Supreme Sobbing!

 

 

Judges are condemned, their families are humiliated and they can't even speak. You are the leader of the bar. We expect you to be impartial. You may have love & affection for anyone but we want you to be fair. Don't take sides.

 

-       Hon’ble Justice Arun Mishra (as quoted by Utkarsh Anand on his twitter feed: shorturl.at/kqwHS)

 

On 14/08/2020, the Supreme Court of India passed a judgment whereby Prashant Bhushan – a noted lawyer and well-known activist found guilty of committed criminal contempt. The action has its roots in two tweets posted by Prashant Bhushan whereby he made certain imputations on functioning (or non-functioning) of the judiciary. It is his opinion that democracy failed in/by the Supreme Court.

 

There are ample opinions floated on Social Media questioning whether the Supreme Court is right in taking cognizance or Supreme Court needs to be thick-skinned and avoid such ill-founded and outrageous opinion of some ultra-left fringe element. What is astonished to me is how tweets made on a platform like Twitter which has the limited reach to common man gives reason to the Supreme Court to get teased.

 

My reading of Supreme Court judges rather judges of all higher court is, they in fact, sit in an ivory tower where the reality is blurred by WhatsApp forwards and Twitter. The rise of live court reporting thrilled the judges who used to get the gossip from second-hand sources - such as, their confidante lawyers or relatives who are practising in the Court. Now, this live-reporting and gossip-exchange provide direct access of information to judges. This makes them believe whatever is floated in Social media is the true and correct perception of the people of India.

 

Though I have no empirical data to back my belief, I believe that there is hardly 05% of Indian who has access to Twitter. And out of this 5%, most of them are busy following more mundane topics than Court reporting and rule of law. The limited interaction with some of my relatives, friends and acquaintances, revealed that most of are unaware of the tweets of Prashant Bhushan and some of them do not even know who is Prashant Bhushan!

 

I, therefore, firmly believe that the Supreme Court ought not to have amused through two tweets. In fact, we as a society, need to know the difference between real-world and social media version of the real world.

 

Rampant Corruption is a staple topic of discussion amongst Indians. Most of the Indians whether they have the first-hand experience of corruption or not, gets high in discussing corruption-ridden authority. It is my belief that they are not even serious about their charges of corruption as they still have considerable faith in the judiciary. I know there are various administrative short-comings of the judiciary, still, it ignites hope in citizens.

 

What was tweeted by Prashant Bhushan is very reasonable if we consider the superficial discussion of the judiciary on Pan Shop or Chai-shop. Everyone has their share of indulging in this national pastime called ‘non-committal – agent of change’.

 

The suggestion of Rajiv Dhavan that your Lordships may say that the Bar should be a little restrained in their criticism of the court and should be sure about facts. That in my opinion is what Your Lordships should say, is the perfect to give ceremonious closure of the controversy.

 

Opinionated I:

 

Humans are inherently opposed to authority. Though to develop peaceful society, they make peace with authority. But in this process, they develop passive contempt for the authority. Many of them choose to tease the authority. Most of the time authority remain unamused. Sometimes they want to teach the miscreant/rebel a lesson. Most of the time people stand with rebel/miscreant. Not because they endorse the view of miscreant but Due to inherent passive contempt for authority. The authority should learn to ignore such a rebel.

-MV Govind

 

 

 

 

Covid and Indian Judiciary.

It is relevant too that lawyers and judges are steeped in tradition and contained by precedent. By disposition, they are often conservative and risk-averse. My research elsewhere suggests that in the great pantheon of professions, certainly in relation to technology, only the clergy are more cautious about change.[1]

 

This is the general perception of the researchers about the lawyers and law profession in particular. Fortunately, the Indian judiciary rises to the occasion by hearing the petition virtually once the Covid – 19 lockdowns was imposed. In a way, the Indian judiciary negates the above-mentioned general perception.

 

The change from physical court to virtual court is commendable. There are many critiques who believes that the Court could do better and effectively. They missed rather overlooked one basic fact that the shift between Physical hearing to Virtual hearing is so sudden that it is humanly impossible to impart training to the staff of registry. Thus, certain teething issues will remain for initial period. Moreover, we are still lagging behind other developed countries so far as infrastructural facilities are available. If we see the numbers of Broadband-wired internet connection in household, they are very less in comparison to the mobile internet connection. Despite these hurdles/obstructions, the Indian Judiciary has done tremendous and commendable job.

 

In India, the National Lockdown was announced on 24^th March 2020. High Court of Gujarat switched to email filing of cases and video conferencing mode of hearing, with effect from 24th March, 2020; based on the modalities as directed in the order of Honourable the Chief Justice passed on 22nd March, 2020.[2] The Apex Court also issued circular on 23^rd March, 2020 inter alia, providing the guidelines relating to hearing extremely urgent matters. Most of other High Courts also shifted the working virtually. Noticeably, the Higher Courts shifted to virtual hearing on the very same day of the lockdown was imposed.

 

If we consider the workings of Judiciary in this time-line and context, it projects a different picture as against the general perception of the lawyers and other stakeholders that the Judiciary is in grinding halt. Moreover, the newspapers report are flooded with news reports of the suo-motu issues relating to Covid-19 pandemic by various High Courts as well as the Apex Courts. There are reports indicating various matters were not only heard but Judgments are pronounced during the national lockdown. It is relevant to point out that when all the Government offices were under lockdown, it is Judiciary which was working and taking up extremely urgent matters. Therefore, it is wrong to suggest by comparing the workings of the Courts with normal government offices. It is equally illogical to suggest that now when all Government offices are open the Court should also start working regularly.

 

However, I agree that the Courts and registry can do much better and can also evolve some mechanism with the active involvement of all stakeholders such as lawyers, clerks etc; so as to streamline the entire process. But while giving such advise once should not remain oblivious that certain problems relating to administration of courts such as shortage of work force, shortage of infrastructure etc, are already plagued our institutions. Therefore, we should be realistic while criticising the functioning of the court in this difficult time.

 

One would be surprised that most of the High Courts have cancelled the summer vacations. Meaning thereby, all the High Courts including their staff are working round the clock. Unfortunately, many a staff-members of the High Courts contacted Corona Virus while performing their duties.

 

I do not suggest that the shortcomings of the Court should not be voiced. But the same needs to be realistic and not just for the sake of criticizing. It is the time to appreciate the efforts while also providing the suggestions for the betterment of the virtual hearing system. We can save the criticism for some other day.

 

 

Just Like that:

 

“The pleasure of criticizing takes away from us the pleasure of being moved by some very fine things.”

– Jean de La Bruyère

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[1] Susskind, Richard (2019-11-13T22:58:59). Online Courts and the Future of Justice. OUP Oxford. Kindle Edition.

[2]https://gujarathighcourt.nic.in/hccms/sites/default/files/miscnotifications/REPORTOFMATTERSUSINGVIDEOCONF.pdf

Party-in-Person!

In the Mid August, the Air condition system of the High Court of Gujarat failed hence, we were living a nightmare with perspired Lawyer's UNIFORM i.e. Black suit, Robe and Collar band! No, ventilation point for our body to get in or get out our body heat!!! No, we the lawyers are not the only VICTIMS of this Natural Surroundings! Honourable Judges were living the worst nightmare. Though, the registry did arrange pedestal fans for the courtrooms but, they are just mute spectator of our agony. Sometimes the total number of these fans outnumber the total strength of advocates in a particular courtroom! 

As the temperament running high of the lawyers so as JUDGES'. It was the Court where Service Matters and allied matters listed for adjudication. A Party-in -Person appeared for his case and started canvassing rather, narrating the troubles in life he is facing as he believes that all the solution for his troubles lie at the doorstep of High Court. The Judge who takes/ hears the matters is thorough Gentleman and Man of knowledge. She became to make the party in person aware, a Law Professor. She slowly and firmly tried to explain the Jurisdiction under Article 226. The Party in Person ain't impress with the lecturing skill of the Judge and he did not allow the Judge cum Professor to speak by raising the voice of his arguments. Everything has its own limit so as the Judge's patience. It is one of that situation where the passion of the litigant won at the cost of the patient of the Judge. Suddenly, he attains the highest pitch of his voice and pose a question to the Judge "If i won't get justice here from the High Court then where should I go?" the Judge readily answered by saying, 'Go to UP (Uttar Pradesh)!' The Judge was emotionally carried away! In fact, the petitioner is hailing from UP which makes those words more cruel. 

We are back to normalcy. The Air-Conditioned Courtrooms make our lives more peaceful. we again started surfing the net and try to make ourselves more updated than we are updated few seconds ago. In this exercise of keeping ourselves updated I found out an article "Won't hear you in person because you might turn emotional "- CJI. Being a lawyer I was quite happy as nowadays there is an influx of Part-in-Person with whom we the lawyer rub shoulders. Professionally and economically it's not an ideal situation for any lawyer.

Avoiding the above-mentioned thoughts,  a law student in me somehow managed to desert his slumber and presented me a set of questions, Why does CJI believes that only Party in person can turn emotional? does to turn emotional a crime? Can Judge and Lawyer turn emotional while addressing the Court? Is there any law/convention which expressly prohibit the Party in Person to turn emotional while arguing? Does it not amount to a violation of the principle of Natural Justice? Does it not tantamount to violation of fundamental rights of Party in Person? 

Honour Bound in LockDown!

2020 – the Corona year provides us with an opportunity to prepare our schedule independently as we have the only worry i.e. to keep ourselves locked in our home. No office – no courts- no conferences – no travelling – no social meetings. For many who are teased with names like Tsundoku master, get a time to read, read and read. I have also utilized this time to satisfy my hunger to read the books which are piled up a long time ago. Every book has its day!

Being a lawyer, I have my own likes and dislikes the same as humans have theirs! (Pun intended). Law, Politics, Diplomacy and spirituality are subjects which I like to read more.  Honour Bound: Adventures of an Indian Lawyer in the English Courts by Sarosh Zaiwalla satiates taste buds of my mind as it carries all the subjects I like.

 It is an autobiography/memoir of Mr Sarosh Zaiwalla, a renowned solicitor based in the UK. In the foreword of the book, Mr Michael Brindle, QC writes, He (Mr Zaiwalla) was ever resourceful, ingenious and charming; so is this book. After his early days in the Parsi community in India, his breakthrough was to find a way into the English legal world. He was, as he says, the first Indian to start an English firm of solicitors in the City of London. This was a very unusual and remarkable success. He never looked back. After reading the book in one go (binge – read), I can say the narration of the book is lucid and language is fluid. The only thing I missed in the book is sarcasm and wit a lawyer generally perceived to have.

I am not sure whether I like the book because of my personal likings of the subject it covers or it is my general love for autobiographies or memoir. In 2018, I read a book viz. Legal Confidential: Adventures of an Indian Lawyer by Ranjeev C. Dubey. Where Mr Dubey provided an insight of lower courts of Delhi, the book of Mr Zaiwalla provides an insight of workings and high standards of the lucrative field of Maritime Arbitration and International disputes. The book has 12 chapters. In these 12 chapters, you would read about some political scandal and cases which attract public attention. You would read about Amitabh – Ajitabh Bachchan – Benazir Bhutto – Rajiv Gandhi – Sonia Gandhi – Maneka Gandhi – Joseph Zappia – L. M. Singhvi – Tony Blair – Hinduja Brothers et al.  The book describes Mr Zaiwalla as an important figure on the London legal scene. Coming from a distinguished legal family in Mumbai, he arrived in London in the early 1970s to qualify as an English solicitor. Undeterred by the casual racism prevalent at that time, he went on to set up Zaiwalla & Co. Solicitors, the first-ever English law firm to be established by an Indian national. With tenaciousness, he developed a strong international commercial practice, with a reputation for taking on and winning contentious, ‘unwinnable’ cases. His client list is a roll call of high-profile individuals and corporations, including the President of India, China National Petroleum Corporation, Bank Mellat and NIDC of Iran. At a personal level, he has engaged with world leaders, including prime ministers and politicians, the United Nations secretary-general, and the Dalai Lama. In October 2002, Zaiwalla was recognized on India’s Annual National Law Day by Prime Minister Atal Bihari Vajpayee for his contribution to the field of international arbitration law.

In this blog want to write about two-three anecdotes which are narrated in the book which I found interesting and worth sharing.

Amitabh, meanwhile, was a likeable character but very different from his brother. (His career was at something of a low at that time, although it was later to recover). He had a sharp memory and was always very courteous and respectful towards me. When I first met him, at the Taj Mahal Palace Hotel in Bombay – shortly after meeting Ajitabh – he was a leading Bollywood star, but I thought I ought to start the professional relationship with him on the right footing. When at that meeting he called me by my first name, I politely told him to address me as ‘sir’. He accepted this was the right professional courtesy and thereafter throughout my interactions with him, he always addressed me in this way.

Most lawyers today think of strategy as a way to ambush the opponent. I have never followed this approach. I have always been fair to my opponent, giving them the opportunity to deal with the questions of the law contended by me for my client. My first principle is always to maintain a high standard of integrity, always acting with courtesy and politeness no matter how difficult the opponent is. Even if you make an error, if you follow this rule your mistake is likely to be excused.

…but I remained calm. I had learnt early in life that whatever the circumstances, one is always to remain cool and act with humility and courtesy.

I consider these anecdotes a lesson on Professionalism. It is always beneficial to remind ourselves of the basics of professionalism. The legal profession is one of the most toxic professions. There are various reasons which make litigating lawyers more judgmental, opinionated and indifferent. The book is not entirely on the legal profession as Mr Zaiwalla had played many roles such as Unofficial diplomate (Mediator between countries). The book also talks about work cultures of different countries especially India, UK, China and Russia.

Having travelled worldwide, I have found China is the only country where an Indian is not discriminated against. A white man is favoured to an Indian man in most countries. The Chinese word for a white man is ‘devil’. In the Middle East, if you have a white assistant, they will salaam to him, pay respects to him. In Kuwait, you may have a British passport but if you’re born in India there’s still a police check. I later went to Kuwait on a Chinese international arbitration case matter and despite having a British passport I had to wait for the police check to come through at airport immigration. I was made to wait in a room for fifteen to twenty minutes before I was allowed in. I had been there two or three times before. Every time I found Indians and Pakistanis were badly treated.

The Chinese didn’t know the western world, but they were willing to learn. If Indians don’t know something, they still sometimes pretend to know, whereas the Chinese will confess their ignorance and say that they want to learn.

I learnt that when the Chinese meet a foreigner for business, they always come in a team of five or six, sometimes even more. Only one or two would speak English and outsiders could easily make the mistake of assuming those individuals were the ones in charge. The Chinese business culture was to negotiate hard but once an agreement was reached and sealed, they would always keep their commitment. Oral agreements were not considered binding and would be treated just as a step for further negotiations. However, the placing of a company’s seal along with the signature was most important to make an agreement binding.

The book also provides engaging anecdotes of many other countries. The book though subtly accuses American Legal world for bringing change (albeit negative) in the British legal system.

Our client was shocked to find out that for a one-and-a-half-day jurisdiction application, one of the defendants claimed costs of £2.5 million. He had instructed a US law firm with an office in London. Their breakdown of costs showed they had twenty-three solicitors working on the case. This was completely disproportionate and unthinkable at the start of my professional career.

Ultimately, the book also provides a critical account of British Legal society including judiciary viz a viz diversity and acceptance of ‘coloured people’ in high echelons.

I have been successful in my profession and my rosy picture of modern Britain is not always supported by the evidence we have of how black, Asian and minority ethnic lawyers have fared here. The top level of the judiciary remains largely closed to them, although things are changing (and helped in part by my seeking to address the problems I faced with the Britannia P&I club many years ago now). Bear in mind too that if only around 7 per cent of judges are from ethnic minorities, only one in seven QCs and one in three partners of law firms are women. We are seeing progress but still have some way to go. I would like the English Bar and judiciary to maintain their high standards. So, I would not favour positive discrimination for appointments of judges. For this purpose, the sole criterion of merit should remain.

The book is a must-read for all lawyers. It also helps diplomats to understand how the second channel can be fruitful if the right person is an instrumental. The book has the political side of Dalai Lama and the personal side of other great figures. For this, the book becomes un-putdownable to its readers. This book can also be adapted in Web series as it has all the elements to become a good web-series or movie. The book is also a subject of a lawsuit in India. I have legitimate reasons to believe that Mr Zaiwalla would have the last laugh. 

Opinionated I:

In the nineteenth century Benjamin Disraeli, England’s prime minister used to say, ‘Read no history: nothing but biography, for that is life without theory.’

-  Fali S Nariman in the Foreword of the Book.

Award of Lok Adalat obtained by playing fraud on Court can be quashed and the proceedings can be revived.

The Higher Courts in India are constantly encouraging alternative dispute mechanism for dispute resolutions in a range of matters including Motor Accidents Claim, Family Disputes, and Negotiable Instruments complaints (‘Cheque Bounce cases’). Most of the time the parties are encouraged to choose Lok Adalat route for their ‘timely’ dispute resolution. The data suggest that Lok Adalat proves to be a successful mechanism if ‘disposal rate’ is the ultimate determining factor.

The Cheque bounce cases are unique when Lok Adalat is concerned. Firstly, it is a quasi-criminal proceeding which entails punitive action such as imprisonment and fine. And, Secondly, the proceedings are summary in nature. Therefore, many a time the accused/convict of S. 138 ‘cheque bounce case’ takes a route to settle the dispute by giving the undertaking to pay the amount in a definitive period as agreed by both the parties. The parties are told to wait till the next scheduled Lok Adalat. In Lok Adalat an award is passed and the appeal of the convict is allowed in terms of the settlement pursis/undertaking. Many times, the undertaking remains on paper only and the signatory of the undertaking failed to comply with the order of the Lok Adalat.

The remedy in such a case, is very limited. As the Lok Adalat is governed by the Legal Services Authorities Act, 1987. Section 21 of the said act provides that Every award of the Lok Adalat shall be deemed to be a decree of a civil court and no appeal shall lie against any award of the Lok Adalat. Here comes the legal question as to what is the remedy available for a victim of Cheque Bounce case who succeeds in his complaint and, in appeal the convict undertakes to pay the amount and, on the basis of that the award is passed. The answer is to file execution proceedings as provided under the Civil Procedure Code. The execution proceedings in itself is a very tedious process. What if the victim/complainant wants to revive the proceedings in which the accused/convict has given the undertaking.

In a Judgment of Sonal Thakkar V. State of Gujarat (Special Criminal Application (Quashing) No.690 of 2018) High Court of Gujarat observed, …Having regard to the conduct of the respondent no.2 (the accused), I have no doubt in my mind that he played fraud with the appellate Court, at the time, when the Criminal Appeal No.186 of 2014 came to be disposed of in view of the undertaking, which was given by the respondent no.2 to make the  payment within  a period of one year. It is clear that the no.2 had no intention of making any payment. He, however, was desperate to get out of the jail and in such circumstances, misled the appellate Court and got himself acquitted.  And held that, Any judgment or order obtained by fraud is a nullity and non­est in the eye of law. It could be challenged in any Court at any time in appeal, revision, writ or even in collateral proceedings.

The Court ultimately quashed and set aside the award of the Lok Adalat and the proceedings of Criminal Appeal is revived.

A nervous ‘Junior Officer-of-Court’ made a wrong statement at Bar for pass over, Cost the Senior a dismissal order.

We just had our month-long vacation. The Court reopened with a fresh breed of “budding lawyers”. Lawyers who just enrolled as advocates on roll of Bar Council. Usually, the Court starts at 11 AM. We also get recess/lunch-break between 1:45 to 2:30. If any lawyer has any urgency, he can mention (or appraise) the bench at 11o’clock or at 2:30. These mentioning time is considered as “Net-practice session” for fresh lawyers. But, most of the fresh lawyers from V year law courses believe that the Moot Court competition provides a good chance to the Law students to “open up” before the Judges. As a result, most of them have no fear for making mentioning before the Court. This is a welcoming development and I considered this as a good change. Until I was told by one of the ‘learned Senior Friend’ that the “junior lawyers[1]” are taking mentioning too casually. They think that just repeating the words/request of a senior before the bench, without even reading the files or knowing the bare controversy of the case, is mentioning. In reality, the ‘junior’ must know the purpose for which he is mentioning the case; you must know while seeking urgent circulation of a matter, the urgency involved in the matter, he explained.  He also raised one serious issue that many a times ‘junior’ made incorrect statement while replying the query of the Judge. This ‘Senior’ gave me one citation[2] and asked me to read it. He told that a wrong statement of a Junior lawyer cause dismissal of an Appeal.

I must accept that there is some truth in his “opinion” about juniors. But I think it can’t be generalize that Juniors are taking Court proceedings too casually. In fact, it is about what we see and not what we read. The Courts are over-burdened; therefore, they want quick ‘mentioning’. In this quickness, the decorum of the Court and archaic language suffers. But, i must thank him for giving me the Citation which I may use against my opponent if 'his junior' makes wrong statement at Bar.

May I have your liberty:

Has the quality of bar gone down compared to the past?

Justice Chelameswar: The bar can certainly do better.

[1] The Advocates Act does not differentiate Junior Lawyer or Senior Lawyer. Please do not confuse ‘Designated Senior Counsel” with “Senior Lawyer”. Senior Lawyer is about ageing and Designation is about contribution in the field of law.

[2] 2000(7) SCALE 610; Nafar Chandra Jute Mills Ltd. Vs. United Bank of India and Ors. The Case-note of the Apex Court reads: Constitution - Pass over - False statement made by advocate for pass over - Held, nervousness would not bring to a junior advocate the thought of making the excuse of medicines - A false statement was made to keep the matter going, till Counsel could appear, which would not tolerate - Court would not tolerate false statements made to it at the Bar, whether by a junior advocate or by anybody else – Hence, appeal dismissed.