Held: Para 43. The definition of ‘financial debt’ in Section 5(8) makes it clear that ‘financial debt’ means a debt along with interest, if any, disbursed against the consideration for time value of money and would include money raised or borrowed against the payment of interest; amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; receivables sold or discounted other than any receivables sold on non-recourse basis or any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing. Explanation to Section 5(8) which relates to real estate projects is of no relevance in the facts and circumstances of this case. The payment received for shares, duly issued to a third party at the request of the payee as evident from official records, cannot be a debt, not to speak of financial debt. Shares of a company are transferable subject to restrictions, if any, in its Articles of Association and attract dividend when the company makes profits.
Held: Para 43. The definition of ‘financial debt’ in Section 5(8) makes it clear that ‘financial debt’ means a debt along with interest, if any, disbursed against the consideration for time value of money and would include money raised or borrowed against the payment of interest; amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; receivables sold or discounted other than any receivables sold on non-recourse basis or any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing. Explanation to Section 5(8) which relates to real estate projects is of no relevance in the facts and circumstances of this case. The payment received for shares, duly issued to a third party at the request of the payee as evident from official records, cannot be a debt, not to speak of financial debt. Shares of a company are transferable subject to restrictions, if any, in its Articles of Association and attract dividend when the company makes profits.
Right to Information. A candidate who appeared in Public Service Commission examination can, as a matter of right and subject to certain conditions, seek for copies of his evaluated answer scripts depicting the marks awarded. Karnataka High Court 26:8:2020.
Held: Para 14. The findings are summarized as under:
14.1. A candidate who has appeared for examination conducted by a public service commission can seek for copies of his own evaluated answer sripts along with the marks allotted to each question.
14.2. An applicant cannot seek for copies of evaluated answer scripts of any other person apart from himself/herself.
14.3. In order to make such an application, the applicant has to satisfy the parameters laid down by the Angesh Kumar’s.
14.4. For seeking any such information, the application has to be made in the prescribed format and the prescribed fees are required to be paid.
14.5. The Information Commission Central or State in the event of no public Information Officer being appointed can direct the public authority to take such steps as may be necessary for appointment of a public Information Officer.
14.6. The Information Commission, Central or State cannot appoint a Public Information Officer of its own accord in the event of the direction not being followed.
14.7. The Information Commission – State or Central has no power to remove or dismiss a public Information Officer already appointed by any public Authority for that organization.
14.8. As per the scheme of RTI Act, 2005 or the Freedom of Information Act, 2002, there is no qualifications prescribed for a Public Information Officer.
14.9. It is the discretion of the authority to appoint a competent person as a Public Information Officer. 14.10. Taking into account that the Public Information Officer would be dealing with legal submissions where under the decisions of the High Court and even the Apex Court could be placed before the Public Information Officer for consideration in a manner of speaking the Public Information Officer would be discharging quasi judicial functions while accepting or rejecting the application for information. This aspect may be taken into consideration by the Legislature in its wisdom to formulate the requirements of qualification, if any, for the appointment of a person as a Public Information Officer.
Note: Conditions imposed in UPSC Vs. Angesh Kumar reported in (2018) 4 SCC 530 are extracted by the High Court in the following paragraphs.
10.1.2. The applicant has to be a candidate in the exam.
10.1.3. The applicant can only seek for his own answer scripts.
10.1.4. The applicant is required to make an application in the prescribed form.
10.1.5. The applicant is required to make payment of the due amounts for furnishing of the information pertaining to his evaluated and marked answer scripts.
10.1.6. The information sought for should not come within the exceptions/exemptions under Section 8 of the RTI Act.
Speaking on a popular subject is not a big deal. Picking slightly dry but extremely useful subject requires commitment. Commitment to share valuable knowledge on the point so that the advocates can make use of it in their daily practice.
ದಕ್ಷ ಲೀಗಲ್ ಏರ್ಪಡಿಸಿದ್ದ “ವೃತ್ತಿ ಜೀವನದಲ್ಲಿ ಕಿರಿಯ ವಕೀಲರ ಸಮಸ್ಯೆಗಳು ಹಾಗೂ ಹಿರಿಯರ ಮಾರ್ಗದರ್ಶನ” ಎ೦ಬ ವಿಚಾರ ಸ೦ಕಿರಣದಲ್ಲಿ ಮಾತನಾಡಿದ ಹಿರಿಯ ವಕೀಲರೂ ಹಾಗೂ ಕರ್ನಾಟಕ ರಾಜ್ಯ ವಕೀಲರ ಪರಿಷತ್ತಿನ ಸದಸ್ಯರೂ ಆದ – ಚ೦ದ್ರಮೌಳಿ “ನಾವು ಹಲವು ಮೊಕದ್ದಮೆಗಳಲ್ಲಿ ತಾ೦ತ್ರಿಕ ಕಾರಣದಿ೦ದ ನಮ್ಮ ಕಕ್ಷಿದಾರರಿಗೆ ಜಯ ತ೦ದುಕೊಡುತ್ತೇವೆ. ಆದರೆ ಈ ಜಯವನ್ನು ನ್ಯಾಯಯುತ ಸತ್ಯಾನ್ವೇಶಣೆಗೆ ಜಯ ಎ೦ದು ಹೇಳಲಾಗದು. ಇ೦ತಹ ಸನ್ನಿವೇಶಗಳಲ್ಲಿ, ಈ ಜಯದಿ೦ದ ಪ್ರತಿವಾದಿಗೆ ಅತ್ಯ೦ತ ನಷ್ಟ ಉ೦ಟಾದಲ್ಲಿ, ಕಕ್ಷಿದಾರರಿಗೆ ಒ೦ದೆರಡು ಬುದ್ದಿಮಾತುಗಳನ್ನು, ಹೇಳಿ, ಪ್ರತಿವಾದಿಗೆ ಆದ ನಷ್ಟಕ್ಕೆ ಕಿ೦ಚಿತ್ತಾದರೂ ಪರಿಹಾರ ಮಾಡಿಸಿದಲ್ಲಿ ನಮ್ಮ ವೃತ್ತಿ ಜೀವನವನ್ನು ಪ್ರಾರ೦ಭಿಸುವಾಗ ತೆಗೆದುಕೂ೦ಡ ಪ್ರಮಾಣಕ್ಕೆ ಬೆಲೆ ಬರುತ್ತದೆ”” ಎ೦ದು ಹೇಳಿದರು.
“ನಾನೊಮ್ಮೆ, ಹಣ ವಸೂಲಿ ಮೊಕದ್ದಮೆಯಲ್ಲಿ ಪ್ರದಿವಾದಿಯ ಪರವಾಗಿ ವಕಾಲತ್ತು ವಹಿಸಿ ತಾ೦ತ್ರಿಕ ಕಾರಣದಿ೦ದ ಜಯ ಗಳಿಸಿದೆ. ಆದರೆ ಕಾನೂನಿನ ಎಲ್ಲ ಹ೦ತಗಳೂ ಮುಗಿದ ಮೇಲೆ, ನನ್ನ ಕಕ್ಷಿದಾರ ನನಗೆ ಧನ್ಯವಾದ ಹೇಳಲು ಬ೦ದಾಗ “-ನೀನು ಇ೦ದು ಜಯ ಗಳಿಸಿದ್ದೀಯ. ಆದರೆ ನಿನ್ನ ಜಯದಿ೦ದ ಮತ್ತೂ೦ದು ಕುಟು೦ಬ ಬೀದಿಗೆ ಬ೦ದರೆ ಅದು ಸತ್ಯಾನ್ವೇಶಣೆಯ ಜಯವಾಗುವುದಿಲ್ಲ. ಆದ್ದರಿ೦ದ ವಾದಿಗೆ ಕಿ೦ಚಿತ್ತಾದರೂ ಹಣಸಯಾಯ ಮಾಡು”- ಎ೦ದು ಉಪದೇಶ ಮಾಡಿ ಅದು ಕಾರ್ಯಗತವಾದಾಗ ನನಗೆ ನಿಜವಾದ ಜಯಗಳಿಸಿದ ಅನುಭವವಾಯಿತು”” ಎ೦ದು ಶ್ರೀ. ಚ೦ದ್ರಮೌಳಿ ವಿಚಾರ ಸ೦ಕಿರಣದಲ್ಲಿ ವಕೀಲರಿಗೆ ಹೇಳಿದರು.
ನಮ್ಮ ವಕೀಲ ವೃತ್ತಿಯಲ್ಲಿ ನಾವು ಹಲವಾರು ಬಾರಿ ತಾ೦ತ್ರಿಕ ಕಾರಣಗಳಿ೦ದ ಜಯಗಳಿಸುತ್ತೇವೆ. ಚೆಕ್ ಬೌನ್ಸ್ ಮೊದದ್ದಮೆಗಳಲ್ಲ೦ತೂ ಇದು ಸರ್ವೇ ಸಾಮಾನ್ಯ. ಕೆಲವೊಮ್ಮೆ ಜೀವನದಲ್ಲಿ ಕಷ್ಟ ಕಾಲಕ್ಕೆ೦ದು ಉಳಿಸಿದ ಹಣವೂ ಈ ಮೊಕದ್ದಮೆಗಳಲ್ಲಿ ಸೇರಿರುತ್ತದೆ. ಹಣ ಕೊಟ್ಟವನ ಸೆಕ್ಷನ್ ೧೩೮ ಚೆಕ್ ಬೌನ್ಸ್ ಮೊಕದ್ದಮೆ ತಾ೦ತ್ರಿಕ ಕಾರಣಗಳಿ೦ದ ವಜಾಗೊ೦ಡಾಗ ಆತನ ಬದುಕಿಗೆ ಇದ್ದ ಆಸರೆಯೇ ನಾಶವಾಗುತ್ತದೆ. ಇ೦ತ ಸನ್ನಿವೇಶದಲ್ಲಿ, ಮೊಕದ್ದಮೆ ಮುಗಿದ ನ೦ತರ ತಮ್ಮ ಕಕ್ಷಿದಾರರಿಗೆ ಉಪದೇಶ ಮಾಡಿ ಕನಿಶ್ಟ ಅಸಲು ಹಣವನ್ನಾದರೂ ಹಿ೦ತಿರುಗಿಸಿದಲ್ಲಿ ವಾದಿಯ ಕುಟು೦ಬಕ್ಕೆ ಆಗುವ ಕಲ್ಯಾಣದ ಜೊತೆ ಪ್ರತಿವಾದಿಗೂ ಮು೦ದೆ ಒಳ್ಳೆಯದಾಗಬಹುದು ಎ೦ಬ ಕಿವಿಮಾತು ಹೇಳುವುದರಿ೦ದ ನಮ್ಮ ವಕೀಲ ವೃತ್ತಿಗೆ ಈಗಾಗಲೇ ಇರುವ ಘನತೆಯನ್ನು ಇನ್ನೂ ಹೆಚ್ಚಿಸುತ್ತದೆ ಎ೦ದು ನಾನು ಭಾವಿಸುತ್ತೇನೆ.
ಎಸ್. ಬಸವರಾಜ್, ವಕೀಲ ಹಾಗೂ ಸದಸ್ಯ, ಕರ್ನಾಟಕ ರಾಜ್ಯ ವಕೀಲರ ಪರಿಷತ್ತು.
ಎಸ್. ಆರ್. ಸೂರ್ಯನಾರಾಯಣ ರಾವ್, ಹಿರಿಯ ವಕೀಲರು, ಚಿಕ್ಕಬಳ್ಳಾಪುರ
ನನ್ನನ್ನು ೨೦೦೫ ರಿ೦ದ ಕಾಡುತ್ತಿದ್ದ ಪ್ರಶ್ನೆಗಳೆ೦ದರೆ ಹಿ೦ದೂ ಉತ್ತರಾದಿಕಾರಿ ಕಾಯ್ದೆ ೧೯೫೬ಕ್ಕೆ ೨೦೦೫ ರಲ್ಲಿ ಮಾಡಿದ ತಿದ್ದುಪಡಿಯ ಪ್ರಕಾರ ಹೆಣ್ಣುಮಕ್ಕಳಿಗೆ ಬ೦ದ ಪಿತ್ರಾರ್ಜಿತ ಆಸ್ತಿಯಲ್ಲಿ ಅವರ ಮಕ್ಕಳಿಗೂ ಹಕ್ಕಿದೆಯೇ?. ಹಾಗೂ ೨೦೦೫ ರ ನ೦ತರವೂ ಕೋಪಾರ್ಸನರಿ ಪದ್ದತಿ ಮು೦ದುವರೆಯುತ್ತದೆಯೇ?.
ಆಲ್ ಇ೦ಡಿಯಾ ಲಾಯರ್ಸ್ ಯೂನಿಯನ್ ಇವರು ಏರ್ಪಡಿಸಿದ್ದ ವಿಚಾರ ಸ೦ಕಿರಣದಲ್ಲಿ ತಮ್ಮ ಎರಡನೇ ಭಾಗದ ಉಪನ್ಯಾಸವನ್ನು ಶ್ರೀ. ಎಸ್. ಆರ್. ಸೂರ್ಯನಾರಾಯಣ ರಾವ್, ಹಿರಿಯ ವಕೀಲರು, ಚಿಕ್ಕಬಳ್ಳಾಪುರ ನಿನ್ನೆ (೨೬ ಆಗಸ್ಟ್ ೨೦೨೦) ನೀಡಿದರು. ಸ೦ಜೆ ೫ ಘ೦ಟೆಯಿ೦ದ ರಾತ್ರಿ ೮:೩೦ ರ ವರೆಗೆ ನಡೆದ ಕಾರ್ಯಕ್ರಮದ ಬಗ್ಗೆ ನಾನು ಹೇಳುವುದಿಷ್ಟೆ. ನನ್ನ ೩೩ ವರ್ಷದ ವಕೀಲ ವೃತ್ತಿಯಲ್ಲಿ ಹಲವು ಮೇಧಾವಿ ವಕೀಲರನ್ನು ನೋಡಿದ್ದೇನೆ. ಆದರೆ ಹಿ೦ದೂ ಕಾನೂನಿನ ವಿಶಯದಲ್ಲಿ ಶ್ರೀ. ಎಸ್. ಆರ್. ಸೂರ್ಯನಾರಾಯಣ ರಾವ್ ರವ೦ತ ವಿದ್ವಾಂಸರನ್ನು ಎ೦ದೂ ನೋಡಿರಲಿಲ್ಲ. ನನ್ನ ಪ್ರಣಾಮಗಳು.
ಪ್ರಶ್ನೋತ್ತರ ಕಾರ್ಯಕ್ರಮದಲ್ಲಿ, ನನ್ನ ಮೊದಲನೆಯ ಪ್ರಶ್ನೆ ಹಿ೦ದೂ ಉತ್ತರಾದಿಕಾರಿ ಕಾಯ್ದೆ ೧೯೫೬ಕ್ಕೆ ೨೦೦೫ ರಲ್ಲಿ ಮಾಡಿದ ತಿದ್ದುಪಡಿಯ ಪ್ರಕಾರ ಹೆಣ್ಣುಮಕ್ಕಳಿಗೆ ಬ೦ದ ಪಿತ್ರಾರ್ಜಿತ ಆಸ್ತಿಯಲ್ಲಿ ಅವರ ಮಕ್ಕಳಿಗೂ ಹಕ್ಕಿದೆಯೇ. ಇದಕ್ಕೆ ಉತ್ತರಿಸಿದ ಶ್ರೀ. ಎಸ್. ಆರ್. ಸೂರ್ಯನಾರಾಯಣ ರಾವ್ ತಿದ್ದುಪಡಿಯ ಸೆಕ್ಷನ್ ೬(೨) ನ್ನು ಕೂಲ೦ಕುಶವಾಗಿ ಪರಿಶೀಲಿಸಿದಾಗ ನಮಗೆ ಖಚಿತವಾಗುವುದೆ೦ದರೆ, (ಸೆಕ್ಷನ್ ೬(೨) ನೋಡಿ.) (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. ಈ ಸೆಕ್ಷನ್೨೦೦೫ ರ ತಿದ್ದುಪಡಿಯ ಪ್ರಕಾರ ಪಿತ್ರಾರ್ಜಿತ ಆಸ್ತಿ ವಿಭಜನೆ ಆಗಿ ಹೆಣ್ಣುಮಕ್ಕಳಿಗೆ ಬ೦ದ ಆಸ್ತಿಯು ಆಕೆ ಕೋಪಾರ್ಸನರ್ ಎ೦ದೇ ತೆಗೆದುಕೊಳ್ಳುತ್ತಾಳೆ with the incidents of coparcenary ownership. ಮತ್ತು ಆಕೆಗೆ ಕೋಪಾರ್ಸನರ್ ಪದ್ದತಿಯ ಎಲ್ಲಾ ನಿಭ೦ದನೆಗಳೂ ಅನ್ವಯವಾಗುತ್ತವೆ. ಹಾಗೂ notwithstanding anything contained in this Act ಈ ಭಾಗವನ್ನು ವ್ಯಾಖ್ಯಾನಿಸಿದಾಗ ಸೆಕ್ಷನ್ ೧೪ ಕೂಡ ಅನ್ವಯವಾಗುವುದಿಲ್ಲ ಎ೦ದು ರಾವ್ ಅಭಿಪ್ರಾಯಪಟ್ಟರು.
ನ೦ತರದ ಪ್ರಶ್ನೆ ಹಾಗೂ ೨೦೦೫ ರ ನ೦ತರವೂ ಕೋಪಾರ್ಸನರಿ ಪದ್ದತಿ ಮು೦ದುವರೆಯುತ್ತದೆಯೇ. ಇದಕ್ಕೆ ಉತ್ತರಿಸಿದ ಶ್ರೀ. ರಾವ್, ನಾವು ಸೆಕ್ಷನ್ ೬(೩)ನ್ನು ನೋಡಿದಾಗ, , (ಸೆಕ್ಷನ್ ೬(೨) ನೋಡಿ.) (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place. ಪಿತ್ರಾರ್ಜಿತ ಆಸ್ತಿಯಲ್ಲಿ ಕೇವಲ ಕೋಪಾರ್ಸನರ್ ಇವನ ಹಕ್ಕು ಮಾತ್ರ succession ಮುಖಾ೦ತರ ಹೋಗುತ್ತದೆ ಮತ್ತು ಈ ಭಾಗಕ್ಕೆ survivorship ಅನ್ವಯವಾಗುವುದಿಲ್ಲ. ಮು೦ಚೆ ಇದ್ದ೦ತಹ ನೋಶನಲ್ ವಿಭಜನೆ ಕೂಡ ಇದರಲ್ಲಿ ಅಡಕವಾಗಿದೆ. ಆದರೆ ೨೦೦೫ ರ ನ೦ತರ ಕೋಪಾರ್ಸನರಿ ಪದ್ದತಿ ಕೊನೆಗೊಳ್ಳುತ್ತದೆ ಎ೦ಬುವ ಯಾವ ಅ೦ಶವೂ ತಿದ್ದುಪಡಿಯಲ್ಲಿ ಕಾಣಸಿಗುವುದಿಲ್ಲ ಎ೦ಬ ಅಭಿಪ್ರಾಯ ವ್ಯಕ್ತಪಡಿಸಿದರು.
ಇದುವರೆಗೂ ಯಾವ ಉಚ್ಚ ನ್ಯಾಯಾಲಯವೂ ಯಾಗು ಭಾರತದ ಸರ್ವೋಚ್ಚ ನ್ಯಾಯಲಯ ಕೂಡ ಈ ಬಗ್ಗೆ ಸ್ಪಷ್ಟ ತೀರ್ಪನ್ನು ನೀಡಿಲ್ಲ. ಆದ್ದರಿ೦ದ ಸಧ್ಯಕ್ಕೆ ಹಿ೦ದೂ ಕಾನೂನನ್ನು ಅತ್ಯ೦ತ ಆಳವಾಗಿ ಅಭ್ಯಯನ ಮಾಡಿ ವೃತ್ತಿ ಮಾಡಿದ ಎಸ್. ಆರ್. ಸೂರ್ಯನಾರಾಯಣ ರಾವ್ ಇವರ ಅಭಿಪ್ರಾಯವನ್ನು ಸರಿ ಎ೦ದು ನಾನು ಕೂಡ ಭಾವಿಸುತ್ತೆನೆ.
ಎಸ್. ಬಸವರಾಜ್, ವಕೀಲ ಹಾಗೂ ಸದಸ್ಯ, ಕರ್ನಾಟಕ ರಾಜ್ಯ ವಕೀಲರ ಪರಿಷತ್ತು.
The students who have studied abroad can also enroll as lawyers in India. For this purpose they have to study “Bridge Course” in the in Law Schools such as National Law School. The Bar Council of India on receipt of application from these students, will decide the duration of the Bridge Course and also the law school in which they shall undertake the course. For example if a student has studied law abroad for three years, BCI expects him to study the bridge course for two years. If the student has studied law for four years, then the bridge course can be one year. If the student studied law abroad after three years graduation, then bridge course is not mandatory.
Please Note: After completion of the bridge course, the student is expected to write separate examination being conducted by the Bar Council of India (twice a year). This is not the same as All India Bar Examination which is held for lawyers after enrollment.
On successful completion of both bridge course and on passing the examination, the student is eligible to be enrolled as an Advocate in India fully competent to practice as a Lawyer.
To take up bridge course and later the examination, Bar Council of India can be approached.
S. Basavaraj, Member, Karnataka State Bar Council. raj@dakshalegal.com
Held: Para 36 It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of “supply of services” covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India(2012) 5 SCC 359 , this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of „service‟ within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that:
“8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes “service” within the meaning of the Act. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on “as is where is” basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration. To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the respondents.”
The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.
S. Basavaraj, Advocate, Bangalore. Member, Karnataka State Bar Council
This write up examines the locus standi of transnational bodies to comment on the legal system and verdicts delivered by Courts of another country. There is rather a well-recognised right of a country and its citizens to comment on unfair economic sanctions, human right violations and aggressive foreign policy of another country. However commenting on foreign legal system and judgments of foreign courts, is a clear transgression of sovereignty.
Recently, Unites States Secretary of State Mike Pompeo condemned China’s plan to impose a new security law in Hong Kong, calling it a “death knell” for the city’s freedoms. Of course, there was a backlash from Beijing.
The verdict of the Hong Kong court convicting seven local policemen and a former chief executive for their beating of activist Ken triggered controversy in the region. However, when several foreign personalities started hailing the verdict, China had to react sharply.
Mr. Donald Trump tweeted in 2015 that “Mexico’s court system corrupt. I want nothing to do with Mexico other than to build an impenetrable wall and stop them from tipping off U.S.”
Recently, Bar Human Rights Committee of England and Wales (BHRC) of United Kingdom and (read their names carefully) Indian American Muslim Council (IAMC), Hindus for Human Rights (HFHR), Global Indian Progressive Alliance (GIPA), Students Against Hindutva Ideology (SAHI), Young India, Inc and Voices against Fascism in India all situated in United States of Amercia have taken up the job of “correcting” Indian judicial system especially the Supreme Court of India.
These transnational bodies have issued statement expressing their “concern” over the Indian Supreme Court’s recent judgment convicting Mr. Prashant Bhushan of contempt of Court for two of his tweets. Though the statement and resolutions are worded ingeniously, the attempt is to make a collateral attack on the Indian Judicial system for the reasons which are not very difficult to understand.
These organisations are created for a specific purpose as can be seen from their very names. I fail to understand which Hindutva or Fascism or even anti-Muslim ideology flow from the Judgement of the Supreme Court in Mr. Prashant Bhushan case. Be that as it may, there is a clear indication that these bodies with their foreign existence, foreign funding, foreign affiliation, foreign loyalty have taken up an agenda which is extremely alarming and dangerous. This is because, after attacking Indian Governance, Indian policy towards Kashmir, India’s relations with Pakistan and China, they have turned the guns on Indian Judiciary.
Indian advocates, lawyers’ bodies, legal luminaries and like minded personalities have been commenting on the judgment and they may claim freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India. Fair enough. However, these foreign elements have no such fundamental right or locus standi to comment and interfere with the smooth functioning of Indian legal system and Indian Judiciary.
Indian lawyers, NGOs, political outfits, intellectuals and retired judges have been critically analysing the judgement leaving no room for the foreign bodies to add anything more. Our nation is full of intellectuals fully capable of bringing judicial discipline whenever it is found lacking.
Ground reality. Let’s admit. Today the entire populace of India is divided vertically into two segments. (1) Those who are extremely happy with last six years governance and are gloating with patriotism or extreme nationalism as one may call. (2) Those who are terribly upset, frustrated and disappointed with last six years governance and feel side-lined, cheated, and most importantly, kept out of grazing grounds. The lawyers community, intellectuals, scholars, political outfits, NGOs have chosen their respective segments. Unfortunately, Judgments of the Indian judiciary especially the Supreme Court are also classified as falling in category 1 or 2.
But that’s the fundamental right the citizens of this country enjoy. That’s the freedom of expression they are guaranteed, of course, all within reasonable restrictions.
Mr. B.V.Acharya, Senior Advocate and former Advocate General for Karnataka says “It is shocking to find that the Bar Human Rights Committee of England and Wales has thought it fit to plead for contemnor and has demanded repeal of the statutory provision regarding criminal contempt. This is a clear case of interference in the internal affairs of the country and in particular the sovereign power of the Indian Parliament which is competent enough to take decisions without any external influence.”
Mr. Jayakumar S Patil, Senior Advocate, Bangalore feels the comments of the aforesaid bodies on the Indian legal system as unwarranted and disturbing.
Comity of Nations requires mutual recognition by nations of the laws and customs of others. The principle is not confined to sovereign bodies but extends to its citizens as well. The legal system in US dilutes contempt of court laws by adopting “Clear and Present Danger” test. The test allows almost unlimited freedom of speech to individuals. It looks like the aforesaid transnational bodies are influenced by this legal system prevalent in US.
Some of President Donald Trump tweets are outrageous, yet fall under permissible category. Just to give one example, he tweets “Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot. Resign!”. Such tweets are in abundance.
However, the situation in India is different. Calling judges idiots (fools) is held to be contemptuous (M.V.Jayarajan vs High Court Of Kerala & Anr.) Many agree that our society is not mature enough to handle unlimited freedom of speech when it comes to Judiciary. The reasons are not very difficult to understand.
Lawyers bodies, NGOs, political outfits, retired judges and scholars in India are fully capable of commenting upon and correcting unfair and unjust judicial verdicts. Our parliamentarians have experience and wisdom to enact required laws. We do not need uninvited, motivated and agenda-ridden comments from foreign existent and foreign funded agencies on our judicial system. These foreign bodies must realize that their conduct is a double-edged sword which will lead to international melee and free-for-all scenario where each country attacking the legal system and judgments delivered by the Courts of another country.
S.Basavaraj, Advocate, Bangalore. Member, Karnataka State Bar Council
Mr. B.V.Acharya, Senior Advocate and former Advocate General for Karnataka
1. By judgment dated: 14.08.2020 pronounced by a Bench of 3 Judges of the Supreme Court, Sri Prashanth Bhushan an Advocate practicing before the Supreme Court and having a standing over 30 years (hereinafter referred to as Contemnor) was found guilty of having committed criminal contempt of court and the case is adjourned to hear regarding sentence.
2. This judgment has evoked strong protest by a group of advocates and also a section of the press. Some articles and write-ups are published finding fault with the judgment on the ground that the same infringes Fundamental Right of Freedom of Speech and Expression. Certain procedural irregularities, such as want of consent of the Attorney General, are also pointed out to contend that the decision is vitiated. It appears that an attempt is made to create and influence public opinion in favour of the Contemnor, not only in the country but also abroad. It is shocking to find that the Bar Human Rights Committee of England and Wales has thought it fit to plead for contemnor and has demanded repeal of the statutory provision regarding criminal contempt. This is a clear case of interference in the internal affairs of the country and in particular the sovereign power of the Indian Parliament which is competent enough to take decisions without any external influence. A group of advocates are trying to enlist support from lawyers and carrying on a signature campaign as if the matter is to be decided on the basis of opinion of the majority and not on the merits of the matter. These developments are both disturbing and unfortunate.
3, The basis for action for contempt are two tweets admittedly posted by the contemnor. The first one reads as follows:
“CJI rides a 50 lakh motorcycle belonging to a BJP leader at Rajbhavan, Nagpur without a mask or helmet at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access justice”
The second tweet reads as follows:
“When historians in future look back at the last six years to see how democracy has been destroyed in India even without a formal emergency they will particularly mark the role of the Supreme Court in this destruction and more particularly the role of the last 4 CJIs”
4. A preliminary objection is raised with regard to procedure. It seems a private party had filed the contempt petition alleging contempt with regard to the first tweet without the consent of the Attorney General. It appears on the administrative side an order was passed to list the matter before court. Accordingly, it was listed. The Bench on a consideration of the matter decided to take suo moto action for contempt and directed issue of notice not only in respect of the first tweet but also in respect of the second one which appears to have been published in the English daily that day.
5. The Supreme Court has rightly rejected the preliminary objection relying on several earlier decisions of the Supreme Court. There is no dispute that the Supreme Court has power to take action suo moto and that, in such an event, consent of the Attorney General is not required. It is only when a private party intends to move the court, such a consent is required. In the present case, no doubt, a private party has moved the court regarding first tweet without the consent of the Attorney General. The court is entitled to take suo-moto cognizance, when the information regarding contempt comes to its notice from any source. It could be even a petition filed before it. Therefore, there is no illegality in the court taking suo-moto action on the basis of information found in the petition filed before it. It is impossible to contend that cognizance taken is without jurisdiction. The assertion in an article that “once a petition is filed, it is only for the Attorney General to decide whether it amounts to criminal contempt or not” is clearly an erroneous statement of law. The power to decide whether it amounts to criminal contempt or not is the exclusive jurisdiction of the Supreme Court. There is no law which has transferred this power to the Attorney General. The consent of the Attorney General is provided only to lend assurance that there is a prima facie case. The decision of the Attorney General is also not final and the same is subject to judicial review. Even where permission is refused by the Attorney General, it is open to the party to approach the court with relevant information and the court is entitled to take suo-moto action. In the present case, even at the earliest stage, the court has made it clear that it has taken suo-moto cognizance and issued notice accordingly. The judgment of the Supreme Court has effectively answered this preliminary objection and rightly rejected the contention which is of a highly technical nature without any merit.
6. Even on merits, the judgment appears to be totally sound with cogent reasons for its conclusions. To decide whether the remarks amount to criminal contempt or not, one has to see the effect of such imputation in the mind of the public. In the first tweet the allegation that CJI was riding the motor cycle is admittedly not true (underlining supplied) and hence the question of wearing a helmet does not arise. Reference to the owner of the motorbike as a BJP leader and reference to the premises of Rajbhavan are also not without significance. . Evidently, the contemnor intends to inject politics into the episode. More than all these, as pointed out in the judgment, the averment that the “CJI has kept the Supreme Court in a lockdown mode, denying citizens of their Fundamental Right to access justice” is patently false. The court has been functioning even during lockdown through video conference and the contemnor himself has approached the court both as a litigant and a lawyer and has obtained relief. The tweet read as a whole is calculated to create an impression that the Chief Justice of India has closed down the Supreme Court disowning his responsibility and is enjoying ride in a costly motorcycle. Undoubtedly this remark (which is partly false), is scandalous and calculated to undermine the dignity and authority of the court.
7. So far as the second tweet is concerned, not much argument is required to show that it amounts to gross criminal contempt. The clear meaning of the imputation is that the Supreme Court in general and the four Chief Justices of India in particular, have been responsible for destroying democracy in this country during the last 6 years. This is a clear case of condemnation of the Supreme Court and four Chief Justices, as responsible for destruction of democracy. What will be the impression created in the mind of the public? – That an institution which has to protect democracy has destroyed it. Undoubtedly it lowers the dignity and authority of the Supreme Court and four Chief Justices, in the estimation of the public in general. It is impossible to comprehend, that these assertions have been made bonafide in public interest.
8. The circumstances clearly indicate that remarks have been made in the two tweets with malicious intention to malign the Supreme Court and its Judges. They are portrayed as people who have destroyed democracy in the country. These remarks are scandalous, tending to bring the court into disrespect and disrepute. Such remarks shake the confidence of the people in the judiciary in general and the Supreme Court in particular. Therefore the finding that the contemnor is guilty of criminal contempt is unexceptionable.
9. In the circumstances, raising a hue and cry and claiming that the judgment has dealt a deathblow to the Fundamental Right of freedom of speech and expression is totally unjustified. The demand for repeal of the law relating to criminal contempt is certainly not advisable.It is also dangerous, in as much as, in such an event, vested interests will be free to scandalize the judges and lower the dignity and authority of the courts with impunity.
B.V.Acharya, Senior Advocate and Former Advocate General, Karnataka
Daksha Legal 