Bite the bait, you need it My Lord

June 21, 2007

By Devil’s Advocate

When was the last time a judge disposed of all the cases posted before him? The answer is 1970 and that was the last time a judge was awarded the white glove by the bar and the registry. What is a White Glove? A pair of white gloves is given by the bar and the registry of the court together when a judge disposes all the cases which are before him.

The white glove is presented at a grand function, orgainsed jointly by the bar and the bench. Introduced by the British, the system prevails in the Indian judiciary till date. Legal experts say that this is a way of telling the people the judge has clean hands.

However, this system is applicable only to the sessions judges and not judges of the higher courts. The glove will be presented on the first working day of the year. The criteria is that the judge hears only a fresh case filed in the New Year and not the ones registered in the previous years.

In Karnataka, only two judges have received the white glove so far. Justice Sabhahit and Justice Narayan Kudur received the glove when they were sessions judges. Both these judges were later elevated to the Karnataka High Court. Justice Sabhahit received the glove in 1970 while Justice Kudur got it two years before that.

Now will the Bar Council push for this system to be re-introduced? Will the judges ever want it back? This is the million dollar question. Well I personally feel that this is absolutely necessary. The judges have to bite the bait at some point of time.


Nothing is Impossible & Impossible is Nothing

June 20, 2007

By Devil’s Advocate

There is nothing new about the rise in cost of litigation in our country. When this being the case, here is a story of a man who not only did his law to fight his own case, but even won it in the end.

M S Devraj, a resident of Bangalore had lost everything when his saree manufacturing at Doddaballapur, Karnataka unit was seized by the Karnataka State Financing Corporation (KSFC). He was running this unit since 1978 and he claims that the seizure was a case of mistaken identity.

Devraj’s case was that the unit being run next to his was financed by the KSFC and since his neighbour was a defaulter, recovery proceedings had been initiated. On January 2 1988, the KSFC officials seized the unit and along with the unit belonging to Devraj.

Devraj ran from pillar to post trying to explain that by mistake his unit too had been seized by the officials. The officials were however in no mood to listen and senior official even told Devraj that his men could do no wrong.

Through his advocate, he filed a case before the civil court in Bangalore. The civil court rejected his application, following which he took the matter in appeal before the High Court. After three years of legal battle, Devraj realised that he could not afford an advocate anymore.

That is when he enrolled himself in the Sri Jagadguru Renukacharya College of Law in Bangalore. The case in the High Court was adjourned several times and for three years there was no progress. In 1994, he completed law and then decided that he would take up the case himself.

He returned to the High Court and the battle began. In the year 1997, the High Court delivered its verdict while holding that the seizure was a barbarous act. The High Court also directed the civil court to conduct an inquiry into the entire episode.

On July 15 1997, the civil court directed the KSFC to return possession of the unit within 15 days. However the KSFC decided to take the matter in appeal but their attempt was unsuccessful and the High Court rejected their appeal.

Devraj then decided that he would file a suit seeking compensation for the agony and mental trauma he had undergone. He also claimed damages for the loss of income. The Civil Judge, Senior Division while allowing Devraj’s case directed the KSFC to pay compensation of Rs 43,63,000.

Devraj now 58 years old says that the legal battle which commenced in 1988 had finally ended. He said that he was unable to afford the advocate fees and hence decided to do his law. During the years of legal battle, all the time was spent in reading citations and drafting petitions. He also says that it was his family which supported him at the time of crisis and even his food and clothing was provided by his sister, who works as a lecturer in a college in Bangalore. Devraj says that nothing is impossible as long as one is committed. He says that he intends setting up a bigger law firm and says that he would dedicate the rest of life in imparting legal education to the needy.


In the name of disposal

June 19, 2007

By Devil’s Advocate

There are many judges who sit past the court timings with an intention of disposing of a few extra cases. Sounds good and many a time, several people also give the judges a pat on their backs.

However of late, it has become fatal to the cases of many litigants. The timings of the High Court are 10.30 AM to 1.30 PM and 2.30 PM to 4.30 PM. A recent trend which is oft seen is that some of the judges sit till 6 PM. The reason given is that they intend disposing of a few cases and the more the time spent on the Bench the better.

Normally the tendency is that none of the advocates nor the litigants stay back after court timings. In their absence their cases have been called out and dismissed for default or non-prosecution. It so happened the court was hearing a matter for the entire day. At 4.30 PM the list had not moved beyond serial number one. However only the next day, did many realise that after 4.30 Pm 30 matters were called out and dismissed for non-prosecution

The lawyers argue that the judges are not doing the right thing by sitting past the court hours. They also claim that there is a notification of the High Court to this effect.

The question that is to be raised is whether under the guise of disposing of cases, can judges stab the litigant on his/her back by calling out the case in their absence. I would agree that if the litigant or lawyer was absent during working hours and his case dismissed. But this is just not fair.

The court should make it clear at 4.30 PM as to how long it would continue sitting and the cases it intended taking up. The judge cannot hoodwink the litigant in this manner and claim that on that day, he disposed of 100 cases.

It is perfectly justified if the court continues to hear a matter which it could not complete at the end of court hours. The advocate and the litigant both are prepared and they would be only too happy if the court is hearing their case with a view of disposing it. But calling out the pending list after working hours without informing the advocate or the litigant is a big NO.

And if the judges think they are doing a great favour to mankind by completing so many cases, then it is time they think again. By dismissing cases for non-prosecution after court hours, they only seem to be increasing litigation time. After the case is dismissed for non-prosecution, the first thing the advocate does next morning is file a memo seeking for recalling of the order. A good ten minutes goes into this, which in my view is a waste of time. And mind you, he wouldn’t be the only advocate filing the memo. There will be 20 others. So calculate for yourself the amount of time wasted.

 

Some advise for My Lords

-Intimate the litigant in advance if the court would continue session after working hours

-Dismissed for non-prosecution should be done only if the advocate is missing during working hours

-Do not call out cases in the absence of the parties after work hours

 

 


Justice for all-Please help the needy

June 18, 2007

By Devil’s Advocate

All of us agree that the Judges are all powerful and can do what they please. Day in and day out we discuss on the corridors of the courts that there is a need to make judges accountable. The question is who will bell the cat?

Talking about accountability, let us now shift focus the litigation pertaining to the derecognized schools. This matter is hanging in balance for quite some time in appeal before the court of the Chief Justice of the Karnataka High Court. Not only does the matter hang in balance, but also the fate of the 1000s of students and along with them their parents.

Before we proceed let us get an insight into what the matter is really about. Over 2500 schools in Karnataka were given admission on the condition that education shall be imparted in the local language Kannada. An undertaking to this effect was given by the managements, but they ended up violating it following which the schools were derecognized. The single judge bench upheld the derecognition following which the managements came up in appeal.

The matter first came up last week before the Division Bench. The Chief Justice observed that the Bench was inclined not to rule in favour of the managements as they had violated the undertaking. Chief Justice Cyriac Joseph was however loud and clear about one aspect and that was regarding the fate of the children. He said that the primary concern of the court was the students. Saying so he adjourned hearing on the matter to Friday the 15th of June. At 10.40 AM, the Chief canceled sitting. Although no reasons were assigned, it is reliably learnt that his daughter was unwell. Fair enough. The only problem was that the Cabinet which was awaiting a decision before proceeding further on the issue had to be postponed. Students awaiting admission had to wait until Monday for a final decision from the court. Barring this there were no other problems.

Then came Monday. The attention shifted to the court of the Chief Justice. Mid way through the proceedings, he canceled sitting. This time it is reliably learnt that it was due to a bad back.

The key question is whether the fate of 1000s has to hang in balance due to the problems of one man. None of us blames the Chief Justice because he did have a genuine problem. But where is the concern? The matter is not part heard. It could have been posted before another Bench taking into account the urgency involved in it.

The new rules of the High Court state that lawyers seeking adjournments will be pulled up. Why doesn’t this rule apply to the judges? Do litigants and lawyers have to stand helplessly if judges just walk out of their courts?

This is precisely why judges ought to be held accountable. Great powers may be conferred on the judges, but the fact remains that the court belongs to the litigants. If it does not serve the litigants who are made to wait endlessly, then why have a court at all?

Duty before Self and Justice for all-Real and Speedy. Well My Lords don’t just say it, learn to or atleast try and practice it.

 


Must Read-The Other Side of Justice

June 17, 2007

Devil’s Advocate 

 There is a lot that happens behind the scenes. This is not the case of every institution, but even the Judiciary. Many have spoken about it,but none have narrated it as well as Justice S S Sodhi, former Chief Justice of the Allahbad High Court in his book, “The Other Side of Justice.” 

Justice S.S. Sodhi, recalls an extraordinary case of a clash between the bar and the bench, and how the bar was made to behave. Excerpts:

 

The Allahabad High Court, the largest in India, has a history of many famous legal battles. It has often been described as “A court held to ransom by a crowd of unruly lawyers”.  An occurrence of significant consequence for the Allahabad High Court was the action initiated by the Supreme Court for contempt of court against V.C. Misra, the chairman of the Bar Council of India. This episode, as it unfolded, vividly portrayed the arrogance of V.C. Misra and his propensity for browbeating the judiciary. It all began on 9 March 1994, with the incident that took place before the Division Bench presided over by Justice Anshuman Singh, with his companion judge being Justice S. K. Keshote. The incident, as reported by Justice Keshote in his letter to the acting chief justice occurred when ‘I put a question to Shri Misra under what provision this order has been passed. On putting of this question he started to shout and said that no question could have been put to him. He will get me transferred or see that impeachment motion is brought against me in Parliament. He further said that he had turned out many judges. He created a good [sic] scene in court. He asked me to follow the practice of this court. In sum and substance it is a matter where except to abuse me of mother and sister he insulted me like anything.’ Perhaps the most unfortunate part was that Justice Anshuman Singh sat through this incident and made no attempt to protect his junior colleague. The next morning, a visibly disturbed Justice Keshote came over and narrated to me the shabby manner in which V. C. Misra had behaved. He was also upset with Justice Anshuman Singh for just sitting quiet. On my advice, he sent a report of the incident to the acting chief justice who, in due course, forwarded it to the chief justice of India. The chief justice of India, in turn, put up the matter on the judicial side and referred it to a three-judge bench of the Supreme Court, comprising Justice Kuldip Singh, Justice J.S. Verma and Justice P.B. Sawant. On 15 April 1994, a notice was issued to V.C. Misra, calling upon him to show cause why proceedings for contempt of court should be not initiated against him. The proceedings for such action initiated by the Supreme Court against V.C. Misra were based upon the letter of Justice Keshote. Inevitably, the fact that the chairman of the Bar Council of India, who was also the president of the High Court Bar Association, was facing a charge of contempt of court and, that too before the highest court in the land, evoked more-than-usual interest in Allahabad and elsewhere.Defiance marked V.C. Misra’s reply. On 10 May 1994, he came forth with a counter version and sought either discharge of the notice issued to him or an inquiry into the incident referred to by Justice Keshote. He went on to say that but for his deep commitment to judicial processes as evidenced by his status as senior advocate and his association with various law organizations, he would have adopted the usual expedient of submitting an unconditional apology. However, he pointed out that, in this case, the facts and circumstances were such that they had induced him to seek the verdict of the court as to whether he had committed contempt or whether it could be the judge who had committed contempt of his own court. That was not all. Through a separate petition, filed on the same day, V.C. Misra also specifically asked that proceedings be drawn against Justice Keshote for committing contempt of his own court. It was claimed there that it was Justice Keshote who had lost his temper and threatened Misra, which was punishable under Section 16 of the Contempt of Courts Act, 1971. According to Misra: ‘The entire Bar at Allahabad knows that I was unjustly roughed up by the judge and am being punished for taking a fearless and non-servile stand`85. Any punishment meted out to the outspoken lawyer will completely emasculate the freedom of the profession and make the Bar a subservient tail-wagging appendage to the judicial branch.’On 18 May 1994, during the pendency of these contempt proceedings before the Supreme Court, an extraordinary general meeting of the High Court Bar Association was held with none else than V.C. Misra himself in the chair. Its brief was to consider the matter of the notice for contempt of court issued to him by the Supreme Court! At this meeting a resolution was passed saying the contents of Justice Keshote’s letter were ‘not correct’. This meeting gave rise to a controversy among some members of the Bar Association. A paper signed by 147 members was received from the office of Farman Ahmed Naqvi raising the question whether or not any agenda for such a meeting of the Bar Association had been issued. To deal with this matter, a meeting of the Governing Council of the Bar Association was held on 20 May 1994, again with V.C. Misra chairing it. At this meeting, a letter purported to have been signed by 800 members was put up to affirm that the agenda for the meeting of 18 May 1994 had indeed been circulated. At this meeting a further resolution was passed that the High Court Bar Association should file a contempt petition against Justice Keshote. Leading lawyers of Allahabad strongly criticized this move and sought to dissociate themselves from it. It was perhaps as a result of this step that no petition for contempt of court was ever filed against Justice Keshote by the Allahabad High Court Bar Association.It was on 15 July 1994 that the Supreme Court, after hearing V.C. Misra and his counsel and after perusing the affidavit and counter affidavit filed by him, came to the conclusion that it was a fit case where proceedings for criminal contempt of court be initiated against him. Further, as per V.C. Misra’s prayer, his application for the initiation of proceedings against Justice Keshote for contempt of his own court was
dismissed as withdrawn.
Meanwhile, V.C. Misra had the Bar Council of India publish a booklet entitled Without Comments. Its Preface observed: ‘In the following pages [are] documents relating to two contempt proceedings drawn against Sri V.C. Misra, chairman, Bar Council of India, and president, High Court Bar Association, Allahabad, in the year 1994 for actions alleged to have been committed by him. Since the matter is sub judice before the Hon’ble Supreme Court, the Bar Council of India is producing only the copies of authentic documents. In view of the pendency of the matter in Court, we refrain from commenting either way on the merits of the cases brought against him and leave it to the best judgment of the persons in whose hands this compilation may fall.’ This booklet contained a copy of Justice Keshote’s letter of 10 March 1994 to the acting chief justice, besides the orders of the Supreme Court in the contempt matter and the affidavits and petitions filed by Misra as also minutes of meetings of the High Court Bar Association supporting Misra. Later, another booklet was published, further Without Comment.After all these events had taken place, on 7 October 1994, V. C. Misra submitted before the Supreme Court a written apology that he termed ‘unconditional’:A situation like the one which has given rise to the present proceedings, and which in an ideal condition should never have arisen, subjects me to deep anguish and remorse and a feeling of moral guilt. The feeling has been compounded by the fact of my modest association with the profession as senior advocate for some time and also being the president of the High Court Bar Association for multiple terms (from which I have resigned a week or 10 days back) and also being the chairman of the Bar Council of India for the third five-year term. The latter two being elective posts convey with its holding an element of trust by my professional fraternity with expectations of setting up an example of an ideal advocate, which includes generating an intra-professional culture between the Bar and the Bench`85. It also calls for cultivation of a professional attitude amongst the lawyers to learn to be good and sporting losers.Guilty [upon] realizing my failure at approximating these standards`85I submit my humble and unconditional apologies for the happenings in the court of Justice S. K. Keshote at Allahabad High Court on 9 March 1994, and submit myself to the Hon. Court’s sweet will.The apology tendered by V. C. Misra was not accepted by the Supreme Court. The reasons for this rejection as given in the judgment in ‘In re.: Vinay Chandra Misra’ are as follows:We find that the apology is not a free and frank admission of the misdemeanour he indulged in the incident in question. Nor is there a sincere regret for the disrespect he showed to the learned judge and the court and for the harm he had done to the judiciary. On the other hand the apology is couched in sophisticated and garbled language exhibiting more an attempt to justify his conduct by reference to the circumstances in which he had indulged in it and to exonerate [himself] from the offence by pleading that the “condition” [that] had developed was not an ideal one and were it ideal the “situation” should not have arisen. It is a clever and disguised attempt to refurbish his image and get out of a tight situation by not only exhibiting the least sincere remorse for his conduct but [also] by trying to blame the so-called circumstances which led to it`85Secondly from the very inception his attitude has been defiant and belligerent. In his affidavit and application, not only has he not shown any respect for the learned judge but [also] has made counter allegations against him and has asked for initiation of contemptproceedings against him.He has also chosen to insinuate that the learned judge, by not taking contempt action on the spot and instead writing the letter to the acting chief justice of the High Court, had adopted a devious way and that he had come to Delhi to meet “meaningful” people. These allegations may themselves amount to contempt of court.Lastly, to accept any apology for a conduct of this kind and to condone it would [be] tantamount to a failure on the part of this court to uphold the majesty of the law, the dignity of the court and to maintain the confidence of the people in the judiciary. The court will be failing in its duty to protect the administration of justice from attempts to denigrate and lower the authority of the judicial officers entrusted with the sacred task of delivering justice. A failure on the part of this court to punish the offender on an occasion such as this would thus be a failure to perform one of its essential duties solemnly entrusted to it by the Constitution and the people.Turning to the two versions of the incident, one as given by Justice Keshote and the other by V.C. Misra, the Supreme Court came to the following conclusion: ‘There is every reason to believe that notwithstanding his denials, and disclaimers, the contemner had undoubtedly tried to browbeat, threaten, insult and show disrespect personally to the learned judge.’ The court then went on to hold V.C. Misra ‘guilty of the offence of criminal contempt of court for having interfered with and obstructed the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language’. V.C. Misra was accordingly sentenced to undergo simple imprisonment for a period of six weeks. This sentence was, however, ordered to remain suspended for a period of four years but with the rider that it could be activated in case he was convicted for any other offence of contempt of court within this period. He was also suspended from practicing as an advocate for a period of three years with the consequence that all elective and nominated offices/posts held by him in his capacity as an advocate would stand vacated by him.This verdict stunned the legal fraternity. It was not just a lawyer but the chairman of the Bar Council of India who stood convicted and sentenced for contempt of court. Not surprisingly, the impact of this verdict led to strikes by lawyers. Lawyers in Delhi marched to Rashtrapati Bhavan to protest. In Allahabad, the High Court Bar Association did give a call for a strike, but it evoked little response. Significantly, there was no call for a strike by the Bar Council of India. As for V.C. Misra, as a result of his reaction to the judgment, he earned himself another notice for contempt of court from the Supreme Court, this time from the bench comprising Chief Justice A. M. Ahmadi, Justice S. P. Bharucha and Justice K. S. Paripoornam. This notice came after a press conference where he described the earlier verdict as ‘motivated, mala fide and incompetent’. He next went on to demand a public apology from the three judges who had convicted him and sought their impeachment.

Courtesy: The Tribune

http://www.tribuneindia.com/2007/20070527/spectrum/main1.htm


The Saree Code

June 16, 2007

By Devil’s Advocate

Well well well. What is this we hear now? Pleasing the Lords at the courts is not a new phenomenon. But what about pleasing My Ladies?

Well some advocates in the Karnataka High Court are under the impression that the way to a judge’s heart is through the wife. After all if the lady of the house is happy, then it is presumed that the man is happy too.

Here is the story of an advocate who did something quite extraordinary to please the lady of the house. This advocate had constructed a house and he thought he was duty bound to go to each judge’s house and invite them over personally.

So after consulting his astrologers as to which day would be auspicious, the advocate set out with the invitations. Along with the invitations, he took along with him a silk sari worth around Rs 10,000. House to house he went and gifted each of the judge’s wives a sari. Well the rumour is all the ladies accepted the sari barring one.

The ladies sure were a happy lot and so were the judges. Well without casting any motives, the news now is that this man is among those advocates whose name is on the coveted list.

Think about it


Andy Lobo won’t be Justice Lobo

June 15, 2007

By Devil’s Advocate 

It was a day of mixed reactions. Some were elated while others unhappy. The coveted list of names of those who would become judges as out and five men had made it. However let us spare a thought for Mr. Andy Lobo, who was in the race through out but was left out at the last minute.

In

A N Venugopal Gowda: He has been a government advocate for the past one and half years now. Appears before the Chief Justice and has decent knowledge of the law. A no- nonsense man and has the right temperament for a judge. Only drawback is that he is bit suspicious which may not go down too well with advocates.

Ravi B Malimath: Son of former Chief Justice of both the Karnataka and Kerala High Courts. Plenty of style but a bit reserved. Knowledge of the law could be debated. Inside story is that his name got the clearance after a lot of resistance. Chief Justice of India finally gave the stamp of approval while stating, “when I was judge in the Kerala High Court, his father was chief justice. So how can I reject him?”

Narayanswamy: Lucrative career as advocate. Extremely reserved and was in the race since day one. Comes across as a very stern man and gives an impression that he cannot smile. Could make a good judge.

A Pachapure: Rose from the dust. Was the special judge trying the J Jayalalithaa disproportionate assets case before becoming Registrar General. An absolute gentleman with a no-nonsense attitude. A master in the trial courts. Experience as Registrar General would help him adapt sooner to the writ side.

Arali Nagraj: The less said the better. Amazing PR skills. His promotion as District and Sessions judge was delayed thanks to complaints against him. His elevation as High Court judge too had run into troubled waters several times due to similar reasons. Wonder of wonders, he made it.

 Out
Andy Lobo: A bachelor with plenty of monetary backing. Great knowledge of the law. However one Supreme Court judge is alleged to have shot his elevation down. The grounds being that his mannerisms are bit weird and would not have the right temperament as a judge. The saddest part is that during a recent interaction, he was told by the Chief Justice that his name being shot down was only a rumour.

 
Nagarathna:
Daughter of former Chief Justice of India, E Venkatramaiah. The reason why her elevation did not come through this time was because she had not completed 45 years of age. The Supreme Court says that only if the advocate is extraordinary that he/she shall be appointed even if he/she is below the age of 45.