Tuesday 31 March 2009

Sanjay Dutt =/= Navjot Singh Sidhu

Yes! We have all heard - Supreme Court has disqualified Sanjay Dutt from contesting elections. But the thing is... the Supreme Court has not. It has only refused to remove the disqualification already incurred by him upon being convicted and sentenced under the Arms Act by the TADA Court.

This case has naturally drawn comparisons with that of Navjot Singh Sidhu, the other superstar-convict who got his conviction stayed so that he could contest the Lok Sabha elections. But before I get into the comparison, I must confess that I have not read the order in Sanjay Dutt's case yet, and any comment on the Court's decision would have to be tempered by that limitation.

Navjot Singh Sidhu was tried for the offence of murder relating to an incident that took place in 1988. He was acquitted of the offence by the Trial Court in 1999, and came to be elected as an MP in 2004. But, while he was a sitting MP, the High Court in appeal convicted him under Section 304 Part II, for the offence of culpable homicide not amounting to murder. He then resigned from his post of MP, and filed an application for suspension of conviction before the Supreme Court, so as to enable him to contest the elections.

The Supreme Court, in its judgment reported as (2007) 2 SCC 574, allowed Sidhu's application for suspension of conviction after noting that the incident of 1988 had no correlation with his public life because he became an MP much later in 2004, and that it was not a case where he had taken advantage of his position as MP to commit the crime.

This reasoning is rather curious, because when applied to Sanjay Dutt's case, it warrants the same conclusion as Sidhu's. Sanjay Dutt also did not use any public office/post to commit the crime he is convicted of, and the incident also dates all the way back to 1993.

Though the eventual order in Sidhu's case can be credited to other factors as well, because the Court also looked into the evidence against him, but it has to be said that the reasoning of the Court referred above is not happily worded.

In K.C. Sareen v. CBI Chandigarh, (2001) 6 SCC 584, the Supreme Court while dealing with suspension of conviction of a government servant convicted under the Prevention of Corruption Act, observed that "when a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself."

The approach of the Court here was to relate the offence to the performance of duties, while in Navjot Singh Sidhu, the Court linked the Post of the person and the power attached with it to the offence. The K.C. Sareen approach clearly makes more sense, because it evaluates the consequences of the order of suspension of conviction on the performance of duties by the person. This approach would also explain why Sanjay Dutt's case is not on the same footing as Sidhu's. Sidhu's offence, based in sudden rage, was personal in nature (discounting the theory that all criminal offences are deemed to affect the society at large), and had no relation with his duties as an MP. Dutt's offence of possessing illegal arms, possibly in connection with a large scale terrorist attack, was clearly more deplorable in relation to his potential duties as MP, and therefore did not warrant any relief from the Court.

Whether this is the difference that influenced the Supreme Court, or whether it was generally the current environment of terrorism-paranoia, the society at large was clearly the winner today.

The Nizam of Hyderabad increases the workload of High Courts

The Nizam of Hyderabad executed a Trust Deed called "H.E.H. The Nizam's Jewellery Trust" on 29.3.1951. Under the Deed, the Nizam entrusted his jewellery and other antique items to the Trustees, for dividing the entire corpus into sixteen equal parts and allocating it to his sons, daughters and other relatives as specified in Clause 7 of the deed.

A dispute arose with regard to the phrase "Remaining sons and Remaining Daughters Fund", which led to the filing of Original Petitions before the Chief Judge, City Civil Court, Hyderabad under Sections 56 and 61 of the Indian Trusts Act, 1882, seeking directions to the trustees to execute the Trust Deed as per the directions contained in it. The central question to be answered by the Court was whether the surviving beneficiaries of the Nizam's Trust were alone entitled to the corpus allotted to the beneficiaries who had died issueless, or whether it would also go to the heirs of the beneficiaries who had pre-deceased the issueless sons and daughters after their death.

The Chief Judge, in its judgment dated 21.7.1999, adopted the latter view and held that even the heirs of beneficiaries who had predeceased the issueless beneficiaries would be allotted a share in the corpus.

Aggrieved by the order, Nawab Imdad Jah Bahadur (Respondent before the Supreme Court) filed a Civil Revision Petition under Section 115 of the Code of Civil Procedure before the High Court. The High Court inter alia held that the order dated 21.7.1999 was bad for want of necessary jurisdiction, as the correct remedy was for the petitioners to file a Civil Suit in stead of an Original Petition under Section 56 and 61 of the Indian Trusts Act. However, the High Court also proceeded to examine the case on merits, and set aside the finding of the Chief Judge on the correct interpretation of the Trust Deed.

The order of the High Court was challenged before the Supreme Court in a Special Leave Petition. One of the grounds taken was that the Civil Revision under Section 115 CPC was not maintainable, because the interpretation of the Trust Deed involved a question of fact/law, but not a question of jurisdiction.

Apart from invoking speculation regarding the monetary value of the Nizam's Trust, the eventual Judgment passed by the Supreme Court laid down a curious principle of law regarding the scope of Section 115 CPC. In Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur, 2009 (3) SCALE 934, a Bench comprising of S.B. Sinha and Cyriac Joseph, JJ held that a Civil Revision petition under Section 115 CPC must necessarily have regard to the terminology used in the section, and therefore it must involve a question of jurisdiction. It held that a Jurisdictional question arises not only when a Court acts wholly without jurisdiction, but also in a case where jurisdictional errors are committed while exercising jurisdiction - So far so good. The Court, interestingly went on to state that there are various facets of 'jurisdictional errors', and that taking into consideration an irrelevant fact or non-consideration of a relevant fact would involve a jurisdictional issue!! Which makes me think, what is not a jurisdictional issue?

In DLF Housing and Construction Company (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807, the Supreme Court had held that under Section 115 CPC, the High Court cannot correct errors of fact or law no matter how gross unless they have relation to the jurisdiction of the Court. It had further explained that exercising jurisdiction "illegally" or with "material irregularity" as stated in Section 115(1)(c) referred to errors relating to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors of fact or law after the prescribed formalities have been complied with.

The DLF formulation, though vulnerable to interpretive stretching, still maintained some semblance of a distinction between an appellate and a revisional proceeding. But with the latest judgment, any factual mistake can be credited to consideration of an irrelevant fact, or non-consideration of a relevant fact, and can thus become a jurisdictional issue warranting interference under Section 115 CPC.

As a matter of fact, Section 115 CPC is not the only provision that has been subject to such de-facement. The interpretation given to the term "substantial question of law" occurring in Section 100 CPC in some judgments also reveals a similar trend towards permitting interference when felt necessary. Perhaps when Judges come across matters where they feel that grave injustice has been meted out, the limitations provided by the legislature are obliterated through Judicial interpretation. Later of course, the case becomes a precedent for innumerable cases that do not actually warrant such interference.

Monday 23 March 2009

Joote do.. relief lo

Ms. Sarida Parikh had thrown her sandal at Justice Pasayat. It was reported in newspapers as having been hurled at the bench comprising of Justice Pasayat and Justice Ganguly. But, as it turns out, the Bench had no misconceptions about who the target was.

While Justice Pasayat was of the opinion that the actions of Ms. Sarida Parikh and 3 others amounted to contempt which could be immediately punished by the Court, Justice Ganguly felt that even though the conduct amounted to contempt, the same could not have been punished without complying with the procedure laid down in the Contempt of Courts Act.

So, the matter was referred to a 3 Judge Bench to decide the difference in opinion. While the contemnors were languishing in Judicial custody over the weekend, sufficient excitement had built up in the Bar regarding further proceedings in the case.

The case was listed today at 2 p.m. before a Bench comprising of Justice B.N. Agarwal, Justice G.S. Singhvi and Justice H.L. Dattu. At 1:45, the Court-room was full, and the buzz in the Court seemed straight out of a Court-room drama from Hollywood.

2 p.m. - In walked Justice Singhvi, followed by a smiling Justice Agarwal, and as Justice Dattu stumbled on the last step leading into the Court room, most of the crowd.. er... lawyers, were smiling as well.

The ladies walked into the packed Court room amidst tight security, and you could feel the excitement in the air. 5 minutes later, the Court had unceremoniously ordered that the Special Leave Petitions and the Writ Petitions filed by the ladies would be heard along with the Contempt Petitions, and the 4 contemnors would be released on Bail immediately.

Today chivalry was going to be the order of the day, and no lady would walk out of the Court bare foot.

Saturday 21 March 2009

Supreme Court walks the tight-rope of Separation of Powers

A constitutional law student is invariably taught the hallowed doctrine of separation of powers, and is told that the Legislature makes the law, while the Judiciary interprets it. However, as one gets into the thick of constitutional jurisprudence, it quickly becomes apparent that Judges not only interpret the law, but also make it, as and when necessary or convenient.

This is not to say that it is necessarily a bad thing, and one may perhaps go to the extent of saying that had it not been for the activist Indian Supreme Court, Indian democracy would not have survived the turbulent 70s.

But as far as a layman, awed by the glorious legal traditions and jurisprudential tenets, is concerned, a look into how far legal doctrines find application in the seemingly mundane day to day affairs of the Court is always fascinating.

In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, AIR 2009 SC 103, the appellant-plaintiff had filed a suit for permanent injunction, praying for declaration that he was the owner of the suit land, and for injunction restraining the defendants from interfering in his possession of the same.

The trial court recorded a finding that the plaintiff had taken forcible possession of the land in 1960, which continued till 1986, and therefore he had become the owner of the land by adverse possession. (Adverse Possession is possession of property/land that is open and hostile against the claims of the true owner, and continues uninterrupted for a period of 12 years).

However, the first Appellate Court and the High Court found that the plea of adverse possession had not been taken by the plaintiff, and no issues had been framed by the trial court to that effect. Therefore, they set aside the judgment of the trial court.

The Hon'ble Supreme Court, could very well have relied on the reasoning of the High Court to reject the claim of the plaintiff-appellant. Yet, a Bench comprising of Dalveer Bhandari and H.S. Bedi, JJ chose to go a step further.

After holding that the appellant had failed to establish his claim, the Hon'ble Court launched into a discussion on the principle of adverse possession. Most notably, it referred to the observations of the European Court of Human Rights in JA Pye (Oxford) Ltd. v. United Kingdom, (2005) 49 ERG 90 to the effect that the principle of adverse possession is "illogical and disproportionate", and that the effect of such law is "draconian to the owner" and a "windfall to the squatter".

Eventually, the Hon'ble Court observed that the law of adverse possession is irrational, illogical, etc., and that it ought not to benefit a person who in a "clandestine" manner takes possession of the property of the owner. (Clandestine??? i thought adverse possession had to be openly hostile)

Therefore, the Hon'ble Court expressed an "urgent need of fresh look regarding the law on adverse possession", and recommended the Union of India to "seriously consider and make suitable changes in the law of adverse possession"!

Phew! This must be the first time the Hon'ble Court has made such a recommendation in an area of law that is completely personal and lacks the characteristics of Public law. Of course, the use of the word "recommendation" appears to have respected the separation of powers between the Legislature and the Judiciary, but whether the case itself presented compelling circumstances for the Court to walk the tight-rope of separation of powers is another matter altogether.







Rohit Sharma
Advocate
Supreme Court of India

Friday 20 March 2009

Justice Pasayat does a Bush

We have all heard enough (and laughed) about Muntadher al-Zaidi, the journalist who hurled his shoes at George W. Bush, about a month before the end of Bush's term. Well, today the Supreme Court got its own personal feel of the incident, when a lady hurled her sandal at Hon'ble Justice Arijit Pasayat, who is also ironically due to retire on 10th May, 2009.

Ms. Leila David and Ms. Annette Kotian, members of the Boss School of Music who had filed Writ Petitions before the Hon'ble Supreme Court with prayers for protection of their school members and followers, had been facing contempt charges after they had levelled ridiculous allegations against the Judges of the Bombay High Court and the Supreme Court, and had inter alia prayed that Judges who had allowed the "genocide" to be perpetrated against their school by the Mumbai Police should be given capital punishment.

The petitioners, who were appearing in person, had in the past refused to apologize for their averments, in spite of different Benches of the Supreme Court having shown sufficient tolerance towards their conduct.

Finally, today, when Justice Pasayat refused to hear their arguments because their earlier petition seeking the same relief on the same ground had already been dismissed, one of the ladies started shouting at the Hon'ble Judges, and eventually, a lady named Sarida Parikh, who had accompanied the petitioners in Court, ended up hurling her sandal at the Bench.

Though Justice Pasayat was quick to duck ala George W. Bush, the acrobatics were not as evident because the sandal failed to sail to the Bench.

Needless to say, the ladies are now in Judicial custody, and the matter has been referred to a larger Bench for deciding the quantum of sentence.

Underneath the ridiculousness of the incident that borders on being funny, or scandalous, depending on the way one sees it, is an important legal issue that deserves mention as it could not be voiced before the Court amidst all the drama.

Mr. Goolam Vahanvati, Solicitor General of India, who had been appointed as Amicus Curiae in the matter, was of the opinion that the petitioners and other members of the Boss School of Music were mentally unstable, and their absolutely deplorable conduct perhaps required more delicate handling. In an interesting English case called In re de Court, [1997] T.L.R. 601, it had been held that the inherent powers of a Court to prevent abuse of its process and its repeated contempt were very vast, and they included the power to issue an injunction restraining a litigant, like the ladies in our case, from appearing in any proceeding in any Court of law, except to answer subpoenas issued against it. Such an injunction, while effective in dealing with the nuisance created by the members of Boss School of Music, would perhaps have been a more delicate way of dealing with this peculiar problem.

But then again, Mr. Vahanvati had not yet witnessed the hurling of the shoe when he discussed his opinion, and perhaps only a Mahatma could have acted on it given the nature of the eventual proceedings.


Rohit Sharma
Advocate
Supreme Court of India

Thursday 19 March 2009

Respect for Sanctity of Marriage in Indian Courts

The Supreme Court recently passed an order that, without purporting to lay down any law, immediately raised a few questions as to its complicity with statutory provisions.

The wife had filed Transfer Petition (Civil) No. 944 of 2008 (Kavita Yadav v. Rahul Yadav) under Section 25 of the Code of Civil Procedure, 1908 for transfer of a Matrimonial Suit filed against her by the Husband in Alipore, Kolkata to a place more suitable for her defence. During the pendency of the Transfer Petition in the Supreme Court, the parties filed a Settlement Agreement dated 5.12.2008, in which they inter alia agreed to suffer a divorce by mutual consent. The Hon'ble Supreme Court, in its order dated 16th March, 2009, relied upon the Settlement Agreement to grant the divorce by mutual consent with immediate effect.

The order immediately piqued my curiosity, because Section 13-B(2) of the Hindu Marriage Act, 1955 prescribes a time period of at least 6 months before a Decree of Divorce by Mutual Consent can be granted by the District Court. This period of 6 months had been originally prescribed in order "to give time and opportunity to the parties to reflect on their move and seek advice from relatives and friends" [Sureshta Devi v. Om Prakash, (1991) 2 SCC 25], clearly reminiscent of the traditional Indian notions revering the sanctity of marriage.

This is perhaps one of the most disturbing paradoxes of Indian Society - the importance attached to the subsistence of marriage at any cost, and conversely, the ignominy attached to divorce; particularly under the umbrella of the Arranged Marriage system, where the husband and wife know so little about each other before vowing to stay together till eternity.

Yet, modern India in its march towards Development has witnessed inroads being made into traditional Indian family values, and the sanctity attached to Marriage has been no exception. It is now being increasingly realized that when a marriage has irretrievably broken down, the parties are better off parting ways than to have one party (usually the wife) bear the burden of the unhappy marriage.

The above order of the Supreme Court clearly reflects this departure from traditional thinking. As a matter of fact, the order is in keeping with the earlier orders of the Supreme Court under similar circumstances:

1. Rajiv R. Hiremath v. Uma, (2000) 10 SCC 303 - The Hon'ble Court, upon the parties arriving at a compromise, converted a petition for divorce into a petition for divorce by mutual consent, and remanded the case to the Family Court for passing of appropriate decree under Section 13-B. The judgment actually describes the compromise for mutual divorce as a "happy development".

2. Jimmy Sudershan Purohit v. Sudarshan Sharad Purohit, (2005) 13 SCC 410 - The Apex Court traced its power to pass a decree of divorce by mutual consent in a Transfer Petition to Article 142 of the Constitution.

3. Anita Sabharwal v. Anil Sabharwal, (1997) 11 SCC 490 - The Hon'ble Court, after satisfying itself as to the irretrievable breakdown of the marriage, passed a decree for divorce by mutual consent in a Transfer Petition, even though it noted that no petition under Section 13-B had been filed, and the period of 6 months had not even commenced. The Court eventually traced its powers to the "spirit of Section 13-B".

4. Leena Roy v. Subrata Roy, 1992 Supp (2) SCC 110 - The Supreme Court dispensed with the period of 6 months while directing the Civil Court to decide the petition for divorce with mutual consent, because the wife wished to return to America in connection with her service.

The above judgments clearly reflect a positive and forward looking attitude, that District and Family Judges could do well to emulate. Of course, due care needs to be exercised while satisfying itself that the marriage has indeed broken down irretrievably. When the breakdown of the marriage is not in dispute, it would help a lot of bickering couples if divorce is granted promptly, waiving the 6 month prescription.


Rohit Sharma
Advocate
Supreme Court of India