Wednesday, 18 November, 2009

Recent Recusals by Judges in Supreme Court

Just argued on Rainmaker that Recusal instances should be categorized into 2, and Judges should be careful to see that "bench-hunting" is not permitted. Check it out.

Monday, 16 November, 2009

Let's have some lee-way in Criminal cases

Procedure is well known to be the hand-maiden of justice, and therefore, must be treated as flexible and subservient to the cause. But the little contradictions in innocuous legal procedure often pinch you and splash reality in your face.

Take Criminal and Civil litigation as an example. If I want to file a Civil Suit, I go before a Civil Judge (Junior or Senior Division). I carry the first appeal to a District Judge, and a Second Appeal to the High Court. After losing in 3 courts, I still have the option of coming to the Supreme Court by way of an SLP.

On the other hand, if I am accused of a serious crime like murder, I am tried by a Sessions Judge, Appeal before the High Court, and last chance of SLP before the Supreme Court. And the Supreme Court will mostly say - We are not supposed to go into these questions of fact. Hell, losing a criminal case which takes away my liberty grants me only 2 opportunities to present my case on facts, while in a civil case for claiming Rs. 50,000/- damages, I get three chances before being sent packing summarily by the Supreme Court.

Yes, I know that even in a Regular Second Appeal (RSA), the High Court is only supposed to entertain substantial questions of law. However, in practice we are all aware that non-appreciation of any material fact is a substantial question of law, and High Courts are more liberal in these matters than the Supreme Court. Besides, criminal cases are a lot more dependent upon factual interpretation than Civil ones.

It is literally heart-breaking for the family of a murder accused to come to the Supreme Court and watch his advocate get shunned with a plain "We are not here to appreciate evidence", knowing that their relation is now going to spend his entire life in Jail because the Judge did not even look at the evidence based on some Rule whose logic they cannot understand.

In Gajula Surya Prakasarao v. State of Andhra Pradesh, 2009 (13) SCALE 656, Justice Sudershan Reddy has opened a slight window for the doomed. In a murder case, Justice Reddy analysed the evidence on record and the judgments of the Trial Court and the High Court, and concluded that the lower courts had missed crucial contradictions in the evidence. He justified this in law by stating:

"We are conscious that normally this Court would not substitute its opinion by re-appreciating the evidence with that of concurrent findings of the two courts below. But in the present case, having considered the findings of the courts below, we hold that the courts below found the appellant guilty on the basis of evidence of PWs 3 and 4 upon which no reliance could be placed for the reasons stated herein above. The facts, based on which we have arrived at the conclusion not to rely upon the evidence of PWs 3 and 4, are very much available on record which were altogether ignored by the Courts below. The same has resulted in miscarriage of justice."

The ratio of this case is that even though the Supreme Court would not normally substitute its own opinion on concurrent findings of fact, it will nevertheless interfere when findings of fact result in miscarriage of justice due to the Courts having missed vital facts.

The value of this case is not in this statement of law. This has in fact been the law since long, and the Judge also relied upon an earlier Judgment of the Supreme Court (Zafar v. State of UP). The value of this case is in the fact that to arrive at a conclusion whether the lower courts had missed a vital fact, the Court had to itself critically evaluate the evidence on record and compare it with the judgments of the lower courts. This analysis is crucial, because only if a Judge is willing to read the evidence and see if it has not been properly appreciated, can he justly rule whether the case is one of plain re-appreciation of evidence, or one of miscarriage of Justice.

The difficulty litigants practically face is that a lot of judges even refuse to look at the evidence on the pretext that they are not supposed to re-appreciate evidence. So, let us hope that this judgment can be cited to indicate the ideal approach that should be adopted. After all, the person will spend the rest of his life in Jail (the part that matters, at least) after the order.

Understanding the Advocate-on-Record system

"Unfortunately, many special leave petitions are being filed with Advocates-on-Record being mere name-lenders, without having, or taking, any responsibility for the case. As a result of prevalence of such a practice, in such cases, the Advocates-on-record do not appear when the matters are listed either before the Registrars or before the Chamber Judge or the Court nor do they take any interest or responsibility for processing or conducting the case. They also play no role in preparation of the special leave petitions, nor ensure that the requirements of the Rules are fulfilled and defects are cured. If the role of an advocate-on-record is merely to lend his name for filing cases without being responsible for the conduct of the case, the very purpose of having the system of Advocates-on-record would get defeated.

The question that arises for consideration is whether an Advocate on Record can file appearances as mere name-lender for facilitating filing of petitions by others, without performing any of the functions associated with an Advocate-on-Record."

These are the words of a Bench comprising Justice Raveendran and Justice Singhvi, in Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, 2009 (13) SCALE 652. The Hon'ble Bench has issued Notice to the Advocates on Record Association and the Supreme Court Bar Association, to assist them "to find appropriate solutions" and provide "necessary checks and balances".

Are the Judges joking? To overturn the current system is like uprooting a slum in a city - You know that it is against the law, but it affects the livelihood of so many. Of course, the Judges don't need to go back to the public to get votes. But I am sure it hurts a little when noone turns up for your farewell function.

But on a serious note, how can the Supreme Court possibly regulate the current system? You obviously cannot mandate that only Advocates on Record will draft the petitions. Such a Rule would be simply unenforceable, as anyone can draft a case and then have the Advocate on Record sign it under his name. You could perhaps mandate that the Advocate on Record must be present in Court for the hearing. But that is clearly an empty formality. Besides, the system of appearances is itself abused, as appearance slips more often than not contain names of advocates who were not present (The advocate on record's name is automatically entered in the order, even without an appearance slip!).

But I must stop here for a moment, because the more fundamental question that is bothering me is whether the system requires regulation at all? With due respect to the order passed by the Hon'ble Judges, I do not think it does.

The "appropriate solutions" to regulate the current practice can only be found if we first understand the rationale behind the Advocate-on-Record system. There is no guidance, either in any statute, or in the Supreme Court Rules, or even in the order referred to here, as to what purpose the Advocate-on-Record system serves.

The only thing that I can think of is that the Supreme Court entertains petitions from all over the country. Since any advocate registered with any Bar Council of a State can appear and plead before the Supreme Court, it is not possible nor desirable to confine appearance only to those from Delhi. However, at the same time, it would be virtually impossible for the Court staff to serve Notices, etc. on advocates in far flung places all across the Country. Therefore, having a system of Advocates-on-Record (The Rules require that an Advocate on Record must have its office within a 5 KM radius of the Supreme Court) serves a practical purpose.

Apart from this, I cannot think of anything else. If that is so, let the practical system remain so, and let's not give it a theoretical justification that the Order appears to do. The occasion for the Supreme Court to pass such an order arose because in that case, an SLP was dismissed for non-prosecution. In the application for restoration, the explanation tendered was that the Advocate on Record had informed the Advocate who engaged him about the listing of the case. But, the Advocate did not enter it in his diary by mistake, and therefore, he could not appear.

This explanation is too truthful to be tendered in an application. It reminds me of the time when we sought to explain walking out of class in College on the ground that Tendulkar had just taken 2 Australian wickets (during the 2003 test series), and we had to go see it. The only purpose such an explanation serves is that it provides a light moment to the Judges, in the hope that they excuse you in their laughter.

This routinely happens in Court, and Judges usually laugh it off. On the one off chance that they do not, it raises systemic issues that invite serious debate. But is this an issue that requires serious debate? I do not think so. The Advocate on Record system has its practical utility, and that is where it stops. Therefore, you cannot do away with it, nor can you really raise it to a theoretical pedestal where it does not belong, because the consequences of that will be a complete break-down of the system. But the real point is, was the evil sought to be addressed so bad? So what if the Lawyer did not appear. The Judges could very well have simply dismissed the Application after rejecting the explanation as inexcusable.

P.S. - In the interest of objectivity, I must disclose that I regularly draft SLPs and file them through an Advocate on Record who merely lends his name to it. His clerks, though, do put in substantial work on the files to ensure compliance with the Rules!