Keep water for birds on your terrace. From my office terrace, I can only see concrete jungle amidst scorching sun.
This universe is 13.8 billion years old (1380,00,00,000 years i.e. One Thousand Three Hundred Eighty Crores years).
Our Earth is 4.5 billion years old i.e. 450,00,00,000 i.e. Four Hundred Fifty Crores years.
Humans entered the picture just six million years (60,000,00 i.e. Sixty Lakhs years ago).
The first modern humans began moving outside of Africa starting about 70,000-100,000 years ago.
We allowed ourselves to evolve, build tools, create civilizations, adapt to our environment, and become the humans we are today.
If we take the life of Universe as a year, we entered the scenario on 31st December almost at midnight!. Yet, we conquered the Earth and ruined it beyond comprehension.
We have absolutely no regards for the species that ruled the mother earth before we trespassed into their territory. Today, we have nuclear ammunition which can destroy all the living creatures including ourselves eight times.! This is bound to happen in another 50,00,000 years. But the Earth survives and evolves again with new species, maybe, in another 100 crores years.
The last Dodo bird was killed in 1681 and the entire Dodo bird species is gone forever. Sudan, a 45-year-old northern white rhino – the final male of his subspecies in existence on the earth, died last year. With him dies millions of years of unique evolutionary biology which will never be repeated.
Let’s not forget this Earth belongs to all. Let’s not behave as if the Mother Earth was waiting for humans to, evolve, conquer and ravish her beyond recognition.
Lets save whatever species that are left on Earth. Let us start from today.
R.D.Vijay Anand vs The Secretary, The Bar Council of Tamil Nadu and Puducherry. Writ Petition 29258 of 2013 decided on 21 November 2013. Justice K.K. Sasidharan
1. Whether the State Bar Council is vested with the power to suspend an Advocate on its rolls from practising the profession of law pending disposal of suo-motu disciplinary proceedings taken by the Bar Council of Tamil Nadu is the core issue that arises for consideration in this writ petition at the instance of a lawyer from Coimbatore, who was suspended, as an interim measure for passing an illegal arbitration award without authority.
Brief facts:
2. The petitioner was enrolled as an Advocate on the Rolls of the Bar Council of Tamil Nadu on 20 December 2002 (Enrollment No. 2115 of 2002). The petitioner is a member of Coimbatore Bar. The petitioner is stated to be a busy legal practitioner in Civil, Criminal and other branches of law.
3. While so, the petitioner received a notice dated 15 October 2013 from the Bar Council of Tamil Nadu to show cause as to why proceedings under Section 35 of the Advocates Act 1961 should not be taken against him for professional misconduct. The show cause notice was followed by an interim order of suspension dated 17 October 2013 pending disposal of the disciplinary proceedings.
4. According to the petitioner, the Bar Council of Tamil Nadu (hereinafter referred to as ‘Bar Council’) in its resolution and notices indicated that he illegally acted as an arbitrator and passed an award dated 16 October 2008. It was the contention of the petitioner that the award was passed only by Mr. R. Vijay Anand, Advocate and as such, Bar Council was not correct in taking action against him.
5. The Bar Council in its counter affidavit contended that several complaints were received from Coimbatore with regard to the functioning of certain Advocates as Arbitral Tribunals, calling people to appear without any authority, passing awards, and executing such awards by various means. The Bar Council took suo motu proceedings against five advocates including the petitioner. Since the Bar Council is of the view that public interest would suffer in case those Advocates are allowed to practice pending disposal of disciplinary proceedings, they were suspended. Accordingly Bar Council justified the impugned order.
Submissions:
6. The learned counsel for the petitioner contended that the compliant preferred by the Coimbatore Bar Association and the award dated 16 October 2008 contain the name of Sri. R. Vijay Anand, Advocate. The petitioner is R.D. Vijay Anand and he is a very busy legal practitioner and a very successful defence lawyer. The petitioner used to send atleast five sessions cases every week to his counter part at Madras High Court. Such a famous lawyer would not indulge in holding illegal arbitration proceedings. The learned counsel further contended that the Bar Council has no right to suspend a lawyer from practice pending initiation of disciplinary proceedings.
7. The learned Standing Counsel for Bar Council by producing the file, the award and acknowledgement card which contain the signature of the petitioner submitted that the signature in the acknowledgement card and the signature in the award are one and the same. The Enrollment papers also contain the very same signature. Therefore it is clear that R. Vijay Anand is none other then the petitioner. According to the learned counsel, the Bar Council possess the inherent power to suspend the Advocates pending disposal of disciplinary proceedings.
Analysis:
8. The petitioner challenges the interim order of suspension primarily on the ground that the Bar Council has no power under the Advocates Act to suspend a legal practitioner pending disposal of proceedings for misconduct. The other contention relates to the identity of the person involved in the misconduct.
9. The Coimbatore Bar Association preferred a complaint dated 27 August 2013 to the Bar Council stating that Thiru P.R. Shanmgam and eight others including the petitioner are conducting illegal arbitral proceedings. The Bar Council on a careful consideration of the complaint resolved to initiate disciplinary proceedings against the concerned advocates. Since the Bar Council wanted these advocates not to do the very same illegal activities pending disposal of proceedings for misconduct, passed an interim order of suspension.
10. The petitioner is one among such Advocates. According to the Bar Council, in the interest of public and in order to maintain dignity, decorum and to uphold the professional etiquette of the legal profession, the Council took this decision invoking the power under Section 6(1)(d) of the Advocates Act, 1961.
Identity of the author of award:
11. According to the petitioner, he is R.D. Vijay Anand and he has nothing to do with the illegal award passed by R. Vijay Anand. The contention would be attractive at first blush. However, its fallacy would be proved by a mere comparison of the signature of the arbitrator as found in the award and the admitted signature of the petitioner in the acknowledgement card evidencing service of suspension order and his application for enrolment.
12. We are now concerned only with the prima facie case. In case the available materials prima facie indicates the role of the petitioner as the author of the illegal award, the same would be sufficient to initiate disciplinary proceedings. It is open to the Advocate to produce materials to prove his defense that it was the work of another Advocate and he was not responsible for such illegal Act. Merely because the award contain the name of R. Vijay Anand and the complaint of Bar Association, Coimbatore also refers to the name of R. Vijay Anand, it cannot be said it was made only by another lawyer. The Coimbatore Bar Association referred to the names of advocates on the basis of the names contained in the respective awards.
13. The leader of the parallel court is stated to be one Thiru Shanmugam. He adopted a modus operandi of conducing parallel courts and arbitral proceedings by adopting the name “P.R. Shanmugam” not withstanding the fact that the name recorded in his enrolment certificate was R. Shanmugam. In the subject case, the Bar Council has taken up a contention that though the name of the petitioner is R.D. Vijay Anand, in order to appear as if the author of the award is a different person, he has put it in the name of R. Vijay Anand. This contention appears to be prima facie correct on account of the documents produced by the Bar Council.
14. The petitioner was suspended on 17 October 2013. The very fact that the Coimbatore Bar supported this move and the further fact that not even a single lawyer from Coimbatore has so far expressed protest on the ground of action being taken against an innocent lawyer also supports the prima facie finding recorded by the Bar Council.
15. The available materials are sufficient to arrive at a prima facie finding that it was only the petitioner, who was instrumental in making the illegal award without any authority. Therefore, I reject the contention with regard to identity.
Power of the Bar Council to order interim suspension:
16. The substantial question raised in the writ petition relates to the authority of the Bar Council to order interim suspension pending disposal of disciplinary proceedings.
17. The Bar Council of India and State Bar Councils are statutory bodies entrusted with the task of safeguarding the rights, privileges and interest of the Advocates. These Apex bodies are equally concerned with the professional conduct of the legal practitioners. The legal profession???d as a noble profession, ordains a very high level of ethics, moral standard and ??? life. The legal profession plays a ??? the administration of justice. The Lawyers act as a catalyst. The lawyer owes ??? to the Court, to his client and even ??? his opponent while discharging his role. The Advocate acts both as an officer of court as well as an ambassador of his client.
The Statute:
18. The Advocates Act contains detailed provisions dealing with the functions, powers and duties of the Bar Council of India and the State Bar Councils. The State Bar Council constituted under Section 3 of the Advocates Act is a body corporate.
19. Section 6 of the Act indicates the functions of Bar Councils. It reads as under: Functions of the State Bar Councils:—
(1) The functions of the State Bar Councils shall be-
(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll;
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll;
{(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub-section (2) of section 7;)
(e) to promote and support law reforms;
(f) {(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and paper of legal interest; (eee) to organise legal aid to the poor in the prescribed manner;)
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
{(gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of Section 7;)
(h) to perform all other functions conferred on it by or under this Act;
(i) to do all other things necessary for discharging the aforesaid functions.”
20. Section 9 provides for constitution of disciplinary committee.
21. Chapter V deals with conduct of Advocates. Section 35 provides for the reference of complaints against Advocates to the disciplinary committee.
22. The disciplinary committee of the Bar Council initiates proceedings for misconduct upon a reference by the State Bar Council. The Bar Council on receipt of a complaint must examine the complaint to decide as to whether a prima facie case of misconduct has been made out to refer the matter to the disciplinary committee. It is only for this purpose the Bar Council issues notice to the concerned Advocate on receipt of a complaint alleging professional misconduct. The Bar Council on receipt of the reply from the Advocate is expected to function as the Screening Authority and only those cases certified by the Council to be of worth reference alone will be forwarded to the Disciplinary committee.
23. The question therefore is, while taking a decision to refer a complaint to the disciplinary committee for initiating disciplinary proceedings, whether it is open to the Bar Council to pass an interim order of suspension.
24. Section 2(1)(a) defines “Advocate” as an Advocate entered in any roll under the provisions of Advocates Act.
25. The registration before the Bar Council is a mandatory requirement for practising the profession of law. The incidental question is whether the authority empowered to register an Advocate and permit him to practice, got the right to suspend him from practice, pending disciplinary proceedings.
26. Section 6(1)(c) enjoins the State Bar Councils to entertain and determine cases of misconduct against Advocates. Similarly Section 6(1)(i) of the Act enables the Bar Councils to do all other things necessary for discharging the aforesaid functions. Since the Bar Council is the authority to register the Advocates and to maintain their rolls, Section 6 has to be read as the power of the State Bar Council, rather than functions. When it is clear that the Bar Council can entertain complaints and determine cases of misconduct against Advocates on its roll and the incidental right to do all other things necessary for discharging the functions, it is essentially a power and not a function alone. Power to appoint – includes power to suspend/dismiss:
27. Section 16 of the General clauses Act provides that the power to appoint would include the power to suspend or dismiss. The issue whether Section 16 as such would apply to a Bar Council or the Advocates registering their names on the rolls of the council are larger questions, but the General Doctrine underlying this provision can very well be made applicable to a case of this nature. The power to pass an interim order of suspension pending disposal of disciplinary proceedings therefore is a necessary adjunct of the power of registration of an Advocate on the rolls of the Bar Council, which is a pre-requirement for practising law.
28. The complaint received by the Bar Council after initiation, scrutiny and examination, if found to be of substance would be referred to the disciplinary committee. The maximum time for disposal of complaint by the disciplinary committee is indicated as one year. Then there is a provision for appeal to the Bar Council of India under Section 37 of the Act. The order passed by the Bar Council of India is appealable before the Supreme Court under Section 38 of the Act. The power to stay the order passed by the Disciplinary committee is given initially to the Disciplinary Committee and thereafter to the appellate authority. This is often a time consuming process. Even though the Bar Council has found a prima facie case of professional misconduct for the purpose of reference to the Disciplinary Committee, the punishment would come only after the disposal of the appellate proceedings under Section 37 or 38 of the Act.
29. The difficulty would arise in case the Bar Council is of the view that it would not be in public interest to permit the Advocate to practice during the currency of statutory proceedings before the Disciplinary Committee, as otherwise it would adversely affect the dignity, decorum and professional ethics. It is not possible to entertain an argument that the State Bar Council has no power to order interim suspension in such grave cases and should await the ultimate finding given by the disciplinary committee. The parliament while giving disciplinary powers to the Bar Council and Bar Council of India appears to have not contemplated such a helpless situation.
30. The provisions of a statute must be given meaningful interpretation. It is true that courts cannot add something to the statute which was not contemplated by the legislature. However, the approach should be to give a workable interpretation to translate the wishes of the legislature into action.
31. There is no dispute that a law student after graduation is entitled to practice the profession of law on the strength of his enrollment and registration on the rolls of the Bar Council of the State. The only authority empowered under the Advocates Act, 1961 to grant the licence to practice the profession of law is the State Bar Council. The power to revoke the licence permanently or to suspend it for a prescribed period vests in the statutory body. This power would also include, in appropriate cases, to suspend the practice pending disposal of a complaint referred to the disciplinary authority of the concerned Bar Council.
Decisions of Supreme Court in relation to legal profession:
32. The role of Bar Council to preserve the purity and dignity of legal profession was indicated by the Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702. The Supreme Court observed that the role of Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics.
“30. The interest of the Bar Council is to uphold standards of professional conduct and etiquette in the profession, which is founded upon integrity and mutual trust. The Bar Council acts as the custodian of the high traditions of the noble profession. The grievance of the Bar Council is to be looked at purely from the point of view of standards of professional conduct and etiquette. If any decision of the Disciplinary Committee of the Bar Council of India is according to the State Bar Council such as will lower the standards and imperil the high traditions and values in the profession, the State Bar Council is an aggrieved person to safeguard the interests of the public, the interests of the profession and the interests of the Bar.”
33. The Supreme Court in Bar Assn. v. Union of India, (1998) 4 SCC 409, indicated the exclusive jurisdiction of Bar Council to suspend the licence to practice.
“71. Thus, after the coming into force of the Advocates Act, 1961 with effect from 19-5-1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practise as an advocate vests exclusively in the Bar Council of the State concerned, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body.”
34. Mr Justice V.R. Krishna Iyer in His Lordship’s concurring judgement in M.V. Dabholkar observed:
“52. The Bar is not a private guild, like that of ‘barbers, butchers and candlestick-makers’ but, by bold contrast, a public institution committed to public justice and pro bono publico service. The grant of a monopoly licence to practice law is based on three assumptions: (1) There is a socially useful function for the lawyer to perform, (2) The lawyer is a professional person who will perform that function, and (3) His performance as a professional person is regulated by himself not more formally, by the profession as a whole. The central function that the legal profession must perform is nothing less than the administration of justice.”
35. In M.V. Dabholkar, while interpreting the word “person aggrieved” the Supreme Court observed.
“31. The Bar Council is ‘a person aggrieved’ for these reasons. First, the words ‘person aggrieved’ in the Act are of wide import in the context of the purpose and provisions of the statute. In disciplinary proceedings before the Disciplinary Committee there is no Us and there are no parties. Therefore, the word ‘person’ will embrace the Bar Council which represents the Bar of the State. Second, the Bar Council is ‘a person aggrieved’ because it represents the collective conscience of the standards of professional conduct and etiquette. The Bar Council acts as the protector of the purity and dignity of the profession. Third, the function of the Bar Council in entertaining complaints against advocates is when the Bar Council has reasonable belief that there is a prima facie case of misconduct that a Disciplinary Committee is entrusted with such inquiry. Once an inquiry starts, the Bar Council has no control over its decision. The Bar Council may entrust it to another Disciplinary Committee or the Bar Council may make a report to the Bar Council of India. This indicates that the Bar Council is all the time interested in the proceedings for the vindication of discipline, dignity and decorum of the profession. Fourth, a decision of a Disciplinary Committee can only be corrected by appeals as provided under the Act. When the Bar Council initiates proceedings by referring cases of misconduct to Disciplinary Committee, the Bar Council in the performance of its functions under the Act is interested in the ‘task of seeing that the advocates’ maintain the proper standards and etiquette of the profession. Fifth, the Bar Council is vitally’ concerned with the decision in the context of the functions of the Bar Council. The Bar Council will have a grievance if the decision prejudices the maintenance of standards of professional conduct and ethics.”
36. In Bar Council of Maharashtra v. M.V. Dabholkar, (1976) 2 SCC 291 Mr. Justice V.R. Krishna Iyer, speaking for the four judges Bench observed:
“15. Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice – social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystallised into rigid rules but felt by the collective conscience of the practitioners as right.”
37. The Supreme Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106, while expressing the hope that Bar Council will sit up and pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society observed:
“333. We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for the administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a Bar that enjoys the unqualified trust and confidence of the people, that shares the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people.” 38. The Supreme Court in R.K. Anand recognised the power of courts to prohibit an Advocate convicted of criminal contempt, from appearing in Court for a specified period. The Supreme Court held:
“238 We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court’s record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an ‘inconvenient’ court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge.
239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor’s conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any court’s functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time.”
Note of caution – Interim suspension should be in rarest of rare cases.
39. The power to suspend the Advocate pending initiation and disposal of disciplinary proceedings must be in larger public interest. There should be an overwhelming public interest in such cases. The Bar Council must arrive at a clear finding that permitting the Advocate who is accused of a grave misconduct, pending disciplinary proceedings would seriously affect the dignity and decorum of the profession. The order should contain adequate materials justified such suspension. The interim suspension must be an exceptional action on account of the exigency of situation and gravity of the misconduct. There should be primary materials warranting such extreme action. It should not be as a matter of course. The interim suspension should therefore be in rarest of rare cases. The Bar Council in such cases must ensure disposal of disciplinary proceedings within the statutory period. The prolonged suspension without showing any progress in the disciplinary proceedings would give a cause of action to the Advocate to challenge the action.
40. The next question is whether the allegations against the petitioner would be sufficient to suspend him temporarily pending disposal of the disciplinary proceedings.
41. The proceedings of the meeting of the Bar Council of Tamil Nadu and Puducherry held on 5 October 2013 contain the basic materials constituting the grave charges and the circumstances under which the Bar Council has taken a decision to restrain five Advocates including the petitioner from practising the profession of law till the disposal of suo motu disciplinary proceedings initiated against them.
42. The string of materials available on record would make the position very clear that the petitioner along with other Advocates indulged in illegal and unethical practices and their actions tarnished the image of this noble profession. Those materials are sufficient to pass an order of interim suspension pending disposal of disciplinary proceedings for misconduct. The disciplinary committee must take earnest efforts to dispose of the suo motu disciplinary proceedings, as expeditiously as possible, uninfluenced by the above observation based on tentative findings and prima facie case.
Conclusion:
43.Therefore I hold that the power of Bar Council to revoke the licence to practice permanently or suspend it for a fixed term would include the incidental power of interim suspension pending disposal of disciplinary proceedings for misconduct.
44. In the upshot, I dismiss the writ petition. Consequently, the connected MP is closed. No costs.
B V Acharya, Senior Advocate and former Advocate General for Karnataka. Bangalore
The controversy among two sections of lawyers regarding physical hearing and virtual hearing is continuing and the Supreme Court Advocates Association has minced no words when its President stated “we have no choice but to take agitational approach”. Shockingly he told the Judges of the Supreme Court “if your Lordships feel that the Supreme Court is above the law, we will have to take law in our own hands”. This he appears to have said as reaction when the Supreme Court dismissed a writ petition filed by the Bar Association challenging the SOP (Standard Operating Procedure) providing for a hybrid procedure as a temporary solution to the problem created by the two sections of the Bar taking dramatically opposite stand.
The response of the President of the Bar as seen from his above utterances is both unfortunate and disappointing. It is unthinkable that the President of the Supreme Court Bar Association could use expressions such as “lawyers taking law into their hands”, “judges of the Supreme Court feel that they are above law”, merely because the Supreme Court declined to entertain the writ petition filed by the Association challenging the Standard Operating Procedure dealing with hybrid method, making it clear that they cannot deal with it on the judicial side and that the matter has to be sorted out between the Bench and the Bar on the administrative side. In the circumstances, agitational approach proposed by the President cannot be appreciated or commended.
In every system there will be some advantages as also disadvantages. One has to weigh them and find a satisfactory solution. One of the grounds urged by the Delhi lawyers to discontinue virtual hearing is that lawyers from outside Delhi are able to appear even before Supreme Court, offering stiff competition to the local lawyers. This could hardly be a justification for their demand. On the other hand, one should appreciate the fact that the practice of virtual hearing all over the country during pandemic has resulted in emergence of single Bar in the whole country when a lawyer from any place could appear in any part of the country. This is a great advantage to anyone including lawyers from Delhi who have been now appearing before the High Courts and other courts all over the country. Healthy competition among lawyers practicing in different parts of the country should not be seen as an evil to be avoided.
In fact, virtual hearing has advanced the case of litigants in having easy access to justice without the problem of distance. The mode of hybrid system adopted by the Supreme Court appears to be the best solution to the problem. Evidently we may note that this system has been in vogue in Karnataka High Court, since some time and the same is working satisfactorily. If there are any mistakes or errors in the Standing Operating Procedure of the Supreme Court, same could be corrected by mutual discussions. A candle light march may not be necessary for the purpose.
The judiciary is today facing multiple problems. In such a situation, it is absolutely essential that there is harmony and mutual understanding between the Bench and the Bar. Any differences should be sorted out by mutual discussions and deliberations. This will be in the best interest of the judiciary and the country.
B V Acharya, Senior Advocate and former Advocate General for Karnataka. Bangalore
Anivar A Aravind vs Ministry of Home Affairs and others. Writ Petition 7483/2020 decided on 25 January 2021. Chief Justice Abhay S. Oka and Justice S. Vishwajith Shetty
HELD: 28. (i) We accept the assurance given by the Government of India that no individual will be denied the benefits of any services that are being provided by the Governments, its agencies and instrumentalities on the ground that he has not downloaded and installed Aarogya Setu app;
(ii) Prima facie, we hold that informed consent of the users of Aarogya Setu app is taken to what is provided in the privacy policy which is available on Aarogya Setu app itself and, therefore, there is an informed consent of the users of Aarogya Setu app which is limited only to collection and manner of collection of information, use of information and retention, as provided in the privacy policy which is available on the Aarogya Setu app. However, it is made clear that the use and retention of information and data shall remain confined to what is provided in the privacy policy which is available on the Aarogya Setu app;
(iii) Prima facie, we hold that there is no informed consent of users of Aarogya Setu app taken for sharing of response data as provided in the Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020, as there is no reference to the said protocol in the terms of use and Privacy Policy available on the app,
(iv) Till further orders, we hereby restrain the Government of India and National Informatics Centre, the eighth and seventh respondents respectively from sharing the response data by applying the provisions of the Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020 issued vide order dated 11th May, 2020 (Annexure-R19) unless the informed consent of the users of Aarogya Setu app is taken;
(v) However, it will be open for the Union of India and National Informatics Centre, the eighth and seventh respondents respectively to file an affidavit for satisfying the Court that the Chairperson, Empowered Group on Technology and Data Management or the said Empowered Group is legally empowered to issue the said protocol and that the informed consent of the users of Aarogya Setu app is taken for implementation of clauses regarding sharing of the data as provided in the said protocol. After filing of an affidavit and the documents as aforesaid, it will be open for the said respondents to apply for vacating the limited interim relief granted as above, in terms of clause (iii).
Relevant paragraphs: 11.3. This Court in several decisions has come to a conclusion that the requirements under Section 15 of the Act are mandatory and not directory. However, in all the said decisions the dictum by the Hon’ble Apex Court in Bai Radha vs. The State of Gujarat reported in 1969 (1) SCC 43 has not been brought to the notice of this Court, as such this Court had no opportunity to consider the dictum of the Hon’ble Apex Court.
11.5 Applying the principle’s laid down by the Hon’ble Apex Court in Bai Radha’s case (quoted supra) it cannot now be held that the procedure under Section 15 of the Act is mandatory it can only be held to be directory, in the event of the said directory provisions not being followed and such failure resulting in prejudice to the accused, the trial Court would have to take into consideration such prejudice while deciding the matter.
11.6 The intent of the Legislature in providing for a woman witness and or a woman police officer is due to the involvement of women in the alleged crime. The crime alleged being such that the women in the brothel could be found in compromising position/s and or various stages of undress, the search having an impact on the privacy of the woman. Hence, a woman could raise an issue as regards the non following of the said preocedure, which the cour would be bound to consider.
11.7 This benefit in my considered opinion cannot be extended to men, there is no particular requirement for a women witness or woman police officer in so far as men on the premises or men involved in the crime are concerned, be it as an owner of the premises, the person running a brothel, person soliciting and or a customer. There will be no prejudice caused to the men in the place raided if there is no woman witness or woman police officer. If at all, it is only a woman who could claim for this benefit.
Relevant paragraphs: There is no dispute as to the legal requirement of disclosure inter alia of “assets” of the candidate and of spouse, both in terms of the State Election Commission Notification dated 14.07.2003 and the mandatory prescription in the Nomination Form itself; the said Notification has been issued pursuant to Apex Court decisions in Union of India vs The Association for Democratic Reforms (2002) 5 SCC 294 and PUCL vs. Union of India, (2003) 4 SCC 399; the gist of the mandatory Notification states that: every candidate at the time of filing his Nomination paper for any election or bye election of Panchayat or Municipality shall furnish full andcomplete information in regard to inter alia the assets(immovable, movable, bank balances, etc. ) of a candidate and of the spouse & also dependants, in a duly sworn affidavit.
The word ‘assets’ is derived from the French word ‘assez’ meaning ‘sufficient’; a word is the skin of a living thought (O.W.Holmes. J.,); at times words have flexible contours of meaning depending upon other companion words and the purpose of the instrument in which they are employed; the word ‘assets’ is employed in Sec.73 of CPC which regulates the trial & disposal of Election Petitions vide Sec.23 of KMC Act; the Madras High Court has held to mean the assets as proceeds of the sale of the property in execution of a decree vide Ramanathan vs Subramania Sastrial 26 Madras 179; the Bombay High Court in Veilchand Chaganlal vs Musson 14 BOM LR 633 was of the view that all of man’s property, of whichever kind, which may be used to satisfy debts or demands existing against him constitute his asset; Sri P.Ramanath Iyer in “THE LAW LEXICON”, 3rd Edn. 2012, Butterworths Wadhwa at pages 130-131 opines: “An asset must be one for which a market value canbe ascertained … property in general,all that one owns, considered as applicable to payment of his debts…”.
The word ‘asset’ employed in the Election Notification needs to be construed by placing on it a purposive interpretation; it needs to be given the widest amplitude regardless of its literal meaning since law is not the slave of dictionaries; that approach serves the purpose for which the said Notification has been issued as a subordinate legislation, pursuant to Apex Court decisions, supra; a restrictive meaning of the term if adopted as suggested by the counsel for the petitioner, would defeat the very purpose; in other words owning or possessing is not a component of the concept of “asset” as employed in the notification; viewed from this angle an agreement to sell for which consideration in part or full is passed on constitutes an asset and therefore the candidate is required to disclose the same in the affidavit accompanying the Nomination Form; a contra argument would defeat the purpose for achieving which law mandates disclosure of assets; the right of electors/voters to know the credentials of the candidate would be partly meaningless if the candidates do not disclose the amount (which may be in crores of rupees) paid to the vendor as consideration for the agreement to sell; such agreements, subject to all just exceptions may be assignable for consideration and thus they have marketability; therefore the contra contention cannot be sustained.
Relevant paragraphs: It is basic to the law of elections that in a democracy, the mandate of people as expressed at the hustings must prevail and be respected; that is why the election of a successful candidate is not readily upset for askance; a heavy onus lies on the petitioner who seeks to void the election, to make out a clear case, both in terms of pleadings & proof; an election petition and a suit proceeding differ from each other in their nature & scope; it is a settled position of law that all “material facts” must be pleaded by the party in support of the case set up by him for voiding an election; ordinarily, if some facts inadvertently or otherwise are not pleaded can be loaded to the pleadings by amendment provided that, leave therefor is sought before the expiry of the period of limitation prescribed for filing the petition; this again is subject to all just exceptions; the underlying object of this is to enable the victorious candidate, to know the specific case which he has to meet.
Right to amend the pleadings even after the limitation period has expired avails in the realm of election law although it’s exercise is conditioned by the factors such as nature & substance of amendment, delay & latches, the stage of proceedings & the like, is not much in dispute since the provisions of CPC are made mutatis mutadis applicable to the trial of election petitions vide Sec.24 of the Karnataka Municipalities Act, 1964; where challenge is laid on the ground of corrupt practice, the right to amend the pleadings is limited to introducing “amplificatory particulars” of a corrupt practice not previously averred in the petition but does not extend to introducing the material facts, as such; by the subject amendment the respondent seeks to introduce the details of undisclosed properties to the petition, which are already stated in great details in the List of Documents which accompanied the original petition from the day one; even copies of documents were also filed; both the sides having understood what is what, accordingly have drawn the battle lines; that being the position, it cannot be gainsaid that the amendment introduces the material facts, when it only amplifies of what are there already.
Ved Mitra Verma v. Dharam Deo Verma, Civil Appeal. 153 of 2009 decided on 31:7:2014.Reported in 2014 (15) SCC 578
Judgment: Justice Ranjan Gogai and Justice S.A.Bobde
Aggrieved by the judgment and order of reversal passed by the Gauhati High Court at Guwahati, Shillong Bench, this appeal has been filed.
The respondent Dharam Deo Verma had filed an application in the Court of Additional Deputy Commissioner at Shillong under Section 276 of the Indian Succession Act, 1925 (for short “the Act”) for grant of letters of administration in respect of a will dated 20-11-1974, claimed to have been executed by his father late Satyanand Verma. The learned trial court rejected the application holding the circumstances surrounding the execution of the will to be suspicious. In appeal, the High Court reversed the said verdict by an elaborate judgment.
The correctness of the view taken by the High Court has been sought to be assailed by contending that the reversal of the verdict of the learned trial court overlooks a series of suspicious circumstances which, it is contended, ought to have been taken into account to hold that execution of the will by the testator in favour of the present respondent has not been proved.
The suspicious circumstances, according to the appellant, may be enumerated in seriatim hereinunder: (i) That the will dated 20-11-1974 excludes all other children of the testator to the exception of the beneficiary thereof i.e. the respondent herein. No basis therefor is disclosed. (ii) In the will, the name of the daughter Vidyalakshmi Devi having been wrongly mentioned as Piplakshmi Devi. This is a glaring fact which raises serious doubts as regards the authenticity of the will. (iii) That the testator Satyanand Verma, was at the relevant point of time, suffering from ill-health which incapacitated him from executing the will; (iv) That the application before the learned trial court under the provisions of the Act was filed after nearly 17 years of the execution of the will; and lastly (v) That the attesting witnesses have passed away in the meantime. The execution of the will centres round the evidence of Shri Krishan Murari, Sub-Registrar, Jansath, Muzaffarnagar District (U.P.), PW 3, who had deposed on commission after nearly two decades of the execution of the will throwing serious doubts on the credibility of the evidence tendered.
It is the submission of Mr Rana Mukherjee, learned counsel appearing for the appellant that the aforesaid suspicious circumstances had rendered the execution of the will highly suspect and, in addition, the execution thereof not having been proved as required under Section 69 of the Evidence Act, 1872, there is an apparent error in the conclusions recorded by the High Court in reversing the verdict of the learned trial court.
The arguments made on behalf of the appellant have been refuted by Shri Mahabir Singh, learned Senior Counsel appearing for the respondent, who has submitted that the above circumstances, by themselves, do not render the execution of the will suspect or unworthy of acceptance. Furthermore, it is submitted by the learned counsel that all the aforesaid allegedly suspicious circumstances are capable of being reasonably explained on the basis of the materials on record. It is further submitted that Shri Krishan Murari, Sub-Registrar, Jansath, Muzaffarnagar District (U.P.), PW 3, in his deposition on commission has proved the execution of the will by the attesting witnesses and the same being a registered document, the conclusions recorded by the High Court are perfectly justified and would not require any interference by this Court.
We have considered the rival submissions advanced on behalf of the parties.
The exclusion of the other children of the testator and the execution of the will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the testator that has to prevail.
Therefore, the question as to whether the will is a genuine and acceptable document will depend on a consideration of the other circumstances surrounding its execution.
While there is an obvious error in the will in the name of the daughter of the testator, there are two significant aspects of the matter which cannot be overlooked. Firstly, the will was written to the dictation of the testator, and secondly, in the description of the name of the daughter, there is a reference to her husband’s name which is correct i.e. Narayan Singh. The aforesaid two circumstances can reasonably explain the error in the name of the daughter as appearing in the will and we are persuaded to hold that the said error is not material so as to invalidate the will.
Insofar as the capacity of the testator to execute the will is concerned, though arguments have been advanced to show that on account of ill-health the testator was not in a position to realise and comprehend the consequences of his action, what cannot be overlooked is the fact that it is the admitted case of the respondent herein that at the time of the execution of the will, the testator was in Jansath in U.P. in connection with the treatment of his eye ailment. There is no material on record to hold that the testator was suffering from any other kind of physical or mental infirmity which had rendered him incapable of taking a decision with regard to bequeathing of the properties by means of the will in question.
It is not a fact that the will and its contents had come to light for the first time after 17 years when the application was filed before the learned trial court by the present respondent. From the materials on record before the High Court, it is evident that there was a family dispute between the parties which was resolved by the local Durbar and the proceedings thereof were recorded in Ext. 10. In the said document, there is a reference to the “deed of agreement” made by the deceased father in 1974 on the basis of which the appellant was found entitled to be in possession of the property in question. The aforesaid “deed of agreement” is, in fact, the will dated 20-11-1974.
The attesting witnesses having died, the Sub-Registrar, who had registered the will was examined as PW 3. He was examined on commission and in response to the questions posed to him, particularly, Question 2, he had set out the circumstances in which the attesting witnesses as well as the testator had signed on the document. This part of the evidence has been elaborately considered by the High Court to record its satisfaction that the execution of the will has been proved on the basis of the evidence of the Sub-Registrar i.e. PW 3. Having considered the aforesaid aspect of the matter, we are of the view that the satisfaction recorded by the High Court does not suffer from any apparent infirmity or fundamental error which would require correction in the exercise of our jurisdiction under Article 136 of the Constitution of India.
All the alleged suspicious circumstances surrounding the execution of the will being capable of being understood in the manner indicated above and the requirement of Section 69 of the Evidence Act, 1872 having been satisfied by the evidence of PW 3, we find that in the present case, the findings and conclusions recorded by the High Court would not call for any interference. Consequently, and for the reasons aforesaid, we dismiss the appeal leaving the parties to bear their own costs.
Relevant paragraphs: 9. Whether a Magistrate can issue summons to a person residing outside the territorial jurisdiction without conducting an enquiry under Section 202 of Cr.P.C., if so under what circumstances?
9.5 The procedure under Section 202 of Cr.P.C. is required to be followed only when the accused has no presence at all within the jurisdiction of the Court issuing process, which is not the case here.
HELD: 9.10.1 When the accused is having an office, branch office, corporate office, sales office or the like within the jurisdiction of the Magistrate where the offence has been committed and or continues to be committed, there would be no requirement for any enquiry under Section202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.
9.10.2 In the event of accused being an individual, if the said accused has a temporary residencewithinthe jurisdiction of the Magistrate, again merely because he does not have a permanentresidence, there is no enquiry which is required to be conducted under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.
9.10.3When the accused has no presence within the jurisdiction of the Magistrate where the offence has been committed, then it would be mandatory for an enquiry under Section 202 of the Cr.P.C to be held.
9.10.4. In the event of accused being aggrieved by the issuance of summons, the said accused immediately on receipt of the summons and/or on appearance before the Magistrate is required to make out his grievance before the Magistrate Court and/or by petition under Section 482 Cr.P.C. If there is any delay, in such challenge and/or if challenge has not made within reasonable time, the accused would not be entitled to raise the grievance that the procedure under Section 202 of Cr.P.C. has not been followedon account of delay and latches.
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