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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· CHINTAN
CHANDRACHUD
http://www.thehindu.com/todays-paper/tp-opinion/indias-deceptive-constitution/article7296086.ece
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:-
FIRST PUBLISHED: TUE,
JUN 09 2015. 10 52 AM IST
HOME» INDUSTRY
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
http://www.livemint.com/Industry/HoJN0x2q9oa6hZDdsr2APN/Banks-resort-to-Gandhistyle-protests-to-recover-bad-loans.html
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
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DRT Solutions Weekly Mail – 369th Issue
dated 5th June ’15
- Camp Sagar
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(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.
DRT Solutions Weekly Mail – 368th Issue
dated 29th May ’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(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
http://timesofindia.indiatimes.com/city/hyderabad/Headless-DRT-in-Vizag-cripples-debt-recovery/articleshow/46497509.cms
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
http://timesofindia.indiatimes.com/city/patna/Mindless-PILs-waste-courts-time/articleshow/47255384.cms
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).
DRT Solutions Weekly Mail – 367th Issue
dated 22nd May ’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(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
http://www.gulf-times.com/india/185/details/439946/are-indians-losing-their-faith-in-the-judiciary%3F
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
http://timesofindia.indiatimes.com/india/India-to-get-own-version-of-class-action-lawsuits/articleshow/47364396.cms
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.
DRT Solutions Weekly Mail – 366th Issue
dated 15th May ’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(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
http://www.bbc.com/news/world-asia-india-32716847
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.
DRT Solutions Weekly Mail – 365th Issue
dated 8th May ’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(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.
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
http://www.livelaw.in/rare-humanitarian-gesture-judge-pays-one-lakh-rupees-to-the-claimant-and-ends-22-yr-long-legal-battle/
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.
DRT Solutions Weekly Mail – 363rd Issue
dated 24th April
’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(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.
DRT Solutions Weekly Mail – 362nd Issue
dated 17th April
’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(1) Judging the Judges: Debating Judicial Conduct
The following news item is self explanatory:-
Mainstream, VOL LIII, No 16, April 11,
2015
JUDGING THE JUDGES: DEBATING JUDICIAL CONDUCT
Sunday 12 April 2015
by Kaleeswaram Raj
http://www.mainstreamweekly.net/article5590.html
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:-
FIRST PUBLISHED: FRI,
APR 10 2015. 12 22 AM IST
HOME» POLITICS
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
http://www.livemint.com/Politics/v6imyN0kKLbxt3hP6cY7eJ/Supreme-Court-bench-to-examine-company-law-tribunal.html
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.
DRT Solutions Weekly Mail – 361st Issue
dated 10th April
’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(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
http://www.cxotoday.com/story/section-66a-and-69a-10-questions-on-indias-controversial-it-laws/
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 read: Scrapping
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
