Who's advising these people??

Ram Jethmalani had refused to appear before Justice B.N. Agarwal in the Ansals case. So, Justice B.N. Agarwal recused himself, and us mere mortals saw it as the most blatantly abusive forum choosing exercise ever.

But there was some logic to it. The case had no chance before BNA. It might have got relief before someone else, so why not?

But our ladies with the lost footwear, those contemnors who had finally got some relief from Justice Agarwal, filed an application asking BNA to recuse himself from the case, because, he has admitted in public that he is not a Sanyasi who can keep his temper in check when a former Law Minister accuses him of shielding the corrupt judges. Oh, and the application, apart from containing their usual contemptuous stuff like Supreme Court judges are conspiring in the Genocide (!!!) against them and should be capitally punished, was garnished with a little prayer seeking a trial for Goolam Vahanvati on the charge of criminal conspiracy for giving an anti-constitutional opinion to the Court in their matter.

So..... today, Justice Agarwal recused himself from the matter with a smile, Mr. Vahanvati also found an excuse for his discharge from the matter, but the ladies seemed a little upset when Justice Singhvi told them that they cannot pass any further orders when one of the Judges has recused himself from the matter.

These ladies are on a roll, recording one win after another in these little battles. But where are they headed??

Just a snippet

Section 29(2) of the Limitation Act, 1963 provides that when any special law provides a period of limitation different from the period prescribed by its Schedule, then the provisions contained in Section 4 to 24 shall apply only to the extent they are not expressly excluded by the special law. This includes Section 5, which permits the filing of an appeal or an application beyond the period of limitation upon sufficient cause being shown.

In Commissioner of Customs and Central Excise v. M/s Hongo India (P) Ltd., 2009 (4) SCALE 374, the Supreme Court was asked to decide whether a Reference Application under Section 35-H(1) [Section now stands omitted] of the Central Excise Act, 1944 can be filed beyond the prescribed period of 180 days. The section does not have any provision that permits the extension of the period of limitation, nor a provision that excludes the provisions of the Limitation Act.

It was therefore argued that since there is no "express" exclusion of the provisions of the Limitation Act, the reference could be filed beyond the prescribed period by virtue of Section 29(2).

Justice P. Sathasivam, speaking for a 3-Judge Bench, referred to other provisions of the Central Excise Act like Section 35, 35-B, 35-EE, etc. which specifically empower the authority concerned to condone the delay upto a specified period. Relying on this, he held that since there is no provision permitting the extension of time under Section 35-H, it means that the prescribed period cannot be stretched by the Court.

Regarding Section 29(2), he says that even if a special law does not exclude Section 4 to 24 with an express reference, it is open to the Court to examine "whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."

hmmmm... interesting.

Would recommend the judgment for its clarity.

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.