Wednesday, July 30, 2014

All India Bar Association opposes governor posts for former judges

Judge Graphic


A Subramani, TNN | Jul 29, 2014, 04.24PM IST

CHENNAI: The All India Bar Association (AIBA) has opposed the move to appoint former judges of the Supreme Court to political offices such as governor posts. 

Decrying former judges lobbying for political positions and referring to media reports that former Chief Justice of India P Sathasivam, who retired in April this year, is being considered for the gubernatorial assignment, AIBA chairman and senior advocate Adish C Aggarwala wrote to Prime Minister Narendra Modi saying such "unprecedented proposal has created anxiety in the minds of jurists, lawyers and judges alike." 

He said neither the former CJI nor the government had clarified the issue thus far.

Ex-judges could be considered only for judicial offices such as Lok Pal and National Human Rights Commission (NHRC), AIBA said, adding that such adjudicatory functions would be befitting the stature of judges, more so because the appointment would be apolitical and not at the pleasure of the government. 

As for Justice Sathasiam, his vast experience on the judicial side could be so utilized for "common good," Aggarwala said. 

"Justice Sathasivam has also publicly declared that he is open to accepting any position befitting the stature of a former CJI, including the chairmanship of National Human Rights Commission or Lok Pal if the new government makes an offer," the AIBA representation said. 

However, the association welcomed the reported move to appoint senior advocates Soli Sorabjee and M N Krishnamani as governors saying they were doyens of the legal profession and known for their acumen and high standard of ethics. 

Monday, July 28, 2014

It’s time to amend law on contempt of court





Monday, 28 July 2014


The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.

But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.

In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.

In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.

Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.

This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.

“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.

In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.

Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.

Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case ( Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.

In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.

Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.

He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.

To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.

He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.

Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?

We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.

It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.

If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.

But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.

I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.


(Published in The Times of India on 28/07/2014)

CAVEAT VENDOR : Taken for a ride by an immigration service


BL 28 July 2014

 With passports confiscated by an immigration agency, the Pandeys were rescued by the Indian High Commission
Feel defrauded or shortchanged by one of those ubiquitous immigration agencies that have sprung up everywhere? If yes, don’t just fret and fume. Consider approaching a consumer court. Here’s a recent case where Reena and Rahul Pandey received compensation.
Starting from the District Consumer Disputes Redressal Forum, Chandigarh, which passed an order in October 2013, the case went up to the State Commission and thereafter the National Consumer Disputes Redressal Commission which ruled on the matter in April 2014.
Facts of the case
Reena and her husband Rahul Pandey approached Ganga Immigration & Education Services (Ganga Immigration) for getting a Malaysian work permit.
They were also assured of a job with a salary of 1,200-1,500 Malaysian ringgit, and were asked to pay ₹1.5 lakh each. This amount included the cost of a two-year permit along with food, accommodation, insurance and air fare.
The two also entered into an agreement (October 18, 2012) according to which they would be refunded the processing fee if the work provided was not to their satisfaction.
When Rahul and Reena went to make the payment, they were told they would have to go on a tourist visa which would later be converted into a work visa.
So, they paid ₹90,000 — together — with the rest to be given when their visas were converted. This was in addition to an earlier payment of ₹50,000.
Once they reached Malaysia, they were asked to pay for their accommodation by the Ganga International employee who was accompanying them on the trip.
Not only that, they were also asked to share a room with two other men. The next day, they were put on a night shift with a courier company with jobs far different from what was promised. Their troubles did not end there. Once they let known their intention of returning to India, they were asked to vacate the room at night.
Thereafter, they had to make their own arrangements for food and stay. The agent who had earlier taken their passports (to get work permits) refused to return them.
Left with no choice, the Pandeys approached the Indian High Commission which issued them an emergency certificate for their return to India.
Once back home, they approached the District Forum in Chandigarh.
Court to the rescue
The Court held that Ganga Immigration had made false promises to the Pandeys as a result of which they had lost their jobs in India and were also forced to sell a few of their assets to arrange for money to go abroad. It also found the agreement entered into between the two parties to be very vaguely worded.
Finding Ganga International guilty of deficiency in service and unfair trade practice, the Court ordered it to pay ₹1,80,000 — the money paid to it by the Pandeys plus what was spent by them in Malaysia. It also ordered ₹61,000 to be paid for the mental agony caused and litigation expenses.
Ganga International then appealed against the decision with the State Commission, which dismissed the appeal and upheld the order of the District Forum.
Undeterred, the company then approached the National Consumer Disputes Redressal Commission which dismissed the petition too.
It both upheld the decisions of the earlier two forums and ordered Ganga International to pay an additional ₹100,000. Of this, ₹25,000 each was to go to Reena and Rahul and the rest to the Consumer Legal Aid Account of the National Commission

How to settle your credit scores

iQoncept/shutterstock.com

BL 28 july 14
Correct them online or by way of a written request with supporting documents
A credit score, whether from CIBIL or Experian, can have quite a say in whether you succeed in your loan or credit card applications, and in the interest rate you may get. But errors can crop up in your credit report due to no fault of yours, wholly messing up your finances.
So if you want to apply for a loan, it’s best to get your first credit score before making the application, just to be sure there are no surprises in store.
Identifying and rectifying any mistake in the score can then be done quickly.
The mistakes made
Two main factors account for credit score mistakes. First, it can be wrong entries at the time of making inputs, such as an extra zero added accidentally to a personal loan of ₹100,000.
And second, credit information companies rely on lending institutions sending data every month.
A delay or neglect in this updating can lead to payments not being credited to you when you apply for the score. Says Harshala Chandorkar, Senior VP, Consumer Relations, CIBIL, if you access your report within 45 days of making a payment, it may not be updated.
It’s a red flag when the date reported (date on which data is submitted by that lender) on your account is older than two months and your payment is not reflected.
A CIBIL TransUnion score, for example, is split into personal details and loan account details.
Both can have mistakes. Personal detail errors can be a mis-spelt name, incorrect date of birth, gender, address or telephone number. Identification details provided, such as PAN, voter ID or passport, could also be wrong. An incorrect PAN can have far-reaching implications, as that is linked to any financial transaction you make.
Loan account mistakes can similarly be disastrous. Your loan status may be wrong — stating overdue when you have made all payments or latest payment not updated.
Loan accounts you closed can be classified as written off or defaulted, especially if the lending institution hasn’t been updating details on time.
This can send credit scores crashing. The same loan details can accidentally show up more than once, raising the total credit, known as duplication errors.
Or your details can be mixed up with someone else’s, leaving you with loans you’ve never taken, or several requests for credit which you haven’t made, called ownership errors. In the most extreme situation, if your details are stolen and misused, that can reflect in your credit score details.
Correcting the mistakes
If you find mistakes in your credit score, report it immediately to the credit information company. It cannot make corrections on its own; it takes it up with the institution in question and, once confirmed, rectifications are done.
Reporting CIBIL score mistakes can be done online through their Dispute Resolution. Fill up the form available through their website www.cibil.com.
Give your personal details as well as a detailed explanation of the mistake.
If you are uncomfortable working online, send a written request to their Mumbai address. Always mention your CIBIL control number, available in the top right-hand corner of your report.
Rectifying Experian score mistakes can similarly be done by sending written requests. They require supporting documents too, such as identity and address proof, and sending them to their Mumbai office.
Barring complications, disputes are settled within a month’s time. Personal details may be quickly settled since it involves looking through identification proofs.
Loan account mistakes can take some time as a result of back and forth communication between the lending institution and the credit information company.
Recourse
Should the mistake you point out be disputed by the institution, the credit information company will let you know.
Theoretically, you can re-apply for correction, though it is rather pointless. Take it up with the bank. Protect your own interests. Chandorkar suggests maintaining proofs, such as loan closure letter, payment confirmation letters or emails, especially if you’ve settled previously written off or overdue accounts.
She also emphasises the need to keep your lender up to date with your personal details so that necessary changes and communication can be made.
Credit information companies too fall under the purview of the Reserve Bank. You can approach the banking ombudsman if you are still dissatisfied.
If all else fails, the consumer court is your last resort

Saturday, July 26, 2014

Can Subrata Roy get an office: SC to jailers


Subrata Roy


TNN | Jul 26, 2014, 12.10AM 

The Supreme Court on Friday asked Tihar Jail authorities in Delhi whether they could make available office space with Wi-Fi and internet facilities to help detained Sahara group chairman Subrata Roy finalize negotiations for sale of three hotels in London and New York. Roy and Sahara group had identified a guest house within the Tihar Jail complex but solicitor general Ranjit Kumar informed the court that it was close to the staff quarters and had not been designated as a prison.

"Communication facilities can be set up at the guest house, which could also be designated as a jail by the lieutenant governor for a specified period of the day during which Roy and Sahara group's identified personnel could use it for negotiations for the sale of assets," he said.

Appearing for Roy, senior advocate K T S Tulsi said important prospective buyers from abroad were in Delhi and the Sahara chief would like to participate in the final phase of negotiations to get the best price for the assets so as to enable him to raise the money needed for getting out of jail on interim bail. A bench of Justices T S Thakur, A R Dave and A K Sikri asked the SG to explore the possibility of providing Roy office facility in Tihar, where he has been lodged since March 4. The court had told him that he could come out on interim bail if he deposited Rs 5,000 crore in cash and Rs 5,000 crore in bank guarantee with market regulator Sebi.

Collegium system a failure: Law panel Chief


 TNN 26 July 14


NEW DELHI: Days after Press Council of India chairman Justice Markandey Katju attacked the Supreme Court collegium for appointment of judges, law commission chairman Justice A P Shah on Friday said its conduct has been opaque and that appointments to higher judiciary lacked transparency. 

In an interview to a TV channel, Justice Shah said: "Justice Katju's revelations cannot be undermined, but I have reservations over the manner in which it has been done and about its timing." The collegium system is so opaque that even if someone wants to speak out, he cannot do it having come through the same system, he said. 

"The collegium system has completely failed, judges are appointed on unknown criteria," Justice Shah said calling the apex court system of appointing judges as a cabal or a club lacking transparency. "It has failed as favourites get appointed and the rest are left out," said the former chief justice of Delhi High Court. 

Justice Shah's attack comes soon after some other retired senior judges supported Justice Katju's claims that a Madras High Court additional judge had been given an extension despite an IB report containing allegations of corruption against him. Former SC judge Ruma Pal, who was part of the three-member collegium that had initially refused extension to the Madras High Court additional judge, had supported Katju's claims. 

Later, Goa human rights commission chairman and former chief justice of Patna High Court Justice P K Misra also supported Justice Katju on the expose. 

Justice Shah pointed out how the collegium had gone ahead to appoint a judge at the age of 60 years when the criteria laid down clearly says any appointment to higher judiciary has to be below the age of 55. 

"I remember once lists were forwarded by the Punjab and Haryana High Court and Madras High Court. The apex court collegium completely scrapped the two lists without assigning any reason," Justice Shah recounted. 

Justice Shah's assertion strengthens the government's move to bring in the Judicial Appointments Commission Bill replacing the collegium. It has sought opinion from all parties and is likely to bring the bill in Parliament in the winter session. 

The law panel chief supported the government's bill but said the composition of the commission should be part of the Constitution amendment bill. "Unless it is backed by Constitutional provision, it will not be effective," he said. 

He said the present JAC bill framed by the UPA is inadequate. The entire composition of the JAC should be part of the Constitutional amendment bill. He also clarified that the JAC should not be reduced to just a recommendatory commission but its recommendations should be made binding on the executive. In case there are some issues, there should be a provision of an Ombudsman, like in the UK, which should look into point of conflict, he said.

Statute amendment likely to change how judges are appointed

Statute amendment likely to change how judges are appointed
TNN July 26,2014

With the collegium system of judges' appointment under fire, the government proposes to end Supreme Court's monopoly by amending Articles 124(2) and 217(1) of the Constitution to broad-base the process for selection of judges to the SC and high courts. 

The Centre is of the view that a law enacted to annul the judge-appointing-judge system, devised by the SC through two judgments in 1993 and 1998, will run the risk of getting struck down by the apex court. 

It feels that since there is an ambiguity in the constitutional provisions about the process and mechanism for appointment of judges to the SC and HCs and the present practice, it would be better to adopt the constitutional amendment route to specify the procedure for selection and appointment of judges to constitutional courts. 

Article 124(2) says, "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years." 

It also provides that "in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted". For appointment of a high court judge, Article 217(1) mandates the President to consult the CJI, governor of the state and chief justice of the HC. 

These two articles provide that the executive, through the President, would have primacy in appointment of judges. This is how it was till 1993, when a constitution bench of the Supreme Court held that the Chief Justice of India would have primacy in appointment of judges.