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Blessed are the advocates

Feroz Pathan

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Blessed are the advocates ! They have voluntarily chosen to be ‘the voice of voiceless’. They are shouldered with the sacred duty of assuaging societal rifts between persons and persons, persons and institutions, persons and state, between two or more states, and two or more countries. They are the problem solvers qua arbitrators, mediators, conciliators, attorneys, officers of courts (bar members), amicus curiae and later as a bench. As a prosecutor, they help in detection of criminals and secure their conviction.

They strive not only to seek truth, but also to find and live it. They are the catalysts who pave the way for regulation of human conduct and societal norms. They help the society to strike a balance between pleasure and pain, albeit slowly and steadily. The world would have turned into a messy conflict zone in their absence.

Justice V.R.Krishna Iyer once aptly remarked that courts are spiritual institutions because the urge to do justice is a spiritual urge. This urge is however met only through advocates who assist courts in securing justice even for the last man in the last row. Advocates help the court to bring truth into action. Justice is not only about securing punishment for the offenders, but also about protecting the innocent. Advocates thus help in ensuring that no innocent is punished in the court of law by being their representative voice. Without advocates, truth and justice would have become a casualty and courts would have been infructuous machinery. If bench is a chariot of justice, advocates are its wheels of justice.

In an adversarial justice system, the role of advocates become inevitable as representation of parties’ case would have been impossible without them. Furthermore, judges wouldn’t have been able to determine truth and facts in order to pass judgment without the assistance of advocates.

The embodiment of constitution in letter and spirit is a product of relentless efforts of advocates like Nani Palkhiwala who argued the basic structure doctrine in Keshavanand Bharti v State of Kerela, (1973) 4 SCC 225 case for almost 68 days. Justice H.R. Khanna had eulogized his eloquence by remarking- “The height of eloquence to which Palkhiwala reached on that day had seldom been challenged and never been surpassed in the history of Supreme Court.” Palkhiwala also shielded the spirit of constitution through his legal acumen and erudition in the landmark judgments of Golak Nath v State of Punjab(1967) 2 SCR 762 , Minerva Mills Ltd v UOI, AIR (1980) 3 SCC 625 and others. A galaxy of legal doyens like Soli Sorabjee, Fali Nariman, CK Daphtary, M.C.Chagla, Ashok Desai, Ram Jethmalani shaped the law for public good through their persuasive arguments . Advocates along with judges have made constitution a living document.

The success of Indian freedom movement owes to the lofty contribution of advocates. M.K.Gandhi, the man who fought India’s independence without ever fighting was an advocate. The man who led to the creation of Pakistan as an independent state was an advocate. Dadabhai Nowrojee, Surendranath Banerjee, Motilal Nehru, Bal Gangadhar Tilak, Lala Lajpat Rai, C Rajgopalachari, C.R.Das, Rajendra Prasad, Sardar Patel, Jawaharlal Nehru, Bhulabhai Desai and many others who scripted our freedom saga were all advocates. Dr. B.R.Ambedkar, the father of Indian Constitution who drafted it by burning the midnight oil for two years, eleven months and seventeen days was also an advocate.

Advocates are the inexhaustible reservoirs who treasure and unfold the facts as and when needed. Even Gandhi had acknowledged this while arguing Dada Abdulla’s case. He had emphatically remarked- “Facts mean truth and once we adhere to truth, the law comes to our aid naturally.” He further observed that- “ Lawyers should master facts first as facts constituted three-fourths of the law and if we took care of facts of a case, the law would take care of itself”.

Had it not been for efforts of advocates, judges and courts, our life, environment, liberty, property, freedom, rights, ethics, integrity, equality, equity, and moral compass of justice would have been blown into smithereens.

Have you ever been to office of an advocate ? Their office is akin to a public library loaded with piles of books and files in shelves. Advocates are thus blessed to be in a profession wherein their excellence is embedded on the foundation of daily reading for hours together and updation of their knowledge. Statues, legislations, notifications, bills, acts, commentaries, gazettes, orders, case files, case laws, evidences, judgments, reports, constitutions of different countries, and the reading list is endless. At 68, Ram Jethmalani used to prepare for his case argumentation for almost 8 hours a day.

Advocates are also blessed to be in a profession where their work never makes their life mundane and monotonous. It’s because each case is like a new real life story (ordeal) for them with new facts and circumstances, new clients, new opposition counsels, at times even new judges to argue before. They are into an exceptionally dynamic profession that thrives on sustained wisdom, vigor, erudition, et cetera.

In the book ‘The Seven Lamps of Advocacy’, Judge Edward Parry has highlighted the seven essential qualities that an advocate must possess to succeed in profession namely- honesty, courage, industry, wit, eloquence, judgment, and fellowship.

When it comes to world stage, advocates such as Abraham Lincoln earned the sobriquet of ‘Honest Abe’ through his uncompromising integrity and honesty in the legal profession. Such was his undaunted influence on his people in Kentucky region that he was addressed as a ‘parallel court’ by them. Disputing parties used to throng at his place to get their disputes resolved instead of getting it resolved through courts. No wonders, his honesty paid him rich dividend and people elected him as 16th President of USA.

The conduct and practice of advocates in India is regulated by the Advocates Act,1961. Advocates owe duty towards the court, clients, opponents and colleagues. They are into a profession where even a newly registered young advocate has a right to stand in court of law and argue against an established bigwig in the field.

In the ebb and flow of truth and lies, advocates act as litmus papers of justice. They help us to reflect upon substance when shadows are just about to cast aspersions. They are agents of distributive justice and change-makers of society. After doctors, it’s only the advocates who are angels of God on earth who can save innocent accused from gallows of death by defending them in grave offences.

In one of his speeches, Justice Dr.D.Y.Chandrachud had aptly said that- “It’s incumbent upon lawyers to enlarge the access to justice, to ensure that quality of justice served to the common man is improved and strengthened”. They are on a sublime mission to cleanse the societal sins by upholding truth and justice rigorously. They help us know ‘truth as a truth’ and ‘untruth as untruth’.

A lawyer doesn’t ask for the truth,

It’s seldom given to him.

He seeks, finds and lives the truth.

When clouds of despair gather,

He’s first to find the winning streak.

A doctor heals the body and priest heals the souls,

A lawyer heals conscience of society to the core.

He enters the deep dirty waters,

Only to find the pearl oysters.

His only prism is truth ,

And he corrects wrongs multi-faceted to the roots.

He knows both sides of the story,

And he can uphold truth and its glory .

His relationship with justice and wisdom is age old,

And his advice and time is an invaluable gold.

He dives deep into the ocean of words,

And he is neither ignorant of word.

His words in motion can stop the ocean,

And his arsenal of information can lead to evil’s devastation.

He’s ambassador of truth in action,

And he spares no wrong-doer.

Advocates are the inexhaustible reservoirs who treasure and unfold the facts as and when needed. Even Gandhi had acknowledged this while arguing Dada Abdulla’s case. He had emphatically remarked, “Facts mean truth and once we adhere to truth, the law comes to our aid naturally.”

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Legally Speaking

IN MEDICAL NEGLIGENCE COMPENSATION CLAIMS, MCI FINDINGS REGARDING DOCTORS’ PROFESSIONAL CONDUCT HAVE GREAT RELEVANCE: SC

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The Supreme Court in the case Harnek Singh vs Gurmit Singh observed while considering medical negligence compensation claims that the findings of the report of Medical Council of India on professional conduct of doctors are relevant.

from the date of SCDRC order as compensation thereafter the court directed the Respondents to pay to the complainants a total amount of Rs. 25,00,000 with interest @ 6% per annum. the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service and the court hold that the decision of the NCDRC deserves to be set aside. in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI, the court is of the opinion that the NCDRC has committed an error. The case of medical negligence leading to deficiency in his services, the above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly, observed by the bench.

The bench further observed that he opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance while referring to the contents in the report of MCI.

The issue raises in the above-mentioned case is weather a professional negligence is established by the complainant as per the standards governing the duty to care of a medical practitioner on the part of Respondent As the NCDRC gave its decision without referring to the MCI finding the complainants/appellants submitted, in an appeal submitted by the Apex Court. this complaint got summarily disposed of and they filed appeals before Medical Council Of India The Ethics Committee of MCI held one doctor medically negligent and issued a strict warning to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation he complainants had also made a complaint to the Punjab State Medical Council against the professional misconduct of the doctors, hospitals, surgeons, While the proceedings were pending before the SCDRC.

the complaint and two among the opposite parties were allowed by SCDRC to directly pay Rs. 15,44,000 jointly and severally and Rs. 10,000 as costs as the appeal was allowed by The National Consumer Disputes Redressal Commission of these opposite parties and set aside the order of the SCDRC holding that negligence was not proved by the complainants.

The bench comprising of Justice UU Lalit, justice S. Ravindra Bhat and the justice PS Narasimha also observed and contended the question of intention does not arise that in the proceedings for damages due to professional negligence.

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WHERE THE CLAIMS OF EVENTS HAVE BEEN SUCCESSFULLY ESTABLISHED BY THE PROSECUTION, SECTION 106 OF THE EVIDENCE ACT APPLIES TO CASES: SUPREME COURT

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The Supreme Court in the case Sabitri Samantaray vs State of Odisha observed here chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused, the Section 106 of the Indian Evidence Act applies to cases.

in light of Section 106 of the Evidence Act the High Court rightly observed that as how the deceased lost his life and the onus was now on the appellants to disclose further the court observed that the appellants have failed to offer any credible defense in this regard and it can be deduced that the entire sequence of events strongly point towards the guilt of the accused appellants the burden was on the appellants to prove it otherwise as once the prosecution had successfully established the chain of events.

in the light of the statements made by all the sets of witnesses, with such an intention when analyzed and the fatal injuries sustained by the deceased at the relevant place and time further the court contended while dismissing the plea that it certainly makes out a strong case that death of the deceased was indeed caused by the appellants. in establishing intention of the accused-appellants for the commission of the offence, the prosecution has succeeded, the Court notice.

whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, in a case based on circumstantial evidence then in the chain of events such a response in itself becomes an additional link, when a case is based on circumstantial evidence As Section 106 of the Evidence Act from its burden to establish the guilt of an accused is in no way aimed at relieving the prosecution. where chain of events has been successfully established by the prosecution, it only applies to those cases from which a reasonable inference is made out against the accused.

the Section 106 it merely prescribes that when an individual has done an act and in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt Thereafter the onus of proving that specific intention falls onto 9 the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove, with an intention other than that which the circumstances indicate. As the Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, observed by the Bench as the said provisions Since it is all based upon the interpretation of Section 106 Evidence Act, the contentions of either

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed and contended whenever an incriminating question is posed to the accused and he or she either evades response or that which being offers a response is not true then such a response in itself becomes an additional link in the chain of event, in a case based on circumstantial evidence.

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A candidate has no legal right to insist that the recruitment process set in motion be carried to its logical end: SC

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The Supreme Court in the present case Employees State Insurance Corporation vs Dr. Vinay Kumar observed that the recruitment process set in motion be carried to its logical end as the candidate does not have a legal right to insist.

The bench directed the Corporation-appellants to take a decision regarding whether to complete the recruitment process, bearing in mind all relevant aspects within a period of two months, while allowing the appeal further it stated there is however no doubt from holding that the employer is free to act in an arbitrary manner.

A recruitment process which is set in motion be carried to its logical end candidate who has applied does not have a legal right to insist that Even in the select list may not clothe the candidate with such a right and that too even in the inclusion of a candidate.

A recruitment process carried to its logical end and the process set in motion, the candidate who applied does not have the legal right and thereafter the court further contended that the cardinal principle we must bear in mind is that this is a case of direct recruitment, observed by the bench.

The Court further said that it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold and by agreeing with the applicant the court contended and said that the direction to conclude the proceedings within 45 days is unsupportable.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

The ground raised by the appellants for not proceeding with the procedure of direct recruitment is untenable, the respondent contended before the court and on the other hand on account of certain developments which took place, there may really be no need to fill up the post of Associate Professor and the respondent may not have a right as such, the appellant contended before the Apex Court.

The High Court which dismissed the writ petition filled by the Corporation and it directed the Corporation to conclude the process positively within a period of 45 day. the Corporation filed appeal before the Apex Court, Aggrieved with this direction.

The bench comprising of Justice KM Joseph and the justice Hrishikesh Roy observed that Even inclusion of a candidate in the select list may not clothe the candidate with such a right and it does not mean that the employer is free to act in an arbitrary manner, the bench clarified.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

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The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

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Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

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The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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