"There will be no pending cases in courts if we have more judges like Justice Jasmeet Singh"

 In yet another instance of a High Court sitting beyond normal courts hours, Justice Jasmeet Singh of the Delhi High Court sat past 11 pm on Monday to complete the hearing of matters listed before him.

"Petition under Article 227 will be maintainable against Domestic violence act proceedings"

 The Madras High Court in its single-judge bench of Justice GR Swaminathan held that Article 227 of the Constitution is “forum-neutral” making no distinction between civil and criminal cases. It was further held that while seeking for quashing of proceeding under Domestic Violence Act, article 229 is maintainable.

Article 227 in The Constitution Of India 1949

"227. Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces"

A single bench of Justice GR Swaminathan held that regardless of whether DV Act proceeding is civil or criminal in nature, powers under Article 227 of the Constitution are available against it.

The bench observed that Article 227 is "forum-neutral", which makes no distinction between civil court and criminal court. In other words, the power under Article 227 can be exercised both over civil Courts as well as the criminal Courts. The power under Article 227 of the Constitution cannot be ousted.

I therefore hold that irrespective of whether the proceedings under Central Act 43 of 2005 are civil or criminal, the power under Article 227 of the Constitution would always lie to quash the proceedings, if a case is really made out", Justice Swaminathan said in the order.

The bench was considering a petition filed under Article 227 of the Constitution seeking to quash proceedings instituted under the Domestic Violence Act. The Registry of the Court refused to number the petition saying that the petition under Article 227 was not maintainable. Therefore, the petitioners' lawyer, Advocate PM Vishnuvarhanan, made a mention before the bench. The bench listed the matter for deciding the issue of maintainability.

The bench noted that the hesitance of the Registry to number the petition was based on the divergence of views expressed in two decisions regarding the nature of proceedings under the Domestic Violence Act. The judgment delivered by Justice Anand Venkatesh in the case Dr.P.Pathmanathan and others v. V.Monica and others (2021 (2) CTC57 held that the proceedings instituted under the DV Act are civil in nature and therefore petition under Section 482 of the Code of Criminal Procedure was not maintainable against it. It was also held in the decision that in appropriate cases, Article 227 will lie against DV Act proceedings.

On the other hand, the judgment delivered by Justice SM Subramaniam in P.Arun Prakash and others v. S.Sudhamary (2021-2-Law Weekly- 518) held that DV proceedings filed are criminal proceedings.

Justice Swaminathan noted that the issue before him was not whether the proceedings are civil or criminal in nature. Regardless of the nature of the proceedings, Article 227 was available against them, since the powers of superintendence are "forum-neutral".

Registry cannot decide maintainability

Justice Swaminathan also observed that the Registry should not have kept the petition unnumbered for long. In this connection, reference was made to the decision of the High Court in P.Surendran v. State by Inspector of Police, where it was observed that the Registry cannot decide the issue of maintainability as it was a judicial function.

"Respectfully and with utmost humility following the said decision, I hold that the Registry ought to have placed the papers before the Court, if it had any doubt or reservation regarding maintainability.

In the case on hand, the petition that was filed as early as on 17.03.2021 was returned on the ground of maintainability only on19.05.2021. The Bar members complained that a number of petitions have been kept un-numbered", Justice Swaminathan observed in the order.

Order of the Court:

The Hon’ble bench of the Madras High Court was of the view that the Registry should not have kept the petition unnumbered for so long. Further, the Registry ought to have placed the papers before the Court, if it had any doubt or reservation regarding maintainability.

It was also held that the text of the provision in Article 227 is forum-neutral as it makes no distinction between civil court and criminal court. In other words, the power under Article 227 can be exercised both over civil Courts as well as the criminal Courts.

The Registry was thus directed to number the petition and list the matter for admission before the portfolio Judge on 16.06.2021.

"Is it the partiality or the procedure of law"

 

Member of the Rajya Sabha and Senior Advocate P Wilson has written to President Ram Nath Kovind registering concern that the High Courts of many States are not being adequately represented when it comes to the appointment of judges to the Supreme Court.

The letter highlighted that the Constitution of India as well as the Supreme Court, being the highest judicial organ in the country, is "as much federal as the other organs in the sense that it belongs equally to all States."

The Supreme Court must stand as a testament to the spirit of cooperative federalism that runs through the veins of the Constitution, Wilson said.

The Supreme Court should, therefore, necessarily be composed of adequate representatives from all States in proportion to the sanctioned strength of their respective High Courts, he added.

He further explained that such adequacy of representation assumes significance since the Supreme Court, as the final arbiter of disputes, is called on to decide on rights in rem, on disputes between two States, on disputes that impact culture, customs, languages etc.

Inadequate representation of States on the Bench of the Supreme Court is an affront to rights of the State and the people of the States, he has written. The letter also referred to the State-wise composition of the Supreme Court Bench while comparing the sanctioned strength of the High Courts from where the judges hail.

High Court representation in Supreme Court

There is "no reasonable nexus between the sanctioned strength of the High Court and the representation on the Bench ofthe Supreme Court", Wilson's letter highlighted.

From the Madras High Court, there is only one judge presently serving in the Supreme Court, it was further noted.

"If we consider the case of the Madras High Court, a chartered High Court with an illustrious history, only one Judge from the Madras High Court is presently serving on the Bench of the Supreme Court of India," the letter said.

"If we consider the case of the Madras High Court, a chartered High Court with an illustrious history, only one judge is presently serving in Supreme Court." P Wilson

In this backdrop, Wilson urged the President to direct the Union government to take steps to ensure more social diversity in Supreme Court appointments, as well as to give adequate representation to all States and High Courts, based on their respective sanctioned strength.

"The Bench of the Supreme Court should not be homogenous but reflect the social diversity of this great nation. The time has come where we actively work to have a representative Union Judiciary with judges from all sections of society and gender. This should be in addition to the representation of all High Courts, based on their sanctioned strength," the letter stated.

"was he active member of BJP or a JUDGE"

 

West Bengal Chief Minister Mamata Banerjee has written to Calcutta High Court Acting Chief Justice Rajesh Bindal requesting him to reassign the election petition challenging BJP leader Suvendu Adhikari’s election from Nandigram from Justice Kausik Chanda, who is presently hearing the matter.

The letter also stated that Banerjee had objected to Justice Chanda being confirmed as a permanent judge of the Calcutta High Court.

The letter written through her lawyer Sanjay Basu said that Justice Chanda was an active member of the BJP before he became a judge and this could lead to bias.

"My client has filed the election petition challenging the election of Suvendu Adhikari, a member of the Bharatiya Janata Party. The adjudication of election petition shall also have political ramifications. My client has been made aware that Justice Chanda was an active member of the BJP. Thus, in the event the Hon'ble judge takes up the election petition, there will be reasonable apprehension in my client's mind of bias on the part of the Hon'ble judge in favour of the Respondent and/ or against my client," the letter said.

It also stated that Banerjee had objected to Justice Chanda being confirmed as a permanent judge of the Calcutta High Court.

“My client apprehends that the Hon’ble judge is aware of the objections and reasonably apprehends that there is a likelihood of bias on the part of the Hon’ble judge,” the letter said.

In any event, since the judge was an active member of the BJP and the respondent in the election petition is a BJP candidate, it will lead to a situation of perception “whereby the judge adjudicating the matter may be said to be “judge in his own cause," the letter goes on to state.

“Justice must not only be done but also seen to be done. In the aforesaid circumstances, in order to sustain the confidence of public in the judiciary, the aforesaid election petition out to be reassigned,” Banerjee requested.

Suvendu Adhikari, who was a close aide of Banerjee before he joined the BJP in 2020, had defeated Banerjee in a closely contested race for Nandigram. The margin of victory was 1,956 votes.

Banerjee had, immediately after the elections, raised allegations of foul play in Adhikari's victory.

She had then approached the High Court challenging Adhikari’s election.

The matter was listed for mentioning before Justice Kausik Chanda on Friday, when counsel for Banerjee, Soumendra Nath Mukherjee requested that the matter be kept for directions next week.

The counsel said that once the matter is listed for mentioning today, it may be kept for directions next week after it is admitted.

Justice Chanda had accepted the request.

"Let the matter be listed next Thursday. In the meantime, the Registrar shall file a report before this Court as to whether the petition has been filed in conformity with the Representation of People Act," he had directed.

"No one above law even the Advocates"

 

"Usage of the position of advocate for other than just causes is nothing but an act of corrupt nature, which requires to be cut down by the sword held in the hands of the statue of Justice," the Court said.

Advocates are not above law and in fact, they are expected to give more respect to the law since it is their bread and butter, the Madras High Court emphasised on Friday while dismissing a lawyer's anticipatory bail plea over an alleged COVID-19 lockdown violation (Tanuja Rajan @ Tanuja Kanthula and anr v. State).

An advocate is also a citizen and her/his stature should be used in a lawful and legal manner without maligning the reputation of others, the Court said.

"It is further to be stressed that advocates are not above law and, in fact, it is the advocates who have to give more respect to the law, as it is their bread and butter. Usage of the position of advocate for other than just causes is nothing but an act of corrupt nature, which requires to be cut down by the sword held in the hands of the statue of Justice. The duty of an advocate is to see to it that the rule of law is followed irrespective of the damage that it would cause to his self," the order further stated.

Justice M Dhandapani added that the doyens of the Bar, more so the Madras Bar, have held aloft the rule of law for centuries.

"But, nowadays, a few members, just to enrich themselves and for their selfish cause, throw to the winds the larger interest of the legal fraternity and cause irreparable damage to the other members of the legal profession by their acts, as has been done in the present case," the Court expressed concern.

The Court was dealing with an anticipatory bail plea moved by an advocate and her daughter against whom a case was registered earlier this month.

The case attracted attention after video footage of a verbal altercation between the lawyer and the police was circulated online, in which the lawyer is seen without a mask, threatening to strip the police officer of his uniform.

The Court on Friday rejected arguments made for the accused lawyer that her outburst was triggered by police misbehaviour and that it stemmed from motherly affinity for her daughter, who had been stopped by the police for allegedly violating the COVID-19 lockdown.

"low standard of education system leads to feel shameful while introducing as lawyer or judge"

 

"For the sake of the dignity of what you and I wear, I think you should look into it more seriously, not as a professional matter, and try to deal with the malaise", the Chief Justice told the BCI counsel today.

The Madras High Court on Friday urged the Bar Council of India (BCI) to take a more serious view of issues touching about the quality of law graduates and legal education (B Ramkumar Adityan v. Secretary and ors).

Such fall in standards means that it is no longer respectful to introduce yourself as a lawyer or judge anymore, Chief Justice Sanjib Banerjee lamented.

"For the sake of the dignity of what you and I wear, I think you (BCI) should look into it more seriously, not as a professional matter, and try to deal with the malaise...(There is) a lot of hesitation. It is no longer respectful to introduce yourself as a lawyer or judge anymore," he remarked.

The Bench of Chief Justice Sanjib Banerjee and Justice R Subbiah was hearing a petition filed last year against certain distance education courses in law offered by the Annamalai University, when it took note of concerns such as mushrooming of law colleges, lack of qualified teachers to impart legal training and the ensuing decline in legal education standards.

The hearing saw Chief Justice Banerjee orally observe that the quality of law graduates being churned out today is not desirable.

"Today we have how many - more than 3 lakh lawyers graduating every year? So what happens? They discredit the profession… there are orders passed by this Court on how votes are acquired by office bearers (of Bar Associations) ... something must be done at all-India level … You sir, can you put your hand to your heart and say that we have qualified teachers to provide training in these 1,600 colleges?", Chief Justice Banerjee asked the BCI counsel.

Appearing for the BCI, advocate SR Raghunathan informed the Court that the regulatory body is also taking steps to tackle such issues.

In this regard, he pointed out that the BCI had earlier imposed a moratorium on starting new law colleges. However, owing to intervention by various High Courts, the BCI was forced to grant approval for new colleges even after this move, he submitted

The Chief Justice went on to observe that the issue cannot be viewed as confined to particular States or at a local level. He noted that even if one State maintains the highest standards of legal education, a person can just obtain a degree (of inferior standard) from a neighbouring State to come back an enroll in the State of his choice.

"The entire effort of raising the standard in the State is lost," the Chief Justice commented.

Advocate Raghunathan agreed with the concerns raised by the Chief Justice. He added that while the BCI is already taking steps, he will communicate the Court's concerns to the regulatory body.

The Court, therefore, adjourned the case by three weeks. An interim stay earlier issued in September last year will continue in the meanwhile, the Chief Justice clarified. He also hinted that the Court may take up the larger issue raised in this case once normal Court functioning resumes.

"Let injunction continue. We’ll take up the larger issue, someone has to take it up," the Chief Justice said.

The case concerns the award of the LLB (General) and LLB (Academic) courses by the Director, Directorate of Distance Education, Annamalai University. The petitioner has challenged the same as not being authorised by the BCI.

The Court has also earlier recorded the BCI's submission that it has not recognised the said course and that without recognition, no legal education course can be imparted nor any legal degree awarded entitling the degree-holder to practice in India.

"We are supporting petitioner, we are saying such course cannot continue," advocate Raghunathan reiterated for the BCI on Friday.

In April this year, the Court recorded the Annamalai University's submission that it has the right to impart distance education purely for educational purposes and not for purpose of entitlement to enrol as a lawyer. The University argued that it has obtained such a right from the University Grants Commission, prompting the Court to direct the UGC to reply in the matter.

The matter will be taken up next after three weeks, when the UGC is expected to file its reply. Advocate VR Kamalanathan appeared for the Annamalai University.

"Protective Shield for the essential wings of the justice delivery system"

 

 7 Member Committee constituted by BCI For Framing Draft of "Advocates Protection Act" which will be the protective shield for the advocates and their family from threats & Attacks.

 The lawyers’ long-pending demand for Advocate Protection Bill should now be fulfilled after Chief Minister Shivraj Singh Chouhan’s assurance that it will be tabled in the assembly soon

Taking note of the recent attacks on lawyers and their family members, the Bar Council of India has resolved to constitute a 7 member committee for framing the draft "Advocates Protection Act" to ensure protection and safety to Lawyers in carrying out their duties.

The Council has nominated the following members to be part of the Committee:-

1. Mr. S. Prabakaran, Sr. Advocate, Vice-Chairman, Bar Council of India.

2. Mr. Debi Prasad Dhal, Sr. Advocate, Executive Chairman, Bar Council of India Trust.

3. Mr. Suresh Chandra Shrimali, Co-Chairman, Bar Council of India.

4. Mr. Shailendra Dubey, Member, Bar Council of India.

5. Mr. A. Rami Reddy, Executive Vice-Chairman, Bar Council of India Trust.

6. Mr. Shreenath Tripathi, Member, Bar Council of India.

7. Mr. Prashant Kumar Singh, Member, Bar Council of India.

In the meeting dated 10th June, the Council discussed the incident wherein a Jaipur based lawyer, namely Advocate Shri Ram Sharma and his wife were attacked physically, causing them several injuries.

In view of this, Other recent similar incidents were also discussed by the Council including the attack on Telangana based lawyer and his wife.

Stating that such incidents are examples of severe threat and attack on the independence of the Bar, the minutes of the meeting reads thus:

"It was discussed and deliberated with anguish that it is extremely distressing to see that while it is the Advocates fraternity which provides justice to the citizens of the country; and for this reason they have to file and argue cases most of the time against the dreaded anti social elements and criminals, but the Advocates are themselves left without even bare minimum adequate protection against such elements. As a result of such cases, Advocates are often at the receiving end/target of such criminal and anti social elements."

The Council also noted that it is the high time when the Centre and State Government should take-up the issue with all sincerity "failing which the Advocates of the country would have to take recourse of a countrywide agitation."

According to the Council, the Advocates Protection Act will ensure adequate protection to members of the legal fraternity so that they can carry on their duties as officers of the court, fearlessly without having to worry about their and their family's safety.

"It is imperative that such Act be passed by the Parliament at the earliest as the Advocates fraternity is literally acting as one of essential wings of the justice delivery system akin to the Police and the Judiciary and while the police and judiciary have access to protection and privileges, but, the most important link between the two who argue and present the cases/matters in courts is/are not given proper protection against the nefarious activities of anti social elements." The minutes read further.