, it does stay. Therefore, try and give your hundred percent to your papers.

With time, you will definitely learn more and realise the problems with your previous research papers, and then you can correct those errors in your subsequent papers but work hard on them because they stay with you.

Ques 15: On that point, I would like to share that beyond Barrack Obama becoming the President of the United States and receiving so many other accolades, he is still remembered for being the Editor-in-Chief of Harvard Law Review, and some of his publications are still used in TV interviews and other places where he is quizzed on certain opinions he held in his papers. This is just to give an example of how your research paper will stay with you and why you need to put in your hundred percent while you publish your paper.

Absolutely. It is my opinion that if any of your papers is just a culmination of many other pre-existing works and lacks novelty and if someone reads that one substandard work, they might not want to read any of your other works. Disagreement with your work is, however, plausible. Like lawyers can disagree with other lawyers and that is normal and part of our profession as lawyers. However, one must put in sufficient academic rigour into their research papers.

Ques 16: Ma’am since the quality of the research paper would depend upon how interested one is in the particular subject; how does one find that specific subject that would be interesting to write on and how to make the writing process interesting?

The traditional answer is that you will stumble upon the subject subsequently. However, the traditional solutions don’t always work, and so I think the basic approach should just be to read. That is precisely why I also think pursuing activities like mooting or writing papers are helpful because they let you read beyond your class curriculum. You must read extensively on cases, articles, different laws and, if it interests you, even beyond the legal sphere.

For example, non-fiction; a book like Sapiens by Yuval Noah Harari which is not related to law but I quote a lot in my thesis. And honestly, it’s alright not to find it sometimes. If you continuously push yourself to find something, you may not find it at all. Therefore, the answer is to read, not just to find a topic but to read about what interests you.

Now to talk about how to make research interesting for yourself, as the reader, I think personally, sometimes a book that I might currently not like reading can seem interesting to me next month. For example, B.S. Chimni has written this excellent book on International Legal Theory, and when I read that book two years ago, I found it really difficult and now, it is one of the basic books for my research.

So of course with time, you become a better researcher, a better academician and better adept to understanding things. So, in case you fail at once to research something, try it a little later, don’t push yourself too hard because maybe at that point, you’re not ready for the complexity of the research.

The best thing that I’ve been told time and again is that when you write a research paper, draw the scheme of it; the table of contents. The first thing you must do is try to answer a question and not a topic. Like ‘The Evolution of Parliament in India’ is not a question but a topic. Rather than that, ask a question and then write about why that question needs to be answered. That way, it becomes more interesting for you as well as the reader.

Ques 17: I think we’ve gathered some very useful pointers, ma’am. I feel the kind of mind frame you’re in also matters.  Mental health issues are extremely rampant right now, and even within law schools, there is more awareness now. I had this question that are there any differences you have noticed with respect to the institutional approaches to mental health between India and Canada or even the States?

I know for a fact that in Canada, mental health is taken very seriously; it is not looked at as an excuse to maybe underperform or skip activities. Now about whether it is addressed adequately, I think there is a lot to be done everywhere regarding it.

At least, it is recognised as a problem in Canada whereas I think it is more of a taboo in India. I think there is a lot that needs to be done all around the world on the issue of mental health.

Ques 18: (a) ma’am, what would be some approaches that an institution can take up or we as law students can take up to absolve or eliminate mental health issues in our respective peer groups, our batch or just in general?

At McGill, irrespective of the availability of counsellors and mental health professionals, sometimes a person might just want to talk to a stranger, and that is where peer support groups come into the picture. You can go to the institutional club and talk to a person, in case you want to talk again, you can go the next day and either get a new person to talk to or the previous one depending on if they’re free.

This can’t be implemented physically at NUJS due to the smaller population; however, maybe chats or phone calls that safe keep the anonymity can be implemented. The anonymity is required because perhaps the person suffering is scared of judgement and the problem is, we as humans are inevitably judgmental, and we all end up judging. It’s when you don’t know the person that the judgement sheds a little.

We also have a wellness advisor for every department, and they do short courses on stress management. There was a recent course on self-love where we were explained that anxiety occurs because humans, primitively, have had a fight or flight mechanism. Whenever there is an unlikeable event, humans experience the flight mechanism and that the hormones secreted, lead to anxiety and stress. What the advisor stated was that you shouldn’t be unkind to yourself.

Having said that, I think the issues with mental health in Canada and India are different. I have been a Grad student in India, and I can sense this difference. Both countries have different cultures, and on top of that, in Canada, students have more privacy than in India, where the students live together in hostels and do many group activities.

(b)Ma’am, I think that situation is slowly changing with the victims coming forward to state that they don’t feel like they’re listened to or rather, they feel alone. So, your suggestion on a virtual anonymous platform where a person can speak to someone without the fear of judgement is extremely helpful. Further, with respect to being kind to ourselves, I think that is something we sometimes forget while trying to achieve excellence or do things perfectly.

Yes, it is difficult to implement such a system, but also necessary. With regards to being unkind to ourselves, the advisor also said that when you have a bad thought, and it seems justifiable, just stop that thought and think about whether you would be so unkind to another person if they had committed the same mistake you did. You will realise that the answer is generally in the negative.

Ques 19: What I gather from what you’ve said is that loving and being kind to yourself also helps you in doing better in the field that you’re working in?

I think there is a good part about stress and anxiety too. It definitely keeps you on your toes, but the only problem is, it can become too much to handle. I think you must love yourself without becoming complacent. There must be a balance of sorts which is definitely hard to achieve.

For example, if you see a first-year student doing something completely wrong with either research methodology or any other activity expected of him or her, what you would do is explain to them and let them know it doesn’t make sense, but would you be unkind to them because of the error they commit? I don’t think so.

So, just like that, be reasonable to yourself and give yourself another chance and treat yourself the way you would treat others. Having said that, with the onset of COVID, multiple people are facing anxiety, including us, and so it has also to do with the unprecedented times we’re living in.

Ques 19: Ma’am, we’ve taken up a lot of your time, and just before wrapping up, we would like to ask you a final question. What advice would you give your twenty-one-year-old self now that you have crossed so many hurdles and experienced so much? It would help law students in general.

I would say that I would do things not for the goal of entering the rat race and doing well but because it suits me and what I like. I think that is what I would tell myself. At that age, we are prone to doing things that others around us do.

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