Tag / Bombay High Court

by NNLRJ INDIA

‘Sensitivity must to defend human rights’

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.

by NNLRJ INDIA

Women as senior advocates, any takers?

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Bombay High Court : Since 1991, there have been only 3 women among 81 designations

MEENA MENON IN THE HINDU

There have been only three women among the 81 senior advocates designated by the Bombay High Court from 1991 to 2010. Since 2006, no women have been designated as senior advocates; this year too, there were none among the 15 names decided by the High Court.

This year, only one woman, a senior lawyer with over 35 years’ experience, had applied, and she was not selected. Women are diffident about applying for the senior advocates’ designation and even if they do, they are not sure of getting it. And the whole process is shrouded in secrecy. S B Shukre, Registrar General, Bombay High Court, refused to give any details regarding the selection process, the number of applicants and how many women had applied for the designation of senior advocate. Saying that the information was confidential, he suggested that an application may be filed under the Right to Information Act. Rajani Iyer, who was made senior advocate in 2006 along with Ms. K.V. Sirpurkar, says: “I waited to apply till I was invited/asked to apply. I didn’t want to do so otherwise. Perhaps I got lucky when I was appointed.” In addition to a certain amount of diffidence, there is a lack of women applicants. It is a two way-street, she explains. “Why don’t senior women advocates apply for this position despite having a well-rounded practice?” she asks. To be appointed senior advocate is prestigious. “You don’t have to draft petitions and you are given sole responsibility for the case. It’s exciting and challenging,” Ms. Iyer says.

When asked if there was discrimination in the selection process, she points out that the question of discrimination can arise only if women are denied from among a large number of applicants. “The bias or inequity is in the number of women applying. How many women can get recommendations from four senior advocates for the application? That is also the question. Also there are so few women from the criminal side. Freny Ponda was the last advocate from the criminal side.” So far there have been only eight women senior advocates in Mumbai, and among them are Indira Jaising, Sujata Manohar and Phiroza Anklesaria.

To apply for the position, one must have four recommendations from senior advocates, at least 15 years standing as an advocate, reference to at least ten reported judgments in cases in which the applicant has appeared as arguing counsel and contributed to the making of law, among other things. The proposals from advocates are vetted by the Registrar General and then decided upon by the Full Court. The acceptance of the Full Court shall be accorded only if not less then two-thirds of the judges present in the meeting vote in favour of the applications from the advocates.

‘Election, not selection’

A senior lawyer who was turned away after applying for the position in 2011 says, on condition of anonymity, that the voting is done in a secret ballot and is an election, rather than a selection. And the results and number of votes each candidate gets is not made public. While a list had been put up on the high court website, the rejected candidates had not been informed. They cannot apply for two years now. The applicant must know how many votes he or she has got. The whole process, the senior lawyer says, lacks transparency and is vitiated by this secrecy.

A senior woman lawyer, who does not wish to be named, too says the process lacks transparency and that there has to be some objective criteria. If deserving people do not get elevated, then the whole systems suffers, she feels. As a woman lawyer, she herself has not experienced discrimination like many others. However, she concedes that there is a low opinion in general about women lawyers, who lack ambition, albeit that was changing now. She adds that family connections matter in the appointments to the senior counsel.

The appointment of senior counsels is one area where women find no place. Male lawyers never let you feel like an insider; women remain outsiders, according to a young lawyer. Another senior lawyer said there were fewer women lawyers out there but that they were bright. However, many drop out due to various reasons and the judiciary has its own caste system and hierarchy, which was perpetuated everywhere. Women have no place in this. “You join a particular chamber so you go ahead in your career. Women can’t even get into these places,” he says. There are few women judges and if they are appointed it’s a quota.

In addition to this, it is difficult for women, sometimes, who have families to look after, and the court offers no flexibility in terms of time and place, according to a yound woman lawyer. Once you take a break it is difficult to re-establish yourself and not many women make it through the first 20 years of their practice. Things could also be changing with more women coming into the profession determined to stick it out.

Meanwhile, when advocate M.P. Vashi filed a PIL petition in the Bombay High Court on the selection of senior advocates under section 16 of the Advocates Act, he was told to file it in the Supreme Court. Mr. Vashi said the rules setting the criteria for senior advocates went against the principles of making legal aid available cheaply. To apply for the position of senior advocate one had to have an annual income of Rs.7.5 lakh. “The idea is to make legal aid cheaper and here the rules are encouraging the lawyers to charge more fees,” he said. He said there was no clear criteria to judge the competence of those who would be selected for the position of senior advocate and the whole practice must be done away with.

Source: http://www.thehindu.com/news/national/article2482763.ece

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by NNLRJ INDIA

Rigid norms for senior advocate status irk lawyers

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

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.

Proper guidelines

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.

http://www.thehindu.com/todays-paper/tp-national/article2461062.ece

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Premier High Court at 150

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T ANDHYURUJINA IN THE HINDU

The Bombay High Court has yielded illustrious judges and lawyers who contributed not only to its own standing but also to the prestige of the Supreme Court of India.

One hundred and fifty years ago, in 1861, the Bombay High Court was established under the Indian High Courts Act, 1861, of the British Parliament. It abolished the old Supreme Court and the East India Company Courts and merged them in a new High Court. For these 150 years, the Bombay High Court has been India’s premier High Court. It has yielded illustrious judges and lawyers who not only contributed to its own great standing but after Independence also contributed to the prestige of the Supreme Court of India.

The High Court’s contribution to the law, jurisprudence and administration of justice has been immense. It was, therefore, with pride and satisfaction that on August 14, 2011, a number of distinguished judges and lawyers of the Supreme Court and the High Court, and Ministers of the State and Central governments, assembled in the famous Central Hall of the Bombay High Court to commemorate the 150th year of the High Court.

History

The Bombay High Court began functioning on August 14, 1862, with no pomp or ceremony, in the modest building of the old Supreme Court house. All that occurred on that historic occasion was an unpretentious declaration made by the English judges: “The judges appointed by the Charter of the High Court would seat as judges of the High Court from 11 a.m. till 2 p.m.” Thus began the historic life of this High Court. It was presided over by its first Chief Justice, Sir Mathew Sausse. He believed in such total detachment from the government and the public, and isolated himself to do justice, that he was known as “Sausse the Silent.”

A succession of 12 distinguished English Chief Justices followed him. The last British Chief Justice, Sir Leonard Stone, retired at midnight on August 14, 1947, after unfurling and saluting the Indian national flag in the High Court, with a gracious speech. He was succeeded by M.C. Chagla, the first Indian Chief Justice. He occupied that office with great distinction for 11 years. On the request of Jawaharlal Nehru he resigned, to become India’s Ambassador to the United States.

The construction of the vast and magnificent Gothic-style building of the Bombay High Court, situated opposite the Oval playground, was started in 1873 and completed in 1879. The foundation tablet records that it was built at an incredibly low cost of Rs.16,44,528, which was below its estimated cost. The first sitting here was held on January 10, 1879. Its court rooms and corridors are spacious. It also has comical figures of monkey judges and fox advocates, wearing lawyer’s bands with one eye blind-folded, peeping from the top of pillars. This was said to be the mischievous work of a disgruntled sub-contractor, a Parsi, who avenged himself on law and justice by libelling the lawyers and judges of the High Court. But the true symbol of justice is the stone statue of the Goddess of Justice on a tall tower of the building. She has both eyes blind-folded, to signify that justice is blind, with a sword in one hand and scales of justice meticulously balanced in the other.

Many famous trials and cases have been conducted in this historic court. Lokmanya Tilak was tried thrice for seditious writing in the Central Hall. On the second of his trials in 1909, when the jury returned a verdict of guilty and he was sentenced for six years in jail, he said the famous words that are today inscribed at the entrance to the Central Court: “All that I wish to say is that, in spite of the verdict of the jury, I still maintain that I am innocent. There are higher powers that rule the destinies of men and nations; and I think, it may be the will of Providence that the cause I represent may be benefited more by my suffering than by my pen and tongue.”

There were some outstanding Indian judges of the Bombay High Court before Independence, such as Badruddin Tyabji, Mahadev Govind Ranade, Kashinath Trimbak Telang and Narayan Ganesh Chandavarkar. They were not only erudite lawyers but also academicians and political thinkers known for their broad and liberal outlook. One instance to show this was the moving tribute paid by Badruddin Tyabji to his brother-judge Ranade on his death. He quoted the lines of Urfi, the court-poet of Emperor Jehangir: “Live thy life in such a manner that, on thy death, the Mussalman may wash thy body with the sacred waters of Zamzamat at Mecca and the Hindu may burn it on the holy ghats at Kashi.”

Making a mark

Amongst the lawyers who made their mark in the High Court were Sir Phirozshah Mehta, who was also a public figure, Bhulabhai Desai, K.M. Munshi, M.R. Jayakar, who later became a judge of the Federal Court and the Privy Council, and Sir Dinshaw Mulla, a writer of law books which are used even today. M.A. Jinnah, the founder of Pakistan, was a fighting advocate in the Bombay High Court known for his blunt advocacy. Dr. B.R. Ambedkar, a lawyer with a good knowledge of Constitutional Law, was later the Chairman of the Drafting Committee of the Constitution of India. Sir Jamshedji Kanga was the doyen of the Bar for many years. From his chambers were groomed distinguished lawyers such as H.M. Seervai, the leading constitutional expert, and Nani Palkhiwala, the country’s most versatile and eloquent advocate.

The Supreme Court’s first Chief Justice of India in 1950 was Sir Hiralal Kania from the Bombay High Court. Since then, a succession of distinguished Chief Justices of the Supreme Court have come from the Bombay High Court — including the present Chief Justice of India, S.H. Kapadia. The first law officers of the Government of India hailed from the Bombay High Court. Sir N.P. Engineer was the first Advocate-General of India; M.C. Setalvad was the first Attorney-General of India, and C.K. Daphtary, the first Solicitor-General of India. Even later, distinguished lawyers from the Bombay High Court have been the law officers of the Union government in the Supreme Court. No single High Court has had such an eminent array of persons from the Bar and the Bench as the Bombay High Court has had.

The Bombay High Court has passed through many vicissitudes in its 150 years. So long as those who work in and for it are conscious of its high traditions and connections, it will retain its stature — for in the words of the Bible, it was founded on Rock.

(The writer, a senior advocate of the Supreme Court, is a former Solicitor-General of India and Advocate-General of Maharashtra.)

http://www.thehindu.com/opinion/op-ed/article2393377.ece

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Evidence of relatives can’t be discarded: Supreme Court

J VENKATESAN  IN THE HINDU

Trial courts cannot discard the evidence of witnesses just because they happen to be relatives of murdered persons, the Supreme Court has ruled.

A vacation Bench of Justices P. Sathasivam and A.K. Patnaik said: “There is no bar on accepting the evidence of related witnesses. Merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found consistent and true, the fact of their being relatives cannot by itself discredit their evidence.”

Writing the judgment, Justice Sathasivam said: “The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence — not as a rule of law — that the evidence of such witnesses be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of the interested witness has a ring of truth, such evidence could be relied upon even without corroboration. If after a careful analysis and scrutiny of their evidence, the version given by them appears clear, cogent and credible, there is no reason to discard the same.”

The Bench, after analysing a series of earlier judgments, said: “When the eyewitnesses are stated to be interested in and inimically disposed to the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically, and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed to the accused. Relationship cannot be a factor to affect the credibility of an eyewitness.”

In the instant case, Waman and 10 others were awarded life imprisonment by a trial court in Maharashtra in a case of murder of two persons. The Nagpur Bench of the Bombay High Court confirmed their conviction and sentence. Four of the 11 accused challenged the High Court’s order, chiefly on the ground that the crucial evidence given by women members of the family of the complainant, being close relatives, could not be relied upon for their conviction.

Appeal dismissed

Rejecting the appellants’ contention and dismissing the appeal, the Bench said: “It is important to note that the evidence of all the witnesses is corroborated by medical evidence. It is true that there is some variance in the testimony…describing [a] particular weapon held by the persons and [the] injuries on the body of the deceased. However, as rightly analysed by the trial court and accepted by the High Court, the testimony of these witnesses is convincing and trustworthy…, and there is no reason to disbelieve their statements.”

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Hindu marriages: HC ruling upsets settled law

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ANIL MALHOTRA IN THE TRIBUNE

THE recent judgement of the Bombay High Court setting aside the parallel proceedings for divorce of the Family Court, Pune, and upholding a divorce decree passed by the Court of Oakland, State of Michigan, USA, dissolving a Hindu marriage on the principle of breakdown, has evoked a new stream of thought with which this writer differs. The verdict, Kashmira Kale vs. Kishore Kumar Mohan Kale, 2011 (1) Hindu Law Reporter (HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under the Hindu Marriage Act between the same parties upsets the settled law.

The parties married in Mumbai in 2005 according to Hindu rites lived in the US and intermittently visited Mumbai and Pune. In September 2008, the wife filed divorce proceedings in the US whose jurisdiction was challenged by the husband in the US. Simultaneously, in October 2008, the husband filed a divorce petition in the Pune Family Court, claiming it to be the competent forum for adjudication of their dispute. The husband did not pursue the wife’s divorce petition in the US any further and in January 2009, the US court dissolved the marriage and divided the assets of the parties.

However, the Pune Family Court in September 2009 held that it still had the jurisdiction to try the husband’s petition for divorce in India. In appeal, the Bombay High Court set aside the Family Court order and upheld the US divorce decree dissolving the Hindu marriage.

The conclusions drawn by the Bombay High Court that the parties were domiciled in the US and hence the Hindu Marriage Act (HMA) cannot apply to them is per se erroneous. The HMA’s non-application to Hindus was misconstrued and the application of the breakdown principle without considering the written statement of the husband challenging the US court’s jurisdiction were factors which did not lend a imprimatur to the foreign decree which did not take into consideration the HMA’s provisions under which the parties were married.

Noticing that Section 1 (2) of the HMA applies only to Hindus in the territories to which it applies but not considering that it also “applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories” left the contention only half noticed. In addition, Section 2 of the HMA prescribing application of the Act to Hindus, irrespective of domicile, nationality or citizenship, renders the judgement fallacious. Earlier precedents on the point enunciated by different High Courts stipulate that the HMA applies to all Hindus irrespective of domicile or residence if they have married in India according to Hindu rites. Thus, it has been held that the HMA has extra-territorial application as a Hindu carries with him his personal law of marriage and courts in India have jurisdiction to try their matrimonial disputes regardless of change of nationality or new domicile.

The Bombay High Court in Sondur Rajini Vs. Sondur Gopal, 2006(2) HLR 475, had held that the HMA provisions do not cease to apply on change of domicile which is determined when the parties tie the nuptial knot under the HMA and not on the date when an application is made for matrimonial reliefs. In Naveen Chander Advani Vs. Leena Advani 2005 (2) HLR 582, the Bombay High Court held that the Pune Family Court wrongly declined to entertain a matrimonial petition relating to a marriage where parties who last resided and married in the US according to Hindu rites and ceremonies as the Family Court has jurisdiction to deal with matters under the HMA.

Equally flawed is the Bombay High Court’s view that since the parties last resided together in Michigan, the US court has territorial jurisdiction to decide their divorce dispute. This conclusion falls foul of the settled law laid down by the Supreme Court in Jagir Kaur vs. Jaswant Singh, AIR 1963 SC 1521 that prescribing the limits of jurisdiction, speaking of last residence of a person with his wife, can only mean his last residence in India. It does not imply his residing with her in a foreign country for an Act cannot confer jurisdiction on a foreign court.

The Bombay High Court in Meera vs. Anil Kumar 1992 (2) HLR 284 held that “last resided” in Section 19 of HMA implies last residence in India and the High Court in India within whose jurisdiction the parties last resided together can take cognisance of the matter.

Flowing from the same stream of thought, the Punjab and Haryana High Court has held that any temporary residence would confer jurisdiction to try the matrimonial dispute. This settled view militates against the erred conclusion of the Bombay High Court that temporary stay at Pune or Mumbai could not mean last residence in India as parties last resided together in the US.

Above all, the Bombay High Court’s view disagrees with the Supreme Court’s celebrated view in Y. Narasimha Rao vs. Y. Venkata Lakshmi, 1991 (3) SCC 451 that the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

Three exceptions were culled out to this rule by the Supreme Court. First, permanent foreign residence and invoking of relief on a ground available in matrimonial law under which parties were married. Secondly, voluntary submission to foreign jurisdiction coupled with contest on merits abroad on grounds available under matrimonial law under which parties were married. And thirdly, parties unconditionally consent to grant of relief although the jurisdiction of foreign court is not in accordance with the provisions of matrimonial law of parties.

The Apex Court in Neerja Saraph vs. Jayant Saraph 1994 (6) SCC 641, thereafter had suggested feasibility of a legislation to hold that “no marriage between an NRI and an India woman which has taken place in India may be annulled by a foreign court”. Not noticing the Supreme Court’s above precedent, the recent view of the Bombay High Court per se appears to be disagreeable if not per incuriam.

With due deference, the Bombay High Court order does not agree with the precedent, adapt to Hindu law of marriage of the parties or is it conclusive. Parties may be treated as divorced in the US and still married in India. The line of action adopted in a number of matrimonial disputes in the Punjab and Haryana High Court is most useful to quote. Limping marriages are taken before the Mediation and Conciliation Centre at the High Court premises where the hatchet is peacefully buried and matters are amicably compromised to convert the matrimonial feuds to divorce petitions by mutual consent. Matters thereafter rest without contest on written settlements. Warring claims are put to sleep harmoniously.

This is the better path than allowing foreign courts to decide on Hindu marriage disputes without conflict of laws. Indian courts are better suited to decide them without foreign interference. Domestic law must prevail.

Author of “India, NRIs and the Law”, and co-author of “Acting for Non-resident Indian Clients,” the writer is Supreme Court Advocate and Member, UT NRI Cell, Chandigarh.

by NNLRJ INDIA

HOW THE MAHARASHTRA CHIEF MINISTER VILAS RAO DESHMUKH PROTECTED MONEY LENDERS WHO ARE RESPONSIBLE FOR FARMER SUICIDE

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JUDGEMENT OF THE SUPREME COURT SHOWS HOW CHIEF MINISTERS SUBVERT THE SYSTEM AND INTERFERE IN THE FUNCTIONING OF THE POLICE

(Arising out of SLP (Crl.) No.2614 of 2009)

State of Maharashtra & Ors. ..Appellant(s) Versus Sarangdharsingh Shivdassingh Chavan & Anr…Respondent(s)

J U D G M E N T GANGULY, J.

  1. Leave granted.
  2. The facts of each case, which come up to this Court and especially those which are heard at length as appeals, have a message to convey. The message conveyed in this case is extremely shocking and it shocks the conscience of this Court about the manner in which the Constitutional functionaries behaved in the State of Maharashtra.
  3. A writ petition was filed before Bombay High Court by Sarangdharsingh Shivdassingh Chavan – the first respondent in this appeal. He described himself as an agriculturist by profession. The allegation in the writ petition is of illegal money lending against the second respondent to the extent of charging 10% interest per month on the money lent.
  4. In view of such exorbitant interest being charged and the illegalities which are alleged be committed in the recovery of such loan, certain complaints were filed against the second respondent and in the writ petition it is stated that as many as 34 complaints were registered against the second respondent till 28.6.2006.
  5. It was also averred in the writ petition that nearly 300 farmers have committed suicide in Vidarbha region of Maharashtra as victims of such illegal money lending business and the torture perpetrated in the recovery of such money. A complaint has been made that the farmers do not get the benefit of various packages announced by the Government and the State machinery is ruthless against the farmers. The cause of action for filing the writ petition is the order of Collector in the District of Buldhana (hereinafter “Collector”) directing not to register any crime against Mr. Gokulchand Sananda, the second respondent herein, without obtaining clearance from the District Anti Money Lending Committee and also without obtaining legal opinion of the District Government Pleader. It appears that the said order was passed by the Collector in view of the instructions given to him by the then Chief Minister of Maharashtra. It has been alleged in the petition that there are several complaints and the number of such complaintsis about 50 against Sananda and his family members who are carrying on money lending business and the cases cannot be registered against them in view of the instructions given by the then Chief Minister.In order to understand the seriousness of the situation, it will be appropriate in the fitness of things, to set out the order dated 5.6.2006 of the Collector, Buldhana to the District Superintendent of Police, Buldhana:

“To  District Superintendent of Police Buldhana

Sub: Regarding complaints against illegal money lending against MLA Dilipkumar Sananda and his family members.

Ref: instructions given by Hon’ble Chief Minister in meeting dated 1.6.2006.

On the above mentioned subject, detailed discussion took place at the residence of Hon’ble Chief Minister on 1.6.2006. In the said meeting, MLA Dilipkumar Sananda complained that deliberately by raising false allegations, against his family members, complaints regarding illegal money lending are being filed and without scrutinizing truthfulness of the said complaints, offences are being registered. In respect of said grievance, Hon’ble Chief Minister has taken serious note and given order that ‘if any such complaint is received then before registration of offence against MLA Dilipkumar Sananda and his family members, said matter/complaint be placed for decision before District Anti-Money Lending Committee and said Committee should obtain legal opinion of District Government Pleader and then only take decision on the same and take appropriate legal action accordingly’.

You are informed that as per the instructions of Hon’ble Chief Minister, matters against Sananda family be handled as per the provisions of Money Lending Prevention Act.”

It may be noticed that prior to the aforesaid discussion which the Collector had at the residence of the Chief Minister on 1.6.2006 in which meeting Mr. Dilipkumar Sananda, local MLA was present, something happened in the Police Station, Khamgaon City, District Buldhana on 31.5.2006. The said station diary shows that Mr. Padwal, P.S. to the Chief Minister telephoned twice to enquire about “the information regarding the offence” registered against Sananda and the Section under which the case has been registered. The second phone call as recorded in Station Diary shows that Mr. Padwal directed that no action should be taken as instructed by the Chief Minster and no offence should be registered. The text of the station diary dated 31.5.2006 is set out:

13.15 hrs. Phone from PS to Hon. CM At this time, Mr. Padwal, PS to Hon’ble Chief Minister, MS dialed and enquired about the information regarding  offence registered against Sananda; we informed that offence is registered at 12.15 hrs.

13.25 hrs. Phone from PS to Hon. CM At this time, Mr. Padwal  enquired about facts of the offence registered, sections applied; then we informed them about sections applied to the said registered offence, then he told that henceforth no action be taken as instructed by Hon’ble CM and further said that again no other offences be regist ered.

Police Inspector
Khamgaon City Police Station

On the writ petition being filed challenging the aforesaid two communications, namely, the communication made by the P.S. to the Chief Minister vide the Station diary entry which is set out above and the order of Collector on the direction of the Chief Minister, the High Court in the impugned judgment allowed the writ petition. The High Court, inter alia, held that the directions of the Chief Minister in the telephonic message was proved by the communication of the Collector dated 5.6.2006 and the High Court held that such telephonic communication was made at the behest of Gokulchand Sananda, the second respondent herein. The High Court after examining the provisions of the Bombay Money Lenders Act and also the materials on record held that the letter dated 5.6.2006 and the telephonic message recorded in the Station diary entry exhibit gross abuse of power by the concerned authority and struck down both the communications.

9. The High Court, however, recorded that on the complaint filed by the writ petitioner – the first respondent herein, a chargesheet was filed for offences under Sections 341, 342, 363, 392, 504 read with Section 34 of Indian Penal Code and Section 32B of the Bombay Money Lenders Act, 1946. The criminal case is pending. The High Court also observed that they are not aware how many instances of illegal money lending do exist.  The High Court expressed a hope that power of the Executive will not be abused in the manner in which it has been done in this case. The High Court, quashed the Collector’s order and allowed the writ petition awarding costs of Rs.25,000/- to be paid by the State Government.

10. However, the State of Maharashtra did not accept the judgment of the High Court and challenged the same before this Court by filing a special leave petition out of which the present appeal arises.

11. From the affidavit which was filed by the Collector before the High Court, it appears that the Collector has admitted that in Vidarbha region in Buldhana District the farmers committed suicide for  various reasons and especially for the loan burden coupled with the fact that there was irregular rain fall.

12. The Collector admitted in paragraph (3) of the affidavit that on the complaint of Sananda before the Chief Minister about cases being registered

against him and his family members without investigation, the Chief Minister called the Collector at Mumbai and gave the instructions quoted above and thereupon the Collector conveyed the message of the Chief Minister to the Superintendent of Police, Buldhana. However, the Collector took a stand that by doing so he has not committed any illegality.

13. In the affidavit of the Superintendent of Police, Buldhana before the High Court, he admits that there are five cases already registered against the family members of Sananda under the Bombay Money Lenders Act and he has given details of those cases in his affidavit. He also submitted that on 31.5.2006 an offence came to be registered at police station, Khamgaon (T) on the complaint made by Shri Rajesh Shankar Kawadkar under Sections 341, 366, 392 read with Section 34 IPC and under Section 32(b) and 33 of the Bombay Money Lenders Act. He also admits to have received instructions from the Collector by the Collector’s order dated 5.6.2006 about the Collector’s meeting with the then Chief Minister of the Maharashtra and also about the manner in which the police has to deal with the complaints against Dilip Kumar Sananda and his family members. He further averred in his affidavit that by letter dated 9.6.2006 the Superintendent of Police conveyed that as per Section 154 of Criminal Procedure Code cognizable complaints are to be registered without undue delay. However, on receipt of the said letter the Collector sent his letter dated 14.6.2006 stating therein that under Section 36 of the Cr.P.C. the State Government can direct a senior police officer to take cognizance of the offence also.

14. In the course of hearing of this case, this Court by an order dated 11th February 2010 directed the learned counsel for the appellant to file an affidavit on the following points:

“1. The number of cases involving complaints against respondent No.2 and/or his family members.

2. The number of cases in which FIR have been registered against respondent No.2 and/or his family members.

3. The number of cases in which instructions like the one contained in letter dated 05.06.2006 of District Collector, Buldhana were or have been given by Hon’ble the Chief Minister or any other functionary or authority of the State Government.”

15. Pursuant thereto an additional affidavit was filed by one Ambadas, Assistant Police Inspector, posted to P.S. Khamgaon Gramin, District Buldhana, Maharashtra to the effect that 34 complaints were received in different police stations in Buldhana District against the members of Sananda family. In the affidavit it was also stated that in seven complaints chargesheets have been filed and the same are pending before different Courts below. In respect of other complaints the complainants have either settled their disputes or have withdrawn their complaints. It was also stated that not a single person including any member of the complainant’s family has committed suicide in view of dispute over money lending by Sananda family. This averment was, however, not necessary in terms of the order dated 11.2.10.

16. The learned counsel appearing for the first respondent raised a contention that the so called District Anti-money Lending Committee is not statutory. This Court has looked into the resolution dated 19th October 2005 which purports to constitute the said committee and this Court finds that the said committee has not been constituted in exercise of any statutory power and the said committee consists of the following persons:

“1. District Collector of the concerned District – President

2. District Superintendent of Police – Member

3. District Registrar, Cooperative Society – Member Secretary.”

17. This Court, therefore, finds that the contention of the learned counsel for the first respondent is correct and so far as the said committee is concerned it is not a statutory body.

18. Since, the learned counsel for the first respondent was arguing on the propriety of directions given by the then Chief Minister of Maharashtra and also on the propriety of Chief Minister’s Personal Secretary making telephone calls to the police station and giving instructions as to how complaints should be registered against the family of the second respondent, this Court thought that the then Chief Minister of Maharashtra, who was initially not a party to this proceeding, should be impleaded and be given a chance to make his representation before the Court. Therefore, this Court by an order dated 31st March 2010, gave notice to the then Chief Minister of State of Maharashtra, presently Union Minister, Department of Heavy Industries, Government of India and directed service of the entire paper book of Special Leave Petition on him in order to enable him to file an affidavit in the context of the letter dated 5th June 2006 sent by the Collector to the District Superintendent of the Police, Buldhana.

19. Pursuant to the said notice an affidavit was filed by Shri Vilasrao Deshmukh, the then Chief Minister of Maharashtra. In paragraph 5 of the said affidavit the content of the letter of the Collector dated 5.6.06 was not denied. Nor was it denied that on 31.5.06, his Private Secretary made two telephone calls to the concerned Police Station enquiring about cases registered against Sananda. However, in the said affidavit Mr. Deshmukh stated that he never interfered with any pending investigation against the family of Sananda and he further stated that investigation was conducted and the chargesheet was filed.

20. Considering the entire matter in its proper perspective, this Court is of the view that the way interference was caused first from the office of the Chief Minister by his Private Secretary by two telephone calls on 31.5.2006 and the manner in which District Collector was summoned by the Chief Minister on the very next day i.e. 1.6.2006 for giving instructions to specially treat any complaints filed against M.L.A. Mr. Dilip Kumar  Sananda and his family has no precedent either in law or in public administration.

21. The legal position is well settled that on information being lodged with the police and if the said information discloses the commission of a cognizable offence, the police shall record the same in accordance with the provisions contained under Section 154 of the Criminal Procedure Code. Police Officer’s power to investigate in case of a cognizable offence without order of the Magistrate is statutorily recognised under Section 156 of Code. Thus the police officer in charge of a police station, on the basis of information received or otherwise, can start investigation if he has reasons to suspect the commission of any cognizable offence.

22. This is subject to the provisos (a) and (b) to Section 157 of the Code which leaves discretion with the police officer-in-charge of police station to consider if the information is not of a serious nature, he may depute a subordinate officer to investigate and if it appears to the officer-in- charge that there does not exist sufficient ground, he shall not investigate.

23. This legal framework is a very vital component of the Rule of Law in order to ensure prompt investigation in cognizable cases and to maintain law and order.

24. Law does not accord any special treatment to any person in respect of any complaint having been filed against him when it discloses the commission of any cognizable offence. In the context of this clear legal position which, as noted above, is a vital component of a Rule of Law, the direction of the then Chief Minister to give a special treatment to Shri Dilip Kumar Sananda, M.L.A and his family about registering of complaint filed against them is totally unwarranted in law. Mr. Vilasrao Deshmukh as the Chief Minister of State of Maharashtra is expected to know that the farmers of the State specially those in the Vidarbha region are going through a great deal of suffering and hardship in the hands of money lenders.

25. It is not in dispute that members of the family of Shri Dilip Kumar Sananda, a Member of Legislative Assembly, are engaged in money lending business and various complaints have been lodged against the members of such family.

26. From the affidavit filed by Shri Ambadas it is clear that 34 cases were filed against that family in respect of allegation of money lending.

27. From the communication of the Collector containing the instructions of the then Chief Minister, Mr. Vilasrao Deshmukh, it is clear that the Chief Minister was aware of various complaints being filed against the said family. Even then he passed an order for a special treatment in favour of the said family which is unknown to law. This was obviously done to protect the Sananda family from the normal legal process and a special procedure was directed to be adopted in respect of criminal complaint filed against them. In other words, the Chief Minister wanted to give the members of the said family a special protection which is not available to other similarly placed persons. It is clear from the Collector’s order dated 5.6.2006 where the Chief Minister’s instructions were quoted that the Chief Minister was acting solely on political consideration to screen the family of M.L.A from the normal process of law.

28. As Judges of this Court, it is our paramount duty to maintain the Rule of Law and the Constitutional norms of equal protection.

29. We cannot shut our eyes to the stark realities. From the National Crime Records Bureau (NCRB), it is clear that close to two lakh farmers committed suicide in India between 1997 and 2008. This is the largest sustained wave of suicides ever recorded in human history. Two thirds of the two lakh suicides took place in five states and those five states are Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh and Chhattisgarh. Even though Maharashtra is one of the richest state in the country and in its capital Mumbai twenty five thousand of India’s one lakh dollar millionaires reside, the Vidarbha region of Maharashtra, in which is situated Buldhana, is today the worst place in the whole country for  farmers. Professor K. Nagraj of the Madras Institute of Development Studies who carried on a research in this area has categorized that Maharashtra could be called the graveyard of farmers.

30. The position is so pathetic in Vidarbha region that families are holding funerals and weddings at the same time and some time on the same day. In a moving show of solidarity poor villagers are accumulating their money and labour to conduct marriages and funerals of their poor neighbours. (See the report in Hindu dated 22nd May 2006).

31. This being the ground reality, as the Chief Minister of the State and as holding a position of great responsibility as a high constitutional functionary, Mr. Vilasrao Deshmukh certainly acted beyond all legal norms by giving the impugned directions to the Collector to protect members of a particular family who are dealing in money lending business from the normal process of law. This amounts to bestowing special favour to some chosen few at the cost of the vast number of poor people who as farmers have taken loans and who have come to the authorities of law and order to register their complaints against torture and atrocities by the money lenders. The instructions of the Chief Minister will certainly impede their access to legal redress and bring about a failure of the due process.

32. The aforesaid action of the Chief Minister is completely contrary to and inconsistent with the constitutional promise of equality and also the preambular resolve of social and economic justice. As a Chief Minister of the State Mr. Deshmukh has taken a solemn of oath of allegiance to the Constitution but the directions which he gave are wholly unconstitutional and seek to subvert the constitutional norms of equality and social justice.

33. The argument that some of the cases in which  complaints were filed against the family of Sananda, were investigated and chargesheets were filed, is a poor consolation and does not justify the issuing of the wholly unauthorised and unconstitutional instructions to the Collector. It is not known to us in how many cases investigation has been totally scuttled in view of the impugned directions. Records disclosed in this case show that out of 74 cases  only in seven cases chargesheets were filed and the rest of the cases were either compromised or withdrawn. How can poor farmers sustain their complaint in the face of such directions and how can the subordinate police officers carry on investigation ignoring such instructions of the Chief Minister? Therefore, the instructions of the Chief Minister have completely subverted the Rule of Law.

34. Dr. Singhvi, learned senior counsel appearing for Mr. Vilasrao Deshmukh relied on a decision of this Court in the case of Lalita Kumari v. Government of Uttar Pradesh & Ors. reported in 2008 (14) SCC 337. 35. In Lalita Kumari (supra), a Bench of this Court did not lay down any law. The Bench merely noted that there is a divergence of views between different Benches of this court on the issue whether upon receipt of information disclosing a cognizable offence, it is imperative for the police officer to register a case or discretion still lies with him to make some kind of a preliminary enquiry before registering the same. The Bench having noted the divergence of views on the aforesaid question referred the matter to a larger Bench.

36. We fail to appreciate the relevance of the aforesaid decision to the disputes involved in the present case.

37. In Lalita Kumari (supra), there was no instruction by any Chief Minister or any executive authority to give a special treatment to any group of persons in the matter of registration of criminal cases against them. Therefore, the opinion in Lalita Kumari (supra) does not in any way justify the instruction given by Mr. Vilasrao Deshmukh.

38. This Court is extremely anguished to see that such an instruction could come from the Chief Minister of a State which is governed under a Constitution which resolves to constitute India into a socialist, secular, democratic republic. Chief Minister’s instructions are so incongruous and anachronistic, being in defiance of all logic and reason, that our conscience is deeply disturbed. We condemn the same in no uncertain terms.

39. We affirm the order of the High Court and direct that the instruction of the Chief Minister to the Collector dated 5.6.06 has no warrant in law and is

unconstitutional and is quashed. We dismiss this appeal with costs of Rs.10,00,000/- (Rupees Ten Lakhs) to be paid by the appellant in favour of the Maharashtra State Legal Services Authority. This fund shall be earmarked by the Authority to help the cases of poor farmers. Such costs should be paid within a period of six weeks from date.

…………………J.

(G.S. SINGHVI)

…………………J.

(ASOK KUMAR GANGULY)

New Delhi

December 14, 2010

by NNLRJ INDIA

Professional Ethics for Lawyers- SC

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A Bench of Justices Markandeya Katju and Gyan Sudha Mishra in an order deplored the growing tendency among bar associations across the country to pass resolutions against appearing for certain accused persons for some reason or the other.

“Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics.

The bench passed the order while quashing the counter criminal cases filed by policemen and lawyers of Coimbatore during an agitation in 2007.

In this case the Madras High Court had on the basis of the recommendations made by Justice(retd) K P Sivasubramaniam, Commission of Inquiry, ordered a compensation of Rs 50,000 to advocate A S Mohammed Rafi who was allegedly assaulted by policemen during a clash with them.

At that time both the lawyers and women police constables involved in the fracas lodged counter criminal cases. The Bar Association of Coimbatore had also passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them.

Rafi who was not satisfied with the quantum of compensation moved the apex court for a higher compensation.The apex court while enhancing the compensation to Rs 1.50 lakh as advised by amicus curiae and senior counsel Altaf Ahmed, however, minced no words in expressing displeasure at the manner in which the bar associations have been frequently passing resolutions asking advocates not to appear for certain persons.

We would like to comment upon a matter of great legal and constitutional importance which has caused us  deep distress in this case. It appears that the Bar Association of Coimbatore passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them in this case.

Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they will not defend a particular person or persons in a particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.

 

In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.

We may give some historical examples in this connection.

When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today : “From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel”

Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A.trials in the Red Fort at Delhi (November 1945 – May 1946).

However, disturbing news is coming now from several parts of the country where bar associations are refusing to defend certain accused persons.

The Sixth Amendment to the US Constitution states “In all criminal prosecutions the accused shall enjoy the right …….to have the assistance of counsel for his defence”.

In Powell vs. Alabama 287 US 45 1932 the facts were that nine illiterate young black men, aged 13 to 21, were charged with the rape of two white girls on a freight train passing through Tennessee and Alabama. Their trial was held in Scottsboro, Alabama, where community hostility to blacks was intense. The trial judge appointed all members of the local bar to serve as defense counsel. When the trial began, no attorney from the local bar appeared to represent the defendants. The judge, on the morning of the trial, appointed a local lawyer who undertook the task with reluctance. The defendants were convicted. They challenged their convictions, arguing that they were effectively denied aid of counsel because they did not have the opportunity to consult with their lawyer and prepare a defense. The U.S. Supreme Court agreed. Writing for the court, Mr. Justice George Sutherland explained :

“It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a8 fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid…..”

In the same decision Justice Sutherland observed:

“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”.

In this connection we may also refer to the legendry American lawyer Clarence Darrow (1857-1930) who was strongly of the view that every accused, no matter how wicked, loathsome, vile or repulsive he may be regarded by society has the right to be defended in court. Most lawyers in America refused to accept the briefs of such apparently wicked and loathsome persons, e.g. brutal killers, terrorists, etc. But Clarence Darrow would accept their briefs and defend them, because hewas firmly of the view that every persons has the right to be defended in court, and correspondingly it was the duty of the lawyer to defend. His defences in various trials of such vicious, repulsive and loathsome persons became historical, and made him known in America as the ‘Attorney for the Damned’, (because he took up the cases of persons who were regarded so vile, depraved and despicable by society that they had already been condemned by public opinion) and he became a legend in America (see his biography ‘Attorney for the Damned’).

In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of the US Supreme Court in his dissenting judgment praised Darrow and said :

“Men like Lord Erskine, James Otis, Clarence Darrow, and a multitude of others have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.”

At the Nuremberg trials, the Nazi war criminals responsible for killing millions of people were yet defended by lawyers.

We may also refer to the fictional American lawyer Atticus Finch in Harper Lee’s famous novel ‘To Kill a Mocking Bird’. In this novel Atticus Finch courageously defended a black man who was falsely charged in the State of Alabama for raping a white woman, which was a capital offence in that State. Despite the threats of violence to him and his family by the racist white population in town, and despite social ostracism by the predominant while community, Atticus Finch bravely defended that black man (though he was ultimately convicted and hanged because the jury was racist and biased), since he believed that everyone has a right to be defended. This novel inspired many young Americans to take up law as a profession in America.

The following words of Atticus Finch will ring throughout in history :

“Courage is not a man with a gun in his hand. It is knowing you are licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.”

 

In our own country, Article 22(1) of the Constitution states :

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”.

Chapter II of the Rules framed by the Bar Council of India states about ‘Standards of Professional Conduct and Etiquette’, as follows

“An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent  with his standing at the Bar and the nature of the case.Special circumstances may justify his refusal to accept a particular brief”.

Professional ethics requires that a lawyer cannot refuse a rief,provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in1 passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. Is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

The Registry of this Court will circulate copies of this judgment/order to all High Court Bar Associations and State Bar Councils in India. The High Court Bar Associations are requested to circulate the judgment/order to all the District Court Bar Associations in their States/Union territories.

…………………………….J. (Markandey Katju)

……………………………J.(Gyan Sudha Misra)

New Delhi; 6th December, 2010

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by NNLRJ INDIA

“Anticipatory bail can’t be restricted to small duration”

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J. Venkatesan in THE HINDU

Nearly 60% of arrests either unnecessary or unjustified

Strike a balance while considering anticipatory bail prayers

New Delhi: Observing that great ignominy attaches to the arrest of a person, the Supreme Court has held that it will not be proper for the trial court or the High Court to grant anticipatory bail for a limited duration and thereafter ask the accused to surrender and seek regular bail.

“Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage and the post-conviction stage. Life bereft of liberty would be without honour and dignity, and it would lose all significance and meaning, and life itself would not be worth living,” said a Bench of Justices Dalveer Bhandari and K.S. Radhakrishnan, allowing an appeal against an order declining anticipatory bail to a man.

Writing the judgment, Justice Bhandari said: “Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual’s life at risk must call for the most anxious scrutiny.” He quoted a Constitution Bench judgment in Sibbia’s case, according to which there should not be any limitation on grant of anticipatory bail.

“However [subsequently], some Benches of smaller strength have erroneously observed that Section 438 Cr.PC should be invoked only in exceptional or rare cases, that means the life of Section 438 Cr.PC would come to an end after that limited duration. This is not the correct view as no such limitation has been envisaged by the legislature,” Justice Bhandari said.

Arbitrary use of power

The Bench pointed out that the Law Commission, in its report, had severely criticised the police for arbitrary use of the power of arrest which, the Commission said, “is the result of the vast discretionary powers conferred upon them. The Commission expressed concern that there is no internal mechanism within the Police department to prevent misuse of law in this manner.”

The Bench said that by and large, nearly 60 per cent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 per cent of the jail expenditure. Arrest should be the last option and restricted to exceptional cases where it was imperative in the facts and circumstances of a case.

“While considering the prayer for anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to a free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; the court has to consider reasonable apprehension and must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

The Bench said: “Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the cases. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental to their proper existence and no other right can be enjoyed without the presence of the right to life and liberty.”

In the instant case, Siddharam Satlingappa Mhetre was denied anticipatory bail by the Bombay High Court. The Supreme Court allowed his appeal and directed that he be granted anticipatory bail on certain conditions.

http://www.hindu.com/2010/12/06/stories/2010120666421600.htm

by NNLRJ INDIA

Ram Jethmalani – 87 not out

Anil Divan in THE HINDU

Presenting him as I know him, wrinkles and scars.

 

RAM JETHMALANI

RAM JETHMALANI

On September 14, 2010 the redoubtable Ram Jethmalani completed 87 years of an eventful and picturesque journey. Currently president of the Supreme Court Bar Association, past chairman of the Bar Council of India, Parliamentarian, former Minister, a leading member of the Opposition, author and publicist, Ram is a picture of perennial youth, immeasurable vitality and inexhaustible courage.

I thought I would share with readers of The Hindu some of the high points in his remarkable career, but this article got a little delayed because of the author’s indisposition.

This piece is based on a speech made in April 2007 at the time Prime Minister Manmohan Singh released one of Ram’s books titled Conscience of a Maverick.When I was requested to make the speech in April 2007, I asked the organisers whether there were any do’s and dont’s and the response was that Ram loves the freedom of speech — speak what you like. It is in that spirit — affectionate but not uncritical — that I write these few words. I recall Oliver Cromwell’s famous remarks to his portrait painter, Sir Peter Lely. He said, “Paint me as I am, do not leave the scars and wrinkles.” I will paint Ram as I know him, wrinkles and scars.

Ram and I share warm affection for each other and we have a penchant for fighting cases involving corruption in high places and mis-governance. But we agreeably disagree on methods, norms and ethical dimensions. Ram floats on higher thermals in the Elysian fields where the normal rules of behaviour of mere mortals hardly apply. Ram is fearless and forthright — on occasions, too forthright.

He is irrepressibly audacious with a sense of the dramatic. He has the gift of hitting the headlines but has a warm and golden heart. In politics he has gravitated through the whole spectrum — he believes in what Oliver Goldsmith wrote: “A foolish consistency is the hobgoblin of little minds.”

He wears his heart on his sleeve. He will confront openly and attack directly. He will not stab anyone in the back. But these strengths and virtues are handicaps in Indian politics. As a result, he is a potent force in the Opposition, but uncomfortable on the treasury benches — and many of his colleagues on the treasury benches become even more uncomfortable in his presence.

Charles de Gaulle the great French President and World War-II hero said: “A good politician never believes what he says and he is very distressed when others believe him.”

Ram believes what he says and says it passionately and emphatically.Recently he hit the headlines expressing his views on the Kashmir interlocutors that were radically different from those of the political party which brought him to the Rajya Sabha. But above all Ram is an incomparable and matchless defence lawyer in criminal cases. In the Indira Gandhi assassination case, he won an acquittal for Balbir Singh who had suffered a death sentence. In the case arising from a terrorist attack on Parliament, Ram won an acquittal for S.A.R. Geelani both from the high court and confirmed by the Supreme Court, even though the accused was awarded a death sentence by the trial court.

Ram fought these cases against the tide of popular opinion. It was a battle in the heroic mould. There is nothing more rewarding for a lawyer than saving a client’s life. Ram’s services as a defence lawyer are sought by powerful political leaders, cutting across party lines. That is his strength and forte. Today the practice of criminal law is the road to fame and fortune and occasionally a seat in the Rajya Sabha.

During the Emergency (1975-1977), Ram’s voice was loud and clear for which an arrest warrant was issued from Kerala. It was stayed by the Bombay High Court when over 300 lawyers led by Nani Palkhivala and including this author appeared for him. However the stay was nullified by the “Habeas Corpus” judgment ( ADM Jabalpur v. Shivkant Shukla) and Ram exiled himself in the United States carrying on his campaign against the Emergency. He returned to fight the elections in 1977 and ousted the serving Law Minister H.R. Gokhale from Bombay in the Lok Sabha Elections, and then started his political career as Parliamentarian, Minister and Opposition leader.

Today we have the blessings of the Right to Information Act (RTI), but it is important to recall that Ram, as the Union Minister of Urban Affairs in 1998, opened the files of his department for public scrutiny. The bureaucracy was stunned and ultimately scuttled it. Ram has always unwaveringly supported the freedom of speech and expression, the liberty of the media, the rule of law and the independence of the judiciary. His writings bear testimony to this unfailing commitment.The freedom of speech is our priceless heritage. We must all endeavour to preserve it and nourish it.

Ram Jethmalani, is in law, evergreen, ever-energetic, ever enthusiastic, never one to give up and reminds one of evergreen cricketer Sachin Tendulkar. But his style is more in the Sehwag mould — brilliant, spectacular, audacious. In 2007, I read a report that Ram had applied to the Supreme Court to take up his case early because his astrologer had told him that he might not be available after July. Obviously, he was a false prophet. My advice to Ram is not to believe astrologers and go on to hit a century with frequent sixes.

( The writer is a senior advocate.)

http://www.thehindu.com/opinion/op-ed/article872919.ece