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.

Bitcoin/ Cryptocurrencies

Catch the latest information on cryptocurrencies HERE. It shall be updated regularly.

Manipur Governor Removed

On 6^th August 2014, the President of India, in an unprecedented move, sacked the Governor of Manipur, Ms Kamla Beniwal, with just a little over four months left in her tenure. Ms Beniwal was recently transferred to Manipur from the State of Gujarat. The reason cited for her removal is that she had misused the Governor’s office, while she was in Gujarat, to make several unauthorised air travels using the State aircraft.

The opposition has criticised the Government’s move stating that there was political vendetta behind the removal of Ms Beniwal. The ruling party has denied such allegations.

For more information on the Appointment and Powers and Functions of Governors under the Constitution of India, CLICK HERE.

Sharia Courts have no legal backing: Supreme Court

On 7^th July 2014, the Supreme Court gave judgment in the case of Vishwa Lochan Madan v. Union of India. The bench of Justice C.K Prasad and Justice P.C Ghose observed that Sharia courts do not have any Constitutional validity. However, the court declined to pass orders putting a ban on such courts.

The Writ Petition was filed by an advocate, Mr Vishawa Lochan Madan. Two very disturbing cases where wives were forced by such courts to separate from their husbands after their fathers in law raped them. In both cases the so called courts acted on their own, without any complaint from any of the persons concerned. In the first case, one lady, Imrana, was raped by her father in law. The Dar-ul-Uloom of Deoband issued a Fatwa in regard to the “marital status” of the woman. The Fatwa quoted the Holy Quran which reads: “Marry not the woman whom your father copulated”.  The marriage was dissolved and the husband and wife were restrained from living together. The shocking part was that neither approached the Dar-ul-Uloom. The second case was exactly the same.

The petitioner prayed the court for a declaration that such activities being pursued by All India Muslim Personal Law Board and other such organizations in the establishment for Muslim Courts and Sharia Courts are illegal and unconstitutional.

The Central Government maintained that Fatwas were advisory in nature and had no legal backing. Dar-ul-Qaza could be construed as an alternate means of dispute resolution in an amicable and inexpensive manner. However, they do not have any authority to enforce their judgments so they were not in conflict with the Indian judicial system. Various State Governments also stated that Fatwas have no legal value.

The Court observed:

            "It [fatwa] has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal."   

The Supreme Court termed ‘Fatwa’ as “an informal justice delivery system with an objective of bringing about amicable settlement between the parties”. The court refused to declare the process of issuing of Fatwas as illegal as it was within the discretion of the persons concerned whether to “accept, ignore or reject” it. However the court issued a warning:

            "No Dar-ul-Qazas or for that matter, anybody or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it."  

Failed relationships behind rise in cases of rape: Delhi High Court

A bench of Justice Kailash Gambhir and Justice Sunita Gupta recently observed that failed live-in relationships and young adults getting into hasty commitments, which often result in break-ups, are responsible for triggering the number of rape cases. The Supreme Court also raised the question whether “failed consensual relationships” can lead to rape charges. This is not the first time that such contentions have been raised by courts. Last year the Delhi High Court had remarked that rape cases were being used as a weapon for “vengeance” and “vendetta”.

Consider these cases:

1.      The Deccan Chronicle, on 27^th June 2014 reported that a woman constable accused her live-in partner of three years of raping her. The man accused of the crime had not been arrested till that date.

2.      On 10^th February 2013, The Hindustan Times reported about a youth charged with raping his live-in partner. They had been in a relationship for five years, which ended when the boy’s parents objected. The girl claimed to be under “mental and physical trauma” because of the boy’s family.

3.      On 25^th May 2012, The Times of India reported that the Supreme Court had rejected the bail application of a man accused of “raping” his live-in partner of 8 years. The background of the case is that this Delhi based couple were in a live-in relationship since 2004. In late 2011, when the man’s family “opposed” his relationship with the girl, he apparently agreed to marry the girl of their choice. Now when the girl came to know of this, she filed a complaint eight days before the date of the marriage. She later withdrew the complaint when family members intervened. After the marriage was solemnised, she again filed an FIR. The man was charged with “rape“, on the “pretext of marriage”. He was denied bail.

4.      In 2010, NDTV reported about a man from Haryana being charged with rape on his live-in partner. Reportedly the man left the woman when she asked him to marry her when she got pregnant.

5.      Back in 1986, Australian citizen, Kevin Ibbs, a resident of Perth was charged with Sexual Assault for “continuing” intercourse for a short time, “after” the woman had revoked her “consent”. The woman apparently withdrew her consent while the two were engaged in the act of intercourse just when Ibbs was about to ejaculate. Ibbs was sentenced to four years imprisonment. The woman later admitted that the whole incident was orchestrated. In 2008, seven years after his release, Kevin Ibbs committed suicide.

The law regarding rape and sexual assault is clear. If a woman claims that the intercourse was non-consensual or the consent was with the condition of marriage, the act becomes rape, as can be seen from some of the cases described above. The 2013 Criminal Law Amendment Act reiterates this. How far it is just is a matter of debate.

Consider a hypothetical situation: A man and a woman fall in love. They decide that they want to spend their life together. They enter into a physical relationship. Some years later they begin to drift apart and eventually end their relationship.

Another situation: A man begins “pursuing” a woman. He promises to marry her in due course. Meanwhile, he enters into a physical relationship with her. Later on he ends the relation citing some absurd reason.

Now the women, in both cases, file a complaint against the men alleging rape on the pretext of marriage.

Which of these complaints sound genuine and should stand?

The judiciary must be very careful in dealing with cases of sexual assault where the accused and the victim were in a relationship. Rape laws must not be used as a tool for revenge by jilted lovers.

HERE is a list of anti-sexual violence laws in India and the changes made by Criminal Law Amendment Act of 2013.

Appointment of Judges- The Collegium System

The process of appointment of judges of the Supreme Court and High Courts has been sort of a mystery. While the Constitution does contain provisions for the appointment of Judges, it does not law down a specific procedure. Presently, the appointment of Judges is carried out by the Collegium system which was developed through a series of Supreme Court Judgements, known as the Three Judges’ Cases. Judicial Appointments Bill was drafted by the previous government. This bill proposed to do away with the collegium system, which has been criticised on various grounds, and create a Judicial Appointments Commission, consisting of CJI, Supreme Court Judges, Law Minister, Law Secretary, eminent jurists and the Leader of Opposition in the Lok Sabha. Article 124 of the Constitution, which talks about appointment of Supreme Court Judges, was to be amended to make JAC as the advisory body.

Judicial Reforms, especially those related to the appointment and transfer of judges in the higher judiciary are highly desirable. Judiciary should above controversy and suspicion. The appointments should be based only on merit and not on any other factors.

Here is a detailed analysis of the COLLEGIUM SYSTEM and the <<Judicial Appointments Bill>>

Gopal Subramanium Withdraws Candidature

Mr Gopal Subramanium today withdrew his candidature for appointment as a Supreme Court Judge. This comes after the Ministry of Law and Justice rejected his name from a list of four names recommended for appointment as Supreme Court Judges. In a letter to the Chief Justice of India, Mr Subramanium described the Law Ministry’s move as a “dirt digging exercise with a clear mandate to describe me as unsuitable”. He further stated that he was being targeted for “displaying integrity and independence”. He also expressed his disappointment as the Supreme Court “did not stand by him”. As per settled law, even after a name is rejected once, the Law Ministry shall have to clear it if the collegium reiterates its recommendation.  

Mr Subramanium, a Senior Advocate, along with three others, Senior Advocate, Mr Rohinton F. Nariman, Chief Justice of Calcutta High Court, Justice Arun Mishra and the Chief Justice of Orissa High Court, Justice A.K Goel had been recommended for appointment as Judges of the Supreme Court of India. While the Law Ministry cleared the names of the other three persons, Mr Subramanium’s name was rejected after the Central Bureau of Investigation (CBI) alleged that he met with the lawyers representing the former Telecom Minister A. Raja in the 2G case. It was also alleged that he had links with the corporate lobbyist Niira Radia.  Mr Subramanium has denied these allegations in his letter.

Mr Subramanium has also served as the Solicitor General of India but resigned in 2011 over differences with the previous government.