Getting its own off the hook

CHANDER SUTA DOGRA PUBLISHED IN THE HINDU

A Punjab and Haryana High Court decision to halt the framing of charges in the graft case against its former judge Justice Nirmal Yadav raises disturbing questions about judicial accountability

When Anupam Gupta, special public prosecutor for the CBI in the “cash at the doorstep” corruption case against former judge of the Punjab and Haryana High Court Nirmal Yadav, burst out in anger against the High Court’s recent decision to halt the framing of charges against her, it cast a shadow of disquiet on possibly the most watched prosecution of a judge in the higher judiciary in recent times.

In a written statement he said, “I am deeply distressed by the High Court’s order passed today. It betrays an insensitivity to judicial corruption that cannot be viewed with equanimity. The High Court cannot have a dual approach or standard — one for judges and another for all other accused. Would the High Court have passed this order if the principal accused had not been a former High Court Judge?”

His statement, duly reported by newspapers, was greeted by pin drop silence in the legal universe. That Mr. Gupta is a well known activist on judicial accountability is one reason why his outburst was not immediately dismissed as a mere reaction to a legal setback in court. The other is, because each time in the last couple of years it appeared that the case against Justice Yadav would be dropped, the lawyers of the Punjab and Haryana High Court rose as one to ensure its continuation.

Revision petition

Justice Nirmal Yadav is being tried for allegedly receiving illegal gratification of Rs.15 lakh in August 2008. The money was wrongly delivered at the residence of another lady judge of the High Court, who reported the matter to the Chandigarh police. In March 2011, the President granted sanction to prosecute her under Section 19 of the Prevention of Corruption Act and she became the first serving high court judge in the country to be charge sheeted in a corruption case.

In July this year the CBI court in Chandigarh finally ordered charges to be framed against her, but Justice Yadav filed a revision petition before the High Court against the order, saying that it was “illegal, erroneous and untenable in the eyes of the law.” Hearing the petition, Justice N.K. Sanghi summoned the entire record of the CBI court and directed that her petition be heard within three months. This in effect means that until the High Court decides on her petition, the trial will remain frozen before the trial court.

Speaking to The Hindu, Mr. Gupta says: “Justice Sanghi failed to observe the elementary precaution and propriety of issuing notice to the CBI and hearing it before passing the September 13 order. By requisitioning the trial court’s record, the Judge has, for all practical intents and purposes, disabled the Special Judge, CBI, from proceeding any further with Justice Nirmal Yadav’s trial for a virtually indefinite period of time. Given the practice in the High Court and the volume of litigation before it, the prospect of Justice Yadav’s petition being finally decided by the High Court within three months is far too remote to be believed. A cynic would not be wrong in assuming that, despite its gravity, the case has been put in the cold storage.”

Strong words these and his statement was eagerly circulated in the approving bar.

When asked by The Hindu for his response to Mr. Gupta’s allegations, Justice Sanghi declined comment but did say that if at all he does respond, it will be through his orders.

The ruckus now is because in July the CBI judge Vimal Kumar had given a 61-page order in which he rejected the defence taken by Justice Yadav and the co-accused, ruling that “there was overwhelming evidence” against all of them. He had pointed out contradictions between the statements of Justice Yadav and the other accused. While she had denied all the happenings of August 2008 and claimed that she is being framed, the others accused in the case have admitted the same to some extent.

Cash for verdicts

Earlier during investigations, the CBI had uncovered shocking details of several much bigger cash transactions allegedly received by Ms Yadav in exchange for giving favourable verdicts. In one she even quashed an FIR under Sec 482 of CrPC in a murder case in 2006, for which she allegedly received Rs.50 lakh. These details — that emerged from custodial interrogation of a co-accused, who had arranged for the Rs.15 lakh to be delivered to Justice Yadav’s residence — are in the report of the Superintendent of Police and was brought to the notice of the court. The contents of the SP’s report, kept under wraps till a couple of months ago, (reported in The Hindu on August 4) were also forwarded to Justice S.H. Kapadia, the then Chief Justice of India (CJI) who had in July 2010 given sanction to prosecute the judge. These findings however were not included in the charge sheet.

Closure report

But stranger things have happened in this case. In December 2009, the CBI taking a plea that it has not received sanction from the CJI to prosecute the judge, filed a closure report. The plea was based on a letter from the Law ministry stating that the then CJI, Justice Balakrishnan, had observed “that no action was required for the present” in the matter. The High Court Bar Association slammed the action of the CJI and intervened in the case to oppose the closure.

Justice Balakrishnan clarified through a statement issued by his office that he had not received any request to prosecute the judge and that the CBI had not even shown him its final report in this regard. In March 2010 the trial court rejected the closure report and ordered further investigation. In the eventuality, the proposal to sanction the prosecution of Justice Yadav was moved before the CJI three months later following which the President who is the competent authority to grant sanction to prosecute the judge, did so in March 2011.

Justice Yadav has retired but is believed to wield considerable influence through her brother, a cabinet minister in Haryana. Mr. Gupta on the other hand has announced that he is collecting material and will be writing to the CJI soon. With the trial stalled amid these serious allegations that raise questions about the impartiality of the judiciary towards one of its own, there is nothing to indicate as of now, if the air will be cleared anytime soon.

chander.dogra@thehindu.co.in

Nirmal

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Why is it so hard to budge a judge?

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

INDIAN EXPRESS 

 It was assumed by our Constitution makers that once a judicial committee finds a judge guilty of misbehaviour, Parliament would automatically endorse the finding of the judicial committee and pass the appropriate address to the president with the requisite majority. That was the assumption underlying this provision. Unfortunately, Parliament did not build up a convention on these lines. Therefore, the procedure became difficult and doubtful.

In former Supreme Court judge Justice V. Ramaswami’s case in 1993, the ruling party, the Congress under P.V. Narasimha Rao, did not issue a whip to the members and in fact, told them to abstain from the vote. Ramawami’s supporters prevailed on the party, and this abstention by the Congress defeated the motion, which set a very bad precedent, and earned a bad name for the party. That event has encouraged some judges to take a very rigid stand: not to resign even when serious allegations are made against them by responsible persons. It has had a negative impact on the minds of these people, as errant judges assume nothing will happen to them since impeachment is such a difficult procedure. This has been a serious setback to the independence and the credibility of the judiciary.

Thereafter, there have been a number of cases involving judges of against whom serious allegations of misconduct have been made. There have been cases where criminal prosecution was also initiated. Shamit Mukherjee of the Delhi high court and Nirmal Yadav of the Punjab and Haryana high court are examples. There have also been some cases where the Chief Justice of India did not give his permission to proceed; such permission is required in law. K. Veeraswamy, a former chief justice of the Madras high court, was prosecuted for having disproportionate assets. The real point is that because impeachment is difficult and uncertain, some judges behave irresponsibly.

In the Justice Soumitra Sen case currently before Parliament, a committee was set up, consisting of a sitting judge of the Supreme Court, Justice B. Sudershan Reddy, an eminent lawyer like F.S. Nariman, an eminent judge like Chief Justice Mukul Mudgal of the Punjab and Haryana high court. That committee found this gentleman guilty of retaining the monies of a client that he received as an advocate-receiver, and of holding on to that money in his account even after becoming a judge of the high court. He returned the money only later, after the high court ordered him to do so. This was considered to be misbehaviour on the part of the judge.

Instead of accepting the findings given by an impartial committee, Sen has chosen to challenge the findings in Parliament. This isn’t a healthy development. The Rajya Sabha has since voted for his impeachment. Now it all depends on the vote in the Lok Sabha. According to me, in principle, it is not a wise decision to make MPs the custodians of judicial ethics and judicial conduct. If they are to apply their own standards of probity to the misbehaviour of judges, they might find it difficult to find him guilty of serious misbehaviour warranting removal. Therefore, there should be another method for easier removal of a judge found to be guilty of doubtful integrity.

I suggest an amendment of the Constitution to incorporate a provision permitting the immediate removal of a judge who, in the opinion of the collegium of the Supreme Court is a person of doubtful integrity and doesn’t deserve to remain in office. He can be paid some compensation in lieu of the forsaking of service, instead of having to suffer him on the bench with doubts about his honesty in the minds of the public. The judicial system cannot afford to have such black sheep on its rolls.

If such a provision is made, it can be applied to public servants found to be of doubtful integrity. Proving corruption in a court of law is difficult because the bribe-giver and -receiver will thwart all attempts to prosecute them. The same problem arises with departmental enquiries. Even in those rare cases where prosecution succeeds, it takes a long time and by the time the decision comes, the judiciary would have suffered an irreparable loss. On the other hand, if such people are removed forthwith, on payment of some compensation, the system would be much healthier and will enjoy greater credibility.

Those inclined to accept gratification will also be under check for fear of removal forthwith if discovered. It will have a salutary effect even on the existing judges and will instill fear in their minds, so that they do not resort to corrupt ways, and remain honest. Of all the institutions, the judiciary especially cannot afford to have corrupt persons in its ranks. Therefore I strongly recommend such a provision being made in the Constitution. In that case, the impeachment procedure would become redundant.

There is a judicial accountability bill in the works, but well intentioned as it is, it does not go far enough, and does not have adequate teeth to deal with the problem effectively. There should be a provision for the suspension of a judge when complaints against him are being investigated. At the same time, we must take care to ensure that disgruntled litigants do not level false accusations against judges who might have decided against them. We have to protect judges from such baseless complaints. The judicial accountability bill will have the unintended effect of allowing false complaints to be made, which is not conducive to the independence of the judiciary. There is no provision for the speedy removal of an errant judge.

The Supreme Court has been trying an in-house procedure, but it is not a transparent one. There is a feeling that cases are pushed under the carpet for fear of adverse publicity. Therefore, there is a clear need for a transparent mechanism of accountability for judges. Even in the matter of declaration of assets in public, there was hesitation within the judiciary. It is necessary to ensure transparency in these matters in order to sustain the confidence of the people in the system.

The writer is a senior advocate in the Supreme Court, and an expert in constitutional law

http://www.financialexpress.com/news/why-is-it-so-hard-to-budge-a-judge/834013/0

Campaign Mode Approach to Reduce Pendency in Courts

Following is the text of the speech of Dr. M. Veerappa Moily, Minister of Law & Justice  IN Calcutta on the campaign mode approach to reduce pendency in couts:

Jawaharlal Nehru, on the afternoon of March 19, 1955, while addressing the members of the Punjab High Court at the inauguration of its new building in Chandigarh, said, “Justice in India should be simple, speedy and cheap.”  He remarked that litigation was a disease and it could not be a good thing to allow any disease to spread an then go out in search of doctors.

At a Joint Conference  of Chief Ministers and Chief Justices held on August 16, 2009, the Hon’ble Prime Minister observed :

Judicial review has breached unprecedented frontiers.  Yet, amidst such strengths, brilliance and dynamism, India has to suffer the scourge of the world’s largest backlog of cases and timelines, which generate surprise globally and concern at home.  The expeditious elimination of this scourge is the biggest challenge for such conferences and should constitute the highest priority for all of us.

The judiciary realised that one of the drawbacks of the justice delivery system was denial to the common man, of access to justice.  This truism was recognised by the judiciary and concern of the Courts in that behalf was reflected in Bihar Legal Support Society vs Chief Justice of India (1986 (4) SCC 767) where the Court said:

….that the weaker section of Indian Humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy.  They are not aware of the rights and benefits conferred upon them by the Constitution and the law.  On account o their socially and economically disadvantageous position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice.

To quote from the figures compiled by the Supreme court, a total of 42,17,903 number of cases were pending in the High Courts as on 30th September, 2010 comprising of 33,36,256 Civil Cases and 8,81,647 Criminal cases.   In the Subordinate Courts, this figure was 2,79,53,070 comprising 78,56,456 Civil Cases and 2,00,96,614 Criminal cases.  It is estimated that in some of the subordinate courts over 30-40 percent of arrears relate to petty cases and out of the total pending cases, 9% of the cases were pending for 10 years and above and 24% cases were pending for 5-10 years in both, High Court and Subordinate Courts.  Alarmed with the increasing number of pending cases, a Vision Statement was adopted in the National Consultation on Strengthening Judicary towards Reducing Pendency and Delays held on October 24-25, 2009.  The Statement contained a roadmap for improving justice delivery and legal reforms and steps to reduce pendency in Courts from the present 15 years to 3 years by 2012.  In the backdrop of this, a campaign mode approach is being launched from today the 1st July, 2011 till 31st December, 2011 to reduce pendency.    It is also the endeavour to dispose of long pending cases pertaining to senior citizens, minors, disabled and other marginalized group.

Though the target may not be reached in 2012, ongoing efforts to reduce pendency need to be given greater momentum, in view of the various measures initiated by the Government in recent times and the substantial funding made available.

Government had, in 2007 envisaged a programme under    e-Courts Project for computerization of 12000 Courts with a cost of         Rs. 441.8 Crores.  However, with the pace of time, the Project cost has also increased and the Government has now approved a revised cost of Rs. 935 Crores for the computerization of 12000 Courts by March, 2012 and another 2249 Courts by March, 2014.  West Bengal is one of the high performing States wherein we are aiming to complete the connectivity by July-August this year, ahead of the targeted time.  Citizen centric services will be available through this project and a national arrears grid will come into being.

The Law Commission of India in their 230th Report have taken a serious note of the ever mounting arrears in the Courts and have suggested the following measures to reverse the trend:

(i)   Grant of adjournments must be guided strictly by the provisions of Order 17 of the Civil Procedure Code;

(ii)   Many cases are filed on similar points and one judgment can decide a large number of cases.  Such cases should be clubbed with the help of technology and used to dispose other such cases on a priority basis;  this will substantially reduce the arrears;

 (iii)  Judges must deliver judgments within a reasonable time and in that matter, the guidelines given by the apex court in the case of Anil Rai v. State of Bihar, (2001) 7 SCC 318 must be scrupulously observed, both in civil and criminal cases;

 (iv) Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half-an-hour;

 (v)  Lawyers must curtail prolix and repetitive arguments and should supplement it by written notes.  The length of the oral argument in any case should not exceed one hour and thirty minutes, unless the case involved complicated questions of law or interpretation of Constitution;

 (vi)  Judgments must be clear and decisive and free from ambiguity and should not generate further litigation.  Lord Macaulay’s following statement made 150 years ago must be a guiding factor:

 “Our principle is simply this –

Uniformity when you can have it,

Diversity when you must have it,

In all cases, Certainty

 (vii)  Lawyers must not resort to strike under any circumstances and must follow the decision of the Constitution Bench of the Supreme Court in the case of Harish Uppal (Ex-Capt.) v. Union of India reported in (2003) 2 SCC 45;

 (viii)    Judges and Lawyers, both have to change their mindsets.  Unles the mental barriers to reforms are mellowed, all doses of external remedies are bound to fail.

One must remember Gandhiji’s words “If you want to change anything, you be the change.

 During the campaign for disposal of cases, following steps need to be taken:

(a)  All Session Trials are required to be dealt with by Fast Track Courts;

(b)  All cases where the offences are compoundable are required to be disposed of on priority basis;

(c)  All Magistrates need to be directed to dispose of the cases under Motor Vehicles Act on priority basis;

(d)  A special time-bound drive to be donducted to sispose of Summary Trials under Chapter XXI of Cr.PC by the District Judges and Judicial Magistrates;

(e)  District Judges and Chief Judicial Magistrates to take up applications for withdrawal of prosecution u/s 321 of Cr.PC on priority basis;

(f)  In Courts where criminal appeals have also been given in the cases of criminal revisions pending in any court in excess of twenty five in number to be withdrawn and transferred to courts where such appeals are below twenty five in numbers.

(g) Frame Case Flow Management Rules for the Subordinate Courts.  The Rules also provide to put the cases into three different tracks, specifying time limit for each track;

Some of the High Courts have already drawn up their plans for taking up the mission mode approach for reduction in the pendency.   Their plan consists of the following measures:

(a)   Instructed Magistrates to hold Courts in Jails for disposal of petty cases involving undertrial prisoners;

(b)   Constitute Committees at District level involving District Judge, Collector, Superintendents of Police and Jails etc. for discussing the issues relating to criminal justice system;

(c)   Notify case flow management rules;

(d)   Presiding Officers of Magisterial Courts are ordered to hold Courts on Saturdays, alternatively to dispose of petty cases under the Motor Vehicle Act, NI Act, Municipal laws and other such acts.;

(e)   District & Sessions Judges have been directed to rationalize the work load in different Courts;

 (f)     Set up Morning/Evening/Shift/Holiday Courts;

 (g)   Organise Mega Lok Adalats in each District and in the High Court during the financial year 2011-12;

 (h)   Incorporate new Rules for providing faster service of process, hearing on day to day basis, automatic termination of stay after the expiry of two months in cases seeking challenge/stay/transfer the lower court proceedings.

To facilitate the momentum for reduction in pendency, Government of India has made substantial funding.  Rs. 5000 Crores have been awarded by the 13th Finance Commission for utilisation during the next 5 years for improving the justice delivery system through setting up of morning/evening/shift courts, Lok Adalats, Mediation, etc.   Funds for infrastructural development have increased five fold in the current Budget to Rs. 500 Crores.

The Gram Nyayalayas Act, 2008 was enacted by the Government on 2nd October, 2009 to provide for establishment of Gram Nyayalayas at the grass root level to provide access to justice at the doorsteps of the citizens with a view to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities.  A sum of Rs. 150 Crores has been provided in the current financial year for starting the Gram Nyayalayas.  States like Madhya Pradesh, Maharashtra, Rajasthan and Orissa have already notified and operationalised them.  The Gram Nyayalayas have been envisages to grant relief to the litigants within six months of the registration of cases.

While Government of India is providing sufficient funds for speedy disposal of cases and reduction in the pendency, unless the vacancies are filled up, both in the Higher and Subordinate Judiciary, all efforts being made would not be able to bring about desired fruits.  I would, therefore, urge the Chief Justices to embark upon a plan to fill up as many vacancies in the High Court and the Subordinate Courts during this campaign mode approach for reduction in pendency.

I would like this opportunity to thank the Chief Justices and the State Governments in their approach for the Mis sion Mode Programme for Delivery of Justice and Legal Reforms which commenced on 26th January, 2010 with a view to reduce congestion in jails.   The leadership rendered by all the Chief Justices for realizing the goal and to take further steps in this regard, resulted in deciding cases of over 7.10 lakhs undertrials till 31.5.2011.  This must have brought cheers to as many families also.  I hope that the interest and the leadership shown for the cases of the undertrials by the Chief Justices and the State Governments would be carried forward during this campaign for reduction of overall pendency in the Courts which would help in mitigating the miseries of the litigants and their families.”

No more ‘My Lord’, ‘Your Lordship’ in Punjab & Haryana HC

Ajay Sura, TIMES OF INDIA

CHANDIGARH: In a historical move to discard the colonial practice of addressing the judges of the high court as ‘My Lord’ or ‘Your Lordship‘, the Punjab and Haryana High Court Bar Association on Thursday passed a resolution asking its members not to address the court using the traditional phrase ‘My Lord’.

In its resolution passed unanimously by around 4500 members strong lawyers association has decided that in future the judges should be addressed as ‘Sir’ or ‘Your Honour’. The decision was taken in the general house meeting of the bar held in the jam-packed bar room of the high court on Thursday afternoon. With this, the Punjab and Haryana high court has become second high court in the country after Kerala high court advocates Association that had passed such resolution in June 2007 to take such step.

Talking to the development, President of the High Court Bar Association, Kulbir Singh Dhaliwal said that the bar body has unanimously resolved to stop addressing judges as ‘My Lord’ or ‘Your Lordship’ from Thursday.

Dhaliwal further stated, “We passed the resolution to endorse the already existing rules in this concerned framed by the Bar Council of India (BCI) in 2006 that had resolved that the form of address in the Supreme Court and high courts should be ‘Your Honour’ or ‘Honourable Court’. About the forcibility of the resolution, Dhaliwal added that because of habit, some lawyers may continue to say ‘My Lord’, but gradually they will get used to the new phrase. He also said that bar has received positive response from the judges on this issue.

Background:

The BCI – apex body of the lawyers in country had adopted a resolution in April 2006 and added a new Rule 49(1)(j) in the Advocates Act. As per the rule, lawyers can address the court as ‘Your Honour’ and refer to it as ‘Honourable Court’. If it is a subordinate court, lawyers can use terms such as ‘Sir’ or any equivalent phrase in the regional language concerned. Explaining the rationale behind the move, the Bar Council had held that the words such as ‘My Lord’ and ‘Your Lordship’ were “relics of the colonial past”.

The resolution has since been circulated to all state councils and the Supreme Court for adoption but over five years now, the resolution largely remained on paper. However, in an unprecedented move in October 2009, one of the judges of Madras HC, Justice K Chandru had banned lawyers from addressing his court as ‘My lord’ and ‘Your lordship’

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.

Parliamentary panel holds Justice Sen guilty of misconduct

J. Venkatesan IN THE HINDU


Rejects contention that panel could not probe charges. He did not submit any account


NEW DELHI: A Parliamentary Inquiry Committee has held Justice Soumitra Sen of the Calcutta High Court guilty of ‘misconduct’ tantamount to ‘misbehaviour,’ warranting his removal as a judge.

The report, tabled in the Rajya Sabha on Wednesday, said the two charges — misappropriation of Rs.33,22,800 which Justice Sen had received in his capacity as Receiver appointed by the High Court and misrepresentation of the facts with regard to the misappropriation to the High Court — stood proved. The Committee — headed by Justice B. Sudershan Reddy of the Supreme Court — rejected as untenable Justice Sen’s contention that as the probe pertained to his conduct as Receiver and not as judge, the Committee could not go into it. The Committee included Chief Justice of the Punjab and Haryana High Court Mukul Mudgal and eminent jurist Fali Nariman.

The report said that Justice Sen did not submit any account, either when he was an advocate or after he became a judge, thus violating the order appointing him a Receiver. This “is a clear instance of ‘misconduct’ tantamount to ‘misbehaviour,’ especially since Justice Soumitra Sen used his position as a Judge of the High Court by filing an affidavit of his mother [as his own constituted attorney] making the [mis]statement that he had invested the entire sum of Rs.33,22,800 with Lynx India Ltd., which is proven to be a false statement.”

The report said: “The very vastness of the powers vested in the higher judiciary and the extraordinary immunity granted to Judges of the High Courts (and of the Supreme Court) require that Judges… should be fearless and independent, and that they … should adopt a high standard of rectitude so as to inspire confidence in members of the public who seek redress before them.” “While it is necessary to protect the Judges from motivated and malicious attacks, it is also necessary to protect the fair image of the institution of the Judiciary from such of those Judges who choose to conduct themselves in a manner that would tarnish this image. The word ‘misbehaviour’ after all is the antithesis of ‘good behaviour’; it is a breach of the condition subsequent upon which the guarantee of a fixed judicial tenure rests,” the report said.

The Committee said: “The investigation has raised, at the threshold, a significant question in relation to inquiries directed to be made into the conduct of a Judge under the Judges (Inquiry) Act, 1968, viz., whether a Judge whose conduct is under investigation [pursuant to a motion admitted in one of the two Houses of Parliament] has the right to remain silent.” The submission that Justice Sen had the right to remain silent “is untenable and fallacious.”

Source: http://www.hindu.com/2010/11/11/stories/2010111159770100.htm

FOR THE REPORT :  REPORT OF Parliamentary Inquiry Committe on Justice Sen