Two Lama discuss story of a Chief Justice of India who was sentenced to two years in jail for crashing a plane #Fiction

In the Mountains of Himalaya

(1)

"Has any Chief Justice of India
Ever been sent to jail?"
Asked Younger Lama after reading a book on
Hardships of criminals in jail

"Yes. It happened many years ago."
Elder Lama replied

"Please tell me the whole story."
Younger Lama pleaded


(2)

"When he was Chief Justice of India,
He was stuck with a vision

In his vision
He saw that courts in India
Were working and were open 365 days
He also saw an emergency ward in each court
Where a judge was available 24/7
To pass instant stay orders.
His emergency orders used to remain valid for 12 hours.

"The Judge told about his vision
To his brother judges and to leading lawyers.
No one believed him.

"He was trapped in a "No Highway Zone".

"He could not convince others
Unless he was allowed to make an experiment,
And he was not allowed to make an experiment,
Because he could not convince others.

"Then, one day, he decided to crash an aeroplane
To convince people about his vision."
Elder Lama said

Younger Lama was shocked and surprised,
"Why would anyone crash an aeroplane
To convince people about his vision?
What is the rationale here ?"
Asked Younger Lama

"It is 1940 principle, popularly known as
'No Highway Principle'.
Elder Lama replied

"Please tell me more about this principle."
Younger Lama Pleaded

(3)

Elder Lama began to explain

"Between 1930 to 1940
Many aircrafts used to crash in mid sky,
Even if they were 100% fit to fly.
It was a mystery.

"A mad scientist saw a vision
He saw that metal used in tail of planes
Had a 'Dying Age' - after certain amount of flying hours,
The atoms in metal used to die
And tail of plane used break in air
Resulting in a sudden crash

"No one believed him.
He was not in position to convince anyone
Because he was not allowed to make an experiment.
And he was not allowed make an experiment,
Because he was not in position to convince anyone.

"Like Chief Justice of India,
He too was in "No Highway Zone"

"Finally, he crashed an aeroplane.

"He immediately caught attention of world
People tried to understand his bizarre act
Many people saw truth in his vision,
Many aeroplanes were grounded
Whose tailplanes were about to reach,
The Dying Age.

His theory was accepted by the world.

"This is called the principle of
taking a drastic action,
Even at the cost of one's entire career.

This is also called 'No Highway Principle'

"The Chief Justice of India also relied on this principle
And crashed an aeroplane,
Just to convince people about his vision
Of 365 days working courts.
And In the process, he risked his entire career."

Elder Lama thus explained the principle.

"How did Chief Justice of India
Actually crashed the aeroplane?"
Younger Lama wanted to know modus operandi


(4)

Elder Lama explained modus operandi.
"One day, when CJI was boarding on a flight,
He told the captain that he was CJI
And he wanted to see cockpit of plane.

"Out of curtesy, the captain allowed CJI to enter in cockpit.
On dashboard, there was a handle,
Before captain can stop him,
He pulled down the handle.
In seconds, the wheels of plane folded up
And the plane crashed on its belly on ground.
No one was hurt,
But the plane was destroyed."

"And thereafter what happened to CJI?"
Younger Lama asked

(5)

"CJI was arrested.
TV Channels all over world broke news
That CJI broke plane
And further news about his motives
Were awaited.

During impeachment proceeding,
CJI told Parliament that
He broke plane to convince people
About his vision of 365 days open courts

He was impeached by majority votes.
His pensions were forfeited
He was sent to two years rigorous imprisionment
For causing mischief."

Elder Lama replied.

"What happened thereafter to CJI?"
The Younger Lama was curious.

(6)

Elder Lama said further,

"After one and a half year,
CJI got remission because of his good behaviour
And he was released early from jail

When he came out from jail,
No one had come to receive him
He wondered for a moment, where to go?

Then he asked an auto to take him
To any nearest court

As he entered in court compound
He noticed a notice board where
Court timings were listed for 365 days
There were also details about
Judges available in Emergency Room

When he was reading the board,
A junior advocate was watched him curiously
Then he came close, and asked,
"Are you the Chief Justice who broke the aeroplane?"

CJI nodded affirmatively.

Within minutes, the news spread in bar rooms and court rooms,
All lawyers dropped their work
And poured out in compound
To greet the CJI

The eyes of CJI became wet for a moment.


Haresh Raichura
31/7/2014

Credit for ideas:

1) Chief Justice of India, R.M.Lodha for his vision of 365 day courts

2) Nevil Shute, for the idea of "No Highway Principle" from his 1940 best seller novel "No Highway".. After the novel was published, many aircrafts were grounded. In 1949, during Judicial Inquiry of an aircraft crash, this book was offered as evidence regarding cause of accident

6 Short and Sweet Reasons to show why E-Rickshaw Plying is illegal

1) SC has last year held that every kind of "Jugad Vehicles" are also motor vehicles and insurance companies are liable (Justice Dr.B.S. Chauhan Judgement)

2) Insurance companies have not yet started taking third party insurances for accidents of E-Rickshaw, because no documents, bills, no specifications of E-rixa etc are available with owners or drivers.

3) E-Rickshaw are plying as Public Vehicles.

This is a great risk to public. Criminals can start driving E-Rickshaw and public can walk into hands of criminals as if walking into a mouse trap waiting for them as an E-Rickshaw. 

4) Measures announced by Government to register E-Rickshaw are meaningless.

5) An ordinance required to prescribe specifications of E-Rickshaw, provision for treating it as motor vehicle for insurance purposes, obligation of Insurance company to obtain 3rd Party insurance for E-Rickshaw, and rules for minimum educational qualification of driver, their registration etc is must. Nothing less can help.

6) No political gimmicks can help E-Rickhaw.

Haresh Raichura
31/07/2014

Supreme Court becoming tough on "Name Lending Advocates" From 19th August. -a brief explanation.

Who are name lending advocates?

Supreme Court has a system where advocates who have passed its exam can only file Vakalatnama for litigants in Supreme Court. They are known as Advocates on Record.

Advocates from all over India can come to argue case, but they have to seek instructions from advocate on record, who may have day to day experience about how Supreme Court is to be addressed. They were supposed to ensure that pleadings filed in court are of higher standards.

Over years, this system got diluted. Some advocate will simply take a signing fee and will file anything. This diluted quality of pleading in Supreme Court.

The purpose of taking advocate on record examination lost its meaning.

Now, in New Rules, Supreme Court has said that it will treat it as a misconduct if advocate on record, only signs and does nothing further.

Advocate on Record are supposed have a office within 16 Km of Supreme Court, and they are supposed remain in Supreme court all the time.

Therefore, Supreme Court has made rule that if advocate on record is found absent when case is being argued, it will be treated as misconduct.

The advocates on record who only take money for signing and show no responsibility to client or to court, are Name Lending Advocates.

The new Rules coming in force from 19.8.2014, seeks to deal with this problem.

Haresh Raichura
31/07/2014

Test of Legal IQ: 'Contract for supply of Lift' is a 'Contract of Sale' or 'Works Contract'? Taxes of millions of rupees are hidden in the answer

If you say that contract for manufacture, supply, installation of Lifts, is a Contract of Sale, then Sales Tax is payable. Tax payable may be in millions of rupees.

But if you say that it is "Works Contract", chiefly a sale of services, then the Sales Tax by State Governments cannot be levied.

--------

Hence, the point was debated and argued in several courts, and finally, recently, a 5 Hon'ble Judges Bench decided the question.

Four Lordships held that it is a "Works Contract" and therefore State Govts cannot charge sales tax.

One Lordship gave a dissenting judgement and held that it a Contract of Sale and therefore, sales tax can be charged by States.

Majority judgement prevails.

Three Points

1) When some property value is transferred, it is Contract of Sale.

2) When contract involves supply of some parts, but mainly some service is to be provided, than it is a Works Contract. Sales tax cannot be charged on Works Contract.

3) Sale of Lift, includes sale of several parts like cabin, ropes, motor etc. But mainly service is being provided.

Haresh Raichura
29/07/2014

Reference Case: Kone Elevators India Pvt Ltd. Vs State of T.N.
Decided on 6/5/2014


'

SC Judgement on "Mother Tongue" may NOT prevent States to Prescribe it as a subject in Primary Schools - A view

5 Judge Bench of Supreme Court has laid down certain law about power of State to prescribe Mother Tongue as only medium of Instruction in 1) unaided primary schools and in 2) minority primary schools.

A set of 5 questions were referred to Supreme Court 5 Judge Constitution Bench.

Third question was whether imposition of mother tongue violates fundamental rights. The reply in para 34 to 42 says that imposition of mother tongue as a medium of Instruction violates Article 19,29 and 30.

( My view : It does not say that State cannot prescribe this as an additional subject in all primary schools. In facts States do have powers to prescribe desired standards of education, subjects, syllabus etc)

The fifth question was whether because of Art. 350A, are linguistic minority schools bound to give instructions in schools only in mother tongue? Supreme Court said No.

My Conclusion

The Question about the power of State to prescribe "Mother Tongue" as a special subject in all minority school, was not before Supreme Court in this Judgement.

The judgement only says that "Mother tongue" cannot be imposed as a medium of instruction in primary schools on unaided and minority schools.

Haresh Raichura
30/7/2014

Pain of Being Misunderstood (A short poem)

Pain of Being Misunderstood (A short poem)

When others misunderstand me
"It is their problem,
Not mine."
So I said to myself

But the pain which
I felt in my heart
Was 'Pain of Being Misunderstood'
And the pain was real

The cause was elsewhere
In multitudes of millions
Who misunderstand me,
But the effect was on me,
In my mind,
In my body.

So I said to myself,
"Pain of Being Misunderstood
Is an Illusion"

And so
I set myself free.

Haresh Raichura
29/07/2014

Ps. Gandhiji said, it is not enough to make ourselves clear. It is further our duty to see that we are properly understood.

(But how can we do that?
How do we know what others have understood?

Maximum what we can do is to try to be as much clear as possible. We may also take some extra steps to ensure that we are clear.

This seems to be the way)

Books like #Bubblewrap, shakes us up to hard realities of tortures on young wives in India. It breaks illusions of

Books like #Bubblewrap, shakes us up to hard realities of tortures on young wives in India. It breaks illusions of safety of women in India.

The book is about a child wife. It is about a thousands of similar minor women undergoing tortures in India.

The book looks like a cruel reality dressed up as a narrative story from eyes of child girl.

This is a debut novel of author @Kalyanirao09. But there is a courage in author to write in an altogether a new format.

Insertions between chapters, of short ramblings from a diary, makes it look as if we are reading a 3D Book !

Best wishes to young author.

There has to be some law that when bride being tortured is a minor, then anyone..even a neighbour..or a Sarpanch of village..or a social worker...or any advocate.... can move an application to the nearest Magistrate in court, to issue immediate warrant for custody by court  and protection of minor till her parents are called. 

Haresh Raichura
28/07/2014

Not that easy for Govt to fast track cases relating to MP /MLA - 3 Legal Reasons

It is not easy for Government to fast track criminal cases relating to MP /MLA

3 Legal Reasons

1) Well, you cannot single out any criminals for being tried in a special way...this violates their fundamental rights to be treated equally and Also under Art.21 ( Ref. A.R.Antule Case)

2) Governments have no power to give any such directions to Courts.

Only Supreme Court or High Courts can give such directions.

Supreme Court can direct listing of its own court.

But each High Court is also independent to decide its listing. So each High Court has to give such directions.

3) Central Govt can make a special law for fast tracking cases against MPs....

But for MLAs, each state government has to pass such law in State Assemblies.

And will MPs and MLAs agree to pass such special law for them?

As per my view, things are not easy. Many things are easier to say, difficult to do. There must be some way. But at least, I am not aware.

Haresh Raichura
27/07/2014

Abuse of any Law is related to people who apply this law. However good a law may be, if someone wants to..

Abuse of any Law is related to people who apply this law. However good a law may be, if someone wants to misuse it, any law is bound to be misused.

There are countries where laws are not misused. In these countries, you do not fear filing of false cases. You do not fear harassment by authorities.

In India, we have two problems:-

1) People do not not have generally law abiding nature. They do not like to stand in queue. The rich and influential, desire to be treated with immunity. They want to bribe and fix authorities. If such are the mindsets, then even good laws will be misused.

2) Second problem is with authorities entrusted to apply law to citizens. If they have ulterior motives to amass wealth by extorting money from law breakers, then however good a law may be, it will be misused and abused.

Point

By amending laws, evil of misuse cannot go. Focus should be on those who are asked to apply this law against citizen. If they are kept under check, laws are less likely to be misused.

Haresh Raichura
25/07/2014

What can a man do when he continues to suffer losses in every business he does? - Two stories

The destiny, luck or Bhagya of a man is a mysterious phase in his life.

There are times, when whatever a man does, he fails. More he tries, more he fails. Harder he tries, harder he fails.

At this time all his knowledge, skills or expertise are useless.

Many give up at such times.

One Incident.

A man had purchased a shop. He started a business, but he failed in it. He started another business, he failed in that too. It went on like this. The more he tried, the more losses he suffered.

Then one day, I noticed that he had cleared out everything from his shop except a small table and his chair to sit.

He took a pen, and started writing name of his God in book. He started writing Rama, Rama in a note book. Whole day he will sit there and keep writing name of God in notebooks in this shop.

He was not doing any business. He just kept filling up one book after another by writing names.

I do not remember exactly for how many days or months I saw him writing names of God in his note books.

But one day, I saw that he has started some business in his shop. Business was going good. Now whenever I saw him, he was busy and surrounded by customers.

He was prospering. I saw him prospering more and more over many many years.

Till today, this story is a puzzle to me. How writing names of God in a note book can change a persons fate, I do not know.

Second Incident.

A relative told me this story. They had good business in Africa. Then one day they had to sell everything. They migrated to live in London.

Here, he tried many business. He failed.

He continued to suffer loss in whatever he did.

Money which he had brought from Africa were disappearing in business losses.

Then one day he decided to quit trying. He stopped doing anything.

He kept living off on his money brought from Africa, spending as little as possible on day today life.

He kept sitting without doing anything for seven years...

And then change came. He started a shop. He flourished more and more and than purchased two more shops in prime locality of Lobdon.

To him also logic failed to explain, why everything he was doing was failing in first years. And how the fortune changed in his favour in such a way that everything he did was becoming success.

The Point

Turns in life are mysterious. All laws of success fail when we are passing through down phases of life.

To keep patience and to pray, may be a good option.

Haresh Raichura
25/07/2014

Unless Constitution is Amended, there is no way to dilute "Collegium System" of appointing HC & SC judges - 3 Reasons

Let me clear this first.....I do not have any experience of Constitutional matters.

But my view, based on my limited understanding, is such that unless the Constitution is amended, the parliament cannot dilute the present "Collegium System" by which appointments of Judges of High Court and Supreme Court is made.

Any other simple law made by Parliament in this regard can be struck down as unconstitutional.

Three Reasons

1) The Nine Judges Bench has laid down that "Primacy" of opinion of Chief Justice in appointment of judges is basic feature of Constitution of India. This is a unique Constitution in the world.

2) Since it is a basic feature, reading from various articles, no law can be made by Parliament to destroy any part of Basic Structure.

3) The Primacy of Chief Justice of India is held binding as healthy convention. (Something which can later become part of law). There are elaborate discussion about binding effects of a conventions in 9 Judge Jusgement.

For these three reasons, it will be difficult for Parliament to do away with Collgium system or to replace it.

Then? What else can be done without amending Constitution?

Parliament can pass any law which does not take away "Primacy of Chief Justice and Consulting Judges".

It means, procedures of collegium system, procedure of bringing transparency in records of consultations, referring suggested names to a body of jurists for their remarks and opinions about candidates, etc can be made. The Government can also make laws to make transperant its own part of consultation.

All these can be done without disturbing Nine Judges Judgement and without amending Constitution. 

In simple words, Way forward is possible. Way backward is not possible. The Nine Judges Judgement stands as a Rock of Judicial Independance......


Haresh Raichura
24/07/2014

Rules are changing for lawyers / Advocates practising in Supreme Court

In few weeks, Supreme Court of India Rules for practice will change.

The change was overdue since many years.

Advocates from all over India come here to argue cases. But they have to engage an Advocate on Record registered in Supreme Court.

His primary duty is to assist court whenever the case is called out.

He has to keep a clerk registered with Supreme Court, and he has to keep an office near Supreme Court.

The new rules propose to make these advocates more answerable to court. The attempt of court is good. 

But so far as litigants are concerned, now they will have to pay more for justice.

The rules are now coming in force from August, 2014

Haresh Raichura
24/07/2014

Silent Process of removing Corrupt Judges from Subordinate Judiciary up to District Judges #Knowhow

So far as Judges up to District Judges are concerned, the High Court can remove them from services anytime proof of corruption is given to High Court.

The Process of Removing them is kept silent and undue publicity is avoided. Because if publicity is given that a corrupt judge is removed, then there is collateral damage. Faith of people is reduced.

Nature of Silent Process of Removing Corrupt Judges.

In every High Court, there are some administrative judges. There are vigilance cells (Like IB) which gives secret reports to High Court about complaints regarding corruption among judges up to District Court.

If such information is received by High Court, the concerned judge is often summoned to High Court to meet Chief Justice in his chamber. This is usually an informal meeting.

Here Chief Justice informs concerned judge about complaints against him. And asks him. "Would you like to resign on your own, or should I order a Departmental Inquiry against you?"

If he resigns, the matter ends there. If he refuses to resign on his own, then a departmental proceeding starts and if allegations are proved, he is dismissed.

In most of the cases, the erring judges resign. The process is silent and discreet. So people never know about.


POINT

If you have complaint of corruption against any judge up to District Judge, the matters should be brought to notice of High Court through proper procedure. Mostly, some Registrar in High Court will guide you about procedure.

If there is substance in your allegations, then High Court has its own process of dealing with the judge.

(Some of my friends had become judges. Then they had to resign. They told me about this silent process.)

Take Care To Avoid Harsh Language 

Avoid contemptuous writing. Do not use harsh language. Just state facts on basis of which you believe that the concerned Judge may be corrupt. Just bring the facts of corruption in a humble language to High Court. Then you have better chance of action on your complaint. 

Haresh Raichura
23/07/2014

Short & Sweet Summary of How High Court & Supreme Court Judges are appointed in India #Knowhow

1) Supreme Court of India is the most unique and powerful Supreme Court in the world. Here, Supreme Court Judges themselves appoint Supreme Court Judges.

2) The Constitution says, President shall issue appointment orders as per names proposed by Government in Consultation with Chief Justice of India.

3) What does this word "Consultation" mean? Does it mean that 50% names will be suggested by Chief Justice and 50% names will be suggested by Government? The Answer is NO.

Will it be a Mixed Fruit Basket of 50% High Quality Judges and 50% as per choice of political party in power? The answer is NO.

4) Five Senior Judges of Supreme Court are called Collegium. Here, Chief Justice has to discuss with other Judges before forwarding names to Government. A strict procedure of such discussion is laid down. If Chief Justice, acts solo, and forwards name to Government, such act is not binding on Govt. Such appointment can be set aside.

5) After receiving names, the Govt collects informations from IB and other secret agencies about the names suggested. After considering these new material, if Govt has no objection, the person's name is sent to President for appointing him as Judge.

6) If Govt finds objectionable material, it returns the file with new material to CJI. He has to once again consult collegium judges. If all of them see no objection, the Govt has to pass the name for appointment.

But if One member of such consulted Judge says NO, in light of new material, then even if CJI may insist, the Government can refuse to appoint Such appoint may be held contrary to law.

7) The Government is bound to appoint as per recommendation of Chief Justice (after he has followed strict procedure of consulting other judges), as a Healthy Convention.

Notice the word "Healthy Convention" used in 9 Judges Judgement. It means many things. Perhaps, this has some value which may be debated in future when 11 Judges Bench may sit, whenever such issue will arise.

For more technical details, Google can be searched.

Transparency in collegium system is the proper cure. Replacing the collegium system with 50% Govt Appointed Selectors will be worst thing.


Haresh Raichura
23/07/2014

"You have to first set right your priorities."- The then Chief Justice R.C.Lahoti said to a lawyer

That day I was waiting for my case in First Court of Supreme Court.

The presiding judge was the then Chief Justice R.C. Lahoti.

In the case which was going on, the lawyer was saying that he was not prepared. He was also giving some excuses for not being prepared.

Then the Judge said,

"You have to first set right your priorities."

I still remember his these words whenever I hear his name.

Haresh Raichura
22/7/2014

Supreme Court has many a times saved government from breaking down. Cases come where....Collegium System

Supreme Court has many a times saved government from breaking down. Cases come where.... Top functionaries of Govt are often in dock.

Or they have problems.

Here, Supreme Court has to do a "Balancing Job"....

On one hand justice is to be done, and on the other hand anarchy and breaking down of government is to be prevented.

This does not mean that Independence of Judiciary is compromised.

It maintains it independence and at same time balances interest of Individuals against Interest of a larger mass of Individuals.

If Gocernment breaks down, there is no Constitution to uphold. The Energency has taught its lessons. A judicial order should not be instrument of death of a functioning government.

-----

Mostly we are shown half side of a ball.

Some say, look it is red. Some say, Look it is white.

In fact the the Ball is half white and half Red.

Collegium system is not as good as it is painted.

Collegium system is not as bad as it is being painted.

The Ball is half Red and half White. 

This system is Much much better than so called alternatives suggested where new judges are to be selected only with the consent of Govt Representative....

This will be step backward.

Haresh Raichura
21/07/2014

False Cases can reduce by 50% if Courts in India strictly follow 'Laws of Pleading'

Law of Pleading are rules about how cases and their replies are required to be written.

In India, Judges are neglecting to enforce 'Laws of Pleadings'. Hence large number of false cases are filed and tons of time of court is wasted.

What does Laws of Pleading States :

1) In every case, you have to write only relevant facts, and need to present them in numbered or bulleted points.

( You cannot write about your evidences. You cannot write legal arguments in case. You cannot write Citations or judgements which you may be relying.)

2) Replies of case must be also as per above... point to point.

What Courts can do if above Rules are not followed by parties and if long long false stories are written and filed in court?


The Court can order that those paragraphs be deleted from case. It can also impose costs on party who has filed such Long -False - Story type pleadings.

But when Court can pass such orders?

One of the party to case MUST make an application to court requesting court to delete false-story-like-paragraphs from case filed by other side and should ask for costs.

Then court will hear arguments of both sides on this application and will then pass a just order as per Law of Pleading.

A trial court may be reluctant to receive and decide such applications for various reasons. One reason may be, disposal of such application do not count for their promotions. 

If the Court refuses to order deletion of stories from case, a revision or writ petition against that order lies to High Court. (Civil Procedure Code has specific provision for this type of application. In Criminal Law judges have inherent powers.

Only minimum facts should be allowed to be pleaded. This will save time of court. It will prevent parties from hurling baseless allegations against each one. It will prevent acrimony and scars on reputations of parties.

Model Forms should be approved and circulated by High Courts. 

Haresh Raichura
20/07/2014

A lawyer started going to court on bicycle, retired as judge of Supreme Court #Inspiration

Justice C.K.Prasad who retired recently as a Supreme Court Judge, told his story.

He wanted admission in medical or engineering college. But he could not. So he joined law college and came in profession of lawyers.

He started going to court on a bicycle. And retired as a judge of Supreme Court.

"I will give my best to every case." - that was his Mantra when he joined practice of law.

Here, I remember another incident. Sushil Kumar is considered top best criminal lawyer in India. He may be probably next to Ram Jethmalani.

One day, he showed me a place in Supreme Court where he used to park his bicycle.

He too had started practice as lawyer by going to court on bicycle.


Haresh Raichura
19/07/2014

SC opens up Family Laws- Parties can bring new conduct of wife or husband to notice of court at any stage

Case number is Civil Appeal No.5862 of 2014 Judgement dated 30/6/2014 Judges coram : Justice Sudhansu Jyoti Mukhopadhyay and Dipak Misra, JJ, Judgement for the court, written by Justice Dipak Misra.

Whole judgement can be seen on official website of Supreme Court of India.

One Point from the Judgement :

After case is decided, after judgement is given, if one of the party, husband or wife, behaves in unjust manner, can this be told to Appeal Courts?

Can Appeal Court look into these new behaviour and can it grant divorce on basis of new unjust behaviour of party?

Supreme Court answered:-

(Exact words in judgement are reframed by me)

Yes. Subject to two conditions.

1) New facts should be indisputable evidence. The evidence must be strong that other side have no way to deny.

2) New evidence must be relevant to show a pattern in behaviour of other party.

----

My purpose in this post is only to tell you that the Family Law is made a little more flexible by this judgement.

Judges cannot remain blind to what is happening in life of husband and wife after a judgement is given... Even divorce can be granted by looking at new behaviour.

The Judgement requires to be read in detail by those who are interested.

Haresh Raichura
18/07/2014

"Dam Theory" explains why death penalties and higher convictions can not reduce inflow of crime coming from other side of Dam

Two Lama were watching flow of a river
And were sitting near a river.

Elder Lama explained to Younger Lama

"In this river, there are laws
That each fish shall have equal right on
Foods thrown in river by human beings.

Their laws further say that
When food is thrown in river by human beings,
Each fish shall stand in queue
And shall wait for its share.

And yet when we throw food in river
Fishes squabble over each other to get food.

Their laws says,
If big fish will eat small fish,
It will be charged with crime of murder.

And yet, now and then
Big fishes continue to eat small fishes.

Crimes of rapes by one fish over other fish
Also happen in his river."

"What do you wish to convey?"
Asked younger lama

"Laws prescribing human conducts
Are meant to be followed,
But it's violations are bound to happen."
Replied Elder Lama

"Can Death Sentences and Higher rates of conviction
Reduce crime in society?"
Asked younger Lama

Elder Lama asked him to look at the Dam.

Younger Lama looked at the Dam

Some engineers were watching levels of water on both sides
And were releasing waters now and then
To maintain safety of Dam
And to regulate flow of river

Elder Lama said,

"The Engineers which you see on Dam
Are Judges and Lawyers.
The Dam which you see
Is structure of laws and rules.

On one side of dam,
There is flow of people who continue to violate laws

The Judges and lawyers
Try to tame these flow of law violators.

Their job is to maintain
A steady level of justice in society.

If Punishments are increased to deaths,
If higher convictions are made,
It will not reduce flow of river
Of Law violators.

The Judges and Lawyers
Can only regulate flow,
They cannot stop flow of law violators,
And they have to keep dame safe also
By releasing some law violators now and then.

They are engineers.
They have to do their job.

But they too are also helpless
When the level of law violators
Start increasing in river."

Explained Elder Lama


Haresh Raichura
19/07/2014

'India's Legal System' is like "Judgement Factory" and "Case Law Diarrohoea"- Said Mr. Fali S.Nariman

'India's Legal System' is like "Judgement Factory" and "Case Law Diarrohoea"- Said Mr. Fali S.Nariman, the well known jurist.

Well, these are quite strong words used by a great Jurist.

Supreme Court referred and quoted his words in Case of Richpal Singh V/s Ghasi in para 50 of judgement dated 4 July,2014 in Criminal Appeal No.341 of 2005 ( Judgement Available on official website of Supreme Court)

After quoting the Jurist, the Supreme Court said,

" We need to put our heads together and follow some sage advice and take some remedial action before justice delivery system gets timed out".

Well, that is it.

I think that the issue requires reflections by both the lawyers and the judges.

Haresh Raichura
17/03/2014

"I swear in the name of my son that I do many cases of poor widows free, at my costs"- A lady advocate said #TrueStory

Today I had a conversation with a lady advocate of Ahmedabad.

In foreign countries, there are laws requiring each lawyer to spend 10% of Income for doing legal cases of poor free. They cannot charge even expanses from such poor clients. They have to show this expenditure in Income Tax Returns.

In India, there is no such law.

Yet, there are thousands of lawyers who do legal cases of poor free. They do not charge even expanses from such people.

Yesterday, I succeeded in Supreme Court in a case of a widow.

I conveyed the good news to widow's lady advocate in High Court.

She was overjoyed to hear this.

She was fighting case of this widow since several years free.

The case involved many many hearings in trial court and High Court. And still the justice was not correctly done.

When I gave him good news that widow has succeeded in Supreme Court, she burst out emotionally.

She said,"I swear in the name of my son that I do many cases of widows and poor free...... Even I pay expanses and court fees in their cases....... I am a Jain by religion. I believe in serving 'living beings - Jivdaya'...... I often serve cows and other animals... These are rituals in our religion..."


Well, this is one lady advocate.

But I assure you that there are thousands and thousands advocates who provide free legal services to poor.

And they are honest and compassionate. Though they may be living in a rented house.

They do not advertise when they help someone.

Media never writes about them. Never gives publicity or fame to good deeds of such lawyers.

Therefore, I call them "Lesser Known Good Lawyers". The lady advocate in this story is known as Malaben in Gujarat High Court. Her contact number is +91 90-99-913928

The point is, please, do not assume that all lawyers are liars. Also do not assume that all lawyers are bad human beings.

Haresh Raichura
15/07/2014

Any young boy who has attained puberty, can rape.. To which level Law can decrease age for Juvenile Law? Here is short answer:

1) No clarity about definition of rape in Indian Laws. Some judgements indicate oral sex also as rape.

2) Some Psychologists say desire for sex starts in a boy from age 3.

3) The "Shock in the Society" or "Public or Media out rage are not the criteria for deciding punishment.

4) "Intention to commit a crime" or "Physical Capacity to possess intention to commit a crime" must be proved first.

5) If the boy has attained physical maturity but he has not obtained understanding that it is crime to do so- then he is a Juvenile.

6) No Fix Age Can Be Fixed by Law

7) It Must be left to the Judge to decide physical and mental maturity of boy, on basis of facts in each case.



Haresh Raichura
14/07/2014

Two Sides of Popular Argument of a Politician : "If I am convicted in court, I'll quit"

The politicians and other people in public life often issue statements that "If allegations are true, prove it in court. If I am convicted by court, I'll quit."


This is a weak argument for two reasons:

1) Once a person is convicted, he has no options. He is taken into custody. He is forced to quit. So the argument that "If I'll be convicted, I will quit" is an argument which has no weight.

2) "If I am convicted in a court of law"... This rider implies that it will take about 5 years or more to finally decide a case. "So till then I am not going to quit even if I may be guilty".

In my view both these argument does befit a person holding high public office.

Arguments on behalf of politician

1) In politics, one view to remove opponent from election is to file false cases on rape. There are people who specialise in filing false cases. They supply complainant, they supply witnesses to fixed targeted persons. Politicians need protection against such person. They need not be troubled unless find guilty.

2) Politician is also a citizen. Every one else is treated as innocent until proved guilty in court. Politicians should be protected equally.


Haresh Raichura
1024

"Do not draft petition unless you are clear about every word. Heavy cost may follow for vagueness"- International Arbitration

India's legal community has started being exposed to International Arbitration world.

A top senior advocate of India recently said that in International arbitration world, one has to be clear about every word one uses in pleading.

Heavy costs follow if some words are vaguely used or if some unsustainable loose claims are made.

In India, pleadings are loosely drafted and loosely interpreted.

Judges ignore technical objections and focus on doing justice.

While, in international forums, technicalities are more important.

"The rule is : Do not draft a matter unless you are clear about every word you are using."- said a top senior advocate.

Haresh Raichura
14/07/2014

"She was raped on seventh floor of library in a Law University. Neither she gave complaint nor University"- said a Senior Advocate of Supreme Court Bar

The issue being discussed was whether Indian Media is giving "out of proportion publicity" to rape cases in India to give a picture as rape cases are more in India then in Western Countries.

He said that in cities like New York, Chicago etc, it is not safe for a woman to go out alone after sunset, without exposing herself to fear of sexual assault.

No study has been made to compare number of rape cases in India with number of rape cases in other countries.

Then he recollected his own experience when he was studying in one foreign Law University.

They had a 9 floor Law library in University. One day, during day time, a girl student who had gone to take some book on seventh floor was raped there. She was so much shattered that she could not even recollect the face of rapist.

Neither she gave a complaint to police nor the University. The publicity which is given to a rape victim by media ruins her life further.

In India, however, now there are laws which prevents media from disclosing identity of rape victims.

The Point:

There is no evidence that ratio of rapes taking place in India is more than rapes taking place in western countries.

Haresh Raichura
14/07/2014

"In Death Sentences cases, more senior lawyers should come forward to assist courts"- said Justice C.K.Prasad

When Justice C.K. Prasad was retiring as a judge of Supreme Court, he expressed this concern about the way Death Cases are conducted.

He pointed out that Senior Criminal Lawyers are not coming forward to take such cases and to assist courts.

He said that to take out life of some one is a function of God which is given to judges. They need best possible legal assistance from senior lawyers of Bar.

Haresh Raichura
14/07/2014

Chief Justice R.M.Lodha's experiment to persuade Lawyers of Patna High Court to work for half an hour more daily

Chief Justice R.M.Lodha's experiment 

In May 2008, he became Chief Justice of Patna High Court.

He noticed that more than 33000 Bail Applications were pending in High Court and Lakhs of such bail applications were pending in lower courts.

The agony of people languishing in jail troubled him.

If these people deserved bail, bail should be granted to them. If they do not deserve bail, then their applications needed to be rejected.

His Suggestion To Bar Associations To work half hour more daily to help court in reducing pendency of cases.

He first persuaded his brother judges and inquired if they were willing to work for half an hour more daily to hear these cases.

They agreed.

Next task was to persuade Bar Associations to cooperate with Judges in hearing of these cases by working half an hour more daily in court.

The Lawyers too agreed.

Then official act followed. In a meeting of all judges of High Court, a resolution was passed. Timing of High Court were increased by 30 Mins, timing of lower court increased by 45 mins.

Imagine the increase in disposal of cases.

Two Years Later.

Justice Lodha elevated as Judge of Supreme Court and he came to Delhi.

In Patna, the lawyers and judges reversed the resolution to work for half an hour extra. And they restored earlier old timings.

The reform did not last for long.

Present Scenario

Justice Lodha is now Chief Justice of India. He recalled this experience while acknowledging contribution of Justice C.K.Prasad who retired today.

Reasons and Analysis to understand why this experiment did not work.

The following are my views:-

1) If something is there since many many years, assume that there must be some sound reasons behind it.

Many people in past may have tried to change this situation.

They must have failed. Therefore there must be some reasons behind existence of present system. One need to reach to these reasons.

2) A lawyer is not a single unit. When a lawyer works for half an hour more, his clerk, his driver, his typist, his steno, his junior, all will have to work half an hour more, without any overtime being paid. They will reject this extra hour. They will not cooperate with lawyer. And the change will fail.

3) If a lawyer is paid per hour, he can work for 30 hours per day instead of 24 hours ! He can work 210 hours per week! The Lawyers are genius. They have infinite capacity work!

That is why in advanced country lawyers are paid for per hour they work.

Every district judge is given power to decide hourly rate in his court. For eminent lawyers, he can fix special rates.

If a lawyer charges more than prescribed rate, or if the hours shown in his bills are false, a complaint lies to Judge.

In India, a lawyer does not have monetary motivation to work more. He is paid fixed (Or less than fixed) sum by his client. 

He may work only half an hour or he may put 50 hours on a case. He gets same fee.

These are some of the problems. One individual cannot reform system. You, the people of India, also need to support and ask for reforms!

Haresh Raichura
13/07/2014

"498a Judgement is good for women also."- Said Ms Aishwarya Bhati, Secretary, Supreme Court Bar Association

"In 498a cases, there are women on both sides of cases. The judgement by Justice C.K. Prasad, which restrains police from making automatic arrest is good for women also."

She was speaking at farewell function of Justice C.K. Prasad who retired as Supreme Court Judge today.

She, as a Secretary of Supreme Court Bar, was giving vote of thanks and she took this opportunity to reply to Attorney General Mr. Mukul Rohatagi who had said that the judgement was good for husbands.

In his earlier speech, Attorney General had said that "498a Judgement of Justice C. K.Prasad has warmed blood of many a men, particularly husbands in the country.

Point is

The more improvements in law relating to 498a are on their way.

Haresh Raichura
13/07/2014

SC: Case of a Missing Armyman. Was he dead? Was he a deserter? Is widow entitled to pension?

Principles of Law:

If nothing is heard of a man for 7 years, the court may presume him dead for legal purposes.

Story:

1967, a man joins Army.

1977: Army writes to his wife that the man has disappeared.

Army treated the man as deserter and forgot about him.
......

After 7 Years, the widow seeks legal help.

Case is filed to declare that the Man about whom nothing is heard since 7 years, be declared dead and her widow may be given pension as per rules.

All courts below directed Union of India to pay pension to widow as per rules.

They rejected the theory of Army that the man had deserted.

Supreme Court dismissed case of Union of India.

Some of the queries put to Senior Counsel by Supreme Court were:-

1) Why the Mighty Union of India is fighting so much against a rustic widow?

2) If the man was deserter, was it not duty of Mighty Union of India to prove to courts bellow that he was alive somewhere ?

At last, finally, the rustic poor woman succeeded in getting justice as per law. 

I do not know how this poor woman may be surviving all these years, while fighting legal case.. I am sure a lot of lawyers may have worked without fees to fight her case...  

The lawyers do make some money. But there are many many lawyers in India who consider it their duty to help poor litigants. 

Haresh Raichura
13/07/2014

New Rights of An Online Editor to Delete any Web Article from Any Online Publication

Laws are changing very fast. Indian Supreme Court said in a 2013 ruling that time has come to held Editor responsible for every item published.

And in the same year, in a US Court it was argued that the Fact that the offending material was Deleted from website at earliest or as soon as it was noticed, is a relevant and mitigating circumstances in trials of offences of online publication.

The online publications are quick and fast.

There is a need and an urge to publish news/article within seconds.

Sometimes, passwords are shared with columnist/authors and they can publish material on Editor's website directly.

Then all that an editor can do is to remove the offending material as soon as it comes to its notice.

There is No Law that before deleting an article an editor had to ask author.

The Deletion is as fast as posting of an article.

In print publications laws are different because "Deleting An Article after publishing" is not possible. There, all that an editor can do is to publish an apology next day. And there is ample time to seek author's view before publishing apology.

The laws in this area are changing very fast.

Haresh Raichura
12/07/14

"Judiciary is our Mother. We should serve her as Mother." - said a former Supreme Court Judge, Justice V. S. Sirpurkar in...

That day he was retiring as a Judge of Supreme Court of India. In a farewell function arranged by Supreme Court Bar Association, the Judge was giving his advice, particularly for younger generation of lawyers.

He was from a family of lawyers. The family had high regards towards judiciary.

He told younger generation of lawyers something like this:

"Judiciary is our mother. Treat her with reverence which we give to our mother. Serve those who are in need of justice. Try to help them in getting justice. But at all times, serve judiciary as your mother.

.. Money will come. Lots of money will come if you decide to serve Judiciary as mother. Do not let judiciary weaken."


This was his advice.

Earlier when he was a Chief Justice in a High Court, he had set up an inquiry committee which led to Impeachment Proceeding against a sitting High Court Judge, against whom some allegations were made. Later that Judge had to resign when addressing Parliament.

Justice Sirpurkar retired on 21.8.2011.

But I still remember his advice to members of Bar to treat Judiciary as Mother.

And hence, today I have written down this memoir for benefit of younger generation of Bar.

It is not as if we do not have Judges and Lawyers with high integrity.

The Bad Apples get all the publicity in newspapers and therefore people think low about judges and lawyers.


Haresh Raichura
12/07/2014

Uday U Lalit is one of the Best Choices made by Supreme Court Collegium- Here are few verifiable reasons

I am not a very prominent advocate of Supreme Court. But I am here since 1990.

I have seen rise of many hard working advocates in Supreme Court.

I have seen rise of Uday Lalit since his early years.

As an advocate on record, I used to engage him in many cases.

Many years ago, once, at 5.00 PM, I called at his residence for his appointment. I was told to call after some time as he was in Puja.. I remember this very vividly.

He is a God believeing man. And such people are hard to find nowadays.

Once he was appointed by Supreme Court to assist court in a case where a Former Prime Minister of India, had misappropriated a large chunk of prime govt land. He did his duty. Assisted Court. And Supreme Court ordered to take away land of this former Prime Minister and restored it back to Government.

When Supreme Court wishes to give someone heavy responsibility, it first checks him by assigning him such cases. These are the tests of Integrity and competence.

I have never seen him engaging in gossip or in loose talk with anyone in corridors of Supreme Court.

He did not chase cases. The cases used to chase him. He maintained an equal and sober distance from all.

Isolation and Discipline, both are essential for progress of an Individial.
I have seen these both qualities in him.

I believe that he is one of the best choices which Supreme Court Collegium System has made for Judgeship of Apex Court, since last many years.

Haresh Raichura
11/07/1014

Story of a judge which helped a lawyer to become a Supreme Court Judge.

When he was retiring as a Judge of Supreme Court of India, he told this story in a farewell function hosted by Supreme Court Bar Association.

He said that he was just an ordinary lawyer practising in a High Court.

But he was honest to the core of his heart. He was always candid and truthful.

One day, the High Court Collegium invited him to become a Judge. And he became a Judge of the High Court.

He was a little apprehensive at first. Many members of Bar were far more intelligent and far more knowledgable than him in law as well as in art of debating. He wondered how he would be able to cope with them.

He was now required to judge their cases and their arguments.. He had to first learn from them....and then he had to judge what was being argued before him.  It was a challanging task.

A senior lawyer of Bar came to his rescue.

He sent him an autobiography of a Judge. The book was flagged at a particular page which described a useful habit of this judge.

This Judge in autobiography, used to keep a placard on his desk in such a way that he could see it but others could not see it. On it, in big letters, it was written,

"You Fool! Keep Your Mouth Shut! 

Whenever this judge felt like interrupting any lawyer, the judge used to read this placard and used to restrain himself from interrupting arguing lawyer.

The lawyer who had now became a High Court judge, read this autobiography of judge and adopted his method.

He did not keep a placard on his desk. But he memorised this story.

Then whenever he felt like interrupting a lawyer, he used to restrain himself from saying anything by remembering this story.

This method soon helped him to become a wiser, more intelligent and more knowledgeable judge.

Later he was elevated as Judge of Supreme Court.

He told this lesson of his life in a speech to members of Supreme Court Bar Assiciation when he retired.

His name is Justice Phukan.

(Those who have read "48 Laws of Power" by Robert Greene must have read a chapter "Say Less Than Necessary". This is one of the 48 laws of Power to learn to keep one's mouth.)

Haresh Raichura
10/07/2014

Advice to Elderly living Home Alone "Never keep cash or jewellery overnight in house"- said an elderly retired High Court Judge

Late K.G.Shah, had served as judge of High Court of Gujarat and also at Bombay High Court.

After retirement, he had come to Delhi to practice as a Senior Advocate in Supreme Court.

He and his wife lived alone in my neighbourhood.

They were elderly couple. Aged about 70.

He once told me his cash-principles.

He said he never kept cash more than about Rs.1500/- over night in his house.

All fees were received by him by cheques.

If cash fee were paid, he made a point to ask his servant to deposit it in nearby ATM of his bank.

He did not keep cash over night at home..

As judge, he must have seen many cases were elderly couples, widows, widowers, living alone, are killed by servants for money.

Not keeping any cash at home is a good safety principle for elderly people living alone in their homes.

Haresh Raichura
09/07/2014

In all murder cases, judges have power to give life Imprisionment or Death...Some judges routinely give life Imprisionment ...-Brief Reasons

After recording a judgement that an accused is guilty of murder, a judge has to undertake a further step of deciding which punishment is to give be given... Life Imprisionnent or Death Sentence..?

Judge is required by law to pass one of these two punishments.

Judge is required to adjourn case for at least one day, and then to hear arguments on how much punishment is to be given..

Public prosecutor can argue that Death Sentence should be given.

Defence counsel can argue that this is not the rarest of rare case and therefore no Death Sentence should be given.

In many cases( In Acquittal Appeal hearings), sometimes, it is seen that after convicting, Judges avoid above hearing by saying "Since we awarding minimum punishment of Life Imprisionment, there is no need to hear accused on quantum of punishment" 

Above reasoning, deprives Public Prosecutor to argue that "This is a rarest of rare case and therefore death sentence should be given".

I have not come across any provision or reasoning in law which allows a judge to dispense with hearing regarding sentencing of a murder convict. However, it may be possible that such hearing may have been avoided to avoid technicalities. 

Haresh Raichura
09/07/2014

Do you know, after convicting a guilty person, why judge adjourns case for 2 days before saying how many years of jail?

The criminal process is in two parts:

1) A process to decide whether a person is guilty of crime or not...

2) If he/she is guilty, then for what offences he/she is guilty...

After deciding these two issues, one part of process is over.

******

Then second part of sentencing starts.

The law may prescribe that he/she may be sent to jail up to 10 Years for this crime.

Then how much years of jail should be given... ? Judge can say anything between 1 Day to 10 years...

In some cases, minimum punishment is also prescribed.. For example 3 months. Then, the judge cannot go below this limit except for special reasons to be recorded.

In some crimes, minimum punishment may be 5 years.

Then the judge cannot give punishment for less than 5 years unless there are special reasons to be recorded.

Therefore, after convicting a person, judge adjourns case for minimum 24 hours before giving exact number of years of jail

After one day or on such other date, judge hears arguments of public prosecutor as well as defence lawyer about how much jail should be given..

What are the circumstances for giving less punishment..

What are the circumstances to give highest permissible jail etc.. etc..

After hearing both sides, judge gives order about how many years in jail...

*****

Thus, the criminal law process is in two parts.

Haresh Raichura
07/07/2014

Undated Cheques given : Creditor fills up date : Cheques dishonoured : Now What ? NI Act will apply? Forgery?

The law of forgery is like this : If someone makes alteration in any valuable security or documents..with a view of getting monetary benefits... Then ...He commits crime of forgery...


A takes a loan from B.

A gives to B some cheques as security.. The dates in cheques is left blank...

----

After some time, A fails to pay back full loan. Though he has made some part payment.

B fills up date, deposits cheques in bank.

Cheques are dis honoured because of insufficient balance..

-------

A & B both go to lawyers

-------


1.........B files a case on A under Sec.138 of Negotiable Instrument Act...

2.........A files a case on B, alleging that B committed forgery by making alterations in undated cheques by putting date on in them...

---------

Both of them are prosecuting each other in criminal law... Both of them want each other to go to jail.....

Now what ?


Thinking......


How Judges will do justice in such cases ?


I am still thinking......

Haresh Raichura
07/07/2014

This is how normally judges give advice to parties in cases of husband-wife disputes - a brief note

Judges normally do not give advices to parties. Their job is to decide disputes.

However, in family disputes, they put aside case for a moment, and try to see if parties can settle their disputes and can start living without acrimony.

In Supreme Court, such cases come by way of Transfer Petitions or by custody of minor disputes or by other proceedings.

The advice of judges can be summarised as below:-

1) Legal battles take time. In the meantime, you both are losing your golden years of life. Why don't you once again sit face to face and try to resolve your differences?

2) The problems, usually reflect Ego Issues, Hurt emotions, Betrayals, Desire for share in property of husband, desire to recover all marriage expanses from other side, desire for taking revenge on wife because she file false 498a case against my parents, sisters, desire to not to pay even a single penny to wife etc etc. The list is long.

The judges say, laws are there and we will decide as per law, but there are long delays involved. You both may wear out your valuable years of life if you insist on determinations of rights as per law.

3) If there are children, they suffer for the battles of their parents. Some children are deprived of affection of father and some are deprived of affection of mother.

For the sake of these children also, judges always try to counsel parties and try to persuade them.

The Point

In family disputes, if at any stage, if any one party wants to make one more try to compromise and to resolve dispute amicably, the judges will immediately facilitate such efforts and will postpone decision.

Conclusion

If a dispute is pending in court since many years, and if it is a family matter, anyone party can file an application requesting help of court to facilitate meditation by directing both party to appear before a third party to try to resolve their dispute.

Most of Judges will probably help.

Haresh Raichura
07/07/2014

"Asking for bribe" is one crime. "Actually receiving bribe" is second crime. Both punishable

Under Prevention of Corruption Act, 1988, the crime of corruption is defined in different parts.

1)"Asking for bribe" by a public servant (Or on behalf of a public servant) is a crime. If the evidence of asking bribe is produced, the court can convict.

2) "Receiving bribe amount" by a public servant (Or on behalf of a public servant) is also a crime.

But even if there is no evidence of "Taking or Receiving Bribe", the conviction can be made by court if "Demand" is proved.

Haresh Raichura
06/07/2014

How we failed to protect "Small sparrows living in urban houses"- a memoir

In childhood, whenever we cut nails, we were told to remember to pass small pieces of nails into drainage so that small sparrows do not eat them by mistakes.

We were told that if a sparrow eats small pieces of nail, assuming them to be rice flakes, it dies.

Now the world has changed. Mobile tower radiations is there. Then new flats are built in such a way that there are no places for sparrows to build nests.

In earlier time, people used to build bird-towers in middle of village. Food grains and water were regularly kept in bird-towers.

Now the people have changed. The birds have left urban houses. However some birds like doves are still seen.

But otherwise, there is "No Entry for Birds" in new houses.

Haresh Raichura
06/07/2014

About powers of Supreme Court to direct Speaker to dissolve Delhi Assembly & to order fresh polls - Brief View

The question is now before Constitution Judge Bench of Judges of Supreme Court.
But since I am not a counsel for any party in this case, I think it is not improper for me to discuss this question on my blog for academic purpose.

Unlimited Powers of Supreme Court

Sky is the limit to powers of Supreme Court to do justice to parties.. said one SC judgement.

But the Supreme Court does exercise restraint all the time and uses is powers as per established norms.

But Constitution has indeed placed all the residual powers in Supreme Court to decide things for which no norms are provided and....if it is necessary to do something.

When Supreme Court will say that it has no jurisdiction

If Right to "Do" or "Not to Do" something is given to some authority, then it will say that it has no jurisdiction, you go to that authority.

About power of Governors and Presidents to call largest party to form Govt

At one time, it was thought that Courts have no powers in this area. But in some cases, situations arose and Supreme Court has laid down certain "Do" and "Don'ts" regarding Process

But here in Delhi Assembly Case, this stage is already passed.

The Government was formed. And Chief Minister resigned without recommending dissolution of assembly... Now up to what time Governor can withhold his own decision to dissolve assembly and to call for next election?

That is a new question.

About Supreme Court's Power to Direct Speaker to dissolve assembly

A) Normally, while giving resignation, a Chief Minister has power to recommend dissolution of Assembly. And Governor is bound by it.

B) Here, Chief Minister resigns but he does not give any recommendations for dissolution of Assembly. It means, he had hope that someone else will form government.

C) Here the The Concept of Reasonable Time comes into play....

Law says that when something is to be done, but no time limit is prescribed, then it has to be done within reasonable time

If the Governor does not decide within Reasonable Time, Supreme Court has power to direct it to do it in a reasonable time.

But what is Reasonable Time?

This is question of fact in all cases. In this case it is not that Majority Member of Legislative Assembly want dissolution of Assembly

If majority MLAs really want dissolution, they can form Government, call a session of Assembly and can Impeach and remove Governor and can also pass recommendations to dissolve assembly

Here, situation is contra- Majority of Members of Assembly do not want re-election. They want to form Government and they want to wait for some time so that wisdom can come to them so that they can gather required number.

CONCLUSION

But how much time they can take? They cannot go on like this for whole of five years. They have to take decisions in reasonable time, or the Supreme Court can direct them to do in a reasonable time and it can lay down parameter for such future situations.

In reasonable time, MLAs and Governor, all have to take decision :To form Govt or to Go to election. They cannot keep standing in middle of road for too long. 

This is as I understand the law.

Haresh Raichura
06/07/2014
This views are my personal and this is not a legal opinion. Many experts can have different views.

SC judge to Counsel,"Pay attention also to matters where you are paid."

A day in Supreme Court.

The counsel had a great reputation in eyes of the judge.

Because the counsel was devoting a lot of time to social service and was giving free legal services to many needy.

But today, this was a case where he had received fees and yet he had not prepared his case well.

This invited criticism of Supreme Court Judge.

He said to counsel,"Pay attention also to matters where you are paid."

------

Herein, lies a great philosophy of life.

Pay attention also to things for which you are paid

All of us go through our life in accordance with our temperaments.

We pay more attentions to things we love to do.

But this automatically results in less time for doing things for which we are being paid salaries or fees.

The person who pays us salary or fees, have paid it for certain services we promised to him. He expects us to give some attention to his tasks also.

This is a Duty. Moral as well as Contractual.

We do have right to do what pleases us to do.

But we need to pay some attention to tasks for which we are paid.

We have some duty here.



Remember words of this judge.

Pay attention also to things for which you are paid


Haresh Raichura
05/07/14

Has Supreme Court Jurisdiction to direct Speaker to Appoint a Leader of Opposition? -a brief view

This question is one day going to be debated and contested in Supreme Court.

This not only affects Parliament, it affects all Legislative Assemblies in India.

Basic Structure Theory

The issue is whether Leader of Opposition is a part of Basic Structure of Constitution of India.

If it is part of Basic Structure, Supreme Court has jurisdiction to direct Speaker to appoint a Leader of Opposition even if there may not be any law.

The Basic Structure is defined as "Not Fixed".

The Supreme Court can keep adding new features to it as per necessity of time.

One argument can be, there should be a leader of opposition party for smooth functioning of democracy. And therefore, it should be considered a part of Basic Structure.

But India's experiences have shown that Leader of Opposition Party has inbuilt weaknesses and he can become cozy to Ruling Party..

This can harm instead of helping Democracy.

It is not very easy to say that if there is No Leader of opposition, democracy cannot function.

Therefore it is difficult to say that Leader of Opposition is a part of Basic Structure.

Therefore, it is difficult for court to give any direction to Speaker of House to appoint a Leader of Opposition unless some Law is there.

Haresh Raichura
05/07/2014

Difference between "Leader of Opposition" and "Leader of Largest Party in Opposition" - a brief view

Law is common sense at the end of the day.

In the meantime, there can be confusions because of not so well drafted laws.

In Democracy, Largest political party of elected representatives, gets rights to Rule.

Rest of the parties sit in opposition.

"Leader of Opposition" is one who has backing of majority of all the elected members sitting in opposition. If he has no such backing, he cannot be called "Leader of Opposition". This is common sense.

In opposition, there may be many parties. One of them may have largest elected numbers compared to all other parties sitting in opposition.

But that makes Leader of this party a "Leader of Largest Party Sitting in Opposition." He may not have backing of the rest of parties sitting in opposition.

Thus there are two different entities.

Haresh Raichura
05/07/2014

Two Lama On Eve of Retirement of Justice C. K. Prasad, Judge, Supreme Court of India (13/07/14)

Two Lama On Eve of Retirement of Justice C. K. Prasad, Judge, Supreme Court of India (13/07/14)








In the Mountains of Tibet

Younger Lama asked Elder Lama
"What can you say about contributions of Justice C K Prasad?"

"He underlined the principle that while writing judgements,
Supreme Court should also keep in mind
The audience which is going to read these judgements."
Replied Elder Lama

"On what basis you say so?"
Asked Younger Lama

"In Kasab's Judgement,
He wrote last para in judgement,
Specially for people in Pakistan
who may read this Judgement."
Replied Elder Lama


(2)

"What else did he underlined?"
Asked Younger Lama

"He underlined need to make Editors
Responsible for what is being printed or broadcasted

He quoted an antecedent about an Editor of The Scotsman,

A Scottish newspaper.

Editor was asked, 'How do you feel running a newspaper?'
The editor replied, 'Run a Newspaper! I run the whole country.'
2013(3)SCC 697 para 14

Citing this antecedent,
The Judge pointed out that there is need to make
Editors responsible"
Elder Lama replied

(3)

"How was he about granting adjournments to advocates?"
Asked Younger Lama

Elder Lama replied,
"All over world
Lawyers seek adjournments
mainly on three grounds

1) I do not want to lose this case. Hence adjournment.

2) I am not well prepared today. Hence adjournment.

3) Client has not paid agreed fees as yet. Hence adjournment.

The Judge will refuse adjournment on 1st ground.

On 2nd ground, the judge will first probe how much
This lawyer has actually prepared,
And then he may give him time to get prepared."
Elder Lama replied.

"And what about 3rd ground?"
Asked Younger Lama curiously

"To 3rd ground, judge will not reply,
He will just look the other way"
Replied Elder Lama

"What do you mean by phrase 'He will just look the other way'?
Asked Younger Lama probingly

Elder Lama did not reply.
He just looked the other way.

4)

"Do you seriously believe
That Law should reach to Editors?"
Asked Younger Lama

"There are 7 Press Laws under which
Editors are liable in law
But all these are dead letters of law
For some reasons or others.
And therfore,
Someone need to examine this issue.

Particularly about what is being published
In vernacular language newspapers."

Elder Lama replied.

Then a pregnant silence followed
Elder Lama wanted to say many things,
But he chose to say nothing further.



Haresh Raichura
04/07/2014

Unpredictability of listing and dates of cases in Supreme Court

Supreme Court does not follow an executive type Calendar. When a case is adjourned , the date of next hearing of case is unpredictable.

Because the listing of cases follows pressure of urgent and new cases coming up on each date. The total volume of cases cannot exceed certain limits. Therefore, the other cases listed on that dates get spilled over on next several days.

There is a saying that "If something is existing for many years, there must be some reasons behind it."

The present unpredictability of listing of cases in Supreme Court is there since about 20 or more years. So there must be some unavoidable reasons behind it.

The computer listing of cases has not solved this problem. Because the dates shown by computer are only tentative and are subject to change in last couple of days.

One can imagine problems faced by lawyers and litigants due to unpredictability of dates. But at present, no relief seems possible.

Perhaps some four layer listing of cases, where cases in layer 1 and Layer 2 should be listed on dates given in computer and cases in layer 2 & 3 can be made subject to pressure of cases.

I however, do not know if this is practical.

Haresh Raichura
4/7/2014

Three phases in Life :1) Receiving Mode 2) Adult Mode 3) Giving Mode.

These three phases are obvious.

1) We are born in "Receiving Mode". We start receiving things from parents, relatives, schools, teachers etc. We are receiving and collecting things.

2) Then we are grown up. We set goals and achieve goals.

3) Then comes, Giving it Back Mode. We feel that we have received so much from the world!
We no more feel hungry for more and more. Instead we feel like helping those who are hungry.

Here we are, nearer to spiritual mode. We become givers.

Haresh Raichura
3/7/2014

"As a Judge, I used to grant reliefs to Junior Advocates who dress well and wear ultra white bands"- said a retired HC Judge

The former HIgh Court Judge, now a Senior Advocate in Supreme Court was trying to impress on minds of some junior advocates, about importance of being well dressed in the legal profession.

He said in a lighter way,  "Being well dressed and being well mannered is the first condition of legal profession. An advocate is supposed to be well and neatly dressed all the time."

This tradition is now today being neglected. Few advocates are conscious about remaining well dressed all the time.

The lawyer's uniform requires wearing a white band. It must be clean and crisp.

The Judge said in a humorous and lighter way, he used to immediately grant discretionary orders to advocates who wore spotless white bands...

The point is very small... But it will helps in long way to junior advocates who can accept this idea.

To be well dressed all the time require "Mindfulness".

Mindfulness helps a lawyer in many way.

A mindful lawyer is bound be mindful in his preparation of cases and arguments also. And hence good orders from judges.

The idea is worth considering by those who are new in legal profession or who are preparing to enter in legal profession.

Haresh Raichura
3/7/2014

Two persons last seen togather. One found dead. Burden on another to prove him innocent. #Law

In legal language, this rule is called Rule of Last seen togather.

This rule is applied in many crimes where a dead body is found but there are no eye witnesses to tell how crime has happened.

Police will first try to locate the person with whom deceased was last seen.

Once such person is located, this person is thoroughly investigated in police custody.

If he fails to give satisfactory account of what happened after they were last seen togather, he can be produced in court as an accused.

The court will then examine a long series of circumstances before applying this Rule of Last Seen Together and before convicting him.

The point is: Court places burden on accused to explain his suspicious movement.

Haresh Raichura
2/7/2014

What is value of "Post Mortem" report in Court? - it just an opinion by one doctor which can be refuted by another doctor

Once, for a case, I searched in Web to find Guidelines by Indian Medical Association as to how Post-mortems are to be conducted by doctors.

But I could not find any guidelines.

Value of Postmortem Report in Court

It is just an opinion of a doctor who may have examined dead body of a victim. He may have written down details in a format... But it is still an personal opinion.

Another Doctor can always come in witness box to refute opinion given by Doctor who conducted post Mortem report.

What I am trying to say is this:

1) There is no Form of Post Mortem Report prescribed in Criminal Procedure Code.

2) There is no provision in Indian Evidence Act that whatever is said by a doctor or doctors in postmortem report shall be final.

3) Every item in a postmortem report is subject counter evidence by other doctors.

4) Postmortem report is just a personal opinion of one doctor.

Haresh Raichura
2/7/2014

Supreme Court's recent guidelines for speed disposal of cheque dishonour cases

On 21/4/2014, Supreme Court issued various directions for speedy disposal of cheque dishonour cases.

These directions came in a PIL No. Writ Petition No. 18 of 20013 filed by Bankers.

Those who may be interested may search this judgement of official website of Supreme Court.

Haresh Raichura
2/7/2014

SC: Banks, while auctioning property of borrowers, must strictly follow rules, otherwise such sales can be cancelled

A person who is unable to pay bank loans is in very precarious situation.

Bank gets power to auction and sale away his mortgaged properties against his will.

The borrower often complains that their property was valued more than Rs.1,00,000,00/- but bank put lesser value and sold away property for Rs 10,000,00/- in collusion with auction purchasers.

Such things can happen. And therefore there are rules

1) That bank should get property evaluated by independant agency before auctioning it.

2) That 30 days notice should be given to borrower.

If such rules are not followed, the court may cancel such sales.

For more reference :- please check judgement dated 22/4/2014 in Civil Appeal No. Civil Appeal No. 4679 of 2014

The judgement can be searched on official website of Supreme Court of India

Haresh Raichura
2/7/2014

Consciousness is the magic door through which we see the world

For an unconscious body, this world does not exist. The Universe does not exist.

The moment we become conscious, the world appears. We see parents, then relatives, then friends, then the world and its big buildings.

The consciousness is the Magic Door through which we enter in the world.

What is the stuff from which consciousness is made?

What are the basic laws governing conscious?

How consciousness of human beings is different than the consciousness of animal?

How do we measure consciousness?

I think there is little definitive progress of science in this area.

You are reading this blog it is because you are conscious.

Neville Goddard in his book "Feeling is the Secret" says,

"As in consciousness, so on earth".

See if you can design your own consciousness.

If you can change your conscious thoughts, you may see corresponding changes in the world around you.

Haresh Raichura
1/7/2014