The Bench & Transfers

January 2016 has seen a major reshuffle in the High Courts of India with chiefs of nearly 10 high courts changed without the elevation of any judge to the Supreme Court of India and as per sources some more transfers to follow by.

Starting from the nearest High court of Punjab and Haryana.  Their two senior most judges Justice S.K. Mittal being sent to Rajasthan High Court to preside as Chief Justice for Rajasthan. Justice Mittal, who was elevated as a judge in July 2002 is probably witnessing the first transfer of his tenure. 

Thereafter, Justice Mr. Hemant Gupta the second senior most judge of the High Court of Punjab and Haryana is now the Acting Chief justice of Patna High Court. As per court rumours the new ACJ will be promoted as the chief very soon. But, it is still unknown what has prevented the same now.

Moving forward, Justice Mr. Ajit Singh who was the acting Chief Justice of the Rajasthan High Court has got his new seat as the Chief Justice of the High Court of Gauhati. A wonderful place to spend time and that too in a dignified protocol. Another judge, the Chief Justice of Orissa High Court Justice Mr. D H Waghela has got a bigger High Court. He will now preside from the bench of High Court of Maharashtra (I fail to interpret this as an increment or a burden).  Allahabad, a major centre for bar and bench cannot be left untouched in this resettling, the senior most Judge Justice Mr. Vineet Saran has been moved to Orissa High Court as Chief Justice (It is rumoured that he was not sharing cordial relations with the his chief). Another senior judge of the Allahabad High Court Justice Mr. Dinesh Maheshwari has replaced Chief Justice of Meghalaya High court Justice Mr. U.N. Singh who got retired. Justice Mr. U.N. Singh (retd) was the senior judge in Lucknow bench of Allahabad High Court before being transferred as Chief to Meghalaya. Now, as per the sources he will preside in the State Human Rights Commission of Delhi. 

Acting Chief Justice, Justice Subhro Kamal Mukherjee of Karnataka High Court has been appointed chief justice of Karnataka High Court (???).  Lastly but not the least senior judge of the Andhra Pradesh High Court as been moved to Gujarat as the Acting Chief Justice. Now Justice R Subash Reddy has develop a liking towards khakra and phapara to soon hold the chair of the chief justice of Gujarat High Court!

Apart from these transfers, as per rumours in the fraternity, the Chief Justice of the High Court of Uttar Pradesh Justice Mr. D.Y. Chandrachund (a known surname in the legal fraternity of India) is coming to Delhi (a major setback to AAP government, because he is very famous for his orders against the government). Justice G Rohini is moving to the Madras High court from Delhi by handing over the charge to Justice Mr. D Y Chandrachud (if rumours are to be believed). The Chief Justice of Madras High Court Justice Mr. Sanjay Kishan Kaul being sent to Allahabad in the same capacity.  Let’s see what improvements or deficiencies the bar has to witness as a result of these reshufflings. 

Courtesy: Rahul Dubey, Advocate

Survival Kit for Fresh Lawyers!

Legal luminaries have, for long, steered clear of the issue of "unequal" treatment of cases by the members of judiciary. Although it is not a common practise, it is not unheard of; for some of our judges to treat cases before them not on the basis of merit but on the basis of the social standing of the litigating parties and the face-value of their counsels (lawyers).

We discuss and appreciate the judiciary; and rightly so, for the remarkable work that it has carried out over the years, but somewhere we tend to forget or merely ignore the other (darker) side. It is of utmost importance to keep the most important part of the democracy, the saviour of the people, free from all forms of corruption.

DISCLAIMER: The following satirical piece does not in any way try to generalise the entire legal fraternity; it is only meant to highlight a small area which indeed is facing these issues.

1. The Uncle

To survive here, you have to have an uncle. How would he be of any help, is that what you ask? To this my friends, you must know that all the "law" you learnt back in your law-school was pretty much useless. Unless your uncle puts in a word for you, you are doomed. Right from finding you a job, to appointment as a local commissioner (we're talking big bucks here), to even being heard, you HEARD that right (pun intended), BEING ACTUALLY HEARD by their lordships; your uncle can get it all done!

But wait! Don’t let go of your uncle yet. He will eventually get you big clients and help you establish a law practise (least amount of law involved) and it’ll flourish! You will end up using the uncle’s name for most of your life. And your children too will.

2. The Brother Judge

This works when your father is a judge. The brother judges (and the entire court staff) will take care of you. You needn’t worry about those long queues and the rude dealing assistants anymore. Need I say anything more?

3. Above the law

You have to understand the basic principle of law; the judge is above everyone else. This includes the law. So, keep those law books out and do not ask questions. Do not search for logic. Do not even try to cite precedents. Article 14 does not apply here nor does the law of precedents, which you crammed up in the law school. Focus upon the first two points.

Don’t have an uncle? Bad luck. Try to find an uncle!

4. Quantity; not Quality

The number of cases disposed of (judgments delivered) is directly proportional to the chances of elevation. So, do not, I repeat, DO NOT question the decision! Refer to point number 3 in case of doubts.

Arbitration Amendment Ordinance

The Arbitration Amendment Ordinance brought on 23^rd October 2015 to amend the act has brought greater objectivity and accountability to the arbitrators, parties and courts. The ordinance has actually strengthened the objectives of arbitration, as new teeth have been added to the Act. The provisions of time bound arbitration, adoption of speed track adjudication, lesser overlapping with courts, disclosure and qualification requirements, special provisions for international commercial and domestic arbitration, public policy grounds etc are the much awaited changes that would bring back the offsetting advantages of arbitration in India. Some of the few points of the amendment ordinance to mention are:- 

1.     The differentiation in courts for arbitration and International Commercial Arbitration.   

2.    Insertion of new clause enabling a party who is not in possession of certified copy to make a  request to the court to present the copy of the arbitration agreement.

3.    After appointment of arbitrator through court the arbitration has to start by default within 90 days or as the court may indicate.

4.    Insertion of two new sub clauses, for disclosure of any relationship and interests of arbitrator with party(s). Followed by explanations for disclosures in schedule 5 and 6. (newly inserted schedules)

5.    new clause has been introduced, that the respondent can submit counter claim or set-off before the tribunal.

6.    Time limit of award is 12 month from the date arbitral tribunal constitutes.  Though, the period can be extended by the will of parties but not more than for 6 months.

7.    The mandate of the tribunal will expire if the award is not made within specified time unless the court extended the period.

8.    The court can replace arbitrator while deciding the application for extension of time, the proceedings will continue from the same stage. Such application has to be disposed of within 60 days.

9.    The rate of interest in the award has been changed from 18% to 2% higher than the current rate of interest prevalent on the date of award from the date of award to the date of payment.

10. Addition of four new schedules,

            i.      Fourth schedule, to assist High Court on model fee structure for arbitral tribunal,

            ii.      Fifth schedule, reasons as to give justifiable doubts on partiality and transparency of arbitrator(s).

            iii.      Sixth schedule, form regarding qualification of arbitrator.

           iv.      Seventh schedule, arbitrator’s relationship with party or counsel.  

All in all, it’s a worth appreciating finely drafted piece of legislation. But, a question which needs to be acknowledged is, why such significant and radical changes have been brought through an ordinance, overpassing the needed debates in the house which could add more charisma to the amendment. In nutshell, the amendment has enriched and thickened the pith, ethos and spirit of the Act, thus reviving its soul.