Question under consideration
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/
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