Sunday, February 23, 2014

9 Prevention of Miscarriages

Prevention of Miscarriages
9 High Courts and Supreme Courts ought to aim to prevent injustice. What is the use of post mortem?
Topics for discussion: Miscarriage of Justice, High Courts, Supreme Court, Constitution, A.P. Bifurcation
With due respect to the Supreme Court of India and the State High Courts in India, I am anguished to express my feelings as under:

Supreme Court and High Courts seem inclined to intervene only after an injustice takes place and refuse to intervene if the petitioners approach in advance.

Prevention of injustice, rather than some artificial correction after miscarriage of justice, ought to be the objective of a truly responsive Justice System.

Philosophy of Justice expects that courts have to intervene, when applicants approach ahead of the actual happening of injustice, if there are indications of the injustice taking place, prima facie.

Andhra Pradesh Bifurcation Bill serves as the best example of miscarriage of justice owing to refusal of High Courts and the Apex Court, in spite of prospective sufferers approaching the courts in advance.

Whenever the prospective sufferers approached, the courts said 'this is not the right time; approach at an appropriate time'. At least, the courts ought to have indicated that they would intervene suo motu. The circumstances were obvious enough to foresee that there was an impending possibility of unjust laws being enacted, ignoring a duly constituted State Assembly's opinion. But, the Courts didn't say that they will take up the matter suo motu.

The applicants ran across Hyderabad and Delhi seeking justice, but the justice never dawned. Bills were passed in Lok Sabha and Rajya Sabha in a cruel manner. The Governments are now proceeding with their dictatorial whims and fancies.
"We do not think this is the appropriate stage for us to interfere. There is no change in circumstances between November 18 when we dismissed petitions on the same issue, and now. They can file appropriate petitions at the appropriate time,''
Now, both the Houses of Parliament have passed the Bill, without any meaningful discussion. Bifurcation Process of the State has become nearly irreversible.

If a Court refuses to intervene before an enactment of a bill full of all types of unjust provisions, amidst the Executive and Opposition repeatedly declaring that they are going to get the bills passed by all means, and proceed with their unjust motives, how will the courts correct the enactments, after everything is irreversibly changed.

Just as a raped person cannot be restituted to the pre-rape virgin position, states once formed cannot be easily combined again and the offices shifted back, staff retransferred cannot be easily taken back to their original State etc. Will the court then say, everything is over, what we can do now at this stage?

The oft-repeated cliche quote 'Justice delayed is justice denied' becomes a reality.

When will the Supreme Court and State High Court intervene? (To continue revising this post).

Thursday, October 24, 2013

#008 Lawyers and Bar Associations should not refuse to defend accused rapists

Abhaya Rape Case refers to the rape of a 23 year old IT techie of Madapur, Hyderabad, in a volvo cab, by two men posing as taxi drivers. They drove the victim to an isolated mango grove in kollUr (medak District), where she was raped and threatened with dire consequences. Later, they dropped the bleeding victim at her hostel in Gowlidoddi. This took place on 22nd October 2013. It is heartening to note that Cyberabad Police acted very swiftly and arrested the two accused in a very short time and produced him before Miyapur Court. The Cyberabad police could get two days custody of the rapists.

LAWYERS' DECISION NOT TO TAKE UP DEFENCE


Deccan Chronicle reported that Rangareddy District Bar Association has resolved to request its advocates not to accept the case for defence.

Analysis


The resentment of the society and the lawyers to the ghastly series of rapes taking place in Hyderabad, is undestandable. Yet, it it not reasonable NOT to take up the case of the accused for defence.

Reasons:


It tantamounts to pre-judging even before trial. This is against jurisprudence.

Lawyers are only assistants to courts in ascertaining facts and truth. They cannot have anything to do with their clients, even if the clients pay them fees. In fact, it would have been more apt for Indian courts to collect fees from clients from time to time and pay to defence lawyers, instead of asking the defence lawyers to collect the fees themselves from the clients.

Question: Defence lawyers are eating the salt of the clients. Hence they have both a legal and moral duty to defend them by all means.



Answer: Their legal and moral duties can extend only to exercising reasonable care (not to be negligent), showing reasonable diligence (meaning as per artha dictionary of wordnet: conscientiousness in paying proper attention to a task; giving the degree of care required in a given situation; persevering determination to perform a task), not to ditch the clients in middle abandoning the case abruptly without giving notice. And nothing beyond.

Defence lawyers, whenever they come across clear evidence which adversely affect their clients, cannot hide such evidences from the court. If the evidence is so serious that it will not be morally tenable for the Defence lawyers to save their clients, they can probably allow their clients to shift to another defence lawyer, with the consent of court. This may not tantamount to ditching.

There is some difference between 'caught-red-handedly cases' (where eye witnesses immediately catch hold of the accused and hand over to police) and 'apprehended subsequently on the basis of supplementary evidence'. Eye witnesses and police going wrong in 'caught-red-handed' cases is very rare. Cases based on closed circuit cameras and other useful information, can sometimes misdirect, though such chances may be few. In the second type of cases, defence lawyers may have to undertake some independent investigation work, in addition to information revealed by the prosecution and the accused.

Obligations of defence lawyers to clients do not including bringing out incongruous arguments in support of their clients.

One great lawyer was reported to have argued (later denied) before Court:
The complaining girl is suffering from a chronic disease “which draws a woman to a man”.


Even if what the great lawyer said was true, was there no duty for the accused rapist to stay away from that girl? Did the accused has a duty to rape her?

Defence Lawyers often try to present complaining girls as women of loose morals and present arguments of intercourse with consent.

If defence lawyers stop raising ridiculous and run-of-the mill arguments, rape cases move fast in courts, whether fast-track was made available or not.

Public images of criminal defence lawyers should not go down to the level of sick persons suffering from an irresistable obsession to defend rogues. Their arguments may be permitted by law. Yet, they, within their consciences, should know that they were not presenting facts which they arrived at with care, diligence and a crystal-like conscience. If they look into mirrors of their own clear consciences, they will know that they were presenting only routine arguments, which trying judges might have heard thousands of times, like film songs.

Question:Are court judgements really unpredictable?



One Senior lawyer said that it might be difficult for lawyers to predict how judicial decisions will turn out after trial, and an astrologer might have to be consulted. This unpredictability results from the actions of the accused (bribing or threatening witnesses), defence lawyers (dilly-dallying by presenting cockeyed arguments), prosecutors (influenced by powerful persons), judges (may be from idiosyncrasies and foibles), caselaw (conflicting Supreme Court judgements owing to numerous variations among cases) and interpretation of Sections of statutes.

Question: Don't give more reasons. Suggestion solutions.



Answer: Probably we may have to computerise factors which form the ratio decidendi. We have to use sets of say 50 parameters of facts, arguments, dependencies, reliabilities, statutes, case-law, giving appropriate weightage for each parameter (say example - mandatory section 25%, primary evidence 25%, circumstantial evidence 10%, case law 10% etc.). All the three parties (prosecution -weight=2, defence -weight=1.5, and judges -weight=6) have to feed their responses y/n/can't say into the computers. Computer algorithms are to be built for mathematically arriving at the right decision. This decision can be reviewed by Senior judges to examine if computers have arrived at absurd conclusions. The main object should be to minimise subjective idiosyncratic personal elements in judgements, without sacrificing the benefit of interpreting with human intellect. We have to strike a balance of 40% + 60% for these two.

Question: We have two arguments. 1) Justice delayed is justice denied. 2) Justice hurried is justice burried. Which argument, should we choose?



Normally, except accused + their family members and victims + their family members, others may not have any real personal interest in the outcome of criminal cases. Though reputation of prosecuting lawyers, defence lawyers, police officers, trial court judges, may be at stake and may affect their professional progress, yet, their interests will not be as hard-stressed as those of accused and victims. With the afflux of time, all the stake holders (except accused and victims) may start taking things impersonally. I shall not venture to compare the transformation of Stakeholders into stakeless stones , to guards of graveyards where everyday they see dozens of corpses passing through the gates end up in pyres or trenches.

Question: Can you give an example?

Answer: A gunfire took place in a film actor's home and a producer was hurt. There were indications of wiping out evidence, by cleaning the premises. Subsequently after somedays, a watchman on the lawn of house was murdered. The victim-complainant film producer turned adverse and went back from his own statements. Outcome= acquittal. Film business as usual.

Question:If some accused comes out unscathed after trials and appeals, can we say that he is clean and innocent?



Answer:Answer for this question will depend on facts, arguments, interpretations, afflux of time which has taken place (in the meantime witnesses may turn hostile or may die), and umpteen other things.

Courts deliver only legal justice which depends on evidence, interpretation of evidence and circumstances. Legal justice can sometimes coincide with natural justice, in which case we can say that the goal of rule of law has been served. Legal justice can sometimes convict innocent persons and acquit guilty persons owing to lack of evidence or adequate representations for parties, lack of skills on the part of lawyers and judges, short-comings of witnesses, anything under this sky.

Thus, legal justice converging with natural justice is an ideal situation.

Question: So, conclusion?



Answers: Lawyers and Bar Associations, may better come forward to defend accused rapists, without prejudging them. Lawyers will serve the cause of justice, by working honestly with diligence and commitment to law. No need to unduly commit to clients (rapists or not court will decide), simply because they pay fees. Union Government should make a law which facilitates appointment of defence lawyers by courts in every criminal case without consulting clients, and collection of fees from clients for passing on to defence lawyers. Courts may have to decide whether the fees is to be collected from clients or from the State Exchequer (in case of poor clients). Release of fees to lawyers is to be made in instalments.
(To continue to edit/revise, as may be needed).

Thursday, November 10, 2011

Seven sins of Indian Higher Judiciary

Indian Express.Com, in its dated 11.11.11, published a news item:



Higher judiciary guilty of 7 sins: ex-SC judge pulls no punches
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Ms. Ruma Pal, former Supreme Court Justice was reported to have made the above comments.

How we can view, probably
1. Ms. Jus. Ruma Pal is entitled to her own views. We shall respect her right to express them publicly also.

2. We can make two notes: Had she made these observations before becoming a Supreme Court Judge, she might/would not have been appointed. Instead, she would have been tried for contempt of court.

She would not have been justified in making these comments, while working as a Supreme Court Judge, as that would tantamount to insulting her own colleagues.

3. She seems to have, therefore, done the right thing of commenting after retiring. Better late than never! But, she may still be inviting contempt of court proceedings. Or at least, she would be foregoing appointments as some regulator or Chairperson of Commission of Enquiry. Alternatively, we can also construe that she may be making these comments only because she is not receiving her due enquiry commission / regulator job. But I shall not prefer the second comment because it will be prejudging. We can wait and see how things will turn out.

4. Our Judicial System is our last straw to float in an avalanche of corruption. Though not a dependable straw, we have no alternative.

Saturday, October 15, 2011

Objective Type Multiple Choice Questions Test on Indian Law

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More questions are being added to the above database. You can have a look at study material with a wider database at the following website of mine. It is also free.
Aim: Make it Useful to : students of LLB, LLM and advocates appearing for the All India Bar Examination conducted by Bar Council of India.

www.ayyo.zxq.net.

Tuesday, June 28, 2011

Objective Type Test on Indian Constitution




1.
Indian Constitution Objective Type Question: Art. 226 provides for writ jurisdiction of
Supreme Court High Court Trial Court a and b

2.What type of writ petition a person can file, if a relative is missing and there is a suspicion that he is under secret custody of police:
Habeas corpus Mandamus Quo Warranto Certiorari

3.Who has the temporary authority to suspend the Fundamental Rights:
Parliament President Supreme Court Prime Minister

4.What is the importance of Article 18(4):
Right to freedom Right to life Padma Awards are not titles Right to Education

5.Article 300A recognises the Right to
Education Life Property Religious freedom

6.Right to Life is inspired by the Constitution of
France Japan Britain United States

7.Article 32 helps a citizen whose Fundamental Rights were threatened, to file a writ petition before:
District Court High Court Supreme Court b and c

8.Which provisions cannot be enforced through Courts?:
Directive Principles Fundamental Rights Delegated Law NOT

9.Who said that Fundamental Rights represented the Conscience of the Constitution? :
Mahatma Gandhi Jawaharlal Nehru B.R. Ambedkar Maulana Azad

10.Endless reservations on various grounds threaten which Article of the Constitution?
14 19 21 32

11.Whose role has become significant as the Guardian of Fundamental Rights?
President Parliament Cabinet High Courts and Supreme Courts

12.Art. 20(2) provides some protection against
wrongful prosecution double jeopardy wrongful confinement illegal searches

13.What is the Basic Structure of Indian Constitution?
Fundamental Rights Directive Principles Fundamental Duties No defintion

14.States have jurisdiction to legislate on
Fundamental Rights Directive Principles Jurisdiction of Courts NOT

15.Compulsory Primary Education is covered by the Article
14 19 21 226

16.The significance of Art. 356 is :
Imposition of Emergency President's Rule in States Common Civil Code Right to Property

17.PIL (Public Interest Litigation) is covered by the Article
14 19 21 NOT

18.Who prepares the first list of candidates for appointment as Judges of Supreme Court?
President Prime Minister Cabinet Collegium of Supreme Court Judges

19.Who can suspend High Court Judges?
CJI President Collegium of Supreme Court Judges Only through impeachment

20.Who can prosecute High Court Judges for private offenses?
Supreme Court High Court Chief Justice President There is confusion

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Monday, April 11, 2011

Why should Junior Advocates be made scapegoats?

WHY BLAME A JUNIOR ADVOCATE?
NEWS HEADLINE : "SC PULLS UP MAHINDRA SATYAM FOR 'ARROGANCE' "

The SC here refers to the Supreme Court of India.
Pulling up refers to the Supreme Court censuring the Company "Mahindra Satyam".

Brief Details : A dispute between the Company 'Mahindra Satyam' and the Income Tax Authorities regarding the earlier order of the Income Tax Department demanding a tax of Rupees 6170 million (617 crore).

The Income Tax Authorities seem to be re-examining their demand of Rs. 6170 million and probably trying to reduce it.

A letter addressed by the Company to the Income Tax Authorities asking them to withdraw their demand, has been interprted by the Attorney General Mr. G.E. Vahanavati as highly offensive.

A three-judge-bench headed by the Chief Justice of India remarked :

"You cannot do this in such manner. Instruct them (Satyam) to withdraw the letter. This is not the way."

The Bench seems to have taken an exception to the 'more-than-once-use' of the word 'shall'.

The Senior Advocates representing Messrs. Satyam Mahindra -- Mr. Harish Salve and Mr. Abhishek Manu Singhvi, plied themselves out of the controversy by saying :

"We have not seen it. We want to withdraw it and apologise for it. This is not the way the letters are to be written." They were indicating that it was the work of some junior advocate.

Supreme Court :
"We are quite sure that you have not seen the letters; otherwise it would not be so. The present generation is very competitive but is crippled with arrogance."

My views as a blogger
The Senior Advocates charge hundreds of thousands of rupees or even hundreds of hundreds of thousands of Rupees for each case they take up, as against the pittances they in turn pay to the junior advocates. Besides, the Junior Advocates will be constantly under pressure from the clients to show results.

It is good that the Seniors wriggled out of the controversy by apologising to the Court. They might have admonished their juniors after going back to their offices. Or, they would have treated the matter as closed, if they had in the past, approved the drafts of the letters. Anyway, onething still remains needing correction. The Seniors seem to be accepting more number of cases than than the optimum they can handle. There is bound to be a ceiling to human capacity and efficiency, howsoever, great workaholics and intellectual giants the Seniors may be. This "trying to chew more than one can digest" results in under-supervision and leads to recurrence of the errors of the type mentioned above.

Why not the Seniors reduce their intake and allow the middle-rung advocates to eke out their livelihood? The Juniors also deserve better treatment, than being made scapegoats. (Had the Seniors done their supervision properly in scrutinising the letters drafted by the Juniors, this unpleasant need for rinsing before the Supreme Court would not have arisen.)

Tuesday, September 15, 2009

#003 CORRUPTION IN JUDICIARY

The Chief Justice of India has summoned Jus. Dinakaran of Madras High Court to meet him. It appears that Jus. Dinakaran is to explain his side about the allegations (in circulation) against him, of accumulating "huge assets".

BLOGGER'S VIEWS
The CJI has done a good thing by inviting the Justice facing allegations. However, what is not clear is how wealthy lawyers get appointed as judges in High Courts. The process of High Court Judges' selection itself calls for a thorough scruitiny, though there could be, per se, no bar on wealthy persons becoming judges. Sometimes, particularly, in Andhra Pradesh, how is it that most of the candidates recommended for the post of High Court Judges belong to one politically dominant caste?

Thursday, September 10, 2009

#002 How can District Collectors perform multiple roles?

The District Collectors in India tend to perform multiple roles. The roles can be conflicting with one another. This is like chasing with the hounds and running with the hares.

E.g.: On day 1, the District Collector accompanies promoters of an Aluminium smelter to the hills promising them to grant mining rights, land, industrial water and power, etc.

On day 2, he chairs a hearing from the affected villagers and N.G.O's on environmental clearances and land acquisition.

Monday, October 02, 2006

#001 INDIAN LEGAL SYSTEM- some observations

CHARACTERISTIC FEATURES OF INDIAN LAW ENVIRONMENT

1. Dead Slow. 2. Existence of Touts. 3. Accumulation of decade old cases



DEVELOPMENTS IN INDIAN LEGAL ENVIRONMENT
NATIONAL JUDICIAL COUNCIL
JUDGES ENQUIRY BILL 2006


--To be introduced in Indian Parliament.
--Constitution of the National Judicial Council, that will go into complaints against the Judges of the Supreme Court and the High Court.

FOREIGN CONTRIBUTIONS (REGULATION) BILL 2006

--To be introduced in Parliament.
--Prohibits acceptance of foreign contributions/foreign hospitality for any activities detrimental to national interest.
--Bars receipt of foreign funding.
*Organisations of political nature, not being political parties.
*Mass Communication media handling news, current affairs.
*Includes cartoonists, columnists, correspondents, editors, owners of associations, companies.



GLOSSARY OF IMPORTANT TERMS USED BY INDIAN LAWYERS
BRIEF EXPLANATION
STARE DECISIS


The word Stare = 'stand on'. Decisis = 'stand on'. A custom of courts 'standing' on the 'previous decisions' i.e past case law precedents.



MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS BILL 2006

This bill is ready. Likely to be introduced in Parliament shortly.




CRIMINAL CONVICTION OF POLITICIANS

Politicians incite violence in public glare. Yet, nobody dares to depose against them, cautious of dire consequences to follow. Courts insist on evidence. Courts do not have the wherewithall to initiate investigation and collect evidence. When the Courts order the Government and the Police to investigate, they go slow, probably because there is a need to shield the politicians.



Courts direct the victims to delete allegations against politicians or produce evidence or face prosecution for making false allegations. Thus, victims have to swallow both the injury and the insult.

sorry

This blog has been neglected for sometime past, as I was enamored with Vivekanandayb.blogspot.com, ramayanayb.blogspot.com. I am going to bring rejuvenate this blog shortly, to bloom it and take it to newer heights. Please bear with me, for a few weeks.