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50 days of lockdown

The pandemic has exposed for all to see longstanding problems in the justice system across India. Let us acknowledge and rectify these issues.

Vikas Pahwa

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Lockdown

It is the 50th day of the complete lockdown in India due to the Covid-19 pandemic. As of today, there are over 70,000 active cases of novel coronavirus and more than 2,290 deaths. The numbers are rising exponentially with just a minor relaxation of lockdown norms. We don’t see any sign of relief from this deadly monster in the near future. It is evident now that the coronavirus will stay for some time and we have to learn how to live with it, making necessary adjustments. Life is precious but so is sustenance. Both lives and livelihoods have to be protected. Smooth functioning of the courts is the key to preserve public confidence in the Rule of law. This however, has to be balanced with health concerns for the litigants, lawyers, court-staff and judges. Fortunately for us, technology is available for the running of the justice delivery system. Virtual hearings through videoconferencing are the best substitute to actual court appearances. On 1 April, when I wrote about the state of affairs of our judicial system in Lockdown 1, the active cases were only 1,300.

At that time, I was a bit disappointed with the limited use of technology to assure the free flow of the stream of justice. Since doctors, health workers, policemen, municipal officials became corona warriors, I thought we could and should do our bit to keep the system up and running. It is with this thought that the Supreme Court passed the first order on 23 March, directing the constitution of a HighPower Committee (HPC) of all the high courts, to evaluate the Covid-19 situation and work towards decongesting the prisons. The Delhi High Court HPC headed by Justice Hima Kolhi held meetings and passed multiple directions for the release of the prisoners. As of now, more than 3,200 prisoners have been released, either on parole or on interim bail of 45 days. The interim bails of people who were released have been further extended for 45 days by the HPC on 5 May. Having said that, around 14,000 prisoners are still languishing in the jails in Delhi which have a capacity of only 10,000. According to the latest update, the Arthur Road Jail in Mumbai has reported 184 positive cases of Covid-19, which include 26 jail officials. Delhi’s Tihar is highly overcrowded, hence some urgent measures are required for its decongestion before it is too late.

Already, news of positive cases there is doing the rounds. The Delhi High Court has a roster of 11 judges who are hearing the cases, five days a week, with a few urgent hearings even spilling over to Saturdays. Around 100 cases are listed in the High Court daily. The district courts have started hearing even the notso-urgent cases. Over 12,000 cases have been heard by the courts during the lockdown period. The judges are gradually adapting and getting comfortable with hearing cases virtually and soon, we shall see an increase in the number of judges taking up cases online. New rules for conducting virtual hearings are being framed and would be notified soon. Live streaming of the hearings is also under consideration. The majority of bar members are familiarising themselves with the requisite technology, realising that this is the only way forward. Inspite of all this progress, there is some resistance by a few bar leaders. They are not ready to accept that the virtual hearings by videoconferencing shall be the norm for now. They argue that many lawyers have no access to technology and some are not familiar with the system of videoconferencing. I do not agree with them.

Lawyers are professionals who are trained to adapt to the new situations in life and thus should lead by example. Almost all lawyers have smart phones and computers that can be effectively used for conducting the hearings online. I do not support opening of the court complexes as of now, as I fear we would face problems that we faced at the opening of liquor shops. Law Minister Ravi Shankar Prasad, while holding a review meeting with the Attorney General and the law officers of the county, advised to take the lockdown as an opportunity to make digital systems in justice delivery more robust. I support his view that the e-court system should be strengthened and request the government to help in upgrading the technology in all courts throughout the country. Justice Dr DY Chandrachud in his capacity as the chairperson of the E-Committee of the Supreme Court, is taking significant steps for upgradation of technology in all courts. The judicial system is trying its best to change gears and make virtual hearing successful all over the country. Have we made progress in the last 50 days in using technology to our advantage? I would say yes, we have made significant advancement in this direction. There has been a marked improvement in the quantum and quality of virtual hearings in the Delhi High Court and the lower courts.

Speaking from experience, I appeared for multiple hearings in the High Court by videoconferencing over the last 50 days from the comfort of my home library. The whole experience has been extremely enriching and I learn something new, every time. A few hearings lasted up to 2-3 hours in a session. On some occasions, they stretched or even started beyond the normal court hours in the evening. The hearings were exhaustive but were conducted smoothly. At times, I had to wait for hours for the case to be taken up. The experience to wait, of course, is not the same, as it is in open courts as one is alone, within the confines of one’s home. Instead of walking in the corridors of the court premises, I walk in the corridors of my house in my court dress, waiting for a call from the court master to begin. I certainly miss the table discussions we used to have in the bar room with lawyer from all spheres. I most definitely miss the free flow of coffee every one hour in the criminal side bar room. I miss sharing the after-effects of the hearing immediately after coming out of the court room with my colleagues with whom I used to spend substantial time preparing and discussing the cases.

At times, it does get lonely. At such times, I tell myself that this is just another battle that one has to fight to win the war. To prepare for these cases, I have interactive sessions with my colleagues and also confer with the briefing counsels on Zoom. I use the extra time to read and enhance my knowledge of law and have held a few webinars on various aspects of criminal law. One of the most important aspect of videoconferencing is a good internet connectivity. I have realised that we need to upgrade our home offices, increase our existing bandwidth, follow protocol of videoconferencing, adapt to the new mode of communicating with the courts and learn how to file documents electronically. My appeal to my fellow lawyers is to take an active role in understanding the challenges facing the judicial system and become advocates for change. Stay on top of communications, learn the standard operating procedures for e-filing, be patient and prepared for technical issues to arise during virtual hearings. We will need to provide constructive feedback on personal experiences with virtual hearings and recommend necessary changes and improvements. I would like to share the story of Rajender Beniwal.

Rajender, a young lawyer residing in a remote village called Mithria in Rajasthan along theIndian-Pakistan border around 600 km away, filed a case in the Delhi High Court on behalf of a CISF officer who is posted in Jammu and Kashmir. He prepared the file, uploaded the petition from the village, mentioned and got it listed, argued by videoconferencing and got an interim order in his favour. The order was emailed to him online in his village by the evening. It broke all barriers of geography, cost and convenience. So, with the use of technology we can do cases, outside the jurisdiction of Delhi. I have been briefed to appear in Gujarat High Court next week. The idea of appearing in different jurisdictions while sitting at home is fascinating. So much of time, money and energy consumed in travelling is saved. A renowned Indian lawyer appeared before the Supreme Court of India while sitting in London. He could not have imagined 50 days back, that he would be engaged to appear in India while being abroad. I surely feel that at present, the hearings shall be restricted to arguments only. Conducting criminal trials by video conferencing seems to be difficult for now.

The cross-examination of witnesses would be cumbersome as defence lawyers formulate their questions while observing the body language of the witness. We still need to do a lot on that front. In these unprecedented times, it is evident that most people are bearing the brunt of lockdown. The workforce is facing a “do or die” situation and those who are not getting on with the alternative modes of working are being sieved out. This pandemic has changed the people’s attitude towards life. Ever since courts have been established in India, they have been functioning nonstop, except during the official vacations. The Covid-19 pandemic has exposed for all to see longstanding problems in the justice system across India. Let us acknowledge and rectify these issues. We must support the system of digital courts and facilitate in getting justice to the last man standing in the queue. Chaos and conflict are precursors to great change and organisation. Let us not get overwhelmed by the uncertainties and battle on. We are standing on the Brink of a completely New World and must adapt to survive. So march on, Change, Adapt, Learn, Facilitate and equip yourself for life in the New World, post Covid-19. Vikas Pahwa is a Senior Advocate, assisted by Preeti Pahwa, Advocate

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Legally Speaking

GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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