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Standard of proof in motor accident claim cases is one of preponderance of probabilities: SC

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In a realistic, robust and rational judgment titled Anita Sharma & Ors. vs. The New India Assurance Co. Ltd. & Anr. in Civil Appeal Nos. 4010-4011 of 2011 [Arising out of Special Leave Petition (C) Nos. 32011-32012 of 2018] delivered by a two Judge Bench of the Apex Court comprising of Justice Surya Kant and Justice Aniruddha Bose on December 8, 2020 has observed clearly, cogently and convincingly that the standard of proof in Motor Accident Claim Cases is one of preponderance of probabilities, rather than beyond reasonable doubt. The Bench also very rightly observed that, “One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.” The Bench observed thus while allowing an appeal against Rajasthan High Court judgment which had rejected the claim petition (by setting aside the Tribunal order allowing it).

To start with, this latest, learned, laudable, logical and landmark judgment sets the ball rolling after granting leave in para 1 and then observing in para 2 that, “These two appeals, which have been heard through video conferencing, are directed against the judgment dated 23.07.2018 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur whereby the first appeal preferred by the New India Assurance Co. Ltd. (Respondent No. 1) against the Motor Accident Claims Tribunal’s (hereinafter, “Tribunal”) award dated 01.09.2012 was allowed and the Claim Petition was rejected, whereas the appeal filed by the appellant-claimants for enhancement of compensation was consequently dismissed.”

While dwelling on the facts of the case, the Bench then observes in para 3 that, “Sandeep Sharma (deceased), was a resident of District Sikar in Rajasthan. He was travelling in a car bearing registration no. UP 65 AA 7100 from Ghazipur to Varanasi (Uttar Pradesh) on the night of 25.03.2009 along with his friend Sanjeev Kapoor (Respondent No. 2) and two other occupants. Sanjeev Kapoor, who was also its owner, was driving the car when at about 10:20 PM near village Atroli, a truck coming from the opposite side struck the car as a result of which all the occupants suffered injuries. Sandeep along with the other injured occupants was rushed to the District Hospital in Ghazipur at around 11:55 PM, but was subsequently referred to the Institute of Medical Sciences and S.S. Hospital, BHU, Varanasi on 26.03.2009 considering the severity and multiplicity of his injuries. Although he was discharged on 16.04.2009 and brought back to Rajasthan, it appears that Sandeep kept experiencing one after another medical complications, and remained hospitalized at the Jain Hospital in Jaipur and later the Joshi Nursing Home at Sikar. His injuries eventually got the better of him and Sandeep Sharma passed away on 10.12.2009.”  

To put things in perspective, the Bench then makes it known in para 4 that, “At the time of death, the deceased was aged 34 years and was an income tax assessee with an Employees Provident Fund (EPF) account. He was employed in Mumbai at Kelvin Ess Vee Textiles as a Sales Officer on regular basis. He left behind a widow, two minor children and a mother; all of whom were dependent on him.”

As it turned out, it is then brought out in para 5 that, “Sandeep’s dependents filed a claim petition for Rs 60,94,000 (Rupees sixty lakhs and ninety four thousand) on 26.08.2010 alleging, inter alia, that he died as a result of the injuries suffered in the above mentioned accident of 25.03.2009, which occurred due to the rash and negligent driving of Sanjeev Kapoor who was the owner-cum-driver of the car in which Sandeep was travelling (hereinafter, “owner-cum-driver”) and the insurer of the car New India Assurance Co. Ltd. (hereinafter “insurance company”) were impleaded as party respondents.”   

Be it noted, it is then stated in para 11 that, “At the outset, it may be mentioned that some material facts which have a direct bearing on the fate of this case, have escaped notice of the High Court. The FIR was not registered by Sanjeev Kapoor (owner-cum-driver of the car) as assumed by the High Court. Instead, as a matter of fact, the FIR No. 120/09 (Exh1) was registered on the basis of information furnished by one, Pradeep Kumar Aggarwal, son of Bal Krishna Das Aggarwal – a resident of District Varanasi. The contents of this report reveal that Sanjeev Kapoor was travelling in the Wagon R Car No. UP65AA-7100 along with three other occupants. While returning from Ghazipur to Varanasi, a truck which was being driven rashly and at a fast speed, struck against the car and then sped away towards Ghazipur. The number of the truck could not be noticed as it was dark. The car was badly damaged. Various people gathered at the spot who took out the injured from the car. It is specifically mentioned that all the injured were taken to the hospital for treatment where Rahul Singh @ Chottu Singh passed away whereas Sandeep Sharma was referred to BHU Varanasi for treatment. The FIR was lodged on 27.03.2009 and a slightly illegible part thereof indicates that Sanjeev Kapoor and the informant were known to each other. The informant himself had not witnessed the accident and apparently lodged the FIR based on hearsay information.”   

               Simply put, the Bench then notes in para 12 that, “Importantly, the owner-cum-driver though denied responsibility of the accident through his written statement but chose not to enter the witness box in his defence. The insurance company, on the other hand, relied upon the contents of the FIR and the ‘Investigation Report’ to aver that the accident took place due to rash and negligent driving of the truck driver alone. But we find that the ‘investigation report’ (Exh.2) dated 05.05.2009 merely recites that the registration number of the offending truck could not be ascertained despite best efforts.”

Truth be told, it is then revealed in para 13 that, “At this juncture, we may refer to the statement of Ritesh Pandey (AW-3). This witness is a resident of Ghazipur in Uttar Pradesh. He is neither related to the deceased nor was he remotely connected to the family of the deceased. He hailed from a different State and lived in a faraway place. There is nothing to suggest that the witness had any business dealings with the deceased or his family. He has deposed that he was travelling in his own car on the date of the incident on the same route when the owner-cum-driver of the Wagon R car carelessly overtook him at a very high speed. He has further deposed that a truck coming from the opposite side collided with the car. Various persons gathered at the place of accident and four persons trapped inside the car were taken out, three of whom were unconscious and the fourth was its driver – Sanjeev Kapoor. The witness has further deposed that he took all the four injured persons to the District Hospital, Ghazipur where some of them were referred to Institute of Medical Sciences and S.S. Hospital, BHU, Varanasi.”    

What’s worth noting is that para 14 unequivocally says that, “Most importantly, the only question asked to this witness in cross-examination is whether the truck could be spotted and whether he was able to note the registration number of the truck. The witness has candidly admitted that he could not see the registration number of the truck. No other question was asked to this witness in the crossexamination. While the Tribunal believed Ritesh Pandey (AW3) and accepted the claim petition in part, the High Court, for the reasons which are already briefly noticed, has disbelieved him on the premise that the deceased was brought to the hospital by SI Sah Mohammed and not by Ritesh Pandey (AW-3). The entire case, thus, effectively hinges upon the trustworthiness of the statement of this witness.”

No doubt, the Bench then rightly hastens to add in para 15 that, “It is not in dispute that the accident took place near Ghazipur and that numerous people had assembled at the spot. Some bystander would obviously have informed the police also. While the contents of the FIR as well as the statement of Ritesh Pandey (AW3) leave no room to doubt that the injured were taken to the Hospital by private persons (and not by the police), it is quite natural that the police would also have reached the Government hospital at Ghazipur and therefore, it was mentioned that Sandeep Sharma was brought in by SI Sah Mohammad.”

Needless to say, it is also then rightly added in para 16 that, “It is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital. The statement of AW3, therefore, acquires significance as, according to him, he brought the injured in his car to the hospital. Ritesh Pandey (AW3) acted as a good samaritan and a responsible citizen, and the High Court ought not to have disbelieved his testimony based merely on a conjecture. It is necessary to reiterate the independence and benevolence of AW3. Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.”     

Without mincing any words, the Bench then while airing its unhappiness over the Rajasthan High Court’s judgment in this matter goes on to observe in para 17 that, “It is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. The High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police. Further, as the police had themselves reached the hospital upon having received information about the accident, there was perhaps no occasion for AW-3 to lodge a report once again to the police at a later stage either.”

While taking potshots on the decision of Rajasthan High Court, the Bench then goes on to add in para 18 that, “Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant-claimants’ hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari v. Amir Chand (2011) 11 SCC 635, viewed that:

“12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor’s chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitized enough to appreciate the plight of the victim.

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.”emphasis supplied).”

While continuing in the same vein, the Bench then further points out in para 19 that, “The failure of the respondents to cross examine the solitary eyewitness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effects of this absence of cross examination of a crucial witness.”

What’s more, the Bench then most significantly further adds very rightly in para 22 that, “Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz (2013) 10 SCC 646 wherein this Court reiterated that:

“7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101])  (emphasis supplied).”  

Most damningly, the Bench then minces no words to say bluntly, boldly and brilliantly in para 23 that, “The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum-driver) had not been examined as a witness, and hence adverse inference ought to be drawn against the appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck driver’s carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof.”    

Not stopping here, the Bench then also adds in para 24 that, “Further, little reliance can be placed on the contents of the FIR (Exh.-1), and it is liable to be discarded for more than one reasons. First, the author of the FIR that is, Praveen Kumar Aggarwal does not claim to have witnessed the accident himself. His version is hearsay and cannot be relied upon. Second, it appears from the illegible part of the FIR that the informant had some closeness with the owner-cum-driver of the car and there is thus a strong possibility that his version was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was lodged two days after the accident, on 27.03.2009. The FIR recites that some of the injured including Sandeep Sharma were referred to BHU, Varanasi for treatment, even though as per the medical report this took place only on 26.03.2009, the day after the accident. Therefore the belated FIR appears to be an afterthought attempt to absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily, the statement of AW3 does not suffer from any evil of suspicion and is worthy of reliance. The Tribunal rightly relied upon his statement and decided issue No. 1 in favour of the claimants. The reasoning given by the High Court to disbelieve Ritesh Pandey AW3, on the other hand, cannot sustain and is liable to be overturned. We hold accordingly.”  

Finally, it is then held in para 26 that, “In light of the above discussion, the judgment under appeal of the High Court is set aside and the appellants are held entitled to compensation as awarded by the Tribunal, besides 40% addition in the annual income of the deceased towards ‘future prospects’. The Motor Accident Claims Tribunal, Sikar (Rajasthan) is directed to recalculate the compensation amount accordingly. The appellants are held entitled to interest @ 8.5%, as per the Tribunal’s award, on the entire amount of compensation. The Tribunal shall recalculate the compensation within one month and the insurance company shall deposit the same within one month thereafter. No order as to costs.”

Nothing more remains to be said. The Apex Court Bench has very rightly pointed out the reasons for setting aside the judgment of the Rajasthan High Court as already discussed above in detail. We thus see that the Supreme Court has once again reiterated like earlier that the standard of proof in motor accident claims cases is one of preponderance of probabilities rather than beyond reasonable doubt. All the courts must certainly adhere to what has been laid down once again so explicitly by the top court!

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Legally Speaking

Filing affidavits by advocates’ clerks impermissible: Orissa High Court

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While reiterating the significance of personal affidavits of parties and their ensuing probative value in smooth administration of justice, the Orissa High Court in a latest, learned, laudable and landmark judgment titled Thabir Sagar vs State of Odisha in BLAPL No. 748 of 2021 whose date of hearing was June 8, 2021 and was delivered on June 18, 2021 has held in no uncertain terms that the practice of Advocate’s clerks filing affidavits on behalf of parties is unacceptable. Such a practice is in gross violation of Rule 26 of the Orissa High Court Rules. It has therefore rightly directed its Registry to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court.

To start with, a Single Judge Bench of Justice SK Panigrahi of Orissa High Court who authored this leading judgment sets the ball rolling by first and foremost observing in para 1 that, “The petitioner has filed the instant application under Section 439 of Cr. P.C seeking bail in connection with G.R. Case No.951 of 2020 pending in the Court of the learned SDJM, Koraput corresponding to Koraput Sadar P.S. Case No.120 of 2020. The petitioner is accused in connection with the alleged commission of offence punishable under Section 395 of the IPC.”

While dwelling on FIR and arrest made, the Bench then puts forth in para 2 that, “FIR was registered against unknown persons in FIR No.120 of 2020 before Koraput Sadar P.S. Two persons, namely, Dhananjay Nayak and Surendra Sagar, were arrested in connection with the case, during the course of investigation. It is submitted that, thereafter, the petitioner was arrested and taken into custody on 13.11.2020 on the basis of the statement of the abovementioned accused.”

While mentioning about the petitioner’s prayer, the Bench then brings out in para 3 that, “Previous bail applications moved by the petitioner before the learned SDJM, Koraput as well as the learned Additional Sessions Judge, Koraput stood rejected mainly on the ground that some cash has been recovered from some of the co-accused and some of the co-accused are still at large. The learned Judge is of the view that if the petitioner is enlarged on bail, it would hamper the investigation. Aggrieved by the above order, the petitioner has approached this Court.”

What really perplexes the Bench is then stated in para 4 that, “Strangely, we find that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate’s clerk-incharge. Curiously enough, the advocate’s clerk has sworn that he is looking after the case on behalf of the petitioner. This Court fails to understand as to how an advocate’s clerk can swear an affidavit claiming to be “looking after” a case before this Court in gross violation of the Orissa High Court Rules.”

Needless to say, it is of immense significance to state that the Bench then observes in para 5 that, “An affidavit is an affirmation of truth. It is a willing declaration made in writing, signed by a deponent and accompanied by an oath to prove the veracity of its contents. In India, the law on affidavits is governed by Order XIX of the Code of Civil Procedure, 1908. Further, every High Court, in furtherance of its own requirements from an affidavit, has framed its own Rules. The very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the best of his knowledge. While it is permissible that if the knowledge is not personal, it can be gathered from other sources (provided details of the sources are mentioned), it is in flagrant violation of rule of law to execute an affidavit without having any knowledge of the averments made therein. Courts rely heavily on affidavits and their ensuing probative value for the smooth administration of justice. Noting the importance of an Affidavit, courts have strongly deprecated the practice of affidavits being sworn by someone who has no knowledge of the facts or who has no means of achieving said knowledge.”

Alarmingly, the Bench then notes with concern in para 6 that, “Recently, it is noticed that there has been a growing trend of advocates’ clerks signing affidavit for applications/petitions/counter affidavits etc. imperviously and oblivious of the contents therein. A Vakalatnama to represent a party in Court is held by an Advocate and the brief is entrusted to the Advocate. The Advocate-client relationship is quite clearly accepted as a fiduciary relationship and the communication is privileged and confidential. It is strictly between the client and the Advocate. Neither the brief nor is the permission to represent a party to be shared by the Advocate with his clerk. An advocate’s clerk signing an affidavit instead of the party himself or a person designated/authorised by the party or the Advocate holding the Vakalatnama is unacceptable and such attempts to subvert the law is impermissible. An advocate’s clerk as defined in The Orissa Advocates’ Clerks Welfare Fund Act, 2008 is as under:

“2 – b) “Advocates’ clerk” means a clerk employed by an Advocate and recognized by such authority and in such manner as may be prescribed and who is a member of an Advocates’ Clerks’ Association;”

An advocate’s clerk, no doubt, renders invaluable assistance in the advocate’s office in various day to day matters including filing, effecting service, coordination etc. Nothing entitles or enables an advocate’s clerk to appear before a Court on behalf of an advocate. Similarly, an advocate’s clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court, especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed.

The Courts have always come down heavily on the practice by initiating contempt proceedings where they have discovered that an advocate’s clerk has falsely signed an affidavit. The most recent instance of the same being the order passed by a coordinate bench of this Court, wherein a show cause contempt notice was served on an advocate’s clerk who had sworn an affidavit in a bail application of an accused on the basis of forged medical certificates.”

To put things in perspective, the Bench then while dwelling on affidavit and mentioning the relevant provisions observes in para 7 that, “The relevance of Affidavit is ingrained in both the procedural codes in India. The word “Affidavit” has its roots from a Latin word which literally means to “pledge one’s faith.” It is a written statement from an individual which is sworn to be true and the contents of an affidavit reflect the personal knowledge of the individual making the statement. The Civil Procedure Code deals with the issue in the following terms:

Civil Procedure Code, 1908 – Order XIX – Affidavits:

“3. Matters to which affidavits shall be confined. – (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:

Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hear say or argumentative matter, or copies of or extracts from document, shall (unless the Court otherwise directs) be paid by the party filing the same.”

Similarly, the Orissa High Court Rules, Chapter VI – General Rules regarding Applications and Affidavits provides as follows:

“4. Every petition and every affidavit shall be entitled “In High Court of Orissa” and shall be:

(i) neatly typed on foolscap thick white paper with a margin of five centimetres and shall contain approximately twenty-four lines in each full page and only one side of the paper shall be used;

(ii) couched in proper language; and

(iii) signed and dated either by the petitioner or declarant or his advocate.

Provided that in case where the petition is filed from the judgment or order of a Subordinate Court as in the case of Civil Revision, Criminal Revision and Civil Review and where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s clerk may be accepted and the parties’ affidavit dispensed with.

(iv) presented either by the petitioner or declarant or his recognised agent or his Advocate or some person appointed in writing in each case by such Advocate to present the same.

14. When the petitioner in any petition or the declarant in any affidavit speaks to any fact within his knowledge he must do so directly and positively using the words I affirm (or make oath) and say.

15. When in an affidavit on an interlocutory application the declarant makes a statement of his belief he shall, if the facts are ascertained-

(i) from another person, give such details of such person as are required by Rule 11;

(ii) from a document or copy of a document, state the source from which it was procured and shall state his belief as to the truth of such fact.

26. No petition or affidavit shall be read or used in the High Court which does not comply with the provisions of this Chapter.””

While underscoring the importance of affidavits and citing the relevant case laws, the Bench then states in para 7 that, “The relevance of Affidavit is ingrained in both the procedural codes in India. The word “Affidavit” has its roots from a Latin word which literally means to “pledge one’s faith.” It is a written statement from an individual which is sworn to be true and the contents of an affidavit reflect the personal knowledge of the individual making the statement. The Civil Procedure Code deals with the issue in the following terms:

Civil Procedure Code, 1908 – Order XIX – Affidavits:

“3. Matters to which affidavits shall be confined. – (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:

Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hear say or argumentative matter, or copies of or extracts from document, shall (unless the Court otherwise directs) be paid by the party filing the same.”

Similarly, the Orissa High Court Rules, Chapter VI – General Rules regarding Applications and Affidavits provides as follows:

“4. Every petition and every affidavit shall be entitled “In High Court of Orissa” and shall be:

(i) neatly typed on foolscap thick white paper with a margin of five centimetres and shall contain approximately twenty-four lines in each full page and only one side of the paper shall be used;

(ii) couched in proper language; and

(iii signed and dated either by the petitioner or declarant or his advocate

Provided that in case where the petition is filed from the judgment or order of a Subordinate Court as in the case of Civil Revision, Criminal Revision and Civil Review and where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s clerk may be accepted and the parties’ affidavit dispensed with.

(iv) presented either by the petitioner or declarant or his recognised agent or his Advocate or some person appointed in writing in each case by such Advocate to present the same.

14. When the petitioner in any petition or the declarant in any affidavit speaks to any fact within his knowledge he must do so directly and positively using the words I affirm (or make oath) and say.

15. When in an affidavit on an interlocutory application the declarant makes a statement of his belief he shall, if the facts are ascertained-

(i) from another person, give such details of such person as are required by Rule 11;

(ii) from a document or copy of a document, state the source from which it was procured and shall state his belief as to the truth of such fact.

26. No petition or affidavit shall be read or used in the High Court which does not comply with the provisions of this Chapter.””

While citing more relevant case laws to drive home the point, the Bench then envisages in para 8 that, “The importance of affidavits, strictly conforming to the requirements laid out in Order XIX Rule 3 of the Civil Procedure Code, 1908 has been discussed as far back as in 2010 in Padmabati Dasi v. Rasik Lal Dhar (1910) ILR 37 Cal 259, wherein the Hon’ble High Court of Calcutta held as under:

“…We desire to impress on those who propose to rely on affidavits that, in future, the provisions of Order XIX, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a statement of the deponent’s knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be sage to act on the deponent’s belief….”

The Hon’ble Supreme Court of India confirmed the aforesaid position in State of Bombay v. Purushottam Jog Naik AIR 1952 SC 317, wherein a Constitution Bench, while considering the importance of verification of an affidavit, among others, held as under:

“…We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verifications should invariably be modelled on the lines of Order 19 Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed…”

Further, in Barium Chemicals Ltd. v. Company Law Board 1966 (Suppl) SCR 311, the Hon’ble Supreme Court has posited that where evidence was adduced by affidavit, such an affidavit could be verified either on knowledge or from sources but the basis of such knowledge or source of information must be clearly stated. Further, more recently in Amar Singh v. Union of India (2011) 7 SCC 69, the Hon’ble Supreme Court struck a note of caution as under;

“64. This Court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order 19 Rule 3 CPC or with Order 11 Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik [AIR 1952 SC 317] , Barium Chemicals Ltd.[AIR 1967 SC 295] and A.K.K. Nambiar [(1969) 3 SCC 864] and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said Rules.”

It is trite law that an affidavit shall always be confined to such facts as the deponent has his own knowledge to prove, except on interlocutory applications, on whose statements of his belief may be admitted, provided that the grounds thereof are stated.”

Quite pertinently, the Bench then hastens to add in para 9 that, “Interestingly, the question of whether an advocate’s clerk is empowered to swear an affidavit was thoroughly discussed in the leading case of Smt. Savitramma v. Cicil Naronha and Anr. 1988 Supp SCC 655, wherein the Hon’ble Supreme Court held that;

“2. …In the case of statements based on information the deponent shall disclose the source of his information. Similar provisions are contained in Order 19, Rule 3 of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be in accordance with Order XI, Rules 5 and 13 of the Supreme Court Rules. The purpose underlying Rules 5 and 13 of Order XI of the Supreme Court Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief as this is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit…If the statement of facts is based on information the source of information must be disclosed in the affidavit.”

“5. The matter does not rest here. The affidavit filed on behalf of the accused in reply to the contempt petition is shocking. The office clerk of the advocate for the accused has filed affidavit on behalf of the accused in reply to the contempt petition. The deponent of the counter-affidavit has verified the affidavit saying that the statements of the case of the accused are true and correct which are based on the records maintained in the office of the advocate and based on the instructions received from the clients. Such an affidavit is wholly improper and inadmissible in evidence and liable to be rejected. What reliance can be placed on an affidavit filed by a person sitting at Delhi and that too a clerk of an advocate practising at Delhi giving reply to the allegations and facts and circumstances existing at Karnataka on the basis of records maintained in advocate’s office at Delhi. The practice of clerks of advocates filing affidavits without a proper verification should be deprecated. As matters before the Apex Court are determined on the basis of the statements contained in affidavits it is the duty of the litigants and the lawyers to file affidavits in accordance with the rules to assist the court in administering justice.”

Furthermore, in Someswar Gogoi v. State of Assam 1988 SCC OnLine Gau 10, the Hon’ble High Court of Gauhati held as under;

“We are of the view that the best person to swear an affidavit is undoubtedly the petitioner himself, and normally an affidavit should be verified by him. In case the petitioner be ailing or infirm he can definitely depute somebody else who is to full know of things whose affidavits would satisfy the mind of the Court about the correctness of the averments; made in the petition. It is too well-known that when a writ petition is filed either the petitioner or somebody being in know of things comes to brief the Counsel. In such a situation it should not be difficult to get the required affidavit verified by such a person. If an Advocate’s clerk has to verify the affidavit, all that he can say is that what has been stated by him relating to the facts of the case is true to the information derived by him either from the petitioner or some tadbir karak. Now, if the petitioner or tadbir karak had come to brief the counsel, we do not find any reason as to why such I a person should not be asked to verify the affidavit. It may be pointed out that provision of Order 19 Rule 3 requires giving of source off information when the fact is not true to the knowledge of the deponent. In such a situation if the advocate’s clerk has merely to say what has been stated by him is true to the information supplied by the petitioner, as he shall have to say unless he has direct knowledge of the facts, the Court would not know whether the information supplied by the petitioner was true to his knowledge, or he himself in turn has derived the same from some other source. An affidavit of an Advocate’s clerk in such a situation cannot inspire full confidence in the mind of the Court about the correctness of the averments made in the petition.”

Please read concluding on thedailyguardian.com

It would be apposite to note the following observations made by the High Court of Madras in Tamizhaga Panchalai Thozhilalar Sangam v. The Presiding Officer and Ors 2012 SCC OnLine Mad 3105., :

“23. Though under the Vakalat, an Advocate is authorised to appear and defend the proceeding, has the duty to represent the proceedings, a Party to the lis cannot fix responsibility on the clerk. The brief is not in held in trust, by the advocate’s clerk. Neither the Civil Rules of Practice nor the rules framed by the High Court to regulate the registration of recognized clerk and communicated to the lower courts, enable the pleader’s clerk to file an affidavit on behalf of the litigant. Where the Advocate’s clerk, has committed a bona fide or inadvertent mistake or there is an accidental omission, or typographical error in a pleading by the typist engaged by the pleader in his office, it is the litigant or the pleader, to file an affidavit, explaining the reasons for the said mistake, on the basis of his personal knowledge, or information, as to the facts pleaded. There cannot be any extension of the vakalat given to an Advocate, to a Clerk or to a typist, to any other employee, in the Pleader’s office, to act on behalf of a party. Authorisation given under Vakalat cannot be extended to an Advocate Clerk for the purpose of swearing an affidavit.”

Be it noted, the Bench then minces no words to state in para 10 that, “An affidavit is an accepted mode of placing evidence before the Court. A party uses an affidavit to prove a fact or facts before the Court. Perforce, such an affidavit should always be in accordance with the prescribed Rules. The purpose underlying the Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief. This is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit, in the right perspective. It is for this very reason that a party swearing an Affidavit must disclose as to what facts are true to his personal knowledge, information or belief. If the statement of fact is based on information, such source of information must be disclosed in the affidavit. An affidavit which does not comply with these provisions has no probative value and it is liable to be rejected. An advocate’s clerk who has no personal knowledge of the facts of the case, nor is independently empowered to swear such an affidavit is not permitted in law to file a token and mechanical affidavit. When the Rules clearly lay out the form, content and degree of knowledge required to be included in an affidavit, to ensure the reliability and veracity of the same, any affidavit which is not in strict consonance with the same has to be discarded.”

As is quite ostensible, the Bench then states in para 11 that, “It is clear that Rule 4(iii) of the Orissa High Court Rules contemplates that in cases where this court exercises appellate powers, as in cases involving civil or criminal revision as well as cases where the Court is exercising its power of Review, a specific exception has been made wherein the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate’s clerk. This specific exception was made, perhaps, keeping in mind that in certain cases, as aforementioned, the records of the case are already present in the records of the Court. In such a situation, the advocate’s clerk is not required to furnish any additional new information or put forth any original fact. That is the only extent to which such an exception may be made. Since the Rules made by different High Courts have to be in conformity with Order XIX of the CPC, which broadly deals with affidavits, this exception envisaged in the Orissa High Court Rules is restricted in its use.

In all cases arising out of the original jurisdiction of the Court, including any other matter which does not fall under the categories expressly provided for in the proviso to Rule 4(iii), the question of an affidavit being filed by an advocate’s clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted.”

What’s more, the Bench then while citing the relevant state rules in para 12 elucidates that, “Furthermore, a perusal of Rule 14 and Rule 15 of the Orissa High Court Rules which lays down how an affidavit is to be framed by the declarant, the Court while accepting the affidavit of a declarant casts a strict responsibility on them to make certain disclosures to ensure that the facts, statements, etc. contained in the affidavit are based on personal knowledge or on belief which can be traced back to its sources. Even then, the affidavit will be subject to Rule 26. Given the fact that a clerk has no means of having any personal knowledge or belief with respect to the facts in an original petition, the question of him being permitted to file an affidavit does not arise. It has rightly been left out in the Rules which specify that only the petitioner/ declarant or an advocate can sign such an affidavit.”

Without mincing any words, the Bench then observes in para 13 that, “This practice of advocate’s clerks filing affidavits is unacceptable. The Registry is directed to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court, made in gross violation of Rule 26 of the Orissa High Court Rules.”

As a corollary, the Bench then holds in para 14 that, “A conjoint reading of the above-mentioned Rules thereby lead this Court to an irresistible conclusion that:

i. An affidavit must strictly be restricted to the facts that the deponent is able to prove are within his own knowledge;

ii. In certain situations, i.e., in interlocutory applications, if the deponent chooses to rely on other sources on which he bases his belief, the details of such person, document, etc. must clearly be stated and it must be explained how the information was procured;

iii. An affidavit may be presented either by the petitioner, or the declarant or the Pairokar, or advocate or such person as duly appointed in writing only;

iv. If a petition is filed from the judgment or order of a Subordinate Court, where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s Clerk may be accepted as per Rules; and

v. Any affidavit not in complete compliance with the provisions shall not be relied upon or used.”

Finally, the Bench then holds in the last para 15 that, “In view of the above, this Bail Application being defective, is accordingly dismissed. It is further made clear that any of the observations made in this judgment shall not come in the way of a fair trial of the case, nor shall the trial Court be influenced by these observations. The petitioner can file a fresh Bail Application, if he is so advised.”

Of course, what this brief, brilliant and balanced judgment by Justice SK Panigrahi of the Orissa High Court makes manifestly clear is that advocates clerks cannot file affidavits on behalf of parties on original side as it clearly violates Rule 26 of the Orissa High Court Rules. It has therefore very rightly directed its Registry to ensure that steps are taken forthwith to stop the despicable practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court. Justice SK Panigrahi very rightly affirmed that, “Given the fact that a clerk has no means of having any personal knowledge or belief with respect to the facts in an original petition, the question of him being permitted to file an affidavit does not arise….An advocate’s clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed.”

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LABOUR LAW: ASSESSING LIABILITY AND OBLIGATION OF PRINCIPAL EMPLOYER AND CONTRACTOR

In recent times, there have been sincere attempts to ensure that employees/workers are adequately compensated.

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Employee benefit plans and investment schemes are a vital part of the overall compensation package of employees and acts as an important social security parameter for a large workforce in India. While such benefits surely boost the welfare of the bottom line in the short run, a cohesive employee benefit and investment package ensures prosperity of the organization in the long run inasmuch when the employees feel that the benefits and financial security provided by their job is adequate, they tend to be more productive. Over the last few decades, a huge emphasis has been given by the legislature to these investment schemes and benefits to ensure that the employees / workers are adequately compensated. The Employees’ Provident Fund (“EPF”), the Employees’ State Insurance (“ESI”) and Gratuity have been of particular emphasis and importance in this regard. While separate legislations have been enacted to operationalize the payment / deduction of EPF, ESI and Gratuity, namely the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952 (“EPF Act”), the Employees’ State Insurance Act, 1948 (“ESI Act”) and the Payment of Gratuity Act, 1972 (“Gratuity Act”) respectively, the obligation to make such payments / deductions still remains an issue of concern and contention. In most cases, the Principal Employer attempts to shift the liability of the payment / deduction to the Contractor and vice versa. While there are a line of judicial precedents coupled with the provisions of the EPF Act, ESI Act and Gratuity Act which bring about clarity to the issue of liability, it can be often seen that Principal Employers and/or Contractors attempt to evade this liability by misinterpretation and/ or ignorance of law, thereby resulting in prejudice to the workers and protracted litigations thereafter.

DEDUCTION / PAYMENT OF EMPLOYEES’ PROVIDENT FUND UNDER THE EPF ACT

Section 2(e) of the EPF Act defines ‘employer’ in relation to the EPF Act and includes the owner, occupier and/or the person who has the ultimate control over the affairs of the establishment. Further, Section 2(f) defines ‘employee’ which includes any person who gets, his wages directly or indirectly from the employer and specifically includes any person employed by or through a ‘contractor’. Additionally, paragraph 30 of the EPF Scheme, 1952 (“EPF Scheme”) stipulates that the payment of employee contributions (including Employees’ Provident Fund) and those pertaining to the Contractor, shall be the obligation of the ‘employer’. On a perusal of the aforementioned provisions, it appears that the Principal Employer shall be liable for all PF contributions, including for those belonging to the labourers / workers of the Independent Contractor, particularly in view of paragraph 30 of the EPF Scheme. Further, Section 2(f) includes within its ambit even those persons who are appointed through an Independent Contract, which gives the impression that the Principal Employer would be liable for all statutory disbursements / deductions pertaining to such employees, including PF contributions. However, judicial precedents on the issue have clarified the position in relation to the liability of Principal Employer and the Independent Contractor pertaining to the payment of PF contributions. It has been repeatedly held by Courts that in the event the Independent Contractor operates independently having its own code, it would be liable for the PF deductions / disbursements themselves and such liability cannot be imputed on the Principal Employer. The High Court of Madras in its ruling in The Madurai District Central Cooperative Bank Ltd. v. EPFO [2012 LLR 702], while dealing with a situation where an independent code was allotted to the Independent Contractor, clearly stipulated that the obligation under paragraph 30 of the EPF Scheme would only fall on the Principal Employer in the event the Independent Contractor does not have an independent code. However, when such independent code has been obtained, the independent contractor shall be liable for all PF payments. Similarly, the High Court of Madras in its ruling in Brakes India Ltd. v. EPFO [2015 (2) LLN 233 (Mad.)] while dealing with the aspect of PF deductions / contributions by the Principal Employer and/ or the Independent Contractor wherein the Independent Contractor had an independent PF Code, relied on the aforementioned ruling in Madurai District Central Cooperative Bank Ltd of the High Court of Madras and held the Independent Contractor shall have the liability in relation to the PF payments. Further, the High Court of Punjab and Haryana at Chandigarh in its ruling in Calcutta Constructions Company v. Regional Provident Fund Commissioner and Ors. [2015 (146) FLR 579] has held on similar lines that in the event the Independent Contractor has an independent code, such Independent Contractor shall be liable for the PF contributions and not the Principal Employer.

DEDUCTION / PAYMENT OF EMPLOYEES’ STATE INSURANCE UNDER THE ESIC ACT

 Section 2(9) of the ESI Act has stipulated the scope and ambit of ‘employee’ in relation to the ESI Act and includes anybody who is employed through an immediate employer and who works under the supervision of the Principal Employer. Clearly therefore, pursuant to the aforementioned provision, the workers of the Independent Contractor over which the Principal Employer has control and supervision would fall within the ambit of employee under the ESI Act and their monetary liabilities would have to be taken care of by the Principal Employer. However, the element of ‘supervision’ becomes extremely crucial to determine the liability of the Principal Employer for monetary deductions / disbursements. The Division Bench of the Madras High Court in its ruling in South India Surgical Company v. The Regional Director, ESIC [L.P.A. No. 74/1992], while dealing with an issue relating to ESI disbursements / deductions by the Principal Employer and/or the Contractor, held that when the Principal Employer had no control and supervision over the workers of the Independent Contractor, such workers would not fall within the ambit of Section 2(9) of the ESI Act and accordingly would not be ‘employees’ as per the Act. Clearly therefore, the ESI compliances in relation to such workers would have to be taken care of by the Independent Contractors. A Full Bench of the Madras High Court, thereafter in its ruling in ESI Corporation v. Bethall Engineering Company [C.M.A. (NPD) No. 1765 of 1999], while relying of the aforementioned Division Bench decision of the Madras High Court in South India Surgical Company held that in the event the Principal Employer does not exercise ‘supervision’ over the workers of the Independent Contractor, then such workers would not fall within the ambit of ‘employees’ under Section 2(9) of the ESI Act and the monetary liabilities in relation to the workers would accrue to the Independent Contract in such case. Similarly, the Madras High Court in its ruling in Deputy Director, Insurance No. V, ESIC v. India Pistons Repco Limited [C.M.A. No. 1516 of 2010] held that the liability of ESI would only on the Principal Employer when the Principal Employer controls and supervises the work in relation to the workers of the Independent Contractor, otherwise, such liability would be imputed to the Independent Contractor.

DEDUCTION/PAYMENT OF GRATUITY UNDER THE GRATUITY ACT

 Section 1(3) of the Gratuity Act stipulates the scope of the Gratuity Act and includes within its ambit ‘establishments’ within the meaning of any law and/ or where ten or more employees are employed. Section 2(f) of the Gratuity Act defines ‘employer’ to be the authority having control and supervision of the employees working in the establishments. Further, it is pertinent to note that Section 2(e) of the Contract Labour (Regulation & Abolition) Act, 1970 (“Contract Labour Act”) defines establishment to include any place where any industries, trade, business or manufacture or occupation is carried out. Additionally, Section 2 (vi) of the Payment of Wages Act, 1936 (“Payment of Wages Act”) becomes relevant inasmuch it defines ‘wages’ and includes sums on the termination of the employment of the person. The aforementioned provisions clearly give the impression that the Principal Employer shall be responsible for the payment of gratuity in relation to the workers of the Independent Contractor inasmuch such Principal Employer shall be an ‘establishment’ and liable for wages on termination, which would include gratuity. However, Section 21(4) of the Contract Labour Act stipulates that in the event the Independent Contractor fails to make payment of wages, then the same shall be paid by the Principal Employer which can thereafter be recovered from the Independent Contractor. Accordingly, Section 21(4) of the Contract Labour Act makes it clear that if the primary liability for payment of gratuity to its workers lies on the Independent Contractor, in the absence of which the liability shall lie on the Principal Employer. In the aforementioned context, the Madras High Court in its ruling in Madras Fertilizers Limited v. The Controlliing Authority, Assistant Commissioner of Labour (Gratuity) and Ors. [2003 (97) FLR 275], while dealing with the aspect of gratuity compliances pertaining to the Principal Employer and/or the Independent Contractor, categorically held that in the event the Independent Contractor, who has engaged the workmen does not pay gratuity, then pursuant to Section 21(4) of the Contract Labour Regulation Act, the Principal Employer shall be liable to pay such dues and then recover the same from the Independent Contractor. The aforementioned ruling therefore clearly stipulated that the Independent Contractor, who hires the labourers, shall fall within the ambit of ‘establishment’ in the Contract Labour Act and accordingly the primary liability to pay gratuity would be on such Independent Contractor. In the event such Independent Contract does not fulfill its obligations of paying gratuity, the same shall be fulfilled by the Principal Employer. The Bombay High Court, thereafter, in its ruling in Cummins (I) Limited and Ors. v. Industrial Cleaning Services and Ors. [2017 (1) ARB 705] held on similar lines that in the event the Independent Contractor does not pay gratuity to its workers, the Principal Employer shall pay the same and thereafter recover the amounts from the Independent Contractor. Further, The Madras High Court recently, in its ruling in Superintendent Engineer, Mettur Thermal Power Station v. Appellate Authority, Joint Commissioner of Labour, Coimbatore and Another [(2012) 3 CLR 243], while relying on the decision of the Madras High Court in Madras Fertilizers Limited, held the Principal Employer shall pay the gratuity and recover the same from the Independent Contractor in case of defaults by the Independent Contractor.

CONCLUSION

1. In the light of the aforementioned legal analysis, the following conclusion can be derived in relation to statutory contributions / deductions pertaining to EPF, ESI and Gratuity: i. In the event the Contractor / Sub-contractor has an independent code, the Principal Employer shall not be liable to make PF deductions / contributions pursuant to paragraph 30 of the EPF Scheme and such liability shall be on the Contractor / Sub-contractor. ii. In the event Principal Employer exercises supervision and control over the workers of the Independent Contractor, then such workers would fall within the ambit of Section 2(9) of the ESI Act, and accordingly the ESI liabilities would accrue to the Principal Employer in such case. Otherwise, such liability would be imputed to the Independent Contractor. If the Contractor / Subcontractor has defaulted in its gratuity payments, the Principal Employer shall be liable to make such payments and thereafter recover such amounts from the Contractor / Sub-contractor.

On a perusal of the aforementioned provisions, it appears that the principal employer shall be liable for all PF contributions, including for those belonging to the labourers/ workers of the independent contractor, particularly in view of paragraph 30 of the EPF Scheme. Further, Section 2(f) includes within its ambit even those persons who are appointed through an independent contract, which gives the impression that the principal employer would be liable for all statutory disbursements / deductions pertaining to such employees, including PF contributions.

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Public servants & rule of law: An analysis

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

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With the lockdown opening again, the realization sets in that the second wave of the pandemic came and became a horrifying nightmare come true. India was in international eyes as India recorded lacks of news infections and thousands of deaths every day. The sudden upsurge in cases saw hospitals filled and an acute shortage of oxygen beds, oxygen cylinders, medicines and oxygen concentrators. What we also saw was people losing their loved ones. Everyday praying to not hear of another death. Undoubtedly, to some extent, every individual has his share of responsibility to stay safe. However, the responsibility of the state and its various organs who have duty to manage and foresee the situation is much more. When the second wave came on its peak, sadly the members of State organs instead of fulfilling their responsibilities committed some grossly negligent acts which may fasten criminal liability upon them. We have examined the criminal liability of these state instrumentalities in the view of the conduct of super spreader events, which directly stem out of maladministration.

WHETHER THERE IS ANY IMMUNITY AGAINST CRIMINAL CHARGES

The answer is no. This can be inferred from a judgement of the Apex court wherein it has held that Council of Ministers are public servants within the meaning of Section 21 of Indian Penal Code (IPC) and thus, offences defined under IPC apply equally to Council of Ministers as well as members of Election Commission. However, this immunity is subject to a procedural requirement provided under Section 197 CrPC.

(i) Officials may be held liable under Section 336 and Section 269 of Indian Penal Code, 1860

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

Now let’s see what happened in India, the event of Kumbh Mela Shahi Snan was allowed to happen without following Covid protocols where even Chief Minister of the State was seen without any mask. It was also reported that thousands took the bath in the Ganges without a mask and COVID-19 negative report. All this happened without taking any proper and reasonable care. These facts clearly make the case of a rash and negligent act which endangered the lives of indefinite amount of people.

Then comes the political rallies. Most of the political leaders were found flouting the Covid protocols i.e., not wearing a mask. Election Commission forced the teachers and investigators to perform their duties in the absence of RT-PCR Test. By virtue of Section 32 IPC, the commitment of an offence by performing an act is equivalent to commitment of offence by not taking any action. Thus, the act of members of Election Commission of being mute spectators to the violations of covid protocols by political parties, it makes them liable under Section 336 IPC read with Section 32 IPC.

Proceeding next, a person who commits any act even when he knows that he by that act may spread a disease which is dangerous to life is punishable under Section 269 IPC. It needs no explanation that officials knew that allowing these super spreader activities in the pandemic without following necessary Covid protocols led to the spread of this deadly disease.

It is also important to note here that the “doctrine of contributory negligence” i.e. that the victim too was negligent along with accused does not apply to criminal cases. Thus, the defense that the people in rallies were themselves negligent would not be considered as a legitimate defense if the officials themselves were negligent under these sections.

(ii) Officials can also be made liable under Sections 337, 338 and 304A IPC

Apart from the liabilities mentioned above, if it is proved that any person contracted the disease only from the place of rally or polling station, these officials can be made liable under Section 337 IPC. Further, if the level of infection was so high that it nearly endangered the life of that patient, the officials would be liable under Section 338 IPC. More severely, if it is proved that the person died due to the infection, the officials can be held liable under Section 304A IPC. In fact, the Allahabad High Court has taken judicial notice of the death of 135 persons who were on election duty during Panchayat elections in the State due to Covid-19 because the social distancing norms were not followed at counting areas.

(iii) Liability under Disaster Management Act, 2005

Clause (b) of Section 51 of the Act may also make them liable because they have not followed the directions issued by Government under this Act. The Union Home Ministry has mandated the strict compliance of wearing masks in public places. The refusal of the wearing of masks by the officials in elections may make them liable under this provision.

Further, Section 55 further makes the heads of Department liable if any offence is committed by a specific department. The conduct of the Election Commission which did not mandate the RTPCR tests during elections makes its officials liable under Section 55 of the Act.

CONCLUSION

Clearly, the facts show incidents of clear injustice to the people. The question arises what can be done? The apex court may take action on its own against the officials if it is of the opinion that injustice has been caused to public. Additionally, anyone can also file PIL in Supreme Court under Article 32 or High Court under Article 226 of the Constitution to remedy the injustice caused because of the deprivation of right to life guaranteed under Article 21 of the Constitution. The courts have now become chief social activists by giving interest to society’s paramount importance and instituting legal actions against the criminal acts happening in the country to protect the rights of its citizens. It’s the time for courts to exercise that power.

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Forum shopping: Responsibility to recuse, but when

The problem of forum shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice.

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Litigant cannot be permitted to browbeat the court by seeking a Bench of its choice.

Justice M.R. Shah

INTRODUCTION

Judges like other human beings are at times prone to succumb to their emotion while delivering their judgment instead of applying proper and sound reasoning to substantiate their decision. While most of the time it goes unnoticed, there are instances when it becomes too evident to be ignored by arguing counsel and justice seeking client before his bench. This change in heart while delivering judgement can be attributed to their prior personal or incidental experience of the Judge. While this unintended bias is possible this is not the case all the time. Such instances are used as a means to secure a judge who has a lenient attitude towards the litigant’s case. This practice of securing a more compassionate judge toward for the litigant is called forum shopping.

While, forum shopping predominantly relates to selection of country on the basis of laws in international transaction which appears more favourable in nature, this concept has now seeped into our own municipal legal system with clients trying to have their case presented before a judge who is considered more inclined to deliver judgement in favour of him or his class of litigant. The concept of forum shopping does not find any place in our statute books but numerous precedents and judgements delivered by Hon’ble Supreme Court and numerous High Courts has composed a basic jurisprudence around it.

SUPREME COURT AND HIGH COURTS’ VIEW ON THIS ISSUE

Justice Gautam Patel of Bombay High Court in the recent case of Raja Mahendragir & Anr v Shankuntaladevi Shankar Puri, came down heavily on the litigant seeking his recusal on the ground that his client will never get justice from him. The contention of litigant and his counsel were on flimsy grounds comprising of a string of judgements delivered on similar matter by him against a class of litigant to which the present litigant belonged. In his application requesting for recusal, he stated that,

“From the orders passed by the Honourable Justice G.S. Patel till this day as well as his way of working of not giving to the real heir enough opportunity to collect the necessary documents, I have become absolutely certain that I will never get justice from him. Hence, our aforesaid matter may kindly be transferred from his Court to some other Court as we have no faith in him.”

Thus, it was an identifiable trend in the Judge’s judgement (whether the trend identified by the litigant was erroneous or not the author does not wish to comment) which prompted the litigant to seek his recusal which was ultimately dismissed.

The Hon’ble Supreme Court has not just disapproved such practice but also depreciated it considering the effect it evidently has on the image of the impugned Judge and the Judiciary as a whole. In the case of M/s Chetak Construction Ltd. v. Om Prakash & Ors, the court deliberated upon the issue at length and remarked that litigants endeavour for forum shopping cannot be allowed by courts in the interest of impartial justice delivery system. The court further opined that, “A litigant cannot be permitted choice of the forum and every attempt at forum shopping should be crushed with a heavy hand”. The court in the aforementioned case categorised a set of acts which can be considered as forum shopping. Primary among them were.

Requesting the concerned Judge to recuse himself on flimsy grounds of conflict of interest.

In cases where the presiding Judge has a conflict of interest and has an inherent interest in the output of the case, he is required to recuse himself from the bench deliberating upon it. This is because; there is a possibility that the Judgement delivered by the Judge might be biased. While this rule is an unwritten one governed by good conscience and moral rectitude of the Judge, at times, this rule is used by litigants to have a judge recused from the case who has a record of delivering judgements not in favour of litigant belonging to particular class. Such instance puts the Judge in a state of topsy turvy where the Judgement he will be delivering at a future date will most probably be brought to question for its healthfulness.

By stipulating the valuation of suit in manner which put it before a judge or court of preferable jurisprudential standing.

One other way to have the case brought before a favourable court is to have the valuation according to the requirement of the preferred court. The jurisdiction of a court is determined by the plaintiff’s valuation in the plain. For instance under Andhra Pradesh Civil Courts (Amendment), Act, 2018, a case amounting to 20 Lakh Rs will be presented before Junior Civil Judge, cases amounting to between 20 Lakh to 50 Lakh Rs will be before Senior Civil Judge and cases amount to above 50 lakh will be before District Court. The litigant in such a situation will be within his right to stipulate the valuation in his Suit at such amount on reasonable grounds in order that his case may be presented before a judge or class of judge who is more likely to deliver judgement in his favour.

Appeal to superior court on not attaining a favourable Judgement

While this category cannot be considered as a mode of forum shopping per se but it has been used by litigants to have a critical judgement overturned on appeal in favour of him.

The principle laid down in the case of M/s Chetak Construction Case was further reiterated in the recent case of Neelam Manmohan Attavar v. Manmohan Attavar by a division bench of Hon’ble Supreme Court.

The law in this realm was succinctly laid down in the case of Seema Sapra v. Court on its own Motion wherein the court drew support from the Schedule Three of Indian Constitution which provides Oath of Judge for Judges of High Courts and Supreme Court requiring them to duly and faithfully perform the duties of the office they are upon to enter without fear and ill will. The Supreme Court considered the judge’s succumbing to such pressure to recuse from delivering judgement as not fulfilling the very oath they took will entering the coveted office to render service to the people.

In the very case of Seema Sapra, while it was being heard by the High Court of Delhi, a total of 28 judges had to recuse from hearing the case for one reason or another. Furthermore, even at the Supreme Court three judges had to recuse themselves from hearing it on grounds of conflict of interest. Such instance led to imposition of undue burden on the already over burdened courts which are required to hear hundreds of cases every single day.

SOLUTION TO THE PROBLEM OF FORUM SHOPPING

Their cannot be an absolute solution to this nodus of forum shopping. The solution to it lies with the decision of concerned judge on whether he will recuse himself or not. One has to keep in mind that recusal is matter own choosing for the concerned judge. It is open to him to either reject the application for his recusal or to accept it. While an impartial judge is quintessential to the justice deliverty system in our country or for that matter any other country, it is oblivious duty of the concerned judge to discharge the responsibilities he has been bestowed with.

The problem of Forum Shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice. Such penalty will ensure that the litigants and their counsels are aware of possible ramification of their misadventure if it gets exposed before the court.

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Obligation of a father to maintain his son will not come to an end when he attains majority: Delhi High Court on Section 125 of CrPC

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In a brilliant, balanced, bold and brief judgment titled Urvashi Aggarwal & Ors vs Inderpaul Aggarwal in CRL.REV.P. 549/2018 & CRL.M.A. 11791/2018 (Stay) delivered on June 14, 2021, the Delhi High Court has minced no words to make it clear that the obligation of a father to maintain his son under Section 125 of CrPC would not come to an end when the son attains the age of majority after reasoning that the entire burden of his education including other expenses would fall entirely upon the mother. A single Judge Bench comprising of Justice Subramonium Prasad who delivered this extremely learned, laudable and landmark judgment directed that a sum of Rs 15,000 per month is to be given as interim maintenance to the mother from the date of the son attaining majority till completion of his graduation or starts earning, whichever is earlier. The Court observed that, “It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority.” It also did not shy away from observing that, “The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.”

To start with, Justice Subramonium Prasad of Delhi High Court who authored this notable judgment first and foremost sets the ball rolling by observing in para 1 that, “The present revision petition is directed against the order dated 21.04.2018, passed by the Additional Principal Judge, Family court, Tis Hazari, Delhi, declining maintenance to the petitioner No.1/wife and granting maintenance only to the petitioner Nos.2 and 3 herein.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts leading to the present petition are as under:

a) The petitioner No.1 got married to the respondent herein on 11.11.1997. Out of the wed-lock two children i.e. the petitioner Nos. 2 and 3 were born on 14.8.2000 and 14.8.2002 respectively.

b) Disputes arose between petitioner No.1 and the respondent herein. Petitioner No.1/wife filed a petition under Section 125 Cr.P.C for grant of maintenance.

c) The respondent/husband instituted a suit for divorce. d) During the pendency of the divorce petition, the petitioner No.1 filed a petition under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance. The Family Court declined maintenance to the petitioner No.1 and granted maintenance of Rs.7,000/- per month to the two children which was later enhanced to Rs.13,000/- per month.

e) A decree of divorce was granted on 28.11.2011.

f) The petitioner No.1 filed MAT. APP. No.6/2012 challenging the decree of divorce, which is pending before this Court. This Court vide order dated 25.03.2015 directed the respondent to pay maintenance of Rs. 15,000/- each to the respondent Nos.2 and 3.

g) The respondent has married again and has got a child from the second marriage.

h) A perusal of the material on record shows that the petitioner No.1 and the respondent are both Government employees. The petitioner No.1, at the time when the impugned order was passed, was working as an Upper Divisional Clerk in Delhi Municipal Corporation and the respondent is working as a Joint General Manager (HR) with the Airports Authority of India. The monthly income of the petitioner No.1, in the affidavit filed by her in the year 2016, is shown as Rs.43,792/- per month and she has stated that her monthly expenditure is Rs.75,000/-. She also stated that her net income is Rs.37,762/- per month. On the other hand, according to the affidavit dated 06.02.2016, filed by the respondent, he was earning a gross salary of Rs.96,089/- per month.

i) The petitioner No.1 moved an application for grant of interim maintenance claiming a sum of Rs.40,000/- per month. The learned Family Court after considering various factors came to the conclusion that since the petitioner No.1 is earning sufficiently for herself, she is not entitled to any maintenance. As far as petitioner Nos. 2 and 3 are concerned, the learned Family Court apportioned the income of the respondent into 4 shares, out of which two shares have been given to the respondent and one share each i.e. 25% has been given to the two children. Out of 25% for each children, as directed by the Family Court, the respondent had to pay 12.5% to each of the child out of his gross income less minimum statutory deductions which were to be computed by the employer of the respondent. The learned Family Court has said that the petitioner No.2 i.e. the son of the parties would be entitled for maintenance till he attains the age of majority and the petitioner No.3 i.e. the daughter would be entitled for the maintenance till she gets employment or gets married whichever is earlier. The learned Family Court further said that since the respondent has to maintain his son, born from his second marriage, it was directed that from the date of birth of his son from the second marriage, the share of the respondent shall be 10% each for 2 kids, from the wedlock with the petitioner No.1, as his entire salary was apportioned to five shares (two for the respondent, one each for the three kids). It has been held that since the second wife of the respondent herein is also working, she has the liability to bear 50% of the cost of her son, thereby making the share of the respondent herein as 10% towards the child from the second marriage. The order dated 21.04.2018, reads as under:

“8. Interim maintenance to petitioner no. 1 is declined at this stage as she is able bodied and earning sufficiently for herself and as regards the standard of living behoving with the status of the respondent, the same are questions of fact and triable issues and would be looked into when it would be decided finally after trial whether petitioner no. 1 is entitled for maintenance or not.

9. As regards petitioner no. 2&3 are concerned, the income of the respondent has to be apportioned in four shares @25% i.e. two for himself and one each for the children and from that 25% share for each kid 50% thereof has to be contributed by the respondent for each kid. So the respondent is liable to pay 12.5% each to both the children as his share out of his gross income minus minimum statutory deductions which would be computed by the employer of the respondent However, amount of reimbursement obtained by the respondent for which he has spent from his own pocket will not be calculated for the purposes of apportionment of the share in favour of the children. The petitioner no. 2 and 3 would be entitled to 12.5 % each per month as share of the respondent in the aforesaid manner from the date of application till the pendency of the case. The son of the parties shall be entitled for the maintenance till he attains the age of majority and the daughter till she gets employment or gets married whichever is earlier. The respondent has no liability to maintain his mother-in-law and sister-in- law being under no such legal obligation. The mother of the respondent being pensioner as father of the respondent was a government employee, the respondent has no obligation to maintain her financially. 10. Since the respondent in this case has the liability to maintain his son born from his present wedlock it is ordered that from the date of birth of his son from second wedlock the share of the respondent shall be 10% each for 2 kids from the wedlock with the petitioner as his entire salary in the above terms needs to be apportioned to five shares (two for the respondent, one each for the three kids). Each shares comes to 20%. The second wife of the respondent being also working has the liability to bear 50% for son thereby making the share of the respondent as 10% for the son from second wedlock.”

j) It is this order which is under challenge in the instant revision petition.

k) It is pertinent to mention here that a number of petitions have been filed by the parties against each other. This Court is not dwelling into the details of those petitions since they are not relevant for the present proceedings.”

On the one hand, the Bench then points out in para 3 that, “The learned counsel for the respondent has taken the primary objection stating that the present application is not maintainable and is barred under Section 397(2) Cr.P.C inasmuch as the order granting interim maintenance is an interlocutory order. The said argument has been rebutted by the learned counsel for the petitioners.”

On the other hand, the Bench then brings out in para 4 that, “The learned counsel for the petitioners places reliance on the judgment of this Court in Manish Aggarwal v. Seema Aggarwal, 2012 SCC OnLine Del 4816, which reads as under:

“17. Interim maintenance had been granted under Section 125 Cr. P.C. and the issue arose whether a revision petition could be preferred against that order, as it was alleged to be interlocutory in nature. It was held that the order of interim maintenance was an intermediate or quasi final order. Analogy was drawn from Section 397(2) of the Cr. P.C. and the pronouncement of the Supreme Court in Amarnath v. State of Haryana, (1977) 4 SCC 137 : AIR 1977 SC 2185 qua the said provision was relied upon. Thus, an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in the aid of pending proceedings would amount to interlocutory orders against which no revision would be maintainable under Section 397(2) of the Cr. P.C. On the contrary, those orders which decide matters of moment and which affect or adjudicate the rights of the accused, or a particular aspect of trial could not be labeled as interlocutory orders. The Madhya Pradesh High Court held that an application for interim maintenance is a separate proceeding, to be disposed of much earlier than the final order in the main case. Qua the said issue the matter is finally decided by the order passed by reference to the second proviso to Section 125(1) of the Cr. P.C. Such orders were, thus, intermediate or quasi final orders. Thus, if an order does not put an end to the main dispute, but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgement drew strength also from the observations of the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : AIR 1978 SC 47, where the Supreme Court held that ordinarily and generally the expression “interlocutory order” has been understood and taken to mean as a converse of the term final order. But the interpretation, and the universal application of the principle that what is not a “final order” must be an “interlocutory order” is neither warranted nor justified. In V.C. Shukla v. State, 1980 (2) SCR 380 the Supreme Court held that the term “interlocutory order” used in the Cr. P.C. has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial, and revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi final.

26. We, thus, conclude as under:

(i) In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19(1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.

(ii). No appeal would lie under Section 19(1) of the said Act qua proceedings under Chapter 9 of the Cr. P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.

(iii). The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr. P.C. under sub-section (4) of Section 19 of the said Act. (iv). As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.” (emphasis supplied)

In view of the above, this issue is no longer Res Integra and stands covered fully in favour of the petitioners and the revision petition is maintainable.”

To put things in perspective, the Bench then puts forth in para 5 that, “It is contended by the learned counsel for the petitioners that after holding that each of the child is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent. It is contended by the learned counsel for the petitioners that each of the child is entitled to full 25% of the amount of the salary earned by the respondent. It is further contended by the learned counsel for the petitioners that the learned Family Court has also erred in limiting the maintenance to be given to the petitioner No.2/son till he attains the age of the majority. It is contended by the learned counsel for the petitioners that Section 125 Cr.P.C has to be interpreted in such a manner that the object of Section 125 Cr.P.C is achieved. It is further contended by the learned counsel for the petitioners that the responsibility of a father to take care of his child does not cease after the child attains majority if the child is not able to sustain himself.”

As against what is stated above, the Bench then also points out in para 6 that, “Per contra, the learned counsel for the respondent contends that there is no infirmity in the order of the learned Family Court and that it is a well reasoned order. It is contended by the learned counsel for the respondent that the total amount paid by the respondent to the petitioner Nos.2 and 3 till date is about Rs. 29,25,825/- which is much more than the amount which has been directed by the learned Family Court. It is also submitted by the learned counsel for the respondent that apart from the salary, the petitioner No.1 has got several properties and has got income from other sources and is not only confined to her salary.”

Be it noted, after hearing the counsel of both the parties and perusing the material on record as stated in para 7, the Bench then envisages in para 8 that, “The purpose of Section 125 Cr.P.C has been laid down by the Supreme Court in several judgments. The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child (refer: Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, and Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353).”

Simply put, the Bench then states in para 9 that, “Since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, the Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and facts which have to be proved by the parties.”

It would be worthwhile to mention here that the Bench then without mincing any words states in para 10 that, “The contention of the learned counsel for the petitioners that after recording that both the children are entitled to 25% each of the amount of the salary earned by the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent, cannot be accepted. The balance has to be taken care of by the wife i.e. the petitioner No.1 herein, who is also earning and is equally responsible for the child. The respondent has married again and has a child from the second marriage. This Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage. The further reduction of the amount after the birth of the child from the second marriage of the respondent also cannot be found fault with and the reasoning given by the Family Court does not warrant any interference at this juncture.”

As it turned out, the Bench then holds in para 11 that, “The learned Family Court refused to grant maintenance to the petitioner No.1 herein on the ground that the petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation and is earning sufficiently for herself. The learned Family Court further held that as regards the standard of living which was being enjoyed by the petitioners when the marriage subsided is a question of fact and would be looked into when the case is decided finally after both the parties lead evidence.”

Please read concluding on thedailyguardian.com

Finally and far most crucially, the Bench then holds in para 12 that, “The petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation, earning about Rs.60,000/- per month. The records indicate that the respondent has filed his salary certificate which shows that his gross monthly income, as on November, 2020, is Rs.1,67,920/-. The two children are living with the mother. After attaining the age of majority, the entire expenditure of the petitioner No.2 is now being borne by the petitioner No.1. The petitioner No.1 has to take care of the entire expenditure of the Petitioner No.2 who has now attained majority but is not earning because he is still studying. The learned Family Court, therefore, failed to appreciate the fact that since no contribution is being made by the respondent herein towards the petitioner No.2, the salary earned by the petitioner No.1 would not be sufficient for the petitioner No.1 to maintain herself. This Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner No.2 is not yet over and the petitioner No.2 cannot sustain himself. The petitioner No.2 would have barely passed his 12th Standard on completing 18 years of age and therefore the petitioner No.1 has to look after the petitioner No.2 and bear his entire expenses. It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority. The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter. The amount earned by the petitioner No.1 will not be sufficient for the family of three, i.e. the mother and two children to sustain themselves. The amount spent on the petitioner No.2 will not be available for the petitioner No.1. This Court is therefore inclined to grant a sum of Rs.15,000/- per month as interim maintenance to the petitioner No.1 from the date of petitioner No.2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier. The instant petition was filed in the year 2008. The learned Family is directed to dispose of the petition as expeditiously as possible, preferably within 12 months of the receipt of a copy of this order.” It is then held in the last para 13 that, “Accordingly, the revision petition is allowed in part and disposed of along with the pending application.”

In essence, the crux of this notable judgment delivered by Justice Subramonium Prasad of the Delhi High Court is that the obligation of a father to maintain his son will not come to an end when he attains majority and only the mother alone would not maintain her without any contribution by the father just because the son has attained majority! The Court very rightly took into account the rising cost of living and obligated the father to maintain his son till he completes his graduation or starts earning whichever is earlier as this is what is in the best interest of the child and of the family! It is the bounden duty of all the lower courts to abide by this notable judgment in all such similar cases without fail.

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Judicial reforms in India need to go beyond informal calls for inclusivity

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On 7 June 2021, it was reported that the Chief Justice of India, in a virtually closed-door meeting with the Chief Justices of all the High Courts, emphasised that the High Court collegiums must recommend Dalit, tribal, OBC, minorities and women for elevation as judges so that the High Court would truly reflect the vast social diversity of the country.

This move is revolutionary because several adverse remarks had been made in the past regarding the demography of the higher judiciary but little had changed. Mr George F. Gadbois’ (a political scientist) in his book titled ‘Judges of the Supreme Court of India’, stated that 92.2% of the Supreme Court comprised male Brahmins and other forward castes based on empirical data between 1950-1989; fast forward to the present-day scenario, Supreme Court now has only 1 woman judge, 1 judge from the Dalit community and 3 judges from the Parsi, Christian and Muslim minority communities collectively. Further, the Ministry of Law & Justice’s 2020 report on ‘Judges of the High Courts’ stated that only 12% of the judges in the High Courts were women; and, Vidhi Centre for Legal Policy’s 2018 report stated that there were only 27.6% of women judges in the lower judiciary. In 2016, even the former director of the National Judicial Academy had remarked that “The typical Indian judge is Hindu, upper-class, upper-caste and male.”

For an institution which according to the aforesaid data has been a bastion of few select privileged classes of the society; the decision by the CJI to diversify the higher judiciary comes as a move that warrants acceptance with arms wide open. However, in spite of the substantive part of the inclusivity policy being in tune with the ethos of a representative democracy, the existing practises concerning the elevation of judges to the higher judiciary based on inclusivity grounds, does not facilitate its smooth and sociologically legitimate implementation.

A glimpse of the collegium resolution dated 08.05.2019

This was a time when there was no representation from the Scheduled Caste community in the Supreme Court for a decade. Thus, the Supreme Court Collegium elevated a judge belonging to the Scheduled Caste community from the Bombay High Court. While doing so the Collegium resolution stated that “His (the judge from the SC community’s) recommendation, in no way, is to be misconstrued to mean that three senior-most Judges from Bombay High Court (two of whom are serving as Chief Justices) are less suitable than him”. Now, there are several challenges attached to such ad-hoc elevations. Firstly, the aforesaid statement made by the Collegium makes it look like the only reason why none of the three other senior-most judges of the High Court were elevated is because they were at the right place at the wrong time; secondly, it still does not ensure that representation of judges with non-traditional background in the judiciary would continue in a sustained manner because after all, it took a decades’ time for the Collegium to realise the lack of representation of the SC community in the Supreme Court; and lastly, the lack of a well-defined policy for selection of the candidates belonging to the SC/ST/women/minority communities could exacerbate the allegations of nepotism and favouritism, a charge that the higher judiciary already has been saddled with time and again.

In light of the same, it is natural that the call for diversification by the CJI must be supplemented with procedural policies that both sustain as well as accelerate the prospect of constituting a diverse, democratic and representative judiciary.

JUDICIAL PERFORMANCE EVALUATION

Judicial Performance Evaluation Programmes conduct periodic assessment of the performances of the judges. It dates back to the year 1978 when the government of Alaska conducted the first judicial performance evaluation programme. However, over the years the judicial performance evaluation programmes have evolved across varied array of jurisdictions to meet their own unique needs; some are also meant for enhancing the accountability of the judges apart from determining the career paths of the judges. The 2017 Vidhi Centre for Legal Policy’s report stated that despite the differences among the practice of judicial performance evaluation; there are few commonalities that remain axiomatic across jurisdictions i.e., they are official state-run programmes, data and information on several parameters is collected from a wide audience through survey mechanisms, and the survey results and recommendations are widely circulated.

Further, the 2017 report after wide consultation with eminent jurists, judges, academicians and advocates recommended that India’s judicial performance evaluation programmes must be run by a statutory body or commission that would carry out the surveys annually to evaluate the performances of the judges for the elevation to the higher judiciary. The programme would be conducted in three phases – the first stage would entail the survey which would be filled by peers on the bench, court staff, eminent advocates to name a few; the second stage would carry out the collation of data, and the third and last stage would be the publication of the data in a public domain along with the recommendations made by the body/commission.

The induction of the judicial performance evaluation programmes is not only desirable but even the need of the hour because the aforementioned statistics evinced that the lower judiciary comparatively enjoyed a greater diversity of judges; it gives a fair, if not ideal, pool of candidates whose performances can be evaluated in order to be elevated to the higher judiciary. This would also prove to be a game-changer because not only would it provide for a rational and uniform basis for the elevation/non-elevation of a particular judge to the higher judiciary but also inhibits the scope for favouritism/nepotism, and its annual reports would ensure that the diversification policy is not compromised or ignored over time. Lastly, since the aim of such programmes is also to ensure that merit is rewarded, it would also cause only the meritorious candidates from non-traditional backgrounds to be elevated to the highest echelons of the judiciary; which is in tune with the vision of the drafters of the constitution who envisaged merit as the sole ground for appointment to the judiciary.

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