Mr. K.G.Raghavan, Senior Advocate, Bangalore

Over the last few days much debate has erupted on the judgment of the Supreme Court in the Prashant Bhushan contempt case.  There are two views. The one, that is expressed a bit too loudly, is  that the judgment stifles honest criticism of the judicial system which necessarily includes the court and the judges,which stifling undermines not only the guaranteed right under under Art.19(1)(a) of the Constitution but also denudes the fundamental spirit of democracy, namely, the participation of the citizenry in the functioning of the democratic institutions which includes the judiciary.  The contra view is that judicial system being robust and fragile at the same time, has to protect itself from scurrilous attacks which undermines not only the dignity of the court but the administration of justice.  Judges do not go to press to defend themselves and the institution.  Unlike the executive which resorts to press statements and interviews, judges do not as a matter  of tradition and decorum take resort to public defence of their actions while the legislature debates vociferously on its actions. Judges speak only through their judgments.

Judges have a constitutional duty to protect themselves and the institution against malicious, scurrilous, offensive,or intimidatory attacks.  And if in the facts of a particular case, it is established that the attacks were of the nature described above, how can judges discharge their constitutional duty?  

Action for contempt of court is a self protective mechanism.   It is not that the jurisdiction is exercised to vindicate anyone’s self respect or assuage a feeling of hurt or irritation, but in the larger interest of the institution i.e.judiciary itself, and ultimately democracy. This jurisdiction, as a reasonable restriction on the exercise of freedom of speech guaranteed by Art.19(1)(a) of the Constitution is recognised by the Constitution itself namely in Art 19(2) which saves laws in relation to Contempt of Court from the sweep of Art 19(1)(a).  Additionally Art.129 postulates that the Supreme Court shall be a Court of record and shall have the powers of such a Court including the power to punish contempt of itself.  These provisions and the various provisions of the Contempt of Court Act have been debated and deliberated upon in several judgments of the constitutional benches of the Apex Court.   It is not necessary to dwelve  upon the same here.  They have been elaborately discussed in the Prashant Bhushan judgment.  The principles are clear.  It is in the application if the principles to the facts of case that the problem arises.  It is so in every case.

Whether the concept or jurisdiction of contempt of court should exist at all is larger issue which requires mature debate shorn of any heat and passion and devoid of persons involved. 

Even Justice Karnan was in a manner of speaking espousing a pubic cause, namely the discrimination in judicial appointments against the socially backward class of persons.  But he was convicted of contempt and had to suffer imprisonment.  Not a whimper of protest.  Just because in the present case, a lawyer is involved should not make a difference.   Law is the same for everybody, however high or low one may be in the society.  The question therefore simply put is this, namely, given the established legal principles, whether the act or acts complained of constitute actionable criminal contempt?   If facts as understood and accepted by the judges constitute such criminal contempt, the judges would be failing in their duty if they do not act, for posterity will blame them for not protecting a sacred institution of democracy, namely the judiciary.

From the above point of view, let’s examine the judgment of the Supreme Court in the Prashant Bhushan’s case.  There are two parts to it.  The first is the legal aspect and the second is the finding on facts applying the legal position. 

On the first aspect, the judgment discusses the legal position laid down by the various earlier judgements and in fact accepts the position in law as canvassed by Bhushan’s lawyer that criticism of a judge as an individual is not contempt but that he has to be criticised as a judge and in the former case the judge will have to have recourse to ordinary civil law like anybody else. The Supreme Court also accepts the contention of the counsel for Bhushan that a constructive criticism to enable systemic correction in the system would not constitute contempt warranting the invocation of contempt jurisdiction.  The court recognises and accepts the legal position canvassed by Bhushan relying on Baradakanta Mishra’s case.   The court also notices the law declared in Re.S.Mulgaonkar’s case to the effect that the court will act with seriousness and severity where justice is jeopardised by a gross and/or unfounded attack on the judges and where the attack is calculated to obstruct or destroy the judicial process.   Thereafter,the Supreme Court refers to the observations of Justice Krishna Iyer that scurrilous,offensive,intimidatory or malicious acts are unacceptable and the strong arm of the law must, in the name of public interest and public justice, strike a blow on him, who challenges the supremacy of the rule of law by fouling its source and stream.   Having so understood the law, which I believe is the correct legal position, the Supreme Court embarks upon the second aspect of the decision namely, whether the two tweets fall within the general law laid down in Baradakanta Mishra’s case or the exception carved out in Mulgaonkar’s case. 

After a consideration of the case on facts, the court has recorded that the tweets do constitute contempt of court.  These are pure findings on facts.  There may be two ways of looking at it.  For some it may be contempt but for others it may be.  But what prevails in every case is how the judges view a particular set of facts  and the inferences as flowing therefrom.  That is final.  Sometimes even if it is wrong and unpalatable.

The so called “Civil Society” cannot become the final arbiter on facts when the highest court has arrived at a conclusion on the same, may be right or wrong. For a civil society to exist based on rule of law, numbers for or against the judgment on factual aspects, do not matter.   The debate should centre around not on whether Bhushan was rightly or wrongly convicted for criminal contempt, the debate should be on whether the concept of criminal contempt should be abolished as in Great Britiain.   It would therefore be more profitable for the self proclaimed members of the “Civil Society” to focus on the larger issue as to whether criminal contempt should be abolished and not on whether the tweets of Bhushan constitute culpable criminal contempt. And mind you, persons who hold a view contrary to those of the members of“Civil Society” are not less civil!

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Consent of wife and actual giving and taking of the child is absolutely necessary. Mere fact that the couple raised the kid and their names are entered in school records as parents is not sufficient to prove child’s adoption.

M. Vanaja vs M. Sarala Devi (2020) 5 SCC 307.

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Right to Property. Planning Authority or Municipal Corporation cannot deprive owner of private property without acquisition or purchase, and without paying compensation. High Court should intervene under Article 226 under such circumstances. Supreme Court 7:8:2020.

Hari Krishna Mandir Trust vs State of Maharastra and others.

Civil Appeal 6156 /2013

Decided on 7 August 2020

Justice Indu Malhotra

Justice Indira Banerjee

Judgment link: https://main.sci.gov.in/supremecourt/2008/36435/36435_2008_39_1501_23345_Judgement_07-Aug-2020.pdf

Held: Para 96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649 (para 42). In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law.

97. Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar and Others v. Project Uchcha Vidya, Sikshak Sangh and Others (2006) 2 SCC 545, 574 (para 69); Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr. (1995) Suppl. 1 SCC 596; Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh and Others (1982) 1 SCC 39, the State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555 (paras 55 and 56).

98…..The right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executivecannot deprive a person of his property without specific legal authority, which can be established in a court of law.

99. In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government as held by this Court in Wazir Chand v. State of Himachal Pradesh AIR 1954 SC 415. Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. v. State of Karnataka (2011) 9 SCC 1 , even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid.
100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred
101. The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.
102. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.

S.Basavaraj, Daksha Legal, Bangalore. raj@dakshalegal.com

ಇ೦ದು ಕೋವಿಡ್ ಮಹಾಮಾರಿ ದೇಶವನ್ನು ಆವರಿಸಿದ್ದರೂ ಕೂಡ ಈಗಿರುವ ಸನ್ನಿವೇಶದಲ್ಲಿ ನ್ಯಾಯಾಲಯ ಸೇರಿ ದೇಶದ ಅಗತ್ಯ ಸ೦ಸ್ಥೆಗಳನ್ನು ಇನ್ನೂ ಮುಚ್ಚುವುದು ಸರಿಯಲ್ಲ ಎ೦ದು ಖ್ಯಾತ ವೈದ್ಯರುಗಳಾದ ಡಾ. ರವೀ೦ದ್ರ, ಡಾ. ಶ್ರೀನಿವಾಸ್ ಕಾಕಿಲಾಯ ಹಾಗೂ ಡಾ. ರ೦ಗನಾಥ ಇವರು ಅಭಿಪ್ರಾಯ ಪಟ್ಟಿದ್ದಾರೆ.

ತಾರೀಖು 7 ಆಗಷ್ಟ್ 2020 ರ೦ದು ದಕ್ಷ ಲೀಗಲ್ ಏರ್ಪಡಿಸಿದ್ದ “ಕೋವಿಡ್ ೧೯ – ರಿಯಾಲಿಟಿ ಚೆಕ್” ವಿಚಾರ ಸ೦ಕಿರಣದಲ್ಲಿ ವರ್ತಮಾನ ಪರಿಸ್ತಿತಿಯಲ್ಲಿ ದೇಶದ ಅಗತ್ಯ ಸ೦ಸ್ಥೆಗಳನ್ನು ಅದರಲ್ಲೂ ನ್ಯಾಯಾಯಲಗಳನ್ನು ಇನ್ನೂ ಮುಚ್ಚಿರುವುದು ಸರಿಯೇ ಎ೦ಬ ಪ್ರಶ್ನೆಗೆ ಈ ರೀತಿಯ ಅಭಿಪ್ರಾಯ ವ್ಯಕ್ತವಾಯಿತು.

ಹಲವಾರು ವಕೀಲರು ಸಾಮಾಜಿಕ ತಾಣಗಳಲ್ಲಿ ನ್ಯಾಯಾಲಯಗಳನ್ನು ಮುಚ್ಚಿರುವ ಕುರಿತು ಅಸಮದಾನ ಹಾಗೂ ಆಕ್ರೋಶ ವ್ಯಕ್ತಪಡಿಸುತ್ತಿರುವ ಹಿನ್ನೆಲೆಯಲ್ಲಿ ದಕ್ಷ ಲೀಗಲ್ ಸ೦ಸ್ಥಾಪಕ ಹಾಗೂ ಕರ್ನಾಟಕ ರಾಜ್ಯ ವಕೀಲರ ಪರಿಷತ್ ಸದಸ್ಯ ಎಸ್. ಬಸವರಾಜ್ ಇವರು ನಿಜಸ್ತಿತಿಯನ್ನು ಅರಿಯಲು ವಿಚಾರ ಸ೦ಕಿರಣವನ್ನು ಏರ್ಪಡಿಸಿದ್ದರು.

ಎಸ್. ಬಸವರಾಜ್ ಮಾತನಾಡಿ “ಇ೦ದು ನಾವೆಲ್ಲ ಕೋವಿಡ್ ಜೊತೆ ಬಾಳುವುದನ್ನು ಕಲಿಯಬೇಕಾಗಿದೆ, ಕೋವಿಡ್ ಮಾತ್ರದಿ೦ದಲೇ ಸಾವು ಸ೦ಭವಿಸುತ್ತದೆ ಎನ್ನಲಾಗುವುದಿಲ್ಲ ಹಾಗೂ ಗುಣಮುಖರಾಗುತ್ತಿರುವ ಸ೦ಖ್ಯೆ ಪ್ರತಿಶತ ೬೨ ರಿ೦ದ ೬೮ ರಷ್ಟು ಇದೆ. ಜೊತೆಗೆ ಎಲ್ಲ ಸಾವುಗಳನ್ನೂ ಕೂಡ ಕೊವಿಡ್ ಜೊತೆ ಸೇರಿಸುವ ಪ್ರಯತ್ನವನ್ನು ಮಾದ್ಯಮಗಳು ಮಾಡುತ್ತಿವೆ. ಇ೦ತಹ ಸನ್ನಿವೇಶದಲ್ಲಿ ಕರ್ನಾಟಕ ಉಚ್ಚ ನ್ಯಾಯಾಲಯ ಯಾವ ಪ್ರತಿಷ್ಠಿತ ವೈದ್ಯರ ತ೦ಡದ ಸಲಹೆ ಮೇರೆಗೆ ನ್ಯಾಯಾಲಯಗಳನ್ನು ಇನ್ನೂ ಮುಚ್ಚಿದೆ ಎ೦ದು ಗೊತ್ತಿಲ್ಲ. ಹಾಗೂ ಹಿರಿಯ ವಕೀಲರ ತ೦ಡವೊ೦ದು ಕರ್ನಾಟಕ ಉಚ್ಚ ನ್ಯಾಯಾಲಯದ ಮುಖ್ಯ ನ್ಯಾಯಾದೀಶರನ್ನು ಬೇಟಿಮಾಡಿದ ಸನ್ನಿವೇಶದಲ್ಲಿ ಹಿರಿಯ ವಕೀಲರಿಗೆ ಅವಮಾನವಾಗುವ೦ತ ಸನ್ನಿವೇಶ ಉ೦ಟಾಗಿರುವುದು ಅತ್ಯ೦ತ ವಿಷಾದಕರ ಎ೦ದು ಹೇಳಿದರು. ಈ ಸುದ್ದಿ ತಡವಾಗಿ ವಕೀಲರಿಗೆ ತಿಳಿದು ಬಹಳ ನೋವಿನ ಪ್ರತಿಕ್ರಿಯೆಗಳು ವ್ಯಕ್ತವಾಗುತ್ತಿವೆ. ಈ ರೀತಿ ಅವಮಾನಕ್ಕೆ ಒಳಪಟ್ಟ ಹಿರಿಯ ವಕೀಲರು ಮು೦ದೆ೦ದೂ ನ್ಯಾಯಾಲಯಗಳನ್ನು ತೆರೆಯುವ ವಿಚಾರದಲ್ಲಿ ತಲೆಹಾಕಲು ಹಿ೦ಜರಿಯುವ ಪರಿಸ್ತಿತಿ ಉ೦ಟಾಗಿದೆ” ಎ೦ದರು.

ಎಸ್. ಬಸವರಾಜ್ ರವರು ವಿಚಾರ ಸ೦ಕಿರಣದಲ್ಲಿ ಭಾಗವಹಿಸಿದ್ದ ತಜ್ಞ ವೈದ್ಯರನ್ನು ಕುರಿತು “ಈಗಾಗಲೇ ನ್ಯಾಯಾಲಯಗಳನ್ನು ಮುಚ್ಚಿರುವುದರಿ೦ದ ಸಾವಿರಾರು ವಕೀಲರು ಅತ್ಯ೦ತ ದುಸ್ತಿತಿಯ ಮಟ್ಟಕ್ಕೆ ತಲುಪಿದ್ದು, ಇನ್ನೂ ಕೂಡ ನ್ಯಾಯಾಲಯಗಳನ್ನು ಮುಚ್ಚಿರುವುದು ಸರಿಯೇ” ಎ೦ದು ತಜ್ಞ ವೈದ್ಯರನ್ನು ಕೇಳಿದರು. ಈ ಪ್ರಶ್ನೆಗೆ ಉತ್ತರಿಸಿದ ತಜ್ಞ ವೈದ್ಯರು ಅದರಲ್ಲೂ ಡಾ. ಶ್ರೀನಿವಾಸ್ ಕಾಕಿಲಾಯ ಇವರು ದೇಶದ ಅತ್ಯ೦ತ ಅಗತ್ಯ ಸ೦ಸ್ಥೆಗಳನ್ನು ಇನ್ನೂ ಮುಚ್ಚಿರುವುದು ಸರಿಯಲ್ಲ. ನ್ಯಾಯಾಲಯಗಳನ್ನು ಈಗಲೂ ಮುಚ್ಚಿರುವ ಅಗತ್ಯವಿಲ್ಲ. ಈಗಾಗಲೇ ವೈದ್ಯಕೀಯ ಜಗತ್ತು ಕೋವಿಡ್ ವೈರಸ್ ನಡೆದುಕೋಳ್ಳುತ್ತಿರುವ ರೀತಿ ಅರಿತಿದೆ. ಸರ್ಕಾರ ಏನೇ ನಿರಾಕರಿಸಿದರೂ ಕೂಡ ಸಮುದಾಯ ಹರಡುವಿಕೆ community spread ಆಗಿರುವುದ೦ತೂ ನಿಜ. ಆದರೆ ಇದೊ೦ದು ಕಾರಣದಿ೦ದಲೇ ದೇಶವನ್ನು ಬ೦ದ್ ಮಾಡುವುದು ಹಾಗೂ ನ್ಯಾಯಾಲಯಗಳನ್ನು ಮುಚ್ಚಿರುವುದು ಅವೈಜ್ನಾನಿಕ ಹಾಗೂ ಅನಗತ್ಯ ಎ೦ದು ಹೇಳಿದರು. ನಾವೆಲ್ಲ ಕೋವಿಡ್ ಜೊತೆ ಬಾಳುವ ಕಾಲ ಬ೦ದಿದೆ. ಇ೦ದು ಕೋವಿಡ್ ನಿ೦ದ ಗುಣಮುಖರಾಗುತ್ತಿರುವ ಸ೦ಖ್ಯೆ ಹಿಚ್ಚಿದೆ. ವೈಧ್ಯಕೀಯ ಜಗತ್ತು ಅತ್ಯ೦ತ ಭಯಾನಕ ಮಹಾಮಾರಿಗಳನ್ನು ಕ೦ಡಿದೆ. ಹಿ೦ದೆಮಾಡಿದ ತಪ್ಪುಗಳಿ೦ದ ಪಾಠ ಕಲಿಯದೇ ನಾವು ಅದರಲ್ಲೂ ಸುದ್ದಿ ಮಾದ್ಯಮಗಳು ಇ೦ದೂ ಕೂಡ ಭಯಾನಕ ಚಿತ್ರವನ್ನು ಜನರ ಮು೦ದೆ ಇಡುತ್ತಿವೆ ಎ೦ದರು.

ದೇಶದೆಲ್ಲೆಡೆ ಇ೦ದು ಅವೈಜ್ನಾನಿಕ ಲಾಕ್ ಡೌನ್ ನಿ೦ದ ನಿರ್ಗತಿಕರ ಸ೦ಖ್ಯೆ ಜಾಸ್ತಿಯಾಗಿದೆ. ದೇಶದ ಅರ್ಥ ವ್ಯವಸ್ಠೆಯೇ ಅಲುಗಾಡಿದೆ. ಇ೦ತ ಸನ್ನಿವೇಶದಲ್ಲಿ ನಮಗೆ ಬೇಕಾಗಿರುವುದು ಜವಾಬ್ದಾರಿಯುತ ಹಾಗೂ ತಜ್ಞ ವೈದ್ಯರುಗಳ ಮಾತುಗಳನ್ನು ಸರಿಯಾದ ರೀತಿಯಲ್ಲಿ ಅರ್ಥಮಾಡಿಕೊಳ್ಳುವ ಸರ್ಕಾರ ಎ೦ದು ಡಾ. ಶ್ರೀನಿವಾಸ್ ಕಾಕಿಲಾಯ ಅಭಿಪ್ರಾಯ ಪಟ್ಟರು.

ಡಾ. ರವೀ೦ದ್ರರವರು ಮಾತನಾಡಿ ಖಾಸಕಿ ವೈದ್ಯಕೀಯ ಕ್ಷೇತ್ರವನ್ನು ಅತ್ಯ೦ತ ಕೀಳಾಗಿ ಕಾಣುತ್ತಿರುವುದು ಸರಿಯಲ್ಲ. ಖಾಸಕಿ ಆಸ್ಪತ್ರೆಗಳು ಇ೦ದು ಸ೦ಬಳ ಕೊಡಲಾಗದೇ ಮುಚ್ಚುವ ಪರಿಸ್ತಿತಿ ಉ೦ಟಾಗಿದೆ. ಇದರ ಜೊತೆ ಸರ್ಕಾರ ಖಾಸಕಿ ವೈದ್ಯರುಗಳನ್ನು ಆರೋಪಿಗಳ ರೀತಿ ನಡೆಸಿಕೊಳ್ಳುವುದು ಸರಿಯಲ್ಲ ಎ೦ದರು.

ಡಾ. ರ೦ಗನಾಥ ಇವರು ಕೋವಿಡ್ ವಿಚಾರದಲ್ಲಿ ಉ೦ಟಾಗಿರುವ ಊಹಾಪೋಹಗಳ ಬಗ್ಗೆ ವಿವರಣೆ ನೀಡಿ ಅನಗತ್ಯ ಭಯಾನಕತೆಯನ್ನು ಕೋವಿಡ್ ಗೆ ನೀಡುವ ಅಗತ್ಯವಿಲ್ಲ ಎ೦ದರು.

“ವಕೀಲರ ಬಾಳು ಅಯೋಮಯವಾಗಿರುವ ಸನ್ನಿವೇಶದಲ್ಲಿ, ಸರ್ವೋಚ್ಚ ನ್ಯಾಯಾಲಯ ಹಾಗೂ ಉಚ್ಚ ನ್ಯಾಯಲಯಗಳು ತಕ್ಷಣ ದೇಶದ ಪ್ರತಿಷ್ಠಿತ ತಜ್ಞ ವೈದ್ಯರ ಸಭೆ ಕರೆದು ಈ ಸಭೆಯಲ್ಲಿ ಹಿರಿಯ ವಕೀಲರು, ವಕೀಲರ ಪರಿಷತ್ತಿನ ಅಧ್ಯಕ್ಶರು, ವಕೀಲ ಸ೦ಘದ ಅಧ್ಯಕ್ಶರುಗಳೆಲ್ಲ ಭಾಗವಹಿಸುವ ಅವಕಾಶ ಕಲ್ಪಿಸಿ ತಕ್ಷಣವೇ ನ್ಯಾಯಾಲಯಗಳನ್ನು ತೆರೆಯುವ ಅಗತ್ಯವಿದೆ ಎ೦ದು ನಾನು ಭಾವಿಸುತ್ತೇನೆ. ಅನಗತ್ಯ, ಅವೈದ್ಯಕೀಯ, ಅವೈಜ್ನಾನಿಕ ಹಾಗೂ ಅನಗತ್ಯ ಲಾಕ್ ಡೌನ್ ಅನ್ನು ನಾವು ಮತ್ತೊಮ್ಮೆ ಮುಕ್ತ ಮನಸ್ಸಿನಿ೦ದ ಪರಿಶೀಲಿಸಬೇಕಾಗಿದೆ. ಎಷ್ಟು ದಿನ ಈ ಪರಿಸ್ತಿತಿ ಹಾಗೂ ದುಸ್ತಿತಿ? ಒ೦ದು ಕೋವಿಡ್ ಪತ್ತೆಯಾದ ತಕ್ಷಣ ಒ೦ದು ವಾರ ನ್ಯಾಯಾಲಯ ಮುಚ್ಚುವುದು, ನ೦ತರ ಇನ್ನೆರಡು ಪತ್ತೆಯಾದ ದಿನದಿ೦ದ ಎರಡು ವಾರ ಮುಚ್ಚುವುದು ಸರಿಯೇ?. ಇನ್ನೆರಡು ವರ್ಷಗಳು ಕಳೆದರೂ ಸ೦ಪೂರ್ಣವಾಗಿ ಕೋವಿಡ್ ಪತ್ತೆಯಾಗದ ದಿನ, ವಾರ, ತಿ೦ಗಳು ಬರಲು ಸಾಧ್ಯವಿಲ್ಲ. ಹಾಗೆಲ್ಲ ನಾವು ನ್ಯಾಯಾಲಯ ಮುಚ್ಚಿ ವಕೀಲರನ್ನು ಇನ್ನೂ ನಿರ್ಗತಿಕರನ್ನಾಗಿ ಮಾಡುವುದು ಯಾವ ನ್ಯಾಯ?? ಇ೦ದು, ವಕೀಲರೂ ಕೂಡ ನ್ಯಾಯಾಲಯದ ಅವಿಭಾಜ್ಯ ಭಾಗವಾಗಿರುವ ಹಿನ್ನೆಲೆಯಲ್ಲಿ, ಮುಖ್ಯ ನ್ಯಾಯಾದೀಶರು ಎಲ್ಲರ ಅದರಲ್ಲೂ ತಜ್ಞ ವೈದ್ಯರ ಅಭಿಪ್ರಾಯಗಳನ್ನು, ಈಗಾಗಲೇ ಪಡೆದಿದ್ದಲ್ಲಿ, ಮತ್ತೊಮ್ಮೆ ಪಡೆದು ನ್ಯಾಯಾಲಯಗಳನ್ನು ತೆರೆದು ವಕೀಲ ಸಮುದಾಯ ಬದುಕಲು ಅವಕಾಶ ಮಾಡಲು ನಾನು ಆಗ್ರಹಿಸುತ್ತೇನೆ” – ಎಸ್. ಬಸವರಾಜ್, ವಕೀಲ, ದಕ್ಷ ಲೀಗಲ್ ಸ೦ಸ್ಥಾಪಕ ಹಾಗೂ ಸದಸ್ಯ, ಕರ್ನಾಟಕ ರಾಜ್ಯ ವಕೀಲರ ಪರಿಷತ್ತು.

Civil Procedure Code. Order 7 Rule 10 & 10A. After return of plaint and its presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted afresh even if it stood concluded before the earlier court. Oriental Insurance Company Ltd vs Tejparas Associates and Exports Pvt Ltd overruled.

Supreme Court 5 August 2020.

M/s. EXL Careers and Anor vs Frankfinn Aviatin Services Pvt Ltd.

Civil Appeal 2904/2020

Decided on 5 August 2020

Justice R.F. Nariman

Justice Navin Sinha

Justice Indira Banerjee

Judgment link: https://main.sci.gov.in/supremecourt/2018/23730/23730_2018_34_1502_23302_Judgement_05-Aug-2020.pdf

Held: Para 2. The present appeal has been placed before us on a reference by a two Judge Bench opining a perceived conflict between two Division Bench decisions in Joginder Tuli vs. S.L. Bhatia, (1997) 1 SCC 502 and Oil and Natural Gas Corporation Ltd. vs. Modern Construction & Co., (2014) 1 SCC 648. The question of law we are required to answer is that if a plaint is returned under Order VII Rule 10 and 10A of the Code of Civil Procedure 1908, for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time of returning of the plaint.

16. Modern Construction, referred to the consistent position in law by reference to Ramdutt Ramkissen Dass vs. E.D. Sassoon & Co., Amar Chand Inani vs. The Union of India, Hanamanthappa vs. Chandrashekharappa, (1997) 9 SCC 688, Harshad Chimanlal Modi (II) (supra) and after also noticing Joginder Tuli (supra), arrived at the conclusion as follows:

“17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.”

Joginder Tuli was also noticed in Harshad Chimanlal Modi (II) but distinguished on its own facts.

17. We find no contradiction in the law as laid down in Modern Construction pronounced after consideration of the law and precedents requiring reconsideration in view of any conflict with Joginder Tuli . Modern Construction lays down the correct law. We answer the reference accordingly.
18. For all these reasons, we hold that Oriental Insurance Co. does not lay down the correct law and over­rule the same.

Compiled by, S.Basavaraj, Daksha Legal

Mysore (Religious and Charitable) Inams Abolition Act, 1955. The Act applies not only to agricultural lands but also to non-agricultural lands such as uncultivated lands, agricultural lands used for non-agricultural purposes or unconnected with the agriculture as well as to lands on which buildings have been constructed either by the inamdar or by a tenant, as the case may be. Karnataka High Court 29 July 2020.

M/s. S.M. Kannappa Automobiles & Others vs Koladamatt Mahasamsthana & others, Writ Appeal 1061/2013 & Writ Appeal 872/2013 (KLRA), Decided on 29 July 2020, Justice B.V. Nagarathna & Justice Jyoti Mulimani

Judgment link: https://karnatakajudiciary.kar.nic.in/noticeBoard/wp-1061-2013-connected.pdf

Held: 114. On a conspectus reading of the aforesaid provisions, it is clear that the Act is not applicable only to inam lands which are agricultural in nature, but also applies to non-agricultural lands such as uncultivated lands, agricultural lands used for non-agricultural purposes or unconnected with the agriculture as well as to lands on which buildings have been constructed either by the inamdar or by a tenant, as the case may be.

115. In fact, by way of an amendment, it has been clarified by insertion of Section 31-A of the Act that the Karnataka Tenancy Act, 1952 [referred to as “the Tenancy Act, 1952”], for the time being in force shall, subject to the provisions of the Act, be applicable and govern the relations of the persons who are entitled to be registered as occupants under Sections 4, 5, 7 and 8 and to agriculturists who hold lands on lease from such persons as tenants immediately before the date of vesting. The aforesaid provision does not include Section 6 of the Act. This is because Sections 4 and 5 deal with kadim tenants and permanent tenants, who are agricultural tenants, but every other tenant is covered within the scope and ambit of Section 6 of the Act, inter alia, tenants of uncultivated land or converted lands. Therefore, while considering the rights of kadim tenants or permanent tenants, the Tenancy Act, 1952 would have to be considered subject to the provisions of the Act. But, the Tenancy Act, 1952 would not be applicable to tenants of non-agricultural lands or tenants of lands used for any purpose unconnected with agriculture. Hence, Section 31-A also clarifies the fact that the Act in its applicability is not restricted to only agricultural lands. Hence, learned Single Judge was not right in holding that the Act applies only to agricultural lands and to tenancies created on such lands only.

Compiled by, S.Basavaraj, Daksha Legal

Family Arrangement. Liberal approach. Courts have to lean in favour of upholding a family arrangement instead of disturbing the same on technical grounds. Even where the family arrangement suffers from legal lacuna or formal defect, the rule of estoppel is invoked to uphold the family arrangement. Supreme Court 31 July 2020.

Ravinder Kaur Grewal & Ors vs Manjit Kaur & Ors., Civil Appeal 7764/2014, Decided on 31 July 2020, Justice A.M. Khanwilkar & Justice Dinesh Maheshwari

Judgment link: https://main.sci.gov.in/supremecourt/2008/4680/4680_2008_33_1501_23189_Judgement_31-Jul-2020.pdf

Held: 16. ……. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale & Ors. vs. Deputy Director of Consolidation & Ors. (1976) 3 SCC 119. In the said reported decision, a three­ Judge Bench of this Court had observed thus:

“9.….. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. …..”

In paragraph 10 of the said decision, the Court has delineated the contours of essentials of a family settlement as follows: ­

“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well­settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

Compiled by, S.Basavaraj, Daksha Legal

Constitution of India. “State Government. In our constitutional scheme, the Chief Minister of the State acts as a limb of the Government. Resignation addressed to Chief Minister is a resignation addressed to the State Government Karnataka High Court 17 July 2020.

Dr. M. Sudheendra Rao vs State of Karnataka and another. Writ Petition 7222 /2020, Decided on 17 July 2020, Justice S Krishna Dixit

Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/335497/1/WP7222-20-17-07-2020.pdf

Held: 10 (f) Mr.Ashok Haranahalli is more than justified in contending that, to understand the meaning of “State Government” employed in Section 5(4) of the 1974 Act and its functional aspects, one has to advert to the constitutional scheme arising inter alia from Articles 53, 74, 154, 163 & 361 of the Constitution; our Constitution although deals with the Union and the State Executive separately, the provisions relating thereto follow a common pattern; the Constitution divides the subject under four sub-heads viz., the Chief Executive, the Council of Ministers, the Law Officers and the Conduct of Business; the President is the chief executive of the Union of India and in him vests the executive power of the Union vide Articles 52 & 53; similarly, at the Provincial level, the Governor is the chief executive of the State and it’s executive power is vested in him vide Articles 153 & 154; Article 361 provides absolute immunity to both these high constitutional functionaries, for the exercise and performance of the powers & duties of their offices because neither the President nor the Governor exercises the executive functions individually or personally; the exercise of the executive power is a formally function of the President or the Governor as the case may be; in order to aid & advise the President in the exercise of his function, Article 74(1) provides for a Council of Ministers with the Prime Minister at the head; similarly, at the State level Article 163 provides for a Council of Ministers with the Chief Minister at the head; both these Articles relate to the conduct of  business of the Government; 

(g) It is pertinent to mention that the Executive power of the Union or the State is described by the Apex Court in Ram Jawaya Kapur Vs. State of Punjab, AIR 1955 SC 549, ordinarily as being “the residue of Governmental functions that remain after legislative & judicial functions are taken away” and that they necessarily include the execution of the laws; Mr.H.M. Seervai in his “Constitutional Law of India”, 4th Edition, Volume 2 (Tripathi Publication) at Page 2042 states “…according to Dr.Ambedkar, ………….. the President of India was bound to accept the advice of his Ministers…” At pages 2034 & 2036 of the same Volume, Mr.Seervai has churned out the ratio decidendi of Apex Court decisions (a set of two) in Samsher Singh Vs. State of Punjab, (1974) 2 SCC 831 vociferously pressed into service by Mr.Haranahalli; only the relevant ones to the case in hand are reproduced below:

“(a) Our Constitution generally embodies the Parliamentary or the Cabinet form of Govt. on the British model, both for the Union and the States.

(b) It is a fundamental principle of English constitutional law that the Sovereign does not act on his own responsibility but on the advice of his Ministers who accept responsibility and who command the confidence of the House of Commons.  This principle of English constitutional law is embodied in our Constitution.

(c) It follows from the British form of Parliamentary or Cabinet Govt. that the President and the Governors are the formal or Constitutional heads of the Union and the States and they must act with the aid and advice of the Council of Ministers except where a contrary provision is made by the Constitution.”

(h) Mr.Haranahalli heavily banks upon another recent decision in A.A. Padmanabhan Vs. State of Kerala, (2018) 4 SCC 537 wherein, the highest Court of the country having surveyed the growth of this branch of law has thus observed at para 16: “…Except the discretionary functions of the Governor, he does not exercise any executive functions individually or personally. When a Minister takes an action according to the Rules of Business, it is both in substance and in form the action of the Governor…” Both Mr.Dhyan Chinnappa and Mr.Ashok Haranahalli take the court through the provisions of Karnataka Government (Transaction of Business) Rules, 1977 in support of their contention that the subject matter in question falls within the domain of the Chief Minister; item 15 in II Schedule to these Rules puts into the hands of the Chief Minister, the matters relating to appointment inter alia to the post of “Chairman and Members of any other Commission, Authority, Tribunal or Committees created by Statute”; the text & context of this provision which is generic in nature, the word “appointment” employed therein needs to be understood to include inter alia resignation of the appointee, as well; this apart, Rule 15(1) of 1977 Rules vests prerogative powers in the Chief Minister to take decisions even in respect of matters of business that normally belong to the domain of other Ministers as per the 1977 Rules; the said Rule reads:  

“15. (1) The Chief Minister may call for papers from any Department and express his views and also tender advise on any matter coming within the purview of the business allocated to any Minister.”  

(i)The text & context of the relevant constitutional provisions as interpreted in Samsher Singh supra, coupled with the provisions of the 1977 Rules show the prominent position assigned to the Chief Minister of the State; true it is, that the Chief Minister is not the manifestation of the State unlike the King in England; but he acts as a limb of the Government, is not legally disputable; therefore, the letter of resignation addressed to the “Hon’ble Chief Minister, Government of Karnataka” can be safely construed as the one addressed to the “State Government” in terms of section 5(4) of the 1974 Act; an argument to the contrary falls foul of the constitutional scheme as consistently articulated by the Apex Court in a catena of decisions including Samsher Singh and A.A. Padmanabhan, supra.

Compiled by, S.Basavaraj, Daksha Legal, Bangalore

S.Basavaraj, Advocate, Bangalore raj@dakshalegal.com

ಎಲೆಕ್ಟ್ರಾನಿಕ್ ಮಾಧ್ಯಮಗಳು ಅತ್ಯ೦ತ ಅಪಾಯಕಾರಿ ಮಟ್ಟಕ್ಕೆ ಇಳಿದಿವಿಯೆ? ಇವನ್ನು ಖಡಾಖ೦ಡಿತವಾಗಿ ನಿಯ೦ತ್ರಿಸುವ ಕಾಲ ಬ೦ದಿದೆಯೇ? ನಿಮ್ಮ ಅಭಿಪ್ರಾಯ ತಿಳಿಸಿ. Has the time come to control Electronic Media sternly.?

At no point of time in history, the electronic media had stooped to the level it has today. The recent news bombarding about Corona, fake claims, panic creation, exaggeration of innocuous events, political lobbying and the alleged extortion rackets have shown that the Electronic Media has reached a dangerous level.

The Press ie. Print Media It is regulated by Press Council of India, a mechanism for the Press to regulate itself. It is created under the Press Council Act, 1978. Section 13 says that the objects of PCI is, inter alia, to build up a code of conduct for newspapers, news agencies and journalists in accordance with high professional standards and to ensure on the part of newspapers, news agencies and journalists, the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship.

Press Council of India has powers to take disciplinary action against journalists as can be seen from Section 14 of the Act. On receipt of a complaint made to it or otherwise, if the Council has reason to believe that a newspaper or news agency has offended against the standards or journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case may be.

Press Trust of India Ltd., commonly known as PTI, is the largest news agency in India. PTI is a non- profit cooperative among more than 500 Indian newspapers in India. PTI has inbuilt guidelines.Electronic Media.

The electronic media is the most powerful media both because of its audio-visual impact, and its widest reach covering the section of the society where the print media does not reach.Today, electronic media is neither guided nor regulated in India. The Supreme Court in Cricket Broadcasting Case – Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal (AIR 1995 SC 1235) has said that there shall be a law controlling the electronic media. The Supreme Court held;

“124 (i)The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an in- built restriction on its use as in the case of any other public property. [iii] The Central Government shall take immediate steps to establish an independent autonomous public authority representative of all sections and interests in the society to control and regulate the use of the airwaves.”

However, no law has been enacted in this regard so far. The Cable and Television Act was meant to regulate television channels when it was on cable. Over time, since we have moved to DTH – the licensee is required to take a permission/license from the Govt of India. While applying for such licence, they undertake to abide by the Cable Act – ie Programme Code and Advertising Code found in Sections 5&6 read with Rules 6 & 7. However there is no statutory mechanism other than this. There is an Inter Ministerial Committee which looks into complaints. However, there is no statutory mechanism.

Electronic media has become the most powerful tool of news assimilation. At the same time, there is total lack of accountability, transparency and responsibility. To achieve higher Television Rating Point TRP, Most notorious often fake headlines are being flashed throughout the day and night. There are allegations of extortion, political lobbying and character assassination for a price. Unless these Television channels, most of them private owned, are controlled and regulated, the unleashing of fake Armageddon will not stop.