SC bars lawyer for a year in ‘contempt’

Source: DNA dated 28.3.2019

New Delhi: A lawyer of the Bombay Bar Association was punished by the Supreme Court for contempt by barring him from practicing in the top court for a year and sentencing him to three months imprisonment. However, the sentence will remain suspended till he abides by his undertaking not to browbeat any judge of the Supreme Court or Bombay High Court.

The order by a bench of Justices RF Nariman and Vineet Saran was passed against lawyer Mathews J Nedumpara, who also heads an association of lawyers titled National Lawyers Campaign for Judicial Transparency and Reforms.

Nedumpara had come to court and questioned the practice of senior lawyers getting designated. It was his view that this process was not merit-based, but selective as judges exercise favouritism in designating persons as senior advocates.

Then, during arguments, he took the name of noted jurist Fali S Nariman several times despite being warned by Justice Nariman, who is the son of the senior Nariman, against doing so.

The Court on March 12 held Nedumpara guilty of contempt as it saw this conduct amounting to “browbeating ” of judges. To the bench’s surprise, they found that Nedumpara has had a history of facing the ire of courts in several matters.

On Wednesday, the court fixed the matter to hear Nedumpara on the sentence to be awarded.

Although he offered an unconditional apology, the court failed to accept his argument that the point of taking senior Nariman’s name was issue-based.

The bench asked him, if this was so, then he should have raised similar grievances against other sitting SC judges.

Tolerating the corrupt

Article in the Indian Express dated March 27, 2019 regarding the Anti-Corruption laws by Fali Nariman. Link to this article:

http://epaper.indianexpress.com/c/37969452

The judiciary’s impact needs urgent assessment

Source: Hindustan Times dated 20.03.2019

Article by G. S. Bajpai, Chairperson, Centre for Criminology and Victimology, National Law University, Delhi.

The number of cases decided by Indian courts may not necessarily reflect the quantum of justice people get

How much justice do the people in India get through courts? Despite a gigantic set up of judiciary, with an annual budget of nearly ~2,000 crore, justice remains elusive for the people. Even in cases in which justice seems to have been done, the parties in question hold a contrary view. People’s, and the official, understanding of justice remain quite distinct. We do not know justice in measurable terms.

There is hardly any consensus over the performance indicators of a court. The number of cases decided by courts may not necessarily reflect the quantum of justice people tend to get. Nor does it convincingly suggest their efficacy. The number of people with unmet justice needs in India is growing significantly. A 2018 World Justice Project report put the number at three billion. And the Rule of Law Index places India at 63 out of 113 countries. On the components of human rights, security and order and criminal justice, the score is dismally low.

There are about three crore pending cases in the country, affecting some 30 crore people. Accounting for the unreported and unrecorded cases, this number may go up by another 20 crore. Besides, a declining trend in civil litigation in India is cause of worry as this suggests that people are not turning to courts for their justice needs in civil matters.

The dissatisfaction of people is visible from the rising crime rates. A Daksh study on access to justice in India observed that 70% of those who faced disputes in the past five years approached the courts, but the formal judicial system is still not the most preferred form of conflict redressal for most Indians.

As justice in India remains largely unmeasured, it’s non-existent for many. Measurement of justice is emerging as a powerful tool to ensure quality of justice. Fraught with structural and functional issues of a fundamental nature, the Indian judiciary has largely failed to create an effective research and development approach to its performance.

We have five core issues. First, how does a law impact its stakeholders? The judicial decisions are made on the basis of the larger consequences and effects they intend to create. Though the objectives of a law are prescribed in its structure, there is no mechanism to know if it is effective. On the Supreme Court’s direction, the Centre has formed a committee to study the resources needed when a new legislation or an amendment is introduced.

Second, what is the impact of the Supreme Court’s decisions? The SC decisions intend to cause a specific as well as general impact on the persons concerned, institutions and society. There is a general impression that the compliance of SC decisions is not fully followed. There is no mechanism to gauge its exact consequences.

Third, how does an amendment in a law impact its stakeholders? The section 498 A of the Indian Penal Code and Section 138 in Negotiable Instrument Act triggered almost a docket explosion as thousands of cases added to the case list. Again, the lawmakers are clueless about the likely impact of an amendment in terms of manpower and finance that a State might require to effectively implement it.

Fourth, does a law fulfil public expectations or not? For instance, enforcement of social legislation in India, by and large, has been unsuccessful. The laws related to juvenile, women, welfare, domestic violence, dowry, etc could not meet the public expectations.

Fifth, we do not know much about litigation behaviour and change in the country. Millions of litigants approach various courts but no official information about their needs, experience, and trends is recorded.

To overcome this kind of situation, the ministry of justice in the United Kingdom has developed judicial impact test, which takes care of these issues. It is time India launches a judicial impact assessment system too.

‘Adjourning’ judge pops up on CJI’s grid

Source: DNA dated 19.03.2019

Tareekh pe Tareekh | SC uses national database to monitor judicial laxity
Abraham Thomas abraham.thomas@dnaindia.net

New Delhi: The National Judicial Data Grid (NJDG) is proving to be a handy database for the highest court of the country for keeping a close watch on trial court judges and monitoring their performance.

This came to light last week when the Supreme Court received an application from a district court judge in Deoria, Uttar Pradesh requesting for more time to finish a trial. The judicial officer had been directed by the apex court on December 9, 2016 to complete a trial under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act within six months.

Instead of dealing with the judicial officer’s request in a routine manner, Chief Justice of India Ranjan Gogoi asked the Registry of the Supreme Court to use the NJDG to check how the case had progressed.

It was then discovered that the judicial officer was at fault as he was unnecessarily adjourning the case, regardless of the deadline set by the apex court.

Taking serious exception to this conduct, the bench of Chief Justice Gogoi and Justices Deepak Gupta and Sanjiv Khanna last week issued a notice to the judicial officer calling for a report to explain the “serious lapse” on his part in complying with the top court’s direction. The matter has been posted for a hearing after four weeks.

The Supreme Court Registry, upon inquiry from NJDG, found that the dates mentioned by the judicial officer, who is also the presiding officer of Deoria district courts, to be wrong. Beginning January 29, 2019, the presiding officer granted seven adjournments citing various grounds, the SC Registry noted.

On two occasions, the judicial officer did not take up the case citing he was out conducting inspection.

This prompted the CJI-headed bench to observe, “We do not understand what kind of inspections the presiding officer had carried out on as many as two occasions which inhibited him from hearing the case.”

In its December 9, 2016 order, while dealing with a petition by the complainant in the case to cancel the bail granted to the accused, the court refused to interfere, but ordered trial to be completed expeditiously. It specifically directed the trial judge, “If any complaint is raised before the trial court with regard to the conduct of the trial by the prosecution or the conduct of the accused in influencing witnesses, the trial court would be free to pass appropriate orders in this regard.” But the CJI-led bench was irked to note that since January 29, when the arguments were to commence, the presiding officer allowed three adjournments to the accused. After going through the facts in entirety, the SC bench said, “This prima facie shows serious lack of concern on the part of the presiding officer to adhere to the time-bound schedule.”

The authority and significance of Lokpal

Source: Hindustan Times dated 18.03.2019

WHAT IS LOKPAL?

A national anti-corruption ombudsman to look into complaints against public servants as defined under the Lokpal Act, 2013. The office of Lokpal comprises a chairperson and up to eight members. The chairperson can be current or former judges of the SC or chief justices of HCs. Members should have least 25 years of experience in matters related to anti-corruption policy, vigilance, public administration, finance, law and management

POWERS OF LOKPAL

The Lokpal can initiate a preliminary investigation after it receives a complaint under the Prevention of Corruption Act, 1988. If the complaint is found to be true, the Lokpal can ask the government to take disciplinary action against the public servant and also file a case in a special court to be set up by the Centre

WHO ALL CAN LOKPAL INVESTIGATE?

According to the Lokpal Act, 2013, the ombudsman can investigate persons in seven categories — a prime minister after s/he demits office; current and former ministers; current and former MPs; all Group A officers of the central government; all Group A-equivalent officers of PSUs and other government bodies; directors and officers of NGOs which receive government funds; directors and officers of NGOs which receive funds from the public and have an annual income above ₹10 lakh from a foreign contributor and ₹1 crore from the government

THE INVESTIGATION AND TRIAL PROCESS

A preliminary inquiry should be completed within 30 days of receiving a complaint. The period can be extended to a further three months. A full inquiry has to be completed within six months, extendable by another six months. Trial should be completed within a year of filing the case; the time period can be extended to a maximum of two years. Lokpal does not need prior sanction from the government to investigate a complaint

WHO SELECTS LOKPAL?

A five-member selection panel comprising the Prime Minister, Lok Sabha Speaker, the Leader of Opposition, Chief Justice of India, and an eminent jurist nominated by the President

HOW CAN LOKPAL BE REMOVED?

The President can make a reference to the Supreme Court either on his own or if 100 MPs sign a petition seeking the removal of the chairperson or any of the members. If the SC, after an inquiry, finds the charges to be true, s/he should be removed by President

HOW WAS LOKPAL LAW ENACTED?

In January 2011, the government formed a Group of Ministers to suggest measures to tackle corruption, including the examination of the proposal of a Lokpal Bill following a protest in Delhi by Anna Hazare. In July 2011, the Union cabinet approved the bill, and both Houses of the country passed it in December 2013

HISTORY OF LOKPAL

According to Professional Referral Source (PRS) legislative research, the Lokpal bill has been introduced eight times in the Lok Sabha (1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001). Each time the Lok Sabha was dissolved before the bill could be passed, except in 1985, when it was withdrawn. Several commissions including the First Administrative Reforms Commission of 1966, the National Commission to Review the Working of the Constitution of 2002 and the Second Administrative Reforms Commission of 2007 recommended constitution of Lokpal.

ANTI-CORRUPTION OFFICES SIMILAR TO LOKPAL IN OTHER COUNTRIES

According to PRS Legislative Research, an Indian non-profit organisation, Sweden, Finland, Denmark, the Netherlands, Austria, Portugal, Spain, New Zealand, Burkina Faso and the United Kingdom are some of the countries which have the office of an ombudsman.

PC Ghose: A judge who handled key cases

Source: Hindustan Times dated 18.3.2019

NEW DELHI/KOLKATA: Justice Pinaki Chandra Ghose, a former Supreme Court judge, is all set to become the first Lokpal of India, an anti-corruption ombudsman.

According to officials with knowledge of the matter, a selection committee led by Prime Minister Narendra Modi agreed on his name.

Justice Ghose, who is a member of the National Human Rights Commission (NHRC), was a judge in the top court for four years from March 2013 to May 2017.

During this period, he adjudicated on wide variety of cases.

A division bench of Justice Ghose and Justice Amitava Roy convicted former Tamil Nadu chief minister J Jayalaithaa’s aide, Sasikala, and others in a graft case in a significant verdict. In this case, Jayalalithaa too was an accused, but proceedings against her were dropped because she died during the pendency of the case.

Justice Ghose was also a part of the two-judge bench that declared the centuries-old tradition of Jallikattu, or bull fighting, will be banned.

Another important matter handled by Justice Ghose as a Supreme Court judge was the Babri Masjid case, in which the top court directed a trial court in April 2017 to proceed against political leaders LK Advani, MM Joshi, Uma Bharti and others for alleged criminal conspiracy.

After his retirement in 2017, Justice Ghose was appointed to the National Human Rights Commission as a judicial member. Born on May 28, 1952, Justice Ghose comes from a family of lawyers. His father, late Justice Shambhu Chandra Ghose, is a former Chief Justice of Calcutta high court.

Justice Ghose, who graduated in law from the Calcutta University, joined the Bar Council of West Bengal in 1976 as an advocate. He became a judge at the Calcutta high court in July 1997.

In December 2012, he was made the chief justice of the Andhra Pradesh high court. After three months, in March 2013, he was elevated to the Supreme Court. Former advocate general of Tripura and eminent lawyer Bikash Ranjan Bhattacharya said the most noticeable part of Justice Ghose’s character is his calmness and friendly approach.

“He used to hear cases and pass orders very fast. As a judge, he astounded us with his sharp memory. In simple words, he was an outstanding judge,” said Bhattacharya.

Official Secrets Act: what it covers, when it has been used, questioned

Article in the Indian Express dated March 8, 2019 regarding the Official Secrets Act by Kaunain Sheriff. Link to this article:

http://epaper.indianexpress.com/c/37401675

Framing the Forest Rights debate

Article in the Indian Express dated March 8, 2019 regarding the Forest Rights Act by Vivek Deshpande. Link to this article:

http://epaper.indianexpress.com/c/37400043

SC: Customary divorce from wife not licence to remarry

Source: Times of India dated 8th March 2019

SC Annuls Marriage As Man Did Not Legally Divorce His First Wife

Dhananjay.Mahapatra@timesgroup.com

New Delhi:
The Supreme Court on Thursday said marrying a second time on the basis of a “customary divorce” from the first wife will render the second marriage void as the law stipulates that a man and woman are permitted to tie the nuptial knot only if they do not have a living spouse.

This decision came in the case of an inter-caste marriage solemnised in 2010. The marriage developed strains, allegedly because of the husband’s drunken habits and matrimonial torture inflicted on the wife. While leaving for her parental home with her belongings, she discovered a marriage dissolution deed of her husband from his first wife. She later moved a Pune court seeking her marriage to be declared void.

The second wife alleged that the marriage was solemnised by fraud as the man declared himself a bachelor in the marriage registration document under the Special Marriage Act. She said there was no divorce decree from the first wife, a fact concealed from her, and he had a spouse at the time of marriage.

The man argued that he had married a second time under pressure as the woman threatened to commit suicide if he said no. He said that there was a customary divorce between him and his first wife prior to his second marriage and hence the wedding was valid. The Pune court had dismissed the woman’s petition and the Bombay HC too refused to give relief.

A customary divorce is a recognised method of separation without involving the court if such a custom is recognised by marriage laws.

On appeal before SC, a bench of Justices L Nageswara Rao and M R Shah set aside orders of the trial court and the HC and declared the second marriage null and void. It said under Section 4 of the Special Marriage Act, at the time of marriage neither party should have a living spouse. The bench also ruled that no time limit can be set for filing a petition for annulment of marriage and that it could be filed as and when a party to the marriage discovers that the other has a living spouse.

Writing the judgment, Justice Shah said, “The husband was required to prove that such customary divorce was permissible in his caste or community. In the absence of any such issue or any evidence, the courts were not justified in observing that there was customary divorce between the man and his first wife.”

SC makes Shimla hospital, docs pay for insensitivity

Source: Times of India dated 8th March 2019

Dhananjay.Mahapatra@timesgroup.com

New Delhi:
The Supreme Court on Thursday granted an additional Rs 10 lakh in compensation to a poor woman from the hills in a medical negligence case on finding that when she was writhing in pain, doctors at a Shimla hospital insensitively chided her by saying “people from hilly areas make unnecessary noise”.

Due to medical negligence at Ripon Hospital, Shimla, the woman’s right arm had to be amputated. The National Consumer Disputes Redressal Commission awarded her Rs 2 lakh compensation in addition to Rs 2.93 lakh ex gratia granted by the state consumer forum. She appealed in the apex court seeking more compensation.

A bench of Justices A M Sapre and Dinesh Maheshwari acceded to her request and said the approach in awarding compensation should not be restrictive when the victim comes from a poor and rural background, rather in a case like this, it should be reasonably higher.

Writing the judgment, Justice Maheshwari said, “Grant of reasonably higher amount of compensation in the present case appears necessary to serve dual purposes: one, to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and second, to send the message to professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all human beings deserve to be treated with equal respect and sensitivity.”

“We are impelled to make these observations in the context of an uncomfortable fact indicated on record that when the appellant was writhing in pain, she was not immediately attended to and was snubbed with the retort that ‘people from hilly areas make unnecessary noise’. Such remarks, obviously, added insult to injury and were least expected of professionals on public duty,” she added.

“When the appellant is shown to be a poor lady from rural background, her contribution in ensuring the family making both ends meet also deserves due consideration... the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to the appellant...”

Justice Maheshwari further said, “We are of the view that the appellant deserves to be allowed further an amount of Rs 10 lakh towards compensation, over and above the amount awarded by the state commission and the national commission... it is also considered proper to grant three months’ time to the respondents (hospital and doctors) to make the requisite payment and else, to bear the burden of interest.”