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/
Wednesday, February 23, 2022
Why does Chief Justice of India N V Ramana not want to open the Supreme Court of India?
Saturday, February 19, 2022
Issue No. 2 of Delivering Justice - a newsletter with critical commentary by lawyer Seema Sapra
Issue No. 1 of Delivering Justice - a newsletter with critical commentary by lawyer Seema Sapra
Sunday, April 21, 2019
Should Chief Justice of India Ranjan Gogoi step down from the Constitutional Post? #MeToo
Whatever be the truth here, 'something' was brewing for the past several months and what is damning given present information is how J. Ranjan Gogoi and the Supreme Court Registry acting under him dealt with the situation. There was an attempt to cover up. The circumstances in which the woman was dismissed from service in an inquiry conducted without her when she had actually physically collapsed in the Supreme Court show this. A number of persons including Supreme Court Registrars, SHOs, the Police Commissioner, DCPs etc have been mentioned in the woman's complaint and they need to be questioned as witnesses.
How can J. Ranjan Gogoi continue as CJI in these crcumstances? What moral authority will he be seen to have? How will he continue to hear cases and pass administrative orders?
An investigation is needed and this investigation will take time.
J. Ranjan Gogoi should consider stepping down as CJI or proceeding on a leave of absence until this is resolved one way or the other.
The constitution of a Bench to hear the issue of an "alleged threat to the judiciary" stemming from this complaint in which J. Ranjan Gogoi included himself and his statements from that Bench vilifying and smearing his accuser in her absence, followed by the falsification of the court order of 20 April 2019 omitting his name from the Record of Proceedings further compound the completely wrong, unlawful and unjust manner in which CJI Ranjan Gogoi and the Supreme Court under him have handled this complaint.
If the Supreme Court had handled this whole situation differently right at the beginning and even after the complaint went public, the present impasse could have been avoided.
But CJI Ranjan Gogoi is himself responsible for creating the present situation and has painted himself into a corner.
What can he do now except offer to step down. Anything else and any further attempt to use the Supreme Court to silence the woman, to gag the media, and to avoid a proper investigation into the complaint of molestation and subsequent victimization will only bring the Supreme Court of India and the office of the Chief Justice of India into further disrepute.
Wednesday, March 13, 2019
A Comment on the Supreme Court judgment holding lawyer Mathews Nedumpara guilty of contempt of court
Two Supreme Court of India Judges, Judge Rohintan Nariman and Judge Vineet Saran have by a decision dated 12 March 2019 found lawyer Mathews Nedumpara to be guilty of contempt of court. The judgment can be read at https://www.livelaw.in/pdf_upload/pdf_upload-359059.pdf
The decision not to issue notice to Nedumpara and not to hear him and not to transfer the contempt issue to a Bench not comprising of Justice Rohinton Nariman is also of concern. These decisions could only have been taken if an immediate order and conviction for contempt was required during the hearing on 5 March. That was not the case. In fact the very decision of the Supreme Court in Sukhdev Singh Sodhi (1954) cited in the judgment cautions the court against these very kinds of decisions and urges the Bench to act with " dispassionate dignity and decorum which befits their high office” and to ensure compliance with natural justice so that "justice must not only be done but must be seen to be done by all concerned and most particularly by an accused person who should always be given, as far as that is humanly possible, a feeling of confidence that he will receive a fair, just and impartial trial by Judges who have no personal interest or concern in his case.”
This
is not the first time that this particular advocate has attempted to browbeat
and insult Judges of this Court. In point of fact, the style of this
particular advocate is to go on arguing, quoting Latin maxims, and when he
finds that the Court is not with him, starts becoming abusive. We also find
that this advocate is briefed to appear in hopeless cases and attempts, by
browbeating the Court, to get discretionary orders, which no Court is
otherwise prepared to give. We have found that the vast majority of
appearances by this advocate before us have been in cases in which debtors
have persistently defaulted, as a result of which their mortgaged properties
have to be handed over to secured creditors to be sold in auction. It is at
this stage that Shri Nedumpara is briefed to somehow put off the auction
sale.
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"(a)
declare that the Explanation to Rule 6 of the Bar Council of India Rules,
1975, CHAPTER - II (STANDARDS OF PROFESSIONAL CONDUCT AND ETIQUETTE), which
says that „Court‟ means not the entire Court, but the particular Court where
the relative of a lawyer is a Presiding Judge, negates absolutely the concept
of nemo debet esse judex in propria causa, and allowing the kith and kin of
sitting Judges to practice in the very Court where his father or uncle is a
Judge cuts the concepts of fairness, independence and impartiality in the
administration of justice at their very root, namely, justice should not only
be done, but should manifestly and undoubtedly be seen to be done;
(b)
declare that Respondent No.1, the living legend, is disqualified from
appearing in the Supreme Court where his illustrious son, Hon‟ble Mr. Justice
Rohinton F. Nariman, is a sitting Judge, for, the Supreme Court means the
entire Courts as an institution and the petitions which he (Respondent No.1)
vets captioned as "To The Hon‟ble the Chief Justice and his Companion
Justices of the Hon‟ble Supreme Court of India" come up before his
illustrious son, Hon‟ble Mr. Justice Rohinton F. Nariman;
(c)
issue an appropriate direction to the Collegium Members of the Supreme Court
and the Government of India to take appropriate steps to secure transfer of
the Judges of High Courts, where their kith and kin practice as lawyers, to
some other High Court keeping in mind all concern for the inconvenience and
difficulty to the Judge concerned and taking all such steps to mitigate the
same;
(d)
issue a writ of injunction or any other appropriate writ, order or injunction
restraining and prohibiting Respondent No.1 in the Supreme Court;
(e)
grant ad-interim injunction in terms of prayer (d) above; and
(f)
pass such other order or orders, as this Hon‟ble Court may deem fit and
proper under the facts and circumstances of the case."
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Press
Information Bureau
Government
of India
Ministry
of Law & Justice
22-November-2012
18:08 IST
Uncle
Judges Syndrome
The
Law Commission of India in their 230th Report has mentioned the matter of
appointment of ‘Uncle Judges’ in the High Courts, wherein it is said that the
Judges, whose kith and kin are practicing in a High Court, should not be
appointed in the same High Court.
The
appointment of Judges in the High Court and Supreme Court is made under the
Memorandum for Appointment of Judges which has been laid down following the
Supreme Court Judgments in 1993 and 1998. Under this, responsibility for
initiation of proposals for appointment of Judges in the High Court and
Supreme Court is with the Chief Justice of the High Courts/Supreme Court.
Under Article 217 of the Constitution, a person who has been an advocate for
10 years in a High Court or in two or more such Courts in succession is
qualified to be considered for appointment as the Judge of the High Court.
Thus,
under the Constitutional Provision, Chief Justice can recommend judges from
the Bar to be appointed as the judge of the High Court. In this situation,
kith and kin of those appointed as judges and practicing in the High Court is
likely. With a view to correct the situation, judicial standards are being
prescribed for the judges in the Judicial Standards and Accountability Bill,
2012 which has been passed by Lok Sabha already.
This
was stated by the Minister for Law and Justice Dr. Ashwani Kumar in written
reply to a question in the Lok Sabha today.
|
THE
JUDICIARY
‘Uncles'
on Bench
V.
VENKATESAN
The
Supreme Court's recent strictures against some judges of the Allahabad High
Court revive the debate on the uncle judge syndrome.
PTI
IN
Shakespeare's Hamlet, Marcellus famously remarks that “something is rotten in
the state of Denmark” as he and Horatio debate whether or not to follow
Prince Hamlet and his ghost-father into the dark night. The ghost is a
visible symbol of Claudius' crime of slaying his brother, the King of
Denmark, and marrying his wife, Queen Gertrude. Marcellus' expression has
become the standard phrase to refer to corruption and lack of morals in the
high echelons of power.
On
November 26, the Supreme Court Bench began its severe indictment of the state
of affairs in the Allahabad High Court by saying that “there is something
rotten in the Allahabad High Court” and it “needs some house cleaning”. The
insinuation was that several judges of the High Court (both Lucknow and
Allahabad Benches) suffered from “uncle judges” syndrome and passed orders
favourable to parties represented by lawyers known to them. Since a judge
refers to his colleagues as brother judges, they become “uncle judges” to his
kith and kin. As per the Bar Council of India's regulations, a judge's kin
cannot practise in the same court but can practise in an uncle judge's court.
A son or daughter of Judge A will not appear before their father but attend
Uncle Judge B's court. Likewise, the son or daughter of Judge B will appear
before Judge A and not before their father.
Observers
of this phenomenon have noted that children of such judges have been able to
advance in their career much faster, in terms of rapid rise in the number of
favourable orders they secure from the Bench and the corresponding increase
in the number of their clients.
The
Supreme Court found one such instance in the case of Raja Khan vs U.P. Sunni
Central Wakf Board. In this case, there was an appeal against the judgment
passed by a Division Bench of the High Court in August 2010 by Raja Khan, the
proprietor of a circus company in Bahraich district of Uttar Pradesh.
Raja
Khan had challenged the refusal of the U.P. Sunni Central Wakf Board to
allot land belonging to the board to hold an annual mela and
obtained in June two interim orders of a single judge of the High Court in
Allahabad, passed ex parte, in his favour, and against the board. The
Division Bench, however, set aside these orders.
The
Supreme Court Bench, comprising Justice Markandey Katju and Justice Gyan
Sudha Misra, found the interim orders of the single judge shocking as, in its
view, they were clearly passed on extraneous considerations. First, it
pointed out that the Bahraich district was within the territorial
jurisdiction of the Lucknow Bench of the High Court and, therefore, the
Allahabad Bench should not have heard the case. Secondly, it said, Raja
Khan's writ petition in the High Court was not maintainable because
“ordinarily no writ petition lies against a private body”, in this case, the
Wakf Board. Thirdly, the Bench was critical of the single judge's interim
orders, which granted final relief to Raja Khan, as it was fairly well
settled that final relief should not be granted by an interim order.
The
Supreme Court held that the Division Bench rightly set aside the interim
orders. It said: “The faith of the common man is shaken to the core by such
shocking and outrageous orders such as the kind which have been passed by the
single judge.”
The
Katju-Misra Bench then used the opportunity to reflect on the larger malaise
afflicting the High Court. It observed:
“We
are sorry to say but a lot of complaints are coming against certain judges of
the Allahabad High Court relating to their integrity. Some judges have their
kith and kin practising in the same court, and within a few years of starting
practice the sons or relatives of the judge become multi-millionaires, have
huge bank balances, luxurious cars, huge houses and are enjoying a luxurious
life. This is a far cry from the days when the sons and other relatives of
judges could derive no benefit from their relationship and had to struggle at
the Bar like any other lawyer.
“We
do not mean to say that all lawyers who have close relations as judges of the
High Court are misusing that relationship. Some are scrupulously taking care
that no one should lift a finger on this account. However, others are
shamelessly taking advantage of this relationship. There are other serious
complaints also against some judges of the High Court.
“The
Allahabad High Court really needs some house cleaning and we request Hon'ble
the Chief Justice of the High Court to do the needful, even if he has to
take some strong measures, including recommending transfers of
the incorrigibles.
“Let
a copy of this order be sent to the Registrars General/Registrars of all High
Courts for being placed before Hon'ble the Chief Justice of the respective
High Courts.”
https://frontline.thehindu.com/static/html/fl2801/stories/20110114280103900.htm
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50%
HC judges related to senior judicial members: Report
Around
50% of the judges of high courts and 33% judges in the Supreme Court
are family members of those in “higher echelons of judiciary”,
claims a research done by a Mumbai-based lawyer.
INDIA
Updated: Jun 19, 2015 00:22 IST
Soibam
Rocky Singh
Hindustan
Times
NJAC,Report,HC
Around
50% of the judges of high courts and 33% judges in the Supreme Court
are family members of those in “higher echelons of judiciary”,
claims a research done by a Mumbai-based lawyer.
Advocate
Mathews J Nedumpara, who is a petitioner-in-person, submitted the report to a
five-judge constitutional bench hearing petitions challenging the NJAC Act.
The situation was a result of the collegium system under which judges
appointed other judges, Nedumpara told HT.
https://www.hindustantimes.com/Images/popup/2015/6/19-06-metro-10a.jpg
He
said the Supreme Court’s verdicts in the 1990s resulted in the setting up of
a collegium system that “monopolised” appointments to the higher judiciary,
where kith and kin, and “former and sitting judges of the Supreme Court and
high courts, Governors, chief ministers, law ministers, celebrated lawyers,
the elite” are favoured.
According
to the report, the Supreme Court has a sanctioned strength of 31 judges, out
of which six judges were sons of former judges. The report mentioned
appointments of over 88 judges from 13 high courts who were either born to a
family of lawyers, judges, or worked under some legal luminaries.
Nedumpara
claimed that the source of his information was the empirical data collected
from the official websites of Supreme Court and 13 high courts in the months
of September and October 2014. He said for other high courts, comparable data
were not available.
He
alleged that the collegium system functioned under complete secrecy where
vacancies in the office of the higher judiciary were neither notified nor
advertised.
Appearing
for Supreme Court Bar Association, senior counsel Dushyant Dave had on
Wednesday attacked the collegium system for ignoring merit and appointing
judges who failed the common man and gave relief to only the “high and
mighty”.
https://www.hindustantimes.com/india/50-hc-judges-related-to-senior-judicial-members-report/story-S8RP2Ir9cEuIN4NewFnvML.html
|
EDITORIAL
Justice
cannot be relative
DECEMBER
03, 2010 01:36 IST
UPDATED:
DECEMBER 03, 2010 01:37 IST
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ARTICLE 2 0 PRINT A A A
By
paraphrasing Marcellus' famous line in Shakespeare's Hamlet, the Supreme
Court has shown its extraordinary annoyance about the state of affairs in the
Allahabad High Court. The Division Bench, comprising Justices Markandey Katju
and Gyan Sudha Mishra, made two inter-connected points to support the
contention that “something is rotten in the Allahabad High Court.” One was
the number of complaints about the lack of integrity in a section of the
judges, something the Bench said the Chief Justice of the High Court must
take action on. The other was that some judges have their friends and
relatives practising as lawyers in the court — a state of affairs that, it
noted, has resulted in such people becoming “multi-millionaires,” with “huge
bank balances, luxurious cars [and] huge houses.” The reference here is to a
pernicious and entrenched phenomenon, which the Law Commission, in its 230th
report, referred to as “uncle judges.” Uncle judges are the inevitable result
of the practice of appointing district judges and those who have practised as
lawyers in a High Court as a judge of the same High Court. As the Law
Commission observed, “impartiality and justice is the loser” when “judges
either settle their scores with advocates who have practised with them or
have a soft corner for them.”
Astonishingly,
the phenomenon of uncle judges persists despite the Bar Council of India
Rules, 1975, which state that advocates should not plead before a court if
related to the judge. Moreover, the Supreme Court's charter of values,
adopted in 1997, prohibit judges from permitting close relatives to appear
before them. The Judicial Standards and Accountability Bill, which is pending
in Parliament, will make it illegal to be an uncle judge. Section 3 of the
proposed legislation specifically bars a judge from permitting “any member of
his immediate family (including spouse, son, daughter, son-in-law or
daughter-in-law or any other close relative) who is a member of the bar to
appear before him or be associated in any manner with any case to be dealt by
the judge.” An important reason behind the mass transfer of 30-odd High Court
judges this September and October carried out in the “public interest” by the
Supreme Court collegium was that many had kith and kin practising in the same
court. But while transfers can check nepotism, they are hardly an effective
way of checking other forms of judicial misconduct — most often, they only
shift the problem from one court to another. What is needed is a quick and
effective mechanism for dealing with judicial misbehaviour, something that
the proposed legislation promises. This is why no time must be lost in
passing it.
https://www.thehindu.com/opinion/editorial/Justice-cannot-be-relative/article15577891.ece
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|
Dr
Ikramul Haq
OP-ED
Judges
and accountability
358
Shares
Dr
Ikramul Haq
JANUARY
6, 2019
The
process of accountability must start from those who judge others. Any process
of accountability lacking credibility and transparency is bound to fail, even
bounce back. For sustainable democracy, accountability of all through an
impartial and competent judiciary is essential. For independent judiciary,
the judges must be men of integrity, blameless, and free from all internal
and external pressures. Since justice should not only be done but seen to
have been done, the prime duty of a judge is to demonstrate before the public
an image of the justice of the nation.
The
starting point of across the board accountability in Pakistan should be
making public declaration of assets/liabilities by the judges and
high-ranking civil/military officials-those of politicians are published
every year in the official gazette. The civil society and media should join
hands to force the parliament to abolish all laws of secrecy and/or immunity
and enact a law in terms of Article 19A of the Constitution for compulsory
disclosure of assets/liabilities/taxes paid by judges/generals. We can learn
a lot from India in this regards. The issue of asset disclosure of judges in
India came in the limelight when a Right to Information Application was filed
by Subhash Agarwal with the Supreme Court seeking to know if judges of the
High Courts and the Supreme Court were complying with the 1997 Code of
Conduct. The public information officer of the Supreme Court claimed “no such
information exists in the Supreme Court registry”. Later on, an appeal was
submitted before the Central Information Commission (CIC) arguing that the
Supreme Court was making a distinction between information with the Chief
Justice’s Office and that of the Supreme Court. The CIC, while rejecting this
distinction, directed the public information officer of the Supreme Court to
secure this information from the Chief Justice’s Office and hand over the
same to Subhash Agarwal.
The
Indian Supreme Court challenged the order of CIC filing a writ petition in
the Delhi High Court. The CIC merely directed release of the information
about whether judges were disclosing their assets to the Chief Justice, but
in the writ petition, the Supreme Court apprehended that the exercise might
lead to paving the way for people to know about asset disclosures under the
Right to Information Act. It was claimed that asset disclosures by judges was
exempted under this Act as information was lying with the Chief Justice under
a “fiduciary relationship”. The second contention was that being “personal
information”, it had no relationship with public domain. Chief Justice feared
that public access of such declarations would amount to “an unwarranted
invasion of the privacy” of his brother judges. Finally, it was argued that
Chief Justice was not a “Public Authority”, amenable to the Act.
The
starting point of across the board accountability in Pakistan should be
making public declaration of assets/liabilities by the judges and
high-ranking civil/military officials-those of politicians are published
every year in the official gazette
The
issue came in further limelight when the Indian government introduced a Bill
in parliament providing for asset disclosure of judges, but with a protection
clause that the same would not be accessible to the people and that judges
would not be made liable for any action on the basis of their disclosure.
This led to commotion in parliament-the members rising above party lines
vehemently and collectively condemned this clause, forcing the government to
pull out the Bill.
In
the wake of debate in Parliament and public campaign, a number of High Court
judges made their assets public (in Pakistan only Mr. Justice Mansoor Ali
Shah did as Chief Justice of Lahore High Court), dissociating themselves from
the Chief Justice of India’s stand that asset disclosure would lead to
harassment of judges at the hands of disgruntled litigants. Eminent former
judges and leading jurists joined the civil society-they openly and publicly
demanded public declaration of assets by judges.
The
entire civil society and media, unanimously and vocally, opposed the stand of
Indian Chief Justice. Succumbing to opposition-both from inside and outside,
he ultimately yielded announcing that the asset declarations of the judges
would be placed at official website. Soon thereafter, twenty one judges of
the Supreme Court, including Chief Justice of India K.G. Balakrishnan,
declared their assets, giving details of movable and immovable property owned
by them and their spouses. In India, even in the wake of such declarations,
there was a sharp criticism over asset disclosures of the judges and their
spouses. It was demanded that information about the assets of other close
relatives, like sons and daughters, was also important in the Indian context.
It is also valid in Pakistani context as even after elevation, the law houses
of many judges are run by their relatives.
It
is undisputed that in order to avoid conflicts of interest and the misuse of
the prestige of office, judges must give up their political, charitable, and
business activities when they take the bench. Until 1961, in India, there
were instances in which lawyers appeared in the same court over which their
relatives were presiding. But after the Advocates Act, 1961 empowered the Bar
Council of India to frame rules on the matter, such incidences became rare.
Under Rule 6 of this Act, the Bar Council prohibited that “no lawyer can
practice in a court where any of his relatives functions as a judge”. The
list of such relatives included his/her father, grandfather, son, grandson,
uncle, brother, nephew, stepbrother, husband, wife, daughter, sister, aunt,
niece, father-in-law, brother-in-law or sister-in-law. However, there have
been controversies as to whether the term ‘court’ mentioned in this Rule 6
refers only to the court of that particular judge or the entire court where
the relative works. In Pakistan, no such prohibition exists till today.
When
in India, Justice P. Balakrishna Iyer became a judge of the Madras High
Court, his son advocate. P. B. Krishnamoorthy shifted his practice to another
State. When Justice V. R. Krishna Iyer became a Supreme Court judge, his son
who was a lawyer as well, chose not to practice in any court in India opting
for private employment. Justice V. Sivaraman Nair of the Kerala High Court
had worked as a junior of Justice Krishna Iyer. But as soon as his daughter
and daughter-in-law started practicing in the Kerala High Court, he requested
the President of India to transfer him to another State.
Any
such example is unheard of in Pakistan. On the contrary, many serving judges
have their kith and kin practicing in the same court, and within a few years
of starting practice have accumulated substantial assets/enjoying a luxurious
life. This is a far cry from the days when the sons and other relatives of
judges could derive no benefit from their relationship and had to struggle at
the bar like any other lawyers. One hopes that the honourable judges of
Supreme Court making others accountable will end this practice through a suo
muto case.
Published
in Daily Times, January 6th 2019
|
….
The
case of fight of judges and lawyers also brings to mind that other way of
tinkering with justice: that of ‘uncle judges’. It has relation to the
appointment of those judges in a high court whose relatives are practising in
the same court. In 2012, the Law Commission of India in its report
recommended that the judges, whose kith and kin are practising in a high
court, should not be appointed in the same high court. Since a judge refers
to his colleagues as brother judges, they become “uncle judges” to his kith
and kin.
In
May 2014, the then newly appointed Chief Justice of India (CJI) Rajindra Mal
Lodha sparked a debate when he said that at least 16 (34%) of the 47 judges
in the Punjab and Haryana High Court have kith and kin practising law at the
same place. Either these relatives have private practice or the Punjab and
Haryana governments have accommodated them in respective advocate-general
offices.
…
https://www.tribuneindia.com/news/sunday-special/people/forum-shoppers-pettifoggers--uncle-judges/499893.html
|
Every
third HC judge is ‘uncle’
At
least 16 (34%) of the 47 judges in the Punjab and Haryana high court have
kith and kin practising law at the same place. Either these relatives have
private practice or the Punjab and Haryana governments have accommodated them
in respective advocate general offices. Now the statement by 41st Chief
Justice of India (CJI) Rajindra Mal Lodha, who took over on April 27, has
triggered a debate about “uncle judges".
PUNJAB
Updated: May 03, 2014 09:31 IST
Sanjeev
Verma
Hindustan
Times
At
least 16 (34%) of the 47 judges in the Punjab and Haryana high court have
kith and kin practising law at the same place. Either these relatives have
private practice or the Punjab and Haryana governments have accommodated them
in respective advocate general offices. Now the statement by 41st Chief
Justice of India (CJI) Rajindra Mal Lodha, who took over on April 27, has
triggered a debate about “uncle judges”.
The
CJI has said there is nothing the judges can do about it, and it is for the
bar council to take pro-active action. The Bar Council of India as well as
the bar councils of states such as Rajasthan and Bihar had passed resolutions
to shift uncle judges to high courts outside.
https://www.hindustantimes.com/Images/popup/2014/4/lawyers_compressed.jpgBar
Council of India chairman Biri Singh Sinsinwar, when contacted, said:
"The new CJI has not been briefed properly about all the facts. The
council cannot be blamed, since it has passed a resolution already that when
the advocates whose kin are practicing in the same high court are elevated as
judges, they should be transferred to other high courts immediately. It is
the Supreme Court and the Centre that are not implementing the
resolution."
Bar
Council of Punjab and Haryan a chairman Rakesh Gupta said the body could act only
on complaints, which it had not received, so far. Asked if any resolution of
the kind the other bar councils had passed was coming up, he replied: “I
can’t comment as a chairman.”
On
the issue of “uncle judges”, the Law Commission of India in its 230th report
submitted to the union law ministry in August 2009 had mentioned that judges
should not be appointed in the high courts where their kith and kin
practised.
In
May 2010, the-then chief justice of the Punjab and Haryana high cour t, Mukul
Mudgal, had forwarded a list of 16 “uncle judges” to the union ministry of
law and justice.
The
names included justices Adarsh Kumar Goel (now chief justice of the Orissa
high court); MM Kumar (chief justice of the Jammu and Kashmir high court) ;
Ashutosh Mohunt a (Andhra Pradesh high court); SK Mittal; Hemant Gupta; TPS
Mann; Mahesh Grover; KC Puri; KS Ahluwalia; Sabina; MS Sullar; and now
retired SD Anand, VK Sharma, Jora Singh, Gurdev Singh and Harbans Lal.
https://www.hindustantimes.com/punjab/every-third-hc-judge-is-uncle/story-emvLdM8SlnlknyCQ4A7uLM.html
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Cannot
pass judicial order to prohibit kith and kin of sitting judges from
practicing in same court: Supreme Court BY: RITUPARNA DUTTAA29 April 2014
2:11 PM
A
Supreme Court Bench headed by Chief Justice R M Lodha and comprising of
Justices M B Lokur and Kurian Joseph refused to entertain a PIL seeking to
prohibit the kith and kin of sitting judges of the apex court and High Courts
from practicing in the same courts. While dismissing the petition, filed by
Advocate M L Sharma, the Bench said it couldn’t pass a judicial order on the
plea seeking to prohibit the kith and kin of sitting judges of the apex court
and High Courts from practicing in the same courts as the Bar Council of
India or state Bar Associations are the ones to deal with any matters relating
to violation of code of conduct.
Alleging
that practicing of kith and kin of judges was another face of corruption,
Advocate Sharma, in his petition had made the Centre, BCI the apex regulatory
body of lawyers, as Respondents in his Writ Petition.. The petition stated
that barring kith and kin of judges from practicing in the same courts would
restore faith and value of the judiciary. According to Sharma, the Supreme
Court, in its Full Court Meeting in 1997, had adopted a Charter of ‘The
Restatement of Values of Judicial Life’ which said a judge should not allow
any member of his immediate family, such as spouse, son, daughter, son-in-law
or daughter-in-law or any other close relative, if a member of the Bar, to
appear before him or even be associated in any manner with a cause to be
dealt with by him.
The
Bench stated that in case, if any member of the Bar does not follow the
professional ethics a complaint has to be filed with BCI or state Bar
associations, as this is not the role of the court and there cannot be a
judicial order. While the bench was dismissing the petition, advocate M L
Sharma chose to withdraw it. Justice Lodha while interacting with journalists
after taking oath as the 41st CJI, had said that a judge can do nothing in
such matters and it is the Bar who has to take action, as Bar has the
disciplinary control over the members.
https://www.livelaw.in/pass-judicial-order-prohibit-kith-kin-sitting-judges-practicing-court-supreme-court/
|
https://www.thehindu.com/opinion/op-ed/father-son-and-the-holy-court/article6528282.ece
COMMENT
Father,
son and the holy Court
K.
Chandru OCTOBER 24, 2014 02:41 IST
UPDATED:
MAY 23, 2016 19:10 IST
The
Bar Council of India must suitably amend relevant rules and uphold the faith
of the common man in the judiciary. Picture shows the Supreme Court. Photo:
Rajeev Bhatt
op-ed
Senior
advocate Fali S. Nariman appearing in cases before the Supreme Court where
his son is a judge has revived an old debate regarding the appropriateness of
such appearances
In
1967, when U.S. President Lyndon B. Johnson appointed the son of U.S. Supreme
Court Judge Tom C. Clark as the Attorney General, Clark promptly resigned
from his post. This was because an Attorney General will have to make
frequent appearance in the court in which his father will be one of the
judges adorning the bench and in that Supreme Court all the nine judges sit
together. But in India that has not been the case. Right now the matter
regarding the appropriateness of a lawyer appearing in a court in which his
near relative is a judge has gained significance in the context of Fali S.
Nariman, a leading senior advocate of the Supreme Court, continuing to appear
in cases before the Supreme Court in which his son Rohinton F. Nariman has
become a Judge since July 2014. While some criticism was aired regarding this
in public, Mr. Nariman dismissed complaints maintaining that there is no
legal bar for such appearance and said that everyone is equal before the law.
What
rules say
Until
1961, in India, there were instances in which lawyers appeared in the same
court over which their relatives were presiding. But after the Advocates Act,
1961 empowered the Bar Council of India to frame rules on the matter, such
incidences have become rare. Under Rule 6 of the norms established by the Bar
Council, no lawyer can practise in a court where any of his relatives
functions as a judge. The list of such relatives included his/her father,
grandfather, son, grandson, uncle, brother, nephew, stepbrother, husband,
wife, daughter, sister, aunt, niece, father-in-law, brother-in-law or
sister-in-law. However, there have been controversies as to whether the term
‘court’ mentioned in this Rule refers only to the court of that particular
judge or the entire court where the relative works.
During
the early 1980s, this rule came up for interpretation before the Karnataka
High Court. Pramila Nesargi, a woman advocate who got married to Nesargi, a
Karnataka High Court Judge who had lost his wife at that time, appeared
before the court of Justice P.P. Bopanna. She was not a senior advocate at
that time and as her name did not find mention in the vakalat filed in that
case, the Judge directed her to file a vakalat to represent her client. The
next day when her name appeared in the cause list, the judge who heard her
case refused to allow her to appear before any judge in the Karnataka High
Court.
He
ruled: “The Bar Council prohibits a lawyer from appearing in a Court where a
close relative works as a judge. While the term ‘court’ does not specifically
refer to all the courts in a particular High Court, we should be strict in
respect of a wife. A wife has an intimate relationship with her husband. Many
matters discussed among judges would reach her ears. When a woman who has
access to confidential matters in respect of a Court is allowed to practise
in the same Court as a lawyer, it can spell danger.”
"
Advocates Act, 1961 empowered the Bar Council of India to frame rules so that
no lawyer can practise in a court where any of his relatives functions as a
judge. "
Subsequently,
the matter was raised before the Supreme Court which ordered notice to the
Bar Council. But the case was not taken to its logical end and the matter
became infructuous as the counsel involved became a senior advocate and the
Judge concerned was superannuated. Yet the controversy over the
interpretation of the rule still continues to haunt the courts. When Justice
P. Balakrishna Iyer became a judge of the Madras High Court, his son advocate
P. B. Krishnamoorthy shifted his practice to another State. There was also a
strange practice adopted by a lawyer in the early 1970s. The said lawyer used
to sign hundreds of memos of appearances in bail applications so that those
matters will not go before his father-in-law judge, who was known to be
strict regarding granting of bail.
When
Justice V. R. Krishna Iyer became a Supreme Court judge, his son who was a
lawyer as well, chose not to practise in any court in India opting for
private employment. Justice V. Sivaraman Nair of the Kerala High Court had
worked as a junior of Justice Krishna Iyer. But as soon as his daughter and
daughter-in-law started practising in the Kerala High Court, he requested the
President of India to transfer him to another State.
Justice
Leila Seth, a former Chief Justice of Himachal Pradesh writing in her
autobiography recalled her experience in the Patna High Court regarding the
two kinds of ‘practice’ the Bar had adopted.
She
wrote: “I heard people talking about ‘Uncle Practice’ and ‘Lal Jhanda’. I
wondered what all this was about. I learnt that, since a son was not
permitted practice in his father’s court, if you did not want the matter to
be heard by that court, you briefed the son and thus stopped the matter from
going before the father; you had put out a warning ’Red Flag’. This misuse of
a rule that had been incorporated to prevent partisan decisions was
apparently quite prevalent, and some young lawyers even managed to make a
living out of it. It was also rumoured that certain judges favoured the sons
of their brother judges, and so the ‘Uncle Practice’ thrived.”
In
S. P. Gupta’s case (1981) dealing with the judges’ transfer issue relating to
close relations taking undue advantage of a sitting judge, the following way
out was suggested to avoid embarrassment: “We have to take into account the
advice given by the CJI in one of the seminars that where close relations of
a Judge or the Chief Justice practise in the same court and are likely to
gain undue advantage, the concerned judge should himself, in obedience to the
keen sense of justice which every Judge possesses opt to be transferred to
some other High Court.”
In
1997, all the judges of the Supreme Court assembled under the Chairmanship of
Chief Justice J. S. Verma and adopted a resolution on ‘The Values in Judicial
Life’. That resolution stated that a judge should prohibit a close relative
of his from appearing in his court. It also stated that no relative of his
should practise law while staying in the Judge’s house. Markandeya Katju, in
his judgment in Raja Khan’s case, sounded a warning on the ills of kith and
kin being allowed to practise in the same court as their relatives. He said:
“Some Judges have their kith and kin practising in the same court, and within
a few years of starting practice the sons or relations of the Judge become
multimillionaires, have huge bank balances, luxurious cars, huge houses and
are enjoying a luxurious life. This is a far cry from the days when the sons
and other relatives of Judges could derive no benefit from their relationship
and had to struggle at the bar like any other lawyer.”
What
is the way out?
When
Justice R. M. Lodha took over as the Chief Justice of India, some
presspersons raised a question as to whether it was not possible to prohibit
relatives of a judge from practising as lawyers in the same Court. He replied
that it was up to the Bar to find a solution to the problem. He also
dismissed a public interest litigation filed by advocate M. L. Sharma seeking
a ban on the relatives of judges practising in the same courts.
With
the controversy reviving in the context of Mr. Nariman appearing in the court
where his son is a judge, the Bar Council of India must be called upon to
suitably amend relevant rules and uphold the faith of the common man in the
judiciary.
(K.
Chandru is a retired Judge of the Madras High Court.)
|
Mar
17, 2019
IRE
230 /8 (81.5)
Can't
pass order prohibiting kin from practicing in same court: SC
India
hidden Apr 28, 2014 20:14:46 IST
New
Delhi: The Supreme Court today said it cannot pass a judicial order on the
plea seeking to prohibit the kith and kin of sitting judges of the apex court
and high courts from practicing in the same courts and said any matters
relating to violation of code of conduct have to be dealt by the Bar Council
of India or state Bar Associations.
"This
is not the function of the court. File a complaint for stopping such
practice. If any member of the Bar who is not following the professional
ethics, be it the son of a judge, file a complaint (with BCI or state Bar
associations). There cannot be a judicial order," a bench headed by
Chief Justice RM Lodha said.
Cant
pass order prohibiting kin from practicing in same court: SC
File
photo of the Supreme Court building, Reuters
"Whatever
be the status, take the complaint to a logical conclusion and lead it with
evidence," the bench, also comprising justices MB Lokur and Kurian
Joseph, said.
The
bench made the remarks while declining to entertain a PIL seeking to prohibit
the kith and kin of sitting judges of the apex court and high courts from
practicing in the same courts.
While
the bench was dismissing the petition, advocate ML Sharma, who had filed the
plea, preferred to withdraw it. In an interaction with journalists after
taking oath as the 41st CJI yesterday, Justice Lodha had said that there is
nothing that a judge can do in such matters and it is upto the Bar to be
"pro-active" and take action.
"Bar
has the disciplinary control over the members. It is for the Bar to take
action and closely follow the conduct of the members. What can a judge do if
some lawyers do not adhere to ethics. Rules are there and Bar has to take
action," he had said.
"If
my son or daughter does not follow the code of conduct then Bar has to take
action. Unfortunately, the role which the Bar is required to play is not
being played by the Bar and unfortunately we are blamed," he had said.
The
petition, in which the Centre, BCI, the apex regulatory body of lawyers, were
made respondents, alleged that "practicing of kith and kin of judges is
another face of corruption".
Prohibiting
them from practicing in the same courts would reinstate faith and value of
the judiciary, the petition said. The lawyer said that the Supreme Court, in
its Full Court Meeting in 1997, had adopted a Charter of 'The Restatement of
Values of Judicial Life' which said a judge should not permit any member of
his immediate family, such as spouse, son, daughter, son-in-law or
daughter-in-law or any other close relative, if a member of the Bar, to
appear before him or even be associated in any manner with a cause to be
dealt with by him.
PTI
https://www.firstpost.com/india/cant-pass-order-prohibiting-kin-from-practicing-in-same-court-sc-1500387.html
|
Shot
at list on judicial clans
Chief
Justice seeks details from judges
By
R. Balaji
Published
6.10.16
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New
Delhi, Oct. 5: Chief Justice of India T.S. Thakur has initiated a process of
discreetly seeking information from his colleagues on their family members
who are practising as lawyers.
The
Chief Justice is likely to make public the details of the kith and kin of
Supreme Court judges practising in various courts or working with law firms.
The
initiative, sources said, is intended to dispel any misgivings among the
public about the "conflict of interest" of sons and daughters
appearing in different courts when their father is a judge.
Justice
Thakur's two sons and a daughter are practising lawyers but they have
consciously kept themselves away from the Supreme Court right from November
2009 when he was elevated to the Supreme Court.
Some
of the children of all the remaining four judges in the high-powered
collegium - Justices A.R. Dave, J.S. Khehar, Dipak Misra and J. Chelameshwar
- are also practising lawyers. They too do not practise in the Supreme Court
to maintain the "highest standards of the Bar", said a top judicial
officer.
According
to sources, a preliminary scrutiny by the Chief Justice has indicated
that barring a few judges such as Justices N.V. Ramana and A.M.
Khanwilkar, most of the judges have their own kith and kin practising in
different courts.
Even
if they appear in the Supreme Court, they do not appear before the bench on
which their parent is sitting, a senior judge said.
"Although
we are not bound to give the details to the CJI about our kith and kin, we decided
to part with the information to usher in more transparency," a judge
said.
Another
senior judge said: "A Bollywood star wants his children to be actors.
Businessmen would like their wards to pursue the family business. Similarly,
politicians, doctors and chartered accountants would also like their children
to take up the same profession.
"So,
there is nothing wrong in judges wanting their children to practise law,
which is a noble field, as long as they don't appear before their own parents
or relatives."
According
to a judge, Article 19(1)(g) grants every citizen the fundamental right
to carry on any profession, occupation, trade or business.
"Just
because a person is a judge's son or daughter, he or she cannot be denuded of
the power to choose the judiciary as a profession," said a collegium
member.
The
clarification by the judges came against a backdrop of suggestions earlier
that some high court judges in the past had sought to get their kith and kin
promoted as judges, depriving more deserving candidates.
The
National Judicial Appointments Commission, which was struck down in October
last year by a five-judge constitution bench, had sought to overcome these
defects, said a few other judges who felt it would be difficult to convince
others that personal preferences were not at play when decisions concerning
relatives of judges are taken.
Countering
the argument, a judge said: "Such shortcomings are bound to be there in
any system as judges are also human."
https://www.telegraphindia.com/india/shot-at-list-on-judicial-clans/cid/1483457
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