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/
Wednesday, February 23, 2022
Why does Chief Justice of India N V Ramana not want to open the Supreme Court of India?
Chief Justice of India N V Ramana does not want to open the Supreme Court of India because according to him, Omicron is a silent killer and he has been suffering for 25 days. See https://www.barandbench.com/news/omicron-a-silent-killer-i-have-been-suffering-25-days-cji-nv-ramana
Its time to remind Justice Ramana that open physical courts are a part of the basic structure of the Constitution of India. Omicron is mild and practically harmless. That is the scientific consensus. Justice Ramana is neither a doctor nor a scientist. The Supreme Court is fast running out of excuses to keep the courts closed.
Saturday, February 19, 2022
Issue No. 2 of Delivering Justice - a newsletter with critical commentary by lawyer Seema Sapra
Issue No. 2 of Delivering Justice - a newsletter with critical commentary by lawyer Seema Sapra
Governance of the country through Committees of Retired Judges appointed by sitting Judges – A Bad Idea?
A short comment on the order dated 11.2.2022 of Delhi High Court Judge Rekha Palli in the matter of the Table Tennis Federation of India (W.P.(C) 10590/2021).
A Committee chaired by a retired Supreme Court Judge is probing the cause of a security breach in the security of the Indian Prime Minister and has been directed to recommend further action to prevent similar incidents and recommend required safeguards for the safety of the Prime Minister. A Committee headed by a retired Supreme Court Judge is investigating whether and how the Government of India used an Israeli software named Pegasus to spy on Indian citizens. A Committee chaired by a former Supreme Court Judge is overseeing the execution of environmental remedial measures recommended by another Supreme Court appointed High Powered Committee for the environment in respect of a Himalayan road-widening project of the Ministry of Defence. The Union Government Ministries of Road and Defence have been directed by the Supreme Court to give monthly reports to the Committee headed by the retired Judge, which would in turn report to the Supreme Court every four months. A one-man Committee comprised of a former Supreme Court Judge inquired into whether there was a larger conspiracy against the Judiciary behind the sexual harassment complaint made by a female Supreme Court staffer against the then sitting Chief Justice of India. Another one-man committee of a former Supreme Court Judge was appointed to monitor and suggest steps to prevent stubble burning in Punjab, Haryana & Uttar Pradesh.
These are but a few stray examples of the many committees appointed by the Supreme Court of India and by the High Courts and comprised of retired Judges which are essentially tasked with performing either governance, or regulatory, or enforcement or investigative functions, even though these functions do not fall within the domain of the Judiciary. Such Committees are not only appointed by the Judiciary, but they also report back to the Judiciary and are accountable only to the Judicial Bench which appointed them. This phenomenon of governance by committees of retired judges is very unique to India. It is also problematic in several ways and raises difficult and uncomfortable questions about the quality of governance in India, the negative impact of such judicial orders on the quality of governance and on the quality of governance institutions in India, and about the quality of justice delivery systems in India.
This short comment does not purport to examine the larger questions this phenomenon of governance by committees of retired judges raises because these questions are worthy of a substantial research project. Some of these larger questions are the following. Are retired Judges qualified, competent and the best suited to carry out these tasks they are being given? Are the procedures of these Committees suited to those tasks of governance? Are the outcomes of these Committee processes good or bad outcomes? Do these Committees impede the development and/or improvement of governance, regulatory, enforcement and investigative institutions of India? Does such governance by Committees result in the Judiciary exceeding its mandate under the Constitution of India by going much further than what the judicial function involves? Have these Committees resulted in the increasing concentration of power where it matters most, into and within a small group of closely-connected individuals comprised of Sitting and Retired Judges of the Supreme Court of India and the Sitting and Retired Judges of three or four High Courts? This issue acquires significance as the ‘Collegium’ based Judicial appointments process in India means that Judges are appointing Judges. Is such concentration of power within a small unelected and unaccountable group of persons desirable and does it evade the checks and balances of the Constitutional system? Is such concentration of power a positive or negative development for the goal of good governance? Can such concentration of power be misused or misdirected toward unlawful ends? Can such concentration of power be misused or misdirected by the executive branch of the government? And finally, should Sitting Supreme Court and High Court Judges appoint retired Judges (who might have played a role in appointing the former to the Judiciary) to financially lucrative positions?
It is in light of the larger issues raised above, that I look at the order dated 11.2.2022 of the Delhi High Court passed by Judge Rekha Palli in the matter of the Table Tennis Federation of India (W.P.(C) 10590/2021), whereby she has appointed a three member Committee headed by former High Court Judge Gita Mittal to take over the administration of the Table Tennis Federation of India in a writ petition filed by a table tennis player complaining that a coach of the Federation asked her to deliberately drop a match during the selection process for the team for an international tournament. A similar exercise was undertaken by the Supreme Court when the Court appointed Committee acted as the Board for Cricket Control in India (BCCI) for 17 months to enable reform of the cricketing body. There were no retired Judges in the Committee appointed by the Supreme Court to administer the BCCI, but the Committee’s functioning was not always successful and the outcome (in so far as reforming the cash-rich and corrupt BCCI and removing the BCCI from the clutches of powerful politicians) was arguably a failure. The two Supreme Court Committees in the BCCI case also cost a whopping Rs. 16 Crores.
The Writ Petition before Justice Rekha Palli did not contain a prayer to dissolve or take over the administration of the Table Tennis Federation of India. Manika Batra, the Petitioner, challenged certain selection rules and complained that a coach asked her to drop a match to facilitate the selection of another player. The Petitioner additionally alleged retaliation by the Federation after she made her complaint against the coach and alleged that the selection rules were brought in to prevent her from qualifying. An important order passed by Justice Rekha Palli on 23 September 2021 is not uploaded to the website of the Delhi High Court. By that order, Justice Palli stayed the operation of the rules under challenge, and directed the Government of India through the Ministry of Sport to inquire into the complaints made by the Petitioner (the First Inquiry). The inquiry report of the Ministry of Sport prepared by a committee headed by a Joint Secretary of the Ministry of Sport was inexplicably filed before the Court in a sealed cover and was not disclosed to any of the parties to the case. On 17 November 2021, Justice Palli found this secret enquiry report of the Ministry of Sport to be unsatisfactory and she appointed another three-member committee to examine the Petitioner’s complaints (the Second Inquiry). This Committee comprised of two former judges both having served in the Supreme Court and the Delhi High Court, and an 82-year-old former track and field athlete. Justice Palli also restrained the Table Tennis Federation of India from approaching the International Table Tennis Federation in respect of the Petitioner.
In para 7 of her order dated 11.02.2022, Justice Palli laments the unsatisfactory state of affairs prevailing in the Table Tennis Federation of India as disclosed by the secret report of the three-member committee constituted by her on 17 November 2021 (the Second Inquiry Report). This second inquiry report was inexplicably also produced before the Court in sealed cover and neither the parties nor the media were given access to it.
Without making the two successive enquiry reports commissioned by her public or available to the parties to the case, Justice Palli uses her conclusions from these reports to hold in her order dated 11/02.2022 that “This Court is, therefore, of the opinion that till a deeper scrutiny of respondent no.1’s affairs is carried out, either by the Union of India or by an independent Committee, a Committee of Administrators is required to be immediately appointed to conduct the affairs of the respondent no.1 federation.”
The reasons given by Justice Palli to reach this conclusion are vague, thin on facts, and non-specific (given that the two reports remained sealed) and her order can only be termed non-speaking and unreasoned. Justice Palli relies upon two principal conclusions, first that the Table Tennis Federation of India did not respond appropriately to the complaints of the Petitioner and went on to intimidate her and second that the national coach who the Petitioner had complained about was allowed to run a personal training academy resulting in a conflict of interest. Given that the two inquiry reports remained secret and sealed, the factual defence if any, of the Federation finds no mention or consideration in the order of Justice Palli.
Justice Palli’s order indicates that despite two successive enquiry reports, she was of the opinion that further additional inquiry into the affairs of the Table Tennis Federation was warranted. However, she states that she has deferred such an order for further inquiry at the request of the Federation’s Counsel. Justice Palli finally gave the Federation access to the second inquiry report of the three-member committee only by order dated 11.2.202 and after an administrator was already appointed to take over the functioning and management of the Federation. Justice Palli denied the request of the Federation’s counsel for a copy of the first enquiry report of the Ministry of Sport with the strange reasoning that it had become irrelevant after the second inquiry report.
The Committee of Administrators appointed by Justice Pallli to take over the functioning of the Table Tennis Federation of India comprises Ms Gita Mittal, a former Judge of the Delhi High Court and a former Chief Justice of Jammu & Kashmir High Court, a Chandigarh based lawyer Mr. Chetan Mittal, and an athlete Mr. SD Mudgil. Ms Gita Mittal has no domain expertise in Table Tennis or Sport management. Neither does lawyer Chetan Mittal. In fact, it is unclear why Mr Chetan Mittal was selected for this Committee. Mr Chetan Mittal has ties to the BJP and the RSS, and until recently was an Assistant Solicitor General for the Government of India before the Chandigarh High Court. He was discharged by the President of India from this position on 30.12.2021. In 2015, the Enforcement Directorate raided Mr Chetan Mittal’s brother Mr Mukesh Mittal on money laundering, forgery, land-grabbing and cheating complaints. Mr Chetan Mittal’s name and the names of family members of a Chandigarh High Court Judge also cropped up in complaints as a result. (See https://indianexpress.com/article/cities/chandigarh/money-laundering-case-advocate-three-others-booked-after-ed-raids-2/) I could not find any information on the internet about the athlete Mr S D Mudgil.
This Committee of Administrators has been granted complete control over the affairs of the Table Tennis Federation of India including the power to sign checks. The appointment appears open-ended with the Administrators directed to file reports in Court every two months. Justice Rekha Palli has fixed the monthly honorarium to be paid to the members of the Committee of Administrators, at INR 3 lakhs for the Chairperson (Ms Gita Mittal), and INR 1 lakh each for the two members.
The case has been adjourned to April 13, 2022 for further consideration.
Justice Palli erred in allowing the two enquiry reports to be filed in sealed cover and in her failure to share them with the parties and in open Court at the appropriate time. This violated the principle of natural justice and also resulted in an unreasoned and unconvincing order. The use of sealed covers and secret reports by Justice Palli violates the law clarified by the Supreme Court in T. Takano vs Securities and Exchange Board of India in CA 487-488 of 2022 on 18 Feb 2022 that all material relied upon by an adjudicating authority must be shared with the Parties. See https://www.livelaw.in/top-stories/supreme-court-quasi-judicial-authority-disclose-material-adjudication-t-takano-vs-securities-and-exchange-board-of-india-192286.
Further cause for concern is the composition of the Committee of Administrators appointed by Justice Rekha Palli. None of these three individuals appears to be an appropriate choice.
Justice Rekha Palli’s order appointing an administrator for the Table Tennis Federation appears premature, uncalled-for, flawed and inappropriate in a writ petition where there was no specific prayer for this. It appears as if the Judge went on a fishing inquiry and all appearing counsel including those for the Government of India and even for the Federation did not adequately resist the appointment of an administrator. While reform is certainly needed in the management of sport in India, the process being adopted here might end up handing over control of the Table Tennis Federation to the BJP as has happened in the case of the BCCI where the son of the BJP Government’s powerful Home Minister now controls the BCCI. The intervention of the Courts in the BCCI reform process should ideally have been geared toward the creation of an effective regulatory institution for sport management bodies in India. Unfortunately, the Supreme Court’s intervention in the BCCI case did not lead in this direction. Justice Rekha Palli’s intervention in the case of the Table Tennis Federation of India and its reliance upon a committee of former Judges and lawyers is also unfortunately an ad-hoc, non-optimal measure which is unlikely to lead to long-lasting and systemic overhaul of sports management in India.
And lastly, the question needs to be asked. Is it appropriate that Justice Rekha Palli has appointed former Judge Ms Gita Mittal to a financially lucrative position when the latter was part of the Collegium bodies that recommended the appointment of Justice Rekha Palli to the Bench?
Issue No. 1 of Delivering Justice - a newsletter with critical commentary by lawyer Seema Sapra
1. Apparently the Delhi High Court Judges met in Full Court on 9 February 2022 to decide on opening up the Delhi High Court now that almost all Covid related restrictions have been lifted in Delhi. Why then has no official communication in this regard still been issued to the public. The Rajya Sabha was told by the Law Minister Rijiju that 19895 cases are pending before the Delhi High Court which are between 5-10 years old. The total pendency is much higher.
2. How was the case on the constitutionality of the marital rape exception being heard by the Delhi High Court when it was only supposed to be hearing extremely urgent cases on account of Covid restrictions.
3. The Supreme Court of India has announced that it is reverting to the case hearing procedure that it was following till December 2021. Why do the Supreme Court Judges not want the Court to open up fully. Why have physical hearings on only two days in a week starting next week.
4. What is driving this abdication of their judicial duty by these Supreme Court Judges and Delhi High Court Judges?
Seema Sapra
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