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The delay disaster

The justice delivery system continues to lumber on for now, but the question really is whether it is delivering justice or whether the justice delivery system is maintaining a Nelson’s eye to all serious and severe problems arising from mounting arrears.

Amir Singh Pasrich

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Indian Judiciary
Indian Judiciary

A little known fact is that during the pandemic there has been an increase in the number of cases pending in Indian courts by roughly 20,000 cases per day. A Delhi High Court Judge is reported to have calculated in 2009 that if we are to clear the arrears in the Delhi High Court, it might take up to 464 years. The Law Commission noted this in its 230th report and opined that the position “may not be that gloomy” but it was “still alarming”. That was their view on the 5th of August 2009. Eleven years later, the Chairman of the Law Commission has naturally moved on, the recipient of the report who was the then law minister has also demitted his office and several Chief Justices have been sworn in and then retired in the Supreme Court of India and in each of the High Courts. The justice delivery system continuesto lumber on…for now, but the question really is whether it is delivering justice or whether the justice delivery system is maintaining a Nelson’s eye to all serious and severe problems arising from mounting arrears. Are we not ignoring the tremendous injustices perpetuated upon every innocent person who remains under trial and is yet incarcerated while s/he is accused of an offence, but has not been adjudicated to be guilty? The favourite maxim of the courts that you are innocent until proven guilty is actually a chimera insofar as it concerns persons who don’t get bail once they are accused of a serious crime. It is even worse if such innocent folks happen to be poor, picked-up by an overzealous police officer who finds the right ingredients of suspicious activity, perceived notoriety and prior criminal record even if such prior criminal record is patently unproven. 

As a reader I would not blame you if you thought: “Surely not – Mr. Author – surely this system is better than that you would assume it to be in your pessimistic article? Surely, we have a system in place to put these people behind bars when they have actually done something wrong?” But the answer sadly is that 69% of India’s jails are occupied with undertrials who have not been convicted. That is the figure as of today. What is worse is that although we started understanding the seriousness of the problem somewhere in the late 90s when the Supreme Court issued its first set of serious directions in the case of Anil Rai vs. State of Bihar in the year 2001, we had no idea how much this behemoth would grow. Far from improving the situation, the number of pending cases has grown from 3.14 crore casesin the year 2009 to 3.46 crore cases today. Shockingly a report that showed a pendency of 3.34 crore cases in late July 2020 when seen in the context of pendency as on Friday, the 25thof September 2020 reflects an increase of 1.2 million cases in just 60 days. If we aren’t bothered about human rights, the effect of “pendency” on prisoners, or the consequences of sending other innocent people to jail for long periods of time (after all – they must have done something wrong!), perhaps our people may worry about money. After all, money determines everything and affects our day-to-day business. India strives to demonstrate its economic power through the new and renewed Ease of Doing Business (EoDB). Chambers of Commerce and business houses alike seek to “unclog the Indian legal system” so as to improve contract enforcement and have faster dispute resolution mechanisms. With courts still stuck in the pendency paralysis, it is clear that our money and the cost of pursuing an ordinary business will be compromised unless we begin with strictly enforced new measures for contract enforcement. Our companies will need to be “saved” from the clutches of civil court pendency which is robbing India of a major element of its business credibility. Mr. Fali Nariman, one of India’s most noted jurists, famously said that in some countries they have Order and in India we have Law. Should we not now quickly marry the two and deliver law and order so as to change international perceptions about how our courts involve themselves with dispute resolution in a purposive and result-oriented approach that might eventually be better than what is on offer elsewhere? What we really need is serious reform and steps for that must be identified soon. 

We are debating this issue in an online platform of the PHD Chamber of Commerce and Industry on this 26th of September, please feel free to find the link at www.phdcci.in and listen in. After this first initiative, another part of this article will emerge with suggested steps for reform based on the lessons of the past. 

Amir Singh Pasrich is Managing Partner of I.L.A. Pasrich & Company, Advocates. He is co-chair of the India Working Group of the International Bar Association (IBA) and is an elected member of the IBA’s LPD Council, he is also Chairman of the Law & Justice Committee of the PHD Chamber of Commerce.

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Legally Speaking

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

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

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

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

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

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

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

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

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IN THE CIRP OF BOMBAY RAYON FASHIONS LTD, NATIONAL COMPANY APPELLATE TRIBUNAL (NCLT) STAYS THE CONSTITUTION OF COC

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The National Company Appellate Tribunal (NCLT) in the case National Company Appellate Tribunal (NCLT), comprising of the bench of Justice M. Venugopal (Judicial Member) and the technical member, Shri Kanthi Narahari observed while adjudicating an appeal filed in Prashant Agarwal v Vikash Parasprampuria, has stayed in the Corporate Insolvency Resolution Process (CIRP) the constitution of the Committee of Creditors (COC) of Bombay Rayon Fashions Ltd. on 15.06.2022, the order was passed.

FACTS OF THE CASE:

The Operational Creditor or the Respondent, Vikash Parasprampuria is the sole Proprietor of Chiranjilal Yarn Traders and the respondent had supplied goods to a public listed company i.e., Bombay Rayon Fashions Limited (“Corporate Debtor”). The Operational Creditor raised nine invoices which was accepted by the Corporate Debtor without any demur and it was noted that the dispute, protest and part payments were also made towards certain invoices.

The reminder letter was sent by the Operational Creditor when the Corporate Debtor failed to release balance payments letters followed by a Demand Notice under Section 8 of the IBC dated 05.11.2020, which was delivered to the Corporate Debtor but no response was received from the Corporate Debtor.

MUMBAI NCLT PROCEEDINGS

An application under section 9 of the Insolvency & Bankruptcy Code, 2016 was filled by the Operational Creditor before the NCLT Mumbai Bench, seeking to initiation of CIRP against the Corporate Debtor, for defaulting in payment of Rs.1,60,87,838/-, wherein the principal amount was Rs. 97,87,220/- and remaining was interest. 01.11.2020, was the default date.

the Operational Creditor placed reliance so as to justify the compliance of Rs. 1 Crore threshold for initiating CIRP of the NCLT judgement in the case Pavan Enterprises v. Gammon India, it was held in the case that interest is payable to the Operational of Financial Creditor then the debt will include interest, in terms of any agreement. However, by including the interest component the threshold of Rs. 1 Crore was being me and no reply has been filled by the Corporate Debtor.

NCLT DECISION:

An order dated 07.06.2022, the NCLT Mumbai Bench observed that the Corporate Debtor had time and again by its letter, invoices and by making part payment acknowledged its liability.

It was stated by the bench that the application under Section 9 was complete in all respects as required by law and there was a default in the payment of debt amount by the Corporate Debtor. The bench accepted the application and the CIRP was initiated against the Corporate Debtor, Mr. Santanu T Ray, Interim Resolution Professional was appointed.

NCLT PROCEEDINGS:

An application was filled by the appellant, Prashant Agarwal before the NCLT against the order dated 07.06.2022.

The settlement was proposed by the Respondent by submitting that if it would be satisfied if the Appellant pays the principal amount along with the CIRP cost towards settlement and on the settlement proposal, the appellant is yet to seek instructions.

Accordingly, the bench in the CIRP of the Corporate Debtor stayed the constitution of CoC and the CIRP process would otherwise continue.

The Appellant to accept or reject the settlement proposal of the Respondent, the bench listed the matter on 07.07.2022.

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ESTOPPEL CANNOT OVERRIDE LAW: SUPREME COURT ACCEPTS UNSUCCESSFUL CANDIDATES’ CHALLENGES TO SELECTION PROCESS HELD AGAINST REGULATIONS

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The Supreme Court in the case Krishna Rai (Dead) Through LRs versus The Benarus Hindu University & Others observed and held that the principle of estoppel or acquiescence would not be applied in a selection process when the principle of estoppel is held contrary to the relevant rules.

The bench comprising of Justices Dinesh Maheshwari and Justice Vikram Nath observed and reiterated that that the procedure in the relevant service manual will prevail over the principle of estoppel and the principle of estoppel cannot override in the eye of law.

An appeal was considered by bench relating to the filling up of 14 posts in Class III (Junior Clerk) in the Benarus Hindu University by way of promotion. However, the notification inviting the applications from Class IV employees for promotion to Class III had not prescribed that interview will be conducted in addition to the typing test. It was also stated that the The service rules also did not mention interview for promotion to Class III. However, it finalized 14 candidates, the Board of Examiners conducted an interview as well.

Before the Allahabad High Court, some of the candidates challenged the selection process by some candidates, who did not get selected. The candidates alleging that through the manual did not prescribe an interview and the Board of Examiners conducted the interview by “changing the rules of the game”. The Selection process was set aside by the Single bench of the High Court by holding that a grave error was committed by preparing the merit list on the basis of the interview as well.

on appeal by the BHU, the division bench of the High Court set aside the judgement of the Single bench on the ground that the petitioners without protest after having participated in the interview, the petitioners are estopped from challenging the selection process after becoming unsuccessful. The appellants approached the Supreme Court challenging the order of division bench.

The Court noted that the Supreme Court held that the division bench fell in error by applying the principle of estoppel. the Manual duly approved by the Executive Council, According to para 6.4, all Class-IV employees who had put in five years’ service and passed matriculation examination or equivalent, those employees were eligible for the promotion to the post of Junior Clerk Grade.

the departmental written test of simple English, Hindi, and Arithmetic, but could not pass the typing test, was passed by the eligible candidates and still the candidates would be eligible for promotion.

It was observed by the Court that the Board on their own changed the criteria and by introducing an interview it made it purely merit based and the merit list was also prepared on the basis of marks awarded in the type test, the written test and interview.

The Top Court said that it is settled principle that the principle of estoppel cannot override the law and the manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.

The Court remarked, while referring to the precents that If the law requires something to be done in a particular manner, there can be no estoppel against law, then it must be done in that particular manner, and if it is not done in that particular manner, then in the eye of the law, it would have no existence.

It was stated that the case laws relied upon by the Division bench had no application in the facts of the present case as none of those judgments laid down states that the principle of estoppel would be above in the eye of law.

Accordingly, The judgement of the Single bench was restored and the appeal was allowed, the judgement of the division bench was set aside.

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PRIMARY TEACHER RECRUITMENT SCAM: CALCUTTA HIGH COURT ORDERS REMOVAL OF CHAIRMAN OF WB BOARD OF PRIMARY EDUCATION

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On Monday, the Calcutta High Court removed Trinamool MLA Manik Bhattacharya from the post of Chairman of the Board of Primary Education, in connection with the alleging irregularities in the recruitment of the teachers in the State government-sponsored and aided primary schools.

Earlier, the bench comprising of Justice Abhijit Gangopadhyay observed and ordered that a court-monitored probe by a special investigation team of the CBI into the alleged illegal appointments of at least 269 primary teachers.

It was contended that such a direction was passed on the basis of the recommendation put forward by the CBI additional director Upendranath Biswas.

The additional director Upendranath Biswas headed the probe into the Bihar fodder scam that led to the conviction of that state’s former chief minister Lalu Prasad Yadav.

From 2011 to 2016, A minister in the first Mamata Banerjee government. additional director Upendranath Biswas had named one Chandan Mondal of Bagda, North 24 Parganas for allegedly giving jobs of primary school teachers in lieu of money.

The Court ordered that the Secretary of the Board, Ratna Chakraborty Bagchi, would remain in the charge till the new appointment is made to the Chairman of the Board. Thereafter, it was intstructed to Bhattacharya to appear in person before the court for further investigation.

It was further ordered by Justice Gangopadhyay that the CBI Joint Director N. Venugopal shall head the SIT and supervise the whole investigation as the counsel appearing for the Court about the constitution of the SIT in accordance with his earlier order.

Six SIT members name have been submitted by the CBI, who will be investigating the cases under the supervision of its anti-corruption branch’s superintendent of police, and its joint director.

Appearing for the petitioner, senior counsel Bikash Ranjan Bhattacharya had requested requested CBI counsel Billwadal Bhattacharyya to reconsider the name of K.C. Risinamol for replacing her by some other officer of similar rank, during the course of proceedings.

Accordingly, It was stated that the Counsel for the CBI had averred that he would talk to senior counsel Bikash Ranjan Bhattacharya as well as his client in this regard and apprise the Court about the appropriate decision taken in this regard.

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‘PUBLIC EMPLOYMENT CANNOT BE OBTAINED BY PAYING BRIBE’: MADRAS HC REJECTS PETITION OF ACCUSED FOR INTERIM CUSTODY OF RS 10 LAKH SEIZED DURING JOB RACKET CASE PROBE

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The Madras High Court in the case K.Sadagopan v. State Rep.by, Inspector of Police and ors observed and dismissed a petition seeking to provide an interim custody of Rs 10 lakh, which is seized in a job racketing case. The Madras High Court bench comprising of Justice D Bharatha Chakravarthy expressed his displeasure at the way people of how they were willing to pay huge amount of money for getting a job. The bench enunciated those public appointments were made through a selection procedure and it cannot be obtained by paying bribes. The bench further highlighted that such persons does not realise that it took years of work to earn such salaries and gave no though to the plight of persons who scored more marks than them.

The Court in its order stated:

Through all the concerns it is to be understood that the public appointments is only done through selection process and no job can be obtained by giving bribe. But the present case, it is it is seen that the petitioner with his full knowledge has given a huge amount of Rs.78 Lakhs for the purpose of securing job under Class -I and without any thought about that how many years a person has to work and earn that much of salary and the accused without any guilt as to what will happen to the person, who has scored much more marks. However, the court inclined to pass any order expediting the trial and hence, the Court concluded that the petition is liable to be dismissed.

Facts of the Case:

The petitioner was a victim of Job racketing and the police in the course of investigation has seized some amounts and had frozen the accounts of the accused. An application was filled by the petitioner under section 451 and section 457 for a return of Rs. 10 lakh as interim custody of Code of Criminal Procedure, 1973. Therefore, the application was rejected by the Magistrate who held that the investigation was at the nascent stage and that the matter could be decided only during trial. However, the petitioner approached the high court seeking to quash this impugned order and to direct interim custody of Rs. 10 lakhs, the return of money in the account of the accused.

The Court remarked while dismissing the petition that the petitioner appeared to be a greedy person who paid a sum of Rs.78 lakh for getting a Class-I job. Furthermore, the petitioner approached the court for the return of money without even waiting for the trial to be completed as only then a clear finding could be arrived at.

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Plea in Supreme Court to direct Centre to reconsider Agnipath recruitment scheme for Armed forces

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In the case Harsh Ajay Singh v Union of India, a writ petition is filed before the Supreme Court seeking issuance of directions to the Centre to reconsider its “Agnipath” recruitment scheme for armed forces.

The Writ petition is filled by Advocate Harsh Singh, It is stated in the writ petition that the announcement of scheme had caused nation-wide protest in Haryana, Uttarakhand, Telangana, Uttar Pradesh, Bihar, West Bengal and various other states due to the short- term duration of the scheme in the Indian Army for Four years coupled with future uncertainties of the trained “Agniveers”.

It was further contended by Advocate Harsh Singh in his petition that the Agniveers, would not be matured so as to retain self-discipline with the realization to become a better version of himself or herself both professionally as also personally, on completion of the four-year tenure in the prime of their youth.

Against the Scheme backdrop, Advocate Harsh Singh has also sought for implementation of scheme from June 24, 2022.

It was contended in the petition filled that there is a great possibility for the Agniveers trained under the scheme to go stray. The petition filled by Advocate Kumud Lata Das stated that making up the fighting sinews of its armed forces, the nation should never compromise with the army personnel’s. They shouldn’t be looked upon as a burden to the exchequer, but as rough diamonds, to be cut and polished to their maximum capabilities and then deployed in the defence of the nation

The petitioner has also served the petition to the Union, as a result of caveat filed by the Centre.

A plea has already been filled in the Supreme Court challenging the Centre’s “Agnipath” recruitment scheme for armed forces.

It may be noted that another Public Interest Litigation has been filled in the Supreme Court for setting up a Special Investigation Team (SIT) to enquire into the mass violence and the damage to the public properties which include that of railways, during the widespread protests against the Centre’s “Agnipath” recruitment scheme.

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