Madras High Court Gets Its First All-Women Bench ahead of the International Women’s Day

For the first time in the history of 157 years of the Madras HC that an all-women Full Bench has been constituted to hear a case. Chief Justice of Madras High Court Amreshwar Pratap Sahi took this step ahead of the International Women’s Day when he established the women justices-led bench composing of Justices Pushpa Sathyanarayana, Anita Sumanth & PT Asha to hear the crucial case pertaining to the application of the Employees State Insurance Act of 1948, on aided & unaided educational institutions on Wednesday.

This is the first time an all-women Full Bench (comprising of three judges) has been constituted to answer a reference made to it by a division bench (comprising two judges). The division bench of Chief Justice & Justice Subramonium Prasad set up the historic Full Bench on Monday. The bench heard the case on Wednesday. The bench reportedly heard the case of whether unaided private educational institutions in the State could be treated to be an ‘establishment’ under Section 1(5) of the Employees State Insurance Act of 1948 so that the provisions of the legislation could be made applicable to them.

The All India Private Educational Institutions Association filed a writ petition in 2019 in which it alleged that the Tamil Nadu govt had discriminated between private unaided educational institutions & the Govt-aided educational institutions by issuing a notification for application of the Employees State Insurance Act of 1948 only to the former & not to the latter.

The Madras High Court has been a progressive court, it topped the ranking in having the most number of women judges with 11 women judges as the court inducted Justice PT Asha in June, 2018 when the Chief Justice was Indira Banerjee who has now become a Supreme Court judge. However, the number dipped to nine last year with the retirement of two judges -Justice S Ramathilagam retired while Justice VK Tahilramani, then Chief Justice of Madras HC, resigned from her position – since then out of the total 55 judges in Madras High Court. Most of these nine judges have been promoted to the bench during the tenure of former Chief Justice Sanjay Kishan Kaul who is also now a Supreme Court judge.

Women judges have outnumbered men in Full bench during a hearing when the bench comprised of Justice TS Sivagnanam sat along with Justices V Bhavani Subbaroyan & Asha last year. It has also had a division bench led by women judges earlier during the tenure of Chief Justice Indira Banerjee who also led the bench.

Delhi High Court bids Farewell to Justice G.S. Sistani.

The Delhi HC on Friday bid farewell to Justice G.S. Sistani, the 2nd senior most judge, whose retirement brings down the total number of judges in the court to 33 as against the sanctioned strength of 60.

The HC organised a farewell for Justice Sistani, who will retire on Mar 10, on Friday owing to the Holi break on Mar 9 & 10.

Once Justice Subramonium Prasad, transferred to New Delhi from the Madras HC, takes charge as an additional judge, the strength would go up to 34.

Earlier in the day, when Justice Sistani was part of a Bench headed by Chief Justice D.N. Patel, as is the practice on the last day of a judge before he retires, lawyers in the courtroom expressed their gratitude & respect for him.

Additional Solicitor General Maninder Acharya & Central govt standing counsel Anil Soni said even adverse orders against them “did not pinch” because of the smile on Justice Sistani’s face.

The same view was echoed by others present in the courtroom. In response to it, Justice Sistani said nobody ever shouted in his court so he never had to shout back either.

A farewell was also organised for him by the Delhi High Court Bar Association where large number of lawyers gathered to bid him goodbye.

Justice Sistani enrolled as an advocate with the Bar Council of Delhi in 1982 & he was appointed as an additional judge of the Delhi HC with effect from May 29, 2006, & was confirmed as a permanent judge a year later on Aug 29, 2007.

 

Conduct Of Some Lawyers Diminishing Reputation Of Law Profession Among Public : Madras HC

While directing a lawyer to vacate the building rented out to him by a Doctor, the Madras High Court observed that the law profession is already under severe criticism and due to the activities of lawyers in the State, it further started diminishing its reputation among public.

Justice S.Vaidyanathan came down heavily on a lawyer observing that he has been adopting dilatory tactics to prolong the proceedings before Rent Control Authorities. Observing that his conduct is unbecoming of a lawyer, the judge said:

It is saddening to note that owing to intrusion of black sheep into the noble profession of advocacy, like the petitioner, the reputation of good lawyers in the society is at the verge of fall. The petitioner is a venom and if he is allowed to be mingled with other members of the Bar freely, the entire profession would be ruined, like a single drop of poison in a pot of milk turning the whole milk into poison.
An Advocate is a representative, but not a delegate and he gives to his client the benefit of his learning and his talents. Lawyers are globally recognised as Officers of the Court and agents of the administration of justice and they are imposed with the social duty to promote rule of law in the society and fight for protecting the fundamental rights and freedoms of the citizens as guaranteed in the Constitution. In this case, the petitioner, being an Advocate, instead of playing the role of a promoter of rule of law, has been teaching a lesson to the society as to how to break law and the profession is being squeezed by the hands of such person. The Legal Ethics and the Profession of Law requires that an Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the Advocate himself ought not to do and in that event, he shall refuse to represent the client, who persists in such improper conduct. When the petitioner / Advocate himself indulges in such improper conduct, he is making mockery of not only the profession, but also the Court.
The court observed that in olden days, respect extended to lawyers were inexplicable and that they were given utmost regards in the society. The Judge further said:

 

At this point of time, it is appropriate for me to recollect an incident described by my father that when my father was travelling in a Tram in Madras, a young chap got into it and was standing near to an old man. The old man asked the chap as to what he was doing and upon hearing that the young chap was a Lawyer, he immediately stood up and requested that chap to sit in his seat. Lawyer gained that kind of respect in those days and it is a million dollar question as to whether those days will come back.Even many of our great leaders, like Mahatma Gandhi, Jawaharlal Nehru and Dr.B.R.Ambedkar are lawyers, who sacrificed their lives for the noble cause of justice besides fighting for freedom and several unknown lawyers had also lost their lives in the freedom struggle.
While directing the lawyer to vacate the premises within a period of two weeks, the Court also granted liberty to the landlord to prefer complaint against the lawyer tenant before the Bar Council of Tamil Nadu and Puducherry and observed thus:

“It is apposite to state that law profession is already under severe criticism and due to the activities of lawyers in this State, it further started diminishing its reputation among public. If the tenant, like petitioner / Advocate is allowed to occupy the premises, a situation may arise, when no owner will rent out his building to an Advocate and in that event, people will definitely lose their faith in the justice delivery system..
Unless such person with unprofessional conduct is dealt with an iron hand, the noble profession cannot be safeguarded and if this kind of Advocate is not taught a lesson, it will definitely set a bad precedent to the Public and create a bad image about Lawyers in the society, as the person like the petitioner ought to be nipped at the bud itself and it is for the Bar Council to decide on the same.”
Interestingly, these directions have been issued in a Transfer Petition filed by the Lawyer-Tenant seeking transfer the case from the file of/ Sub-Ordinate Court, Vellore to the Subordinate Court, Ranipet by levelling certain complaints against the Principal Subordinate Judge. Justifying the issuance of the above directives, the court said:

“Though the directions issued by this Court may appear beyond the purview of a Transfer Petition, this Court is empowered to mould the relief by invoking the inherent powers of this Court as provided under Section 151 of CPC to pass orders to meet the ends of justice or to prevent abuse of the process of the Court.”

Doctors Have No Right To Go On Strike/Boycott Under Any Circumstances : Madras High Court

The Madras High Court has observed that Doctors do not have the right to go on strike/boycott under any circumstances.

Justice N. Anand Venkatesh observed thus while considering petitions challenging the charge memos and the transfer and posting orders issued to Doctors by the Director of Medical Education and the Director of Medical and Rural Health Services.

Taking notice of the fact that the Doctors have resorted to strike protesting the above transfer orders and memos, the Judge considered the issue whether the Doctors have the right to go on strike, whatever be their demands?

The Court, referring to many decisions, observed that in the absence of a legal or even a moral or equitable right to go on a strike the logical corollary is that any form of strike is necessary illegal and without any legal or moral justification. The judge observed:

“There can be little doubt that by going on strike doctors violate a fundamental maxim of medical jurisprudence “Primum, non nocere” ie., first, do no harm. The harm that befalls patients on account of strikes is unfathomable. By using strikes to resolve issues doctors, like lawyers, forget the moral worth and dignity of patients and leave them in the lurch unmindful of the humanitarian consequences that ensure from their actions. Patients cannot be a means to an end. They cannot be mere playthings whose lives can be put on the line to achieve other ends through the medium of strikes.”

The Doctors cannot resort to strike or boycott under any circumstances since they are directly dealing with lives of persons and as between the demands of the Doctors and the lives of the patients, it is life that is more important than anything else. The nature of duty of a Doctor is such that the non-availability of the Doctor even for a single minute may cost a life

The bench, however, concluded that the transfer orders and the charge memos issued to the doctors are clearly tainted with malafides and it has been issued only to punish them who were sphere heading the agitation. The Court also said that it expects the Government to resolve the long standing grievance of the Government Doctors. Quoting from Kambar Ramayana, the judge said:

 

 

Lord Rama’s advice to Sugreeva thus “Rule justly, that your subjects look up to you, not as a King, but as a caring mother nurturing her children”, expounding the ideal, as was in vogue in ancient times that King and God were as caring as a mother of her children.”
This Court makes a fervent request to the Government to immediately address the issues/demands made by the Government Doctors and find a solution. The more it is kept pending without any solution, the more it is going to affect the morale of the Government Doctors. The love and concern shown by a Doctor to a patient plays a major role in the recovery of a patient. For this to happen, the Doctor must be kept happy and satisfied and it is the duty of the Government to ensure the same by finding an immediate solution for the long pending problems. Either of the parties are not winners or losers in this litigation and this judgment must ultimately go in favour of the larger public interest involved in the present case. This can happen only if both the parties come together and find an early solution for the pending issues.

Centre and TN govt oppose Rajiv Gandhi assassination case convict Nalini’s plea.

The Centre has reaffirmed in the Madras High Court its stand that the Rajiv Gandhi assassination case convicts cannot be set free without its consent and said the Tamil Nadu cabinet recommendation for their premature release would have ‘zero’ effect.

The oral submission was made on Thursday by Additional Solicitor General (ASG) G Rajagopalan before a bench of Justices R Subbiah and R Pongiappan during the hearing of a petition by Nalini, one of the seven life convicts, seeking to declare her detention as illegal.

Nalini has moved the court contending that since the Tamil Nadu Governor had failed to order her release based on the September 9, 2018 recommendation of the state cabinet, she was in illegal detention.

The bench, which heard arguments from all parties, reserved its orders on her petition.

Opposing the plea of Nalini, the ASG cited a Supreme Court order and said unless there was an order in the name of the Governor, it was not an illegal detention.

He said the resolution passed by the state Council of Ministers was not an order (for release).

Referring to an earlier litigation by Nalini in the Supreme Court, he said then the question raised was whether the state government has the power to release the convicts without the consent or consultation of the Central government under CrPC provisions.

The apex court had held that the Centre’s consent or concurrence was necessary because the case was investigated by the Central Bureau of Investigation (CBI), Rajagopalan said.

Already the central government had refused to release these convicts. Besides, as per the Supreme Court orders, life sentence means imprisonment till death, he said.

Intervening, the bench asked the ASG then what will be the effect of the state cabinet’s decision recommending premature release of the seven convicts (under Article 161 of the Constitution), which is pending before the Governor.

To this, the the Centre’s counsel said the effect of the resolution passed by the cabinet was Zero.

In its counter affidavit filed earlier this month, the Centre had said the Tamil Nadu Governor has the discretion under powers conferred by the Constitution, to decide on the pending mercy petition of Perarivalan, another life convict in the case.

State Public Prosecutor A Natarajan, in his arguments on Thursday submitted that some of the offences committed by the accused come under the Central Act and therefore, for the purpose of commutation or remission, the state government has to get consent from the central government.

The Cabinet passed a resolution requesting the Governor to release all the seven convicts. It can only recommend or request the Governor to consider their release and cannot demand or ask him to set them free, he said adding it was for the Governor to decide.

Unless an order was passed, there was no question of illegal detention of Nalini, he added.

Radhakrishnan, counsel for Nalini, contended the resolution passed by the Council of Ministers was binding on the governor.

Since the cabinet advised the Governor on September 9, 2018 to release the petitioner, the order to the effect should have been issued the very next day itself by the government, he maintained.

As per the ruling of the Supreme Court in Maru Rams case, the Governor’s signature was not necessary for the purpose of releasing the petitioner, he claimed.

All the seven were convicted by a special TADA court for their role in the assassination of former prime minister Rajiv Gandhi on May 21, 1991 by an LTTE suicide bomber during an election rally at nearby Sriperumbudur.

They were sentenced to death, but later it was commuted to life imprisonment.

Besides Nalini, the other life convicts are her husband Murugan, A G Perarivalan, Santhan, Jayakumar, Ravichandran and Robert Pyas.

Madras High Court quashes .defamation cases against two leading Tamil dailies.

The Madras High Court has quashed the criminal defamation cases filed by the Tamil Nadu government against a leading English Daily and a Tamil newspaper for publishing an interview of BJP leader Subramanian Swamy on late J Jayalalithaa, in 2014.

Justice M Dhandapani had recently quashed the government orders issued in 2014, for prosecuting the publisher of a Tamil daily and Resident Editor of an English newspaper for publishing the interview of Swamy, in which he had made a mention of his letter to the Prime Minister.

Allowing the petitions by the newspapers against the G.Os, the judge held that the state government’s action in initiating prosecution against the petitioners for carrying the interview of Swamy was a “direct invasion” into the right of freedom of speech and expression that cannot be curtailed by invocation of Section 499 IPC.

While it was the duty of the Court to safeguard the interests of those persons holding public office from being defamed for discharging their public functions, equally, the citizens should also be safeguarded from the governmental machinery against malicious prosecution, he added.

The judge also noted that the ingredients for filing a complaint by the public prosecutor in the present case as enumerated under section 199(2) Cr Pc. itself has not been fulfilled.

The defamation should be in respect of the conduct of the public servant in the discharge of his or her public functions, which is not the case on hand, he pointed out.

The statements carried by the petitioners in print, by no stretch of imagination, could be said to be defamatory ones made with a view to harm the reputation of the Chief Minister’s office in respect to her conduct in the discharge of her public functions, the court said.

“Therefore, the initiation of the prosecution for defamation u/s 199 (2) Cr.P.C. is not sustainable for the offence alleged to have been committed under section 499, 500 and 501 IPC,” it said.

The BJP leader had alleged that then chief minister Jayalalithaa saw his success as threatening her political position in the Assembly polls.

In his letter to Modi, Swamy had criticised late Jayalalithaa for appropriating his (Swamy) achievements, his hard work on issues pertaining to Mullaperiyar dam, installation of the Thevar statue in Parliament and the 2G spectrum scam.

Subsequently, the city public prosecutor had filed the defamation cases against the two newspapers for carrying the interview.

Madras High Court concludes hearing on Vedanta plea challenging closure of Sterlite plant

The Madras High Court has reserved orders on a petition moved by mining major Vedanta Limited challenging the closure of its copper smelter unit in Thootukudi in Tamil Nadu in May 2018.

Concluding the hearing of arguments after 39 days, a special bench of Justices TS Sivagnanam and V Bhavani Subbaroyan said on Wednesday it would try to deliver the order as expeditiously as possible.

Vedanta had approached the high court on in February last year seeking to reopen the Sterlite plant which was closed following a May 23, 2018 order issued by the Tamil Nadu Pollution Control Board (TNPCB) in the backdrop of violent protests against the unit that left 13 people dead in police firing on May 21 and 22.

Vedanta had moved the plea as suggested by the Supreme Court.

The top court had on February 18, 2019, set aside the National Green Tribunal order that allowed opening of the Sterlite Plant, which was at the centre of massive protests over pollution concerns.

It, however, gave the liberty to the company to approach the high court against the closure orders of the Tamil Nadu government and its state pollution control board.

An interim relief sought by Vedanta to permit access to the 200-acre factory premises to carry out maintenance work was rejected by the high court based on the assurance provided by the state that it would take responsibility of the premises.

The state government and TNPCB represented by the Advocate General Vijay Narayan and senior counsel CS Vaidyanathan opposed the plea for reopening of the plant, terming Sterlite as a ‘chronic’ defaulter.

“Unrestrained pollution appears to be standard modus operandi of the company, as it has been found guilty of various violations globally,” they had contended.

Vedanta’s senior counsels Aryama Sundaram and PS Raman countered the arguments, claiming that the closure order was nothing but ‘naked discrimination’ against the company.

The company also contended that the GO was only a knee-jerk reaction of the state to ‘appease’ a section of public with vested interest after 13 protesters were killed in the police firing.

It also alleged the hand of a Chinese company behind its closure and claimed the company which has financial interest in copper manufacturing was funding the protesters to agitate against Sterlite which is one of the biggest copper manufacturers with state-of-the-art technology.

Citing TNPCB pollution statistics, Vedanta claimed that a person living inside Sterlite is safer than a person living in Anna Nagar locality in Chennai.

Opposing the submissions, impleading petitioners in the plea Professor Fathima and Makkal Adhigaram told the court that the environment in Thoothukudi had actually improved after the closure of the plant.

Madras High Court junks plea to remove Governor

The Madras High Court on Friday dismissed a plea seeking a direction to the Union government to remove Banwarilal Purohit as Tamil Nadu Governor for not passing orders on the Council of Ministers’ advice to release the seven convicts in the Rajiv Gandhi assassination case.

A Division Bench, comprising Justices M Sathyanarayanan and R Hemalatha dismissed as not maintainable, the petition of president of Kanchipuram District Thanthai Periyar Dravidar Kazhagam, M Kannadasan.

The petitioner submitted that the Council of Ministers had passed a resolution on September 9, 2018, recommending and advising the Tamil Nadu Governor to order premature release of seven convicts.

Madras High Court
Madras High Court

Despite a lapse of nearly 15 months, the Governor was yet to take a call and therefore such ‘inaction’ amounted to violation of provisions of the Constitution, Kannadasan said

He said he had also submitted a representation to the union government on November 22, 2019, pointing out the ‘inaction’ on the part of the Governor and prayed for appropriate action to remove him and it was acknowledged on December 3, 2019.

The petitioner, alleging inaction on the part of Union government, filed the above writ petition.

Home Ministry Officials had said the Governor has no power to release the seven convicts as recommended by the state government and would have to consult the Centre as per law.

Since the probe into the case was done by CBI, the Governor would have to consult the central government before taking a decision to remit or commute the sentence of the seven convicts, they had said.

The AIADMK government in Tamil Nadu had recommended to the Governor to release the convicts, a move hailed by most political parties in the state.

On August 10, 2018, the Centre had opposed in the Supreme Court, the proposal of the Tamil Nadu government to release the seven convicts, saying that setting them free would set a wrong precedent.

The Supreme Court had said that the state government cannot remit sentence of any convict in cases probed by a central agency and the Centre’s approval was mandatory to release the killers of Rajiv Gandhi as the case was probed by the CBI.

Nalini, her husband Murugan, Santhan, Robert Payas, Perarivalan, Ravichandran and S Jayakumar are serving life term in connection with the assassination of Gandhi by a suicide bomber at an election rally in Tamil Nadu on May 21, 1991.

Bombay HC directs P Chidambaram and others to file statement in 10,000 cr damage suit by 63 Moons Technologies.

The Bombay high court on Friday asked Congress leader P Chidambaram, former forward market commission (FMC) chairman Ramesh Abhishek and serving bureaucrat KP Krishnan to file their statements in the the Rs 10,000 crore damage suit by 63 Moons Technologies within four weeks.

The bench said that if the trio fail to submit the statements within the 4-week deadline, then it would be considered as an undefended suit. At the same time The Bombay high court warned the three that this would be the last extension given to them, as they missed the deadline for the second time.

On October 22, 2019, he Bombay high court had directed Congress leader P.Chidambaram, Ramesh Abhishek and KP Krishnan to file their written statements within eight weeks in the Rs 10,000 crore damages suit filed by 63 Moons Technologies Limited.

The court had also rejected the plea of Chidambaram’s counsel for further liberty saying that eight-week time is more than enough to file the written statements.

In February, 63 Moons had said that it served legal notice to Chidambaram and the two others seeking damages worth Rs 10,000 crore.

The company has alleged that the three individuals played a major role in perpetrating the NSEL payment crisis to destroy the exchange ecosystem created by 63 Moons. As per the company, it resulted in huge damage and value erosion and loss of employment.

In August, the Bombay high court had ruled that the National Spot Exchange Ltd (NSEL) is not a financial institution and hence notifications for attachment of the company’s assets, including bank accounts and properties, under the MPID Act stand quashed.

The company 63 Moons Technologies has also filed a case against Ramesh Abhishek in Madras high court seeking Central Vigilance Commission (CVC) probe into the matter.

 

Madras High Court censures TN govt for terming water project ‘technically infeasible’

The Madras High Court has censured the Tamil Nadu government for terming a proposal for uninterrupted supply of water to a group of villages “technically not feasible”, while drawing a contrast with India’s space missions to the Moon and a planned programme to study the Sun.

Allowing a petition of a farmers’ association, Justice K Kalyanasundaram on Wednesday directed the government to build within three months an underground tunnel or overhead super passage across a contour canal near Pollachi in Coimbatore district.

He said though the proposal for the construction of a super passage at a cost of Rs 15 lakh was made six years ago, nothing happened and the plea for allowing the natural flow of water was considered “technically not feasible” by the government.

“The government is bound to protect the interest of the agriculturists and if they are not able to fulfil their commitments citing technical issue, in my considered opinion, committed skills be employed to fulfil the obligations of the government,” he said.

Nallar-Palar Irrigation Area Farmer’s Association in a plea had sought a super passage or tunnel in the area as the natural flow of river Nallar, the main source of water for six villages, had been blocked after the formation of Parambikulam Azhiyar Project and diversion of the river water to a contour canal.

The riparian rights of the agriculturists were seriously affected and they were deprived of their livelihood, the farmers’ association said.

Justice Kalyanasundaram in his order highlighted country’s technological prowess.

In the 21st century, India successfully launched Chandrayaan-1 on October 22, 2008 by a PSLV-XL rocket and the Chandrayaan-2 on July 22 this year by a GSLV Mk III and the vehicles had to travel more than 3.84 lakhs kms (to the Moon), he said.

“We are proud to say that both the teams were led by Tamilians — Mylswamy Annadurai and K Sivan. Now, it is proposed to launch Aditya-L1 prob, to study the Sun, and it shows there is a large scale of development of technology in India,” he said.

Justice Kalyanasundaram also observed how in 1960s a contour canal was formed in the Western Ghat by piercing a hard rock for a distance of about 50 km and at some places water was taken through tunnels.

He said it is apposite to note that in the 20th century, when there were absolutely no roads and transport facilities, beautiful dams had been built in the Western Ghats and they are still serving their purpose.