The system of fixing fees based on the ‘star value’ of the lawyer is a dangerous trend for the judiciary as well as for our democracy
Access to justice essentially means access to a lawyer. The legal profession has a public character. A lawyer is placed between the state and the citizen; therefore, he performs a democratic, libertarian and emancipatory function. The bar is not a private guild. In a celebrated decision in the United States, Justice Nelson rightly said that there is no other relation of life involving higher trust and confidence than that of an attorney and his client (Stockton v. Ford, 1850).
Canon No.12 of the American Bar Association Canon of Professional Ethics warns that “In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.” Wesley Romine reminds us that “if the legal profession is to honor its responsibilities to public service, it is essential that the society which it serves should not view the professional abilities of lawyers as representing avaricious and purely personal efforts to obtain wealth.” In Bushman v. State Bar of California (1974), the demand for excess fees coupled with misrepresentation and an attempt to solicit work was the matter in issue. In that case, following the ratio in re Goldstone (1931), a California Court declared the principle of law: “It is settled that a gross overcharge of a fee by an attorney may warrant discipline. The test is whether the fee is ‘so exorbitant and wholly disproportionate to the services performed as to shock the conscience’.”
Cost of litigation
But rhetoric is not reality. Though there is a lawyer between the state and the citizen, between the lawyer and the citizen, there is often the real obstacle of exorbitant professional fees which in itself forms the major chunk of the cost of litigation. Litigation in the Supreme Court is often a multi-crore affair. It is so in many of the High Courts as well. This is the irony prevalent in the constitutional courts, irrespective of the country’s socialist preamble to the Constitution. Legal aid for the poor does not enable the poor to choose the lawyer, nor the lawyer to choose the poor. Quality advocacy is an expensive commodity in the legal market. In V.C. Rangadurai (1978), Justice Krishna Iyer bothered about the “elitist” character of the profession and said that “its ethics, in practice, leave much to be desired.” Today, the profession has assumed a corporate character. A recent study demonstrates that the Supreme Court is a court too far away from the common man (Frontline, April 20-May 3, 2013). The alienation is not due to geographical or institutional reasons alone. Lawyering, by and large, has become a big industry. The distinction between the profession and the trade is blurred. The pity, however, is that often it lacks even the fairness of trade.
Ms. Esha Saha, Associate Editor at Live Law exposes the practice of senior lawyers charging unbelievably excess fees under various heads like retainer fee, settlement of brief charges, conference charges, appearance charges, reading fees, opinion/consultation fees etc. After indicating the alarming figures of the fees charged, she says, “Law is the most sought after and money spinning career in [the] U.S., but even the lawyers from [the] U.S. are astonished to hear about the fees charged by some of the star lawyers in our country. Indian senior lawyers have come a long way since the days of legal luminary M.C. Setalvad who had fixed a standard rate of Rs.1,040 for special leave petitions (SLPs) and Rs.1,680 for final hearings.”
The tragedy is that what the western democracies start to take as misconduct, is (mis)taken for eminence in a country that discovered and aspired for Gandhian jurisprudence. The cost of good lawyering is too serious a matter to be left to lawyers alone.
Need for standardisation
The difficulty experienced in an assessment of fees and the fallibility of another’s judgment regarding an advocate’s fees does not justify the robbery by the robbed brethren. The proportion between labour and cost is not wholly irrelevant. Corporatism should not annihilate conventional values. Experience, specialisation, value of time and intensity of efforts may be crucial in determining fees. Also, there are general economic criteria like demand and availability, material cost, abandonment of other work, etc. The system of fixing fees based on the “star value” of the lawyer is, however, a dangerous trend for the judiciary as well as for our democracy.
Though there is a lack of standardisation and certainty in many areas of legal remuneration, the levy of “shockingly exorbitant fees” should lead to disciplinary action. It needs to be taken as an action of misconduct that “tends to bring reproach to the profession” amounting to professional misconduct as defined under the Bar Council Rules.
There are state legislations regulating the lawyer’s fees in the subordinate courts and even in the High Court in civil and criminal matters. Often, those are framed by the High Court by invoking power under Articles 225 and 227 of the Constitution. The rules regarding fees payable to advocates in Kerala designed by the Kerala High Court after approval by the Governor is a fine example (Kerala Gazette dated 22.7.1969). It is a tragedy that the practice of law in the constitutional courts is not controlled by any law whatsoever. There is a real need to evolve an Aam Aadmi movement in Indian constitutional courts, where people should be able to ask for fair advocacy as a right.
Classification of lawyers
Senior lawyers are designated by the court. The seniorship is either conferred or granted on application. Section 16(2) of the Advocates Act states that an advocate can be designated as senior if “the Supreme Court or the High Court is of the opinion that by virtue of his ability, [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.” Note that the statute does not insist on any ethical parameter in deciding the question of designation. The prescribed application in some States inter alia asks for income tax details. Behind it, there is an incorrect and unacceptable postulate that the more the income, the more eminent the lawyer.
Generally speaking, the judiciary in the country also would find it difficult to indicate instances of moral and democratic considerations in choosing the leaders of the bar. It is time the statutory concept of eminence is radically altered by way of appropriate amendment. According to Section 16(3) of the Advocates Act, the Bar Council of India can restrict senior lawyers in the matter of their practice. In view of this statutory obligation cast on the Bar Council, the levy of excess fees also should be regulated by the Council. I support the suggestion by Nick Robinson that independent boards should oversee the profession in the best interest of the litigants (“Failed by the lawyer,” The Hindu, July 6, 2013). Chapter II under Part VI of the Bar Council of India Rules deals with “Standards of Professional Conduct and Etiquette.” The rules also need appropriate amendment encompassing excessive bills.
Negation of equality
On account of the indiscriminate conferment of seniorship, there is a clear negation of the perceived equity and equality among the bar members. By treating the bench and the bar on a par with each other, a higher level of internal democracy was conventionally ensured in the judiciary. A similar equality among the members of the profession also is an Anglo-Saxon legacy. The classification of lawyers envisaged by the Advocates Act has had the effect of sabotaging the fundamental uniformity in the bar. In a Maharashtra case, M.P. Vashi v. Union of India (W.P.(C) No.632 of 2011), the levy of exorbitant fees by senior lawyers was the matter in issue. Vashi argued that most of the designated lawyers, by making use of their star value and face value, charge unfair fees. He submitted that a kind of monopoly is being created in the business, detrimental to the interest of the common man at “the other side” who is unable to afford such highly priced lawyers. Unfortunately, the Bombay High Court was not inclined to accept the contention and a historical opportunity for institutional introspection was lost.
Even in decisions dealing with the professional conduct of lawyers, the Supreme Court has not focussed on the question of lawyers’ fees (O.P Sharma v. High Court of Punjab and Haryana (2011) and Supreme Court Bar Association v. Union of India (1998). However, in an earlier judgment in Bar Council of Maharashtra v. M.V. Dabholkar (1975), the court indicated that misconduct is “not restricted to technical interpretations of Rules of conduct.” The Supreme Court added, “Professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the books but in new canons of conscience which will command the members of the calling of justice to obey rules or morality and utility.” This principle should apply to the instances of excess charges by lawyers, whether they are seniors or juniors. Since there is a clear deficit in the legislations, which has the effect of infringing on the common man’s right, the Supreme Court needs to lay down the law even by way of judicial legislation as done in Vishaka (1997) and Vineet Narain (1998).
It is fallacious to think about popularising the judicial institutions or legal profession for that matter. The point is about democratising them. The right to choose among the capable is the touchstone of democracy. Like in any other occupation, a lawyer’s job too is quite ordinary and terrestrial. It is high time that the aura surrounding it is removed and the profession demystified. Litigants, like patients, make for an unorganised lot. Reformation in the legal profession is a condition precedent for judicial reforms which again is indispensable for democratic reforms. The idolatry within the bar is detrimental to the majority of the members of the profession, who do not have any role in the mischief. It also negates public good. The state should, therefore, interfere with the “legal market” in the country.
(Kaleeswaram Raj is a lawyer practising in the Supreme Court of India and the High Court of Kerala. E-mail: email@example.com)
Continued self-education is indispensable to honing the skills of lawyers in emerging areas of practice and to their social relevance in a changing world
The Indian legal profession has grown over a short period of less than 50 years to become the world’s largest and most influential in the governance of the country. At the same time, it reflects the diversity of Indian society, its caste structure, inequalities and urbanised delivery of services depending upon the market forces. Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 per cent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.
In the midst of such drift and mediocrity, the world around including the legal environment changed and opportunities for legally trained persons grew phenomenally, thanks to globalisation, technological revolution and economic liberalisation. The emergence of the National Law School movement and the Five-Year Integrated LL.B. programme attracted talented students who stormed into the legal market making a dent, though small, in the monopoly of the top 20 per cent. It gave hope to the rest of the middle and bottom segments of the professional pyramid that by playing the game with some professional skills, they too could penetrate the higher ranks which were largely reserved for the kith and kin of successful lawyers and judges so far. This is the context in which continuing legal education (CLE) is to be appreciated for professional development and better delivery of legal services.
There is as yet no organised system of CLE in the country. In the 1970s and 1980s, when the Bar Council of India Trust organised few CLE programmes, there were enthusiastic responses from all segments of the profession. Advocates paid the cost, suspended their practice and joined the residential courses around areas like criminal advocacy, constitutional litigation, matrimonial adjudication, commercial law practice, etc. The idea of specialisation in legal practice was well received and professionalism in management of client services appreciated. The issue of professional ethics on which advocates had no training whatsoever came to be acknowledged. More importantly, the CLE programmes inculcated a sense of public service as the hallmark of the profession and advocates sought to expand the public-interest litigation jurisdiction of courts to enlarge access to justice for the common man. In short, even a casual attempt to offer CLE has ignited the imagination of a large number of advocates on the relevance and usefulness of continuing education to hone their skills in emerging areas of legal practice and maintain their role as social engineers in the process of development. Over the years, this awareness has spread among the younger members of the profession though, unfortunately, there was no one to offer the CLE programmes relevant to the changing demands of the legal market.
CLE is also a measure of the accountability of the profession. The days of the general practitioner have gone and specialists have entered the scene. The competence of the legal practitioner is critical for clients and any dilution in the quality of services rendered is bound to be counter productive. CLE is the major instrument of all professions to ensure minimum competence in the delivery of services. It enhances professionalism, accountability and public respect for the profession. In short, CLE is indispensable for maintaining professional competence and its social relevance.
Competence or quality is the product of knowledge, attitudes, values, skills and ability to apply them for professional tasks. Legal education in colleges hardly teaches anything more than knowledge and that too inadequately. Some skills are acquired in early days of practice through observation and participation. CLE alone can possibly give the rest to provide competence to a young lawyer for whom professional bodies at present have no alternatives to offer. In the past, a year-long apprenticeship and a bar examination hopefully provided some insight into abilities, values and attitudes. They have been abolished and the new entrants are left to their fate!
What makes a professional
What are the elements of professional attitude? It has to do with sensitivity to professional responsibility, due diligence in handling clients’ affairs, loyalty to the profession, orderliness in management of tasks and commitment to quality in all circumstances. These are not inherited but learnt and cultivated. Continued self-education is the attribute of a professional.
Values too are learnt and cultivated by professionals by deliberate application of mind. Competent legal practitioners who have won public esteem have a keen sense of personal and professional ethics. Competence and its continued maintenance is itself a professional value. Integrity and honesty always pay in a profession. Respect for the rule of law is another value which no professional can ignore at any time. Obligation to serve the cause of justice or fight injustice is an abiding value of a legal practitioner. CLE can make value education a central focus of its programmes and help new entrants to the profession be aware of the role of values for professional competence. It is in the sphere of upgradation of knowledge particularly in emerging areas of legal practice where CLE can help the most. Knowledge is not just an awareness of rules; it includes comprehension, application, analysis, synthesis and evaluation. Good law colleges attempt to teach through clinical methods, application of knowledge to solve problems through analysis, synthesis and evaluation. In India such colleges are few. There are very few teachers trained in clinical teaching methods. Therefore, there is a tremendous vacuum in professional training which is waiting to be addressed through CLE.
Finally, professional competence in the field of law is the outcome of skilled application of knowledge in which proper skills are decisive to the outcome. These include interviewing and counselling skills, negotiation and mediation skills, research and writing skills, communication and advocacy skills, drafting skills, fact gathering and articulation skills, time and stress management skills, etc. all of which can be acquired through supervised practice supported by guided theoretical learning. CLE is the best mechanism to learn skills particularly in the context of the explosion in knowledge and technology.
For the first time in the history of legal education, the National Law School of India University, Bangalore, has established a Chair on Continuing Legal Education with support from the International Bar Association, the Ford Foundation and the Menon Institute of Legal Advocacy Training. A series of CLE programmes for lawyers and law teachers have been announced to help professional development and to enable law schools to set up CLE centres for institutionalising CLE at all levels of the system. While judges have their training academies in every State, the legal profession ended up with no provision for continuing education without which it is in danger of losing its competence to serve the complex demands of a developing society. This is what the Bangalore initiative on CLE is addressing though in a small way for the legal profession in India. Hopefully, in the next two or three years, a network of CLE institutions will come up around the country which will pave the way for enhancing the professional competence of advocates and thereby the quality of legal services in the country.
(Professor Menon was the Founder Director of the National Law Schools at Bangalore and Kolkata, and of the National Judicial Academy at Bhopal.)
UNE: Future lawyers need to equip themselves with knowledge and information if they want to deal with complaints relating to human rights violations, said Supreme Court justice Balbir Singh Chauhan on Saturday. He was speaking on the “Role of judiciary in protection of human Rights” at the Justice Y V Chandrachud lecture series 2012. The function, attended by judicial officers and lawyers, was organised by the Pune Bar Association (PBA) at the Ashoka hall of the district and sessions court.Justice Chauhan, the chief guest for the event, emphasised the need to introduce more courses on human rights violations, as such events have become rampant in the country.
Describing the incident of Baba Ramdev‘s rally at Ramlila Maidan last year as a clear case of human rights violations, the SC judge advised lawyers to have a sensitive approach while dealing in human rights violations cases. He also criticised the police for abusing its authority by inflicting injuries on a sleeping crowd in the garb of invoking Section 144 of the Criminal Procedure Code.
Citing the case of film actress Khushboo, who had to face 28 litigations by lawyers, and remained in prison for six weeks, because she had given an interview on live-in relationship, the judge said there was no law to initiate prosecution in such cases as none of the lawyers were defamed.
Among the others who spoke at the function include Justice Abhay Thipsay of the Bombay High Court, principal district and sessions judge Anant Badar, Harshad Nimbalkar, member of Bar Council of Maharashtra and Goa, PBA president Dhananjay Taur and others.
Later, attending the Justice P N Bhagwati International Moot Court competition at the New Law College, Justice Chauhan traced the history of legal education in India and commented on the quality of legal education and applauded the high professional quality existing today in law colleges across India. He also spoke on natural justice as well as human rights being the most essential components for dignified humanity.
Total 26 teams from national law schools and six foreign teams from the UK, the US and Europe have participated in the competition. The guests were introduced by Mukund Sarda, dean and principal of the college.
V. VENKATESAN IN THE FRONTLINE
TEHMTAN R. ANDHYARUJINA, a Senior Advocate in the Supreme Court of India, faced a lot of criticism from his colleagues, especially Soli J. Sorabjee, who was a junior to Nani Palkhivala during the hearing of the Kesavananda case, that his latest book, The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament, was a wasted effort. The former Solicitor-General took the flak in his stride, saying, “The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law.” Excerpts from an interview he gave Frontline:
Your book suggests that the inviolability of the basic structure doctrine was a dubious view of the majority of the Kesavananda Bench. What should have been the ratio of that judgment?
Extracting the ratio from the 11 judgments should have been the task of either the 13-judge Bench or a subsequent Bench. It is difficult to say what would have been the ratio on a proper judicial exercise. Had that exercise been done, there may not have been a majority holding that there is a limitation of the basic structure of the Constitution in amending the Constitution. There was no majority for any implied limitation on the amending power as Justice [H.R.] Khanna had rejected the implied limitations on the Constitution. What would have been extracted as the ratio of the Kesavananda case by a later Bench is a matter of speculation. This difficult exercise was purposely avoided by Chief Justice [S.M.] Sikri when he created the so-called View by the Majority note and passed it around for signatures of the judges on April 24, 1973.
In the concluding chapter, you concede that the basic structure doctrine is so deeply enshrined in our constitutional law that it would not be shaken even by the knowledge of the process by which it came to be formulated. What then is the purpose of the book, if it is not to make readers question that long-held belief?
It is correct that the basic structure theory has become an axiom of our constitutional law and one cannot imagine any Bench of the Supreme Court annulling that theory. It is also true that for whatever reason and method the majority view was arrived at, the axiom of unamendability of the basic structure of the Constitution has had a salutary check and control on the amending power. The purpose of my book is only to give a historical account of how the basic structure doctrine came to be established in our constitutional law. After this case, Parliament and the government gained by different approaches on its social and economic policies, which the court did not interfere with merely because some fundamental right was perceived to be violated. In that sense, the judgment served a useful purpose to society.
Can you explain how the then government sought to appoint judges before the hearing of the case?
After the Golaknath case, the government took a predominant role in the appointment process. By and large the new government nominees, though men of eminence and distinction, decided in favour of the unlimited power of Parliament except Justice A.K. Mukherjea. After Golaknath, the initiative came from the government. Justice Sikri was initially reluctant to appoint Justices [M.H.] Beg and [S.N.] Dwivedi. The government prevailed upon him. He selected Justice Khanna. The government accepted it. The relations between Justice Sikri and Indira Gandhi were also strained.
Justice Sikri had to choose 13 out of the then total strength of 15 judges to hear the Kesavananda case [the earlier relevant case, Golaknath, was decided by 11 judges and the Kesavananda Bench had to be bigger than that]. There were just two remaining judges who did not have a long tenure: Justice [V.] Alagirisamy and Justice Inder Dev Dua. But their tenure could have been extended in the form of ad hoc judges [and could have been chosen to be part of the Kesavananda Bench to replace Justices Sikri and J.M. Shelat]. The general practice is when your view is being reviewed, propriety requires that you recuse yourself from the Bench. But nobody raised objections [against Justices Sikri and Shelat being on the Kesavananda Bench because they were earlier part of the majority judges on the Golaknath Bench].
You mention that there was a move to exclude Justice Beg, a pro-government judge, from the Bench after 66 days of hearing on his hospitalisation. Who was behind this move?
It is unfortunate that a strong attempt was made by the petitioners and the CJI [Chief Justice of India] to exclude him on his third and last illness. His exclusion would not have changed the number of the majority, as the majority would have still prevailed with 7:5 instead of 7:6. In a case with such political overtones, the [likely] exclusion of Justice Beg at the last moment created tensions. It was felt that if the case was adjourned for the return of Justice Beg, the case would have prolonged beyond the retirement of CJI Sikri and the whole effort of the 13-judge Bench would have come to naught. Therefore, the petitioners and the CJI wanted to drop Justice Beg from the Bench and proceed as if there were 12 judges. The illness of Justice Beg at the crucial moment was interpreted as some sort of a game plan of the government to put an end to the case. The petitioners believed that it was a move to favour the government. As a result, Justice Beg was retained on the Bench, with Palkhivala being asked to give written submissions. It was a serious illness, but the question was whether his illness would go beyond the tenure of Justice Sikri.
The Attorney-General had threatened to walk out if Justice Beg was dropped. [Justice H.M.] Seervai supported him. Without one judge on the Bench, the legitimacy of the judgment would have come into question. Palkhivala, therefore, submitted to the government’s wish, and agreed to close his oral arguments on the 66th day.
By signing the View by the Majority note, did the neutral judges not apply their minds? You suggest that some of them reluctantly signed it because of constraints of time as Justice Sikri was due to retire.
The only judge who said that he signed the View by the Majority note to accommodate Sikri was Justice Y.V. Chandrachud. The rest of the judges, except Mukherjea, were by and large committed to the view of Parliament not having the amending power to change the basic structure. It would not have made any difference to the ultimate result, as at least five of the judges were clearly in favour of limiting Parliament’s amending power, and, one judge, Justice Khanna, was in favour of limiting its powers only on the grounds of basic structure. The absence of judicial conference does not invalidate the judgment. The view by the majority cannot be considered invalid because of the absence of a judges’ conference [preceding it], but it had become dubious because it was a hurriedly prepared paper passed on for signatures just before the judgment was delivered.
You have also claimed that the then government was in possession of some of the draft judgments before they were delivered. What was the basis of this claim?
The government decided on the supersession of judges even before the judgment was delivered in open court. Kuldip Nayar, in his book, says that Chief Justice Sikri queried Justice Beg. Justice Dwivedi said [after his appointment] that he was going to the Supreme Court to reverse Golaknath. Justice Beg was the nominee of Indira Gandhi. The government had advance notice of the views of the judges. Justice Mukherjea, Justice P. Jagannatha Reddy, Justice Chandrachud and Justice Khanna did not give the impression of being one way or the other. They appeared to be uncommitted. So, they would tilt the balance. Justice Reddy, on his own, came to more or less the same conclusion as the Sikri-led judges.
Justice Mukherjea wrote a joint judgment with Justice Hegde. Justice Khanna took a midway position. Justice Chandrachud was perceived by the petitioners to be in favour of limiting the amending power by some of his statements in the court, and the fact that he had been invited by Justice Sikri to the only judicial conference of like-minded judges. Therefore, his writing a judgment in favour of Parliament was a great surprise. This gave rise to the rumour that he had been influenced by the then Law Minister H.R. Gokhale and retired Chief Justice Gajendragadkar [a family friend of Chandrachud]. Justice Chandrachud later said that he was entitled to change his views. He denied that he was influenced by Gokhale and Justice Gajendragadkar.
Why did Chief Justice A.N. Ray dissolve the 13-judge Bench to review the Kesavananda judgment within two days of its constitution in 1976? You have speculated on the reasons, like his isolation on the Bench, Palkhivala’s letter to the Prime Minister on the eve of the hearing protesting against the move, and so on. Can you elaborate?
I think the 13-judge Bench was constituted by Justice A.N. Ray to review the Kesavananda case without any judicial order and there was no indication why the case was required to be reviewed. This was the strongest reason advanced by Palkhivala. On this point, neither Chief Justice Ray nor Attorney-General Niran De was able to give a convincing answer. And from the observations of other judges, this question was a worrying one. Therefore, in my view, Ray could not carry the majority with him to review the Kesavananda case, and on the third day, he felt compelled to dissolve the Bench without any reason.
How would you interpret Justice Ray’s legacy?
Chief Justice Ray’s acceptance of the CJI post is often misunderstood. It was not he who manoeuvred it but the government. After knowing the views of the judges who were going to decide against Parliament, the government decided that the next CJI should not be a judge from among those judges. It is now known that the government even asked Justice K.K. Mathew whether he would accept the position of the CJI. But he declined. Chief Justice Ray himself was reluctant to be the CJI in such a controversial way, but he was told that if he did not accept the position, the government was determined to go down the line and appoint any other judge who would consent to be the CJI. Therefore, Justice Ray accepted the position with reluctance.
Your mentor H.M. Seervai changed his view after the Emergency that the doctrine of basic structure was required for Indian democracy as without it many of the abuses of power during the Emergency could not have been reversed legally. Do you similarly support the doctrine now, even while legally questioning its birth?
In the Kesavananda case, it was argued that the amending power could be abused. It was not an unknown fact. But that could never be the reason for cutting down any power. Seervai changed his view for personal reasons. Today, after 38 years, one can say that as a matter of political argument a check on the amending power is always to be welcomed. In other countries, the amending power is not subjected to such judicial constraints, except in Bangladesh. Any power is capable of being abused and the fact of the abuse is never a ground for limiting the governing power.
The difficulty in ascertaining the basic structure is that it is a highly nebulous and subjective standard. It gives a vital power to the judiciary, which was never contemplated by the Constitution makers. It is true that Parliamentary and executive misuse is something that requires judicial correction and which is done in the normal course. But the amending power is a unique power, which cannot be compared with the ordinary legislative or executive power. The amending power is a quasi-political power and its validity may not be within the domain of the executive, which is a view taken in most jurisdictions of the world, including, Malaysia, Sri Lanka, Pakistan and South Africa. It is a unique power to create the Constitution. Judges are bound by the Constitution.
All constitutional cases, in a sense, are political. In the Kesavananda case the external political forces operated for over 66 days, and in that sense it was not a normal, constitutional case deciding political issues.
- Book on Kesavananda Bharati case to be released on Tuesday (indialawyers.wordpress.com)
- The inside story (thehindu.com)
- ‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’ (indialawyers.wordpress.com)
- The bench in the Lokpal (indialawyers.wordpress.com)
- 35 yrs later, a former Chief Justice of India pleads guilty (indialawyers.wordpress.com)
- House power to regulate judges’ ambit under legal experts’ lens (indialawyers.wordpress.com)
- National Law Day: Two Constitutional Scholars who upheld the values of our Constitution (indialawyers.wordpress.com)
- Justice Katju was part of the Bench that gave landmark judgments (indialawyers.wordpress.com)
PUBLISHED IN THE BAR AND BENCH
The Constitution of India was adopted by the Constituent Assembly on “November 26”, 1949. Thirty years after, under the leadership of Dr. L. M. Singhvi, the Supreme Court Bar Association declared November 26th as the National Law Day. Thereafter, every year, this day is celebrated as the Law Day, all over India, especially by members of the legal fraternity. This day is celebrated to honour the 207 eminent members of the Constituent Assembly who are considered the founding fathers of the Constitution of India.
Shri M. N. Krishnamani, President, Supreme Court Bar Association, on a Law Day address said that the main objective of celebrating Law Day is, “We want to be a coherent democracy governed by the rule of law. In fact, true democracy and the rule of law always go together. It is the rule of law which guards the democratic polity. Therefore, the real purpose of celebrating Law Day is to rededicate ourselves to the following cardinal principles which formed the solid foundation on which this grand constitutional edifice is erected: (i) the rule of law, (ii) independence of the Judiciary, and (iii) the independence of legal profession. These three principles are intimately interconnected. The main purpose of independent judiciary and an independent bar is only to ensure that there is the rule of law.”
Law Day is an important day for the members of legal profession in India and also for the people of India. Lawyers and the Indian judiciary have time and again been the last resort of protecting rights and liberties of individuals. It is a special day we all should celebrate and recognize those who have played active role in upholding the rule of law and protected our rights and liberties.
On this day we would like to recognize two legal luminaries who have played an important role in promoting the spirit of our Constitution through their judgments, Justice B. Sudershan Reddy and Justice G. S. Singhvi. While the former retired recently on July 7, 2011, the latter continues to serve and is scheduled to retire on December 12, 2013. The Indian Supreme Court recently pronounced some path breaking decisions. It is interesting to note that at least one of the two above mentioned judges have been a part of the bench which has delivered such eye-opening judgments.
In Ram Jethmalani & Ors vs. Union of India & Ors, Justice Reddy criticised the Union government, strongly, for loosening its strings when it came to investigation of black money related cases and asked the government to tighten its grip over perpetrators of such crimes. He reiterated his point by constituting a Special Investigation Team (SIT) to monitor the investigation and the steps being taken to bring back black money stashed away in foreign banks. Also, Pune-based businessman Hasan Ali Khan’s bail plea was stayed and he was made available for custodial interrogation only because of the earlier directions issued by Justice Reddy .
In the Salwa Judum case, Justice Reddy came down heavily on the Chattisgarh government and the Centre for appointing tribals as Special Police Officers (SPOs) and training them to counter Maoists and held the action to be “unconstitutional” by highlighting the importance of human rights.
In 2008, he was also a part of the bench which laid down the guidelines for dealing with Public Interest Litigation, based on which the government is, presently considering a Bill. He reiterated that the High Court judges could not order suo motu investigation merely by treating anonymous letters and petitions listing allegations against individuals or institutions as PILs.
The fight for relevance of PILs has gained momentum again this year, due to Justice Singhvi’s judgment in Delhi Jal Board Appellant v/s National Campaign for Dignity and Rights of Sewerage and Allied Workers & others. The bench, in the above mentioned case, stated that it would be denial of justice if the courts denied addressing the genuine petitions filed by individuals, social workers and NGOs. The Court reminded that it is the duty of the judicial constituents of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity.
While dealing with Justice Dinakaran’s petition, the Apex Court, comprising of a bench of which Justice Singhvi was a part of, refused to be bogged down by the delay tactics used by Justice Dinakaran. It ruled that former Sikkim High Court Chief Justice, Justice Dinakaran’s known silence with regard to P. P. Rao’s appointment to the Rajya Sabha Committee for a period of almost ten months, militates against the bona fides of his objection to the appointment of P. P. Rao as member of the Committee. As a result of this decision Justice Dinakaran had to resign to save his face from an impeachment proceeding.
Further, it was Justice Singhvi’s(pictured) order in the 2G case which asked the Central Bureau of Investigation to conduct investigation without being influenced by politicians or other influential persons, which finally led to the numerous charges, arrests and trials against the elite class of influential people who were involved in the scam. If not for his order, trial of this scam may have gone on for years without any ultimate result due to overreaching hands of corruption. This shows that Justice Singhvi is unperturbed by who is the government in the Centre and believes in only doing his job and upholding the values and goals of our Constitution.
While hearing a public suit by the All India Drug Action Network of several NGOs which challenged the government’s proposed policy on drug pricing, a bench comprising of Justice Singhvi and Justice S. J. Mukhopadhaya communicated to the central government that the prices of medicine should not shoot up further as the prices of medicine and ordinary lab tests were already too high.
On last Wednesday, a division bench of the Supreme Court, comprising of Justices Singhvi and H. L. Dattu granted bail to seven corporate accused in the 2G scam case, who had been in jail even after the charge sheet was filed and the investigation was complete. Justice Singhvi has played a balanced role here. This decision brings an end to the present trend of keeping under-trials in custody for prolonged period of time without any rational justification. While his initial order in the 2G scam paved way for the arrests and a proper investigation, the present order upheld the rights of the accused envisaged under our Constitution and other laws.
The aforementioned judgments of Justice Reddy and Justice Singhvi evidence the fact that the sacrosanct principles which have been envisaged in our diverse and elaborate Constitution by our founders are in the hands of sound judges. Their judgments have acted as eye-openers for not only the state and central government but also for the citizens of India. In an era, where the Judiciary is embroiled in controversies, these two eminent judges have continuously delivered such judgments which have upheld the values imbibed in the Constitution. On this special day, we salute you.
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J VENKATESAN IN THE HINDU
Last month, after a gap of about 18 months, the Full Court of the Supreme Court designated 11 retired judges of various High Courts as senior advocates, but deferred its decision on conferring the status on five advocates who had also applied.The Full Court did not designate any practising advocate as senior; without rejecting their applications, it deferred their consideration for the next meeting. Two advocates are among the five lawyers whose names have been deferred for the second or third time. The last meeting of the Full Court for designating senior advocates took place in February 2010, when seven were designated seniors; five of them were retired judges. Since 1962, the Supreme Court has designated 371 lawyers, including retired judges, as seniors.
The Supreme Court follows a rigorous procedure for considering applications of practising advocates. As per the rules, a minimum of five sitting judges are expected to recommend the candidature of a practising advocate. Upon such a recommendation, the application is placed before the Full Court. Though the Chief Justice of India has discretionary power in exceptional cases, the status is invariably granted by the Full Court unanimously. Section 17 of the Advocates Act of 1961 empowers both the Supreme Court and the High Courts to designate the practising advocates with a 10-year standing in the Bar and one who has completed 45 years of age as senior advocate. The original Act required designation only on the basis of “experience and standing at the Bar.”
However, with an amendment in 1993, the requirement has been “standing at the Bar or special knowledge of experience in Law.” The aim of the amendment is that the advocates with a special knowledge of Law should be designated as senior advocates, as they bring in their expertise in deciding cases. In the fast-expanding field of Law, expertise has become very crucial. The fields of expertise include criminal, civil, commercial, taxes, constitutional, arbitration, inter-State water disputes, patents and copy rights and telecom disputes.
The High Courts grant the designation liberally. Recently, the Bombay High Court designated 17 advocates. The Delhi High Court designated 12 advocates in February 2011. Even the smaller High Courts, such as Sikkim with three judges and Uttarakhand, have designated advocates quite liberally. Many of the practising advocates of the Supreme Court have been designated by these High Courts.
The designation is the practice followed by the Commonwealth countries. In England, the designation is known as Queen’s Counsel or King’s Counsel. Traditionally, Queen’s Counsel were selected from among barristers. However, after 1994, even the solicitors are considered for designation. The system of designation was reformed in 2005 to make it more inclusive. During 2008-09, 2009-10 and 2010-11, the designation of Queen’s Counsel was conferred on 104, 129 and 120 lawyers.
Though the designation is a mark of recognition, it places restriction on practice. The designated seniors are not expected to file ‘vakalat’ or entertain clients directly; they are not supposed to draw pleadings. Legal experts are unanimous that there must be proper guidelines put in place for designation and all applications should be disposed of in a time-bound manner, say, six months. Further, if an application is rejected, they say, the reason must be communicated to the applicant.
According to the senior advocate and former president of the Supreme Court Bar Association, M.N. Krishnamani, lack of proper guidelines and norms led to a situation a few years ago, when 64 lawyers got designated by the Sikkim High Court as senior advocates when not even one of them belonged to Sikkim and not even one of them appeared in a single matter before that court.
He feels that the insistence on recommendation by five judges even for presenting an application may not be relevant since the decision is taken unanimously by the Full Court. Though the designation of seniors should not be liberal, the whole process has to be more transparent and certain discreet norms have to be applied. If statistical data are collected, that will prove that judges’ close relatives get designated even when they are young, and judges’ relatives become High Court judges easily.
The former Attorney General, Soli Sorabjee, says there is nothing wrong in five Supreme Court judges, including the Chief Justice, performing the function. There should not be any inflexible rule that every retired judge of the High Court should be designated as senior counsel. There are some judges of the High Court who have acquired dubious reputation, and they do not deserve to be made senior counsel. The designation should not be deferred for a long time; there cannot be a fixed time of six months, but applications should be decided in a reasonable time.
Senior advocate K.K. Venugopal, while justifying the rigid norms, says: “The reasons why the court is not liberal in granting the status is that the court expects the highest standards of rectitude to be maintained by seniors, though, of course, this would apply to others as well.” Asked whether any time limit could be fixed for the disposal of applications, he says: “I do not think there should be any time limit within which an application must be decided. This is because there is no vacancy to be filled within a time limit.” On applications being deferred, he says: “It would be to the advantage of an applicant if the decision is deferred rather than being rejected outright…”
Supreme Court Bar Association president P.H. Parekh says: “The system that five Supreme Court judges should recommend an advocate’s name…is quite reasonable and proper. However, the designation should be granted more liberally than is being done now, “especially to those advocates who appear in the Supreme Court regularly and who have been appearing for a sufficient long time. Their designation should be liberally considered,” he says.
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Government is working on a Bill that envisages an Ombudsman to look into the complaints against lawyers and a Legal Services Board that would regulate law practices in the country. Giving this information in written reply to a question in Rajya Sabha, Shri Salman Khurshid, Minister of Law & Justice informed the House that a draft Bill titled “Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the interest of Clients and Promoting the Rule of Law) Act, 2010” was drafted and uploaded in the website of the Ministry of Law & Justice inviting comments and suggestions of the stakeholders. Comments are being received. Shri Khurshid said the draft Bill will be reviewed based on these comments.
As per the proposed Bill, the complaints against the legal professionals will be examined by the Ombudsman and the report of the proposed Ombudsman will be forwarded to the Disciplinary Committee of the Bar Council of the State with a copy to the proposed Legal Services Board. The Disciplinary Committee of the Bar Council shall consider the report of the Ombudsman and if such report is not accepted by the Bar Council, the reasons for rejection of the recommendations of the Ombudsman shall be explained in detail and the same shall be published in the manner prescribed by rules. This will not in any way minimize the role of Bar Councils, Shri Salman Khurshid said.
However, Clauses 30-33 of the proposed draft Bill empower the Board to issue directions to the Bar Councils in certain specified circumstances and enables the Board to approach the High Court for enforcement of the directions if the Bar Councils fail to comply.
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“The High Court at Calcutta, formerly known as the High Court of Judicature at Fort William was brought into existence by the Letters Patent dated 14th May, 1862 issued under the High Court’s Act, 1861 and was formally opened on 1st July, 1862. The jurisdiction and powers of the High Court were to be defined by the Letters Patent. The existence of the Calcutta High Court is important to us as it was the first High Court and one of the three Chartered High Courts to be set up in India, along with the High Courts of Bombay and Madras
Sir Barnes Peacock was the first Chief Justice of the Calcutta High Court in 1862. Subsequently, Justice Shri Sumboo Nath Pandit was appointed as the first Indian to assume office of the High Court on 2nd February, 1863. He was followed by other legal luminaries such as Justice Shri Dwarka Nath Mitter, Justice Shri Ramesh Chandra Mitter, Justice Sir Chunder Madhab Ghosh, Justice Sir Gooroodas Banerji, Justice Sir Ashutosh Mookerjee. Justice Shri P.B. Chakravartti was the first Indian to become a permanent Chief Justice of the Calcutta High Court.
The High Court started with strength of 13 Judges and by the year 1955, its strength raised to 20 Judges. In the year 1958, the strength was fixed at 24 which was increased to 32 in 1966, 39 in 1969 and 41 in 1974. Till 1994, the strength of the High Court remained 46 when in 1993, the Supreme Court directed that the Judge strength of every High Court should be reviewed periodically with reference to the felt-need for disposal of cases, taking into account the backlog and expected future filing. Accordingly, the Judge strength of the High Courts, including the Calcutta High Court is being reviewed every three years. In 1995 the Judge strength of the Calcutta High Court was fixed at 48 and after review in 1999 it increased to 50 Judges. As per the latest review undertaken in 2007, the Judge strength of the Calcutta High Court has been revised to 58 Judges.
The Union Government is keen on the reduction in the pendency in the High Courts and has, therefore, launched a campaign from today to reduce pendency in the High Courts. One of the measures in reduction of the pendency is to have as many Judges in position as possible. Calcutta High Court has, against the sanctioned strength of 58, only 46 Judges in position. Though the Chief Justice has recommended names of 7 persons they are pending with the Central Government for want of comments of the State Government. I would urge upon the State Government to consider the recommendation made by the Chief Justice and send their comments at the earliest so that the vacancies could be filled up during the campaign period itself, thereby helping in disposal of more number of pending cases.
I am told that the High Court building is an exact replica of the Stand Haus in Ypres, Belgium. It is also recorded that when the original Stand Haus burnt down, a blue print of Granville’s Calcutta High Court had to be consulted before rebuilding it. The neo-Gothic High Court building was constructed in 1872, ten years after the establishment of the court itself. Government of India feels that unless the infrastructure is perfect, it is not possible for the High Courts to function smoothly. The 13th Finance Commission has awarded Rs. 5000 Crores to improve the justice delivery system in the country during the period of 5 years starting 2010-11. A sum of Rs. 19.70 Crores has been set aside out of this allocation for renovation of the Calcutta High Court Building, this being a heritage building. Further to this, the Union Government has, under the Centrally Sponsored Scheme, released a sum of Rs. 425.26 lakhs to West Bengal Government for developing infrastructural facilities for the judiciary.
The Government in the Centre is also keen on bringing the justice to the doorsteps of the masses for which the Gram Nayayalaya Act, 2008 has been enacted which has come in force w.e.f 2nd October, 2009. Under the Act, assistance is provided to the States towards (i) establishing the Gram Nyayalayas @ Rs. 18 lakh per Gram Nyayalaya and (ii) meeting recurring costs involved in operating these Gram Nyayalayas @ Rs. 3.20 lakhs per annum per Gram Nyayalaya for the first three years. I would request the Government of West Bengal to take steps for establishment of Gram Nyayalayas. I would like to mention here that we have received representations from some of the States that the grant being provided for the Gram Nyayalayas is not adequate. We are working on these representations also for increasing the grants from establishment of the Gram Nyayalayas and will make an announcement shortly in this regard.
In our pursuit to bring justice to the people of West Bengal within their reach, the Central Cabinet had taken a decision in June, 2006 for setting up of a Bench of the Calcutta High Court at Jalpaiguri. The infractural facilities for setting up of the Bench need to be provided by the State Government. We have been reminding the West Bengal Government in this regard. I would request them to pay attention to this project and provide infrastructural facilities at Jalpaiguri to the satisfaction of the Chief Justice which will go a long way in mitigating the miseries of the litigants.
A Mission Mode Programme was launched on 26th January, 2010 titled “National Mission for Delivery of Justice and Legal Reforms for the Under Trials” with the aim to reduce the number of under-trial cases and to ease congestion in jails. This programme was undertaken for considering the cases of 2/3rd of the undertrials estimated to be about 3 lakhs in January, 2010, who were languishing in jails. I am happy to announce that the results of this drive was extremely successful with cases of over 7 lakh prisoners having being decided by the end of May, 2011 of which over 1.72 lakhs were from West Bengal. I hope this must have brought relief to as many families also.
I am happy that the Calcutta High Court Bar Association is taking active part in the activities of the Calcutta High Court. I hope they would continue to work for the betterment of the society by getting them early justice through Courts which would also help in reduction of the pendency in the Courts for which a campaign has been launched today. On the occasion of the 150th year of the Calcutta High Court, I would like to convey my sincere thanks to the Calcutta Bar Association for organising this function.”
Rajiv Gandhi Advocates Training Scheme was inaugurated in the National Law University Delhi today. Minister of Law & Justice Dr. M. Veerappa Moily, Chief Minister of Delhi Smt. Sheila Dikshit and the Chief Justice of Delhi High Court and Chancellor of National Law University Delhi Mr. Justice Dipak Misra were present on the occasion.
Presiding over the function, the Minister of Law & Justice said “Globalization of law includes global connections, global interdependence, global information, global finance, global governance and global rights. Legal profession in the 21st Century must focus on the rapid changes in legal education and the legal profession that are taking place throughout the world, the phenomenon that is often referred to as the globalization of legal profession.”
The primary purpose behind the development of the lawyers’ training program is to standardize the training of future generations of lawyers in the globalization era. Achieving this goal is critical to ensure that lawyers’ attain a minimum level of legal knowledge and advocacy skills before they take on the responsibilities associated with representing clients before the courts. Additionally, the training plan has been designed to increase public confidence in the legal system by setting clear ethical standards for the practice of law and training future lawyers about their ethical obligations to society and the role they play in promoting the integrity of the legal system as a whole. Training programme helps in enhancing following skills of the advocate trainees.
Builds better communications skills.
Develops hidden talent.
Ensures consistent quality.
Provides greater focus.
Produces more effective/productive efforts.
Clarifies the concept of marketing as a business process.
With respect to the roles of the justice system, the legal profession and the people in this Herculean effort at transformation, the justice system is expected to operate so as to eliminate injustice from society. The Article 39-A of the Constitution of India mandates that the state shall provide “by suitable legislation or schemes or in any other way” to ensure that opportunities for seeking justice are not denied to any citizen “by reason economic or other disabilities”. It imposes a duty on the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity and in particular State shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Access to Justice is recognised as a fundamental right. An effective justice delivery system requires that (i) justice be made available at the door step of people and (ii) we should have talented, dedicated and qualified legal professionals who serve at the grass root level. So far as providing justice at the doorstep is concerned, we have courts at the District and Taluka levels. Now, we also have ‘Gram Nyayalaya’ at village and intermediate level. There is no dearth of talented and dedicated law graduates at grass root level but there is no motivation and encouragement for them to come forward and stay in legal profession at district, Taluka and village level. Result is, despite their ability most of these young lawyers are not getting proper opportunity and exposure in the profession. At the end, they become brief less lawyer. There has been a far reaching cry to give proper professional training to the Advocates so that they not only become good lawyers but also are competent to compete with high profile law firms.
The Supreme Court in the case of State of Maharashtra Vs. Manubhai Pragaji Vashi, (1995) 5SCC 730 has observed that the need for a continuing and well-organised legal education, is absolutely essential reckoning the new trends in the world order, to need the ever-growing challenges. The scheme envisages selection of 10 young practicing advocates from each state of India, every year for being imparted professional training.
A preference shall be given to those candidates who belong to SC/ST, OBC, Woman and Physically Handicap. The National Law University, Delhi will implement the scheme at the national level by providing the Advocates one month training in its campus and the Advocates will be placed with a Senior/leading Advocate at their respective places for one month training.
This training programme will cover:
ADR Mechanism for settlement of Disputes;
Plea bargaining and its importance;
How to use Information Technology and Communication in court proceedings? Advantages of these tools in court proceedings;
Art of cross – examination;
How to present the case and argument before the Court?
Provisions contained in “Hague Convention on the Service abroad of Judicial & Extra Judicial Documents in Civil and Commercial Matters” – Mechanism of service of summons and other judicial documents issued by Indian court to persons residing in foreign territory and vice versa.
Effect and advantages of having Mutual Legal Assistance Treaty in civil and commercial matter; and in criminal matter, Extradition Treaty and Treaty on transfer of convicted persons with foreign countries.
Intellectual Property laws including ‘Competition Law’ – Their use, importance and relevance in modern day business;
Cyber Laws – How to deal with cyber crimes and related issues;
Specific legislations useful in day to day life viz. the Domestic Violence Act, 2005, the Protection of Child Rights Act, 2005, The Dowry Prohibition Act, 1963, Gram Nyayalaya Act, 2009 etc.
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Section 30 of Advocates Act will be notified 50 years after Act came into force
Fifty years after the Advocates Act, 1961, was enacted, the Centre has decided to notify Section 30 of this Act to enable advocates to practise as a matter of right in all courts, tribunals or any quasi-judicial authority.
This provision was not notified when the Act came into force.
Section 30 of the Advocates Act says: “Right of advocates to practice: Subject to the provisions of this Act, every advocate shall be entitled as of right to practise throughout the territories to which this Act extends; in all courts including the Supreme Court; before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.”
Mr. Moily said: “I traced the file relating to this provision. For some reasons this Section remained in the Statute without being notified. I decided to notify this Section and signed necessary orders. The notification is expected to be issued either on June 7 or 8.”
Expressing satisfaction over the progress in the implementation of ‘vision statement’ launched in October 2009, he said under the programme to be launched from July 1, about 40 per cent of the petty cases pending in various courts were to be disposed of in six months through Lok Adalats and morning/evening courts.
He said the 13th Finance Commission provided Rs. 5,000 crore for support to the judiciary and the first instalment of Rs. 1,000 crore had already been released for 2010-2011. The Finance Commission envisaged that all subordinate courts could have extended court hours by hiring retired judges or giving allowances to incumbent judges to dispose of petty cases.
Such courts, he said, were to be established at a cost of Rs. 3.5 lakh each and they were expected to dispose of 225 lakh minor cases annually. In addition Lok Adalats were expected to dispose of 15 lakh a year and by 2015, a total of 75 lakh cases would be disposed of by Lok Adalats.
Mr. Moily said he had written to the Chief Justices of various High Courts underlining the need for reducing the pendency of cases in courts from 15 to three years by 2012. He said he had asked the CJs to launch the campaign from July by fixing targets and types of cases for disposal.
He had suggested to them to follow summary procedure as allowed by law, plea bargaining and compounding of cases to reduce the caseload in courts.
On the progress in computerisation of courts, he said: “The government is implementing a Central sector scheme for computerisation of the District and subordinate courts [e-courts project] in the country and for upgradation of the Information and Communication Technology infrastructure of the Supreme Court and High Courts including video-conferencing facilities.”