legal news of india: July 2014

Thursday, 31 July 2014

Nepal parliament panel okays energy deal with India

A parliamentary panel in Nepal asked the government to sign as soon as possible a "Power Trade Agreement" (PTA) with India under which New Delhi has proposed 100 percent Indian investment or joint ventures with Indian entities in the Himalayan country's power sector.

Both sides held marathon negotiations during the weekend visit here of India's External Affairs Minister Sushma Swaraj to firm up a deal."Large-scale investment is inevitable in the energy sector but investment will become uncertain in the absence of a power trade agreement. As a result, a PTA is necessary with India," read a statement on the committee's decision.

Reading out the statement, lawmaker Amrit Kumar Bohara, who chaired the meeting, said such an agreement "was necessary to attract investment", and emphasized on the need for concrete homework and coordination between the government and the committee on the same.

The PTA, however, has courted a lot of controversy in Nepal, as it has been alleged that India would capture Nepal's natural resources and monopolise its water resources. Expressing concern over the postponement of the power deal, the Parliament Agriculture and Resources Committee Sunday directed the Nepal government to immediately conclude the PTA with India.

India had proposed the draft of the agreement May 8 to Nepal for consideration. However, according to Nepali stakeholders, the most contentious clause in the draft was article 3 which speaks about investment in power generation and transmission, including joint ventures.

Article 3a says the parties will facilitate investment in each other's country in power generation and transmission, subject to legislation, while article 3b says the parties will cooperate in effective harnessing of Nepal's hydropower potential through facilitation and speedy construction of power projects in Nepal, either with 100 percent Indian investment or joint ventures with Indian entities.

Nepali officials say this clause gives the impression of denying involvement of other countries as well as Nepali companies in power generation and transmission. "The content of the draft gives the impression of an umbrella agreement, which could be detrimental to Nepal," an official said. With the article remaining silent on involvement of other countries, Nepali officials fear that investors other than from India will not be allowed in the country.

During the negotiations, officials from both sides agreed to end the disputes but did not reveal what was accepted by both parties. Earlier, at the parliamentary panel meeting, Nepal's Energy Minister Radha Gyawali said that as energy was the first door to development of Nepal, a PTA with India was "essential".

"It is for the nation's development but we will keep national interest in mind," the minister said. "The ministry will not step back on matters of national interest but power development is in the interest of Nepal," she added. Nepali Congress lawmaker Gagan Kumar Thapa, however, blamed the energy ministry for creating an "unnecessary dispute" over the proposed PTA.

Communist Party of Nepal (Unified Marxist-Leninist) lawmaker Kashinath Adhikari sought an explanation from the government over the delay in concluding the agreement, though Nepal had sent its draft to India four years ago. Energy ministry secretary Rajendra Kishore Chettri said the signing of the PTA was delayed due to lack of necessary homework for it.

"We are trying our best to conclude the negotiations before the visit of Indian Prime Minister Narendra Modi to Nepal, so that it can be signed during his visit," Chettri said. Modi is scheduled to visit the Himalayan country in the first week of August.

HC upheld judgement in a long drawn dowry-murder case

The Bombay High Court recently upheld the conviction of seven years handed down to husband and mother-in-law, charged for the death of the woman in the year 1993, harassing her for dowry. The victim, Mangal, was treated well for few months and then the ill-treatment had begun. When she would visit her maternal house, she would tell her family members about the ill treatment but they would convince her to return back.

Justice A I S Cheema while rejecting the appeal filed in 2000 by 30-year-old Dhanraj Ghadge and Khusavati Ghadge, observed "The prosecution has proved that within seven years of the marriage the victim suffered death which could not be said to be normal or under normal circumstances."

During the trial, the prosecution examined 12 witnesses to bring home the guilt of the accused. Based on the evidence the accused were convicted while other family members were acquitted. HC while rejecting the appeal noted that "For the given evidence available on record, findings arrived at by the trial court, is a possible view and I have no reason to interfere with the same."

Order against Amar Singh, others reserved

A Delhi court Additional Sessions Judge Raj Kapoor reserved its order on a plea challenging a magisterial court's verdict dismissing a criminal complaint against Rajya Sabha MP Amar Singh and two others. The court reserved it order after hearing arguments advanced by the counsel of complainant Hashmat Ali. Singh was alleged of kidnapping a key witness of the 2008 cash-for-vote case.

During the hearing, the counsel appearing for Ali alleged that his client was kidnapped by Tarun and Ramesh from Khan Market here on September 25, 2008 when he was to depose before a parliamentary inquiry committee probing the cash-for-vote case. Amar Singh and his secretary Tarun appeared in the court while the third person Ramesh, who has also been named in the petition, was absent as the summons issued against him was not served. The petitioner claimed that after kidnapping Ali, Tarun and Ramesh had taken him to Singh's residence from where he was handed over to the police.
"The offence was not committed before any independent witnesses. Where was the question of examining any independent witnesses?" asked Ali's lawyer. Since the magistrate had dismissed his criminal complaint against Singh and two others saying there were no independent witnesses to corroborate the allegations. Observing his arguments, senior advocate N Hariharan and advocate S P M Tripathi, appearing for Singh and others, said that the magistrate's order was based not only on the testimony of Ali but also on the inquiry conducted under provisions of CrPC. The court, however, after hearing the arguments reserved its order for August 4.

Court proposes separate lock-ups, prisons for transgenders

Third Genders have full legal rights and cannot be shuttled between man and woman depending upon convenience, said the Delhi Court. Therefore it proposed on the need for separate lock-ups, prisons and other provisions for transgenders, who have been declared as third gender.

The court cited the Supreme Court's recent landmark verdict by which it has declared transgenders/eunuchs as a third gender and said it was time for the criminal justice system to effectively recognize them as such and create separate lock-ups, prisons, toilets for them when they are on the wrong side of the law. It also said that it is time to arrive at a consensus to suitably amend the rules relating to prisons and lock-ups in this regard.

The court passed the order in a case in which a man was beaten by several persons, including two eunuchs, when he objected to their nude dance in public in a residential area under the influence of alcohol as they were attracting adverse public attention with large number of men jeering and cheering them in November 2012 in Begumpur in north west Delhi. When victim Raju Chauhan's pregnant wife Savita came out to save him, several men and eunuchs also beat her up leading to her abortion, it said.

"It, therefore, becomes equally important that when they are on the wrong side of law or commit violation of existing statutory law of the land, they be proceeded against and punished in accordance with law just as any other 'Person' whether a 'Man' or a 'Woman' after ensuring that their human and constitutional rights are in no manner compromised. Provisions for creating separate lock-ups/ prisons and making separate provisions for the transgenders/eunuchs has been necessitated as they have full legal rights and cannot be shuttled between man and woman depending upon convenience and denying any effective legal status to them is violative of human rights," Additional Sessions Judge Kamini Lau said.

"It is observed that the hesitation of the police to act in cases of receipt of complaints in case of violation of law by these eunuchs/ transgenders is primarily on account of the fact that they find themselves incapable of proceeding against them within the existing infrastructure and paraphernalia as has happened in this case," the judge said.

Anonymous pleas on sexual harassment cases not to be entertained

Putting in place a mechanism to deal with sexual harassment complaints within its precincts, and acting on the recommendations of the committee against Sexual Harassment of Women At Workplace Chief Justice G Rohini, Delhi High Court has said all written complaints would be dealt with by D S Bhandari, Officer on Special Duty (OSD) of the high court administration. Also, the court made it clear that anonymous pleas would not be entertained.

The setting up of the GSICC had come close on the heels of a law intern's allegation of sexual harassment against a recently retired Supreme Court judge. Besides Justice Desai, the Supreme Court Gender Sensitization and Internal Complaints Committee (GSICC) has six other female members.

"Any anonymous complaint(s) regarding sexual harassment of women at workplace shall not be entertained," the order, issued by Joint Registrar S P S Premi, said. It also said the identity of the complainant would be kept secret. Earlier, the apex court had constituted a 10-member committee headed by its woman judge, Justice Ranjana Prakash Desai, to deal with complaints of sexual harassment there.

Law Comm's AP Shah weighs in on collegium debate: Fixed CJI tenure, JAC to have more judges & post-bench cooling off

The minimum CJI tenure should take effect after the current roster of sitting Supreme Court judges in line for the CJI post will have retired by August 2022, with Justice NV Ramana as the last CJI under the old system, recommended Shah in a note he sent to the law minister Ravi Shankar Prasad.

Furthermore, he recommended that judges should have a three year “cooling off period” after retirement before they take up any government jobs. The JAC, apart from the four sitting Supreme Court judges, should also include the law minister, with an eminent jurist and an eminent member of civil society picked by the CJI, the prime minister and the leader of the Lok Sabha opposition.

Shah’s proposal was reportedly discussed in Monday’s meeting between the law ministry and top lawyers and retired judges.

Tuesday, 29 July 2014

Contempt of Court

This is a story told to me by my uncle, Brahma Nath Katju, who later became Chief Justice of Allahabad.
The story is about an incident in the early 1950s in the Allahabad High Court. My uncle was then a very junior lawyer, who had just started practice in the High Court. Junior lawyers often have no work, so my uncle used to sit in some Court to hear senior lawyers argue.

One day a contempt of court case came up before a bench of the Chief Justice, Justice Mootham, who was an Englishman ( and whom I met in England at his residence in 1994 when he was 90 years old), and Justice P.N. Sapru. For the state of U.P. the Advocate General, Pt. Kanhaiyya Lal Mishra appeared. My uncle, was sitting in court at that time, and was thus an eye witness of what transpired.

The case arose out of a postcard sent by a 75 year villager of Meerut District to the District Judge of Meerut. In this letter, the villager wrote that the Indian judiciary was still behaving like the colonial British judiciary although India had become independent in 1947.

The District Judge had forwarded the letter to the High Court, and the High Court had issued summons to the villager. When the villager did not respond to the summons, a bailable warrant was issued to him, and when the villager did not even respond to that, a non- bailable warrant was issued, and the police went and arrested him and brought him to Allahabad.

The Chief Justice observed that the notice may be discharged as it was a trivial matter. The statement of the villager was only mentioned in a postcard, and had not been published in any newspaper. Contempt jurisdiction is discretionary jurisdiction, and hence the High Court was not bound to take action even if contempt had been committed.

However, Justice Sapru was not to be so lightly put off, and was not inclined to take the matter so lightly, and ultimately he asked the villager, who was present in court, why he did not appear when summons or bailable warrant had been issued. The villager replied that he was a poor man, and hence he thought that if non-bailable warrant was issued he would be brought to Allahabad at state expense, and would not have to pay for his train journey from Meerut. The Judges then smiled and said he could go. At this he said how could he go ? He had no money for the train journey.

The Judges then took out their wallets and each of them took out Rs.15, and the Advocate General Pt. Kanhaiyya Lal Mishra also took out Rs.15 from his wallet, and the 45 rupees so contributed was given to the villager for his return journey to Meerut.

This story should be related to all judges who readily issue contempt notices. Lene ka dena pad ja sakta hai !

By Justice Markandey Katju

Three Incidents to show the existence of democracies in Ancient India.

Democracies existed in ancient india, and to demonstrate this we may consider only three incidents ;

(1) In the Buddhist text 'Mahaparinirvan Sutra ' it is mentioned that when King Ajatshatru of Magadha was planning to attack the Vajjian democracy he sent a messenger to the Buddha for his opinion. Instead of speaking to this messenger, the Buddha said to one of his disciples : " Have you heard Anand that the Vajjians foregather often, and frequent the public meetings of their clan ? So long Anand as the Vajjians so foregather, and so frequent, the public meetings of their clan, so long they may be expected, not to decline, but to prosper.

(2) In the 'Avadana Shatak ', a Sanskrit Buddhist text of the second century B.C. it is mentioned that a group of merchants went from North India to the Deccan, and were asked by the King of the Deccan as to who was the King who ruled over North India ?
The merchants replied :
" Deva, kechit deshah ganadhinah, kechit rajaadhinah ,iti "

Which means :

" Your Majesty, certain areas are under democratic governments, while others are under Kings "

(3) When Alexander the Great invaded India in 326 B.C. he found his toughest opposition from the Mallavas, who were a people under a democratic government ( see the Anabasis of Arrian ).

Religious tolerance

In today's ( 29.7.2014 ) 'The Hindu' it has been reported that in Gujranwala city in Pakistan a mob torched an Ahmadi colony and killed a woman and two girls over alleged blasphemy on Facebook.

I condemn this latest atrocity on Ahmadis, and I call upon all right minded persons of all communities in all countries to condemn it

It is alleged against Ahmadis that they do not accept Prophet Muhammad as the last Prophet, and believe that there was another Prophet called Ghulam Ahmed in the mid-19th century.

If the Ahmadis do not regard Prophet Muhammad as the last Prophet are they breaking anyone's head, or cutting off anyone's limbs ? Everyone should be left free to believe in whatever he wants to believe. Muslims can say that Ahmadis are not Muslims, but what right do they have to kill Ahmadis, burn their homes, bomb their mosques, and beat up their children, as has been happening for several decades in Pakistan ? This is nothing but goondagardi.

Sunnis believe that after Prophet Muhammad died there were 4 Khalifas successively, Abu Bakr, Omar, Usman, and Ali. Shias regard the first three as usurpers. Should Sunnis and Shias then fight each other.

Hindus go to temples and pray before idols, whereas idol worship is forbidden in Islam. Should then Hindus and Muslims fight each other ?

Christians believe that Jesus was the son of God, whereas Muslims believe that God has no son. Should then Muslims and Christians fight each other ?

In a subcontinent like ours with so much diversity we must have tolerance, particularly in religious matters, otherwise we will be continuously fighting with each other, which is precisely what our enemies want.

We should follow our great Emperors Ashok and Akbar who practised tolerance in religious matters.

The Shahar Qazi of Allahabad

Syed Maqbool Hasan has been the Shahar Qazi in Allahabad for over half a century.

Although he is also the Imam ( head priest) of Jama Masjid in Allahabad, he has never taken any money from the funds of Jama Masjid. He earned his livelihood as an ordinary stamp vendor in Allahabad High Court. When I was a lawyer there ( 1970-1991) I used to see him sitting at the bottom of the stairs below the Bar Association Library, selling stamps. He wore a simple kurta pyjama, and on looking at him one could never make out that he is the Shahar Qazi.

Until he agrees, Eid cannot be declared in Allahabad. Since for declaring Eid 2 respectable Muslims must state that they have sighted the moon, he rigorously cross examines the persons claiming that they have seen the moon, and he also strictly applies the parameters required before declaring Eid. His integrity is of such a high order that everyone in Allahabad accepts his verdict.

Because of old age ( he must be now in his late 80s ) he has now retired, but before that he was coming to the High Court on a bicycle every working day.

In the 1986 communal riots in Allahabad he refused to take any police security, although it was offered to him. He lived a simple life, and put all the money he earned in educating his children. Today one of his sons is in U.S.A. and the other children are also well settled, some in business, and others in other vocations.

My proposal regarding the National Judicial Commission

(1) The Collegium system has been artificially created by Judges in the Judges cases, since there is no mention of a Collegium system in Article 124(2) of the Constitution. The Judges virtually amended the Constitution in the Judges cases, which could legitimately only be done by Parliament under Article 368 of the Constitution.

(2) The Collegium systrem should be replaced by a National Judicial Commission consisting of 7 members, viz. the first 4 seniormost Supreme Court Judges( i.e. the CJI and the next 3 seniormost Judges), the Law Minister of India. the leader of the opposition, or if there is no leader of the opposition, the leader of the largest opposition party in the Lok Sabha ( or his/her nominee), and a distinguished jurist appointed by the President of India. Thus the Commission will have a majority of Judges, and thus the dominant voice will be of Judges. However the Government and the Opposition will also have a say in the matter.

(3) This 7 member Commission should first do a pre-scrutiny and then prepare a list of eligible and meritorious persons whom they have selected for being considered for appointment.

(4) The candidates in this list should be called for hearings before the Commission, which should be televised so that everyone in India can get to know about the proceedings. In these hearings the Commission members can, and should, ask the candidate about his past career, his views on several issues of public importance, and even his personal life. This is the process followed in U.S.A. when candidates nominated by the President have to appear before the Senate, where they are asked several questions.

When I suggested televising these proceedings in the NDTV panel discussion anchored by Sonia Singh, many members of the panel opposed the idea. But what is wrong with it ? In a democracy the people are supreme, and judges and other state authorities are only servants of the people, as the great French political philosopher Rousseau said. So should the master ( the people) not know what kind of servant is going to be appointed ? I believe they must know, to ensure transparency.

by Justice Markandey Katju

Unlike Katju, I think “lady lawyers” must be banned from the courts

Retired Justice Markandey Katju published a blog post today entitled “Lady Lawyers”. In typical Katju blogging fashion (whenever not causing a media storm about judicial corruption), it's a trip down memory lane starting with his time as a lawyer in 1970 Allahabad. Katju is trying to make a valid point in his post: he writes that in 1970 the percentage of “lady lawyers” in the courts was close to zero, now it's 5%. (Achche din.)

Characteristically, Katju also pats himself on the back a bit for when he was Allahabad acting chief justice and started a toilet, washroom and big halls for “lady lawyers”, named after the first “lady lawyer” to have practiced in the court after the ban on “lady lawyers” was lifted in 1924. Later, as chief justice of the Madras high court, he set up a creche.

So far so good. But one thing that really rubbed me the wrong way, and not just in Katju's blog post but also in mainstream newspapers and websites, is the repeated use of the phrase “lady lawyer” or, a tad better, “woman lawyer”.

Why the phrase is so wrong is partly encapsulated in this gem of Katju's:

For ladies no doubt it is not easy to be a lawyer, as she has also to look after her family and home. But to the credit of lady lawyers they are bravely doing their job both of running a law practice, and looking after their families and home.

The stereotype that a woman “has to look after her family and home” may have been cool in the high courts in 1970 and the offices of the Mad Men era, but that kind of attitude and use of words like “lady lawyer” are a symptom of the cause of why the courts still have that fantastically improved 1 to 20 female to male ratio that Katju modestly celebrates in his blog.

Here are some more reasons of why “lady lawyer” is awful:

1. Lady lawyer, denotes a different type of lawyer. Not a normal lawyer, no, but one who is a lady. Like divorce lawyer, or corporate lawyer, the defining characteristic of the lady lawyer becomes that she is a lady.

2. Ladies, other than Gaga, are graceful but also silly, frivolous little things. In a time gone by, ladies have been known to be good for lunching, watching their gentlemen husbands play polo or cricket, or gossiping idly of womanly things while the men withdraw to the smoking room with their cigars and talk of politics and Stuff That Matters.

Having a career, playing competitive sports, or, God forbid, not getting married and not having children, were certainly not pursuits fit for a lady and you'd be appropriately shunned by polite society and other ladies.

While all ladies are women, not every woman can be a lady, for a lady is the type of women that behaves as a gentleman would expect her to.

And back in the day, gentlemen certainly expected more grace than a woman besting a man in a battle of wits in the courtroom.

3. A “lady something”, unless said in jest and/or we're talking about toilets, fashion, gynaecologists or private parts, is generally either patronising or intended as abuse by men. Take “lady driver” or “woman driver”, which are rarely used in a complimentary fashion by men (who are statistically more dangerous drivers than women). Even the acting profession and airlines have moved with the times, using gender neutral terms such as male / female actors and cabin attendants, rather than actress and stewardess.

4. It is grammatically strange, if not inaccurate. Could you say “man lawyer” or “gentleman lawyer” or “boy lawyer”? The gramatically correct phrase are “female lawyer” and “male lawyer”, unless “lady lawyer” is now entered the lexicon as a compound noun much like “woman driver” or “gentleman caller”?

Some, such as Jeremy Clarkson, might claim this is political correctness gone mad. I disagree.

We are talking about professionals here and a lawyer is a lawyer is a lawyer, irrespective of gender. And if we are talking about issues of gender inequality or toilets, and specifically need to refer to the gender of counsel, then talk about lawyers who are women and female lawyers, not about ladies.

Katju can be forgiven for his use of “lady lawyer” because 1) he hails from another era and, I'm certain, doesn't intend any harm by it; and 2) he is Markandey Katju.

Other, modern-day lawyers, should actively see to it that the term doesn't become fashionable again.

Gown not mandatory for advocates in district & lower courts: BCI

The Bar Council of India (BCI) has stated that under Rule III of the BCI rules “wearing of advocate’s gown shall be optional except when appearing in the Supreme Court or in High courts”, reported the Times of India, and under Rule IV, “wearing of black coat is not mandatory” during summer.
The relaxed dress code, communicated in a letter of 16 July by the BCI, was a response to a letter sent on 2 June by the Tamil Nadu Federation of Women’s Lawyers, requesting the exemption because of the inordinate heat in summer, particularly in Tamil Nadu.

What they (reportedly) said yesterday: Most top lawyers agreed to scrap collegium, Upendra Baxi cautious

Yesterday’s high-powered law ministry meeting with a who’s who of the legal profession, reportedly resulted in a consensus from most present about the need to abolish the existing collegium system of judicial appointments, with the government now producing a draft.

The three hour meeting, according to The Hindu, would now result in the government drafting a new version of the previous government’s Judicial Accountability Commission (JAC) Bill.

The former government’s draft provided for three Supreme Court judges on the JAC, including the CJI, alongside the law minister and two “eminent citizens” selected by the CJI, prime minister and the Lok Sabha’s leader of the opposition.

The government

Attorney general Mukul Rohatgi said:

The predominant view at the meeting was that the collegium system has failed and it needs to be changed.

Law minister Ravi Shankar Prasad told the Times of India and others:

the government respects the independence of the judiciary and there is no question of going back to the pre-1993 position where executive had the primacy in appointment of judges

Consensus?

Presumably due to confidentiality restrictions imposed on participants, none of the media reports quoted anyone other than the law minister and law officers by name but apparently most other were united. An unnamed “top source” told TOI:

There was a consensus that the collegium system of appointing judges to high courts and SC needs improvement and that the Judicial Appointments Commission (JAC) as an instrument must be considered to replace the existing system

And a participant said, according to TOI:

Location of power is not important, it is important to have people who are good, intellectually, in terms of integrity and more importantly can bring repute to the system

Upendra Baxi, one of two legal academics at the meeting alongside Madhava Menon, was the lone somewhat critical voice, according to TOI and DNA. TOI reported:

Former Delhi University vice-chancellor Upendra Baxi was more cautious in his opinion. He said there has been no empirical evidence to prove that whatever system has been in place has either failed or worked well.

Meanwhile, Fali Nariman and Soli Sorabjee reportedly said at the meeting, according to DNA, that there shouldn’t be any tinkering with the basic structure of the Constitution.

The judges

No one managed to get a comment from any of the judges present, but DNA cited one participant’s account that:

even former chief justices, who headed the collegiums during their tenure, were of the opinion that the system has failed to deliver and it should be substituted with a commission comprising majority of the Supreme Court judges.

Law Comm's AP Shah weighs in on collegium debate: Fixed CJI tenure, JAC to have more judges & post-bench cooling off

The Law Commission chairman Justice AP Shah has recommended that the tenure of the Chief Justice of India (CJI) should be fixed to at least two years, and that the Judicial Appointments Commission (JAC) should consist of at least four judges, including the CJI as chairperson, reported The Hindu and the Indian Express.
The minimum CJI tenure should take effect after the current roster of sitting Supreme Court judges in line for the CJI post will have retired by August 2022, with Justice NV Ramana as the last CJI under the old system, recommended Shah in a note he sent to the law minister Ravi Shankar Prasad.
Furthermore, he recommended that judges should have a three year “cooling off period” after retirement before they take up any government jobs. The JAC, apart from the four sitting Supreme Court judges, should also include the law minister, with an eminent jurist and an eminent member of civil society picked by the CJI, the prime minister and the leader of the Lok Sabha opposition.
Shah’s proposal was reportedly discussed in Monday’s meeting between the law ministry and top lawyers and retired judges.

(Probably) India’s first law firm to have a mobile app: Nishith Mobile

App on Android: Fairly basic, but it works!

Nishith Desai Associates has launched a mobile app for Android, Apple and Blackberry devices that shares its legal articles, video and audio content from its website with clients and others who are interested.
The app, dubbed Nishith Mobile, is available on the respective platforms’ app stores and includes the latest client alert “hotline” knowledge articles normally published on the firm’s website, as well as push notifications of new articles directly to those who download the mobile app.
Managing partner Nishith Desai said: “It makes it easier for people to access all the knowledge that we have.”
“Information has been democratised,” he added, and explained that NDA was a “knowledge driven firm” that had produced hundreds of articles in its time that it was always keen to share. While other law firms might use the ideas or information in the articles, he said that ultimately a benefit would nevertheless flow to the firm, such as being recognised for thought-leadership.
The email announcing the app stated:

“As you know Nishith Desai Associates has always been at the forefront of technology and innovation. In an effort to make information and knowledge on legal, tax and regulatory subjects, more accessible to our viewers, we have launched a mobile application, Nishith Mobile.

“The idea is to update and educate our audience on an ongoing basis by providing prompt and live access to the changing business environment in India. The application is a cross-platform app for Android, Apple IOS and Blackberry OS 10. We hope our new feature allows you to connect with us more often!”

International law firms have been launching mobile apps for the past several years, ranging from simple portals to their website to more complex apps that provide access to statutes and court cases or graduate recruitment.
An online marketing expert wrote last year that apps for law firms can provide effective marketing, though they should be invested in only after a good web site that is also optimised for mobile.

Some questions for Justice Lahoti

Justice Lahoti, the former Chief Justice of India, when contacted by some media people about my statement which was published on my blog and in Times of India yesterday, generally remarked that he has never done anything wrong in his life. He has not gone into any specifics, so let me put him some specific questions :

1. Is it , or is it not, correct that I first wrote him a letter from Chennai, stating that there were serious allegations of corruption about an Additional Judge of Madras High Court, and therefore he ( Justice Lahoti ) should get a secret intelligence enquiry held against that Additional Judge,and thereafter I personally met Justice Lahoti at Delhi and again requested for a secret IB enquiry against the Additional Judge about whom I had received several complaints, and from several sources, that he was indulging in corruption ?

2. Is it, or is it not, correct that on my request Justice Lahoti ordered a secret IB enquiry against that Judge ?

3. Is it, or is it not correct, that a few weeks after I personally met him in Delhi and then returned to Chennai, he telephoned me from Delhi ( while I was at Chennai ) and told me that the IB, after thorough enquiry, gave a report that indeed the Judge was indulging in corruption ?

4. Is it , or is it not, correct that after receiving the adverse IB report against the Additional Judge, Justice Lahoti, who was then Chief Justice of India, called a meeting of the 3 Judge Supreme Court Collegium, consisting of himself, Justice Sabarwal, and Justice Ruma Pal, and the 3 Judge Collegium, having perused the IB report recommended to the Government of India not to extend the 2 year term of that Additional Judge ?

5. Is it , or is it not, correct that after that recommendation of the 3 Judge Collegium of the Supreme Court was sent to the Government of India, he ( Justice Lahoti ), on his own, without consulting his 2 other Supreme Court Collegium colleagues, wrote a letter to the Government of India asking the Government to give another 1 year term as Additional Judge to the concerned Judge ?

6. If indeed the IB reported, after an enquiry, that the Judge was indulging in corruption, why did he ( Justice Lahoti ) recommend to the Government of India to give that corrupt Judge another term of 1 year as Additional Judge in the High Court ?

Some people have commented about the timing of my statement. What happened was that some Tamilians had commented on Facebook that I am posting several matters on my Facebook post, so I should also post some of my experiences in Madras High Court. Then I started posting about my experiences there, and it was at time I remembered this experience too, and posted it.

Justice Lahoti obfuscates

I had asked Justice Lahoti 6 specific questions ( mentioned in my previous post ). When Times Now channel asked him about them he said ( as quoted in Times Now ) :

" I don't believe in stooping to anyone's level. Look up the records for yourself and see for yourself. I have not done anything wrong "

Thus Justice Lahoti does not reply to any one of my 6 specific questions, but deliberately obfuscates. Why does he not say specifically whether it is true or not that I requested him to get an IB enquiry held to find out whether the Judge concerned was indulging in corruption, whether he ( Justice Lahoti ) on my request ordered an IB enquiry, whether he ( Justice Lahoti ) subsequently telephoned me from Delhi when I was in Chennai that the IB has reported that the Judge concerned is indeed indulging in corruption, and why despite this adverse IB report he got the Judge's term extended, etc ?

None of the 6 specific questions I asked Justice Lahoti have been replied specifically by him. Instead he accuses me of stooping low.

Let the public themselves decide who is stooping low.

It’s time to amend law on contempt of court

The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.

But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.

In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.

In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.

Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.

This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.

“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.

In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.

Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.

Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case ( Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.

In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.

Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.

He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.

To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.

He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.

Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?

We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.

It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.

If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.

But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.

I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.

More than 20% of judges corrupt: Katju's 'seen the darker side intimately'

Markandey Katju, former Supreme Court judge and current Press Council chairman, has tweeted that the situation has worsened in the judiciary since former Chief Justice of India (CJI) SP Bharucha implied in 2001 that as many as 20 per cent of judges might be corrupt.

Katju tweeted about the topic after a column on amending contempt of court laws was published by him in the Times of India and his blog:

If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.
But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.
I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.

Less than a week after Katju had raised a national storm by alleging that a late high court judge, Justice S Ashok Kumar, was corrupt, he yesterday (27 July) had also blogged about why he would never write his memoirs, despite requests from his fans.

Katju claimed that he had “seen the darker side of the judicial system intimately. To disclose everything would raise such a storm that I may not be able to withstand it":

There was a comment on Facebook by someone that I should write my memoirs. I replied that I will never write my memoirs. The person asked why ?
I said that by mentioning just one incident ( the corruption by a Madras High court Judge ) I was furiously attacked by many people. Mentioning all incidents will be opening up a Pandora’s box. I have been deep inside the judicial system at several levels ( lawyer, High Court Judge, Chief Justice, and Supreme Court Judge ), and so have seen the darker side of the judicial system intimately. To disclose everything would raise such a storm that I may not be able to withstand it.
So let me remain quiet and preserve my peace of mind.