Ambiguity in Preferential Voting Rights

Disha Jain

Preference shareholders are entitled to number of benefits as opposed to ordinary shareholders due to their position in the company. The foremost benefit being that they will be paid first when the company makes a decision of the payment of dividends. They are not entitled to voting rights, which is enjoyed by the ordinary shareholders because the preference shareholders are not in a perilous position. In fact, this is a bargain made in return of an assured income

 

Section 43 of the Companies throws light on one of the privilege of the preference shareholders.  It provides that on winding up of the company preference, the amount paid up on preference shares must be paid back before anything is paid to the ordinary shareholders.  Thus, the first preference is to be given to the preference shareholders as regards the payment of shares. It could be seen that they are given preference even on the winding up of the company and their chances of being wiped out is extremely low, therefore they should not be given voting rights if dividend is not paid for 2 years.

 

The trouble lies in the details of the Companies Act, 2013. Section 47(2) gives the same voting rights to the Preference shareholders as to the ordinary shareholders. The provisions of voting rights are extremely useful and it is necessary that its limitations and disadvantages are given due treatment.

 

The second proviso to Section 47(2) is equivocal. It offers no clarification as regards the meaning of ‘two years’ (whether consecutively or any two years). Clause (2) of Section 47 delineates that preference shareholders shall have a right to vote on those resolutions which affects the rights directly attached. This rights granted by this section to preference shareholders would definitely require the interpretation of whether the rights are directly attached to the preference shares or they are ancillary to it. Thus increasing the rounds of litigation.

 

One way of looking at this is that the ordinary shareholders are the true representatives of the company and hence their position should be shown deference. The giving of equal treatment to the preference shareholders as regards voting rights would defeat the purpose of classification. Giving additional voting rights would be prejudicial to the interests of the class of the preference shareholders who have been duly paid dividend and thereby not given voting rights, especially when the ordinary shareholders have also not been paid the dividend.Alikes should be treated alike.

 

The preference shareholders are called so because they get paid first, they preferred over the ordinary shareholders. Thus, the phrase ‘Once aKing, always a King’ doesn’t hold good for the preference shareholders.Therefore, if they are prioritized in the payment of dividend, it would not be just if they have the same voting rights in the decision making of the company. Finally, the purpose of issuance of preference shares is to ensure that ownership is not diluted. Voting provisions will enable the preference shareholders to extort control from the ordinary shareholders.

 

Providing voting rights to the Preference shareholders would sometimes have disastrous consequences when the corporate battles between the Board and the Shareholders arise. The corporate battles involving two group of shareholders where one group seeks to amend the AOA so that the preference shareholders may be entitled to voting rights if dividends are not paid for two or more years, would be fatal. Such types of amendments would show that the company is sought to be controlled by board, so that shareholders’ approval would lose its force. Preference shareholders may thus gain an upper hand and would be at par with the ordinary shareholders. The group possessing majority of preference shares, if given voting voting rights would defeat the resolution of other groups owing to their animosity. Thus, such rights can be used to further their causes and for their advantage.

 

The preference shareholders are given preferential treatment in the payment of dividend only in consideration of their contribution to the capital.The use of voting provisions for preferential shareholders, brings into limelight the larger and important issue of   balancing the freedom to vote against the safeguards necessary to protect the interests of ordinary shareholders that is beneficial to the company as a whole. The picture of the corporate affairs would be dramatically affected, if the preferential treatment were extended to voting rights. Hence, such voting rights should be discouraged.

 

This article has been authored by Disha Jain, a 5th year student in Jindal Global Law School. She may be reached at 15jgls-djain@jgu.edu.in

Maxwell Chambers Suites Officially Opens Today Giving Yet Another Boost to Singapore’s Legal Hub Position

The world’s two largest economies, the United States and China, and three of the four largest economies in Asia, China, India and South Korea, along with 46 States met in Singapore today and inked a new international treaty on mediation that will enable the enforcement of mediated settlement agreements amongst the signatory countries. Singapore was the first signatory of the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation, when it opened for signature in Singapore today.

Ministers and Senior Officials representing 70 countries attended the Singapore Convention Signing Ceremony and Conference to give their support to the new international treaty. To mark the historic signing, Minister for Home Affairs and Minister for Law K Shanmugam, SC and the United Nations (UN) Assistant Secretary-General for Legal Affairs Stephen Mathias jointly named an orchid, “Aranda Singapore Convention on Mediation”. This is the first time an orchid is named after a United Nations (UN) Treaty.

Singapore Minister for Home Affairs and Minister for Law K Shanmugam, SC today officially opened Maxwell Chambers Suites, the new extension of Maxwell Chambers. He was joined by Minister in the Prime Minister’s Office and Second Minister for Finance and Education Indranee Rajah and Senior Minister of State for Law and Health Edwin Tong, as well as ministers and senior officials from 12 countries, and more than 350 guests from the government, judiciary, law firms, dispute resolution institutions, law associations, businesses and academia.

The opening of Maxwell Chambers Suites will further enhance Singapore’s status as an international legal hub. It follows the opening of INSOL’s Asia hub on 5 August 2019 and the signing of the Singapore Convention on Mediation on 7 August 2019.  In his keynote speech at the opening of Maxwell Chambers Suites, Minister Shanmugam announced yet another two boosts to Singapore’s leading position:

First, the American Arbitration Association International Centre for Dispute Resolution (AAA-ICDR) will set up its Asia headquarters and case management centre at Maxwell Chambers Suites. AAA-ICDR will be the 6th dispute resolution institution to establish its case management office there, making it home to the highest concentration of case management offices in the world. AAA-ICDR joins INSOL which announced the launch of its Asia hub in Singapore on 5 August 2019. Maxwell Chambers Suites will house at least 11 international institutions (Annex A) and 20 disputes chambers and practices from 11 countries (Annex B).
Second, to meet growing demand for dispute resolution services in Asia, Maxwell Chambers will also be expanding its hearing facilities. 15 more hearing and preparation rooms will be added to its current 22 rooms, bringing the total to 37, a 60% increase. The new hearing facilities will be operational in August 2019. Maxwell Chambers will also offer six specially-designed executive suites for short-term rental to arbitrators, mediators and counsel who are based overseas but fly in and out of Singapore for dispute resolution.
Explaining the significance, Minister Shanmugam said, “This week, two top international institutions, INSOL which is based in London and AAA-ICDR based in New York, announced setting up their respective Asia Hubs in Singapore. We are happy that they have chosen Singapore, it shows their assessment of the opportunities in Asia, and that Singapore can help tap into those opportunities.” Maxwell Chambers Chairman, Philip Jeyaretnam SC said, “Maxwell Chambers, which will house more hearing facilities and international institutions and a record number of case management offices, is a tangible expression of the capability we have built up over the years, which will power our ambition to be the top international legal hub, in Asia and the world. Maxwell Chambers is the place to be, for many dispute practitioners. Their cases are heard here, in purpose-built facilities designed to support their work, and there are synergies to be gained from being part of a community and an entire eco-system in Singapore, not found anywhere else in the world. We have seen rising caseload and are operating near maximum capacity on some days. The new hearing facilities and executive suites are opportunities for us not just to meet demand, but to set new frontiers and continue to be the global standard-bearer.”

For arbitration, in 2018, Singapore was ranked as the top arbitration seat in the Asia-Pacific, and third in the world, after London and Paris. Singapore was also ranked within the top four in all regions of the world, except Latin America, including Europe, North America, Africa and Middle East. Singapore was the only Asia-Pacific jurisdiction to be ranked within top four outside the Asia-Pacific. For mediation, in December 2018, the United Nations General Assembly adopted a new international treaty on mediation, and agreed for it to be named after Singapore. Ministers and other senior officials from [xx] countries attended the signing ceremony yesterday to support the Singapore Convention on Mediation. Maxwell Chambers is the world’s first integrated dispute resolution complex, housing both best-in-class hearing facilities and top international dispute resolution institutions. Since its establishment in 2010, Maxwell Chambers has quickly become one of the most preferred hearing facilities in the world. The new Maxwell Chambers Suites adds 120,000 square feet of floor space, allowing Maxwell Chambers to triple its current size.

INSOL, established in London in 1982, is a worldwide federation of 44 member associations, with over 10,500 restructuring and insolvency professionals as members. It is at the forefront of education and technical training for practitioners, and assists in the development of countries’ restructuring and insolvency systems. The AAA-ICDR, established in New York in 1996, is the largest international provider of arbitral and dispute resolution services. It provided dispute resolution services for 993 international cases filed in 2018. The ICDR serves parties in more than 90 countries, with a staff fluent in over a dozen languages. Through more than 725 independent arbitrators and mediators, the ICDR provides a flexible, party centred process over a broad range of industries and geopolitical issues.

Review And Reconsider Conviction And Sentencing Of Jadhav: ICJ To Pakistan

“Truth and justice have prevailed. Congratulations to ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice.”

–       PM Narendra Modi

                                                   It goes without saying that in a major legal and diplomatic victory for India and also simultaneously in a major legal and diplomatic setback along with global embarrassment for Pakistan, the International Court of Justice (ICJ) has held upfront that Pakistan violated the Vienna Convention in the Kulbhushan Jadhav case and it should review and reconsider his conviction and sentencing while allowing India consular access to the Indian national. Importantly, the ICJ ruling said unequivocally that the stay on the death sentence pronounced on Jadhav must remain. It minced no words in saying clearly, categorically and convincingly that, “The court considers that a continued stay of execution constitutes an indispensable condition for the effective review and consideration of the conviction and sentence of Jadhav”.

                                   To be sure, while indicating its unhappiness with the judicial process regarding Kulbhushan Jadhav, the ICJ said that, “Court considers it imperative to re-emphasise that the review and reconsideration of the conviction and sentence of Jadhav must be effective.” This clearly comes as a rap on the knuckles of Pakistan’s opaque way of trial of Jadhav by military courts which is the biggest proof that it was just a sham trial and everything was pre-decided! It is a no-brainer that this sharp observation of ICJ clearly tantamount to an open indictment of Jadhav being tried before secret military “black” courts where the evidence against him and his legal defence remains unknown! How can this by any standard be termed as “fair trial”?

                                                What’s more, while rejecting all the major contentions put forward by Pakistan, the ICJ said the Vienna Convention was applicable in the Jadhav case regardless of allegations that he was engaged in espionage. It also conveyed unambiguously that, “Pakistan must inform Jadhav without further delay of his right under Article 36 and allow and arrange for his legal representation”. Pakistan should be ashamed that ICJ has to remind it that what all legal rights should be provided to Jadhav!

                              Bluntly put: If Pakistan has nothing to hide as it repeatedly asserts and tries to present a brave face then why was it so determined to deny even consular access and legal representation to Kulbhushan Jadhav? This itself is the biggest testimony of the irrefutable fact that Pakistan has a lot to hide and has very little to show and has no genuine proof to vindicate its false claim that Kulbhushan Jadhav is a spy and a terrorist! Why ICJ conveyed its unhappiness with the way Jadhav was tried in Pakistan? Still should Pakistan not wake up its ideas and act in the right manner?

                                                Before proceeding ahead, it would be pertinent and imperative to mention now the entire sequence of events in which the Jadhav case unfolded. This will help us understand better the entire case and how it reached its logical conclusion. It is as follows: –

                         2016

 March 3: Kulbhushan Jadhav, then 46 years, is arrested by Pakistan allegedly from Mashkel in Balochistan Province. Pakistan terms him “an Indian spy” for India’s external intelligence agency, RAW.

March 25: India notified about Jadhav’s arrest in a press release by Pakistani authorities. India rejects Pakistan’s claims and says there’s no proof that he was arrested in Balochistan.

March 26: The then Ministry of External Affairs spokesperson Vikas Swarup releases a statement stating that while Jadhav was a former naval officer, he had no links with RAW or the government.

March 29: India seeks consular access to Jadhav which Pakistan does not provide.

March 30: Union Minister Kiren Rijju rubbishes  Pakistan’s claims and calls Jadhav’s “confession” about his alleged involvement in terror activities in Balochistan a lie. Indian authorities claim Jadhav was abducted from Iran where he was conducting business after retiring from Navy.

December 7: Pakistan Foreign Minister Sartaj Aziz confirms that conclusive evidence against Kulbhushan Jadhav has not been found.  Pakistan Foreign Ministry then makes a U-turn on its earlier released statement.

                         2017

Jan 6: Pakistan announced that it has submitted a dossier to the new United Nations Secretary General Antonio Guterres over Indian interference in Islamabad, which was aimed at “destabilising” the nation.

April 1: India starts sending diplomatic communications to Pakistan for providing consular access to Jadhav. Authorities claim that access denied despite repeated requests.

April 10: Pakistan army says Jadhav has been sentenced to death by a military court for espionage and waging war against the country.

April 12: According to a media report, Jadhav is charged with terrorism and sabotage by a court.

May 8: India moves ICJ against Pakistan’s decision and for “egregious violation of the Vienna Convention on Consular Relations”. It seeks ‘provisional measures’ from ICJ and asks it to issue instructions to Pakistan to not take any action on the death sentence till India’s request for ‘provisional measures’ was considered by the court.

May 9: What came as a shot in the arm for India was ICJ staying Jadhav’s execution on India’s request. ICJ sends urgent communication to the Pakistan PM asking the country not to take measures that would result, in an ICJ ruling not having the appropriate effect thus prohibiting Pakistan from executing Jadhav.

May 15: ICJ begins hearing. ICJ hears India’s request for ‘provisional measures’.

May 18: In a further major gain for India, ICJ unanimously issues binding order on ‘provisional measures’, says all measures to be taken to prevent execution of Jadhav pending the final judgment.

June 16: World Court asks India to make its submission by September 13.

Sep 13: India files its memorial (first round of written pleadings), Pakistan follows with counter memorial on December 13, 2017.

Dec 19: India seeks 3 months to file reply (2nd pleadings). Pakistan opposes India’s request.

Dec 25: Pakistan facilitates meeting of Jadhav with his mother and wife in Islamabad but here too they are subjected to undergo humiliation like asking them to remove mangalsutra, bindi, shoes etc.

                          2018

Jan 17: ICJ accepts India’s request and gives 3 months each to India and Pakistan to file a second round of written pleadings.

April 17: India files second round of written pleadings.

July: Pakistan also follows with its own filing of second round of written pleadings.

Oct 3: ICJ fixes dates for final hearing in the matter.

                     2019

Feb 18: ICJ begins four-day final public hearing in this case.

Feb 21: ICJ concludes the hearing and reserves the order.

July 17: ICJ orders that Jadhav must be given consular access. ICJ also orders that it has jurisdiction to decide India’s plea for Kulbhushan Jadhav. It also holds that stay of Jadhav’s execution ordered by Pakistan’s military court will continue and Pakistan has to review and reconsider conviction and sentencing of Jadhav.

                                            Be it noted, all the 16 Judges of ICJ on the panel unanimously ruled that the ICJ’s jurisdiction held over the case. It said that the court “unanimously, finds that it has jurisdiction, on the basis of Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017”. The judgment which was read out by Judge Abdulqawi Ahmed Yusuf who is the President of the ICJ at the Peace Palace on July 17, 2019 was decided with 15 judges in favour while only Pakistan’s ad-hoc Judge – Justice Tassaduq Hussain Jilani was the lone dissenter! Pakistan must be gracious enough to accept this biggest slap on its face and comply with the order passed by the ICJ to save its own reputation in front of the world!

                                   What’s more, the ICJ specifically ruled that it “finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations”. Pakistan till now was totally opposed to giving any consular access to Kulbhushan Jadhav but now it has no option but to comply! The ICJ said that the court finds that the “appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention.”

                                             Not stopping here, it added that a “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Jadhav. The Court also found that, “by not informing Jadhav without delay of his rights under Article 36, paragraph 1(b) of the Vienna Convention on Consular Relations”, Pakistan “breached the obligations” incumbent upon it under that provision. It also said that by “not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations.”

                                              What a pity that it is now after such a long legal battle that ensued and raged on in ICJ for more than 3 years and after ICJ asked Pakistan to comply that it has finally buckled after being forced to eat the humble pie and say in a mellowed manner that it has decided to grant consular access to Kulbhushan Jadhav hours after Indian Foreign Minister S Jaishankar sought it following the ICJ verdict! Pakistan’s Foreign Ministry announced in a statement that, “Pursuant to the decision of the ICJ, Commander Kulbhushan Jadhav has been informed of his rights under Article 36, Paragraph 1(b) of the Vienna Convention on Consular Relations. As a responsible state, Pakistan will grant consular access to Commander Kulbhushan Jadhav according to Pakistani laws, for which modalities are being worked out.” One fails to understand that why it took so long for Pakistan to become a responsible state? Why was it an irresponsible state for so long? Why it took ICJ’s intervention for Pakistan to realise its responsibility of providing consular access to Pakistan? Were Pakistan’s lawyers who claim to be very intelligent not aware even of this also that it had to face so much of international humiliation and now finally it has decided to relent on this? I pity them!

                                    Needless to say, Pakistan’s move has to be viewed as a ritualistic peace missive to India following its increasing isolation in the international community. We all know that the Financial Action Task Force has already placed Pakistan on its grey list and can be blacklisted also by October if it fails to mend its ways even now and find itself in the company of rogue countries like North Korea and Yemen among others! Can Pakistan afford this? Certainly not!

                                       While making a statement in both Houses of Parliament on the judgment by the ICJ, Foreign Minister S Jaishankar said that, “Pakistan was found to have deprived India of the right to communicate with Jadhav, have access to him, visit him in detention and arrange his legal representation”. Has Pakistan been able to justify this in ICJ? Certainly not!

                                    This alone explains that why following this landmark ICJ judgment, the Pakistan Foreign office in a terse statement has said that, “Having heard the judgment, Pakistan will now proceed as per law.” What does this reflect of Pakistan? That it was not even aware of what the law is!

                                        As things stand, we thus see that Pakistan is compelled to act now after this landmark ICJ ruling. It has now no other option but to act as per the directions of ICJ of providing Jadhav consular access, legal aid and trying him properly as per law. It is most astounding to see that Jadhav who is a retired Indian Navy officer was sentenced to death by the Pakistani military court on charges of “espionage and terrorism” after a closed kangaroo trial in April 2017. Jadhav was not just denied consular access but also denied all type of legal aid! If this is not an open mockery of justice then please tell me that what else is?

                                   Let me say this on record: The sole credit for this landmark ICJ verdict goes to eminent lead lawyer in this case and former Solicitor General of India Harish Salve who charged just one rupee for this case and left no stone unturned and pulled out all the stops to ensure that Kulbhushan Jadhav gets justice from ICJ. It is this same Harish Salve who had earlier ensured that Lt Col Shrikant Prasad Purohit who was most wrongly kept in jail for about 9 years without even charge sheet being filed against him could walk in the open air once again by securing bail for him and pointing out how injustice had been meted out to him. His popularity has increased manifold since then not just among people but even among the legal fraternity including me!

                                       To say the least, in Jadhav’s case, Harish Salve while expressing happiness at the landmark ICJ verdict said that, “The ICJ verdict calling for the consular access to Kulbhushan Jadhav and making it incumbent upon Pakistan to ensure an effective review of its legal processes is a victory of the rule of law that has ‘gladdened our hearts’. There is relief, satisfaction and a lot of hope. The judgment has restored our faith in the rule of law, in the ICJ and in the systems which we as mankind put together to protect the citizens of the world.”

                                 Going forward, Salve further disclosed that, “We had challenged the conduct of Pakistan in its brazen refusal to adhere to the Vienna Convention and allow consular access to Mr. Jadhav. The court found Pakistan guilty of internationally wrongful acts and that it must cease those acts. It is important to be positive after such a positive ruling.” He also said that he hoped Pakistan would fully comply with the judgment and that its conduct will be under watch in case it chooses to “brazenly violate” the ruling in any way.

                                         Interestingly enough, Harish Salve also added that any violation of the order would mean taking things back to the ICJ to seek further instructions. Can Pakistan afford this now? He also warned that sanctions in the United Nations Security Council and other remedies could also come into play if Pakistan fails to comply with the ICJ order. He also  further added that, “The ICJ had been categorical in its verdict that Pakistan must do everything to make the Vienna Convention a living reality. The government of Pakistan must ensure all necessary “review and reconsideration” measures, including ‘legislative’ means.”

                          To put things in perspective, this landmark verdict clearly denotes that Jadhav will continue to be protected from the death sentence on spy and terror charges as Pakistan could not prove anything against him and now that the ruling has gone against them, Islamabad will certainly find it too difficult to risk international criticism and opprobrium by ignoring the ruling. No wonder that Pakistan as anticipated sought to downplay the big setback arguing that ICJ did not order Jadhav’s release but even they too cannot deny that the court clearly said that Pakistan is “under obligation” to review the conviction and carry out retrial in a more transparent manner which they know would ostensibly lead to Jadhav’s acquittal as they have no reliable evidence to convict him!

                                        As it turned out, the ICJ rejected Pakistan’s contention that it had no jurisdiction and that India’s complaint is not admissible. Even the Chinese Judge Xue ruled against Pakistan! ICJ held that, “Pakistan’s objection based on ‘clean hands’ doctrine must be rejected. Pakistan has not explained how any of the wrongful acts allegedly commited by India may have prevented Pakistan from fulfilling its obligation. The court finds that it has jurisdiction to entertain India’s claim. India was under no obligation to consider other dispute settlement mechanisms prior to instituting proceedings. Thus, Pakistan’s objection based on alleged non-compliance cannot be upheld.” The ICJ also held that the 2008 India-Pakistan bilateral agreement in no way trumped Islamabad’s obligations under the Vienna Convention. The ICJ was abundantly clear to hold that Pakistan had violated Article 36 of Vienna Convention on Consular Relations in denying consular access to Jadhav!

                                     Happily enough, while addressing a press conference in London, Harish Salve remarked confidently that, “I have a degree of personal satisfaction that a lot of adjectives were used by Pakistan in its submissions that I described as unfortunate because of my upbringing as Indian. The Court has said Pakistan is guilty of internationally wrongful acts and it must cease those acts. This is a trenchant indictment”. He also said that, “The court said Pakistan has to do everything to make the Vienna Convention a living reality” while pointing out that the international legal body also asked for a fair trial of Mr Jadhav. There can be no denying it!

                                      Suffice it to say, Salve rightly said that the judgment gives India a “good moment” to help Mr Jadhav get justice. He also very wisely pointed out that a re-trial of Mr Jadhav in a military court in Pakistan would not meet the standards set by the ICJ. He also rightly described the verdict as a victory for the rule of law.

                                It is heartening to note that even the Opposition parties have welcomed the verdict. Former Union Finance Minister and also a senior Supreme Court lawyer P Chidambaram said that, “ICJ delivers ‘justice’ in the true sense of that word, upholding human rights, due procedure and the rule of law.” Former Union External Affairs Minister Sushma Swaraj too said that, “I wholeheartedly welcome the verdict of International Court of Justice in the case of Kulbhushan Jadhav. It is a great victory for India.” Very rightly said!

                                        It also cannot be lost on us that Gautam Bambawale who as India’s envoy to Pakistan when Jadhav was arrested had bombarded the Pakistani government with repeated official requests for consular access, thereby creating the right conditions for India’s case at the ICJ has said most unequivocally that, “ICJ has clearly ruled that Pakistan must review the case. This implies that the earlier military court proceeding did not give Jadhav due process. So a retrial must take place which must be fairer than earlier, with full consular access and a defence attorney for Jadhav.” The ICJ has worked with precedents in the cases of Germany vs the United States (LaGrand) and Mexico vs the United States (Avena), and in both these cases it had ruled that the US was in violation of the Vienna Convention and ordered a “review and reconsideration” of its process!

                                 It is worth mentioning here that ICJ emphasized in no uncertain terms that the review of Jadhav’s case by Pakistan must be effective as the outcome of his mercy petition to the Pakistan Army Chief was not known, and no evidence was submitted to the court on the presidential clemency procedure. ICJ noted that Pakistan had stated during arguments that its high courts were competent to carry out a review.

                                         Going forward, ICJ also observed that Article 199 of Pakistan’s Constitution had been interpreted by the Supreme Court as limiting the availability of such a review for a person like Jadhav, who is subject to the Pakistan Army Act. The ICJ in its historic verdict also said that, “Thus, it is not clear whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights set forth in Article 36, paragraph 1 of the Vienna Convention.” The verdict, however, added that, “Pakistan contends that its domestic legal system provides for an established and defined process whereby the civil courts can undertake a substantive review of the decisions of military tribunals, in order to ensure procedural fairness has been afforded to the accused, and that its courts are well suited to carrying out a review and reconsideration that gives full weight to the effect of any violation of Article 36 of the Vienna Convention.”

                                        Before parting, it must be said that in a 15-1 order, the ICJ held that Jadhav’s execution will remain on hold until Islamabad “effectively reviews and reconsiders’ his execution. ICJ also made it amply clear that, “A continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr Kulbhushan Sudhir Jadhav”. The World Court also ruled decisively in favour of India’s plea to allow it full consular access to Jadhav which Pakistan has consistently denied so far.

                        It is most heartening to note that the Pakistani Judge Tassaduq Hussain Gilani from Pakistan was completely isolated and was the only one to go against the majority judgment. Even the Judge from China – Vice President Xue also voted in favour of the judgment. India could just not secure the annulment of Jadhav’s conviction by the military court in Pakistan and his immediate release. But here too now Pakistan is under an obligation to ensure that the trial held is proper, legal and fair! The ICJ found that Pakistan deprived India of the right to communicate with and have access to Jadhav, to visit him in detention and to arrange for his legal representation and thereby breached obligations incumbent upon it under the Vienna Convention! Pakistan is left now with no option but to comply gracefully with this historic ICJ judgment as it has itself conceded also! What more could India have asked for than this?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Plaintiff Cannot Be Forced To Add Parties Against Whom He Does Not Want To Fight: Supreme Court

It is worth noting and worth mentioning that in a latest, landmark and laudable judgment titled Gurmit Singh Bhatia Vs Kiran Kant Robinson and others in Civil Appeal Nos. 5522-5523 of 2019 delivered on July 17, 2019, the Supreme Court while exercising its civil appellate jurisdiction has reiterated that, in a suit, the plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. All the courts must always bear this in mind while delivering judgments in such matters. There can be no denying or disputing it!

                                            To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice MR Shah for himself and Justice DY Chandrachud of Supreme Court wherein it is pointed out that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 3.7.2013 passed in Writ Petition No. 856/2012 and order dated 5.8.2013 passed in Review Petition No. 169/2013 in Writ Petition No. 856/2012 by the High Court of Chhattisgarh at Bilaspur, by which the High Court has allowed the said writ petition preferred by the original plaintiffs and has quashed and set aside the order passed by the learned trial Court allowing the application preferred by the appellant herein for impleading him as a necessary party to the suit filed by respondent nos. 2 and 3 herein – the original plaintiffs, the original applicant – appellant has preferred the present appeals.”

                                       To recapitulate, it is then stated in para 2 that, “The facts of the case leading to these appeals in nutshell are as follows:

          Respondent nos. 2 & 3 herein – the original plaintiffs filed a suit against respondent no. 1 herein – original defendant no. 1 for specific performance of the agreement to sell/contract dated 3.5.2005 executed by respondent no. 1 – original defendant no. 1 in the Court of learned 4th Additional District Judge, Bilaspur. That during the pendency of the aforesaid suit and despite the injunction against respondent no. 1 herein – original defendant no. 1 – original owner not to alienate or transfer the suit property, respondent no. 1 herein – original defendant no. 1 executed a sale deed in favour of the appellant herein vide sale deed dated 10.07.2008. The appellant herein – purchaser who purchased the suit property during the pendency of the suit filed an application in the pending suit under Order 1 Rule 10 of the CPC for impleadment as a defendant in the suit. It was the case on behalf of the appellant herein that he has purchased the suit property and is a necessary and proper party to the suit as he has a direct interest in the suit property. That by an order dated 5.11.2012, the learned trial Court allowed the said application and directed the original plaintiffs to join the appellant as a defendant in the suit.”

                                    Put plainly, it is then pointed out in para 2.1 that, “Feeling aggrieved and dissatisfied with the order passed by the learned trial Court dated 5.11.2012 allowing the application and permitting the appellant herein to be joined as a party defendant in the suit filed by the original plaintiffs – respondent nos. 2 & 3 herein, respondent nos. 2 & 3 herein filed writ petition No. 856/2012 before the High Court of Chhattisgarh. By the impugned judgment and order dated 3.7.2013, the High Court has allowed the said writ petition and has quashed and set aside the order passed by the learned trial Court allowing the impleadment application preferred by the appellant herein by holding that as regards the relief claimed against the original defendants and as no relief has been claimed against the appellant herein, the appellant cannot be said to be a necessary or formal party. That thereafter the appellant preferred a review application which came to be dismissed. Hence, the present appeals by way of special leave petitions.”

                                Be it noted, para 3.1 then discloses that, “Learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that once the learned trial Court allowed the impleadment application submitted by the appellant herein under Order 1 Rule 10 of the CPC holding that the appellant is a necessary and proper party, the High Court, in exercise of powers under Article 227 of the Constitution of India, ought not to have interfered with the same.”

                          Moving on, para 3.2 then further discloses that, “It is vehemently submitted by the learned Senior Advocate appearing on behalf of the appellant that as such the appellant has purchased the suit property from the same vendor and, in fact, the appellant was in prior agreement to sell holder and to protect the interest of the appellant, the appellant is a necessary and proper party. It is submitted that therefore the learned trial Court rightly allowed the impleadment application submitted by the appellant.”

                                          Going forward, it is then further added in para 3.3 that, “Making the above submissions and relying upon the decision of this Court in the case of Robin Ramjibhai Patel v. Anandibai Rama @ Rajaram Pawar, reported in (2018) 15 SCC 614 and the decision of the Bombay High Court in the case of Shri Swastik Developers vs. Saket Kumar Jain, reported in 2014 (2) Mh. L.J. 968, it is prayed to allow the present appeals and quash and set aside the impugned judgments and orders passed by the High Court and restore the order passed by the learned trial Court.”

                                        On the contrary, we then see that para 4 discloses that, “The present appeals are vehemently opposed by Shri M. Shoeb Alam, learned Advocate appearing on behalf of the original plaintiffs. It is vehemently submitted that in fact the appellant purchased the suit property during the pendency of the suit and that too in violation of the injunction granted by the learned trial Court. It is submitted that as such the prior agreement to sell upon which reliance has been placed by the appellant is a concocted and forged one. It is submitted that in any case the appellant cannot be impleaded as a defendant in a suit filed by the original plaintiffs for specific performance of the agreement to sell/contract to which the appellant is not a party. It is submitted that the original plaintiffs are the dominus litis and without their consent nobody can be permitted to be impleaded as defendant.”

                                         While  citing the relevant case law thus adding more ammunition to its submissions, it is then pointed out in para 4.1 that, “It is vehemently submitted that as such the issue involved in the present case is squarely covered against the appellant in view of the decision of this Court in the case of Kasturi v. Iyyamperumal, reported in (2005) 6 SCC 733”.

                                       Furthermore, it is then illustrated in para 4.2 that, “Insofar as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) as well as the decision of the Bombay High Court in the case of Shri Swastik Developers (supra) by the learned Senior Advocate appearing on behalf of the appellant, it is vehemently submitted by Shri M. Shoeb Alam, learned Advocate appearing on behalf of the original plaintiffs that the said decisions shall not be applicable to the facts of the case on hand. It is submitted that in the aforesaid two cases, it was an application by the original plaintiff to implead the subsequent purchaser who purchased the property during the pendency of the suits. It is submitted that as held by this Court in the case of Kasturi (supra), it is for the plaintiff/plaintiffs to implead a particular person/persons as defendant/defendants and if he/they does not/do not join then it will be at the risk of the plaintiff/plaintiffs. It is further submitted that the plaintiff cannot be forced to implead any other person, more particularly who is not a party to the contract, against the wish of the plaintiff. It is submitted that therefore the aforesaid two decisions, upon which reliance has been placed by the learned Senior Advocate appearing on behalf of the appellant, shall not be applicable to the facts of the case on hand. It is submitted that as such the decision of this Court in the case of Kasturi (supra) clinches the issue and shall be squarely applicable to the facts of the case on hand.”

                                              To put things in perspective, it is then ruled in para 5.1 after hearing the learned counsel for the respective parties at length that, “At the outset, it is required to be noted that the original plaintiffs filed the suit against the original owner – vendor – original defendant no. 1 for specific performance of the agreement to sell with respect to suit property dated 3.5.2005. It is an admitted position that so far as agreement to sell dated 3.5.2005 of which the specific performance is sought, the appellant is not a party to the said agreement to sell. It appears that during the pendency of the aforesaid suit and though there was an injunction against the original owner – vendor restraining him from transferring and alienating the suit property, the vendor executed the sale deed in favour of the appellant by sale deed dated 10.7.2008. After a period of approximately four years, the appellant filed an application before the learned trial Court under Order 1 Rule 10 of the CPC for his impleadment as a defendant. The appellant claimed the right on the basis of the said sale deed as well as the agreement to sell dated 31.3.2003 alleged to have been executed by the original vendor. The said application was opposed by the original plaintiffs. The learned trial Court despite the opposition by the original plaintiffs allowed the said application which has been set aside by the High Court by the impugned judgment and order. Thus, it was an application under Order 1 Rule 10 of the CPC by a third party to the agreement to sell between the original plaintiffs and original defendant no. 1 (vendor) and the said application for impleadment is/was opposed by the original plaintiffs. Therefore, the short question which is posed for consideration before this Court is, whether the plaintiffs can be compelled to implead a person in the suit for specific performance, against his wish and more particularly with respect to a person against whom no relief has been claimed by him?”

                                     As it turned out, it is then envisaged in para 5.2 that, “An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.”

                          More significantly, it is then further added in this same para 5.2 that, “That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. In the aforesaid decision in the case of Kasturi (supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the parties to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party-defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no. 1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs.”

                                  It cannot be lost on us that it is then envisaged in para 6 that, “Now so far as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) and the decision of the Bombay High Court in the case of Shri Swastik Developers (supra), relied upon by the learned Senior Advocate for the appellant is concerned, the aforesaid decisions shall not be applicable to the facts of the case on hand as in both the aforesaid cases, it was the plaintiff who submitted an application to implead the third parties/subsequent purchasers who claimed title under the vendor of the plaintiff. Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a party and when the plaintiff opposes such an applicant for impleadment. This is the distinguishing feature in the aforesaid two decisions and in the decision of this Court in the case of Kasturi (supra).”

                         All told, it is then finally held in the last para 7 that, “In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the High Court. No interference of this Court is called for. The appellant cannot be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant no. 1 against the wish of the plaintiffs. Accordingly, the present appeals stand dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.”

                                   In the ultimate analysis, the Apex Court has made it absolutely clear in this notable case that plaintiff cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. It has been elaborated upon also in great detail which we have already discussed above. No doubt, all  the courts must always comply with it in all such cases!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Right To Shelter A Fundamental Right; State Has Constitutional Duty To Provide House Sites To Poor: Allahabad High Court

It has to be remarked with consummate ease that in a latest, landmark and extremely laudable judgment titled Rajesh Yadav Vs State of UP And 9 Others in Public Interest Litigation (PIL) No. – 775 of 2019 delivered on July 1, 2019, the Allahabad High Court has very rightly held that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor. Justice Surya Prakash Kesarwani who authored this path breaking judgment observed so while dismissing a PIL seeking eviction of four individuals who allegedly encroached a public land. Very rightly so!

                                   To start with, the ball is set rolling in para 1 of this noteworthy judgment which first and foremost states that, “The petitioner claiming himself to be a bonafide citizen, has filed the present public interest litigation (for short PIL) for removal of encroachment and illegal possession of respondent Nos. 6 to 10 from khasra plot No. 325/350 area 0.20 decimal, khasra plot No. 325/351 area 0.08 decimal and khasra plot No. 325/348 area 0.10 decimal of village Pakhanpura, Pargana Kopachit, Garvi, Tehsil Rasara, District Ballia, which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.”

                                     To recapitulate, it is then pointed out in para 2 that, “Briefly stated facts of the present case are that by order dated 14.02.1994, the Sub-Divisional Magistrate, Rasara exchanged aforesaid khasra plot No. 325/351 area 0.08 decimal, khasra plot No. 325/348 area 0.10 decimal and khasra plot No. 325/350 area 0.20 decimal, total area 0.38 decimal with plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 decimal and 324M area 0.20 decimal. Mutation was accordingly made in the revenue records and accordingly the above noted areas of khasra plot No. 325/348, 325/350 and 325/351, were recorded as banjar and the exchanged khasra plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 and khasra plot No. 324M area 0.20 were recorded in the revenue records as ‘khalihan’,  ‘khad ka gaddha’ and khel ka maidan’ respectively.”

                                     Furthermore, it is then envisaged in para 3 that, “The Land Management Committee, Pakhanpura passed a resolution dated 19.01.1994 and 10.04.1994 for allotment of the aforesaid newly recorded banjar land for residential purposes to 19 persons. The allotments were made by Sub-Divisional Officer by order dated 28.10.1995. After allotment of land for residential purposes, the respondent No. 6, 7, 8, 9 and 10 constructed their houses (huts and tinshed) and they are still residing. Undisputedly, the respondent Nos. 6 to 10 are landless agricultural labourers and are very poor persons and have no shelter except the aforesaid shelter.”

                      What’s more, it is then disclosed in para 4 that, “As per report of the lekhpal dated 29.01.1994 forwarded and affirmed by Sub-Divisional Officer, Tehsil Rasra, District Ballia, the exchange of land was made on account of the fact that khasra plot No. 325/348 area 0.10 decimal, 325/350 area 0.20 decimal, 325/351 area 0.08 decimal, total area 0.38 decimal had converted in abadi long back and consequently the proposal for exchange was made. After exchange as aforesaid, allotments to poor landless agricultural labourer in possession were made for residential purpose after following due procedure of law. Area of the land allotted to the respondent Nos. 6 to 10 is as under:

Sl.     Name of the               Khasra plot No.   Area in

No.   allottee                                                           Decimal

1. RespondentNo.6-Indradev    325/350M    0.02

2. Respondent No.7-Abhay        325/348M    0.03

3. Respondent No. 8-Durgawati 325/348M    0.03

4. Respondent No. 9-Teswari      325/350M    0.03

5. Respondent No. 10-Budhan     325/350M    0.02 ½”

                                      To be sure, para 5 then reveals that, “As per conversion table, 1 decimal area is equivalent to 48 square yard. Thus, the allotments of very small pieces of land for residential purposes to poor labourers being respondent Nos. 6 to 10 were made over which they had constructed long ago their huts by brick-walls and tin-shed and still they are residing therein.”

                                       Be it noted, para 6 then discloses that, “It appears that at the instance of the petitioner, a Case No. 59/2007 under Section 115P of the U.P. Z.A. and L.R. Act was registered by the Additional District Judge (F/R), Ballia and by ex parte order dated 07.09.2007, aforesaid residential leases granted to 19 persons including the respondent Nos. 6 to 10 were cancelled. Thereafter, the petitioner moved an application dated 13.01.2015 before the District Magistrate followed by application dated 24.05.2016 by his son Pankaj Yadav for removal of shelters of the respondent Nos. 6 to 10. According to the petitioner, since no action was taken, therefore, he has filed the present petition as PIL.”

                            More significantly, it is then emphatically held in para 23 that, “Thus, shelter for a human being, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India. To make the right meaningful to the poor and landless agricultural labourers, particularly of the weaker section of the society, the State has to provide the facilities to build houses. It is the duty of the State to fulfill the basic human and constitutional rights to residence so as to make the right meaningful. Basic needs of man have traditionally been accepted to be three – namely food, clothing and shelter. That would take within its sweep the right to food, the right to clothing, the right to decent environment  and a reasonable accommodation to live in. But no person has a right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their land to make the right to life meaningful, effective and fruitful.”

                                      As things stand, it is then illustrated in para 24 that, “In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10. In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their houses in question.”

                             To put things in perspective, it is then pointed out in para 25 that, “From the pleadings in this PIL as briefly noted above, it is evident that the petitioner has not denied the facts stated in paragraph-10 of the counter affidavit that the representation has been moved by the petitioner’s son namely Pankaj Yadav in his personal interest and not by the villagers. It has also not been denied by the petitioner that the respondent Nos. 6 to 10 leaseholders are very poor and needy labourers and they are residing in the houses over the land in question, which were constructed about 24 years ago on the leased land granted by the competent authority. The order of cancellation of lease was passed ex parte by ADM (F/R) after more than 12 years of the grant of lease. Even in the ex parte order of cancellation, there is no allegation of any fraud or manipulation against the respondent Nos. 6 to 10 in grant of lease to them. The petitioner has merely stated that he is bona fide citizen. He has not disclosed his credential. Thus, non-denial by the petitioner the averments of paragraph-10 of the counter affidavit to the effect of personal interest of the petitioner’s son, clearly indicates abuse of process of court by the petitioner in filing the present PIL and suppression of material facts particularly those mentioned in paragraphs 4 and 5  of the counter affidavit of the State respondents. Therefore, exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court, in view of the law laid down by Hon’ble Supreme Court in the case of Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal (2014) 13 SCC 666 (para 14) and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar (2017) 5 SCC 496 (paras 9 to 14).”

                                       It cannot be lost on us that it is then pointed out in para 26 that, “In Dnyandeo Sabaji Naik (supra), Hon’ble Supreme Court has observed that it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forum of the law to defeat or delay justice. Hon’ble Supreme Court commended all courts to deal with frivolous filings, firmly and impose exemplary costs.”

                                         As a corollary, it is then laid down in para 27 that, “The principles laid down in the case of Dnyandeo Sabaji Naik (supra), have been reiterated by Hon’ble Supreme Court in the case of Haryana State Co-op. L&C Co-op. Society Ltd., (2018) 14 SCC 248 (Paras 16 and 17) while dismissing the appeal of the Haryana State Coop. L&C Federation Ltd. (supra) with exemplary cost of Rs. 5 lacs.” Also, it is then observed in para 28 that, “In the case of Punjab State Power Corporation Ltd. (supra), Hon’ble Supreme Court emphasised that imposition of exemplary costs should be in real terms and not merely symbolic.”

                        Conclusions

                                 Most importantly, it is now time to dwell upon the conclusions drawn by the Allahabad High Court in this noteworthy and commendable judgment. Para 29 sets the pitch by first and foremost pointing out that, “The conclusions reached by me and the principles of law laid down by Hon’ble Supreme Court discussed above are briefly summarised as under:

(i)                         Right to shelter is a fundamental right, which springs from the right to residence assured in Art. 19(1)(e) and right to life under Art. 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor.

(ii)                      Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights. There could be not individual liberty without a minimum of property. The objective of ‘facilitating adequate shelter of all’ also implies that direct Government support should mainly be allocated to the most needy population groups.

(iii)                   Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its Preamble. Articles 39 and 38 enjoins the State to provide facilities and opportunities. Article 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavor to eliminate inequalities in status. Basic needs of man have traditionally been accepted to be three namely- food, clothing and shelter. The right to life is guaranteed in any civilised society. It is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor.

(iv)                   No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter to make the right to life meaningful, effective and fruitful.

(v)                      In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10.

(vi)                   In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State-authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their house in question.

(vii)                Exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court.”

                                              Going forward, it is then held in para 30 that, “For all the reasons afore-stated, this petition is dismissed with cost of Rs. 10,000/- which the petitioner shall deposit with the High Court Legal Services Committee within six weeks from today.” Finally, it is then held in the last para 31 that, “It is expected that the Government shall take appropriate steps in the light of the observations made in para-29 {(i), (ii), (iii) and (iv)} above.”

                            All said and done, it is a very progressive and extremely laudable judgment which bats openly in favour of the fundamental right of poor to have a shelter of his own! Not stopping here, the Allahabad High Court has also held the petitioner guilty for attempting to infringe the fundamental right of the individual and therefore dismissed the petition by imposing costs of Rs. 10,000/-. It has also very rightly and eloquently quoted several landmark judgments of the Supreme Court to substantiate its valid stand that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor! Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A-82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

INSANITY DEFENSE: and THE ISSUES WITH IT

The concept of “responsibility” arises with most of the cases involving human conduct and presence of guilt, knowledge of the act and its consequences. A person thoroughly oblivious about its surrounding, or unaware of the distinction between right and wrong, is not the one to punish.  Punishing someone who is not responsible for the crime is a violation of basic human rights and fundamental rights under constitution of India.  It also brings the due process of law, if that person is not in a position to defend himself in the court of law, evoking the principle of natural justice[1].

The plea of insanity as a defense in criminal cases has a long and fascinating history. The introduction of “McNaughton’s rules” in 1843 was a turning point in the history of the insanity defense. In 1843, a wood-turner from Glasgow, Daniel McNaughten shot and killed Edward Drummond mistaking him for Sir Robert Peel. McNaughten believed that he was persecuted by the Tories, and evidence was brought to show that he had been totally deluded on this subject for some time[2]. His state of mind was evident from the beginning when he had to be enticed, and finally tricked, into pleading “not guilty.” After hearing seven medical witnesses testify that he was completely insane, the judge stopped the trial, the jury brought in the special verdict without summing up and without retiring, and Mc Naughten was forcibly committed to the Bethlem Hospital. Five propositions were drawn thereafter, which were called McNaughten’s Rules.

This case became a defining moment even in the history of Indian Law relating insanity defense, section 84 IPC is exclusively based on McNaughten Rules. It deals with- “Act of a person of unsound mind”—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Section 84 IPC, clearly embodies a fundamental maxim of criminal jurisprudence that is[3],

(a) “Actus nonfacit reum nisi mens sit rea” -an act does not constitute guilt unless done with a guilty intention;

(b) “Furiosi nulla voluntas est” -a person with mental illness has no free will.

Hence, Section 84 IPC affixes no culpability on persons with mental illness because they can have no rational thinking or the necessary guilty intent.

CASES OF INSANITY DEFENSE:

Critics argue that some defendants misuse it, effectively faking insanity to win acquittals or less severe convictions. And often the trials involving an insanity defense get the most attention because they involve “crimes that are bizarre within themselves,” said Baltimore defense attorney Cristina Gutierrez, who has defended a dozen such cases in as many years. Some high profile cases of Insanity defense are listed below, where in some cases, the juries agreed, but more often than not, the criminals were found sane enough to know that what they were doing was wrong[4].

1.     JOHN EVANDER COUEY

In August 2007, John Evander Couey, the man convicted of kidnapping, raping and burying nine-year-old Jessica Lunsford alive, was declared sane enough to be executed. Couey’s attorneys argued that he suffered lifelong mental abuse and had an IQ below 70. The judge in the case ruled that the most credible exam rated Couey’s IQ at 78, above the level considered mentally disabled in Florida. He, however, bypassed being strapped to a gurney. Instead, he died in a prison hospital on August 30, 2009, from natural causes as a result of having cancer.

2.     ANDREA YATES

At one time Andrea Yates was a high school valedictorian, champion swimmer, and college-educated registered nurse. Then in 2002, she was convicted of capital murder for killing three of her five children. She systematically drowned her five children in the bathtub after her husband left for work. In 2005, her conviction was overturned, and a new trial was ordered. Yates was re-tried in 2006 and found not guilty of murder by reason of insanity.

Yates had a long medical history of suffering from severe postpartum depression and postpartum psychosis. After giving birth to each of her children, she displayed extreme psychotic behavior that included hallucinations, attempted suicides, self-mutilation, and an irresistible impulse to hurt the children. She had been in and out of mental institutions over the years.

Just weeks before the murders, Yates was released from a mental hospital because her insurance stopped paying. She was told by her psychiatrist to think happy thoughts. Despite warnings from her doctors, she was left alone with the children. This was one of the cases when the plea, innocent by reason of insanity, was justified.

3.     MARY WINKLER

Mary Winkler, 32, was charged with the first-degree murder on March 22, 2006, for the shotgun shooting death of her husband, Matthew Winkler. Winkler had been serving as the pulpit minister at the Fourth Street Church of Christ in Selmer, Tennessee. He was found dead in his home by church members after he failed to show up for an evening church service that he was scheduled to lead. He had been shot in the back

A jury convicted Mary Winkler of voluntary manslaughter after hearing testimony that she was physically and mentally abused by her husband. She was sentenced to 210 days and was free after 67 days, most of which was served in a mental facility.

4.     ANTHONY SOWELL

Anthony Sowell is a registered sex offender who is accused of killing 11 women and keeping their decomposing bodies in his home. In Dec. 2009, Sowell pleaded not guilty to all 85 counts in his indictment. The charges against Sowell, 56, ranged from murder, rape, assault and corpse abuse. However, Cuyahoga County Prosecutor Richard Bombik said there was no evidence that Sowell is insane.

5.     LISA MONTGOMERY

Lisa Montgomery tried to use mental illness when she was being tried for strangling eight-month pregnant Bobbie Jo Stinnett to death and cutting the unborn child from her womb.

Her lawyers said she was suffering from pseudocyesis, which causes a woman to falsely believe she is pregnant and exhibit outward signs of pregnancy. But the jury didn’t buy it after seeing evidence of the methodical plan Montgomery used to lure Stinnett into her deadly trap. Montgomery was found guilty and sentenced to death.

6.     TED BUNDY

Ted Bundy was attractive, smart, and had a future in politics. He was also one of the most prolific serial killers in U.S. history. When he was being tried for the murder of one of his many victims, Kimberly Leach, he and his attorneys decided on an insanity plea, the only defense possible with the amount of evidence the state had against him. It did not work, and on January 24, 1989, Bundy was electrocuted by the state of Florida.

NOT GUILTY BY REASON OF INSANITY

In 2010, 24 year old “Mark Berker” was found guilty of killing his high school Football coach Ed Thomas, and Mr. Berker being mentally ill and off his medications considered him as Satan. Apparently that didn’t bother the lower court justice system. Before carrying out the verdict, the jury asked the Judges- what if they found Mr. Berker “Not Guilty By Reason Of Insanity” (NGBRI). Getting silent answer from the judge, the jury took the safe approach of “Guilty as Charged”.

Not guilty by reason of Insanity is an inadequate remedy to violence by individuals with mental illness. It is only attempted in 1% of murder charges and is rarely successful.

Andrea Yates and John Hinckley were two famous exceptions. Andrea Yates, 37, was found NGBRI in Texas, after postpartum psychosis caused her to drown her five children in a bathtub. Twenty six- year-old Colorado resident John Hinckley was found NGBRI in Washington after he shot Ronald Reagan in a schizophrenia-fueled attempt to secure a date with Jodie Foster. As a result of their successful pleas, both were sent to locked psychiatric hospitals and put on medications to help them regain their sanity. They’re getting treatment and the public is being kept safe. At least for now[5]. But, theoretically, when their sanity is restored, Mr. Hinckley and Ms. Yates can both be released, to go off medications and start drowning kids or shooting presidents again. As a practical matter, few judges are willing to risk that on their watch, so even when sanity is restored—as it allegedly has been in the case of both Mr. Hinckley and Ms. Yates—NGBRI acquitees are routinely kept committed. Ms. Yates has been in a locked hospital eight years and Mr. Hinckley, 29 years. But what kind of society keeps sane individuals involuntarily-committed?
To protect against the possibility of NGBRI acquitees going free, some states either eliminated not guilty by reason of insanity or replaced it with “guilty because of mental illness.” Individuals found guilty because of mental illness go to a hospital until their sanity is restored and then to jail to finish out their sentence. This forces individuals who had no culpability for their actions to go to jail at the exact time it’s not needed—when they’ve regained their sanity. For these individuals being mentally ill is the same as being guilty: either way, they go to jail. Sadly, our prisons and jails have become our de facto mental institutions.

If the cause of the crime was lack of treatment for mental illness, then the solution is to reform laws so we can sentence these individuals to mandatory long-term mental illness treatment—including medications—so they never become violent again. The sentence to treatment could be as long, or longer, than the maximum sentence that would be imposed had the person been found guilty. If this change were adopted, incarcerating the mentally ill would rarely be needed. Their treatment could take place in an inpatient setting on a locked ward if that is what is needed to keep society safe. But, if the sentenced patient progresses—and the crime not too serious—their treatment could be continued on an outpatient basis. Over time, it would most likely be both. Under this form of not guilty by reason of insanity, the sentenced patient could be moved from inpatient care to outpatient care when doing well and instantly back to inpatient with no further court hearings needed if they started to deteriorate. In either case, the individual would be closely monitored by a case manager to see that they stay on their violence preventing medications. That’s the solution that keeps the public safe, avoids wasting resources, and eliminates the dilemma of incarcerating those we should be treating.

As an alternative to NGRI, some states have added a third possible verdict to the usual trio of guilty, not guilty, and NGRI—the verdict of “guilty but mentally ill” (GBMI). In theory, this recognizes when a defendant’s mental illness played an important role in a crime without entirely causing it. The state incarcerates the defendant for the crime, but also treats him or her for the mental illness[6]. Unfortunately, states with GBMI verdicts have sometimes neglected to provide for treatment; therefore many of these defendants are jailed without treatment, exactly as if they had been found guilty. Another dilemma with the GBMI verdict may be an “easy out” for jurors. If a jury finds the defendant guilty, they may not spend time worrying about whether he or she may be sane; because they find the defendant mentally ill, they may not address the fact that the defendant should actually be found NGRI. Hence, the insanity defense “problem” will not yield to easy solutions.

CONCLUSION

Insanity pleas had a success rate of about 17% in Indian High Courts in the past decade. Even though the success rate for wrongful use of Insanity Defense remains low not only in Indian Courts but also worldwide, the need to put more straightforward laws and tests for this can’t be ignored. It is not easy to get away with Insanity defense, even in fact not many criminals use this defense, but still the unsolved issues of this cannot remain unanswered. There’s a issue of distinguishing the Violent criminals and Insane criminals, the criminals committing wrong under the influence of alcohol and drugs shouldn’t be confused with the individuals of insane mind. The states still need to look forward for some strict laws in order to control and use this defense in its right form.

 

Authored by : SAFIYAT NASEEM
3rd Year, BA-LLB
JAMIA MILLIA ISLAMIA, NEW DELHI, 110025
INDIA

 

 

 

[1]  Gostin LO, Larry OG. A Human Condition: The law relating to mentally Abnormal Offenders. Vol. 2. MIND; 1977.
[2]  Daniel Mc Naghten’s Case. 1843, 8 Eng. Rep. 718.
[3] Gajraj Singh vs State of Rajasthan. Appeal (crl.) 1313 of 2006.
[4] www.thoughtco.com
[5] www. mentalillnesspolicy.org
[6] www. psychology.jrank.org

Court Cannot Destroy Faith & Beliefs Of People: Madras HC Rejects Plea Against Performance of Yajnas For Rains

 

                            In a unique and remarkable observation, the Madras High Court just recently on May 15, 2019 in V. Anbazhagan vs. The Commissioner, Hindu Religious and Charitable Endowments Department, No. 119, Uthamar Gandhi Salai, Nungambakkam, Chennai – 600034 in W.M.P. Nos. 14435 & 14436 of 2019 has clearly and convincingly ruled that, “It is performed with hope and belief and though they may be successful or not, this Court cannot destroy such beliefs or hopes of the multitude of people while dismissing a petition challenging the circular issued by the Commissioner of Tamil Nadu Hindu Religious and Charitable Endowments Department, to perform “yagnas” propagating rain, in all important temples under its control. We thus see that the Madras High Court has been very categorical in drawing a red line for itself on which it just cannot tread upon! Each and every Court in India must always bear this in mind while ruling in such sensitive and emotional cases! There can be no denying it!

At the outset, even before the judgment starts, it is pointed out that, “Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari and Mandamus to call for the records relating to the Circular vide Na.Ka.No. 23606/19/K4 dated 26.04.2019 on the file of the respondent and quash the same and direct the respondent to develop the scientific temper, humanism and spirit of inquiry and reform as per Article 51(a)(h) of the Constitution of India.”

First and foremost, the ball is set rolling in para 1 wherein it is pointed out by a Division Bench of Madras High Court comprising of  Justice C.V. Karthikeyan and Justice Krishnan Ramasamy that, “This Writ Petition has been filed by V. Anbazhagan, who claims to be an Editor of a Web Magazine, called “Makkal Seithi Maiyyam” and also claims to be a social worker and RTI activist. He also claims to be a writer and claims to have written various books and articles on various political subjects and claims to have rendered service to the society and further claims he has acquired various other qualifications by which, he claims he has qualified himself to file the present writ petition.”

As it turned out, it is then stated in para 2 that, “In this Writ Petition, the petitioner seeks to challenge the impugned Circular issued by the respondent videNa.Ka.No. 23606/19/K4 dated 26.04.2019 and seek a direction against the respondent to develop scientific temper, humanism and spirit of inquiry and reform as per Article 51(a)(h) of the Constitution of India.”

Furthermore, it is then reckoned in para 3 that, “The impugned circular, dated 26.04.2019 over which, the petitioner is aggrieved, was issued by the respondent, namely, the Commissioner of HR & CE Department. The petitioner claims the circular is in the nature of a direction issued to all the Joint Commissioners/Executive Officers, Deputy Commissioners/Executive Officers, Assistant Commissioners/Executive Officers to perform “yagnas” propagating rain, in all important temples under the control of the HR & CE Department. According to the petitioner, the impugned Circular is against the tenets of the Constitution of India and also against the concept of secularism followed by our country and violates the very objects and scope of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 (in short, ‘the At’).”

To be sure, the Division Bench of Madras High Court then makes it clear in para 5 that, “The preamble to the Constitution of India among other declarations, has declared the State as a Secular State. The citizens of this country are encouraged to have tolerance and to accept all religious beliefs and practices. There is also encouragement to respect various religious practices followed by various religious communities. Even at the outset, it is to be stated that every religion propagates various practices to be followed and such practices are for the welfare not only of the people who have faith on such religion and religious practices but also to bring about peace and harmony in society.”

It must be noticed that para 6 then states in plain words that, “Among various aspects, the State also has certain policies with respect to administration of religious institutions particularly in the instant case, with respect to temples. The HR & CE Board has administrative control over several temples and other endowments which provide performance of poojas and rituals, which may be simple or elaborate, and would be performed either inside the sanctum sanctorum of the temples by the Archakas or also by individuals with participation of a large number of general public.”

Needless to say, it is then acknowledged in para 7 that, “India is a country in which a vast population believe that participating in such poojas will give them mental peace and bring harmony among the community. It is also very common in this State that the people of all religions visit not only temples but also visit churches and mosques and other religious institutions establishments and participate and offer prayers without any discrimination of caste and creed.”

Be it noted, para 8 then discloses that, “In the circular which is impugned, translation of which had been provided, the Principal Secretary / the Chief Commissioner, HR & CE, had addressed all Joint Commissioners / Deputy Commissioners / Assistant Commissioners / Executive Officers as follows:

“It has been decided to conduct Yagna in all important temples under the control of Hindu Religious and Charitable Endowments department so that the state may enjoy bountiful rain and attain prosperity. It is hereby instructed that the following programs be conducted in all the important temples with due respect to local customs by the officers concerned:

1. Parjamya Shanti Varuna Jana Velvi with Special Abishekam.

2. Construction of water tank for Nandi statute filling up the tank with water to neck level and conduct of prayers.

3. Chanting by odivars of Sundaramurty Nayanars seventh Thirunavukarasu.

4. Singing of Thirugnansambandars thevara rain pathigam in 12 the Thirunavukarasu in Megara kurinchi style.

5. Asking musicians to pay amirthavarshini, megavarshini, kedari and Anantha Bairagi ragas in nagaswaran flute and violin.

6. Performing seethal kumbam for Shiva in Shiva temples.

7. Performing Rudrabhisekam in Shiva temples.

8. Special Thirugnansambandars for Mahavishnu.

9. Special pathigam for rain.

10.                  Abishekam for Sri Mariamman with milk, curd and tender coconut water.

11.                  Special mahaabishekam for mahanandhi in Thirunavukarasu Shiva temple in Mayavaran Taluk in Nagapattinam District.

12.                  Varuna Sudha cedaantra parayanama.

13.                  Varuna Gayathri mantra parayanama.

The staff concerned are directed to select suitable persons for performing the above ceremonies and start the performance of directed activities at the earliest.

The Joint Commissioners, Deputy Commissioners and Executive Officers of the concerned temples are directed to personally supervise the performance of the above activities and ensure that they are perform according to the given instructions.

The Zonal Joint Commissioners are directed to inform this office before 02.05.2019 of the detailed schedule of the above activities planned.

Further after the completion of the above activities they are required to send a separate report on the method of conduct of the directed activities”.”

To say the least, the Bench then brings out in para 9 that, “The learned counsel for the petitioner stated that the circular has directed expenditure of public money for the performance of the Yagnas as stipulated above and has taken objection to such expenditure of public money. It was also pointed out that Article 25 of the Constitution of India provides only individual rights to practice religion and not practicing in the manner as provided in the circular.”

What’s more, the Bench then notes in para 10 that, “We disagree with the said contention.” Furthermore, the Bench in para 12 envisages that, “In the majority judgment rendered by the Hon’ble Supreme Court in Indian Young Lawyers Association v State of Kerala, reported in (2018) 7 MLJ 889, The Chief Justice, Hon’ble Mr. Justice Dipak Misra and for Hon’ble Mr. Justice A.M. Khanwilkar, observed thus:

“98. Now adverting to the rights guaranteed under Article 25(1) of the Constitution, be it clarified that Article 25(1), by employing the expression ‘all persons’, demonstrates that the freedom of conscience and the right to freely profess, practice and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women.

99. It needs to be understood that the kernel of Article 26 is ‘establishment of a religious institution’ so as to acclaim the status of religious denomination. Whereas, Article 25(1) guarantees the right to practice religion to every individual and the act of practice is concerned, primarily, with religious worship, rituals and observations as held in Rev. Stainislaus v. State of Madhya Pradesh and Ors. MANU/SC/0056/1977 : (1977) 1 SCC 677. Further, it has been held in The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005, that the logic underlying the constitutional guarantee regarding ‘practice’ of religion is that religious practices are as such a part of religion as religious faith or doctrines.

………………

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103. Another authoritative pronouncement in regard to the freedom to practice a religion freely without any fictitious and vague constraint is the case of Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, wherein the Court observed thus:

The full concept and scope of religious freedom is that there are no restraints upon the free exercise of religion according to the dictates of one’s conscience or upon the right freely to profess, practice and propagate religion save those imposed under the police power of the State and the other provisions of Part II of the Constitution. This means the right to worship God according to the dictates of one’s conscience. Man’s relation to his God is made no concern for the State. Freedom of conscience and religious belief cannot, however, be, set up to avoid those duties which every citizen owes to the nation; e.g. to receive military training, to take an oath expressing willingness to perform military service and so on”.”

More significantly, it is then held in para 13 that, “In the dissenting judgment rendered by the Hon’ble Ms. Justice Indu Malhotra in Indian Young Lawyers Association, supra, the scope of judicial interference in religious faith and practices and more particularly in the light of Article 25 had been discussed as hereunder:-

“7.1. Article 25 of the Constitution guarantees to all persons the freedom of conscience, and the right freely to profess, practice and propagate religion. This is however subject to public order, morality and health, and to the other provisions of Part III of the Constitution.

……………….

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7.5. Article 25(1) confers on every individual the right to freely profess, practice and propagate his or her religion. [H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed., Reprint 1999), at Pg. 1274, para 12.35]. The right of an individual to worship a specific manifestation of the deity, in accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the Constitution. If a person claims to have faith in a certain deity, the same has to be articulated in accordance with the tenets of that faith. ………

7.6. The right to practice one’s religion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practices are rational or not. Religious practices are Constitutionally protected under Articles 25 and 26(b). Courts normally do not delve into issues of religious practices, especially in the absence of an aggrieved person from that particular religious faith or sect. ……”

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10.8. The Constitution lays emphasis on social justice and equality. It has specifically provided for social welfare and reform, and throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus through the process of legislation in Article 25(2)(b) of the Constitution. Article 25(2)(b) is an enabling provision which permits the State to redress social inequalities and injustices by framing legislation. It is therefore difficult to accept the contention that Article 25(2)(b) is capable of application without reference to an actual legislation. What is permitted by Article 25(2) is State made law on the grounds specified therein, and not judicial intervention.

………..

………..

10.13. Judicial review of religion practices ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practice one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs which is outside the ken of Courts.

………….

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11.2. India is a country comprising of diverse religions, creeds, sects each of which have their faiths, beliefs and distinctive practises. Constitutional Morality in a secular polity would comprehend the freedom of every individual, group, sect, or denomination to practise their religion in accordance with their beliefs, and practises.

11.3. The Preamble to the Constitution secures to all citizens of this country liberty of thought, expression, belief, faith and worship. Article 25 in Part III of the Constitution make freedom of conscience of a Fundamental Right guaranteed to all persons who are equally entitled to the right to freely profess, practise and propagate their respective religion. This freedom is subject to public order, morality and health, and to the other provisions of Part III of the Constitution. Article 26 guarantees the freedom to every religious denomination, or any sect thereof, the right to establish and maintain institutions for religious purposes, manage its own affairs in matters of religion, own and acquire movable and immovable property, and to administer such property in accordance with law. This right is subject to public order, morality and health. The right under Article 26 is not subject to Part III of the Constitution.

11.4. The framers of the Constitution were aware of the rich history and heritage of this country being a secular polity, with diverse religions and faiths, which were protected within the fold of Articles 25 and 26. State interference was not permissible, except as provided by Article 25(2)(b) of the Constitution, where the State may make law providing for social welfare and reform.

11.5. The concept of Constitutional Morality refers to the moral values underpinning the text of the Constitution, which are instructive in ascertaining the true meaning of the Constitution, and achieve the objects contemplated therein.

11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practice their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts”.”

As things stand, the Bench then lays down in para 14 that, “What emerges from the ratio laid down is that the freedom of conscience and the right to freely profess, practice and propagate religion is available and that there are no restraints upon the free exercise of religion and the Court cannot impose its morality or rationality with respect to the form of worship and it is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by Courts.”

To put things in perspective, it is then enunciated very clearly and categorically in para 15 that, “In the present case, the policy of the Government cannot be interfered with by the judiciary. Every individual has to have mutual respect for the decisions taken as policy decisions by the Legislature and by the Executive. Judiciary being the guardian of legal rights, has to ensure that such policy confirms to the norms laid down by the Constitution of India. The present writ petition appears to be clearly an attempt to disturb the faith in the religious beliefs among the people. There is a clear attempt to bring about disruption in peace and harmony.”

It cannot be lost on us that the Bench then minces no words to observe in para 16 that, “It is not for this Court to interfere with or criticize upon any method be it religious or scientific adopted with hope to bring about bountiful rainfall in the State by issuing the Circular. Whether such method of performing poojas or yagnas to bring about rain is a success or failure is not within the scope of examination by this Court in the writ petition. It is performed with hope and belief and though they may be successful or not, this Court cannot destroy such belief or hopes of the multitude of people.”

As it turned out, para 17 then spells out that, “As an illustrative case, a farmer with a small piece of agricultural land, would not be able to grow any crop owing to lack of rainfall. He would hope and believe that rain would come some day to save him from the unfortunate situation in which he and his family have been forced to. Faith would lead to, in his limited knowledge, to perform poojas and invoke the benevolence of God to bring about rain. When such poojas are done by him, it would again lead to economic depravity. When however such poojas are performed in a temple close to his place, he would very willingly join with the belief and hope that the prayers would be answered. That faith which the farmer has, cannot be destroyed by this Court. That faith which the farmer has is strengthened by performing the poojas, which the State has encouraged through the impugned circular.”

Above all, para 18 then makes it clear in no uncertain terms that, “It is also to be mentioned that normally and consistently the Courts have kept away from interfering with religious practices and beliefs. Rarely has any Court interfered with any religious practice and religious belief. The circular has been issued only with respect to the temples that are under the control and administration of the Government.”

Now let us deal with the concluding paras of this noteworthy judgment. It is held clearly in Para 19 that, “We do not find any irregularity or infirmity in the issuance of such circular necessitating interference with the same. We offer no opinion as to whether the practice is scientific in nature or purely religious in nature.” Para 20 then stipulates that, “In view of the above reasons, we are not prepared to admit the writ petition.” Lastly, para 21 then concludes by holding that, “Accordingly, the Writ Petition is dismissed at the admission stage itself. Consequently, connected writ miscellaneous petitions are also closed.”

On a concluding note, it has to be said that the Madras High Court in this commendable and significant judgment has very clearly laid down that court cannot destroy faith and belief of people. Very rightly so! All courts must adhere to it!

No doubt, the Madras High Court has thus clearly drawn a red line for itself which it cannot tread upon at its own discretion! The supreme importance which has been attached with the faith, feelings and sentiments of the struggling farmer who performs poojas diligently in the hope that it will bring rain by the Madras High Court Bench in this latest, landmark and extremely laudable judgment is certainly praiseworthy and extremely laudable! The Madras High Court has also assigned suitable reasons for not admitting the writ petition of the petitioner which have a lot of merit in them! No denying it!

Sanjeev Sirohi,

Courts Cannot Decide Eligibility And Essential Qualifications For Employment: Supreme Court

At the outset, it would be imperative to mention that in a laudable, landmark and latest judgment delivered on May 3, 2019, the Supreme Court has laid down in no uncertain terms that the courts cannot decide eligibility and essential qualifications for employment. That is certainly also not the job of the Court! In this noteworthy Supreme Court judgment titled The Maharashtra Public Service Commission Through Its Secretary Vs. Sandeep Shriram Warade And Others in Civil Appeal No(s). 4597 of 2019 (arising out of SLP (Civil) No(s). 8494 of 2018) along with other Civil Appeals and authored by Justice Navin Sinha for himself and Justice Arun Mishra has clearly, categorically and convincingly held that, “If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same.”

First and foremost, the ball is set rolling in para 1 wherein it is observed that, “Delay condoned. Leave granted.” Para 2 then brings out that, “The appellants are aggrieved by the orders of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.”

On the one hand, it is pointed out in para 3 that, “Learned counsel for the appellants submitted that academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. The High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.”

On the other hand, para 4 then points out that, “Learned counsel for the respondents submitted that they were Post Graduates (M. Pharma) having more than three years experience in research and development coupled with testing of drugs in a laboratory. They were also eligible to be considered for appointment and were called for selection after scrutiny of their documents by a Committee constituted for the purpose and which recommended them as eligible for consideration. Once they were consciously permitted to participate in the selection process, they could not be declared ineligible for consideration. Reliance was placed on the definition of manufacturing process in Section 3(f) of the Drugs and Cosmetics Act, 1961 (hereinafter called “the Act”). No other grounds were urged by the parties.”

Be it noted, it is then disclosed in para 5 that, “The Maharashtra Administrative Tribunal (hereinafter referred to as “the Tribunal”) in O.A. No. 820 of 2013 held that experience of manufacturing or testing in a research and development laboratory could not be termed as experience for the purposes of the present recruitment. The said experience only entitled the candidate for a preference subject to possessing the basic eligibility and requisite experience in the manufacture and testing of drugs.”

What followed next is disclosed in para 6 which states that, “Reversing the conclusion of the Tribunal, the High Court in W.P. No. 6637 of 2014 and analogous cases held that to deny opportunity to a candidate possessing research experience in synthesis and testing of drugs in a laboratory on the ground that such research experience cannot be linked with manufacturing, would be a perverse interpretation. A candidate having research experience in synthesis and testing of drugs in a laboratory needed to be preferred and could not be denied opportunity by misreading the eligibility conditions. Research work carried out in well reputed laboratories is for the purposes of manufacturing drugs. This order was followed by the High Court in W.P. No. 7960 of 2016 instituted before the High Court directly.”

After hearing the version of both the sides and considering them duly, the Bench then goes on to observe in para 7 that, “We have considered the respective submissions. It is considered prudent to first set out Section 3(f) of the Act and the extract of the advertisements.

“3(f) “manufacture” in relation to any drugs (or cosmetic) includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale or distribution but does not include the compounding or dispensing of any drug or the packing of any drop or cosmetic in the ordinary course of retail business and to manufacture shall be construed accordingly.”

Needless to say, it is then stated in para 8 that, “The qualifications in the advertisement dated 04.01.2012 for Assistant Commissioner (Drugs) reads as follows:

“(b) Possess qualification and experience prescribed as under:-

(i)                         Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law, and

(ii)                      Experience gained after acquiring qualification in the manufacture or testing of drugs or enforcement of the provisions of the Act for a minimum period of five years”.”

As things stand, it is then brought out in para 9 that, “The advertisement for Inspectors, reads as follows:-

“Clause 4.5 – Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in clinical Pharmacology or Microbiology from a University established in India by law; and

Clause 4.6 – Practical experience gained after acquiring qualification above in clause (i) in the manufacture or testing of drugs or enforcement of the provisions of the Act for a period of not less than three years;

Clause 4.7 – Preference may be given to candidates having a post graduate degree in a subject mentioned in clause 4.5 or research experience in the synthesis and testing of drugs”.”

More importantly, the Bench then explicitly and elegantly held in para 10 that, “The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements of a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

To be sure, it is then clarified in para 11 that, “The fact that an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

What’s more, it is then pointed out in para 12 that, “The plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.”

Furthermore, it is then elucidated in para 13 that, “Manufacture has been defined as a process for making, altering, ornamenting, finishing, packing, labeling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale or distribution. Therefore, the experience of testing has to be correlated to the manufacturing process which naturally will be entirely different from the testing carried out in the research and development laboratory before the product is released for manufacture and sale in the market. To say that experience in testing of drugs in a research and development would be at par with the testing done at the time of manufacture before sale cannot be countenanced and has to be rejected.”

It also cannot be lost on us that it is then enunciated in para 14 that, “The preference clause in Clause 4.7 only means that if a candidate with the required degree qualification and practical experience in the manufacturing and testing of drugs for stipulated period of years has an additional desirable attribute of a research experience in a research laboratory, other things being equal, preference could be given to such a candidate. The term “preference” mentioned in the advertisement cannot be interpreted to mean that merely because a candidate may have had the requisite experience of testing in a research and development laboratory he/she possessed the essential eligibility and had a preferential right to be considered for appointment.”

Finally and perhaps most importantly, in the last para 16, it is then held that, “We are therefore unable to uphold the interpretation of the terms of the advertisement as made by the High Court both with regard to the posts of Assistant Commissioner (Drugs) and Drug Inspectors. The impugned orders of the High Court dated 04.05.2017 and 17.07.2017 are set aside. The appeals are allowed. There shall be no order as to costs.”

In conclusion, it can well be said that the Apex Court has made it absolutely clear in this landmark judgment that courts cannot decide eligibility and essential qualifications for employment. This is not their job also! It has thus very rightly imposed self-restrictions on courts itself and made it clear that they are not to be violated! Para 10 of this extremely laudable judgment is most useful to recall in this regard. Very rightly so!

Sanjeev Sirohi,

Supreme Court sets aside merger order of NSEL with 63 moons technologies limited .

Judgment dated 30.04.2019 passed by the Hon. Supreme Court in 63 moons technologies limited (formerly, FTIL) Vs Union of India & Others

Vide a detailed judgment dated 30.04.2019, the Hon’ble Supreme Court of India was pleased to hold that the Order dated 12.02.2016 of forced amalgamation passed by the Central Government, was ultra vires of Section 396 of the Companies Act and violative of Article 14 of the Constitution of India. While allowing the appeals, the impugned Judgment of the Hon’ble Bombay High Court has been set aside by the Hon’ble Supreme Court.

The Order impugned was supported by the Central Government mainly on three grounds as stated and reproduced in Para 59.1 of the Judgment i.e.- a) restoring/ safeguarding public confidence; b) giving effect to business reality of the case by consolidating the business of FTIL and NSEL, and preventing FTIL from distancing itself from NSEL; c) for facilitating NSEL in recovering dues from defaulters by pooling human and financial resources of FTIL and NSEL. It was repeatedly claimed that these three grounds contribute a facet of ‘public interest’ in the context of provisions of Section 396 of the Companies Act.

The Hon’ble Supreme Court held that the first and second ground as mentioned by the High Court, were not even contained in the Draft Order of Amalgamation. Even otherwise, it was held that these grounds were in breach of Section 396(3) and (4) of the Companies Act. (Para 59.2 of the Judgment).

It was further held that so far as the third ground i.e. reason (c) is concerned, that reason by itself was for the purpose of private interest of a group of investors/traders, as distinct from public interest. It was held that-

54. In the context of compulsory amalgamation of two or more companies, the expression “public interest” would mean the welfare of the public or the interest of society as a whole, as contrasted with the “selfish” interest of a group of private individuals….

“59.5… For all these reasons, we find that no reasonable body of persons properly instructed in law could possibly arrive at the conclusion that the impugned order has been made in public interest.”

Further, the Hon’ble Supreme Court held as under:

75…Even otherwise, this is a case where there is complete non-application of mind by the authority assessing compensation to the rights and interests which the shareholders and creditors of FTIL have and which are referred to in Section 396(3) of the Act. This being the case, it is clear that Section 396(3) has not been followed either in letter or in spirit.”

Mr Jignesh Shah, Chairman Emeritus and Mentor, 63 moons technologies, said, “Satyamev Jayate. We have always had full faith in the Indian judiciary and our Hon. courts. Finally, truth has prevailed.”

Mr Venkat Chary, Chairman, 63 moons technologies said, justice has finally prevailed in the reasoned and well-articulated judgment of the Hon. Supreme Court which has upheld the rule of law by laying down the elaborate criterion for what is public interest and due process.

While welcoming the judgment of the Hon. Supreme Court, Mr S Rajendran, MD, 63 moons technologies, said the company has been articulating in the past that the merger will serve no purpose for the stakeholders of either NSEL or FTIL but to benefit only a few people with vested interest. As such, our stand has been fully vindicated.

Supreme Court Designates 37 Lawyers As Senior Advocates

      In a major and significant development, the Supreme Court which is the highest court in India has for the second time designated 37 lawyers as “Senior Advocates”. It goes without saying that it is a big honour for all these 37 lawyers to be designated as “Senior Advocates”. But then they deserve also as they have given their “prime years” in this noble profession of lawyer and that too right in the Apex Court itself and have certainly worked hard relentlessly to achieve it.

So, it goes without saying that they certainly deserve all the “applause and accolades” which they are now getting! We all as citizens of India also ought to know as to who all are these 37 lawyers who have been designated as “Senior Advocates”. They are as follows: –

1.  Madhavi Goradia Divan

2.  R. Balasubramanian

3.  Anitha Shenoy

4.  Aruneshwar Gupta

5.  Jugal Kishore Tikamchand Gilda

6.  Sanjay Parikh

7.  Preetesh Kapur

8.  Ashok Kumar Sharma

9.  Deepak Madhusudan Nargolkar

10.                   Ajit Shankarrao Bhamse

11.                   Nikhil Nayyar

12.                   S. Wasim A. Qadri

13.                   M.G. Ramachandran

14.                   Manish Singhvi

15.                   Gopal Sankaranarayanan

16.                   Mohan Venkatesh Katarki

17.                   Nakul Dewan

18.                   Devadatt Kamat

19.                   Anip Sachthey

20.                   Anupam Lal Das

21.                   G. Venkatesh Rao

22.                   Jayanth Muth Raj

23.                   Arijit Prasad

24.                   Jay Savla

25.                   Aparajita Singh

26.                   Menaka Guruswamy

27.                   Siddhartha Dave

28.                   Siddharth Bhatnagar

29.                   C.N. Sreekumar

30.                   Aishwarya Bhati

31.                   Santosh Paul

32.                   Gaurav Bhatia

33.                   Bharat Sangal

34.                   Vinay Prabhakar Navare

35.                   Manoj Swarup

36.                   Ritin Rai

37.                   Priya Hingorani.

 

Needless to say, this is the second instance of Supreme Court conferring senior designation as per the “Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018”, notified in August 2018. It must be pointed out here that out of these 37 advocates designated as “Senior Advocates”, six are women lawyers who have made a mark for themselves by excelling. They are Aishwarya Bhati, Anitha Shenoy, Madhavi Goradia Divan, Menaka Guruswamy, Priya Hingorani and Aparajita Singh. It would be apt to know in brief about these six women lawyers now designated as “Senior Lawyers”.

To be sure, Madhavi Divan is at present an Additional Solicitor General (ASG) in the Supreme Court. She was appointed ASG on December 17, 2018 and will hold office till June 30, 2020. She obtained her law degree from Pembroke College, Uniersity of Cambridge, UK and began her practice in the Bombay High Court. She has since represented two state governments – that of Gujarat and Madhya Pradesh while also being recognized as an accomplished author. Anitha Shenoy is a 1995 graduate of National Law School of India University, Bangalore and has been the standing counsel for State of Karnataka in the Supreme Court for long.

Furthermore, Menaka Guruswamy is a 1997 graduate of National Law School of India University, Bangalore. She read law as a Rhodes Scholar at Oxford University where she was awarded a Doctor of Philosophy in Law (D. Phil.) and as a Gammon fellow for a Masters in Law at Harvard Law School. She has worked as a human rights consultant to the United Nations and has taught at the New York University School of Law. In the Navtej Johar case which decriminalized homosexuality, she represented IIT students and graduates who belong to the LGBTQIA community. She has also assisted the Supreme Court as amicus curiae in the Manipur Extra-Judicial killings case. She has the rare honour of having her portrait unveiled at Rhodes House in Oxford University. Her name was also included in the Forbes list of 2019 trailblazers which is a great achievement.

Moving on, Aishwarya Bhati is an Advocate-on-Record. In 2017 she was appointed as Additional Advocate General of Uttar Pradesh in Supreme Court. She did not hide her true feelings and termed the “Senior Advocate” designation as a “dream come true” and also acknowledged that she was conscious of the “great responsibility” that comes with the designation.

Going ahead, Priya Hingorani has been in active law practice since 1990 when she was enrolled as an Advocate with the Bar Council of Delhi. Her primary practice has been in the Supreme Court of India and has also appeared in many High Courts. Aparajitha Singh was a junior to “Senior Advocates” Harish Salve and UU Lalit before starting independent practice. She had assisted the Apex Court as amicus curiae to suggest measures for curbing air pollution, which led to the ban of sale of BS III vehicles since April 2017. She was also a part of a Committee which had suggested a common working plan on rehabilitation of destitute widows.

To put things in perspective, it was in September 2018 that the Supreme Court had designated 25 former High Court Judges, who started practice in Supreme Court as senior advocates. It cannot be lost on us that the guidelines are notified pursuant to the Supreme Court judgment in Indira Jaising’s case titled “Ms Indira Jaising v. Supreme Court of India Through Secretary General and others in Writ Petition (C) No. 454 of 2015 which had very clearly prescribed the parameters for designation of advocates as “senior advocates” after senior advocate Ms Indira Jaising who filed the petition pointed out that the present system of designating advocates as “senior advocates” is flawed! This was certainly a major landmark development which shall always be embedded in the golden pages of history and the contribution of Ms. Indira Jaising is certainly historic and remarkable!

What’s more, the guidelines empower a permanent committee called “Committee for Designation of Senior Advocates” to deal with all the matters pertaining to such conferment. This Committee shall comprise of the Chief Justice of India as its Chairperson, along with two seniormost Supreme Court Judges, Attorney General for India and a member of the Bar as nominated by the Chairperson and other members. The Committee is expected to meet at least twice in a calendar year. It will also have a Permanent Secretariat, the composition of which shall be decided by the CJI in consultation with the other members of the Committee.

Be it noted, it would be very significant to now discuss in detail the four point criteria that will play a key role in the assessment of advocates as “Senior Advocates”. Every advocate who aspires to become a “Senior Advocate” must know about this. Even otherwise it would be useful even for those not in this field to know about it so that they understand what it means to be a “Senior Advocate”. The four point criteria for assessment of advocates for senior designation is as follows: –

1.  Number of years of practice of the applicant from the date of enrolment (10 points for 10-20 years of practice, 20 points for practice beyond 20 years) – 20 points

2.  Judgments (reported and unreported), which indicate the legal formulations advanced by the Advocate in the course of proceedings of the case; pro-bono work done by the Advocate; and domain expertise of the Advocate in various branches of law – 40 points

3.  Publications by the Advocate – 15 points

4.  Test of personality and suitability on the basis of interview/interaction – 25 points

Application and eligibility

It would be useful and instructive to mention here that a recommendation in writing can be submitted by the Chief Justice of India or any other Judge of the Supreme Court of India if they are of the opinion that an advocate deserves to be conferred with the designation. An Advocate on Record (AoR) who is seeking to be conferred with the unique distinction as “Senior Advocate” may also submit an application in the prescribed format to the Secretariat. The Secretariat will invite applications from retired Chief Justices or Judges of the High Court and advocates seeking conferment of the distinction every year in the months of January and July. The notice shall be published on the official Supreme Court website, and the information would also be provided to the Supreme Court Bar Association and also to the Supreme Court Advocates-on-Record Association.

As far as eligibility is concerned, it has to be borne in mind that an Advocate shall be eligible for designation as “Senior Advocate” only if he has 10 years combined standing as an advocate or a District Judge, or as a Judicial Member of any Tribunal whose qualification for eligibility isn’t less than that prescribed for a District Judge. It must also be remembered that retired Chief Justices or Judges of the High Courts are also eligible for the distinction of being designated a “Senior Advocate”.

Procedure for designation

It must be reiterated that all the applications and written proposals are to be submitted to the Secretariat which will then compile data on the applicant’s reputation, conduct and integrity, including his participation in pro bono work and the number of judgments in which the advocate appeared during the past five years. The application or the proposal would then be published on the Supreme Court website. The whole point of this exercise would be to invite the suggestions and views of other stakeholders. After the data-base on the Advocate is complied, the Advocate’s case would be put before the Committee for further scrutiny, which will assess the candidates on the basis of four-point criteria which has already been discussed above in great detail.

Simply put, post such overall assessment, the Advocates candidature would then be submitted to the Full Court, which would then vote on the same. It must be noted here that the guidelines however leave no room for doubt by clarifying in no uncertain terms that the cases of retired Chief Justices and Judges of the High Courts will straightaway be sent to the Full Court for its consideration. The Rules also further specify that voting by secret ballot will not normally be resorted to in the Full Court except when “unavoidable”.

While continuing in the same vein, it is then added that the guidelines however do clarify that cases which are rejected by the Full Court can be considered afresh after two years and cases which are deferred can be considered after one year from such deferment. The Rules clarify that if a Senior Advocate is found guilty of conduct, which according to the Full Court disentitles the Senior Advocate to continue to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same. The Full Court should, however, give an opportunity of hearing to the concerned Senior Advocate before any action is taken against them.

Let me say this point blank: Each and every person who is in legal field must know how advocates are designated as “Senior Advocates” in Supreme Court. Not stopping here, it has to be said that even those who are not in legal profession must also know what it takes to become “Senior Advocates”. A humble effort has been made in this direction by me to make my esteemed readers more aware on this front. Hope that they have found it useful!

Sanjeev Sirohi,