Defamation - Exception No. 2 - Public Conduct of public servants can be criticized

Is it defamation to criticize conduct of public servant ?

Exception No. 2 to Sec. 499 IPC says:

"Public conduct of public servants- It is not defamation to express in good faith ANY OPINION whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further."

Even if this is exception, it may have to be proved in trial and in trial, opponent will get opportunity to cross examine complainant.

Best advice is: Do not defame anyone.

Haresh Raichura
27/10/2012

Why some people say that 80% Judges are corrupt? Some myths are busted here

First about My Bias: 


I am firm believer that Judiciary is last strong pillar of our nation. Corruption in it is minimum.

I am making an attempt to demolish propaganda that '80% Judges are Corrupt'.

Myth 1

Perceptions are such that Judiciary is highly corrupt. 


An NGO made such survey on basis of perceptions of people it surveyed. Someone in Jammu filed criminal complaint of defamation against this NGO. It was Supreme Court which stayed the case. Why? Because we believe in right of people to criticize judiciary. We know that in public there is high perception that "Judiciary is corrupt". This is due to massive misinformation.

Myth 2

All Judges are corrupt.

I will try to demolish this myth with Two aids. 1) One with story of a Hindi Author Premchand Munshi. And 2) With my one experience in trial court.


1) Premchand Munshi wrote a story which says that SEAT of Judge is DIVINE. Anyone who sits on this chair becomes just and honest and impartial.


I will explain it in this way. Suppose if you are asked to become a Judge and decide a case where your friend is charged with raping a minor girl.


After you will sit on chair, process will begin.


You will see the minor girl who is raped. You will hear one by one twelve witnesses who will say how your friend raped this minor child.


Something in you will turn upside down. You will forget about your friendship. You will convict your dearest friend for rape. Because you are EXPOSED TO FACTS OF CASE.


YOU ARE AROUSED BY THE GODDESS OF JUSTICE. THE SEAT ON WHICH YOU SIT IS DIVINE.

SECOND ISSUE


2) In one District court, 30 years ago, a client told me that he himself PAID Rs.5000/- BRIBE TO JUDGE to win a case..


I asked him, how actually did he pay bribe of Rs.5000/- to Judge.

He said, During Court recess time, he and his lawyer went to chamber of judge. Lawyer send his card to judge in chamber. Judge called him. He went inside. Client waited outside. Lawyer came out of chamber and said that he has paid Rs.5000/- to judge. He believed


His lawyer was Member of Legal Aid Committee. He had gone inside chamber of judge to invite judge to a legal aid camp. He duped his client by saying that he had gone in chamber to pay Rs.5000/- to judge.


This is truth. Try to enlarge this. Think more on this.This is why there is so much perception  of CORRUPTION in judiciary.

CONCLUSION

This article is supposed to force you to rethink if you have thoughts that "80% Judges are Corrupt". 

They are NOT. Only 2% are corrupt. Rest of misinformation about Judiciary is false.
I propose to take this issue further and to show how 2% Judges indulge in corruption and what we can do. But let me pause here.

Haresh Raichura
26/10/12

Why do Judges reserve judgement on sentence after convicting an accused? There is such law that

Why do Judges reserve judgement on sentence after convicting an accused?

There is such law that after convicting an accused, the judge will hear accused on how much sentence he should be awarded.

Prosecutor asks for maximum punishment. Defense counsel for accused argues for minimum sentence.

So this is routine a stage to hear accused on quantum of sentence.

But in cases of murder or where minimum punishment is life imprisonment and prosecutor is not asking for death sentence, a judge can dispense with this procedure and can straight away pronounce life imprisonment after convicting an accused.

But in all other cases above procedure is followed.

Haresh Raichura
26/10/2012

Defamation Suit:- Power to Serve Questionnaire And Possible Defenses

Law of Defamation prescribes several exceptions.

Even if some statements may be defamatory, that will not amount to defamation ipso facto in certain circumstances.

POWER TO SERVE QUESTIONNAIRE / INTERROGATORIES

If Suit for Defamation is filed, the parties have rights to serve Questionnaire on other side and court can ask other side to reply on affidavit/oath.

Party can also ask other side to produce a list of documents for inspection or copies thereof.

If otherside refuses to answer, the case goes against that party.

POSSIBLE DEFENSES

1) The Statement was made in public good.

2) It was fair criticism done after due inquiry, proper care and in bonafide.

3) Statement was made to warn public.

4) etc. Etc. List is long. Sec.500 of IPC lists such exceptions.

The mere a statement is defamatory is by itself no defamation.

Haresh Raichura
22/10/2012

(Please take lawyer's advice. This article is not legal advice)

Activists can also start filing cases against corruption in nearest criminal court ->

Supreme Court has empowered citizens to file cases against public servants in criminal court without waiting for permission from Govt.

The Supreme Court Judgement in Case of Dr. Subramanian Swamy versus Dr. Man Mohan Singh and others came, on 31st January, 2012


It said two things:


1) Any Citizen can file a Private Complaint against any Public Servant for charges of corruption in nearest Court.


2) No sanction needed when court registers it as a Complaint Case and Directs its Investigation of Corruption Charges by Higher Officers.

Judge cannot ask "How can you file a complaint? He never asked any bribe from you. How can I accept your Compliant? What right you have to file this complaint?

Every citizen has right to file complaints which will be directed by court to police to investigate and report to court.


THE MORAL

Any activist can file complaints in courts against public servants. No sanction needed at this stage.

Haresh Raichura

22/10/2012

Why do Banks ask for your affidavit if Bank's Demand Draft is lost in transit?

You have obtained a Demand Draft from a Bank, payable to certain person or Bank.

Unfortunately your Demand Draft is lost.

You tell you Bank that draft is lost and you ask your money back which you had paid to get money.

Bank may require you to give two things.

1) A letter from the payee bank that draft is not encashed by it.

2) They may ask an affidavit from you.

Why affidavit?

In affidavit, bank will ask you to state that 1) My Draft is lost 2) In case Bank suffers any damage in future because of this draft, I will compensate -indemnify Bank.

So the Bank wants affidavit for future protection against lost draft...

It is okay.

Haresh Raichura
22/10/2012

Have you tried writing letters to Leading Celebrities of India on national problems? I have tried this with some results..

There is book called 'Who's Who in India' published by Infa publications, Delhi.

It contains short biography and addresses of leading persons of India.

Years ago, I used to write JOINT letters addressed to

1) Few Persons Listed in Who's Who of India Book
2) To few Leading Judges of Supreme Court
3) Few Leading Editors of leading newspapers.

At a time, I used to drop 50 letters.

After 15 days, Actions used to follow like miracles. Some one used to take action.

My grievance exposed in letter used to get redressed though no one used to reply except one late Vijay Merchant, the great social worker.

I think book Who's Who in India is book of live-wire real godfathers of India

This method works on Peer Pressure Rule.

If you write letters to 10 persons, 4 of them may read and 1 of them may take follow up action with Govt.

Someday, try this.

Haresh Raichura
21/10/2012

Senior most Five Judges of every High Courts should here small matters also where junior advocates appear

Senior most Five Judges of every High Courts should hear small matters also where junior advocates appear.

Mostly, in most High Courts, and also in Supreme Court very valuable and tough cases are assigned to senior judges.

Junior advocates never get such tough cases to argue. In initial years of their practice, they got small matters.

They can get chance to argue before Senior Judges only if such small matters are also assigned to Senior Judges.

It is very inspiring for junior advocates to appear before Senior Judges. Because Senior Judges select appointments for new High Court judges from advocates appearing before them.

Haresh Raichura
22/10/2012

If a Private Person takes Money to Influence a Govt Decision, he can be charged under corruption Act

Law is found in Sec. 9 of Prevention of Corruption Act. Punishment is from Six months to Five years.

Any person who takes money to influence 1) Any named public servant 2) Any unnamed public servant 3) Any Government 4) Any Govt Body 5) Any Govt company is liable under this law.

After Dr Swamy Versus Dr. Manmohan Singh, judgement, No Sanction is needed at time of filing of Complaint in Court.

Haresh Raichura
10/10/2012

SC Judgements: How Private persons can use National Flag for rallies etc.

There are two Supreme Court Judgements where this issue has been discussed.

I propose to give here only reference of these judgements and relevant laws so that those who are serious, can search judgements on Google and can read it themselves.

1) Union of India vs Naveen Jindal & Ors AIR 2004 SC 1559

2) V.K. Naswa vs Home Secretary, Union of India 2012(1)SCALE 283

The relevant Laws are:

1) Flag Code of India 2002
2) Prevention of Insult to National Honour Act, 1971
3) Emblems And Names (Prevention of Improper Use) Act, 1950

Haresh Raichura
9/10/2012

SC: WARNING: Appointments of unqualified persons as Primary School Teachers can be cancelled as VOID

Supreme Court frowned at the manner in which unqualified teachers are appointed in primary schools.

It said that it seriously affects right of proper education of Art.21A of Children.

Such appointments can be cancelled as void.

Vide Supreme Court Judgement dated 14/9/2012 Civil Appeal No 6463 of 2012, para 18.,2012 Scale (8) 698

Haresh Raichura
8/12/2012

How to become a High Court Judge? (Tips for Young Lawyers)

In India, as per present system, Judges themselves are appointing Judges.

They look at the young advocates appearing before them.

Then one Judge proposes to other judges that certain advocate can be elevated to Bench.

Then Judges discuss among themselves. Certain procedures are followed.

That advocate becomes a High Court Judge.

TIPS

There are many methods for coming in the eyes of Judges. I cannot write all those methods because some of them are dubious methods.

I will mention two methods heard from three advocates who not only became High Court Judges, they also become Supreme Court Judges. One has retired. Two are still Sitting Judges of Supreme Court.

1) Justice Anil R Dave, Supreme Court Judge is attributed that once he gave following advice to a Junior Advocate:-

Reach in Court at 9:45 AM. Then Sit in Court upto 4:30 PM. Then leave court and go home. Then you do your all other work.

When he was advocate, he used to do like this.

2) Justice Radhakrishnan, Supreme Court Judge, once said during a public speech at Ahmedabad:-

"Only way to come in the eyes of a Judge is by arguing before him. Then only he will know how much is your knowledge and understanding of law."

3) Justice C.K.Thakkar, retired Supreme Court Judge is attributed to have given his advice to a junior advocate only in 3 words:-

"Read, Read and Read"

Now, in my view all the three advice above are sound advice for those who want to become High Court Judges.

Haresh Raichura
8/10/2012

How to train Body with Mind, how to train Mind with Mind?

Trainer and Trainee both comes before training can take place.

How mind can train body? Simple answer is "By Training It".

How mind can train mind? Simple answer is "By Training it".

Let us reverse these questions.

How body can train mind?
How body can train body?

Again simple answer to both questions is "By Training It".

This is not a satisfactory answer.

But this answer must be tried first before rejecting it. "Train it" is the short message or reply to our questions.

Nothing can get trained unless you start training it.

Haresh Raichura
7/10/2012

Are "Interest Free Loans", a legal way of giving "Secured Bribes" invented by super-intelligent people?

You want to give bribe to a politician of Rs.5 Crore for getting a contract of Rs. 100 Crore from Govt.

The politician insist on advance payment of bribe.

You pay him Interest Free Loan of Rs.5 Crore.

So that if you do not get contract, you can demand back Rs.5 Crore from politician.

And if politician gets into trouble, he can return the loan and can wash away hands from entire deal!

Is it a novel legal way of paying Secured Bribes?

Though I am lawyer, I do not know. I am confused! If this is a loophole in law, it ought to be plugged by courts.

Haresh Raichura
5/10/2012

To tell some one to "Die", is abetment of suicide punishable in law

Many times employees commit suicide. They left a note mentioning that Certain person is responsible for his suicide...

That person cannot be charged for abetment of suicide unless his suicide note further says something like.. " On such date... At such time, that person said 'Go and die'.".

Such specific extortion is necessary to be proved.

Exception is in marriage law. If wife commit suicide with seven years of marriage court will prima facie presume husband liable of abetting in suicide.

Haresh Raichura
5/10/2012

Three Judges on whether judges should be address as "My Lords" or as "Sirs"?

I have had occasions to hear three Judges on issue whether Judges should be addressed as 'My Lords' by lawyers while conducting cases before them.

1) An SC Judge asked, "Why do you treat us on a higher level? We are not Gods. We are also like you and we are also fallible. We also have weaknesses like you."

2) A petition was filed to direct Bar Council of India to issue circular that lawyers should not address judges as 'My Lords!'

The judge said,"Who is asking you to address us as my lords? We do not need that you address us as My Lords!"

Petition was withdrawn with liberty to make representation to Bar Council.
Representation was made and Bar Council issued circular that lawyers should not address judges as 'My Lords' but should address as 'Sir'.

3) A Delhi High Court Judge put a notice out side his court that lawyers should address him as 'Sir' and not as "My Lords".

Still habits die hard. Lawyers continue to address judges as 'My Lords' and some judges still insist that they should be addressed as judges.

Haresh Raichura
4/10/12

Why I smiled on reading Presidential Reference Case Judgement? You may also smile!

2G judgement came. Licenses were cancelled. Fresh auction of telecom spectrum was ordered.

To overcome this judgement, Govt filed review petition.

Then it withdrew review petition and made Presidential Reference to Supreme Court.

In haste, it forgot to mention word "DOUBT" in Reference.

At hearing, an objection was raised that since words "Doubt has arisen" not mentioned in Reference it was not maintainable.

Arguments before judges went on for days whether Reference ought to be rejected as word "Doubt" is not mentioned.

Finally, Judges held that it does not matter if word "Doubt" is not mentioned.

Out of 208 page judgement, 70 pages are written on whether Reference was maintainable or not! (1/3 Judgement)!

If while drafting Reference, word "doubt" was mentioned, so much judicial time would have saved!!!

I therefore smiled on reading this Reference Judgement. :) Omission of one word can create lot of problems in legal matters!

Haresh Raichura
3/10/2012

Are Elections in India fought with 'Fake Currency Printing Machines" ? How can we check this? Why such accused have connection with Political leaders?

As a lawyer, I also get cases of accused caught with fake currency notes cases. This often lead me to think on these questions. The accused have always connection with some political leaders.


It is a fact no one can deny that Money is Poured into Election campaigns.


Officially by way of sarees, laptops, TV etc. And also in form of fake currency notes!

How can an honest candidate can stand against this flow of fake currency notes? 


People has to become aware, they have to be made aware before 2013 Elections.


Haresh Raichura

3/10/2012

Is Karmnye Vadhikarasya policy of Geeta is against popular Goal-oriented life style ?

I write this because I am confused.

Geeta says Karmanye Vadhikarasya ma Faleshu Kadachan. You have right to action but you have no rights on fruits thereof.

One philosophy of Karma is, set goals, set targets, and pursue your goals. It says, the whole object of action is to attain some Goal, some fruits.

Geeta also noticed this goal-based philosophy but it objects to it on two grounds

1) In Goal based Karma yoga, there are thousands and thousands methods of achieving a Goal. And none guarantees an outcome. This path is full of confusion. You can get lost.

2) Second objection: The fruit of an action is result of five variables: Doer, his method of doing, time, place and Luck. Fruits can never be exclusive result of your action. Doer cannot claim exclusive right to fryits when other factors are also contributing to outcome of an action.

Krishna says, on the other hand, His suggested philosophy of Claiming no right on fruit have only one method to master:-

"

Choose you action wisely
Do not worry about fruits.
Do not get attracted by fruits.
Nor do things with only object of fruits."

According to Him, this path of Karmayog is better that "For the Fruits only" method of Karma yoga.

Now if we look at it from other angle, by birth, we are trained to see some attractive thing, desire it and then do things to get that thing. We are trained to work only for salary or fruits.

Geeta suggests us to train ourselves in opposite to our natural tendency.

If we look at the whole western culture, it is Goal-fruit oriented. They set targets and move to achieve targets.

Diseases like diabetes, stress, depression, blood pressure are often seen in people who live totally goal-based life.

They also commit crimes to reach targets.

Their end lives are marred with tragic ends.

I have seen an allegedly corrupt chief justice of India lying today in bed as paralytic since many years.

Once a most powerful man of India, now paralytic in bed. His life was goal based.

Now which path to choose? Tell me your firm opinion. Krishna has firmly told in Geeta that his Karma Yog policy is much better than goal-fruit based life style. I look around and I see people setting goals and grabbing fruits. And they are called successful.

Haresh Raichura
3/10/2012

Krishna Neeti "What we DO NOT DO" is more important than what WE DO. Akarma is true Karma

"Karma is Akarma and Akarma is Karma. He who knows this, knows Karma very well"

It is difficult for me to understand this philosophy of Geeta.

I understand this as under: When we RESTRAIN ourselves from doing something, we are doing real Karma.

For example, not to steal, not to accept bribe, not to be irregular, not to worry, not to feel anxious etc are real Karma.

"

Not To Do" prohibited actions is also true action.

List of our "Not to Do" should be longer than our list of "To Do"

This is how I understand.

TO RESTRAIN IS TO ACT.

Haresh Raichura
1/2/2012