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DRT Solutions Weekly Mail – 370th Issue dated 12th June ’15

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(1) India’ Deceptive Constitution  


The following news item is self explanatory:-

June 9, 2015

India’s deceptive Constitution

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Every written constitution is supplemented by important unwritten principles: the constitutional law of all nations (whether or not they have a codified Constitution) consists of some combination of the written and unwritten. Judges interpret the abstract language of written constitutions and speak where the text remains silent. As a codified constitution grows older, it forms less and less of the constitutional law of a nation, having been supplemented by judicial decisions and political practice over time. But what happens when constitutional law diverges from the written constitution to such an extent that it is not just a ‘radically incomplete statement’ of the higher law but, going a step further, is positively misleading?

Deceptions in provisions

The Indian Constitution is transforming into a deceptive one — several constitutional provisions misrepresent what the existing constitutional position is. Most conspicuous among these are Articles 368(4) and (5), which categorically provide that there is ‘no limitation whatever’ on the power of Parliament to amend the Constitution. In the most famous case in the Supreme Court’s history (Kesavananda Bharati v State of Kerala ), the Court assumed the power to strike down constitutional amendments that altered, destroyed, or abrogated the ‘basic structure’ of the Constitution. Articles 368(4) and (5) thus have no effect, and Parliament’s power to amend the Constitution is unquestionably constrained. Similarly, Article 31B — a clause intended to protect legislation inserted into the Ninth Schedule of the Constitution ‘notwithstanding’ the judgment of any court — does not, by virtue of a succession of Supreme Court judgments, fully insulate legislation from judicial scrutiny. Instead, courts can test legislation inserted into the Ninth Schedule on the basis that it abrogates fundamental rights that form part of the basic structure of the Constitution. The deception espoused by provisions of the Indian Constitution is fairly unique. In most other nations with written constitutions, the divergence between the text and practice arises on account of the difficult of formally amending a constitution, coupled with the need to modernise a constitution’s functioning. As Tom Ginsburg and other scholars observe in the context of the U.S. Constitution, judges “have filled in the details of the vague 18th century document to make it suitable for modern life”. In contrast, the Indian Constitution has proven relatively easy to change, and has been amended more than once a year on average. The deception in India has arisen on account of the fact that even though the Indian Supreme Court has the power to strike down or set aside constitutional amendments, it has no power to repeal them, which means that many ineffective provisions of the Constitution remain on the books. Parliament is the only institution that can change the Constitution to more accurately reflect the true constitutional position, and, so to speak, force the hand of the publishers.

This discussion has an interesting bearing on one of the most important cases currently being heard by the Supreme Court — the challenge to the constitutional amendment that sought to change the way in which judges of the Supreme Court and High Courts are appointed. Under the system, as it existed before the amendment, the power to appoint judges effectively belonged to a collegium of the senior-most judges of the Supreme Court.

Parliament attempted to transform the appointments process by amending the Constitution to establish a six-member National Judicial Appointments Commission. Naturally, as it stands, the constitutional text contains provisions explaining the modalities of how the Commission is to perform its task. In the event that this constitutional amendment is struck down, we will be left with a situation in which the Constitution refers to an appointments process by a body that neither had an inaugural meeting, nor appointed a single judge.

Deception may not be seen as much of a problem for lawyers. However, it represents a major access barrier for members of civil society who, quite understandably, refer to the constitutional text as the first (and often, only) port of call in understanding what the constitutional position is. Aside from its symbolic significance, one of the benefits of a codified constitution is that it generates awareness about the processes of government.

The National Democratic Alliance government has promised to repeal hundreds of obsolete statutes, including many that have been struck down, as part of a legislative clean-up exercise. It is more perilous to envisage the same being done for the Constitution — the concern always being that any government in power will silently remove an inconvenient provision of the Constitution too, appropriately sandwiched between groups of obsolete provisions. Perhaps all that can be done, then, is to encourage people to continue reading the text of the Constitution as a starting point — but warn them that what you see is not necessarily what you get.

(Chintan Chandrachud is a PhD Candidate at the University of Cambridge.)

(2) Banks resort to Gandhi Style to Recover Loans  


The following news item is self explanatory:-



Banks resort to Gandhi-style protests to recover bad loans

United Bank and Andhra Bank have been intensifying the use of dharnas this year as soured credit in India surged to a 13-year high


Mumbai/Kolkata: They gathered in the scorching heat one recent Friday afternoon in Kolkata, a dozen bankers attempting an unorthodox way of extracting money from a delinquent borrower: public shaming.

Efforts to get Sandip Bajaj’s now-defunct lentil trading company to repay aRs.4 crore loan had been fruitless for years, so the United Bank of India employees had converged on his apartment to carry out a dharna, or peaceful protest. Led by bespectacled, sari-clad Krishna Ganguly, they stood on the street outside the concrete low-rise where Bajaj lives holding placards saying “Pay Our Dues.”

“These defaulters need to live in the society and to avoid shame, some of them are coming forward to negotiate with the bank,” said Ganguly, an assistant general manager at United Bank’s Dalhousie Square branch in Kolkata. “So far we have had six dharnas in this part of the city.”

United Bank and Hyderabad-based Andhra Bank have been intensifying the use of dharnas this year as soured credit in India surged to a 13-year high. Larger lenders like ICICI Bank Ltd are also taking additional steps to reclaim loans as they await a bankruptcy law from Prime Minister Narendra Modi’s government that could accelerate debt recoveries.

Bajaj said in an interview he was charged “high” interest rates, and that United Bank had been unwilling to negotiate terms. Ganguly said repeated calls and letters to Bajaj and a business partner had been ignored. Besides the public spectacle outside Bajaj’s apartment, the matter is also playing out in court. Efforts to contact his business partner were unsuccessful.

Special methods

“What the bank is trying to do is trying to terrorize and scare us by these dharnas, creating more mental agony for us,” Bajaj said by phone. “We want the court to intervene and settle the issue. Things can go wrong with anybody, but that doesn’t mean we are thieves.”

United Bank has the highest bad-loan ratio among its Indian peers, which may help explain why it is resorting to outside-the-box methods like dharnas. But other lenders are feeling the pinch too: ICICI Bank is restarting a special unit focused on reclaiming soured debt. State Bank of India (SBI), the country’s largest by assets, has a similar division that it’s allocating more resources to.

United Bank had a bad-loan ratio of 9.49% as of 31 March, down almost a percentage point from a year earlier. Managing Director P. Srinivas says the approximately 500 dharnas employees carried out this year in the bank’s home state of West Bengal and neighbouring Bihar have helped. There isn’t any public data tracking dharnas.

“People are getting ashamed, while others are getting worried, and are paying up,” Srinivas said. He wasn’t able to provide specific figures on how much the practice has accelerated recoveries.

Freedom fighter

The protests helped Andhra Bank recover more than Rs.500 crore in the March quarter, chief financial officer S. V. Venkatasubramanian said in an interview. The bank had a bad-loan ratio of 5.31% as of 31 March, little changed from a year earlier.

A dharna is a non-violent protest popularized by Mahatma Gandhi as he fought for India’s independence from Britain in the 1940s. It’s a practice still used by contemporary politicians: the opposition Congress party’s vice president Rahul Gandhi led a dharna in December to protest against Modi’s policies.

Back in Kolkata, Ganguly said Bajaj and a fellow director at Vaishno Commotrade still haven’t produced any payments. They stopped repaying United Bank in 2012 for money borrowed in 2010 to buy the apartment now inhabited by Bajaj and his wife, according to Ganguly.

‘Huge losses’

Besides the calls and letters, the directors had also ignored invitations to “recovery camps,” where bank officials discuss ways to repay loans with defaulters, she said. Although the bank has moved to seize the apartment, which was put up as collateral for the loan, the directors have secured a stay from court, Ganguly said.

Bajaj said Vaishno was unable to make repayments because of “huge losses” that it suffered and United Bank’s interest rates, which he puts at about 14% to 15%. The bank is demanding full repayment and unwilling to negotiate terms, he said. Ganguly declined to comment on the terms of the loan. United Bank’s base rate, which it offers to its highest-rated customers, is at 10%, its website shows.

Bloomberg News wasn’t able to locate the court records documenting the dispute, while Ganguly and Bajaj declined to share more details on the proceedings.

Government panel

Bankers are awaiting a national code that will incorporate laws for resolving bankruptcies including recovering debts from companies that go bust. The finance ministry set up a panel in August 2014 to study the legal framework and to submit a report to the government. Developing such a code will require more time because of the web of laws and adjudicatory forums governing insolvencies in India, the panel said in an interim report in February.

In the meantime, creditors rely on the nation’s Debts Recovery Tribunals that were created under a 1993 law to help financial institutions reclaim loans. The tribunals have been swamped with so many cases that it may take at least another four years to clear them, central bank Governor Raghuram Rajan estimated in November.

Borrowers can appeal the tribunals’ judgments, further delaying the recovery process. Banks had reclaimed just 13 percent of the amount at stake in the 2013-2014 period when cases were brought before a tribunal, according to Rajan. The courts should entertain fewer appeals, he said in a November speech, while recommending new bankruptcy courts and turn-around agents.

“While the government and regulator has an intent to bring about change to bring clarity and fairness in rules, it may take some time before it can be achieved,” said Hatim Broachwala, a banking analyst at Nirmal Bang Institutional Equities Ltd. in Mumbai. “Until then, banks will have to explore all options to reclaim the money they lent.” Bloomberg


Weekly Mails and DVDs are DRT Legal Guide and gold mine of practical information for the borrowers and guarantors – 

The mail recipient particularly Borrowers and Guarantors will be immensely benefited by our weekly mails and DVDs, all previous issues of weekly mails from 1st one till the last one may be viewed by clicking the links given at the top. Separate web pages have been created to contain these mails in batches of 10 so that pages open up fast. These mails are gold mine of information on current topics giving lot of practical suggestions and comments. Any new recipient to these mails must go through all the weekly mails right from the issue no 1 to the latest. If possible please spread the reference of our web site and the weekly mail among the persons, borrowers and guarantors who are the bank victims. If anyone desires to get these mails regularly, he may write to us for inclusion of his e-mail ID in the regular mailing list. The weekly mail is issued on every Friday. The particular issue of the weekly mail is first published on the web site and then mailed to borrowers, guarantors and their advocates in the country. This service is free in the best interest of society in general and litigant borrowers and guarantors in particular. We are getting huge no of mails appreciating our weekly mails.  We welcome suggestions.

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DRT Solutions Weekly Mail – 369th Issue dated 5th June ’15 - Camp Sagar

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(1) Borrowers Win against the Banks in DRTs  


Our clients have informed us as under:-

(a)   One of our clients from Barwah, MP has informed that after receipt of the notice u/s 13(2) when we sent a notice to provide copies of the relevant documents, the bank officials contacted our client. Since the bank did not have the documents, they informed that they were withdrawing the said notice u/s 13(2).

(b)   Another client from Satara, Maharashtra has informed that the OA filed by the bank has been dismissed by the DRT.

(c)   As soon as we get the communication/orders in respect of above cases, we shall elaborate in the weekly mail. 


(2) Important Development in Respect of Actions by Magistrates u/s 14 of the SARFAESI Act  


On our web site we have given an important judgment in respect of actions by the Magistrates u/s 14 of the SARFAESI Act 2002 vide link http://www.drtsolutions.com/Milind-Mahadik-Possession.htm In this connection, it is informed that the SLP filed by the bank has been rejected by the Supreme Court of India and hence this judgment has become absolute.



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DRT Solutions Weekly Mail – 368th Issue dated 29th May ’15

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(1) Headless DRT cripples Debt Recovery  


The following news item is self explanatory:-

Headless DRT in Vizag cripples debt recovery

TNN | Mar 9, 2015, 02.18 AM IST


VISAKHAPATNAM: Banks and financial institutions saddled with non-performing assets (bad debt) in Andhra Pradesh are finding it difficult to recover their money as the Debts Recovery Tribunal (DRT) at Vizag has been dysfunctional since the past couple of months.

The Vizag DRT has been headless since December 31, 2014, after the five-year term of its then presiding officer ended. It also has no registrar and is facing a shortage of debt recovery officers, making the job of recovery even more difficult for beleaguered banks and financial institutions that are struggling with NPAs running into thousands of crores of rupees.

"Around 100 cases are filed at the Vizag DRT per month, but the post of presiding officer has been lying vacant since December 31. The presiding officer is appointed by the Union finance ministry and has to be a legal luminary above the age of 45 years. The DRT needs a head immediately to look into the cases that are piling up," said Kuppili Muralidhar, president, Forum of Legal Professionals, and a senior advocate.

He pointed out that though the Vizag DRT has sanctioned staff strength of 30, it currently has only 15 part-time staffers. Out of the sanctioned strength of three recovery officers, the DRT has only one, while it has had no regular registrar since over two months.

As there is no Debt Recovery Appellate Tribunal (DRAT) in Andhra Pradesh or Telangana, the problem of banks and financial institutions is further compounded as they have to go all the way to Kolkata, Cuttack or Mumbai to get a stay order or for further appeals.

According to sources from financial institutions, many private and public sector banks have run into bad debts and have no proper forum for redressal. "While a public sector bank from AP has run up NPAs worth Rs 6,000 crore, another has bad debts worth Rs 230 crore, as per statistics from the central government. But there's no functional DRT in AP for their redressal," said an official from a public-sector bank.

When a person takes loan from the bank but fails to pay up for three months consecutively, he becomes a defaulter and his account gets classified as a non-performing asset (NPA). The bank can take possession of the mortgaged property and subsequently auction it. But due to the absence of a presiding officer and debt recovery officers at the DRT Vizag, banks are not in a position to even sell off mortgaged property. At the DRT, disputes related to home loans and other property related loans worth Rs 10 lakh and above are settled.

(2) Mindless PILs Waste Court’s Time  


The following news item is self explanatory:-


'Mindless PILs waste court’s time’

Sheezan Nezami | May 13, 2015, 12.01 AM IST


PATNA: The relationship between court and media is curious and judiciary is the biggest protector of the fourth pillar of democracy, said Justice (retd) Aftab Alam, chairman of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and former judge of Supreme Court, here on Tuesday. He said media should always play the role of a constructive critic. 

Justice Alam also said media should work independently but their responsibility should reflect in their work. He was speaking as the chief guest at Shakil Ahmad Khan memorial lecture on 'The court, media and the issue of regulation' at Indira Gandhi Science Planetarium here. He said if media, especially electronic media, have to maintain credibility, they need internal guidelines and statutory regulations. 

Talking about public interest litigation (PIL) petition, Justice Alam said, "It is a very fine judicial innovation, which is aimed at raising voice of the marginalized section of society. But, later on, the issues of urban middle class and governance came to dominate it. Mindless use of PIL hurts the public, and the court also has to pay the price as crucial hours are sometimes wasted. It is very easy to open one PIL, but very difficult to close it." 

He said many PILs are filed against encroachments, but lack of housing facility and unemployment needed to be dealt with. State's advocate general Ram Balak Mahto appreciated the media for sharing information with people and acting as the fourth pillar of democracy as freedom of expression was incorporated in Article 19(1)(a) of the Constitution. "But freedom of expression does not mean it is unlimited," he said. 

Patna high court Chief Justice L Narasimha Reddy appreciated late Shakil Ahmad for following ideology in spite of changing political parties. Justice Reddy also praised his hard work as he had started practising law at the Gaya district court and became a top criminal lawyer in a short span of time. 

The lecture was organized by Shakil Ahmad Khan Foundation in the memory of late Shakil Ahmad, a very prominent criminal lawyer, who after three decades of practice entered politics and started his political career as a CPI cadre, but later switched to RJD. He was law and minority affairs minister during Rabri's regime. Later on, he had joined JD(U). 

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DRT Solutions Weekly Mail – 367th Issue dated 22nd May ’15

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(1) Indians Losing Faith in Judiciary  

The following news item is self explanatory:-

Are Indians losing their faith in the judiciary?

19.05.15  Delhi Diary/By A K B Krishnan


The Salman Khan drunk-driving case took 13 years for a verdict. The Jayalalithaa disproportionate assets case took 18. The Lalit Narain Mishra assassination case 41 years. A judge of the Madras High Court had threatened to file a contempt of court case against the chief justice of the same court. An unseemly battle is raging between the Chief Justice of India (CJI) and the government of Narendra Modi over who should have primacy in the appointment of judges to the higher courts. 
If others are not suing, the judges are suing each other! No wonder there are more than 28mn cases pending in Indian courts, some as old as 80 years! Under-trials spend years and years in jail - some more than what the law stipulates even if found guilty - only to be freed for lack of evidence or some such equally silly reason. There indeed is something rotten in the state of affairs of the Indian judicial system. 
Times were when judges, from the sub-ordinate and district level all the way to the Supreme Court, were looked up to as near-infallible, almost super-human. Most major pronouncements were works of classic proportions not just in terms of the even-handedness of the verdicts but also for their language and literary flourish. Now even Supreme Court judgments attract criticism, many of them well-founded. 
(Only last week the apex court ruled that government advertisements should not carry pictures of political leaders except the prime minister’s and that only the president and the CJI are the other two dignitaries to be exempted from the purview of the ruling. The legal fraternity, leave alone the political class or the media, has found many loopholes in the ruling.) 
Of the 28mn pending cases, a little over 5mn are languishing in higher judiciary, that is the high courts and the Supreme Court. And if cases get that far, they are of high value to the litigants because it costs a tidy sum as court fee and still more to hire lawyers of repute. 
According to the latest survey, the high courts in India are short of judges by as much as 34%. The corresponding figure for the Supreme Court is 10. For every 1mn Indians there are only 13 judges, all told, whereas the Law Commission recommends a minimum of 50. Contrast this with the US which has 110 judges for every million people and Sweden that has 130 judges for the same number. India has 30 judges in the Supreme Court, China has 340. Curiously, India is the only country in the world where judges to the higher courts are selected by judges themselves. 
It used to be the executive’s, ie; the government’s, job to select judges until the 1980s, but because the Indira Gandhi regime during the Emergency and thereafter indulged in some very questionable methods in the appointments of judges, the Supreme Court took it upon itself through a series of judgments to keep the government out of this very vital function. 
Hence, from 1993 onwards the “collegium system” was being followed wherein the judges to the high courts and the Supreme Court were appointed by a club of brother judges.  
The net result, as we now realise, is not only the huge backlog of cases at every level but also serious allegations of bias, inefficiency and even nepotism and corruption. Suffice it to say that more and more people have begun to lose faith in judiciary with each passing day. ‘Mobocracy’ is a word that one hears in India almost every day. 
The Congress government of Manmohan Singh had made the first move more than three years ago to replace the collegium of judges with another, more broad-based, committee to select the higher judiciary. But as with most things that Singh tried to do, this one too did not get the required impetus to run the distance. It was, therefore, left to the Modi regime to complete the job and this it did within months of coming to power. Parliament approved the Constitution amendment bill to set up the National Judicial Appoints Commission (NJAC) and it was hoped that the long-awaited reforms in the judicial system would now get under way. 
As per the NJAC Act 2014, the commission will have six members. The CJI will be the ex-officio chairperson of the commission. The next two most senior judges of the Supreme Court, the federal law minister and two eminent persons (to be nominated by a committee consisting of the prime minister, the CJI and the leader of the opposition in the Lok Sabha) will complete the membership of the commission. So far so good. 
When the government approached the CJI to start proceedings on the selection of the two eminent persons the incumbent Chief Justice H L Dattu expressed his inability to do so citing the fact that the very NJAC Act has been challenged in the Supreme Court and a bench is hearing it. Eminent lawyers and constitutional experts like Soli Sorabjee, K K Venugopal and Dushyant Dave are of the view that the CJI is being wrongly advised. The government tried everything in its powers to coax, cajole and even compel Dattu into joining in, but the CJI won’t relent. 
Now the nation waits for the Supreme Court to decide if a Constitutional amendment, passed by a two-thirds majority by parliament and ratified by more than 20 states, is constitutional or not. We have no way of knowing when the court will give its decision. One can only hope that it will not have the fate similar to that of the Salman Khan/Jayalalithaa/L N Mishra cases.
Meanwhile, is it not a moot point that pending the outcome of challenge, the law as amended in the Constitution is in force today and, therefore, the CJI has to take the responsibility of the selection process? 

‘Family reunion’ is off gain
The on-again-off-again merger of erstwhile socialists into one conglomeration called the ‘Janata Parivar’ is off - again. 
There was much bonhomie and sweet-munching among the leaders of the Samajwadi Party (SP) of Uttar Pradesh, the Janata Dal United (JD-U) and the Rashtriya Janata Dal (RJD), both mainly of Bihar, just the other day as they decided to merge into one “big alternative” to the BJP with national ambitions. But hardly had those ‘laddoos’ gone down those voluble throats than the trouble has started. 
Ram Gopal Yadav, younger brother of SP supremo Mulayam Singh Yadav and the party’s leader in the Rajya Sabha, has categorically stated that there would not be any merger until the elections to the Bihar state assembly are over and done with. The younger Yadav’s statement came close on the heels of reports that the JD (U) and the RJD are also not finding common ground in possible seat-sharing for the elections due later this year. 
The SP has many reasons to be sceptical about a merger. First, it is basically a UP-centred party with little following in Bihar whereas the JD (U) and the RJD have everything at stake in Bihar. 
Next, it is by far the richest among the proposed constituents thanks to the many years in power in UP. Apart from a sizeable war-chest that the party can command when elections come round, the SP also owns lots of high value real estate within and outside the state. The Yadavs, somewhat rightfully, dread the thought of having to share all that wealth with ‘outsiders’. 
This line of thinking gets added stimulus from the fact that the wrestler-turned-politician Mulayam Singh, at 76, is not exactly his former robust self. Should anything untoward happen to him, the next in line in a post-merger party would not be Mulayam Singh’s son and UP chief minister Akhilesh Yadav or even Ram Gopal Yadav, but the likes of Lalu Prasad of the RJD or Nitish Kumar of the JD (U). For the SP that will be like allowing daylight robbery of the family jewels. 
Another reason for the SP to back away, though technical in nature, has to do with visibility. The bicycle has been the SP election symbol ever since it came into existence in 1992. In an obvious move to placate Mulayam Singh, the proponents of the merger had agreed that the new outfit will also keep the bicycle as its symbol. But they had not reckoned with the Election Commission. As per the commission records - and these are sacrosanct - the bicycle is a symbol allotted to a regional party and, therefore, must stay with a regional party. 
The commission rules also stipulate that if in a parliamentary elections any party wins more than 6% of the votes polled nationally, then it will cease to be a regional party but will gain national status. Hence, if the new ‘Janata Parivaar’ were to win 6% or more votes in the 2019 Lok Sabha polls, it will lose the symbol but will gain national status. You win some, you lose some, you may say. But the SP is in no mood for such magnanimity.

(2) Class Action Suits in India  


The following news item is self explanatory:-

India to get own version of class action lawsuits

Dipak Kumar Dash & Mahendra Singh,TNN | May 21, 2015, 01.43 AM IST


NEW DELHI: India is set to have a stronger consumer protection law with its own version of class action suits. As the term is usually defined, a class action suit is one in which one or several persons sue on behalf of a larger group of persons, referred to as "the class". However, the Indian version will not allow individuals to sue on behalf of a larger group, but will empower an authority to make rulings applicable to larger groups.

The new rules will incorporate a product liability clause to recall items that are unsafe and hazardous.

An informal group of ministers has cleared a proposal to establish a consumer protection authority, which will have the power to order recall of such items or recommend action against the companies to existing sector-specific regulators, and incorporate fresh provisions to make the grievance redress mechanism more consumer-friendly.

As per the proposal, the companies/producers would also have to pay compensation for damage to the consumers. TOI in November had first reported the proposal to set up consumer protection authority with sweeping powers, including taking up cases suo motu besides those referred to the agency. Moreover, it can investigate the cases and order action.

Sources said finance minister Arun Jaitley, who is heading the inter-ministerial group, has suggested to the consumer affairs ministry that to avoid any overlap among independent regulators, the proposed consumer protection authority should refer investigation report to the sector-specific regulator like Food Safety and Standards Authority (FSSAI), Competition Commission of India (CCI) for packaged food items and the proposed Vehicle Regulation and Road Safety Authority of India for issues relating to the automobile sector.

Consumer affairs minister Ram Vilas Paswan said many new suggestions have been made to make the law more consumer-friendly. Jaitley has suggested that consumers should be allowed to argue their case at every level irrespective of the amount. "He (Jaitley) has suggested it should be on the lines of civil procedure code (CPC) where a complainant can argue his case even up to the Supreme Court. The proposal floated by the consumer affairs ministry was not to allow advocates in cases involving an amount less than Rs 20 lakh," said a source.

TOI has learnt that the FM has also asked the ministry to include a provision where affidavit by a witness should be treated as enough evidence to avoid harassment of consumers. A provision will now be added minimizing cross examination. Similarly, the number of appeals will also be restricted to two.

Paswan said the informal GoM will meet again next week to finalize the bill.

"The consumer protection authority will fill the gap, which is missing now to deal with unfair trade practices except those covered under the CCI Act. The authority can conduct search, seizure of documents, articles and records. It can also summon delinquent manufacturers and advertisers and order withdrawal of false or misleading advertisements. It can also impose administrative fine on those found violating the law," said a government official.

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DRT Solutions Weekly Mail – 366th Issue dated 15th May ’15

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(1) “Debt” and “Damages”  

 (1)   Mr. N.K. Sharma, ex-GM(Law) and our associate has prepared the following note on ‘debt’ and ‘damages’.

(2)   Since property is a constitutional right. If one has to rank (a) Deprivation of Property and (b) Recovery of Debt, the former will rank higher.

(3)   Since none can be left remediless, the courts will be duty bound first to decide the issue of ‘No Debt Due’ pleaded by the borrower. Hence the property can not be deprived till this issue is decided by due trial by the trial court i.e. DRT.

(4)   Despite above, if the creditor desire to sale the property before completion of the trial, DRTs will be dutybound to lay down suitable conditions for the creditors.

Note on ‘debt’ and ‘damages’

(in the context of RDDBFI Act, 1993)

1. Hon’ble Calcutta High Court in Cosmosteels Pvt. Ltd. And Ors. vs Union Of India And Ors. [AIR 2005 Cal 53; (2006) 1 BC 237; 2005 126 Comp Cas 210 Cal; 2005 (1) DRTC 16; Decided on 26 February, 2004] has held as follows.

“17. The claim includes both debts and damages. It may be by way of set off or counter claim. The counter claim, if any, can be treated as cross-suit. Therefore the only snag as no determination is there about 'damages' nor included in the definition of 'debts'. Therefore although damages cannot be construed as 'debt' as per the meaning of the Act but can be included as a claim for the adjudication under the Act. It can be said simply that damages are nothing but counter part of the debt and both are claims within the jurisdiction of the tribunal under the Act. As a necessary implication 'Modes of recovery of debts' under Section 25 of the Act will be read as 'Modes of recovery of debts and damages' and the word 'defendant' will be read as 'parties'. It is expected that amendments will be expeditiously be made but till such time tribunal will be governed by the interpretation of this Court in addition to the declaration of the Act i.e. Recovery of Debts due to Banks and Financial Institutions Act, 1993 as intra vires by the Supreme Court.”

2. Definition of ‘debt’ as given in section 2(g) of the RDDBFI Act, 1993 is found adopted in SARFAESI Act vide section 2(1)(ha). Term ‘debt’ has been explained as found in both Acts by hon’ble Allahabad High Court in Modern times Industries, Ram Nagar, Kashipur through its proprietor v. DRAT, Allahabad [2012(1) DRTC 325 (All)].

3.  Therefore, the interpretation given to term ‘debt’ in the context of RDDBFI Act, 1993 by Calcutta High Court inCosmosteels Pvt. Ltd. And Ors. vs Union Of India And Ors. (supra) may be equally applied in the context of SARFAESI Act, 2002.


(2) Bad Days for Indian Justice  

The following news item is self explanatory:-

A bad seven days for Indian justice

·         13 May 2015


It's been a bleak seven days for justice in India.

In three separate cases, high profile and influential individuals - a Bollywood star, a powerful politician, and a former business baron - were allowed to walk free by appeals court despite being found guilty by lower courts.

The actor was found guilty of running a vehicle over people sleeping on the street, the politician of amassing unaccounted wealth and the former business baron of corporate fraud.

The wheels of justice grind slowly in India - more than 30 million cases are pending in its courts and more than a quarter of them have been unresolved for at least five years. Snail justice ends up benefitting the rich as witnesses can be intimidated and bought and political pressure and money power can be used to influence and subdue prosecutors and sometimes judges.

It took 13 years for a court in Mumbai to convict actor Salman Khan of culpable homicide and sentence him to five years in prison despite prosecution witnesses turning hostile. But it took two days for an appeals court to suspend the sentence and grant him bail. It helped that Khan had access to some of the best and most expensive lawyers. India has over a million registered lawyers, but a large number of them graduate with dubious degrees from indifferent law schools, are poorly educated and, according to lawyer-turned-journalist Kian Ganz, "effectively operate as fixers... hawking for work outside small claims courts or as notaries".

After 18 years, a court last September found former Tamil Nadu chief ministerJayaram Jayalalitha guilty of amassing unaccounted-for-wealth and sentenced her to four years. Some seven months later, on Monday, an appeals court cleared her of corruption charges, saying that the trial court had"exaggerated" her wealth.

The case was moved from Tamil Nadu to neighbouring Karnataka to ensure a fair trial, but that doesn't appear to have helped matters. As Supreme Court lawyer Karuna Nundy pointed out, the high court in Karnataka examined the same evidence and said in its 919-page ruling "repeatedly that the acquittal was a failure of the prosecution"


It took six years for a court in April to declare B Ramalinga Raju, former head of Satyam Computers, guilty of criminal conspiracy and cheating and sentenced him to seven years in jail. A month later, on Monday, the appeals court accepted a defence plea that he had spent 35 months in jail, a "substantial part" of his term, and granted him bail after suspending his sentence.

To be sure, the three rulings really do not mark any sea change and have just happened to come around the same time. It is also true that India's higher courts routinely revoke orders of lower trial courts. For years politicians have evaded corruption charges and the rich and famous have escaped criminal liability through "high-priced lawyering".

At the same time, many believe, the recent rulings are - again - an indictment of India's ailing and unfair justice system which is heavily loaded against the poor, and shabby investigation by the police.

Thousands of undertrials languish in Indian prisons for lesser offences unable to afford bail. Judges are also often blamed for being anti-poor. After the Supreme Court granted bail to Jayalalitha last year, Supreme Court lawyer Rajeev Dhavanwrote tellingly about bail discrimination: "Bail for as many is good, but applying it differentially is not. We do not have clear principles to guide bail decisions - especially in post-conviction cases, where judges look at the crime and behave totally with subjective arbitrariness against the poor."

The recent rulings reminded me of a highly acclaimed recent indie film called Court - possibly the best Indian film of the year so far - which astutely skewers the country's discriminatory and outdated justice system. A part-time teacher and social activist is hauled to a court on trumped up charges of instigating a sewage worker to kill himself after listening to one of the activist's incendiary songs. The case grinds on in drab courtrooms with no end in sight, and effectively destroys the activist.

Of course, as Nick Robinson, a fellow at the Harvard Law School's Program on the Legal Profession and at Delhi's Centre for Policy Research, tells me, there are often good judges trying to do the right thing. "But politics and money is so embedded in the system that it clearly tilts the deck in favour of the powerful," he says. "I also think some judges worry that if they are seen as overly-punitive on those with power, then there might be a backlash against them impacting their careers or the authority of the judiciary."

India needs more judges, more and better educated lawyers and a thorough repair of what academics Devesh Kapur and Milan Vaishnav call the "dilapidated and clogged" plumbing of its courts. Otherwise, as they warn, the judicial process itself will remain the punishment, an enduring shame for the world's biggest democracy.


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DRT Solutions Weekly Mail – 365th Issue dated 8th May ’15

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(1) Perfect Trial in DRTs in SAs   


We have repeatedly emphasized this aspect in several weekly mails but still proper attention is not being paid by the DRT advocates to this important aspect. Accordingly the litigant borrowers are suffering greatly. The relevant factors are as under:-

(a)   In respect of SA, appeal to DRAT is virtually impossible due to the deposit condition of 25%. Hence the perfect trial in DRT becomes absolutely essential otherwise whole case is lost for ever.

(b)   On account of above, we have repeatedly advised that the constitutional validity of the said deposit condition should be questioned but this has not yet been done.

(c)   The Supreme Court has repeatedly laid down that the High Courts should not interfere particularly when the facts have not been established by the DRTs.

(d)   In this cotext, the ‘No Debt Due’ situation brought about by the Counter-claim all the more needs perfect trial.

(e)   In view of above, the judicial process in DRT calls for Perfect Trial and there is no alternative or option. If it is not done the litigant borrowers will continue to suffer injustice and the DRT advocates will be solely responsible professionally.


(2) Heavy Pendency in DRTs   


The DRTs are now getting heavily burdened and the situation is tending to be similar to the civil courts. We have predicted the same several years back and it is bound to be so for the simple reason that DRTs are trial court and due to application of Principles of Natural Justice, perfect trials if demanded has to be done. All this will need time and accordingly the pendency will go up. Further there is heavy shortage of DRT Judges. Another important factor is that despite original recommendation by the RBI in 1984 i.e. more than 30 years back that the DRT Judges and Advocates should be experts in Banking, Industry and Finance, we have not yet started any training program for the DRT Judges and Advocates in the said field of Banking, Industry and Finance. Considering all these factors, the DRTs are groping in dark and hence the pendency will continue to increase day by day.

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DRT Solutions Weekly Mail – 364th Issue dated 1st May ’15

All Weekly mails right from 1st Issue to latest, click links on top of this page


(1) Judge Pays One Lakh to Claimant  

The following interesting news item is self explanatory:-

Rare Humanitarian Gesture; Judge pays One Lakh Rupees to the Claimant and ends 22 yr long Legal Battle

On April 29, 2015 by Adv Boris Paul


The Kerala Judiciary is once again in headlines for the rare humanitarian gesture of Sri S.Manohar Kini, Judge, Motor Accidents Claims Tribunal, Palakkad. During February 2015, a young Munsiff, Sri Aravind V.Adiyodi hit the headlines through his gesture of clearing the debt of a poor bedridden man with Canara Bank in a Lok Adalat organized at Vadakara.

Sundaran, a resident of Vakkeelparamb at Puthupariyaram in Palakkad lost his seven year old son in an accident on 10th May, 1993. A claim for compensation was preferred before the MACT, Palakkad which passed an Order after four years directing the Insurance Company to pay a compensation of Rs.98,700/-. The Insurance Company handed over Rs.20,000/- directly and Rs.90,308/- was deposited in a Nationalised Bank through the MACT. Due to a clerical mistake, the amount was deposited in the OP Number of another person, Radhakrishnan. Radhakrishnan withdrew the whole amount in three instalments with the assistance of three lawyers. Without knowing this, Sundaran moved the MACT against the Insurance Company claiming the amount and the legal battle lasted for several years. At last he approached the High Court seeking a remedy for his grievance.

An inquiry by the Tribunal revealed that the documents related to the said disbursal of amount to Radhakrishnan, including the Cheque Register were lost. The Judge asked the Bar Council to initiate proceedings against the three lawyers who assisted Radhakrishnan to obtain the amount through proceedings at MACT. Meanwhile Radhakrishnan died in a road accident. In another proceeding, the MACT had passed an award in favour of the wife of Radhakrishnan directing payment of compensation of Rs.88,868/-. Sundaran moved a petition to allow him to recover the amount awarded to the wife of Radhakrishnan. The Tribunal dismissed it as it is impossible under law. Since deceased Radhakrishnan had no personal assets in his name, the Tribunal was unable to sieze it and recover the amount. The Tribunal came to a conclusion that there exists no legal means for Sundaran to recover the amount from deceased Radhakrishnan. It is at this stage, Judge Sri S.Manohar Kini assumed office as MACT, Palakkad.

Normally, the pain of a father who lost his seven year old son and the 22 year old legal battle and hardships he faced to get the compensation amount would hardly touch any Judge’s heart. Though Judge Sri S.Manohar Kini was never part of the legal battle involved here, the history of the case and the pathetic situation of Sundaran made him to exhibit a rare humanitarian gesture through a special Order paying Rupees One Lakh to Sundaran from his own pocket. This unexpected gesture of the Judge put an end to the prolonged sufferings experienced by Sundaran and his family.

Judge, Sri S.Manohar Kini became more revered when he said, “Being part of the judicial system, I too hold the moral responsibility to end the misery of the hapless victim of clerical error. The public should never lose their faith in judiciary and hence I paid the amount. I believe that the court of conscience is above the rest of all judicial institutions.”


(2) SBI Recovery of 30 Year Old NPA  

The following  news item is self explanatory:-

Never say never: SBI cheers recovery of 30-year-old NPA

State Bank of India recently recovered Rs 21 crore from a private limited company, which had taken loans in 1981.

By: Shayan Ghosh | Mumbai | April 30, 2015 1:39 am

At State Bank of India’s (SBI) headquarters in Mumbai, the recovery department was in a celebratory mood last month. As the news of recovering from an account after an almost 30-year-long legal battle came in, a small party was organised to felicitate the case officer who oversaw the recovery. The bank recently recovered R21 crore from a private limited company, which had taken loans in 1981. The account then turned into a non-performing asset (NPA) in March 1983.

According to bank officials, the suit for recovery was first filed in 1986 in Bombay High Court, after which the company engaged the bank into multiple litigations in the Supreme Court, DRT, DRAT and Bombay High Court.

“There were a total of 19 judgements in favour of SBI between 1992 and 2014,” a banker said. Last two judgements that drove the recovery were the High Court verdict on a writ petition of April 2014 and the rejection of an interim relief by the presiding officer of a DRT in the appeal of October 2014.

“Even when the litigation continued for close to three decades, the bank did not give up hope of recovery. In fact, the case officer sought SBI’s permission to engage a particular lawyer with great track record in recovery disputes,” said a banker.

This is part of the bank’s initiative to recover from accounts which have been taken off the balance sheet or have been written off. According to SBI’s analyst presentation, the bank recovered R602 crore from written-off accounts, up 85% from the same period last year.

“Just because the loan has been taken off our balance sheet does not mean that recovery procedures stop,” an official said, adding the bank has a special team that looks into accounts taken off the balance sheet.

This case highlights the delay in the debt recovery through the legal system. Even as bankers rely on debt recovery tribunals (DRTs) as a legal alternative to recover their bad loans, RBI data show loans worth more than R2 lakh crore were pending at 33 tribunals till FY14, up from R1.43 lakh crore in FY13.

Bankers say even when a case is resolved, the DRT issues recovery certificates to the lenders and takes close to a year to locate the assets of the borrower and then find buyers

Reserve Bank of India (RBI) governor Raghuram Rajan had recently said the amount recovered from cases decided in 2013-14 under DRTs was R30,590 crore while the value of loans sought to be recovered was R2.36 lakh crore.

Thus, only 13% of the outstanding NPAs in the tribunals were recovered in FY14.


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DRT Solutions Weekly Mail – 363rd Issue dated 24th April ’15

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(1) Counter-claim in SA, Bank should approach DRT for Permission rather than Borrower for the Stay 


After filing of the SA, the Borrowers are advised to obtain Injunction. In the matter of those SAs where there is counter-claim and ‘No Debt Due’ situation, we differ with this approach due to following reasons:-

(a)   When the counter-claim is much more than the claim of the Bank, there is ‘No Debt Due’ and hence until and unless the matter is decided by the DRT, no recovery action can be implemented by the Bank.

(b)   Hence the Borrower need not approach DRT requesting any stay or injunction.

(c)   Instead if the Bank desires to initiate any recovery action, it should approach DRT for the permission to do so and for such permission, the DRT may lay down suitable conditions including 25% deposit of the counter-claim amount.

(d)   It is needless to mention that the property is a constitutional right. In several rulings, the SC has said that the matter of deprivation of property ranks higher than the recovery. Further SC has also said that nobody can be left remediless. Hence once proper pleadings have been made, court fee deposited and SA duly filed, none (including DRT or even higher courts) can comment on the ‘No Debt Due’ situation. There is no option for the DRT but to decide the matter after due trial. At the most the trial could be expeditious but no shortcuts can be adopted.

(e)   We have been advising above for several years but its not being followed and pursued. We once again request the DRT Advocates to do so in the best interest of justice for the Borrowers.

(2) No New Judges till SC verdict on NJAC 


The following news item is self explanatory:-

Updated: April 24, 2015 00:51 IST

No new judges till SC verdict on NJAC, assures Centre

The Centre told the Supreme Court on Thursday that the National Judicial Appointments Commission may be constituted before May 11, but assured the apex court that it will not appoint new judges till it gives the green signal to the law.

In a brief hearing before a Constitution Bench headed by Justice J.S. Khehar, the Centre said the two eminent persons, who will be members of the six-member NJAC, would be nominated very soon.

The government was responding to anxieties voiced by the Bench on Wednesday about who would take care of immediate issues concerning the judiciary when the NJAC is under the scanner.

Justice Khehar had highlighted that there are several additional judges in High Courts across the country whose terms would end before the Constitution Bench could decide on the validity of the NJAC law.

In such cases, Justice Khehar had said an interim arrangement or body needed to be constituted to deal with these judges as they could not be “asked to go home” considering the acute shortage of judges. On Thursday, Attorney-General Mukul Rohatgi suggested that the government could chip in by quickly nominating the two eminent persons, and thus, making the NJAC functional.

The Attorney-General, however, assured the Bench that no fresh appointments would be made by the NJAC during the pendency of the Supreme Court proceedings without asking this Bench first.

Acknowledging this assurance, Justice Khehar said it would be embarrassing, especially for the eminent persons, if fresh appointments are made now and the Supreme Court eventually found the NJAC invalid.

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DRT Solutions Weekly Mail – 362nd Issue dated 17th April ’15

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(1) Judging the Judges: Debating Judicial Conduct 


The following news item is self explanatory:-

Mainstream, VOL LIII, No 16, April 11, 2015


Sunday 12 April 2015

by Kaleeswaram Raj


The Supreme Court Bar Association had proposed a resolution demanding “fair treatment of lawyers” by judges. The notice issued recently by the Association, which consists of members from almost all the States in the country, says that the lawyers must receive respect “irres-pective of their standing and seniority”. It also protests against the “hurried and selected manner” in which some Supreme Court Benches hear the cases. (The Hindu, March 3, 2015) The subsequent circular issued by the Association on March 10, however, says that “the emergent general body meeting (scheduled for March 10) is deferred” on the basis of the assurance given by the Chief Justice to consider the grievances of the bar”.

The unusual motion by the body of lawyers at the Apex Court level poses significant questions which transcend the legal profession. The internal democracy within the Court is a condition precedent for democracy outside. Without justice within, no institution of justice could meaningfully exist. The status quo doctrine is bound to be reactionary when reformation is an imperative. True, that Kafka in The Trial was pessimistic when he said: “(I)t never occurred to the advocates that they should suggest or insist on any improvements in the system, while ...almost every accused man, even quite ordinary people among them, discovered from the earliest stages a passion for suggesting reforms.“

Exposure is the first step towards any radical reformation, for sunlight is the best disinfectant. Max Boot, the former Associate Editor of Wall Street Journal, authored a classic work on “the injudicious judiciary” in the US with a striking title—“Out of Order—Arrogance, Corruption and Incompetence on the Bench” (Basic Books, 1998). Boot was supported by a confessional foreword written by Robert Bork, a former Federal Appeals Court Judge, who said: “Our courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform, a reform that must be structural as well as intellectual and moral.”

The judicial misbehaviour and misconduct are not generally discussed in the Indian media, though there is nothing improper or illegal in dealing with them. Again, in the words of Max Boot, “Anyone who wants decent democratic Government ought to be concerned about judges who misbehave or exceed their authority or issue unjust decision.” Therefore, there is a need for “unlimited discussions” on the topic.

The conduct of the judges in India is not guided by any statute or even the Constitution. However, move for the best practice within the judiciary at a global level has been on full swing over the years and India continues to be a party to it. After the Bangalore declarations on judicial conduct (1998-99) and the international round table meeting of the Chief Justices from various jurisdictions at The Hague (2002), judicial morality is no more uncertain or abstract. The resolution “Restatement of values of judicial life” (1998-1999) was adopted and ratified by the Indian judiciary as well.

Article III Section 1 of the US Constitution, says that the judges shall hold their offices “during good behaviour”. The US has a highly politicised judiciary. Justice Frankfurter was active in President Roosevelt’s election campaign (1940). Justice Brandeis was the designer of President Woodrow Wilson’s ‘New Freedom Platform’ which thrived for economic and political development. Justice Joseph Story sought active support from Congressman Daniel Webster for a few Bills connected with the judiciary. (See: Drew E. Edwards: California Law Review, Vol. 75, Issue 3, Article 18)

In India, even during the pre-collegium phase, the judicial appointments were not as political as in the US. After the invention of the collegium system in 1993, the process was relatively more ‘apolitical’, though it always remained opaque and even undemocratic. Paradoxically, the country was fortunate enough to have a system which was not akin to that in the US.

But that does not erase the need for evolving a more egalitarian judicial culture within and outside the courts in India. In Tarak Singh ( 2004) the Supreme Court held that the “integrity (of the Judges) is the hallmark of judicial discipline” and cautioned that “wood peckers inside pose a larger threat (to the system) than the storm outside”. In Remesh Chand Paliwal (1998) the Court wanted the judges to be “hermits”, who have “no desire or aspiration, having shed it through penance”. In Daya Shankar (1987), the Apex Court clarified that judicial officers cannot have two standards, one in the court and another outside the court. Anil Rai (2001) was an introspective verdict on delay in pronouncing judgments.

In-house Procedure

Regulating judicial conduct by legislative measures is a difficult task. It also runs the risk of impairing judicial independence, which again is a basic feature of the Constitution. However, the Supreme Court has evolved an ‘in-house procedure’ to deal with the complaints related to misbehaviour of the judges of the Supreme Court and High Courts. A five-judge committee, appointed by the Supreme Court, formulated a mechanism for suitable remedial actions when there are “proved instances of misconduct or misbehaviour” against the judges in the higher judiciary. The report on this ‘in-house procedure’ was submitted by the committee on September 31, 1997 and was adopted with minor changes by the full court meeting of the Supreme Court on December 15, 1999.

As per the in-house procedure, the complaints which are “not frivolous” and are “unconnected with the decision in a matter of adjudication”, could be enquired into by a fact-finding commission consisting of judges only. On finding that there is serious misconduct, the Chief Justice of India (CJI) can even ask the judge concerned to resign or seek voluntary retirement. Also there could be “advice” to the concerned judge which would form part of the records.

But the in-house arrangement has become dysfunctional by lapse of time. Even while it functioned, the activities were in oblivion and as such no instances of institutional corrections were known outside. I would plead for a regular mechanism that organically tries to avert even the possibilities for genuine complaints or allegations from the Members of the Bar or from the public. A permanent committee, consisting of the representatives of the Bench and the Bar at the Supreme Court and High Court level, would go a long way in tackling the issues.

Bar Associations cannot pass resolutions against the conduct of the judges for the same would amount to contempt, as indicated by the Supreme Court in Ravichandra Iyer(1995). Therefore, the corrective mechanism should be one that is able to meaningfully avert a situation in which the Associations go for such resolution. A preventive strategy is more useful and contempt action is no solution. A fault-free system for judicial appointment marked by openness, fairness, objectivity and transparency may lead to fundamental changes. There is a further need for continuing education in legal, social and moral facets.

Publicity, the Soul of Justice

There are better scientific devices to ensure egalitarian behaviour on the Bench. An open court system needs to be truly open in the digital age. Even in the sixties, the Supreme Court has extracted the decision in Scott vs Scott that quoted Bentham on administration of justice:

“In the darkness of secrecy sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying, under trial.” (Naresh Sridhar, 1966)

A live recording of the Court proceedings may go a long way in ensuring proper judicial conduct in an open adversarial judiciary. By ensuring visibility, accountability is ensured. While John Leo complains that “(the court) remains invisible to most Americans”, in the UK live telecast of proceedings in important constitu-tional cases is quite common. There is a need to emulate and expand the UK model in our country.

Senior Syndrome

The demand in the Bar Association’s notice for accommodation in court “irrespective of standing and seniority” and the protest against “selective hearing” call for more serious debates. Marc Galanter and Nick Robinson in a Harvard Law school paper demonstrate that a few senior lawyers in India constitute “a legal elite flourishing in the era of globalisation”. The Galanter-Robinson study inter alia says that “Grand Advocates in India are known for securing hearing for their clients”. According to them, in India “seniority works differently for Judges than lawyers” and “the Grant Advocates enjoy esteem of the Judges who give them more face time”. The study adds that a few advocates in India “enjoy incomes that rival the most highly remunerated lawyers anywhere in the world”. They are also “notoriously inaccessible”, according to the paper. The authors also quote a lawyer saying that “the face value matters” in admission matters before the Supreme Court.

The judicial system is too serious a matter to be left to lawyers or judges alone. It is high time to have an institutional introspection on the question of seniority and right to pre-audience or any other privileges for any category for that matter. The conventionally perceived equality among the Bar members has to be revived for maintaining institutional fairness. Not the face, but the submissions should matter. Not the person, but the content should deter-mine the outcome of litigation. The admixture of feudalist and capitalist traits imposed upon the system should wither away. The equality clauses in the Constitution should begin with constitutional courts and the legal profession. The notice issued by the Supreme Court Bar Association is therefore an eye-opener to those who run the show, since we need at least the shows for the sake of democracy and also for its future.

Kaleeswaram Raj is an Advocate of the Supreme Court. He is also practising in the Kerala High Court. He authored The Spirit of Law. He can be contacted at e-mail:kaleeswaramraj@ gmail.com


(2) SC Bench to Examine Company Law Tribunal


The following news item is self explanatory:-



Supreme Court bench to examine company law tribunal

A constitution bench of the apex court to be set up later this month will consider the validity of the tribunal, CJI Dattu tells attorney general Mukul Rohatgi


Shreeja Sen  


New Delhi: A constitution bench of the Supreme Court to be set up later this month will consider the validity of the National Company Law Tribunal and its appellate body, chief justice of India H.L. Dattu told attorney general Mukul Rohatgi on Thursday.

On 8 April, Rohatgi had urged the chief justice to constitute the bench on grounds that cases before the Company Law Board and the Board for Industrial and Financial Reconstruction were stuck because of the pending NCLT case.

The apex court had on 18 February referred certain aspects regarding the two tribunals to a constitution bench of five judges, saying that there were substantial questions of law that were needed to be addressed.

In particular, the three-judge bench headed by justice T.S. Thakur, next in line to take over as the chief justice, was critical of the manner in which the members were selected to these tribunals. He said that in the proposed model for NCLT, a member would not get sufficient time to gain understanding of the tribunal’s functioning.

The court had said then that these provisions gave the government power to suspend and remove members and heads of NCLT and NCLAT.

Interestingly, the two tribunals themselves wree held to be valid by a five-judge bench of the apex court in 2010. The court had at the time held that the creation of these two tribunals and their performing functions of a high court were “not unconstitutional”. However, the court also ruled that the structure and composition of the tribunals needed revision. The bench gave directions to that effect as well.

The Madras Bar Association, a group of practising lawyers in the Madras high court pursuing this litigation, in its petition had contended that the government had failed to include these changes in the newer drafts of the law.

Tribunals have often been called an avenue for post-retirement benefits for judges and Indian Administrative Services officials.

They are often considered to dilute the power of the judiciary. A five-judge bench, in September last year, found that the National Tax Tribunal Act was unconstitutional.

Recently, speaking at a conference, prime minister Narendra Modi said that there were at least a hundred tribunals across the ministries. He urged the judiciary to review the functioning of tribunals. “I would want that the senior judges of the Supreme Court sit and discuss whether tribunals help in delivering justice, or if it creates an additional barrier, whether so many tribunals are required...tribunals take up a lot of budgetary allocation. If the budget for tribunals goes to courts, courts will become more powerful,” he said.

“The problem with the tribunalisation of India is that the seriousness regarding a case that is shown before a court is at times diluted before a tribunal. The members, often retired judges, perhaps do not hear the cases with the same seriousness. When the rubber hits the road, the true test is to ensure that people who are dedicated, committed and competent form part of these tribunals. It is not about the number of tribunals. We’ll support the capacity building. To practitioners of law, it doesn’t matter if there is a dedicated tribunal or a high court, what matters is the people who will hear the case,” said Bharat Anand, corporate and commercial law partner at Khaitan & Co, a law firm.

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DRT Solutions Weekly Mail – 361st Issue dated 10th April ’15

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(1) Death of Section 66A 


The following news item is self explanatory:-

FAQs: The Death of Section 66A

by Prasanto K Roy    Mar 27, 2015



One reason is the slow pace of the judiciary in India, where many cases take decades, and three years is considered unusually fast. Even the specially fast-tracked Nirbhaya rape case took over a year, and appeals are still on in its third year. But the bigger reason was that the government of the day, first the Congress-led UPA, then the BJP, aggressively defended 66A in the supreme court.  It appeared that any government in power wanted to retain 66A, unnecessarily prolonging the battle.

             Also readScrapping Sec 66A Won’t Bring Total Freedom To Cyber Space

So why are free-speech campaigners still unhappy?

The petitioners had challenged not just 66A but other provisions introduced in the 2009 amendment, notably 69A, which allows the blocking of websites. Hundreds of websites and web pages have been blocked under 69A, including, in 2013, a government website. One petitioner, Mouthshut, has received over 800 ‘takedown’ orders for the consumer complaints posted on its website.

What is section 69A?

Section 69A allows the government to block online content that “threatens the security of the state” or fulfills other conditions.  The supreme court order of March 24 upheld the section, noting that 69A is a “narrowly drawn provision with several safeguards”. However, it clarified that the blocking order must be specific and clear and should come from the government, or from a court.

What now? Is free speech assured? Can anyone say anything? 

Post 66A, arbitrary arrests for ‘offensive statements’ should reduce, and online free speech will be easier. However, there are provisions in other laws for moderating hate speech. For instance, section 295A of the Indian Penal Code provides for a similar jail term for “acts intended to outrage religious feelings”. However, such provisions are less vague and arbitrary, and thus less prone to misuse, than 66A was. Also, 69A remains, which allows the blocking of specific web sites or pages with a government or court order.

(Prasanto K Roy is Head of Media Services at Trivone Digital Services)


(2) 25 Years to get verdict of court even in a Simple Case 

The following news item is self explanatory:-

After 25-Year Court Case, Indian Show Can Go On

Kerala | Nida Najar, The New York Times | Updated: April 09, 2015 10:22 IST


NEW DELHI:  In most cases, "temporary" can mean days, weeks, even months. But for one district of Kerala, a state in southern India, it meant a quarter-century.

Now, 25 years after the authorities in the Kottayam district of Kerala issued a temporary order prohibiting the staging of the rock opera "Jesus Christ Superstar," which was upheld by the state government, India's Supreme Court ruled on Tuesday that the show can go on.


An adaptation of the enormously successful Andrew Lloyd Webber-Tim Rice musical was to have been performed twice in two days in 1990 by students at Corpus Christi High School of Kottayam. But the second performance was halted - minutes before the curtain was to go up, according to a lawyer handling the case - under a temporary ban ordered by the district administration on the grounds that allowing it could hurt religious feelings and lead to a breach of peace.

The school's founder, the Indian educator Mary Roy, filed an appeal at the time, and the Supreme Court eventually allowed the play to be performed one more time, in 1991, despite the ban. After that, Roy and a friend, the Rev. Abraham Vellamthadathil, a college principal, took up the case.
On Wednesday, Vellamthadathil, now 79, was subdued in the aftermath of his hard-fought victory. He and Roy, 81, the mother of the novelist Arundhati Roy, are both retired. The possibility of an imminent school production of the play appears dim, though Roy said that she hoped the school would perform it this year.

"This is the tragedy of our legal system," Vellamthadathil said. "There is unimaginable delay in a getting a case disposed of here."

The case shuttled between the government and the Kerala courts for a decade before it went to the Supreme Court. Shridhar Chitale, the lawyer in the case, argued that the ban was only temporary under the law used by the Kottayam authorities, and said that much had changed in India, including the availability of the Internet, since then.

"The play has been shown in other parts of India, in other parts of the world, including the Vatican," Chitale said. "Why should it be banned in one district? You could sit in Kottayam district and access the play online."

The original order reflected a tendency in India to suppress performances and other works that could offend religious or minority sensibilities or are deemed controversial. Last month, a court blocked the broadcast of "India's Daughter," a BBC documentary about the 2012 gang rape in Delhi. Last year, Penguin Books India pulled a book on Hinduism by the scholar Wendy Doniger from shelves after protests and a lawsuit from a Hindu group. And "The Satanic Verses," Salman Rushdie's 1988 novel, which was deeply offensive to some Muslims, was banned in India.
Roy said that she did not think that the Christian community was deeply offended by "Jesus Christ Superstar." She pointed out that only about 20 people came out in 1990 to peacefully protest the school's sole performance.

"Very few people in Kottayam speak English, let alone sing rock," Roy said. "So it is just out of the question that the rock opera had in any way agitated or moved them."

Twenty-five years later, she said, there was even less chance that people were paying attention.
"It was so long ago," Roy said, "it's all been put to rest."

© 2015, The New York Times News Service


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