Law News and Updates - 14.12.2020

 Indian Content: Compiled by Absolute Guilt for M&J Services - The Eclectic Law Bookstore. 

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‘WHY SO MANY DIE’

https://tinyurl.com/y6kufds8

Source: The Leaflet

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The Locked Down Lawyer by Raju Z Moray mirrors the life of lawyers and the judiciary during lockdown

https://tinyurl.com/y4ahuenm

Source: The Leaflet

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Many believe Covid-19 is man-made, says Chief Justice

https://tinyurl.com/y6qo5k7x

Source: News Indian Express

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Govt officials like Kumbhakarna, only wake up after being repeatedly scolded: Jammu and Kashmir High Court

https://tinyurl.com/y6bkwk8n

Source: India Today

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Assam govt to bring new law to control micro finance firms

https://tinyurl.com/y5zooph7

Source: Deccan Herald

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Supreme Court to hear plea seeking immediate removal of farmers protesting at Delhi’s borders

https://tinyurl.com/y5ax7zrl

Source: Hindustan Times

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Top Court Fines UP Government ₹ 15,000 For "Wastage Of Judicial Time"

https://tinyurl.com/yxs4cbmb

Source: NDTV

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Court Seeks Google, Facebook Reply On Amul's Plea Over Videos On Cows

https://tinyurl.com/yxhank2g

Source: NDTV

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Legal Experts Slam Alleged Attempt by HC Judge To Influence Srinagar Sessions Judge

https://tinyurl.com/y5krwqy9

Source: the Wire

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Independence of superior judiciary in question

Source: The Free Press Journal

-- Olav Albuquerque
https://www.freepressjournal.in/analysis/independence-of-superior-judiciary-in-question

Not challenging the government is reneging on judiciary's oath to uphold the fundamental rights of all citizens.

The Bombay High Court by any other name will remain the same. At least, this is what the litigants, lawyers and judges would think. Or so we are told. Not so, feels a petitioner who sought a change-of-name of the 158-year-old Bombay High Court to the more ubiquitous Maharashtra High Court.

This would create a problem because the Bombay High Court also has a bench in Goa, which is a separate state. It had a separate civil law system under the Portuguese with separate civil and criminal codes, a unique succession law which was gender neutral. Hence, changing the name of the Bombay High Court to Maharashtra High Court would be doing a disservice to Goa and Goans, opine some Goan lawyers.

However, the Supreme Court has issued notices to the Union and state governments seeking their response to this plea seeking the Bombay High Court's name be changed. This implies that the judges have taken up the issue seriously. The point here is the apex court is overburdened with life-and-death PILs such as migrants being deprived of their right to life and livelihood under the triumvirate of Articles 14, 19 and 21. Another PIL seeking bonded labour be freed from three brick kilns in Bihar and Uttar Pradesh was heard by a division bench of Justice L. Nageswara Rao and Ravindra Bhat. This was allegedly the same bench which had earlier remarked: "If these migrants want to walk, how can we stop them," which was widely publicised.

The 187 brick kiln bonded labourers include pregnant women and children who are being forced to work in inhuman conditions despite the Bonded Labour Prohibition Act, 1976, according to the petitioner Zahid Hussain. So, the issue of changing the name of the Bombay High Court to Maharashtra High Court which may appease regional chauvinism may be construed as consuming too much judicial time qua weightier issues.

Another broadside has been unleashed by a senior advocate Dinesh Dwivedi who lambasted a former CJI R.C. Lahoti for advising the Supreme Court not to advise the government how to deal with the migrants' woes because the three wings of the state must trust each other.

The 35th CJI Ramesh Chandra Lahoti seems to concur with the 48th (present) CJI Sharad Arvind Bobde that the government has the men, money and materials to handle the migrants' woes. So, those who are selected in secrecy should not advise those who are elected lest this be construed as "the tyranny of the judiciary."

Whether it is tyranny or not, judges of the Supreme Court and 24 high courts take a unique vow to "uphold the Constitution."

This oath implies the judiciary is sworn to uphold the fundamental rights of the 187 bonded labourers and crores of migrants against their biggest adversary which is the elected government. For governments comprise ministers who strive to repay those who elected them by trampling upon the rights of bonded labourers and migrant workers. And when the judiciary headed by CJI Sharad Bobde feel that the judiciary should not tread on the toes of the government during crises such as pandemics and riots, some of these judges are reneging on their oath to uphold the fundamental rights of all citizens against the government. For it is the government which is the biggest litigant in all Indian courts.

This is not to say that Supreme Court judges do not pass orders against governments. A three-judge bench of Justices L. Nageswara Rao, S. Murari and Ravindra Bhat threatened the Y.S. Jaganmohan-led government in Andhra Pradesh with contempt of court if flags belonging to different political parties, including the ruling party, were not removed within four weeks from all government buildings including those belonging to the panchayats.

But these orders are random occurrences. It will be interesting to watch the fate of a PIL filed in the Delhi High Court seeking that the PM CARES Fund should be brought under the ambit of the Right to Information because the chairman of the fund is Prime Minister Narendra Modi and has the home and finance ministers as some of the trustees. Paradoxically, the trustees are sitting on a huge corpus of Rs 10,000/- crores collected by donations from the public and public sector organisations.

How these PILs will finally be disposed of will prove to what extent the superior judiciary is free from government influence. It is these Supreme Court judges who must decide if a PIL seeking to rename India as Bharat is frivolous or not. This is why we need an All India Judicial Service on the lines of the IAS and IPS to ensure the best and the brightest join the subordinate judiciary.

This is why the Modi government will soon enact a new law to create an All India Judicial Service for nearly 20,000 subordinate courts in India. Never mind the striking down of the 99th amendment to uphold judicial independence. Justice Kurian Joseph has publicly declared he regretted striking down the NJAC Act.

Some of our future chief justices will be elevated from this pool of the All India Judicial Service because one-third of high court judges are elevated from district judges or principal judges of city civil courts. Of course, this new law has yet to be passed by Parliament. But the BJP has a sufficient majority to ensure it will be passed. And so this law will ensure the government does have a say in who will be appointed as judges in the subordinate courts of all states. Independence of the superior judiciary notwithstanding.

After all, the Supreme Court is supreme because it is final. Not because it is always right. And CJIs like Justice Sharad Bobde and his predecessor Ranjan Gogoi know this very well.

The importance of an independent judiciary

Source: Hindustan Times dated 28.01.2020

-- Madan Lokur (Retired Supreme Court Judge)

The freedom of the judiciary, and the top court, has been sought to be compromised on several occasions in the past. But it has always bounced back.

In The Federalist No. 78 (14th June, 1788) Alexander Hamilton explained the rationale of the people of the United States (and now by extension, we the people of India) ordaining and establishing an independent judiciary in the Constitution. He said: “There is no position which depends on clearer principles, than that every act of delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do, not only what their powers do not authorise, but what they forbid.” This passage is the key to understanding the role of an independent judiciary in a republican democracy.

The independence of the judiciary has been sought to be compromised on several occasions in the past. But it has always bounced back. Will it do so once again?

The first few years of our Republic saw the spectre of supersession in the appointment of the Chief Justice of India but the Supreme Court judges stood firm and the thought banished. Judgments were delivered declaring some laws as unconstitutional. Some of these declarations were nullified by Parliament by amending the Constitution to validate laws and regulations and, indeed, place some of them beyond judicial scrutiny by introducing the Ninth Schedule in the Constitution. The Supreme Court took this in its stride and continued to stand as a beacon of hope for many, particularly in matters relating to the recognition and enforcement of fundamental rights guaranteed by the Constitution.

The establishment believed, mistakenly, that by virtue of its powers, it could do not only what was not authorised but what was forbidden. The commitment of the Supreme Court to the Constitution led to the theory of committed judges. The establishment believed that the appointment of judges committed to its philosophy would be amenable to legislative changes. Matters came to a head in the early 1970s when the Supreme Court was called upon to decide whether the Constitution was plasticine in the hands of Parliament. Fortunately, the Supreme Court reminded the representatives of the people that they are not superior to the people themselves. This reminder was achieved through the judgment in Kesavananda Bharati’s case which enunciated what is now part of constitutional folklore -- the basic structure doctrine.

The high point of the independence of the judiciary was followed by the Emergency. During this period, the independence of the Supreme Court reached its nadir. Through its decision in the ADM Jabalpur case (Justice Khanna dissenting) the Supreme Court virtually suspended Article 32 of the Constitution, which guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights. BR Ambedkar described this article as the soul of the Constitution and the very heart of it. Ironically, many judges in the high courts saved the day for the independence of the judiciary -- perhaps, they were made of sterner stuff.

Post the Emergency and two supersessions in the appointment of the Chief Justice, the Supreme Court rebounded with constitutional justice and human rights taking centre stage. Public interest litigation made the establishment accountable as never before and the people came to appreciate that they were the principals and masters, not the deputies or servants and that they were superior to their representatives. Elected governments in the States could no longer be overthrown by the establishment by merely invoking Article 356 of the Constitution and the political executive was made to appreciate that it was prohibited from doing not only what was not authorised by the Constitution, but what was forbidden. This allowed human rights to gain considerable importance; draconian preventive detention laws were interpreted with compassion so that continued detention without trial became a rarity. All this while, the Supreme Court endeavoured to maintain its independence from the establishment and I daresay it succeeded.

The second decade of the new millennium saw a renewed attempt to contain the independence of the judiciary with the passage of an amendment to the Constitution incorporating the National Judicial Appointments Commission for recommending the appointment of judges. This amendment was declared unconstitutional by a 4:1 majority by the Supreme Court on the ground of violation of the basic structure of the Constitution which recognized the independence of the judiciary. This effectively confirmed the collegium system of recommending the appointment of judges. That’s when the fire started.

Over the years, we are witness to the establishment rejecting, for slim and sometimes undisclosed reasons, the recommendations made by the collegium and sometimes sitting on them. We have also seen the collegium passing resolutions that are hard to believe, let alone rationalise. There is considerable criticism of the collegium system but no one has suggested a better alternative that ensures the independence of the judiciary or suggested returning to the pre-collegium days and handing back the power of recommending and appointing judges to the establishment in consultation (not concurrence) with the Chief Justice of India. The solution today is only to tweak and strengthen the collegium system through dialogue, and this is urgent.

We are also witnessing judgmental fluctuations by the Supreme Court, perceived by many as succumbing to the pressures of the establishment in its core function. What has happened to the independence of the judiciary, they ask? Is the sentinel on the qui vive surrendering its obligation to preserve and protect the rights of the people? Unfortunately, a few even recall ADM Jabalpur. Only time will tell but admittedly, recent trends are quite disturbing and the light at the end of the tunnel is getting dimmer. Unless these trends are arrested, law students of the future will be studying a different Constitution, with or without a Republic.

'Judicial independence doesn't mean insulation of judges from rule of law'

Article in the Indian Express dated November 14, 2019 regarding the opinion of Justice D. Y. Chandrachud about 'placing the basis for selection and appointment of Judges in public domain' by Ananthakrishnan G.. Link to this article:

http://epaper.indianexpress.com/c/45724822

SC opens itself: Office of CJI under RTI Act

Articles in the Indian Express dated November 14, 2019 regarding the SC judgment bringing the CJI Office under RTI Act by Ananthakrishnan G. Links to these articles:

http://epaper.indianexpress.com/c/45724209

What bringing CJI's office under RTI means
Article by Shyamlal Yadav:

http://epaper.indianexpress.com/c/45719497

Raise the Bar

Article in the Indian Express dated November 6, 2019 regarding the new CJI and his task to restate the independence of the SC by Dushyant Dave (Senior Advocate, Supreme Court of India). Link to this article:

http://epaper.indianexpress.com/c/45434293

SC: Justice Mishra won’t recuse from hearing land grab case - Four Other Judges On Bench Back His Decision

Source: Times of India dated 24.10.2019

The Supreme Court on Wednesday turned down a plea seeking recusal of Justice Arun Mishra from the Constitution bench hearing a batch of petitions relating to land acquisition law, and decided to hear the case on a dayto-day basis from November 6.

The plea for recusal of Justice Mishra, who heads the bench that is hearing the matter, was made by parties, including farmer associations, who argued that the judge was also on a bench whose verdict in land acquisition case is to be examined by the Constitution bench headed by him.

Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat are other members of the bench. Backed by other four judges, Justice Mishra said, “I am not recusing from hearing this matter.” The grounds on which the recusal plea was dismissed could not be immediately known as the judgment was yet to be uploaded on SC website.

While hearing the plea, Justice Mishra had made it clear that he would not withdraw from the Constitution bench as the grounds raised by the parties to seek his recusal were not valid. Allaying their apprehensions that he may be biased while hearing the case, the judge had said, “If I feel that I may be influenced then I will be the first person to recuse...”

The Constitution bench was set up by the Chief Justice of India to examine the correctness of contradictory judgments delivered by two benches of the SC, both comprising three judges. The two contrasting verdicts, which are to be reviewed, deal with the issue of whether farmers who had refused to accept compensation for land acquired from them could be deemed to have been compensated if the government had gone ahead and deposited the money with the treasury or a court.

In the 2014 Pune Municipal Authority case involving interpretation of the new law, a three-judge bench said the state depositing compensation in its own treasury cannot be deemed as landowners having been paid. It said such farmers could be deemed to have been compensated only if the money had been deposited with the court and if they had been paid higher rate of interest.

But in February 2018, a three-judge bench comprising Justices Arun Mishra, Adarsh Goel and Mohan Shantanagoudar ruled in Indore Development Authority case that compensation was deemed to have been paid if government had deposited it in the treasury and there was no obligation to deposit it in court.

Another 3-judge bench noticed the contradictions in the two judgements and stayed all cases until the question relating to Section 24(2) of the Right to Fair Compensation And Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 was settled.

Won’t recuse, we are under attack: Justice Mishra

Source: Hindustan Times dated 17.10.2019

Land Acquisition case An SC bench is expected to deliver verdict in the matter of recusal of Justice Mishra on October 23

New Delhi : Justice Arun Mishra, a senior judge of the Supreme Court, deprecated the “emerging trend” on social media of pressurising the judiciary and judges to give up cases and said such a practice amounted to deliberate interference with the judicial system.

Justice Mishra is heading a five-judge bench formed to end the stalemate over interpretation of section 24 of the Land Acquisition Act that involves fair compensation to landowners whose property is acquired by the state for public purposes and return of the land in case it is not utilized for the acquired purpose.

The larger bench has been set up in the wake of contradictory judgements on the law point.

Farmland owners have opposed justice Mishra heading the bench because he had authored one of the two judgements that has been referred to the constitution bench to determine its correctness. Arguments on justice Mishra’s presence on the bench commenced on Tuesday and continued all of Wednesday. The bench is expected to deliver its verdict in the matter of recusal on October 23.

During the hearing, justice Mishra almost choked and said he was pained to hear such arguments and the systematic pattern adopted to embarrass the judiciary and judges. He said that left to him he would have recused himself from the matter.

“My determination has been strengthened by these circumstances. It would be embarrassing for me to hear comments on my own argument.But I would not succumb to a lobby which under a certain guise is pressurizing the Chief Justice,” the judge said.

Solicitor general Tushar Mehta, appearing for Haryana, opposed the recusal plea. He said the trend of hearing-eve articles will jeopardise the functioning of judiciary. He asked the judge not to recuse himself under any circumstances. The reference is to articles in social media on farmer groups opposing the presence of justice Mishra on the bench dealing with the land acquisition matter. “If a judge recuses under pressure then he defies the oath taken during his appointment,” Mehta told the bench.

Justice Mishra said such articles “were sponsored.”

“I say it loud and open. They are sponsored articles,” he told the solicitor general and other advocates present in the court.

The judge told Mehta that he should have pity on him. “Circumstances and the background created has forced me to hear the case,” he said.

“To succumb to (the plea for recusal) would be nothing short of bench-shopping! It will destroy the independence of the judiciary. You are asking for a bench of your preference, your liking? One that is of your formulation? That you think would favour you? You want to tame the judiciary? This is a grave issue!”, the judge told senior advocate Shyam Divan, who on behalf of the landowners said there was no intent of bench-hunting.

“We are worried about an apprehension of bias,” he clarified, explaining “Your presence is likely to restrain the advocates and the litigants alike in presenting our case. This would be like crossing the rubicon.”

Justice Shah questions accountability for judges

Source: The Times of India dated 29.07.2019

Pradeep.Thakur@timesgroup.com

New Delhi:
Speaking about the recent allegation of sexual harassment against the Chief Justice of India, former Law Commission chairman Justice A P Shah said the entire process of handling the complaint was shrouded in secrecy in the name of protection of judicial independence. He claimed that the last three CJIs violated the principle of no man being a judge in his own case.

“A permanent employee of the SC was removed from her post on the flimsy allegation of her having taken a half-day casual leave, and protesting her seating arrangement. Her relative was dismissed from the same service soon thereafter. She made allegations of sexual harassment against the CJI, in response to which there was an unusual hearing that took place on a Saturday without a petition having been moved,” said Justice Shah, who retired as chief justice of Delhi HC in 2010 and served as chairman of the Law Commission between 2013 and 2015.

In what was termed a “matter of great public importance touching upon the independence of the judiciary”, the person holding the highest judicial office in the land sat as a judge in his own cause, Justice Shah said. “Three judges attended that hearing, but the order that emerged was surprisingly signed only by two, with the CJI choosing to abstain,” he said while delivering the Rosalind Wilson Memorial Lecture here on Sunday.

He also questioned the rationale of the SC’s registrar general issuing a public statement that the complaint was false. All this demands a relook at the accountability system for judges in India, he said.

CJI case: All eyes on the proceedings in the SC

Source: Hindustan Times dated 04.05.2019

Namita Bhandare (writes on social issues)

Their lordships have sworn to uphold constitutional values of equality and dignity. Their courtrooms have delivered landmark judgments, like Vishaka, which affirmed women’s right to a safe workplace and preceded the law on sexual harassment by 16 years.

Now, one of its own, a first among equals, stands accused of sexual harassment. A signed affidavit by a former Supreme Court employee sits on the desk of 22 Supreme Court judges. It alleges not just sexual harassment but targeted victimisation of the woman and her family for rebuffing the advances of the Chief Justice of India (CJI) Ranjan Gogoi in October last year, she says.

This was the apex court’s chance to shine. Instead, it has lurched from one crisis to another .

Within days, the CJI himself sat in on an extraordinary Saturday hearing to look into a “matter of great public importance touching upon the independence of the judiciary”. If the charge of sexual harassment is unprecedented, so is the use of a Supreme Court bench to launch a personal defence and malign a complainant.

Then came the brother judges who reportedly said that they would from now on request only male staff at their home offices, implying that either all women are liars trying to trap them or that they cannot be responsible for their libidos. Either way, the underlying threat to women’s right to employment by the country’s top judges is dismaying.

There was a further muddying of matters when a Union minister jumped to the CJI’s defence and at least one lawyer came forward with the revelation that he had been approached to “fix” the judge.

Sensational as these claims are, they obfuscate the only questions that matter: Is there merit to the former employee’s complaint? Is she not deserving of a special inquiry headed by a retired judge, as asked by her? Are judges above the law?

Never has it been so crucial for justice to seem to have been done. Yet, on the third day of hearings into the woman’s charges by three sitting judges, the woman announced she was withdrawing from the proceedings. She is being denied a lawyer, the proceedings are not being recorded and she is not being shown what of her statement is being recorded, she complained. “I was not likely to get justice,” reads her press statement.

What now? Will this also be forgotten in the 48-hour news outrage cycle? Certainly, past accusations of other instances of sexual harassment have ended with less than satisfactory outcomes. An actor charged with rape gets a role in a film. A former minister sacked in the face of public outrage files defamation proceedings against the first of his many accusers. A former Nobel Laureate jets around the world attending conferences because trial has not yet concluded in his case.

The Supreme Court remains every citizen’s last hope. For now, India’s women are watching developments there very closely.

When Laws can be Used to Deny Others Justice

Source: The Economic Times dated 15th Jasnuary 2014

When Laws can be Used to Deny Others Justice

Bishwajit Bhattacharyya

Can justice be denied to a person, just because she had earlier held a judicial office? The concept of ideal justice ought to transcend all caste, creed, sex, religious and national considerations. It would, therefore, not be fair to argue that justice should elude a former judge if any allegation is levelled against him. Such fundamentalism can strike a blow on the independence of the judiciary, the basic feature of India’s Constitution. Such arguments aim at browbeating all sitting judges. All sitting judges will be retired judges one day. Any possibility of fear instilled in the mind of a sitting judge would be dangerous for the system. All sitting judges have an obligation to maintain the independence of the judiciary at all costs. It can be nobody’s case that an errant judge — sitting or retired — ought not to be dealt with appropriately. But can a belated one-sided allegation, howsoever grave the allegations, made before a forum not competent to deal with the same, seek a mob-lynch verdict? In Justice Ganguly’s case, the Supreme Court recorded what it did, based only on the allegations levelled by the complainant. I do not think the Supreme Court committee gave any finding. If the full Supreme Court has decided not to entertain any such complaint in the future, that must be respected. Perhaps the full court’s decision is an admission that such a complaint ought not to have been entertained in the first instance. Indeed, the apex court cannot be converted into an investigating machinery or a prosecuting agency of the state. Nothing definite can be stated on the allegations without a trial. And a trial has to be in a competent court of law, arising out of an FIR. Let me not be too legalistic about the scope, purport and ambit of amended Sections 354A, 354B, 354C, 354D of IPC, hurriedly enacted without debate in the aftermath of the Nirbhaya crime. Today, questions are being raised as to the wisdom of enacting such lethal provisions. I don’t know whether this would have the desired effect. What I apprehend, however, is that some innocent persons may possibly be made victims of the law, either deliberately or otherwise. Law, as Samuel Johnson said, is the ultimate result of human wisdom, acting upon human experience, for the benefit of the public. I am not convinced that the amended IPC 354 satisfies the test of law laid down by the British statesman. What we need is justice, and not addition to a plethora of extant laws. We also need honesty of purpose on the part of those administering the law. In India we have too many laws but very little justice. And about justice delivered by the administrators, less said the better. Curiously, both the accused judges have always enjoyed great reputation of judicial independence. It is too much of a coincidence that such judges, with a tremendous reputation of judicial impartiality, should have been accused of wrongdoings in discharge of non-judicial function. The Supreme Court of India has been an inconvenient institution to the powers that be. There can possibly be a larger conspiracy to belittle and downgrade the Supreme Court, which is by far the best functional institution of India today. The faith of the common man in the Supreme Court has remained undiminished despite motivated attacks made from various quarters. The Bar has an overriding responsibility to protect the majesty and dignity of the judiciary. Let the law take its own course for any allegations levelled against judges. There are proper fora for ventilating grievances for every aggrieved person. Anyone can file an FIR against any person and the police has no choice but to investigate impartially and take the matter to its logical end. But to attempt to burden our Supreme Court to deal with individual complaints would be against the very basic tenets of the rule of law. Despite allegations levelled against judges, the Supreme Court remains a shining example of rectitude, independence and impartiality. Let us not attempt to destroy the last bastion of hope for the common man. Let us not destroy our democracy! 
The writer is senior advocate, Supreme Court of India