Saturday, August 19, 2023
Sunday, July 23, 2023
Saturday, March 25, 2023
The Conviction and Sentencing of Opposition Politician Rahul Gandhi for the Offence of Criminal Defamation
The Surat Court Judgment convicting opposition politician Rahul Gandhi for criminal defamation for remarks which can by no stretch of imagination be called criminal defamation of the complainant in the case, and sentencing him for the maximum period of two years imprisonment resulting in his automatic and immediate disqualification from the Indian Parliament is the most recent high profile example of how Indian Courts and law enforcement agencies like the Police are being misused to attack our guaranteed fundamental right of freedom of speech in India.
The judgment can be read at https://www.livelaw.in/pdf_upload/gjsr02020313201912023-03-23-464960.pdf
This judgment is in Gujarati. So one must wait for a translation into English to engage with it.
A preliminary point:
Rahul Gandhi does not speak Gujarati. Were the Court Proceedings carried out in Gujarati? Should a man be convicted by a Judgment in a language he does not understand. The Magistrate speaks English, The Judgment contains quotes in English from judicial precedents, Why should the Judgment not have been written in English then?
Thursday, March 23, 2023
How Indian Courts and law enforcement agencies like the Police are being misused to attack our guaranteed fundamental right of freedom of speech in India
The Judicial system in India right from the district courts to the constitutional High Courts and the Supreme Court has failed to protect the guaranteed fundamental right to freedom of speech of Indian citizens.
The Courts and the Police are being used to imprison people for speaking and expressing views that ought not to be prohibited. This has become rampant.
The Surat Court Judgment convicting opposition politician Rahul Gandhi for criminal defamation for remarks which can by no stretch of imagination be called criminal defamation of the complainant in the case, and sentencing him for the maximum period of two years imprisonment resulting in his automatic and immediate disqualification from the Indian Parliament is the most recent high profile example of this growing trend. The judgment can be read at https://www.livelaw.in/pdf_upload/gjsr02020313201912023-03-23-464960.pdf
Monday, March 20, 2023
The Contempt of Court conviction of former DSP Balwinder Singh Sekhon
Sunday, March 19, 2023
Commentary on Delhi High Court Judgment dated 16 March 2023 in Parnita Kapoor versus Arvind Malik under the Contempt of Courts Act
Should a man be convicted for contempt of court and sent to prison for six months for failing to pay money in compliance with a Court order?
In a Judgment dated 16 March 2023, Justice Mamneet Pritam Singh Arora of the High Court of Delhi has sent a lawyer to prison for six months for failing to comply with Court directions to pay rent arrears in a tenancy dispute.
Read the Judgment at https://images.assettype.com/barandbench/2023-03/a9f127b5-f312-46c7-831f-63969b22b591/Parnita_Kapoor_v_Arvind_Malik.pdf
Even though it appears that the lawyer had defaulted in complying with Court directions to pay rent arrears, the larger question arises as to whether a party should be sentenced to prison for six months under the Contempt of Courts Act for failing to pay moneys owed. What purpose will such an order of imprisonment serve in securing the payments due? Should a man be imprisoned for such default or would the better course have been to take steps for recovery of the moneys due under Civil Law including as arrears of land revenue.
Other concerns that the Judgment gives rise to -
In sending the Party to Prison for six months, the Court has ignored the mandate if Section 12(3) of the Contempt of Courts Act which states: "Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.". The Law itself provides that a sentence of imprisonment for a civil contempt is extraordinary and requires special reasons, and even then the detention must be in a civil prison.
The Judgment orders the immediate imprisonment of the lawyer without providing an opportunity to appeal the ruling before the lawyer is taken into custody. Normally and properly, such judgments should state that the sentence will stand suspended for a period of three months to enable a statutory appeal under the Contempt of Courts Act. A statutory appeal is an appeal by right. Every Court order can in theory be legally flawed hence the right of appeal is a valuable and indispensable right. The judgment ignores this right of appeal. Further once incarcerated, the lawyer will certainly not be able to exercise his remedies including his right of appeal as effectively as he would be able to do otherwise.
The Judgment fails to adequately record the defence if any of the Party. There is some passing reference to the Party's claim of financial inability to pay and to the Party's position that the orders determining the amounts due were wrong and that the amounts determined as due are incorrect, and that the Party was not adequately represented by Counsel when these orders were passed. The Judgment adopts a technical position that the previous orders were not appealed against. But in my view, before sending a man to prison for six months, the Court ought to have considered these defences in detail and should have attempted to arrive at the truth of these defences.
In the Judgment, the Court also refers to a statement in an earlier order that the lawyer was carrying on the business of paying guest accommodation in the rented premises in contravention of the prohibition in the Advocates Act. The Judgment directs the Bar Council to take action against the lawyer and to file a report within four weeks on the action initiated, Once again, this direction in the judgment coupled with the immediate imprisonment of the Party causes grave prejudice because it directs punitive action against the Party, while simultaneously preventing the Party from availing his legal remedies by directing his immediate imprisonment. The overall impression one should get from a Court Judgment is one of justice and fair play. And this Judgment fails to convey that and instead leaves one with a sense of unease.
One glaring fact that stands out and which the Court makes no mention of is that the main story played out during the Covid pandemic and lockdowns. The Covid lockdowns obviously affected the Paying Guest business and the ability of the Party to pay rent. Yet the Court does not take this into consideration.
In paragraph 24 the Court sets out its reasoning for sentencing the Party to imprisonment for six months. It states "This Court is of the opinion that if the Respondent is not met with the consequences of the wilful default and breach on the orders and undertakings given to this Court, it will embolden him to similarly abuse the process of law in future and victimize fellow citizens on the belief that the sanctity of orders passed by the Court need not be protected and honored. This is a fit case where any leniency shown by the Court will be misunderstood as weakness."
With great respect, the reasoning of the Court in paragraph 24 is flawed. The Court simply assumes that the Party will abuse and victimise others in the future and states that the Court cannot be considered as weak. Once again, the Court fails to determine the real reasons for failure to pay and also fails to appreciate that the objective is not to punish the Party or to assert the strength of the Court but to arrive at a fair and just decision and to use the law to facilitate the payment of dues to the extent possible.
Paragraph 29 of the Judgment reads as follows:
"It is further directed that if in future, the Respondent herein similarly fails to comply with orders of the Court in any legal proceedings where he is a party, the record of the present contempt petition shall be read in evidence and the subsequent conduct will be considered as an aggravated contempt of the Court within the meaning of Section 2(c) of the Contempt of Courts Act, 1971. It is directed that the Respondent herein will be under an obligation to disclose this order to the Court in which any subsequent contempt proceedings is filed against him."
Sunday, February 26, 2023
Delhi & District Cricket Association (DDCA) plagued by Conflict of Interest of its Office Bearers
Lawyer Maninder Singh, one of the Government nominees on the DDCA Management Committee disqualified by conflict of interest, yet appointed.
How did Senior Advocate Maninder Singh, who is closest to Jaitley & family become a Government of India nominee on the DDCA Apex Council. Clear conflict of interest. A Government nominee should be independent, Maninder Singh, Arun Jaitley's former junior is like family to Rohan Jaitley, the DDCA President. Sports Minister Anurag Thakur must answer.
How did retired Supreme Court of India Judge Ms. Indu Malhotra get appointed as ombudsperson of DDCA when she is very close to the late Arun Jaitley's family. Apparently Rohan Jaitley the DDCA President calls Ms. Indu Malhotra 'Bua' (Father's Sister) or Aunt. Once again this is a case of clear conflict of interest.
Saturday, February 18, 2023
Making the Supreme Court of India accessible to litigants appearing in person
The low stature of litigants in person who appear before the Supreme Court of India & how should the Court treat them. Should the Supreme Court allow a litigant who is appearing in person to speak in Hindi if he so requests
- Seema Sapra
I was sitting in Justice Aravind Kumar's Court in the Supreme Court of India on 17 February 2023 while he was hearing Chamber Matters sitting singly.
A man appeared before him as a litigant in person with a case listed. He was accompanied, as is now the norm for litigants appearing in person, by a Policeman.
The litigant politely requested the Court if he could address it in Hindi. Justice Aravind Kumar's response was in my opinion unjust. The Judge said and I paraphrase - I will understand you if you speak in Hindi but the language of the Supreme Court is English. The litigant replied that he had on earlier occasions been permitted to address the Court in Hindi by a different Judge. I was hoping that the Judge would go on to show some sympathy to the aggrieved litigant and hear him in Hindi. The Judge did not even bother to decline the litigant's request for being heard in Hindi. The Judge made no attempt to solve the problem being faced by the litigant on account of his language impediment. The Judge did not even look at why the matter was listed and if any order could have been passed that day. Instead Justice Aravind Kumar simply directed the matter to be adjourned for 4 weeks and laughed as he did so. Meanwhile the confused and intimidated litigant profusely thanked the Judge and was led away by the Police.
The man did not get justice that day. He did not even get a hearing. His case got further delayed by 4 weeks or more. And most unfortunate of all, the ordinary citizen standing before the Supreme Court that day seeking justice did not even get respect.
The Supreme Court allows litigants to address the Court in person. It must then also provide an effective opportunity for a hearing to these litigants appearing in person. The Judge ought to have shown more compassion and should have taken some trouble to help this litigant. The Judge could easily have heard him in Hindi. However high a Judge might sit, he is a public servant employed to provide justice and to do so with compassion, sympathy and respect for the citizen standing before the Court. The real test of a Judge is how he treats poor, ordinary litigants in person, persons with the lowest stature in the Supreme Court.
Several questions need to be asked. Should the Supreme Court not allow a litigant appearing in person to address the Court in Hindi, especially if the Judges on the Bench can speak Hindi? What other steps can the Supreme Court take to facilitate a hearing for a litigant appearing in person and facing difficulties whether on account of language or otherwise.? What effect does it have on a litigant appearing in person before the Supreme Court to be effectively in Police custody for the hearing, from the time of his/her entering the high security zone of the Supreme Court and until he/she exits that zone? Can any security concerns not be addressed in a less intrusive and less disrespectful way. Would a court official accompanying such litigant inside the high security zone of the Supreme Court not be a better way to address any security concerns instead of subjecting all litigants in person to what is nothing but police custody. Litigants who enter the high security zone and court rooms of the Supreme Court and who are represented by lawyers are not similarly escorted by the Police at all times.
The Supreme Court speaking through its Chief Justices and its Judges claims to want to make the Court more accessible. Thus the Supreme Court is institutionally working toward making the Court more accessible to the People by the use of technology, the provision of facilities like virtual hearings as part of a hybrid system, the creation of off-site virtual hearing centres, online public databases of judgments, providing translations of its judgments into Indian languages other than English, live streaming of Court proceedings, and even the constitution of a Committee to conduct a disabled accessibility audit of the Supreme Court premises, among other measures. A Supreme Court that values accessibility should therefore always remain open and welcoming to litigants appearing in person. Unfortunately however, the Supreme Court of India is increasingly becoming a fortress with very controlled access and the hardest hit are litigants who choose to file and argue their cases on their own without using lawyers.
Saturday, February 11, 2023
The Indian "Collegium" system of Judges appointing Judges created by the Supreme Court of India by the device of a 'Constitutional interpretation' not only harms judicial independence but also promotes judicial corruption
- Seema Sapra
The ongoing debate about how Judges should be selected in India must start by asking how has the Indian Judiciary performed in the last three decades, i.e., during the period that the Collegium system of Judges appointing Judges has prevailed. It must ask if the Collegium system has selected good Judges. It must question what ails the Indian Judiciary, and why are Indian citizens, the consumers of the justice delivery system so unsatisfied with it.
The ongoing debate about the Collegium system must also start with an objective description and critical analysis grounded in facts and data of how the Collegium system has actually worked rather than simply mouthing doctrines like separation of powers, judicial independence, and basic structure in defence of the Collegium system. How far do these doctrines justify the Collegium system? Has the Collegium system actually resulted in greater judicial independence? How has it affected the governance principle of separation of powers under the Constitution of India? And how has the Collegium system contributed to the preservation of the basic structure of the Constitution of India. Or does the Collegium system damage the basic structure of the Constitution of India. Has the Collegium system resulted in harm to the independence and accountability of the Judiciary. Has the Collegium system resulted in Judges grabbing the power and authority which must properly lie elsewhere, thereby violating the constitutional principle of separation of powers.
Far from protecting judicial independence, the Supreme Court created Collegium system of Judges appointing Judges in fact has made the High Courts and High Court Judges subservient to the Supreme Court and has harmed judicial independence. This point was also recently made by a retired Judge of the Delhi High Court, Justice Sodhi.
The Collegium system of Judges appointing Judges has also made the legal Bar or the lawyer community subservient to Judges or the Bench, thereby again harming Judicial independence as a strong Bar is essential to hold Judges accountable. The Collegium system of Judges appointing Judges has emasculated the lawyer community or the legal Bar, at least in the Supreme Court and the Delhi High Court.
Under the Collegium system of Judges appointing Judges, Chief Justices of the High Courts & the Supreme Court often appoint lower judicial officers as Court Registry Officers & subsequently promote them as High Court Judges. The lower judiciary officer picked up to be say the Registrar General of a High Court, is beholden to the Chief Justice of the High Court, reports to him, is amenable to pressure, & eager to please the Judges and especially the Collegium Judges in hopes of an offer of a High Court Judgeship. The Court Registrar's Office gets calls from High Court Judges not just for official work but also for personal work and requests. Such a situation is very unhealthy and creates the possibility of abuse. Such Registry officials can be influenced to act unethically or for extraneous reasons. Such Court Registrars hoping to please Judges who could recommend them for Judgeship are not able to perform their duties professionally and without undue influence. In this manner, the Collegium system of Judges appointing Judges also harms the independence of Court Registries and of Registry Officials.
The Collegium system of Judges appointing Judges has resulted in widespread nepotism in Judicial appointments, where across generations, close relatives of Judges get appointed as Judges overlooking several much more suitable and qualified candidates who are not even being considered. None of the prominent lawyers, ex-Judges, politicians who have spoken up in support of the Collegium system have addressed the elephant in the room- the charge of nepotism in judicial appointments where far too many children & relatives of former Judges are selected to be Judges. Nepotism in judicial appointments by the Collegium is nothing but a form of judicial corruption, which must be called out to save our justice delivery systems.
Under the Collegium system of Judges appointing Judges, basic rules like conflict of interest are being flouted. Judge B who was appointed as Judge by Judge A, goes on to appoint Judge A's son C as a Judge. Such actions are in clear violation of the conflict of interest rule.
The Collegium system of Judges appointing Judges flouts basic rules like conflict of interest. Judge X appoints Y as Judge, knowing fully well that children & close relatives of Judge X will appear as lawyers before Judge Y. This violates the conflict of interest rule.
The Collegium system of Judges appointing Judges is directly responsible for a large increase in judicial corruption.
Some Questions, Propositions, and Problems
The functioning of the Collegium, its decision-making process is completely opaque and non-transparent. It is a black box which suddenly comes up with a name for appointment as a High Court or a Supreme Court Judge and expects that its decision must be respected and obeyed by the Government and by everyone else. The only output that the Collegium makes available is a resolution stating that a person be appointed as a Judge.
There are no written rules setting out how the Collegium functions, or the criteria used to shortlist candidates or select Judges, or the procedure followed by the Collegium to consider, scrutinise and assess a person as a candidate for a Judgeship. .
The Collegium claims to keep no minutes of its meetings, no written record of its functioning or of its deliberations and keeps no written record of reasons for selection or rejection of a name to be appointed as a Judge.
The Collegium claims that its records are not covered by the Right to Information Act, are not public, and can not be shared with anyone.
The Collegium system of Judges appointing Judges is not subject to judicial review. The closed, secret, opaque, untransparent system of the Collegium appointing Judges is unaccountable. There is no mechanism for review of or appeal from a Collegium resolution by a body external to the Collegium. According to the Supreme Court, the decision of its Collegium of Judges to appoint a Supreme Court or a High Court Judge is final and binding even on the Government of India.
The present Chief Justice of India Mr D Y Chandrachud joined the Supreme Court Collegium on 24 April 2021 and will remain with it till 10 November 2024. This is a very long and influential Collegium tenure of over 3.5 years. During his tenure with the Collegium, Justice D Y Chandrachud will have been responsible (albeit with other Collegium Judges) for selecting almost a complete Full Bench of Supreme Court Judges, for selecting hundreds of High court Judges across the country, for selecting all Chief Justices of all High Courts, and for scores of transfers of High Court Judges. This long Collegium tenure makes him possibly the most powerful Supreme Court Judge ever. The question to be asked is this - is such concentration of power in a single individual desirable or healthy? That Justice D Y Chandrachud would hold and exercise this immense power was publicly known since 13 May 2016, the date on which he was appointed as a Judge of the Supreme Court of India. It was especially known even prior to that date to the persons and authorities who appointed him to the Supreme Court in May 2016. What are the implications of this and what conclusions can be drawn.
A Bench of Supreme Court Justices Sanjay Kishan Kaul and Abhay Oka are hearing a Contempt Petition filed by a lawyer association against Law Ministry Officials for the alleged failure/ delay on the part of the Government of India to appoint Judges recommended by the Supreme Court Collegium. Justice Sanjay Kishan Kaul is part of the Collegium and Justice Oka will be part of the Collegium in the future. Should these two Judges be hearing this matter therefore. Are they not acting as Judges in their own cause. Is there not a conflict of interest in them hearing this case. This case also creates a unique Constitutional or Unconstitutional moment where the Supreme Court has threatened the Government of India with "unpalatable consequences" in its contempt jurisdiction for the latter's failure to appoint those persons as Judges who the Supreme Court Collegium (comprised of Judges) has selected.
The Collegium has informally created two classes of Judges in each High Court and in the Supreme Court - those Judges who are or will be members of the respective Collegiums and those Judges who will never be part of the Collegium.
The appointment of Justice Victoria Gowri
The recommendation of Justice Victoria Gowri as a Judge of the Madras High Court by the Supreme Court Collegium on 17 January 2023; the subsequent publicity of her problematic previously expressed views on Islam, Christianity, conversions, and on "Love Jihad"; the representations made to the Collegium against her proposed appointment; the filing of two Writ Petitions in the Supreme Court challenging the Collegium Resolution recommending Gowri as a Judge; her appointment as Judge by the Government of India on 6 February 2023 following the Collegium recommendation; the listing of these writ petitions for hearing by Chief Justice Chandrachud on 7 February 2023, the notification by the Madras High Court for the swearing in of Justice Gowri on 7 February 2023; the attempts to get the writ petitions heard before the swearing in; the ultimate hearing of these writ petitions after 10.30 am on 7 February 2023; the swearing in of Justice Gowri in the Madras High Court while these petitions were being heard in the Supreme Court; and the ultimate dismissal of these writ petitions by a Supreme Court Bench of Justice Sanjiv Khanna and Justice Gavai with detailed reasons to follow not only constituted high drama bordering on farce but also in the span of a few days exposed much that is wrong with the judicially created Collegium system of Judges appointing Judges.
First we must assume that the Collegium Judges did their research on Ms Victoria Gowri and knew of her publicly expressed views and also knew that Ms Gowri was a member of Prime Minister Modi's political party, the BJP, and was an office bearer of the BJP. We must assume this because the Collegium Judges and all votaries of the Collegium have maintained that they conduct a very thorough scrutiny of a candidate before recommending her for Judgeship. The Collegium Judges have also maintained that they do their own independent scrutiny of a candidate and the reports from the Government and Intelligence Bureau are supplemental and supportive. We must assume that the Collegium Judges knew these facts about Ms Gowri, because these were facts ascertainable by a simple Google search, by a simple scrutiny of her social media posts, and it is inconceivable that the Collegium does not even engage in this level of basic scrutiny of a potential candidate for the position of a High Court Judge.
If the Collegium claims to be unaware of these facts about Ms Gowri, then this itself exposes a major flaw in the working of the Collegium. The process adopted by the Collegium for scrutinising candidates is therefore flawed. Such a basic flaw in the process adopted for appointing High Court and Supreme Court Judges by a five member group comprised of the 5 senior most Judges in the country (the Collegium), shows that unless these five senior most Judges lack basic common sense, the factors that play a role in the Collegium's selection of Judges are arbitrary, extraneous, and that the decision making process is itself arbitrary and incorrect. Can the Collegium be trusted to select any other person as a Judge if its scrutiny process failed to unearth these basic facts about Ms Gowri.
Or should we assume that the Collegium was aware of these facts about Ms Gowri but reached the conclusion that these revelations about Ms Gowri did not disqualify her to be a Judge on the ground of unsuitability. The Supreme Court's response came in the statement of future Chief Justice of India Mr Gavai made during the hearing - "You have to trust the system".
Tuesday, February 7, 2023
What the appointment of Justice Victoria Gowri tells us about the judicially created Collegium system of Judges appointing Judges
- Seema Sapra
The recommendation of Justice Victoria Gowri as a Judge of the Madras High Court by the Supreme Court Collegium on 17 January 2023; the subsequent publicity of her problematic previously expressed views on Islam, Christianity, conversions, and on "Love Jihad"; the representations made to the Collegium against her proposed appointment; the filing of two Writ Petitions in the Supreme Court challenging the Collegium Resolution recommending Gowri as a Judge; her appointment as Judge by the Government of India on 6 February 2023 following the Collegium recommendation; the listing of these writ petitions for hearing by Chief Justice Chandrachud on 7 February 2023, the notification by the Madras High Court for the swearing in of Justice Gowri on 7 February 2023; the attempts to get the writ petitions heard before the swearing in; the ultimate hearing of these writ petitions after 10.30 am on 7 February 2023; the swearing in of Justice Gowri in the Madras High Court while these petitions were being heard in the Supreme Court; and the ultimate dismissal of these writ petitions by a Supreme Court Bench of Justice Sanjiv Khanna and Justice Gavai with detailed reasons to follow not only constituted high drama bordering on farce but also in the span of a few days exposed much that is wrong with the judicially created Collegium system of Judges appointing Judges.
First we must assume that the Collegium Judges did their research on Ms Victoria Gowri and knew of her publicly expressed views and also knew that Ms Gowri was a member of Prime Minister Modi's political party, the BJP, and was an office bearer of the BJP. We must assume this because the Collegium Judges and all votaries of the Collegium have maintained that they conduct a very thorough scrutiny of a candidate before recommending her for Judgeship. The Collegium Judges have also maintained that they do their own independent scrutiny of a candidate and the reports from the Government and Intelligence Bureau are supplemental and supportive. We must assume that the Collegium Judges knew these facts about Ms Gowri, because these were facts ascertainable by a simple Google search, by a simple scrutiny of her social media posts, and it is inconceivable that the Collegium does not even engage in this level of basic scrutiny of a potential candidate for the position of a High Court Judge.
If the Collegium claims to be unaware of these facts about Ms Gowri, then this itself exposes a major flaw in the working of the Collegium. The process adopted by the Collegium for scrutinising candidates is therefore flawed. Such a basic flaw in the process adopted for appointing High Court and Supreme Court Judges by a five member group comprised of the 5 senior most Judges in the country (the Collegium), shows that unless these five senior most Judges lack basic common sense, the factors that play a role in the Collegium's selection of Judges are arbitrary, extraneous, and that the decision making process is itself arbitrary and incorrect. Can the Collegium be trusted to select any other person as a Judge if its scrutiny process failed to unearth these basic facts about Ms Gowri.
Or should we assume that the Collegium was aware of these facts about Ms Gowri but reached the conclusion that these revelations about Ms Gowri did not disqualify her to be a Judge on the ground of unsuitability.
The Supreme Court's response came in the statement of future Chief Justice of India Mr Gavai made during the hearing - "You have to trust the system".
Sunday, January 15, 2023
The Demonetisation judgment of the Supreme Court of India - preliminary observations and questions
Why did the Court reframe the questions of law and fact before it.
Did the lawyers who appeared in 2022 concede on very crucial questions of law. Why?
The same happened in the Aadhar case, when the crucial issue of right to identity and the likelihood of identity theft was not argued by the lawyers who focused on the right to privacy.
Why did Chidambaram argue that Section 26(2) of the RBI Act had to be read down instead of arguing that the demonetisation notification was ultra vires this provision. Shyam Divan's arguments were completely off the mark.
Are the written pleadings and submissions in the case available?
Did the lawyers throw this case? Like they threw the Aadhar case.
I found https://srajagopalan.substack.com/p/supreme-court-of-india-on-demonetization a very interesting read. Its titled Supreme Court of India on Demonetization - A Farce in Three Acts
Also is “Every noble cause claims its martyr” an original Supreme Court quotation?
Here is the link to my 2016 post on Demonetisation
https://seemasapralaw.blogspot.com/2016/11/why-narendra-modis-demonetization-law.html
Thursday, January 12, 2023
Why the Delhi High Court Bar Association erred in passing a resolution against a lawyer who was issued court notice for criminal contempt for his alleged misbehaviour before a Delhi High Court Judge
On 14 December 2022, a lawyer named Shakti Chand Rana allegedly misbehaved in Court before a Delhi High Court Judge who passed an order stating that Rana's conduct prima facie amounted to criminal contempt under Section 14 of the Contempt of Court Act, and requesting the Chief Justice to take cognizance of such contempt.
Pursuant to this order, a Division Bench of the Delhi High Court heard the suo moto contempt case against this lawyer on 19 December and issued notice to him to show cause as to why contempt proceedings be not initiated against him.
All this is fine, as the process of law has been set in motion, and and that process ought to proceed with all constitutional safeguards.
However, on 16 December, the Executive Committee of the Delhi High Court Bar Association (DHCBA) issued a resolution noting with "grave concern" that the lawyer "apparently misbehaved and created nuisance and disruption of court proceedings" and strongly condemned this behaviour and reiterated that "such conduct is unacceptable and against the dignity of this Bar."
The DHCBA resolution then went on to state that:
"It is further resolved that said lawyer should be dealt with a heavy hand and stern action be taken against him, which should be a reminder to all to never belittle the majesty of law or act in an indiscipline or disrespect manner."
Unpopular Opinion
The Executive Committee of the DHCBA ought not to have issued this resolution. It was unnecessary as the legal process to address the incident was already in motion and the law will and ought to take its own course.
The resolution improperly condemns the lawyer without a hearing, creates a factual narrative without a hearing, and exhorts the Bench to deal with the lawyer with a heavy hand and sternness, all of which violate the constitutional rights of the alleged contemnor, including the right to be treated as innocent until proven guilty, the right to natural justice, and the right to a free and fair trial.
The Executive Committee of the DHCBA would have done well to not issue such a resolution and to let the law take its own course.
The Executive Committee of the DHCBA is an elected body to represent lawyers. It is expected to observe the rule of law and to facilitate it. It is expected to establish a balanced relationship between the Bench and the Bar to promote the objective of Justice.
In this case the Executive Committee of the DHCBA could be viewed as pandering to the Court and as trampling upon the rights of the alleged contemnor in the process. It was all unnecessary and best avoided.
And finally in wanting to make an example of the lawyer so that his fate "should be a reminder to all to never belittle the majesty of law or act in an indiscipline or disrespect manner", the Executive Committee of the DHCBA erred in assuming that the severity of the punishment for criminal contempt should be influenced by it acting as a deterrent to others. That is not the case.
The lawyer must be allowed to defend himself.
See news reports at https://www.hindustantimes.com/cities/delhi-news/delhi-hc-contempt-notice-to-lawyer-who-disrupted-proceedings-for-45-mins-101671518356626.html
Was it improper for Chief Justice of India D Y Chandrachud to accept an Award for Global Leadership from the Harvard Law School Center on the Legal Profession
On 11th January 2023, the Harvard Law School Center on the Legal Profession presented Chief Justice DY Chandrachud with the Award for Global Leadership.
An unpopular opinion
Chief Justice D Y Chandrachud should have refused to accept the award. Such awards can be viewed as interfering with the independence of the Judiciary. A sitting Judge should never accept any award whether from the Government or from a private entity. Why should the Chief Justice of India accept an award from a foreign entity? Why would Harvard Law School confer the award at this time when Justice Chandrachud has assumed the Office of the Chief Justice of India, and with almost two years to go before he retires? The Office of the Chief Justice of India does not exist to provide "Global Leadership". A US Supreme Court Judge would never accept such an award.
The Government of India through the President's Office should have advised Chief Justice D Y Chandrachud to not accept the award.
In 2018, then Acting Chief Justice of Delhi High Court, Justice Gita Mittal was awarded the "Nari Shakti Puraskar" by the Government of India through the Ministry of Women and Child Development. Justice Gita Mittal was criticized by several lawyers for accepting this award as it was seen as potentially interfering with her independence as a Judge. Gita Mittal was the first sitting Judge in India to receive an award from the Government of India. See https://www.newindianexpress.com/nation/2018/mar/09/experts-slam-nari-shakti-puraskar-award-for-delhi-high-court-judge-gita-mittal-1784270.html
The Government of India having awarded Justice Gita Mittal as a sitting Judge created a bad precedent which perhaps has led to its silence on Chief Justice Chandrachud in accepting an award from Harvard University.
Another Judge who has accepted an 'Honor' from a private entity and that too a foreign entity is Justice Pratibha Singh of the Delhi High Court. Justice Pratibha Singh was elected to and accepted an honorary fellowship of Hughes Hall College of Cambridge University in 2022. Such an affiliation by a sitting Judge might again be viewed as improper with the potential to affect her independence as a Judge. See https://www.hughes.cam.ac.uk/about/news/hughes-hall-announces-new-honorary-fellows/