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WHAT IS MOOTING?
A moot court competition simulates a court hearing (usually an appeal against a final decision),
in which...
 You will often make extensive use of authority in delivering your submissions. You need
to know what principle a given c...
 Contempt of court and improper behaviour before a Magistrate
 Furnishing false information
 Giving improper advice
 M...
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What is mooting

  1. 1. WHAT IS MOOTING? A moot court competition simulates a court hearing (usually an appeal against a final decision), in which participants analyse a problem, research the relevant law, prepare written submissions, and present oral argument. Moot problems are typically set in areas of law that are unsettled or that have been subject to recent developments. They usually involve two grounds of appeal, argued by each side. The procedure imitates that followed in real courts: the judge enters, the mooters and the judge bow to each other, the clerk announces the matter, the mooters give their appearances and are then called on in turn to present their submissions, the judge asks questions of the mooters, the court adjourns, and the judge then returns to deliver a brief judgment and some feedback. Mooting is not the same as public speaking or debating, although it shares some common elements with these activities. It is a specialised application of the art of persuasive advocacy. It has been part of the process of training lawyers for centuries and plays an important role in legal education at rmlnlu . WHY MOOT? There are many reasons to moot. Mooting enables students (1) to engage with and think deeply about interesting and topical legal issues, (2) to enhance their advocacy, legal research and writing skills, (3) to work closely with and learn from their peers and (4) to demonstrate their interest in advocacy and competence as an advocate to prospective employers. Most students find mooting to be intellectually rewarding and highly enjoyable. It can be nerve-racking and frustrating but it is a lot of fun. TECHNIQUE: SOME BASIC TIPS  It is critical to engage with the bench. This requires you to bring many skills together including maintaining eye contact with the judge, speaking at an appropriate volume and pace, responding directly and accurately to questions and holding the judge’s interest. It also incorporates a cardinal rule of mooting: never, ever talk while the judge is talking.  Remember that it is accepted to ask a judge to repeat a question if you do not understand it, and that it is always best to say 'I regret I am unable to assist your Lordship/Ladyship on that point' when you really do not know the answer.  Mooting is not just about presenting propositions of law. An important aspect is applying those propositions to the facts in order to argue for the result you want. You should be very familiar with the moot problem and be able to take the judge to relevant paragraphs in it.
  2. 2.  You will often make extensive use of authority in delivering your submissions. You need to know what principle a given case stands for and if a case is binding on the court before which the moot is being argued.  A critical aspect of mooting is time management. You need to be able to expand or contract your submissions depending on how interventionist the judge is. QUESTION -2- Professional Misconduct Under The Advocates Act, 1961 A lawyer’s profession is meant to be a divine or sacred profession by all means. In every profession, there are certain professional ethics that need to be followed by every person who is into such a profession. But there is the fact that professional misconduct is a common aspect, not only in other professions but also in advocacy also. In simple terms, it means certain acts done by the persons which seem to be unfit for the profession as well as which are against certain ethics in this field. The term has been clearly defined in Black’s Dictionary as, the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, improper or wrong behavior. Its synonyms are a misdemeanour, impropriety, mismanagement, offense, but not negligence or carelessness. From the definition, it is now clear that the act of professional misconduct is done purely with an intention of getting unlawful gains. The Advocates Act, 1961 and the Indian Bar Council play a vital role in providing rules and guidelines regarding the working, code of conduct and such other matters concerning lawyers and advocates in India. The attributes of a profession are: 1. Existence of a body of specialized knowledge or techniques. 2. Formalized method of acquiring training and experience. 3. Establishment of a representative organization with professionalism as its goal. 4. Formation of ethical codes for the guidance of conduct. 5. Chargingof feesbasedonservicesbutwithdue regardsto the priorityof service overthe desire of monetary rewards. Misconduct means any acts which are unlawful in nature even though they are not inherently wrongful. Before the Advocates Act, 1961, we had the Legal Practitioners Act, 1879. There is no definition given for the term ‘misconduct’ in the Act, but the term ‘unprofessional conduct’ is being used in the Act. Some of the instances of professional misconduct are as follows:  Dereliction of duty  Professional negligence  Misappropriation  Changing sides
  3. 3.  Contempt of court and improper behaviour before a Magistrate  Furnishing false information  Giving improper advice  Misleading the clients in court  Not speaking the truth  Disowning allegiance to the court  Moving application without informing that a similar application has been rejected by another authority  Suggesting to bribe the court officials  Forcing the prosecution witness not to say the truth. Advocates Act, 1961 The provisions of Section 35 of the Advocates Act deal with professional misconduct of lawyers and advocates in India, which read as: A person is found guilty of professional misconduct; it shall refer the case to a disciplinary committee, shall fix a date of hearing and issue a show cause notice to the Advocate and the Advocate General of the State. The disciplinary committee of the State Bar Council, after being heard of both the parties, may: 1. Dismissthe complaint,orwhere the proceedingswere initiated at the instance of the State Bar Council, directs that proceedings be filed; 2. Reprimand the advocate; 3. Suspend the advocate from practice for such a period as it deems fit; 4. Remove the name of an advocate from the state roll of advocates. Misconduct is of infinite variety; this expression must be understood in a broad meaning, such that it extends the meaning under natural law, and there is no justification for restricting their natural meaning. Section 49 of the Advocate Act empowers the Bar Council of India to frame rules and standards of professional misconduct. Under the Act, no person has a right to make advertisement or soliciting; it is against advocate’s code of ethics. He is also not entitled to any advertisement through circulars, personal communications or interviews, he is not entitled to demand fees for training and to use name/service for unauthorized purposes. Contempt of Court as professional misconduct Contempt of court may be defined as an offense of being disobedient or disrespectful towards the court or its officers in the form of certain behaviour that defies authority, justice, and dignity of the court. In various cases involving contempt of court, the court held that if any advocate or legal practitioner is found guilty of the act of contempt of court, he/she may be imprisoned for six years and may be suspended from practicing as an advocate (In re Vinay Chandra Mishra).The court also held that license of the advocate to practice a legal profession might be canceled by the Supreme Court or High Court in the exercise of the contempt jurisdiction. There are many other landmark judgments regarding the cases involving professional misconduct of the advocates. In the case of V.C. Rangadurai v. D.Gopalan, the court looked into
  4. 4. the matter of professional misconduct in such a way that the decision was made in a humanitarian manner, considering the future of the accused in this case. The court held that “even so justice has a correctional edge, a socially useful function, especially if the delinquent is too old to be pardoned and too young to be disbarred. Therefore, a curative, not cruel punishment has to be delivered in the social setting of the legal profession”. The court then gave the decision in such a way that it looked at each and every aspect concerning the case as well as the parties concerned. It adopted a deterrent was of justice mechanism so that the accused person is awarded certain punishments but also provided a warning towards such other people who intend to commit acts of a similar nature. The judgment turned out to be a landmark in cases concerning professional misconduct as it delivered an effective judgment and but did not jeopardize the future of the accused person. In various other cases like J.S. Jadhav v. Musthafa Haji Muhammed Yusuf, the court delivered the decision in such a way that it created a notion in the minds of the wrongdoers that offenders will be punished accordingly. Conclusion From the analysis of various cases and certain facts and circumstances, it will be clear that unlike any other profession, advocacy is regarded as a noble profession and professional ethics must be maintained. Courts have dealt with various cases of professional misconduct wherein attempt of murder by the advocate towards his client have also been reported. Hence, there must be interference from concerned authorities so that persons with a criminal background are kept away from this profession. Even though there are guidelines dealing with the social background of the person enrolling in this profession, i.e. the person enrolling must be free from any criminal cases, it does not prove that the person has a criminal nature of his own. So Bar Council can implement certain rules and regulation so that the conduct of the person who is showing criminal behaviour can be controlled strict guidelines ensuring that the person no longer acts unlawfully against his profession. There must be various career guidance and development programs conducted by the Bar Council immediately after enrolment so that new legal professionals they will be aware of the do’s and don’t of this profession and there will be a better group of advocates in the coming decades. Bar Council of India and its Disciplinary Committee Section 36: Disciplinary Powers of Bar Council of India (1) Where on the receipt of the complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of profession or other misconduct , it shall refer the case for disposal to its Disciplinary Committee. (2) Disciplinary Committee of the Bar Council of India may either on its own motion or on a report by any State Bar Council or on an application made to it by any person interested, withdraw for inquiry before itself any any proceedings for disciplinary action against any advocate pending before the disciplinary committee of the State Bar Council and dispose of the same.
  5. 5. (3) In disposing of the case, the disciplinary committee of the Bar Council of India shall observe the procedure laid down in section 35, the reference to the Advocate General in that section being construed as references to the Attorney General of India. (4) Where any proceedings have been withdrawn for inquiry before the disciplinary committee of the Bar Council of India, the State Bar Council concerned shall give effect to any such order. It also make it clear that in disposing of any proceedings under this section, the disciplinary committee of the Bar Council of India may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of Section 35. Case: Suo Motto Enquiry v. Nand Lal Balwani Facts: The respondent advocate hurled the shoes and shouted slogans in the Supreme Court of India.Both contempt and proceedings for professional misconduct were initiated against him. Held: The Supreme Court found him guilty for contempt of court and awarded him a simple imprisonment for four months and fine of 2000 Rupees. Further the DC of BCI also found him guilty of professional misconduct and ordered his name to be removed from the roll of Bar Council of Maharashtra and Goa. Remedy against the order of punishment by the Bar Council of India Section 48-AA: Review The bar council of India or any of its committee , other than its disciplinary committee , may on its own motion or otherwise, review any order, within 60 days of the date of that order, passed by it under the Advocates Act. Section 38:Appeal to the Supreme Court Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under Section 36 or Section 37 or the Attorney General of India or the Advocate General of the state concerned, as the case may be , may within 60 days of the date on which the order is communicated to him, prefer an appeal to the supreme court and the supreme court may pass such order including an order varying the punishment awarded by the disciplinary committee of the Bar council of India thereon as it deems fit. However no order of the disciplinary committee of the Bar council of India shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard. What is Contempt of Court? What are the defenses allowed in Contempt Proceeding? Contempt of court is any conduct that tends to bring the authority and administration of Law into disrespect or disregard or to interfere with or prejudice parties or their witnesses during litigation.
  6. 6. Categories of contempt of court Contempt of court can be of two types, civil or criminal depending on the nature of the case. 1. Civil Contempt Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. 2. Criminal Contempt Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which: (i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or (ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. Punishmentforthecontempt of court High Court and Supreme Court are bestowed with the power to punish for the contempt of the court. Under Section 12 of Contempt of Court Act, 1971, a contempt of court can be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both. However, in civil cases if the court considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that the he be detained in a civil prison for such period not exceeding six months as it may think fit. The court is not supposed to impose a sentence for contempt of court in excess of what is prescribed under this section either in respect of itself or of a court subordinate to it. An accused may be discharged or the punishment awarded may be remitted on apology being made by the accused to the satisfaction of the court. An apology is not supposed to be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. Contempt of courtby a company In case the person found guilty of contempt of court in respect of any undertaking given to a court is a company, the person who at that time, was in charge of, and was responsible to, the company for the conduct of business of the company shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such person.
  7. 7. However, that person can be exempted from liability if such person proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. Liability of Director, Manager, Secretary or other officer of the company If the contempt of court referred to therein has been committed by a company and it is provided that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manger, secretary or other officer of the company, such director, manager , secretary or other officer shall also be deemed to be guilty of the be contempt and the punishment will be enforced against them as well, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. DefensesallowedinContemptproceeding Clause (b) of Section 13 of Contempt of Court Act, 1971 that was introduced recently by 2006 amendment, allows the accused to raise the defense of justification by truth of such contempt, if the court is satisfied that it is in public interest and the request for invoking the said defence is bona fide. However, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice. Legal Services Authority’ -a brief note. Legal Services Authorities Act 1987 was enacted to constitute Legal Services Authorities for providing free and competent legal services to weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalat to ensure that the operation of the legal system promoted justice on a basis of equal opportunity. “Access to Justice” for all is the motto of the Legal Services Authorities Legal Services Authorities Act was enacted to give a statutory base to legal aid programmes throughout the country on a uniform pattern. This Act was finally enforced on 9th of November, 1995 after certain amendments were introduced therein by the Amendment Act of 1994. Hon. Mr. Justice R.N. Mishra the then Chief Justice of India played a key role in the enforcement of the Act National Legal Services Authority (NALSA) National Legal Services Authority was constituted on 5th December, 1995. His Lordship Hon. Dr. Justice A.S. Anand, Judge, Supreme Court of India took over as the Executive Chairman of
  8. 8. National Legal Services Authority on 17the July, 1997. Soon after assuming the office, His Lordship initiated steps for making the National Legal Services Authority functional. By February, 1998 the office of National Legal Services Authority became properly functional for the first time Services Provided TYPES OF LEGAL SERVICES PROVIDED Free Legal Services provided by NALSA/State Authority/District Authority :- Payment of court fee,process fees and all other charges payable or incurred in connection with any legal proceedings. Providing Advocate in a legal proceedings. Obtaining and supply of certified copies of orders and other documents in legal proceedings. Preparation of appeal, paper book including printing and translation of documents in legal proceedings. Eligible persons for getting free legal services :- Women and children. Members of SC/ST. Industrial workmen. Victims of mass disaster, violence, flood, drought, earthquake,industrial disaster. Disabled persons. Person in custody. Persons whose annual income does not exceed Rs. 1,00,000/-. Free Legal Servicescan be availed from :- Supreme Court Legal Services Committee,109, Lawyers Chambers,Supreme Court of India, New Delhi for Supreme Court Cases. State Legal Services Authority. High Court Legal Services Committee situated at High Court Complex in every High Court for High Court cases. District Legal Services Authority situated in the District Courts Complex in every District.
  9. 9. Lok Adalat Lok Adalat is a forum where the disputes/cases pending in the court of law or at pre-litigation stage are settled/compromised amicably. The Lok Adalat has been given statutory status under the Legal Services Authorities Act,1987. Under the said Act, the award made by the Lok Adalats is deemed to be the decree of a civil court and is final and binding on all parties and no appeallies before any court against its award. Nature of Cases to be Referred to Lok Adalat Any case pending before any court. Any dispute which has not been brought before any court and is likely to be filed before the court. Provided that any matter relating to an offence not compoundable under the law shall not be settled in Lok Adalat. Howto get the Case Referred to the Lok Adalat for Settlement A) Case pending before the court :- If the parties agree to settle the dispute in Lok Adalat or One of the parties makes an application to the court or The court is satisfied that that the matter is an appropriate one for settlement in Lok Adalat. B) Any dispute at pre-litigative stage. The State Legal Services Authority or District Legal Services Authority as the case may be on receipt of an application from any one of the parties to any pre-litigation stage matter refer such matter to the Lok Adalat for amicable settlement. ADVOCATES DUTIES Lawyers' Duties to Clients A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by a real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self - interest. The lawyer's duty to a client does not militate against the concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of harm on the appellate process,the courts, and the law itself. 1. Counsel will advise their clients of the contents of these Standards of Conduct when undertaking representation. 2. Counsel will explain the fee agreement and cost expectation to their clients. Counsel will then endeavor to achieve the client's lawful appellate objectives as quickly, efficiently, and economically as possible. 3. Counsel will maintain sympathetic detachment,recognizing that lawyers should not become so closely associated with clients that the lawyer's objective judgment is impaired.
  10. 10. 5.Counsel will be faithful to their clients' lawful objectives, while mindful of their concurrent duties to the legal system and the public good. 5.Counsel will explain the appellate process to their clients. Counsel will advise clients of the range of potential outcomes, likely costs,timetables, effect of the judgment pending appeal, and the availability of alternative dispute resolution. 6.Counsel will not foster clients' unrealistic expectations. 7.Negative opinions of the court or opposing counsel shall not be expressed unless relevant to a client's decision process. 8.Counsel will keep clients informed and involved in decisions and will promptly respond to inquiries. 9. Counsel will advise their clients of proper behavior, including that civility and courtesy are expected. 10.Counsel will advise their clients that counsel reserves the right to grant accommodations to opposing counsel in matters that do not adversely affect the client's lawful objectives. A client has no right to instruct a lawyer to refuse reasonable requests made by other counsel. 11.A client has no right to demand that counsel abuse anyone or engage in any offensive conduct. 12.Counsel will advise clients that an appeal should only be pursued in a good faith belief that the trial court has committed error or that there is a reasonable basis for the extension, modification, or reversal of existing law, or that an appeal is otherwise warranted. 13.Counsel will advise clients that they will not take frivolous positions in an appellate court, explaining the penalties associated therewith. Appointed appellate counsel in criminal cases shall be deemed to have complied with this standard of conduct if they comply with the requirements imposed on appointed counsel by courts and statutes. Lawyers' Duties to the Court As professionals and advocates,counsel assist the Court in the administration of justice at the appellate level. Through briefs and oral submissions, counsel provide a fair and accurate understanding of the facts and law applicable to their case. Counsel also serve the Court by respecting and maintaining the dignity and integrity of the appellate process. 1.An appellate remedy should not be pursued unless counsel believes in good faith that error has been committed, that there is a reasonable basis for the extension, modification, or reversalof existing law, or that an appeal is otherwise warranted. 2.An appellate remedy should not be pursued primarily for purposes of delay or harassment. 3.Counsel should not misrepresent, mischaracterize, misquote, or miscite the factual record or legal authorities. 4.Counsel will advise the Court of controlling legal authorities, including those adverse to their position, and should not cite authority that has been reversed,overruled, or restricted without informing the court of those limitations. 5.Counsel will present the Court with a thoughtful, organized, and clearly written brief. 6.Counsel will not submit reply briefs on issues previously briefed in order to obtain the last word. 7.Counsel will conduct themselves before the Court in a professional manner, respecting the decorum and integrity of the judicial process. 8.Counsel will be civil and respectful in all communications with the judges and staff. 9.Counsel will be prepared and punctual for all Court appearances,and will be prepared to assist the Court in understanding the record,controlling authority, and the effect of the court's decision. 10.Counsel will not permit a client's or their own ill feelings toward the opposing party, opposing counsel, trial judges or members of the appellate court to influence their conduct or demeanor in dealings with the judges, staff, other counsel, and parties. Lawyers' Duties to Lawyers Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve. The duty that lawyers
  11. 11. owe their clients and the system can be most effectively carried out when lawyers treat each other honorably. 1.Counsel will treat each other and all parties with respect. 2.Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel. 3.Counsel will not request an extension of time solely for the purpose of unjustified delay. 4.Counsel will be punctual in communications with opposing counsel. 5.Counsel will not make personal attacks on opposing counsel or parties. 6.Counsel will not attribute bad motives or improper conduct to other counsel without good cause,or make unfounded accusations of impropriety. 7.Counsel will not lightly seek court sanctions. 8.Counsel will adhere to oral or written promises and agreements with other counsel. 9.Counsel will neither ascribe to another counsel or party a position that counsel or the party has not taken, nor seek to create an unjustified inference based on counsel's statements or conduct. 10.Counsel will not attempt to obtain an improper advantage by manipulation of margins and type size in a manner to avoid court rules regarding page limits. 11.Counsel will not serve briefs or other communications in a manner or at a time that unfairly limits another party's opportunity to respond. The Court's Relationship with Counsel Unprofessionalism can exist only to the extent it is tolerated by the court. Because courts grant the right to practice law, they control the manner in which the practice is conducted. The right to practice requires counsel to conduct themselves in a manner compatible with the role of the appellate courts in administering justice. Likewise, no one more surely sets the tone and the pattern for the conduct of appellate lawyers than appellate judges. Judges must practice civility in order to foster professionalism in those appearing before them. 1.Inappropriate conduct will not be rewarded, while exemplary conduct will be appreciated. 2.The court will take special care not to reward departures from the record. 3.The court will be courteous,respectful, and civil to counsel. 4.The court will not disparage the professionalism or integrity of counsel based upon the conduct or reputation of counsel's client or co-counsel. 5.The court will endeavor to avoid the injustice that can result from delay after submission of a case. 6.The court will abide by the same standards of professionalism that it expects of counsel in its treatment of the facts, the law, and the arguments. 7.Members of the court will demonstrate respect for other judges and courts. Permanent Lok Adalat The other type of Lok Adalat is the Permanent Lok Adalat, organized under Section 22-B of The Legal Services Authorities Act, 1987. Permanent Lok Adalats have been set up as permanent bodies with a Chairman and two members for providing compulsory pre-litigative mechanism for conciliation and settlement of cases relating to Public Utility Services like transport, postal, telegraph etc. Here,even if the parties fail to reach to a settlement, the Permanent Lok Adalat gets jurisdiction to decide the dispute, provided, the dispute does not relate to any offence. Further, the Award of the Permanent Lok Adalat is final and binding on all the parties. The jurisdiction of the Permanent Lok Adalats is upto Rs. Ten Lakhs. Here if the parties fail to reach to a settlement, the Permanent Lok Adalat has the jurisdiction to decide the case. The award of the Permanent Lok Adalat is final and binding upon the parties. The Lok Adalat may conduct the proceedings in such a manner as it considers appropriate, taking into account the circumstances of the case,wishes of the parties like requests to hear oral statements,speedy settlement of dispute etc.
  12. 12. Contempt be filed against a judge The Contempt of Courts Act, 1971 Section 16. Contempt by judge, magistrate or other person acting judicially - (1) Subject to the provisions of any law for the time being in force, a judge, magistrate or other persons act in judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act, so far as may be, apply accordingly. (2) Notwithstanding in this section shall apply to any observations or remarks made by a judge, magistrate or other person act in judicially, regarding a subordinate court in an appeal or revision pending before such judge, magistrate or other person against the order or judgement of the subordinate court. COMMENTS (i) Only a Judge of a subordinate court can be said to have committed contempt of his own court i.e. the court in which such judge is presiding; Harish Chandra v.S. Ali Ahmed, 1987 Cr LJ 320 (Pat). (ii) A judge can foul judicial administration by misdemeanors while engaged in the exercise of the functions of a Judge; Baradakanta v. The Registrar, Orissa High Court, AIR 1974 SC 710. (iii) The Magistrates should be conscious of their heavy responsibilities and should not act in a manner prejudicial to the litigants; B.N. Choudhary v.S.M. Singh, 1967 Cr LJ 1141 (Pat). (iv) When the President Officer of a subordinate Court is guilty of contempt of Court, procedure of making a reference cannot apply under section 15 of the Act; Berely v.Xaviery, 1988 JAYALALITA DEATH CASE The Supreme Court will on Friday hear pleas seeking a Central Bureau of Investigation (CBI) probe or a judicial investigation into former Tamil Nadu chief minister J Jayalalithaa’s death. A Public Interest Litigation (PIL) was filed by a Chennai-based NGO and a writ petition was filed by expelled AIADMK MP Sasikala Pushpa in the apex court seeking a CBI probe or a judicial investigation into Jayalalithaa’s death, who breathed her last at Chennai’s Apollo Hospitals on December 5 where she was admitted on September 22 with fever and dehydration. Watch what else is making news: The NGO has sought the recovery of all medical documents during the AIADMK chief’s stay in Chennai’s Apollo Hospital for more than two months, while Pushpa alleged that Jayalalithaa’s death was “suspicious” as her actual medical condition was not disclosed, no one was allowed to visit her, her funeral photographs showed embalming marks and everything from her hospitalisation to her death “was kept under wraps”. A day after filing a petition, Pushpa on December 19 said a proper inquiry should be done as the people of Tamil Nadu want to know the actual reason of Jayalalithaa’s death. “I filed a writ petition at Supreme Court regarding the mysterious death of Amma. Right from the day September 22 when she has been admitted at Apollo hospital stating that she has dehydration and fever and after that when it has been announced that she is dead till that
  13. 13. complete judicial inquiry should be done. Initial enquiry is to be done by the CBI. The case has been filed at SC,” Pushpa said. “Amma is not an individual person but public person. Even if public property is not getting justice in the world then nobody can,” she added. “Tamil Nadu people, entire nation wish to know what happened to the late chief minister. The CM of a state has been foul played like this is a million dollar question. I just want to take this matter to SC to get justice,” she told ANI, adding that it was suspected by Tamil people that her close ally might have done something. “I could not get justice from the Tamil Nadu government so, I directly filed the writ at the apex court stating that we need justice and I have made Apollo hospital and chief secretary as respondents,” she added. JUSTICE KARNAN CASE For the first time, a sitting high court judge, Justice CS Karnan, was hauled up by the Supreme Court to answer a contempt charge. On February 8, for the first time ever, a sitting high court judge was hauled up before the Supreme Court to answer for a contempt charge. A seven-judge bench of the top court issued contempt notice to Justice CS Karnan of the Calcutta high court. In response, Justice Karnan invoked his identity as a Dalit and issued a letter stating that “the characteristic of this order clearly shows the upper caste judges are taking law into their hands and misusing their judicial power by operating the same against a SC/ST Judge with mala fide intention of getting rid of him”. A seven-judge bench for a contempt hearing is unprecedented — it is usually handled by two- or three-judge benches, and very rarely by a five-judge bench — and showed how seriously the Supreme Court was taking this case. It suggests that the court has reached the end of its tether while handling Justice Karnan, a judge who has had frequent run-ins with fellow judges in the Madras high court (where he was originally elevated) and the Calcutta high court, apart from the Supreme Court itself. In 2011, Karnan had called a press conference to accuse a fellow high court judge of caste discrimination on the ground that the judge who sat next to him “deliberately” touched him with his foot. In 2015, he interrupted arguments going on in another courtroom in the Madras HC regarding judicial appointments, demanding to be heard. In April 2015, he began suo motu contempt proceedings against the chief justice of the Madras high court, Sanjay Kishan Kaul, accusing the latter of harassing and belittling him because he was a Dalit and by giving him “insignificant and dummy” portfolios. The Supreme Court stayed the same. Karnan then accused Kaul of corruption in February last year, following which the top court transferred him that month, which Karnan issued a stay order on. When a two-judge Supreme
  14. 14. Court bench lifted his stay order, he asked the Chennai police to book a case against the two judges under the SC/ST (atrocities) Act. The top court threatened to haul him up for contempt for some of the statements that he made, but Karnan apologised saying that his “mental balance” was severely affected. He finally took charge at the Calcutta high court after a private meeting with then-Chief Justice of India TS Thakur. This time around, Karnan has been hauled up for sending a letter to the Prime Minister with a list of sitting and retired high court and Supreme Court judges whom he wants “interrogated” by investigative agencies on the grounds of corruption. Karnan’s shenanigans have exposed many weaknesses in the higher judicial institutions, and point to much more than the acts of just one man. A Pattern of Judicial Indiscipline To say that Karnan’s acts over the last few years have been judicial indiscipline is to understate it. Using its contempt jurisdiction, and by removing him from administrative and judicial work in early February, the Supreme Court has tried to ensure that he cannot cause further damage. There has been a pattern to most of these incidents — he makes an allegation against fellow judges, no proof is offered and he doesn’t push it further, until the next incident and provocation. His judicial work has also stirred controversy — recently, he had a verbal altercation in open court with his fellow judge in the Calcutta high court where they differed in controversial circumstances over granting bail to the accused in the Kolkata flyover collapse case. This highlights a constitutional problem that the framers of the Constitution did not, for some reason, foresee: How do you discipline a judge short of impeachment? Impeachment by Parliament is a long-drawn-out and difficult process. As it should be in a constitution where judicial independence is rigorously protected. Whatever “misbehaviour” a judge is alleged to have committed should be serious enough for Parliament to sit up and take notice before removing her or him from office. It is also the only sanction that can be imposed on an erring judge. This leaves us with two problems: What to do when Parliament is disinclined to act on serious misbehaviour, and how to address less serious breaches of judicial discipline. At present, there are certain informal measures that can be taken against an erring judge: change their workload to different cases, relieve them of all judicial work, or transfer to another high court. The first two can be done by the chief justice in charge of the high court, while the last requires the cooperation of the government. There is no way for the public (or even the judge) to know why a judge might have been “penalised” this way and what behaviour crossed the line. There also remains a gap in severity between these measures and impeachment. The contempt proceedings suggest an attempt to fill this lacuna in the institution. However, a question also needs to be asked: How did someone who seems to make headlines more often for non-judicial than judicial reasons, get appointed as a judge of a High Court? And are there others like him within?
  15. 15. The Tumultuous Appointment Process In India, appointment of judges has a tumultuous history. Till 1971, the Chief Justice of India’s recommendation was treated as gospel by the government. In the 1980s, the Centre tried to exercise more control over the appointment process by seeking more power to recommend judges to the High Courts and the Supreme Court. A significant change occurred in 1993 with the Supreme Court’s judgment in SCAORA v Union of India, which brought the appointment of judges (especially senior most top court judges) under the judiciary. Today, the appointment process follows the recommendation by the five senior most Supreme Court judges (including the Chief Justice of India), which is binding on the Centre that issues the formal order of appointment. Known as the ‘collegium method of appointment’, the process is utterly opaque and arbitrary, causing deep dissatisfaction all around. The Parliament’s crude attempt at ‘reforming’ this unsatisfactory system by replacing it with the National Judicial Appointments Commission was struck down by the Supreme Court in 2015 as being a violation of the Constitution’s basic structure. Karnan was appointed as an additional judge of the Madras high court in 2009, upon the recommendation of the collegium of judges headed by then-Chief Justice of India, KG Balakrishnan. Karnan’s name was, in fact, first recommended by then-chief justice of the Madras high court, AK Ganguly. These are the only undisputed facts about Karnan’s elevation to the Madras high court. As with other judicial appointments, there is no official record as usual of the basis on which he was considered fit for appointment, what criteria were examined and whether any material against his elevation was considered and rejected. While the Constitution does not prescribe any criteria beyond 10 years of legal practice and citizenship for a lawyer to be appointed as a High Court judge, in practice it’s usually at least 15 years and someone with a reasonably well-established practice in the High Courts. (This is not always followed, as many successful lawyers do not want to give up a lucrative practice for harsh work conditions and worse government pay.) Ganguly himself, now retired, when asked by the media about Karnan, could not recall why Karnan was elevated in the first place. Karnan’s bio on the Calcutta HC website states that after graduating from Madras Law College in 1983, he practiced civil law in the Madras High Court, was appointed legal adviser for Metro Water, was government advocate for the state and later, the Centre. However, a brief search of legal databases shows Karnan does not seem to have had a thriving practice or been involved in important cases before the Madras High Court. Ganguly has reportedly said that Karnan was elevated keeping in mind the need to have Dalit representation in the higher judiciary. “He was representing a particular caste that should have been represented in the choice of judges. Therefore, I thought he should be considered,” he said. The representation of Dalits has been and continues to be abysmally low in the higher judiciary. The most reliable figures are from 2002, when it was found that there was only one judge in the Supreme Court and only 25 out of 625 HC judges who belonged to the Scheduled Castes. No
  16. 16. Dalits currently serve in the Supreme Court, and there are no reliable figures maintained either by the Supreme Court or the Department of Justice on the representation of Dalits in the higher judiciary. Anecdotally, however, it is unlikely that more than five percent of High Court judges are Dalits. Integrity Under the Scanner The controversy surrounding Karnan is part of a larger problem in the judiciary rather than a one-off problem. Late in 2016, the Supreme Court initiated contempt proceedings against former SC judge Markandey Katju for his ill-thought-out comments against judges. Multiple judges of High Courts and the Supreme Court have faced accusations of sexual harassment. In 2011, two High Court judges, PD Dinakaran and Soumitra Sen, faced impeachment proceedings for corruption and abuse of office, but resigned before removal. Nirmal Yadav of the Punjab and Haryana High Court also faced charges framed by a CBI court for allegedly receiving a bribe as a sitting judge in 2008. Credibility is a problem that is plaguing the judiciary, and judges make up a veritable chunk of it. Never mind that it’s quick enough in punishing disobedience through contempt, the judiciary will always find it hard to command the respect of citizens if it’s not run honourably and by the right men and women. The blame for the poor choice of judges in the 1970s and 80s could perhaps be attributed to the government, but currently the judiciary lacks such excuses. Even admitting that sometimes a poor appointment might have been made, there has been no effort to create a transparent mechanism to discipline judges who overstep the lines of propriety. The in-house procedure to examine and act on complaints against judges is seldom used and, in any case, works with little transparency. Like with appointments, the whole process is shrouded in secrecy with corridor gossip substituting for facts and informed debates. Those with legitimate grievances against a judge have little recourse from the judiciary itself, or for that matter, any other institution. Similarly, it must also be difficult for Karnan to be caught in such a caste-lopsided institution, and it remains to be seen how much and to what extent Karnan will fight the SC’s latest move. The next date of hearing in the SC is 10th March, and he is due to retire on 12th June this year. The contempt case is still sub judice but it’s not clear what the Supreme Court’s endgame in these proceedings is. Its powers under the contempt jurisdiction are vast but do not extend to removing a High Court judge, something that can only be done through impeachment by the President. Whatever they choose to do in the context of Karnan, the SC judges must be aware that there is a larger problem that they cannot wish away — that of a judiciary whose credibility is slowly ebbing away.
  17. 17. Justice sudhir agarwal order case In a significant judgment, the Allahabad High Court on Tuesday directed the Uttar Pradesh government to make it mandatory for the government employees and those serving in the local bodies to send their kids to government-run primary schools. In its order, the HC asked the state government to take appropriate steps to ensure that these guidelines are implemented from the next academic session. While hearing a group of petitions by Shiv Kumar Pathak and several others, the HC bench of Justice Sudhir Agarwal also suggested strict penalties for those officials/employees failing to follow the new rules. In case the government employees fail to send their kids to the government primary schools, an amount, which they are paying as fee for their wards in private schools, will be deducted from their salaries every month. The court also directed the chief secretary to submit a compliance report in next six months. During the course of hearing, the court also pulled up the state government for pathetic conditions of government schools and the quality of education.

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