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GREATER THE POWER HIGHER THE RESPONSIBILITY – UNJUST AND IN-APPROPRIATE USE OF CONTEMPT PROCEEDINGS IS ABUSE OF PROCESS OF COURT 2011 SC

noreply@blogger.com (Sridhara Babu) — Sat, 12 Nov 2011 06:06:28 PST

Justice H.L. DATTU and Justice CHANDRAMAULI KR. PRASAD in H.G. RANGANGOUD vs STC of India ltd and ors Decided on 11-11-2011, “It is to secure public respect and confidence in the judicial process. Rule of law is the basic rule of governance of any civilized democratic polity. It is only through the courts that rule of law unfolds its contours and establishes its concept. For the judiciary to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task, constitutional courts have been given the power to punish for contempt, but greater the power; higher the responsibility………….Fair reporting of court proceedings and fair comments on the legal issues do not amount to contempt………It is criminal contempt to voice opinion on a case pending in court as that would seem to influence the outcome of the matter and to prejudice the parties therein…………………………..Any attempt to influence the outcome of the matter pending before the court to prejudice the parties therein may prejudice or interfere with the due course of any judicial proceeding but in our opinion, mere filing of the representation and making recommendation thereon in no way prejudices or interferes or tends to interfere with the due course of any judicial proceeding.”

JUDICIAL DISCRETION SHOULD BE EXCERCISED ACCORDING TO RULES OF REASON AND JUSTICE 2011 SC

noreply@blogger.com (Sridhara Babu) — Sat, 05 Nov 2011 09:40:03 PDT

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JUSTICE ASOK KUMAR GANGULY ans JUSTICE GYAN SUDHA MISRA in a case of Poonam & others vs Harish Kumar and another, Decided on 03-11-2011, Observed that It is well settled that judicial discretion shall always be exercised “according to the rules of reason and justice and not according to private opinion.

GIVING OF REASONS IN SUPPORT OF CONCLUSIONS BY JUDICIAL AND QUASI-JUDICIAL AUTHORITIES, WHEN EXERCISING INITIAL JURISDICTION IS ESSENTIAL - AIR 1973 SC 2758

noreply@blogger.com (Sridhara Babu) — Sat, 29 Oct 2011 21:57:36 PDT

Justice DWIVEDI, S.N. Justice REDDY, P. JAGANMOHAN in Woolcombers Of India Ltd vs Woolcombers Workers Union - AIR 1973 SC 2758

“The judicial and quasi-judicial authorities when exercising initial jurisdiction should give their reasons in support of their conclusions because of the following reasons :

(a) It is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions.

(b) It is a well known principle that justice should not only be done but should also appear to have been done. In a sense, the conclusions may be just, but they may not appear to be just to those who read them; and

(c) That from an appeal to this Court under Art. 136, if the lower courts do not give reasons for their conclusions, it will be of little assistance to this Court to come to a correct decision. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. In many cases, this investment of time and industry will be saved if reasons are given in support of the conclusions.”

Justice BHAGWATI, P.N., Justice GUPTA, A.C., Justice FAZALALI, SYED MURTAZA in Siemens Engineering & ... vs Union Of India & Anr AIR 1976 SC 1785. “If courts of law were to be replaced by administrative authorities and tribunals and with the proliferation of administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. The rule requiring reasons to be given in support of an order is like the principal of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.”

Per Chandrachud, CJ. V.D. Tulzapurkar, R.S. Pathak & D.P. Madon JJ. - M.P. Thakkar,J. dissenting in Union of India and Anr. v. Tulsiram Patel, AIR 1985 SC 1416. The principles of natural justice consist primarily of two main rules, namely, "nemo judex in cause sua" ("no man shall be a judge in his own cause") and "audi alteram partem" ("hear the other side"). The corollary deduced from the above two rules and particularly the audi alteram partem rule was "qui aliquid statuerit parte inaudita altera, adguum licet dixerit, haud aequum fecerit" ("he who shall decide anything without the other side having been heard, although he may have said what is right will not have done what is right" or as is now expressed "justice should not only be done but should manifestly be seen to be done"). These two rules and their corollary are neither new nor were they the discovery of English judges but were recognised in many civilizations and over many centuries. ………… The principles of natural justice apply both to quasi judicial as well as administrative inquiries entailing civil consequences. …… The principles of natural justice must be confined within their proper limits and not allowed to run wild. The concept of natural justice is a magnificant thorough bred on which this nation gallops forwards towards its proclaimed and destined goal of "JUSTICE, social, economic and political". This thoroughbred must not be allowed to turn into a wild and unruly house, carrering off were it lists, unsaddling its rider, and bursting into fields where the sign "no passaran" is put up.

IT IS THE DUTY OF COURT TO SAFEGAURD THE RIGHTS OF PARTIES BEFORE COURT

noreply@blogger.com (Sridhara Babu) — Sun, 25 Sep 2011 05:56:04 PDT

Justice Y B Rao, and Justice V G Gowda in a case before Karnataka High Court in V.S. Prasad vs H.L. Jayanarasimha And Others reported in ILR 2000 KAR 4335, 2001 (3) KarLJ 161 It is the duty of the Courts to perform duties and functions effectively and remain to its spirit with which they are entrusted with. When a party approaches a Court to safeguard his rights and Court passes an order in his favour and the other side violates the said order intentionally and deliberately, it is the duty of the Court to safeguard the rights of the parties before the Court. Justice P.B. Sawant, in case of Vinay Chandra Mishra, which reads as follows: "If the judiciary is to perform its duties and functions, effectively and remain to its spirit with which they are sacredly entrusted to it, the dignity and authority of Courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give away and with it will disappear the rule of law and the civilised life in the society". Therefore, there is a duty on the Court to safeguard the rights of complainant.

WHEN AND HOW TO ISSUE STATUS QUO ORDERS

noreply@blogger.com (Sridhara Babu) — Sun, 25 Sep 2011 05:42:47 PDT

Justice R Raveendran, & Justice in B Sangalad in a case before Karnataka High Court in N. Ramaiah vs Nagaraj S. And Another Reported in AIR 2001 Kant 395, ILR 2001 KAR 3466, 2001 (4) KarLJ 12 “An order of status quo is a specie of interim orders, when granted indiscriminately and without qualifications or conditions, leads to ambiguity, difficulties, and injustice. If Courts want to give interim relief, they should endeavour to give specific injunctive relief. If grant of order of 'status quo' is found to be the only appropriate relief, then Courts should indicate the nature of status quo, that is whether the status quo is in regard to possession, title, nature of property or some other aspect. Merely saying 'status quo' or 'status quo to be maintained' should be avoided. If in a suit for injunction, where plaintiff claims that he is in possession of the suit property and the defendant is attempting to interfere with his possession, and the defendant contends that he is in possession and petitioner was never in possession, if the Court merely directs status quo to be maintained by parties, without saying anything more, it Will cause confusion and in many cases even lead to breach of peace. On the basis of such order, the plaintiff would contend that he is in possession and he is entitled to continue in possession; and the defendant would contend that he is in possession and he is entitled to continue in possession. In such a case, if the Court wants to direct status quo, it should specify the context in which, or conditions subject to which, such status quo direction is issued.”

ADVOCATE SENT TO JAIL FOR USING VULGAR LANGUAGE AGAINST JUDGE

noreply@blogger.com (Sridhara Babu) — Sat, 17 Sep 2011 06:45:25 PDT

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Justice B.S. Chauhan, & Justice Swatanter Kumar Vishram Singh Raghubanshi Vs. State Of U.P. on 15 June, 2011 Advocate of 30 years standing sent to jail for three months for using foul language against lower judiciary. Quoted following words “The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. Liberty of free expression is not to be confounded or confused with license to make unfounded allegations against any institution, much less the Judiciary. A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the Institution of judiciary. An Advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable.

LAW IS A PRAGMATIC INSTRUMENT OF SOCIAL ORDER

noreply@blogger.com (Sridhara Babu) — Sun, 06 Feb 2011 09:26:06 PST

In Carew and Company Ltd. v. Union of India [(1975) 2 SCC 791], Justice Krishna Iyer, opined: "21. The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical widom when he observed "There is no surer way to misread a document than to read it literally.""

WHAT IS EXPECTED FROM A JUDGE

noreply@blogger.com (Sridhara Babu) — Thu, 03 Feb 2011 23:17:30 PST

On the aspect of sub-conscious mind, what Justice Frankfurter said for not participating in the decision of Public Utilities Commission of the District of Columbia, Capital Transit Company & Washington Transit Radio, Inc. v. Franklin S. Pollak & Guy Martin. [343 US 451], is quite enlightening. It reads:- "The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact."

MIS-BEHAVIOUR, MISCONDUCT AND ABUSE OF OFFICE BY CONSTITUTIONAL AUTHORITIES

noreply@blogger.com (Sridhara Babu) — Thu, 03 Feb 2011 06:40:56 PST

In Re.. vs Mehar Singh Saini,Chairman Hpsc & ... Decided on 12 November, 2010 by Supreme Court of India in exercising advisory jurisdiction over the reference made by President of India, seeking advice whether State Public Service Commission members can be removed over alleged illegalities and irregularities, Bench consisting of Justice : S Kapadia, K P Radhakrishnan, S Kumar, held in affirmative.

FACTS:- Several members and Chairman of HPSC was appointed by Haryana Govt just before election code of conduct. During their tenure, the Commission had made selections and recommended candidates for appointment to various posts in different cadres of the State. Subsequently, it came to the notice of the Government that various irregularities and illegalities, such as acts of favouritism, discrimination and violation of rules/regulations had been committed by the Commission in the process of selection made by them. After conducting preliminary enquiries, the Government claims to have initiated vigilance enquiries as well as First Information Reports were registered for the alleged irregularities, illegalities and acts of commissions and omissions by the Chairman and Members of the Commission. This resulted in the Chief Secretary, Government of Haryana, writing a letter dated 18th December, 2006, to the Secretary to the Governor of Haryana, requesting him to refer the matter to the President of India at the earliest for removal of the Chairman and Members of the Commission in terms of Article 317(1) of the Constitution of India. It was averred that the Chairman and Members of the Commission were guilty of misbehaviour, as mentioned under Article 317(1) of the Constitution. It was also averred that they do not possess requisite qualification, experience and had been appointed to the coveted offices only to achieve political ends. In this letter, detailed facts were given about the qualifications, experience and credentials of the Chairman and Members of the Commission with definite emphasis on the fact that they had made appointments contrary to the rules and with favouritism. Their conduct in making selection to different posts was an exercise in subversion of the constitutional protections rather than sub-serving, the interest of the Constitution. After receiving this Reference, the Governor of Haryana, vide letter dated 16th January, 2007, forwarded it to the President of India with supporting documents and records for consideration. The President, after examining the records, referred the matter to this Court under Article 317(1) of the Constitution for inquiry and report, as to whether the existing Chairman and Members of the Commission ought to be removed from the office on the alleged grounds of misbehaviour.

ALLEGATIONS & CHARGES ELICITED IN JUDGEMENT

Government of Haryana it appears that there were serious irregularities in the appointments made to the posts of Chairman and Members of the Haryana Public Service Commission, which were made without due regard to their qualifications, experience, status and accomplishments, required for appointment to the said constitutional posts.

….. One selection committee chairman, Recommended the name of …… one candidate….. for the post of Drug Inspector on the basis of a bogus certificate for which an investigation was conducted by the State Vigilance Bureau, Chandigarh and subsequently an FIR was registered against these persons for various offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 and for which these persons were arrested and challan has already been filed in the Trial Court.

Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission.

Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission.

However, it is the case of the Government and the investigating agencies that the Commission did not cooperate at all and the records, despite repeated demands, had not been handed over to them. As a result of non- cooperation by the Chairman and Members of the Commission, proceedings in the Court were initiated in which, ultimately, the High Court of Punjab and Haryana in Haryana Public Service Commission v. State of Haryana (Writ Petition no.12593 of 2005) [(2005)141 PLR 486], passed an order dated 12th August, 2005 making certain observations against the conduct of the Commission, its Chairman and Members.

That Shri Mehar Singh Saini is a beneficiary of favouritism and nepotism in the matter of his appointment as Chairman of the Haryana Public Service Commission. His qualifications, experience, status and accomplishments namely that of a private practitioner in Ayurveda (BAMS), were not of the stature required for appointment to the Constitutional position of Chairman of the Haryana Public Service Commission. His appointment, after obtaining resignation of then Chairman, was with a view to ensuring that he would further the objectives of the political party then in power. By, thus, conniving in the subversion of the constitution, he is guilty of misbehaviour under Article 317(1) of the Constitution.

That the malicious acts of influencing his subordinates to carry out intended manipulations to favour desired persons in selections and endorsement of such illegal selections as member of the Commission by Sh. Mehar Singh Saini constitute an act of grave misbehaviour warranting invocation of Article 317(1) of the Constitution of India for his removal.

That Sh. Mehar Singh Saini abused his public office and showed his dubious act and conduct by defending the above mentioned patently illegal acts which constitute an act of grave misbehavior warranting invocation of Article 317(1) of the Constitution of India for his removal.

…..Wrongly and unlawfully decided to file a written reply on behalf of the Haryana Public Service Commission to the inspection reports………., attempting to justify the illegalities regarding the manipulations, interpolations and forgeries committed during the selection process of Haryana Civil Services (Executive & Allied), which was finalized by the Commission in 2002.

…..Had taken a decision not to hand over the record to the investigating agency on the pretext that the State Public Service Commission, being a constitutional authority, enjoys a distinct status, despite the fact that the Hon'ble Punjab and Haryana High Court and Hon'ble Apex Court were pleased to direct the Commission to co-operate with the investigating agency. This deliberate act on their part clearly amounts to misbehaviour as envisaged under Article 317(1) of the Constitution of India for their removal."

It is the case of the State Government that after noticing the irregularities and favouritism on a mass scale and on suspicion of serious charges of corruption against the Chairman and Members of the Commission, the Governor of Haryana had passed an order dated 9th August, 2008 suspending the Chairman and the Members of the Commission. The validity and legality of this order of suspension was questioned by the affected Chairman and Members of the Commission by filing a petition under Article 32 of the Constitution before this Court, which came to be dismissed by a detailed order dated 7th August, 2009 reported as Ram Kumar Kashyap v. Union of India [(2009) 9 SCC 378]. The relevant extract of the order reads as under: "16. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Hon'ble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed. The writ petitions are dismissed."

OPPONENT’S CONTENTIONS :-

Court has to conduct its inquiry and record its finding in the report only in relation to the articles of charge referred to by the President in exercise of its powers under Article 317(1). Thus, this Court has no jurisdiction to go into the merit or otherwise of the said additional articles of charge. It is his submission that it is not an omnibus Reference. Further, it is argued that there is no evidence on record to substantiate any of the approved articles of charge, even if it is assumed for the sake of argument that the Court can examine all the approved articles of charge. Thus, it is stated that the Presidential Reference to this Court is ex facie a case of no evidence but political vendetta alone. It was also contended that the entire evidence produced in respect of the allegations has not been tendered in accordance with law. A police officer cannot prove the allegations merely by filing an affidavit. Thus, it is no evidence in the eye of law. In regard to charge , relating to qualification and status of the Chairman and Members of the Commission, it is argued that this approved article of charge itself suffers from infirmity of non-application of mind as no qualification or status has been prescribed under Article 316 of the Constitution for such appointment.

COURT OPINION AND QUOTED CITATIONS

In law, it may not be possible to examine charges which are entirely independent and unconnected with all or any of the articles of charge stated in the Presidential Reference. There has to be some link or inter-connection between the articles of charge subsequently suggested before this Court and the original articles of charge referred by the President. The question of any prejudice to the delinquent will not arise inasmuch as the concerned party is given full opportunity to challenge the articles of charge as well as the evidence led in support of charges by the Government, during the process of inquiry before this Court. A plain reading of these Rules (Supreme Court has framed the following rules under Part VI, Order XXXVIII of Supreme Court Rules, 1966 for conducting inquiry under Article 317(1) of the Constitution) clearly shows that no detailed procedure has been provided so far, as to how and in what manner the inquiry shall be conducted and what shall be the scope of the inquiry and the manner in which the evidence shall be recorded. In other words, it has been left to the discretion of this Court to follow a procedure which is in consonance with the language of Article 317(1), read with the above Rules and principles of natural justice.

In the Matter of Reference under Article 317(1) of the Constitution of India [(1983) 4 SCC 258] this Court, while dealing with this aspect, clearly stated that the Court can appoint any officer of the Court, or direct an Additional/Sessions Judge or any other Judge, to record evidence. Evidence, as far as practicable, has to be recorded in accordance with the provisions of the Indian Evidence Act, 1872 and by way of filing affidavit, wherever directed, in view of the provisions of Order XIX of the Code of Civil Procedure, 1908. After recording of evidence, the matter is to be placed before the Court for regular hearing upon which, the Court is expected to make a report of its findings on the misbehaviour of the Chairman/Members of the Commission.

We may usefully refer to a recent judgment of this Court In Re: Smt. Sayalee Sanjeev Joshi [(2007) 11 SCC 547]. In this case the President had made a Reference under Article 317(1) of the Constitution relating to various aspects of misbehaviour alleged to have been committed by Smt. Joshi, Member of the Maharashtra Public Service Commission. The preliminary steps were completed under the directions of this Court and after issue of notice, the Court requested the Attorney General for India to scrutinize the materials. Originally 22 charges were proposed, then they were reduced to 6 charges and finally Charges 3 & 6 were dropped as they were not strictly within the purview of the Presidential Reference and related to conduct entirely subsequent to and independent of the misbehaviour complained of. Thus, the charges were framed/approved by the Court vide order dated 5th October, 2005 in Reference No. 1 of 2004. The evidence was led by the parties and Smt. Joshi's conduct was found to be misbehaviour of the kind which would justify her removal from the office.

This Court, in the case of Supreme Court Advocate-on-Record Association v. Union of India [(1993) 4 SCC 441], held that the Supreme Court being the highest Court of the land, its vitality is a national imperative. The primary institutional task of this Court is to clearly understand the true message that the Constitution intends to convey; second, to assert the original meaning in that message in the light of the constitutional provisions; and third, to pronounce what the law is, in harmony with meaningful purpose, original intent and true spirit of the Constitution. As a result of the above discussion, we are of the considered opinion that the inquiry proceedings before the Supreme Court cannot be circumscribed by the Presidential Reference under Article 317(1) of the Constitution stricto sensu that too to the extent that the Court cannot examine any additional facts/subsequent events having a direct bearing, additional or supplementary articles of charge which are explanatory or intrinsically related with the charges specified in the Presidential Reference.

SERVICE JURISPRUDENCE IS NOT APPLICABLE HERE:- The proceedings prima impressionis may appear akin to the service jurisprudence as commonly understood. The basic requirements for the applicability of service jurisprudence are relationship of employer and employee, alleged misconduct being in breach of the rules/regulations controlling the conditions of service of such an employee and such charges then are to be proved in accordance with the specified procedure for imposition of minor and major penalties. The departmental proceedings have to be conducted in accordance with the specified rules and regulations. The concept of departmental enquiry under the service jurisprudence cannot be equated with the proceedings in an inquiry under Article 317(1) of the Constitution. This distinction is a marked one. Keeping in mind the constitutional protections available to the Chairman and Members of the Commission, the stature they enjoy and the duties that they are expected to perform, the principles of service jurisprudence cannot be strictly applied to these proceedings. As already noticed, the power to remove the Chairman/Member of the Commission is exclusively vested in the President and not even in their appointing authority. The appointments to the State Commissions are made by the Governor but still in the wisdom of the framers of the Constitution, the power to remove them from office has not been vested in the Governor. This reflects the kind of autonomy that the framers of the Constitution bestowed on the Chairman/Member(s) of the Commission to ensure proper and fair performance of the functions of the Commission. The Chairman and Members of the Commission are not Government servants, as commonly understood, though they may be holding a public office. The standard of burden of proof as postulated under service jurisprudence may, to some extent, be applicable to these proceedings. Principles of service jurisprudence may not be strictly applicable to the inquiry proceedings under Article 317(1) of the Constitution. Inter alia, it is for the reason that being constitutional body, the Chairman and Members of the Commission are to maintain much higher standards of performance and behaviour than the civil servants appointed to the state services.

CRIMINAL JURISPRUDENCE IS ALSO NOT APPLICABLE HERE:- The next limb of the same argument is with regard to applicability of principles of criminal jurisprudence to the present proceedings in regard to opportunity of being heard, burden of proof and content of charges. The principles of criminal jurisprudence contemplate different standards of proof, language of charge and protections available to a suspect/accused. It is neither practicable nor possible to apply the norms of criminal law to the proceedings under Article 317(1) of the Constitution of India. In criminal law, the charge should be proved beyond reasonable doubt and an accused cannot be convicted on the basis of probability. Under the service jurisprudence, a person may be found guilty even on the charge being proved on the basis of preponderance of probabilities while in the proceedings of the present kind, conduct of a person may amount to misbehaviour requiring his removal under Article 317(1) of the Constitution on the basis of rule of reasonable preponderance of probabilities. This distinction is fully justified with reference to the constitutional scheme behind these provisions and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before this Court are neither akin to proceedings under service law nor criminal law. In fact, they are sui generis.

DROPPED CHARGES:- The alleged malicious acts of influencing the subordinates to carry out the intended manipulations to favour desired persons and abuse of the public office and defending the illegal acts referred to in approved article 6 of the charges, therefore, cannot be gone into by this Court. We have already held that this Court can examine explanatory, incidental or intrinsically inter-connected charges to the charges mentioned in the Reference and in that respect can take note of additional facts, take evidence and examine the entire record before it. But where the charges, apparently and in substance, are new and do not appear to be justifiable on the basis of the record and there is no direct evidence to substantiate them, it may not be in the ends of justice that this Court should examine those articles of charge in the present inquiry.

WHAT IS MISBEHAVIOUR AND MISCONDUCT:- In Article 124(4) "misbehaviour" means wrong conduct or improper conduct. It has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or the statute under consideration. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct implies a creation of some degree or mens rea by the doer. Willful abuse of constitutional office, willful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform duties or willful abuse of the office would be misbehaviour…………….Needless to notice neither misbehaviour nor misconduct has been defined in the Constitution or even in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Once an expression has not been defined, then it must be understood and explained in its common parlance, keeping in view the object sought to be achieved.

In the case of R.P. Kapur v. S. Partap Singh Kairon [(1961) 63 Punj LR 780], the Court explained the term `misbehaviour' while dealing with the matter under the Public Servants (Inquiries) Act, 1850 and held that misbehaviour qua proceeding under that Act, in absence of definition, is a word of very wide import. `Misbehaviour', when employed in respect of holders of high offices, has a well understood and well defined meaning according to the tradition and standards maintained by the members of a particular service or office.

This Court had the occasion to deal with the expression misconduct in the case of Narotanmal Chouraria v. M. R. Murli [(2004) 5 SCC 689] wherein the Court referred to its earlier judgment in the case of State of Punjab v. Ram Singh Ex- Constable [(1992) 4 SCC 54] and referred to paragraph 6 of that judgment with approval and held in paragraph 10 and 11 of the judgment as under : "10... "6. Thus it could be seen that the word `misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."

This Court in the case of Union of India v. J. Ahmed [(1979) 2 SCC 286], while dealing with disciplinary proceedings, under the service law, explained the term `misconduct' to mean conduct not expected of a member of service, conduct in a manner inconsistent with due and faithful discharge of duties and service or gross or habitual negligence in performance of duties. `Proved misbehaviour' is an expression clearly distinguishable from the above terms of `misbehaviour' and `misconduct' as is apparent from the language of Article 124(4) of the Constitution. Intent, gravity and onus are of a much higher degree. The prefix `proved' places an obligation of actually proving the misbehaviour before the parliamentary procedure for removal of a Judge can come into play.

All these expressions fall under different domains of jurisdiction and operate in distinct and different fields. The distinction, primarily, is that of degree, intent and expected standard required to be maintained in relation to the office that the delinquent holds. Onus of proof and severity of misconduct will be relatable to the office one is holding. Misconduct may relate to graver acts, deeds and omissions while misbehaviour may relate to the standards expected to be maintained by the holder of the constitutional office. In other words, misbehaviour/misconduct could be used interchangeably in certain circumstances while in other they may have to be understood as clearly distinguishable. `Misbehaviour' may include behaviour that was not expected of the holder of the constitutional office but would not include `grave misconduct' or `proved misbehaviour'. This distinction has to be kept in mind by this Court where the constitutional mandate refers to `misbehaviour' which is an expression of very wide magnitude.

They occupy a unique place and position; utmost objectivity in the performance of their duties, integrity and detachment are essential requirements for holding these high constitutional offices. Similarly, in the case of Inderpreet Singh Kahlon v. State of Punjab [(2006) 11 SCC 356], this Court in exercise of its appellate jurisdiction was concerned with allegations against the Chairman of the Punjab Public Service Commission that in discharge of his duties, he had selected persons for extraneous as well as monetary considerations during 1996 to 2002. For such conduct and selections, FIRs had been registered in that behalf while the selection of the appointed candidates was also challenged. While dealing with these allegations, the Court held as under: "102. This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."

CHARGE 1 NOT PROVED:- In regard to approved article of charge 1, we find that there is hardly any direct oral or documentary evidence. While this charge relates to lack of qualification, experience and stature, the Governor's letter to the President states that these persons influenced the Government in making their appointments. Of course, it is expected that persons being appointed to such high office should not use any influence or pressure or take favour from the Government in power but at the same time that fault would have to be traced to the processing and the appointing authority rather than the candidate alone. ……. The constitutional provisions do not provide any qualification for Official/Non-official Members. It also does not provide any experience in any particular field or office for Non-official Members. In the case of an Official Member, it is nowhere spelt out as to which cadre in the official hierarchy, he should have experience of 10 years. In these circumstances, we find that the Government has failed to prove Charge 1 and we hold the respondents not guilty of any misbehaviour as contemplated under Article 317(1) on this count.

CHARGE 2 PROVED:- This charge has been framed against four of the nine private respondents. It is alleged that ………… as members of the Selection Committee recommended the name of Pradeep Sangwan for the post of Drug Inspector on the basis of bogus experience certificate. It was contended that selection ……….. was, thus, arbitrary and constituted misbehaviour under Article 317(1) of the Constitution. In regard to the irregularities committed, an FIR being …………. lodged; during investigation and on further inquiry by the State Vigilance Bureau, various documents have come to light which show that selection of Pradeep Sangwan was arbitrary and was made in a manner, which is not acceptable in law. Pradeep Sangwan did not possess the requisite essential qualifications and experience. A complaint against his selection was filed by one Rakesh Walia. Despite this, the candidate was not only selected but also recommended on the basis of the bogus experience certificate and subsequently appointed to the post of Drug Inspector by the State Government. The documents, which are on record and have been referred by the learned counsel in that behalf, are the application form and certificates submitted by the candidate, statements of witnesses including the witness from M/s. Zee Drugs, whose certificate was produced by the candidate for the purpose of satisfying the essential condition of experience before the Selection Committee.

DEFENCE RAISED ON THE CHARGE:- The counsel appearing for the Commission has not even attempted to deny these averments and the charge against these Members. However, on behalf of four private respondents, it is contended that it was not for the Members of the Selection Committee to verify the contents of the certificate. ………………….. It is also argued that if Pradeep Sangwan has obtained a bogus certificate then, at best, he can be said to have committed some offence and that cannot be understood as an instance of misbehaviour on the part of the private respondents. Further, the contention is that there is no evidence to support this charge. Discrepancies in date of filing of application, manipulation of date, withholding of original certificates by respondents from expert verification, non verification of records of candidate, and other documentary evidence As a result of documentary verification and discussion over it, Supreme court considered the charge in these words ”we are of the considered view that the conduct of the Members of the Commission, in processing the application of Pradeep Sangwan, endorsing and approving his name for the interview, selecting him and finally recommending his name for appointment to the post of Senior Drug Inspector, does not meet the standards of behaviour, integrity and rectitude required to be maintained by the office they were holding. Thus, their behaviour with respect to this article of charge would certainly fall within the ambit of misbehaviour justifying their removal from office.”

OTHER CHARGES HELD PROVED :- Approved articles of charge 3, 5, 8 and 9 pertaining to alleged acts, omissions and commissions amounting to misbehaviour have been framed against all the respondents in the present inquiry. However, article of charge 4 has been framed only against Mehar Singh Saini, respondent No.1, who was earlier Member and later appointed as Chairman of the Commission. These approved articles of charge can be dealt with together inasmuch as they are based on common allegations, common evidence and with reference to the same records produced by the State Government in support of the allegations. …….. The cumulative reading of these articles of charge shows that emphasis is on non-cooperation of the Chairman and Members of the Commission in not furnishing the records, when it was demanded by the investigating agencies. Further there has been an abuse of office of the Chairman and Members of the Commission by withholding the material records, passing resolutions contrary to law, filing incorrect replies in judicial proceedings and lastly the manipulation and interpolations in regard to answer sheets of the selected/non-selected candidates.

Points which emerge from these approved articles of charge :
a) Whether during their tenure as Chairman and Members of the Commission, the private respondents adopted a non- cooperative attitude and intentionally decided not to furnish relevant records to the concerned authorities/investigating agencies?
b) Whether the right of privilege in terms of Section 123 of the Indian Evidence Act, 1872 was available to the Commission acting through its Chairman and Members?
c) Whether non-furnishing of documents or records to the inquiring/investigating agencies, under the pretext that the Commission is a constitutional authority and thus not amenable to investigation, was a bona fide decision/resolution or it was an attempt to cover up the misdeeds, omissions and interpolations made in the process of selection?
Furthermore, if the records were made available to the agencies would it have exposed the misbehaviour of the private respondents?

REGARDING POINT OF LAW HIGH COURT OBSERVATIONS UP HELD:- High Court (in the same matter) had clearly held that claim of privilege for non- production of documents with reference to Sections 123 and 124 of the Evidence Act, 1972 was not sustainable or justified. The Court further held that there was sufficient material on record to justify the issuance of search warrant under Section 93(1)(a) of the Code of Criminal Procedure and held that the State had the right to get the records from the Commission for the purpose of investigation and on latter's failure, the provisions of Section 93 of the Code of Criminal Procedure were rightly invoked. It observed that the Commission is a constitutional authority and it would not be in the fitness of things that a search is conducted in its office, but such a situation has been created by it. Liberty was granted to the Commission to produce documents, records before the Investigating Officer, Inspector of Police, Vigilance (Ambala Range). Despite such unambiguous and clear directions of the Court, the Commission, acting through the private respondents failed to hand over the records but chose to prefer an SLP before this Court being SLP (Crl.) No. 3649 of 2008. This Court on 16th May, 2008, granted stay of the operation of the High Court's order. However, the matter continued to be pending for a considerable time before this Court and this SLP was ultimately withdrawn vide order dated 14th December, 2009. In the meanwhile, as already stated, four new Members had been appointed to the Commission in place of the Members whose term had expired. These newly nominated Members had taken a decision to hand over the record to the investigating agencies. Fact of the matter remains that for a very considerable time investigations were delayed and the guilty could not be brought to book. There was definite non-cooperation on the part of the private respondents.

It is not in dispute that the Government as well as the Commission had received various complaints in regard to the process of selection as well as the selections themselves, made by the Chairman and Members of the Commission to various appointments in the State services. ….. While dismissing the appeal this Court in Jitendra Kumar v. State of Haryana [(2008) 2 SCC 161] noticed the disturbing feature of non-cooperation by the Commission in the Vigilance Enquiries and held as under: "...we only hope and trust that a constitutional authority like the Commission should neither withhold any document nor refuse to cooperate with the State Vigilance Bureau in the matter of conduct of an inquiry. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned including the appellants herein to see that the inquiry should be completed at an early date."

CONCLUSION ON OTHER CHARGES:- We have no doubt in coming to the conclusion that the Chairman and Members of the Commission (private respondents herein) adopted a non-cooperative attitude and declined to furnish relevant records to the concerned authorities/investigating agencies. Furthermore, passing of resolutions and resistance despite directions/observations of the Court to comply with the notices issued by the investigating agencies to furnish records are acts which lack bona fides. The claim of privilege was sought to be invoked as a ploy to prevent production of records, which would have exposed the irregularities, illegalities and manipulations in the process of selection. In the name of the constitutional authority, the Chairman and Members of the Commission certainly violated the expected standards of behaviour. They not only adopted a non-cooperative attitude but also unduly delayed completion of the inquiry/investigations which, in fact, are stated to be pending at different stages even to this day.

ANSWERED IN AFFIRMATIVE:- Thus, there exist justifiable grounds for removal of the private respondents from their respective offices in terms of Article 317 (1) of the Constitution. In re, Dr. Ram Ashray Yadav, Chairman Bihar PSC [(2000) 4 SCC 309], this Court observed as follows: "1. Founding Fathers of the Indian Constitution relying upon the experience in other countries wherever democratic institutions exist, intended to secure an efficient civil service. This is the genesis for setting up autonomous and independent bodies like the Public Service Commission at the center and in the States. The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commissions and their role and functions."

WHAT IS SUBSTANTIAL QUESTION OF LAW

noreply@blogger.com (Sridhara Babu) — Wed, 02 Feb 2011 01:53:20 PST

IN THE SUPREME COURT OF INDIA, in case of Vijay Kumar Talwar vs Commnr. Of Income Tax, Delhi Decided on 6 December, 2010, Hon’ble Justice D.K. JAIN Justice T.K.Thakur quoted following citations to explain “Substantial question of law”.

In Sir Chunilal V. Mehta & Sons, Ltd. Vs. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314, a Constitution Bench of this Court, while explaining the import of the said expression, observed that: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

Similarly, in Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179 a three judge Bench of this Court observed that: "A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

In Hero Vinoth (Minor) Vs. Seshammal (2006) 5 SCC 545 , this Court has observed that:"The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

ADVOCATES RESOLUTION THAT NONE OF ITS MEMBERS WILL APPEAR FOR A PARTICULAR ACCUSED IS ILLEGAL SAYS SUPREME COURT

noreply@blogger.com (Sridhara Babu) — Wed, 02 Feb 2011 05:44:11 PST

IN THE SUPREME COURT OF INDIA Judgement in A.S.Mohammed Rafi vs State Of Tamilnadu Rep.By Home ... Decided on 6 December, 2010 The Hon’ble Justice Markandey Katju & Justice Gyan Sudha Misra said “Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they will not defend a particular person or persons in a particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case. In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”

When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet `The Rights of Man' in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today :"From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel"
Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A. trials in the Red Fort at Delhi (November 1945 - May 1946).

Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

The following words of the fictional American lawyer Atticus Finch will ring throughout in history : "Courage is not a man with a gun in his hand. It is knowing you are licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do."

AN EFFORT BE MADE TO SETTLE DISPUTES BY MEDIATION AS CHERISHED BY MAHATHMA GANDHI SAYS JUSTICE MARKANDEY KATJU and JUSTICE GYAN SUDHA MISRA

noreply@blogger.com (Sridhara Babu) — Tue, 01 Feb 2011 18:18:50 PST

IN THE SUPREME COURT OF INDIA IN CASE OF B.S.Krishna Murthy & Anr. vs B.S.Nagaraj & Ors. on 14 January, 2011, a case between brothers, Supreme court JUSTICE MARKANDEY KATJU and JUSTICE GYAN SUDHA MISRA counseled litigant brothers to go in for mediation with the following notable quotes in order:- This is a dispute between brothers. In our opinion, an effort should be made to resolve the dispute between the parties by mediation. ….. In our opinion, the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships, like family relationships, business relationships, are involved, otherwise, the litigation drags on for years and decades often ruining both the parties.

Hence, the lawyers as well as litigants should follow Mahatma Gandhi's advice in the matter and try for arbitration/mediation. This is also the purpose of Section 89 of the Code of Civil Procedure.

In this connection, we would like to quote the following passages from Mahatma Gandhi's book 'My Experiments with Truth' :- "I saw that the facts of Dada Abdulla's case made it a very strong indeed, and that the law was bound to be on his side. But I also saw that the litigation, if it were persisted in, would ruin the plaintiff and the defendant, who were relatives and both belonged to the same city. No one knew how long the case might go on. Should it be allowed to continue to be fought out in court, it might go on indefinitely and to no advantage of either party. Both, therefore, desired an immediate termination of the case, if possible. I approached Tyeb Sheth and requested and advised him to go to arbitration. I recommended him to see his counsel. I suggested to him that if an arbitrator commanding the confidence of both parties could be appointed, the case would be quickly finished. The lawyers' fees were so rapidly mounting up that they were enough to devour all the resources of the clients, big merchants as they were. The case occupied so much of their attention that they had no time left for any other work. In the meantime mutual ill-will was steadily increasing. I became disgusted with the profession. As lawyers the counsel on both sides were bound to rake up points of law in support of their own clients. I also saw for the first time that the winning party never recovers all the costs incurred. Under the Court Fees Regulation there was a fixed scale of costs to be allowed as between party and party, the actual costs as between attorney and client being very much higher. This was more than I could bear. I felt that my duty was to befriend both parties and bring them together. I strained every nerve to bring about a compromise. At last Tyeb Sheth agreed. An arbitrator was appointed, the case was argued before him, and Dada Abdulla won. But that did not satisfy me. If my client were to seek immediate execution of the award, it would be impossible for Tyeb Sheth to meet the whole of the awarded amount, and there was an unwritten law among the Porbandar Memons living in South Africa that death should be preferred to bankruptcy. It was impossible for Tyeb Sheth to pay down the whole sum of about # 37,000 and costs. He meant to pay not a pie less than the amount, and he did not want to be declared bankrupt. There was only one way. Dada Abdulla should allow him to pay in moderate installments. He was equal to the occasion, and granted Tyeb Sheth installments spread over a very long period. It was more difficult for me to secure the concession of payment by instalments than to get the parties to agree to arbitration. But both were happy over the result, and both rose in the public estimation. My joy was boundless. I had learnt the the practice of law. I had learnt to find out the better side of human nature and to enter men's hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby-not even money, certainly not my soul."

BAR AND BENCH RELATIONSHIP: ADVOCATE SHALL NOT INDULGE IN SCANDALISING JUDICIARY

noreply@blogger.com (Sridhara Babu) — Wed, 02 Feb 2011 05:35:02 PST

In a case before Supreme Court of India, M.B. Sanghi, Advocate vs High Court Of Punjab And Haryana ... Decided on 31 July, 1991 by the Bench Consisting of AHMADI, A.M. (J) & AGRAWAL, S.C. (J) Reported in AIR 1991 SC 1834:- Unable to secure an ad-interim stay in favour of his client, the appellant, a practising Advocate, uttered cer- tain words imputing motives to the Sub-Judge in refusing to grant the stay. The sub-Judge submitted a report to the District and Sessions Judge setting out the words uttered by the appellant, for taking necessary action against him. The District and Sessions Judge in turn submitted a report to the High Court, and proceedings for contempt were initiated by the High Court. The Supreme court held that “The appellant had made an attack on the learned Subordinate Judge which was disparaging in character and derogatory to his dignity and would vitally shake the confi- dence of the public in him and that the aspersions made by the appellant had the effect of scandalising the Court in such a way as to create distrust in the people's mind and impair confidence of the prople in Court. The appellant has, therefore, been rightly held guilty of having committed the contempt of court under section 2(c)(i) of the Act. The High Court, in its appreciation of evidence, has rightly placed reliance on the testimony of the Sub- Judge corroborated by the evidence of the Reader in his Court, in preference to the testimony of the three Advocates. ………………… Moreover this was not the first occasion in which proceedings for contempt of court had been initiated against the appellant and on an earlier occasion also proceedings for contempt of court had been initiated against him in pursuance of a report of the then Chief Judicial Magistrate, and in those proceedings the rule issued against the appellant was discharged on his tendering unqualified apology before the High Court. In those proceed- ings also the appellant is said to have made disparaging remarks against the Judge. Keeping in view the said circumstance, the High Court has found that the appellant was addicted to using contemptuous language and making scurrilous attacks on Judges. …………. In the instant case, the appellant repeated his performance presumably because he was let off lightly on the first occasion. Softjustice is not the answer. The appellant cannot be let off on an apology which is far from sincere. His apology was hollow, there was no remorse-no regret--it was only a device to escape the rigour of the law. The High Court rightly did not accept it.

CASES AND GUIDELINES APTLY QUOTED M.Y. Shareef & Anr. v. The Hon'ble Judges of the High Court of Nagpur & Ors., [1955] 1 SCR 757, relied on. Per Ahmadi, J. (Concurring): 1. The exact words uttered by the appellant, leave no doubt that the intention of the appellant was to cast aspersions on the integrity of the Judge and to lower him in the esteem of others by creating doubts regarding his honesty, judicial impartiality and independence. The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary. Veiled threats, abrasive behaviour, use of disre- spectful language and at times blatant condemnatory attacks like the present one are often designedly employed with a view to taming a Judge into submission to secure a desired order. Such cases raise larger issues touching the independ- ence of not only the concerned Judge but the entire institu- tion. The foundation of our system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the Presiding Judicial Officers with impunity. The much cherished judicial independence which is of vital importance to any free Society, has to be protected not only from the executive or the legislature but also from those who are an integral part of the system.

L.D. Jaikwal v. State of U.P., [ 1984] 3 SCC 405. This Court described it as a 'paper apology and refused to accept it in the following words: "We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize courts and commit contempt of court with impunity. It will be rather difficult to persuade members of the Bar, who care for their self-respect, to join the judiciary if they are expected to pay such a price for it. And no sitting judge will feel free to decide any matter as per the dictates of his conscience on account of fear of being scandalized and persecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be counte- nanced, advocates who can cow down the Judges, and make them fail in line with their wishes, by threats of character assassination and persecution, will be preferred by the liti- gants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of courts."

IMPORTANCE OF ETHICAL VALUES AND DUTY OF BAR COUNCIL When a member of the Bar is required to be punished for use of contemptuous language it is highly painful--it pleases none--but painful duties have to be performed to uphold the honour and dignity of individual Judge and his office and the prestige of the institution. Courts are generally slow in using their contempt jurisdiction against erring members of the profession in the hope that the con- cerned Bar Council will chasten its members for failure to maintain proper ethical norms. If timely action is taken by Bar Councils, the decline in the ethical values can be easily arrested.

WHY THIS BLOG OF INFORMATION - IT MAY NOT BE HELPFUL FOR HAVES BUT SEE THE PLIGHT OF HAVE NOTS

noreply@blogger.com (Sridhara Babu) — Fri, 27 Aug 2010 01:02:26 PDT

The information of case laws is collected from the websites of supreme court, several High courts & other free websites by taking care to repeat the accurate words of Hon’ble justices. All the praise and credit for this blog contents should go to Hon’ble Justices of our country, who are enlightening us with their golden words of research. I have no intention to have copyright over these blogs. I have no intention to gain monetarily from the contents of the blog. Donation is solicited from gracious donors, to subserve several humanitarian causes, including this legal awareness campaign expenses. As a advocate, I suffered a lot by unabled to invest in books and gain knowledge. With little help from seniors and clients, although I collected books, but they did not updated me, because of further financial difficulties in sparing money to books. Initially when I searched online data on Indian laws, I was surprised to see only foreign origin websites rather than Indian sites in 2006 and 2007. In 2007 I started this blog of information by pooling in the typed data and my case law index collected dairy information to blogs. Usually we get a peculiar type of cases in courts which needs some debate and research to come to accurate conclusions. Such attitude of my several colleagues and my senior encouraged me to search online solutions for the different cases of others and of my clients. The information provided in Supreme court website and Common Lii dot org website of England and other later High Courts web informations encouraged me to bring out these several blogs. Iam happy that for whatever legal query submitted by any one through google/yahoo search online, my web blogs are referred within top ten websites out of crores together searched websites. I cannot explain in any technical effect how this has happened. Its all with the help of visitors like you. The free websites of law like Indian kanoon dot org, Rishabdra dot com, openjudis, lawyersclubindia dot com, legalserviceindia dot com are doing well but still india needs consolidated data of case laws for any research oriented persons. Many pay sites are there, one should remember that a major percentage of practicing advocates in district and taluk level are having financial difficulties to even have moderate law updates, by spending nearly Rs 12,000-00(Minimum) for any law reporters, it is of great difficult to a ethical practitioner. If we go online we need Rs 12000-00 for online BB expenses and further subscription of Rs 5000-00(Minimum) for pay channels. When government is spending crores together funds over education why can’t it spend to this Nob’le profession’s legal awareness upliftment. It is a sorry state of affairs that many advocates are yet to be updated, just because of non-cenfessional financial crisis. Government is spending salary and other expenses to Hon’ble Justices, the works of their research is being utilized by private capitalist. Long live our socialist Republic. When Judges/Justices works are being utilized by private publishers just at the expense of public money of government, our govt is sitting mute spectator. It is our great disaster that no one thinks of have nots. If we say we are have not advocates. Jolly speakers amuse us - we are case less practitioners. Every one knows how cases are being hijacked by unethical persons of little knowledge with many touts in lower courts on caste and other broker commission lines. Law speaks great Justice to all but it is doing great injustice to its own foundation creators that is RURAL ADVOCATES.

I SOLICIT YOUR OPINION ON MY LITTLE WORK

noreply@blogger.com (Sridhara Babu) — Fri, 27 Aug 2010 00:59:45 PDT

If we live for 80 years, the total days counts to 29200 days, out of such days we completely spend one third (9733.333 days) of it to sleep, Out of total days we spend 25 years (9125 days) as per wishes of our parents. In our life we live on our own decision for few days, when compared to the decisions we make after making marriage. Out of that what we have done to this society and why we done such things to this society. Who we are, why we are like that will be buried. These hub and other blogs gives great opportunity for persons like us to publish our views. By thanking such web page introducers. I solicit your advice, opinion, criticism against my little work. Iam a Arts graduate, I have not taken any web creators help to design the page its only out of the persistent hobby results.

HEREIN BELOW I WILL ADD THE WORDS WHICH IMPRESSED ME FROM CITATIONS OF FAMOUS JUSTICES

SHARE YOUR KNOWLEDGE

Ms. Aruna Roy and others Vs. Union of India and others AIR 2002 SC 3176 JUSTICE M.B.SHAH Observed that, supreme court words are worth noting here “In the practice of dharma, one is advised to shed the veil of ignorance and practise truthfulness in one's thoughts, speech, and actions. How can dharma be secret, having revelation as its source? Withholding nothing, all the great sages in the world shared their knowledge with humanity. In the Bhagavad Gita, the Bible, Koran, and Dhammapada knowledge, like the sun, shines for all………………..It is because of the above that if one were to ask "What are the signs and symptoms of dharma?", the answer is: that which has no room for narrow- mindedness, sectarianism, blind faith, and dogma. The purity of dharma, therefore, cannot be compromised with sectarianism. A sectarian religion is open to a limited group of people whereas dharma embraces all and excludes none. This is the core of our dharma, our psyche."

DO NOT FORFIET THE CONFIDENCE OF YOUR COLLEAGUES

"If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", said Abraham Lincoln. Supreme Court in Raghubir Singh v. State of Haryana (AIR 1980 SC 1087) and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Another (2003 (7) SCC 749), took note of these immortal observations while deprecating custodial torture by the police.

SUPREME COURT OBSERVATIONS ON HUMAN VALUES

In a case before Hon’ble Supreme Court of India, in Ms. Aruna Roy and others Vs. Union of India and others AIR 2002 SC 3176 quoting the relevant part of the S.B. Chavan Committee's report on value based education it is observed in the words of report that: “Values are principles which are consistent and universal and which direct our action and activities. They are in-built in our society, common to not only all the communities but also to all religions at all times. Values are, in other words, virtues in an individual. These values, if deteriorated, will hasten or accelerate the break-down of family, society and nation as a whole. India has age-old tradition of values interwoven in the national fabric. Although there has been great advancement in science and technology, there has been a gradual erosion of values which is reflected in the day-to- day life of a large section of our present society. Our young generation under the growing influence of negative aspects of Western culture, is stranded on the cross-roads, not able to decide which direction to take.”

EDUCATION MUST DEVELOP MULTI PERSONALITY

In a case before Hon’ble Supreme Court of India, in Ms. Aruna Roy and others Vs. Union of India and others AIR 2002 SC 3176 quoting the relevant part of the S.B. Chavan Committee's report on value based education it is observed in the words of report that: “Education should aim at multi-faced development of a human being his intellectual, physical, spiritual and ethical development. Youth is the mirror in which future of a nation is fully reflected. In order to preserve, maintain and advance the position of our country in the world, it is imperative that there should be a comprehensive programme of value-education starting from the pre-primary level, embracing the entire spectrum of educational process. The minds, hearts and hands of children are to be engaged in forming their own character to know what is `good', `love good' and `do good’.”

NECESSITY OF VALUES TO PRESENT GENERATION

In a case before Hon’ble Supreme Court of India, in Ms. Aruna Roy and others Vs. Union of India and others AIR 2002 SC 3176 quoting the relevant part of the S.B. Chavan Committee's report on value based education it is observed in the words of report that: It was generally felt that ours is a vast and diverse ancient country historically, geographically and socially. Traditions are different, the ways of thinking and living are also different. But there are certain common elements which unite the country in its diversity. This country has a long tradition. Here from ancient times, there have been great saints and thinkers from different religions and sects who have talked about some eternal values. These values are to be inculcated by our young generation.

TODAY EVERY ONE ACQUIRE TECHNIQUES NOT VALUES

In a case before Hon’ble Supreme Court of India, in Ms. Aruna Roy and others Vs. Union of India and others AIR 2002 SC 3176 quoting the relevant part of the S.B. Chavan Committee's report on value based education it is observed in the words of report that: In ancient times in Gurukuls, emphasis used to be primarily on building the character of a student. Today, right from the schools up to the professional colleges, emphasis is on acquiring techniques and not values. We seem to have forgotten that skills acquired on computers tend to become outdated after sometime but values remain for ever. In other words, present day education is nothing but an information transmission process. Our educational system aims at only information based knowledge and the holistic views turning the student into a perfect human being and a useful member of society has been completely set aside. Swami Vivekananda aptly said, "Education is not the amount of information that is put in your brain and runs riot there, undigested, all your life. We must have life-building. Man- making, character-making, assimilation of ideas. If education is identical with information, libraries are the greatest sages of the world and encyclopedias are rishis."

VALUE BASED EDUCATION

In a case before Hon’ble Supreme Court of India, in Ms. Aruna Roy and others Vs. Union of India and others AIR 2002 SC 3176 quoting the relevant part of the S.B. Chavan Committee's report on value based education it is observed in the words of report that: Truth (Satya), Righteous Conduct (Dharma), Peace (Shanti), Love (Prema) and Non-violence (Ahinsa) are the core universal values which can be identified as the foundation stone on which the value-based education programme can be built up. These five are indeed universal values and respectively represent the five domains of human personality, intellectual, physical, emotional, psychological and spiritual. They also are correspondingly co-related with the five major objectives of education, namely, knowledge, skill, balance, vision and identity.

Ms. Aruna Roy and others Vs. Union of India and others AIR 2002 SC 3176 JUSTICE M.B.SHAH Observed that, “None can also dispute that past five decades have witnessed constant erosion of the essential social, moral and spiritual values and increase in cynicism at all levels. We are heading for a materialistic society disregarding the entire value based social system. None can also dispute that in secular society, moral values are of utmost importance. Society where there are no moral values, there would neither be social order nor secularism. Bereft of moral values secular society or democracy may not survive. As observed by the Committee, values are virtues in an individual and if these values deteriorate, it will hasten or accelerate the break down of the family, society and nation as a whole. In a society where there is constant evaporation of social and moral values for getting property, power or post, is it not advisable to have solid social foundation from base level so that a grown up person would fight against all kinds of fanaticism, ill will, violence, dishonesty, corruption and exploitation? Answer would obviously be 'yes'.”

CIVILIZED SOCIETY AND RELIGION

Ms. Aruna Roy and others Vs. Union of India and others AIR 2002 SC 3176 JUSTICE M.B.SHAH Observed that, Further, for controlling wild animal instinct in human beings and for having civilized cultural society, it appears that religions have come into existence. Religion is the foundation for value base survival of human beings in a civilized society. The force and sanction behind civilized society depends upon moral values. Philosophy of co-existence and how to co-exist is thought over by the Saints all over the world which is revealed by various philosophers. How to co-exist, not only with human beings but all living beings on the earth, may be animals, vegetation and environment including air and water, is thought over and discussed by Saints and leaders all over the world which is reflected in religions. If that is taught, it cannot be objected as it is neither violative of constitutional or legal rights nor it offends moral values. This has been dealt with elaborately by the S.B. Chavan Committee.