Arrest of a Social Media Page Admin, set aside

The police had arrested Jaikanth, an engineer by profession, in the second complaint on the same set of facts as are mentioned in the first complaint registered in May.

The bench said "Allegations in both the FIR's are more or less identical. Actions of the police lead to an inference that a deliberate attempt was made by the police to ensure that petitioner was somehow arrested and detained in custody."

Observing that this is a classic case of blatant violation of Fundamental rights by the police, the Karnataka High Court quashed the First Information Reports registered against admin of a Facebook page TrollMaga.

The court also directed the government to pay a cost of RS 1 lakh to the petitioner S Jayakant, within one month and ordered departmental action against the Magistrate who remanded the accused in violate of Supreme Court guidelines in Arnesh Kumar case.

Source:
https://www.livelaw.in/amp/news-updates/karnataka-hc-quashes-fir-against-facebook-group-admin-148933?__twitter_impression=truee

Madras HC Rules In Favour Of Pregnant Police Aspirant

Madras HC Rules In Favour Of Pregnant Police Aspirant, Says Participation In Running Test A Sign Of Courage.

The order passed by Justice S. Vimala pronounced a few days before her retirement, began like this:

"To realize the value of - ONE YEAR, ask a student who failed a grade; ONE MONTH, ask a mother who gave birth to a premature baby; ONE WEEK, ask the editor of a weekly newspaper;.....ONE HOUR, ask the lovers who are waiting to meet; ONE MINUTE, ask a person who missed the trophy; ONE SECOND, ask a person who just avoided an accident; and HALF A SECOND, ask the petitioner, who missed the post of Grade II Constable."

Will it be right to decline employment to a pregnant woman on the ground that her physical fitness during pregnancy is not a match as that of her counterparts, who are not similarly placed?

The participation by the petitioner in a running test itself is a sign of courage, as persons similarly placed would be afraid of because of fear of losing the child through abortion.

"The concessions given to pregnant women shall not be construed as a concession towards personal comfort of the women.The child birth should be considered as a contribution to continuity of generations,without which the existence of the world is impossible."

Justice S Vimala said in her order granting relief to R. Devika, who participated in efficiency test for recruitment as a Grade II Police Constable, while she was eight weeks pregnant.

Read more here: (link: https://www.livelaw.in/news-updates/madras-hc-pregnant-police-aspirant-running-test-courage-142309) livelaw.in/news-updates/m…

My Quora Answer to: How can I sue a doctor in India for medical negligence?

Read the following paragraphs from the Supreme Court Judgment, before taking a decision of suing the doctor.

94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV.    A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
 

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.

Source: Supreme Court of India : Kusum Sharma & Ors vs Batra Hospital &Med.Research ... on 10 February, 2010 Bench: Justices Dalveer Bhandari, Harjit Singh Bedi

And again, in the Judgment - Supreme Court of India - Nizam'S Institute Of Medical ... vs Prasanth S.Dhananka & Ors on 14 May, 2009 Bench: Justices B.N. Agrawal, Harjit Singh Bedi, G.S. Singhvi

(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam case (1957) 2 All ER 118 (QBD)holds good in its applicability in India.

Further in the same case as above,

32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence. In Savita Garg (Smt.)vs. Director, National Heart Institute (2004) 8 SCC 56 it has been observed as under:

"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."

In conclusion, my answer to your question would be, you can approach the Consumer Forum, where you don’t have to pay any Court Fee on your claim, and you may win the case with substantial evidence on your side. For the degree of evidence that is required to win a claim of Medical Negligence see the explanation above. Whether you have winning stuff in your case or not, can be best diagnosed by a independent, equally qualified Doctor, and not a lawyer. Approach a doctor first, and then with his opinion, approach a lawyer or directly the Consumer Forum of your district.

Disclaimer: The opinion expressed above, based on assumptions, is not tantamount to Legal Advice.

Anti corruption Traps in the Courts - Bom HC judgement 2015

CRIMINAL APPEAL NO.1069 OF 2013

SHRIDHAR CHAVAN
Vs.
THE STATE OF MAHARASHTRA


CORAM :
ABHAY M. THIPSAY, J.
             
Decided on: 13/10/2015

....traps in the premises of the Court on
working days, cannot be organized without the permission of the Judge who is in­charge of the administration of such Court, or the Principal District Judge, or the High Court. The working of the courts of law is distinguishable from the offices of the government departments.  In the court premises, there is presence of advocates and advocates' clerks, who, quite often – lawfully and for lawful purposes – receive amounts in cash from the litigants or their representatives.  No receipts regarding such amounts are passed – atleast not at that time.  The members of the staff of the court, are quite often required to assist the litigants or the advocates, and to provide answers to their queries.   Implicating a member of the court staff falsely, with respect to the accusation of his having demanded   and/or   accepted   illegal   gratification   is   easier   than implicating public servants working in other departments.  If the police are permitted to lay traps without such permission, it can indeed pose a serious threat to the administration of justice and independence of judiciary.  On the contrary, no harm can possibly be suffered by seeking the permission of the concerned Judge or his superior, or the High Court.

Bombay High Court

Source:
http://indiankanoon.org/doc/16733212/

The Land Acquisition Law Confusion

 

After a long drawn debate, and discussion last year, dcoumented at -http://www.prsindia.org/pages/land-acquisition-debate-139/ the Confusion of the Land Acquisition Law/s Continues...

Nov 20, 2014

Law minister Sadananda Gowda on Wednesday ruled out taking the ordinance route for any amendments in the Land Acquisition Act <<http://en.wikipedia.org/wiki/Land_Acquisition_Act_1894>> though he said the government was in favour of bringing some changes.  "There is a proposal. The call has to be taken by the concerned (rural development) ministry," he said, without elaborating on the proposed changes.

Finance minister Arun Jaitley had last week said the government will amend the "tough" land acquisition law even without opposition support as it looks to restore confidence in the economy. The government is in favour of consulting other parties and developing a consensus on the proposed changes. Some states have already expressed concern and cited difficulties in acquiring land for infrastructure projects with stringent clause such as obtaining consent of at least 70% of affected landowners in case of PPP projects and 80% in case of private projects.
Source - Times of India

Nov 9, 2014

The Land Acquisition Bill, which was passed during the previous UPA regime with then opposition BJP supporting it, seeks to set a fair compensation for farm land being taken over for industrial projects. But the law has made land acquisition very difficult, slowing projects. States too have come out openly against the law saying it had hurt the process of acquiring land for infrastructure projects. Jaitley said that the "obstacles" to the land laws would have to be first removed in order to implement the concept of smart cities in India.

In Budget 2014-15, Jaitley had proposed an allocation of Rs 7,060 crore for developing 100 'smart cities' in the country. The Rural Development Ministry has already suggested a number of amendments to the Land Acquisition Act that will water down provisions such as mandatory consent of at least 70% locals for acquiring land for PPP projects, and 80 per cent for private projects. Jaitley also said that the government's disinvestment programme will "unfold" in the next couple of days.

Source - DNA India

July 15, 2014.

The government is keen on bringing changes in the new Land Acquisition Act to make it more industry friendly.  The government may also convene an all-party meet to evolve a consensus so that a Bill to amend the one-year-old law could be introduced in the ongoing session of Parliament.
Rural Development Minister Nitin Gadkari has already started informal consultations with the allies as well as some of the opposition parties.
The Ministry of Rural Development (MoRD) has sent a note to the Prime Minister’s Office (PMO), suggesting dilution in some of the key provisions of the Act, as proposed by the revenue ministers of the state governments during their recent meeting with Gadkari.
The provisions that the MoRD is keen to dilute include the one that made it mandatory to obtain prior consent of at least 70 per cent of land owners in case of acquisitions for public-private-partnership (PPP) projects and 80 per cent in case of private projects.

In its note to the PMO, the MoRD suggested that the requirement of consent of land owners should be done away with for the PPP projects, where the governments hold ownership of the land. If the rider cannot be struck off, the clause should be revised to make sure that land could be acquired even if 50 per cent of the owners had given consent, the MoRD argued in its note.  The Congress-led UPA government got the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill passed by both the Rajya Sabha and Lok Sabha during the monsoon session of Parliament last year. It replaced the archaic Land Acquisition Act of 1894. The new law was projected as a pro-farmer legislation and triggered concerns in the industry about the delays it would cause to acquire land for any project. Though the BJP helped pass the bill in Parliament, the party hinted during its campaign for the Lok Sabha polls earlier this year that it would give the law a re-look if elected to power.

Source - Deccan Herald

Time will only tell...

Karwar Express and Kannur Express - Confusion creating Railways Penalised

The same locomotive pulls 16523 Karwar and 16517 Kannur till Mangalore


Same engine pulls trains to both Karwar and Kannur; confused passenger missed train and sued Railways in consumer court


A train with two destination names confused a passenger and he failed to board it. He was to board the Karwar Express (night train) but the first half of the train's coaches had boards identifying it as the Kannur Express. It was only when the train was moving that he noticed that the last few coaches were marked as Karwar Express. After missing the train, he filed a complaint with the consumer forum in Bangalore which has held the Railways responsible for deficiency in service and confusing passengers and fined it. This has come as yet another instance of the confusion created by the Railways to use the same locomotive to pull the trains to Kannur and Karwar till Mangalore, from where they are separated to head to their respective destinations.


Anup Nair, a resident of Thippasandra, filed the complaint last year on October 28. He had purchased a ticket to travel from Bangalore to Byndoor Mookambika Road (the railway station used by those heading to the Mookambika temple) on August 31, 2013, to perform a ritual called the 'Vidyarambh' at the Mookambika temple. He claimed to have reached the City Railway Station one hour in advance before the train was to depart at 8.40 pm. At the enquiry counter, he was told that the train would depart from platform number 10. Anup says he checked the display chart on the platform and that too showed train No. 16523 Karwar Express, along with train No. 16517 Kannur Express.


A train arrived at 8.20 pm on platform 10, and the digital signboard indicated it as 16517 Kannur Express. Even the coaches on the train had boards that read Kannur Express. Anup verified his ticket to confirm that it said Karwar Express. The complainant said he checked the TVs installed on the platform and found they were either showing only advertisements, or were not working. The train on the platform began to move and as it left the station, Anup noticed to his dismay that some of the coaches at the end had boards which said Karwar Express.


Anup could not board the moving train. Later he came to know that both the Kannur Express and Karwar Express were pulled by the same engine. When he confronted the officials, he was refunded Rs 465 out of the ticket fare of Rs 945.


In the consumer court, the Divisional Manager of South Western Railways claimed that Karwar Express left Bangalore City Railway Station at the scheduled time of 8.40 pm and there was no delay. Since the display showed Karwar Express too, the consumer was not misled. He claimed that "train No 16523 Karwar Express and 16517 Kannur Express leave as a single formation from Bangalore to Mangalore, where they are bifurcated. The coach position is disseminated through a public announcement system and electronic display boards. Hence, there was no reason for the complainant to presume that the train would come late... "


The court in its order, said: "The facts clearly goes to show that there was no proper display at the railway station on platform No.10 clearly stating that both Karwar Express and Kannur Express are one and the same, and there was no separate display of the train number of Karwar Express on that platform....That led to confusion to the complainant. In our opinion, the contention of the complainant is acceptable because when two trains are departing from the same platform and pulled by the same engine, the opposite party ought to have displayed in the digital sign board the train numbers and the names of both the trains, and not doing so leads to confusion to passengers." The court directed the Railways to refund Rs 480 to Anup along with a compensation of Rs 5,000, and another Rs 2,000 as litigation cost.


LONG-LASTING CONFUSION

The confusion over the two trains from Bangalore to Karwar and Kannur is a creation of the Railways. Ever since the metre gauge track between Bangalore and Mysore was converted to broad gauge, there was a demand to introduce a night train to Karwar. The first train (on the broad gauge) was introduced between Bangalore and Mangalore, but it was extended to Karwar in 2009. It would have been a long distance train running entirely within Karnataka. However, the train was later extended to Kannur in Kerala. Then came a High Court order directing the train to Karwar. The Railways bifurcated the train. While a few coaches were extended to Karwar, and the others continued towards Kannur.
Meanwhile, from Independence Day this year, the Railways has decided to shift the origin point of Yeshwantpur Kannur/ Karwar Express to Bangalore City Railway station (Majestic) instead ofYeshwantpur. The reason? Kannur Express was creating confusion even at the Yeshwantpurstation. Passengers who used to board the train at Yeshwantpur (the originating point) were caught between two Kannur Express' which used to start from the same place and at almost same time! To avoid confusion about the two 'Kannur' trains (16527 and 16517) leaving Yeshwantpur at almost the same time, the combined Karwar/Kannur Express is now starting from the City RailwayStation, instead of Yeshwantpur station

Source - http://www.bangaloremirror.com/Bangalore/Others/Railways-fined-for-confusing-passenger/articleshow/40350694.cms

Jurisdiction of cheque dishonor complaint - Judgement

Dis-honour of Cheque cases can be filed only to the Court within whose local jurisdiction, the offence was Committed; ie, where the cheque is dishonoured by the bank on which it is drawn.

Bhaskaran Vs Balan (2009) which allowed Five territorial Jurisdictions overruled [Read the Judgment]On August 4, 2014 by M.A.Rashid

A three Judge Bench of the Supreme Court finally held that  a Complaint of Dis-honour of Cheque can be filed only  to  the  Court  within  whose  local jurisdiction the offence was committed, which  in  the  present  context  is where the cheque is dishonoured by the bank on which it is drawn. The Court clarified that the Complainant  is  statutorily  bound  to comply with Section 177 etc. of the CrPC and therefore the  place  or  situs where the Section 138 Complaint is to be filed is not of his choosing.

The Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr. Overruled the two Judge Bench Judgment in K. Bhaskaran v. Sankaran Vaidhyan  Balan  (1999)  7 SCC 510 wherein  it was held that “the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts.

Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice”.” if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.”

The Court accepted the view of another two Judge Bench Judgment in Harman  Electronics  Pvt.Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1  SCC  720. “It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence.

For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be  proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken.

 If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would.”.

Justice Vikramjit Sen who wrote the main Judgment held that “We  respectfully agree  with  this  statement  of  law  and  underscore  that   in   criminal jurisprudence there is  a  discernibly  demarcated  difference  between  the commission of an offence and its  cognizance  leading  to  prosecution.

The Harman  approach  is  significant  and  sounds  a  discordant  note  to  the Bhaskaran ratio.  Harman also highlights the reality  that  Section  138  of the NI Act is being rampantly misused so  far  as  territorial  jurisdiction for trial of the Complaint is concerned.  With the passage of time  equities have therefore transferred from one end of the pendulum to  the  other.

 It is now not uncommon for the Courts to encounter the issuance of a notice  in compliance with clause (b) of the proviso to Section 138 of the NI Act  from a situs which bears no connection with the Accused or with any facet of  the transaction between the parties, leave aside the place where  the  dishonour of the cheque has taken place.
This is also the  position  as  regards  the presentation of the cheque, dishonour  of  which  is  then  pleaded  as  the territorial platform of the Complaint under  Section  138  of  the  NI  Act.

No sanction needed to try public servant under IPC

No sanction is required to prosecute a public servant under the Indian Penal Code (IPC), even if mandatory approval under the anti-corruption law has been refused, the Bombay high court has held.

Dismissing the plea of two senior Small Industries Development Bank of India (Sidbi) officers to discharge them in a case lodged by the CBI, Justice Sadhna Jadhav ruled that they will have to face trial on charges of cheating and criminal breach of trust for the loss caused to the bank. But the judge allowed the prayer of the officers and transferred the case from the special CBI court to the magistrate's court.

"It is clear that refusal to accord sanction for prosecution under the provisions of the Prevention of Corruption Act can't be held to be relevant to try an accused for the offence punishable under the IPC," said Justice Jadhav, while rejecting the plea of the officers, A S Tewari and S V Karade.

The officers' claim that they had been exonerated in a departmental inquiry and the central vigilance commission had agreed with it, failed to impress the HC. "The onus to prove that they had a guilty intention...when the fraudulent transaction had taken place lies on the prosecution, and only because the department has exonerated them on unwarranted grounds, the prosecution can't be denied an opportunity to lead evidence to prove that the accused had the guilty mind and therefore, there was wrongful loss to Sidbi."

The case concerns Sidbi's agreement with Tata Motors, under which the latter's vendors would be paid by the bank, and Tata Motors would then pay the bank. Sidbi would pay Ranflex, a vendor, through cheques. In August 2008, Sidbi lodged a complaint with the CBI after Ranflex said it had not got payments. A probe revealed that Sidbi had made online transfers of over Rs 1.64 crore to a bank account in Thiruppur, which was a fictitious account in Ranflex's name. Tata Motors said it had never instructed Sidbi to make online transfers.

Tewari, Karade and a bank official, who is absconding, along with 10 others were named as accused. The bank refused sanction to prosecute Tewari and Karade on the grounds that the third official was responsible for the alleged fraud. The trial court discharged the duo under the anti-corruption law but framed charges under the IPC. They then moved HC saying they had approved the transactions "in good faith".

The high court said, "Connivance between the officers/accused who made said payments is writ large on the face of the record. Special CBI court had rightly observed that...criminal conspiracy to cheat the bank... can't be treated as an act done in good faith."

Source - TOI

Courts not a forum for mere policy commentary | Business Standard

Somasekhar Sundaresan: Courts not a forum for mere policy commentary | Business Standard:

The Doing Business 2013 report published by the World Bank and the International Finance Corporation is out. India now ranks a lowly 132nd out of 185 jurisdictions all over the world in the ease of doing business. The good news is that India ranks 27th out of 50 countries that marked an improvement since 2005. The horrible news is that India continues to have a pathetic record in the area of ease of enforcement of contracts – a shameful 184th out of 185 nations.

The report, now a keenly-awaited annual feature, studies how easy it is to start and run a business. This column will mainly focus on the chapter on enforcement of contracts across jurisdictions. “A judicial system that provides effective commercial dispute resolution is crucial to a healthy economy. Without one, firms risk finding themselves operating in an environment where compliance with contractual obligations is not the norm. While using alternative dispute resolution systems may have benefits, Doing Business focuses on how public institutions function in the case of a commercial dispute,” says the report. The study seeks to measure the time, cost and procedural complexity of resolving a commercial dispute between two domestic businesses. The study takes up a notional dispute – and interestingly, a small dispute between two domestic businesses.

“The dispute involves the breach of a sales contract worth twice the income per capita of the economy,” says the report. Twice the per capita income means a really small dispute – nowhere near the Vodafone type litigation, where parties have the luxury of engaging expensive senior counsel, whose skills and standing can attract greater attention of the courts. The study assumes that the court hears arguments on merits and that an expert provides an opinion on the quality of the goods in dispute. “The time, cost and procedures are measured from the perspective of an entrepreneur (the plaintiff) pursuing the standardized case through local courts.”

India ranks better than only Timor-Leste, an infant republic. For measuring India as the last but one rank in the world in enforcement of contracts, the performance of the Bombay High Court has been taken as the basis. Here is the report card: It takes 1,420 days to get a contractual dispute of this nature enforced in Bombay High Court – twenty days just to get filings and service completed, 1,095 days for trial and judgement and 305 days for enforcement. This is just a tad higher than the longest time taken by any nation – Suriname, with 1,715 days – and India ranks sixth from the bottom.

Taking close to four years to settle a dispute over a claim of a fraction of a lakh of rupees is a pathetic record, which is why most sensible lawyers are unable to advise clients to litigate unless the stakes are exponentially higher. Besides, the study does not take into account appeals. Appeals from a decision of a single judge to a division bench, and then to the Supreme Court, can take lives of their own.

There is worse to follow: The costs of such a dispute works out to 39.6 per cent of the claim – another pointer to litigation for enforcing a contract being meaningless unless the stakes are high. India ranks 40th from the bottom. Fertile ground for private commercial versions of khap panchayats to flourish. Little wonder why Indian movies and television serials depict the local police station or the local underworld (not necessarily always in competition) as the forums that are approached for effective justice. It takes an average of 46 procedures for a dispute enforcement process in India – 25th from the bottom, and only a wee bit higher than the 55 procedures applicable in Syria (which ranks the worst in the number of procedures).
Patriots may quarrel the choice of an over-burdened court, but such opposition would be misplaced.

The Bombay High Court is a good choice, considering that Mumbai is considered to the commercial capital of India. Besides, there is little point in assuming the forum to be an ideally-burdened court like Sikkim High Court, where the intensity and scale of economic activity of the territory it presides over is just not fully reflective of India’s economic standing and scale of growth.

The report also has a sub-national analysis. Pertinently, Mumbai comes out the worst and the next worst is another hub of commercial activity – Ahmedabad.Here, the time taken is 1,295 days, the procedures are 46 in number and the cost of enforcement is 30.9 per cent of the claim. Mumbai and Ahmedabad represent an enormous chunk of the tax-paying base of the nation. Without more focused and urgent attention to judicial reform, our courts will remain a mere forum for commentary on high national policy, forgetting its prime reason for existence – enforcing the rule of law among a nation’s subjects.

(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.) Email:somasekhar@jsalaw.com


'via Blog this'

Indian court dismisses challenge to presence of international law firms- Legalweek

From the Legalweek and Indian Express, 'via Blog this'

International law firms should not be prevented from visiting India to advise local clients on foreign law, an Indian high court has confirmed. The ruling comes in response to a petition questioning the legality of 'fly-in, fly-out' legal practices by foreign law firms as well as legal process outsourcing operations based on the ground in India.

The case was brought by Association of Indian Lawyers representative AK Balaji against the Government of India, the Bar Council of India and a list of more than 20 law firm defendants, including all of the UK's magic circle. The judgment, handed down by the high court in Madras yesterday (21 February), concluded that foreign law firms or foreign lawyers cannot practice law in India either on the litigation or non-litigation side, but that there is no bar for foreign firms or lawyers to visit India on a temporary basis to advise locally-based clients on foreign law issues. The court also said that foreign lawyers can enter India to handle "arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration."

In a statement, Clifford Chance said: "We think it is unclear whether the court is saying that foreign lawyers cannot otherwise practise non Indian law in India. If that is the case, we consider it to be unnecessarily and unreasonably restrictive and we believe would be a misreading of the Advocates Act, which we do not believe was ever intended to address the question of the practise of non Indian Law. We will be considering whether an appeal to get clarity on these points is appropriate.

"What also remains to be addressed by the Indian authorities is the bigger issue of collaboration and partnership between Indian lawyers and international law firms, and of international firms advising on Indian as well as non Indian law."

The news comes after the Bar Council of India last year agreed to set out a timeline for the liberalisation of its legal market, prompting the Law Society of England and Wales to proclaim it was confident that the long-awaited process was finally underway.

From the Indian Express - http://www.expressindia.com/latest-news/Foreign-law-firms-OK-to-flyin-flyout/914964/

In an important decision, the Madras High Court on Tuesday allowed foreign lawyers and law firms to do business in India on a “fly-in-and-fly-out” basis while categorically refusing their plea to be allowed to practice in India, whether in litigation or non-litigation. Hearing the A K Balaji versus Union of India matter, the Division Bench of Chief Justice M Y Eqbal and Justice T S Sivagnanam ruled that foreign lawyers couldn’t be “debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration”.

The court also paved the way for setting up legal process outsourcing (LPO) companies, but said they would have to stay away from court practice and giving legal advice, unless the advice pertains to foreign law.

Judgment - KPCL trips as Sirsi farmer delivers shock

Karnataka Power Corporation Limited (KPCL) will remember Jan 11, 2012 for a long time to come. It was the day when the corporation came close to losing its headquarters, thanks to a pugnacious farmer.

On a day of high drama, Shivram Goankar, a farmer from Bailkol village, North Canara district, embarrassed the KPCL no end when he, along with court and police officials, arrived at Shakti Bhavan (KPCL headquarters) in Bangalore to auction its property based on a court direction. And the reason for this unusual development? Compensation.
In 1997, the KPCL built a dam across Kali River to generate 512 lakh units of power. The Kali-Kodasalli power project was situated in Joida and Yallapura taluks of North Canara.
Due to the dam, five villages in Joida and Yallapura taluks and several thousand acres of land were submerged; over 400 families also lost their livelihood.
The KPCL, which had initially assured suitable compensation to the affected villagers, later went back on its promise and offered a meagre amount of land and money as compensation. When few farmers objected to the compensation package and demanded rehabilitation of the village in terms of providing basic amenities, the KPCL refused to raise the compensation, forcing the aggrieved farmers to knock the court’s doors.
Goankar filed a civil suit in the Sirsi court demanding more compensation. In his petition, Goankar argued that the compensation amount of `29 lakh was very less, besides KPCL had offered him only 3 acres when he had lost 5 acres of land.
Based on the petition, the civil court in 2005 had directed KPCL to pay an additional compensation of `28 lakh. However, KPCL approached the high court challenging the lower court order.
The HC not only upheld the lower court order, but also raised the compensation amount to `93 lakh. KPCL then approached the Supreme Court challenging the HC verdict, but the apex court quashed their petition on January 1 and directed KPCL to pay the amount at the earliest.  

ARTICLE URL: http://www.dnaindia.com/bangalore/report_kpcl-trips-as-sirsi-farmer-delivers-shock_1636516

2011: Productive year for Delhi High Court - India - DNA

2011: Productive year for Delhi High Court - India - DNA: 

'via Blog this' 

DMK MP Kanimozhi's bail successful hearing along with that of other high profile accused in the 2G case and upholding of jail term given to Sukhram in the 1996 telecom scam kept the Delhi High Court in the limelight. Delhi HC also questioned the basis of the cash-for-vote matter and granted bail to six accused.

The court's other significant orders and decisions included its refusal to grant interim stay on minority status accorded to Jamia Milia Islamia University, acquittal of sacked IPS officer RK Sharma in journalist Shivani Bhatnagar case and staying imminent deportation of 151 Pakistani Hindus, overstaying here on pilgrimage visa. Amidst all this, terror hit the High Court which claimed 17 lives at its doorstep on September 7. A powerful suitcase bomb ripped through the crowded reception area injuring 90 persons.

However, cases involving politicians and corporates kept the court busy. Rajya Sabha MP Kanimozhi, daughter of veteran Dravidian leader M Karunanidhi, Kalaignar TV CEO Sharad Kumar, Bollywood producer Karim Morani and two others got bail in the 2G case on the ground of parity after the apex court granted bail to five corporate honchos, saying "bail is rule and jail is exception." However, former Telecom Secretary Siddharth Behura, who is left in jail along with A Raja since their arrest on February 2, was not so lucky as the court allowed CBI's plea that role of public servants be put to "stricter" scrutiny as they are expected to be different from other accused. The court said Behura was the "perpetrator" of the illegal design of Raja and cannot claim benefit of parity with 10 others released on bail.

The trial court's verdict awarding life imprisonment to dismissed IPS officer Ravi Kant Sharma, who once served as the Officer on Special Duty (OSD) in the PMO, in the Shivani Bhatnagar case could not withstand scrutiny of the High Court which reversed the judgement. Sharma walked free after spending 10 years in jail. The court, in its judgement, itself raised questions as to who were behind the killing and what was the motive for it. It upheld conviction of Pradeep Sharma, one of the four persons, found guilty by the lower court, while setting free Sri Bhawgan and Satya Praksh besides RK Sharma giving them the benefit of doubt.

In a closely contested paternity suit, 85-year-old Congress leader N D Tiwari successfully avoided giving blood sample for the DNA test to ascertain the plea of 31-year-old Rohit Shekhar that he was his (Tiwari) biological son. A single judge bench of the court, which had earlier asked Tiwari to give blood sample, later reversed its own order and allowed the plea of the leader that he cannot be forced to give evidence against himself that too in a civil case. Rohit Shekhar has now challenged the order in a division bench, saying that it would be difficult to get justice unless Tiwari is forced to undergo the test.

Unlike Tiwari, his former party colleague and ex-Telecom Minister Sukh Ram, 86, was caught on the wrong side of the law with the high court upholding lower court's verdict awarding three year jail term to him in in the 1993 telecom equipment purchase deal to benefit a Hyderabad-based company. It also upheld conviction of Runu Ghosh, then Director in Department of Telecommunications, P Rama Rao, MD of Advanced Radio Masts (ARM) Pvt Ltd and asked them to surrender on January 5 to serve jail terms. Rao will have to undergo three years jail term while Ghosh would be in jail for two years. Sukh Ram was earlier awarded five years jail in another graft case and had to spend 10 days in jail before the High Court granted bail and stayed the trial court's verdict.

Former BJP President Bangaru Laxaman could not get any relief from the court in a case lodged after he was allegedly caught on May 13, 2001 taking bribe from undercover scribes of Tehelka portal for recommending to the Defence Ministry the purchase of their wares for the Army.

Arun Jaitley, leader of opposition in Rajya Sabha, however, won a legal battle against US-based Portfolio Brains LLC which was asked to pay a fine of Rs5 lakh to him for harassing him by running a website www.arunjaitley.com and refusing to transfer the domain name to him.

In a relief to Sikkim Chief Minister Pawan Kumar Chamling, the High Court dismissed a plea of a BJP leader seeking to declare him as a Nepalese citizen. The court said the complaint of BJP leader Padam Prasad Sharma was made to "gain political mileage".

Uttar Pradesh Chief Minister Mayawati also got relief as the court dismissed the Centre's appeal against the 2007 order of the Income Tax Appellate Tribunal (ITAT) that her birthday gifts were exempted from taxation under the IT Act. The Income Tax department had challenged the ITAT ruling exempting Mayawati from paying tax on the gifts worth nearly Rs 65 lakhs received by her from supporters in the form of two houses in Inderpuri in West Delhi and two cheques worth Rs one lakh each. The gifts were received on her birthday in 2004.

Delhi Police invited the ire of the court for lax handling of the case of extradited gangster Abu Salem following the revocation of his extradition by a Portuguese High Court on the ground that the terms of extradition agreement, entered into between India and Portugal, have been breached. The Portuguese court had taken note of invoking of MCOCA against Salem as it provided life term as maximum sentence which was in contravention of an assurance given by the then NDA government that he will neither be tried under any special law and nor be handed down jail term in excess of 25 years. Salem, extradited in 2005, was booked under MCOCA for allegedly making extortion calls to a Delhi-based businessman Ashok Gupta in 2002 demanding Rs5 crore as protection money.

In another case, the court dismissed the plea of Haseena Ibrahim Parker, sister of fugitive underworld don Dawood Ibrahim, filed against Centre's decision that she will not be issued a fresh passport. The External Affairs ministry had said that Parker cannot be issued a fresh passport as she might "misuse" it to help her brother's criminal activities.

In 2011, the court reserved its order on the prosecution of 19 witnesses including model-turned-actor Shyan Munshi on charge of perjury for turning hostile during the trial of the Jessica Lall murder case. Earlier, the court had issued notices to 19 witnesses and had raised questions as to how they all turned hostile. Lall was shot dead in April 1999 by Manu Sharma, son of Haryana Congress leader Venod Sharma, after she refused to serve a drink to him in a party at restaurant Tamarind Court in South Delhi. Sharma is serving life term in the case after the apex court upheld the HC's judgement.

The court took a sympathetic view of plight of 151 Pak Hindus and asked the Centre not to deport them back till it decides their plea seeking asylum or Indian citizenship. The Pakistanis, who fear for their lives in their homeland, face the danger of deportation as their pilgrimage visas have expired.

'Better late than never' is the phrase which could console Australian swimmer Susan Leigh Beer, who was awarded Rs 1.82 crore compensation by the court nearly 33 years after she slipped in a pool of an ITDC-run hotel here and became paralysed. Susan, 17, suffered from Quadriplegic, paralysis of all four limbs -- both arms and both legs-- after receiving head and spinal chord injuries during the fall in the pool of Akbar Hotel on the evening of May 5, 1978.

In a similar case, the High Court awarded a compensation of Rs 10 lakh to Nina Pillai, wife of Singapore-based Chairman of Britannia Group Rajan Pillai who died inside Tihar nearly 16 years ago. It held the state liable for lapses in providing medical care to Pillai, who was suffering from various ailments including alcoholic liver cirrhosis and died at a hospital here on July 7, 1995. He fled from Singapore to avoid a jail term in a criminal case there.

The court also upheld the conviction and award of life term to political activist Hari Singh for hijacking an Indian Airlines flight in March 1993. Singh, who has been on bail since July 18, 2003, was told to surrender before the lower court to undergo the sentence.

Capital Punishment to Lashkar-e-Taiba operative Mohammed Ajmal Amir Kasab Confirmed by Bombay H.C. - News

The Bombay high court on Monday confirmed capital punishment awarded to Lashkar-e-Taiba operative Mohammed Ajmal Amir Kasab for his involvement in the horrendous 26/11 carnage in Mumbai that aimed at overawing the Government of India and weaken its economic might. “The brutality, perversity and cruelty exhibited by Kasab in committing multiple murders of innocent men, women, children, aged persons and policemen … makes this case a gravest case of extreme culpability,” observed the high court while confirming death sentence for the 24-year-old Pakistani national. “He indulged in mindless killings of innocent people with a view to overawing Government of India, and achieve cessation of Indian territory (Kashmir),” the bench observed further. “He took devious pleasure in killing people.” The court noted that in some cases harsh penalty of death is necessary to warn those who may want to take a similar path, and a wrong signal will be sent that the courts are ineffective in dealing with crimes as serious as this, if the strong arm of law failed to deal with Kasab firmly. “Soft handling of a crime like this will erode the public confidence in the efficacy of law,” the bench said while issuing a warning: “We want those who are desirous of emulating him to know that courts do not take a kindly view of such people.” The judges also noted that the LeT operative never showed any remorse or repentance for what he had done, and instead loudly proclaimed that he wanted to be a role model for others.
- Hindustan Times

The strongest aggravating circumstance which nailed Pakistani terrorist Mohammed Ajmal Amir Kasab was the manner in which he waged war against the Government of India, the Bombay High Court noted Monday in its 1,215-page judgment while upholding the death sentence on the Pakistani terrorist. The conspiracy was hatched in Pakistan with the objective of destablising the Indian government and weaken India’s economic might. ‘He (Kasab) indulged in mindless killings of innocent people with a view to overawing Government of India and achieve cessation of a part of Indian territory. There was an attempt to create ill-will and disaffection between different religions of India so as to damage its secular fabric. Waging war is a serious crime which calls for deterrent punishment,’ a division bench of Justice Ranjana Desai and Justice R.V. More said. Stating that it was difficult to agree with the defence argument that he was mentally disturbed or not sane, the judges said: ‘In our short interaction with A1-Kasab on Video Conferencing, we observed his demeanour. He did not appear to be repentant at all. He was perfectly sane. He was in proper frame of mind. All his actions, the manner in which he committed the crime, his cleverly trying to change his stand in the court and other attendant circumstances portray a scheming mind and not a mind of a mentally unstable person.’ Rejecting outright the defence argument that Kasab was a Fidayeen who had come here to die and his death would make him a martyr, the judges said that on their GPS systems, Kasab and his accomplices had saved the routes from Mumbai to Karachi.

- iNewsOne

Talking judges - A.G. NOORANI - Frontline.in

Talking judges - A.G. NOORANI - Frontline.in 

On the comments that judges make and the language they use.

“ Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well-tuned cymbal.”

– Francis Bacon's Essays (Of Judicature).

THERE is no precedent in the entire annals of India's judiciary for the anguished statement issued, on January 23, by members of civil society across the country. They took strong exception to the Supreme Court's observation that “though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity”.

The Bench, which comprised Justices P. Sathasivam and B.S. Chauhan, went on profusely to denounce conversions. As H.M. Seervai's work on Constitutional Law of India (Volume II, pages 1,286-1,290) records, the Supreme Court has been uneasy about Article 25, which embodies the fundamental right “freely to profess, practice and propagate religion”. One wonders if the murder of Graham's sons, Philip and Timothy, aged 9 and 6 respectively, was also a part of the educational effect by their killers.

The crime was perpetrated on the night of January 22-23, 1999, in the Keonjhar district of Orissa. President K.R. Narayanan said on January 24, 1999, that it “belonged to the world's inventory of black deeds”. The very next day Home Minister L.K. Advani gave a clean chit to the Bajrang Dal, which was widely blamed for the outrage. “I have known those organisations for a long time and they do not have criminal tendencies,” he said. The Bajrang Dal was his praetorian guard as he spread communal poison during his rath yatra in 1990. The Orissa government's probe conducted by an IAS Officer, Ranglal Jamuda, found that “Dara Singh [the main suspect] is a strong activist of the BJP”. Three Ministers of the BJP-led government – George Fernandes, Naveen Patnaik and Murli Manohar Joshi – went to Keonjhar on January 27, 1999, and came away pleased. “There does not seem to be any motive. I have known them for a long time,” Advani gratuitously and confidently added. On this point, the court has proved him wrong.

That was not all. Justice D.P. Wadhwa of the Supreme Court was appointed on a Commission of Inquiry into the crime. His report was a whitewash. He even brushed aside the labours of counsel for the Commission, Gopal Subramaniam (vide Wadhwa Commission Report: A Critique edited by Dr. M.P. Raju, Media House, Delhi). The Supreme Court could not have been unaware of the horror the crime had aroused and the disquiet over the behaviour of the BJP-led Government of India and one of its own judges. If its judgment of January 21, 2011, aroused unprecedented criticism, its response to it was little better. On January 25 the offensive paragraph was dropped to be replaced by another; in each case to justify the award of a life sentence rather than a death sentence. It read: “However more than 12 years have elapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paragraphs.”

The paragraph about “interfering in someone's belief by the use of force… conversion… upon the flawed premise that one religion is better than the other” was replaced with these lines: “There is no justification for interfering in someone's religious belief by any means.” By this logic the entire media are constantly “interfering” with the beliefs of readers or viewers – on matters political, economic, social. One is reminded of the remark of a semi-literate politician in Mumbai who told Warren Unna of The Washington Post that he did not read books because he did not wish to “mix” his thoughts with those of others.

Compare this leniency with excess in another case. Common to both is intemperate but very revealing language. In the case of Afzal Guru, the Supreme Court, while confirming the death sentence on August 4, 2005, made remarks which were repugnant to good sense and unworthy of judicial temper.

Justices P. Venkatarama Reddy and P.P. Naolekar said:

“The incident, which resulted in heavy casualties, had shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators can only be compensated by giving maximum punishment to the person who is proved to be the conspirator in this treacherous act. The appellant, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct” ( State (NCT) of Delhi vs Navjot Sandhu (2005) 11 Supreme Court Cases 600 at page 760). The Nuremberg Tribunal used more dignified words in its pronouncement on the Nazis. There are three particularly disturbing aspects in the Supreme Court's pronouncements. First, its consistently illiberal position in certain recognised categories of cases illustrated by these two and on the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Prevention of Terrorism Act (POTA) and the Armed Forces Special Powers Act, 1958. Secondly, it deploys florid rhetoric, reflective of patriotic zeal, while giving short shrift to the citizen's rights. Justice E.S. Venkataramaiah waxed eloquent, quoting Abraham Lincoln, while refusing even to entertain H.S. Longowal's habeas corpus petition.

Lastly, besides usurping powers which do not belong to the judicial office – on which a thorough expose is overdue – judges of the Supreme Court feel themselves free and utterly unrestrained in their off-the-cuff remarks on everyone else – lawyers, legislators, authorities, almost anyone. The press is slow to respond. It meekly submitted to an oral order, made without jurisdiction, that the remarks should be attributed to “the Bench” not to the individual judge. “The Bench”, however, speaks only through its judgment. It is the individual judge who shoots his mouth off.

The court cites English law, but in England the law and practice would have nipped this tendency in the bud. In an article entitled “In Contempt, and with reason” in The Times of February 7, 1991 – before it degenerated into a squalid tabloid – Bernard Levin wrote on “the arrogance of the judges” and asserted that “public confidence in the judicial system collapsed completely because of the judges”. (Italics here as in the original.)

When a highly respected judge like Lord Justice Salmon made some comments on the celebrated journalist David Frost, he hit back with a letter in The Times of July 18, 1968, which ended with this censure: “Tirade without trial by Judge is becoming a somewhat more prominent part of our national life”.

Is there any, but any, apex court, anywhere in the world, whose judges display bad temper with repeated acts of “outburst”, “pulling up” and the like? The media has not only a right but a duty to report them. When they are reported, judges squirm with embarrassment and complain of the report, not unlike the manner politicians do.

On December 13, 2010, said a report in The Times of India the next day, “A bench comprising Justices G.S. Singhvi and A.K. Ganguly said it had mentioned about a senior official in the Union government saying the Radia tape disclosures were the ‘tip of the iceberg' during the hearing relating to a petition on 2G spectrum scam.

“When I got back home, my wife asked what order had we passed? I found that TV was reporting “SC raps home secretary”. What is this rap? We had just inquired whether the transcription of all the tapes had happened or not,” said Justice Singhvi.

The Bench said, “We are finding distorted reporting of court proceedings. We will make it clear – do not take the risk of being hauled up. We make it very very clear – nobody will be allowed to play with court proceedings. There are exchange of views, they do not constitute court proceedings.” That “exchange of views” in open court is not a private affair like deliberations in the judge's chambers. They are a public proceeding that the press has a right to report. Cases of serious or wilful distortion are another matter. The threat “do not take the risk of being hauled up” was unjustified.

On August 7, 1995, Justice J.S. Verma indicated that, not content with the constitutional limits to the fundamental right to freedom of speech [Article 19(1)(a)], listed in clause (2), the court might itself lay down additional limits in Article 19(1)(a). “The time has come for this court to lay down some inherent limitation in clause (1) itself so that something obnoxious which is not contemplated under the guaranteed freedom and content of clause (1) itself excludes such situations” ( The Hindu, August 1995 – PTI). Fortunately, this was not attributed to the Bench. Of course, the court has no such power to amend the Constitution. But what Justice Verma “contemplated” speaks a lot for his judicial outlook. The court is touchy in the extreme as its judgment in the Arundhati Roy case showed. On another occasion, on May 2, 2008, Chief Justice K.G. Balakrishnan said: “We are always at the receiving end.” The metaphor has sadly come true for him, personally, in recent days.

Lacking in restraint

What is lacking, even when censure or criticism is due, is a lack of restraint and, at times, even of good sense or good taste. Justice Markandey Katju was once a judge of the Allahabad High Court. On November 26, 2010, he said in the course of a judgment: “Something is rotten in the Allahabad High Court.” Justice Gyan Sudha Misra was another member of the Bench. A Full Court of the Allahabad High Court applied for expunction of the remark.

The issue is not the existence of the rot but the appropriateness of the judge's remarks. The Bench said: “We are sorry to say but a lot of complaints are coming against certain judges of the High Court relating to their integrity. Some judges have their kith and kin practising in the same court, and within a few years of [their] starting practice, the sons or relations 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.”

The Bench added: “There are also other serious complaints against some judges. The High Court really needs some house cleaning [both the Allahabad and Lucknow Benches], and we request the Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfer of the incorrigibles” ( The Hindu, December 9).

There are mechanisms to deal with these matters and if they are inadequate it is because successive Chief Justices of India and the court have impeded reform. When the High Court's application came up for hearing, Justice Markandey Katju told its counsel: “I know about the Allahabad High Court 100 times more than what you know.”

This personal comment in sheer bad taste was followed by an order on December 10, 2010, which read thus: “One of us [Justice Katju] has close attachment to the AHC as his family has been associated with the High Court for over a century. It is, therefore, inconceivable that he would like to damage the High Court in any way. However, what has caused great pain and anguish to us are certain unfortunate happenings for some time in the AHC. It is not necessary to mention all of them here, but reference can certainly be made to certain distressing orders passed during the summer vacation by certain judges this year, one of which pertains to this very case.”

Referring to the submission that the observations “we have made in our [November 26] order seriously damage the reputation of the institution” and sully its image, the Bench said: “The reputation of an institution is damaged and its image sullied when some of its members pass shocking orders and behave in a totally unacceptable manner. We can quite appreciate the anguish of some of the learned judges of the Allahabad High Court, but we cannot overlook the fact that there are times when introspection is required, and not mere reaction. We earnestly request the judges of the High Court to consider our order in that spirit. We again reiterate that there are many excellent judges in the AHC who are working hard and doing their duty honestly, and we have not tarred everyone with the same brush” ( The Hindu, December 11).

The judge's “attachment” and “pain” cannot warrant his use of intemperate and sweeping censure of an apex court of a State. What confidence can it command hereafter from the lower courts and the public at large in Uttar Pradesh and nationally? Introspection is not counselled thus. It is the Supreme Court judges who should do some introspection on the language they use and, certainly, on their encroachments into the legislative and executive spheres. No judge has any right to import his personal knowledge into a case. Neither Justice Katju's pain and attachment nor his family's 100-year-old association with the court can justify the sweeping remarks he made.To Justice Arijit Pasayat a terrorist “is not fit to be called a human. He's an animal, so what is required is animal rights” ( Indian Express, January 28, 2009). No judge has any right to use such language at all.

On August 5, 2008, Justice B.N. Agarwal of the Supreme Court said: “The whole government machinery is corrupt, whether at the Centre or in the States. They [senior officials] don't apply their mind, rather they don't have a mind. They don't have guts to differ with the opinion of the clerks.” When Justice Singhvi intervened to say, “God alone will have to help this country”, Justice Agarwal said: “Even God will not be able to help this country. God is a mute spectator as he also feels helpless. Our country's character has gone. We are helpless” ( The Hindu, August 6, 2008).

On August 7, 2008, the same judge, Justice B.N. Agarwal, told a senior counsel like Shanti Bhushan: “You are not behaving like a lawyer. You are arguing like a street urchin” ( Indian Express, August 8, 2008). What are we coming to? Can you imagine such language and behaviour by judges in any other country? And that in an apex court.

On August 8, 2008, a “Bench” of the Supreme Court, comprising Justices B.N. Agarwal and C.S. Singhvi, said: “In this country you need huntering (sic) to make you work.” We do not know who said that for the PTI report in The Tribune, said “the Bench”. By “huntering” the judge presumably meant flogging. The provocation? The failure by the police and other officials to respond to notices on policemen who do not register first information reports (FIRs). “Is this Ram rajya in this country…. So this is swaraj. This is the concept of swaraj.”

On January 5, 2007, “the Bench” objected to Additional Solicitor General Vikas Singh's perfectly legitimate plea that its orders in the “forest matter” violated statutes. Whether it was justified or not is not relevant. He had every right to make such a submission. The Bench comprised CJI Y.K. Sabharwal and Justices Arijit Pasayat and S.H. Kapadia. We do not know but can only guess which of them said that counsel spoke “with utmost irresponsibility. Don't repeat what you are saying. It is blasphemous (sic) on your part to say this. Don't utter words that we are not respecting other institutions. You are trying to create an impression that the court was doing beyond what was permissible under the Constitution. We take strong exception to what you are saying which is nothing but contempt.” That is an astounding proposition. It is not contempt of court. The threat was an idle one.

Unperturbed, the ASG said: “You cannot gag me like this by saying it is contempt. The Central government has its own responsibility. What we have done is not less than what the Supreme Court has done. Hear me on this. I will satisfy you how the court had passed several orders contrary to the statutes” ( The Hindu, January 6, 2007).

This tendency to make intemperate remarks is of a piece with the trend of usurpation of power. On October 16, 2006, a Bench comprising Justices Arijit Pasayat and Lokeshwar Singh Panta went so far as to “request Parliament not to take any final decision on the Bill (introduced on August 24 on reservations in educational institutions) without our examining the matter” ( The Hindu, October 17, 2006). Even a lay person knows that courts can rule on a law only after it is enacted. The order had to be modified on October 17 after strong public criticism. A Bench comprising Y.K. Sabharwal, A.R. Lakshmanan and L.K. Thakkar once asked the Centre to file a status report on the Lok Pal Bill – a clear intrusion into the legislative realm. The trend had begun much earlier but was ignored. On June 7, 1985, Mrs Justice Padma Khastagir of the Calcutta High Court made remarks against the highly respected leader of the Bar, the Advocate-General of West Bengal, S.N. Acharya: “The reprehensible part played by the Advocate-General… has not only lowered the position of the Advocate-General but also been derogatory to the reputation of the High Court.” He was alleged to have appeared in a case without authority. Only four days later, a Division Bench of the same court ordered expunction of the remarks. Whose prestige suffered as a result?

Of strictures and dignity

But what is one to make of remarks by men sitting on the Bench, which are intemperate, sweeping and utterly uncalled for? Whether made in the course of the hearing or at the end of it in the judgment, they serve only to affect the dignity of the judicial office. On the other hand, a stricture that is measured and necessary enhances the dignity and authority of the court and of the judge, personally.

In 1985 a defamation case was filed by Rahul Bedi and one of the country's most distinguished academics, Ashis Nandy, against a judge of the Delhi High Court, Justice Yogeshwar Dayal. In February 1985 the judge had presided over a Division Bench with Justice B.N. Kirpal to hear a writ petition seeking an inquiry into the disturbances in New Delhi in 1984 after Indira Gandhi's assassination. In the course of proceedings, the famous PUCL-PUDR report entitled “Who are the guilty?” was cited. It had been prepared ably by journalists and academics.

On February 6, 1985, Justice Yogeshwar Dayal characterised journalists as “wretched”, adding that “professors are worse”. For good measure he said, “civil liberties organisations serve no purpose”. On February 18, the Press Association of Delhi censured the judge for his remarks as being “grossly unfair and unjust to the journalistic community”. The censure was perfectly justified.

On April 2, 1940, one of the most prestigious journals carried a strong criticism of sweeping judicial pronouncements by one of the most distinguished men we have ever known. The journal was Harijan. The writer was Gandhi. Two English judges of the Allahabad High Court had, while criticising the testimony of some witnesses, spoken of “the slight value placed upon truth in this country”.

Gandhi's strictures were justified. “This is an extraordinary pronouncement from a bench of judges. What legal basis had these two judges for the sweeping statement made by them as to the character of a whole nation? The inference is that in other countries a higher value is placed upon truth…. They can never be proved. But when they are made by judges they vitiate their judgments and may lead to miscarriage of justice. Be it noted that the Allahabad judges have made use of their bias in coming to their decision and have thus proved their incapacity to hold 

responsible posts.”

Postscript: Sample this, the latest in the series. On January 25, 2011, a Bench of Justices G.S. Singhvi and Asok Kumar Ganguly said: “Governments give crores to cricketers. They are garlanded and given plots. But look at the plight of A.K. Hangal. He doesn't have enough money to pay his medical bills.” ( The Telegraph, January 26.) Is the court a court of law or a monitor of executive behaviour in the realm of executive discretion ?