The Bench and the Bar

The Diwali firecracker ban petition filed by three Delhi toddlers in the Supreme Court, is being opposed by various religious groups, reported The Hindu.

The case is being heard at an urgent basis at the Supreme Court. In the previous hearing, the court had asked to issue notices to the concerned parties including the government and manufactures of firecrackers.

According to The Hindu, the Supreme Court has received mixed responses from the parties. A Hindu organisation, M/s Arulmigu Sri Ayyappan Sangam, was quoted as telling the court that “banning or restriction on bursting firecrackers on Deepavali day would affect the traditional and customary rights of the Hindus...”. A separate application by Tamil Nadu Fireworks and Amorces Manufacturers Association to the court stated that the PIL is misconceived and abuse of process of the law. It also stated that many livelihoods depend on the industry.

The government affidavit in the case asserts that a blanket ban is not needed against firecrackers becauses checks and balances are in place already to control pollution, reported The Indian Express.

The affidavit states “Through the last amendment dated 11 January, 2010, the issues have been addressed in line with the Supreme Court orders from time to time. Stress has been laid on making the night peaceful. The ‘night time’ has been defined (10 pm to 6 am) and restrictions have been imposed on the use of horns, sound emitting construction equipment and bursting of firecrackers during the night time,” stated the affidavit, citing the Noise Rules 2000, it reported.

According to the government, the noise standards for firecrackers have been notified under the Environment Protection Rules 1986, “so as to prohibit manufacture, sale or use of firecrackers generating noise level” exceeding the stipulated norms, it said. The affidavit also mentions appointment of ‘designated authority’ who would have the power to issue directives in relation to noise pollution as well as usage and storage of firecrackers.

The matter is listed for hearing at the Supreme Court on 28 October.

Advocate Mathews J Nedumpara has filed a review petition against the Supreme Court’s decision to strike down the National Judicial Appointments Commission (NJAC) Act and the 99th constitutional amendment reported the Times of India.

Nedumpara asserts in his petition that the law creating the NJAC deserves to live because it was passed by the parliament after ratification by 20 state legislatures, that the collegium system is “incurable” and that the Supreme Court’s decision to quash the law created a public perception that there was “a deceptive/clever attempt on the part of the Supreme Court to retain the power of appointing judges, which they have been enjoying for the last more than 22 years”.

Mathews also, reportedly, claimed that it is “preposterous to think” that the court has jurisdiction to declare what India’s law should be.

“There is only one hope i.e. the judges themselves realise in all humility that they are fallible and they have erred in passing the verdict. Even the Pope, once regarded as infallible, is no longer considered to be so. If the powerful Catholic Church could accept the theory of fallibility, the judges of the Supreme Court too should readily accept their fallibility and acknowledge that they have erred,” the petition reportedly states.

The Supreme Court had quashed the National Judicial Appointment Commission Act and 99th Constitutional Amendment Act as illegal two weeks ago.

Karnataka government advocate general Ravivarma Kumar has submitted his resignation to the chief minister over appointment of two additional advocates general without his opinion reported The Newsminute. This is Ravivarma’s second resignation in two years.

Ravivarma was reportedly miffed at appointment of two senior counsels to argue the cauvery and krishna water disputes at the Supreme Court by the state without consulting him last year.

Ravivarma had, three months ago opposed the appointment of Raghavendra Nadagouda and Devdutt Kamath as additional attorney generals despite of which they were appointed.

21 additional judges of three high courts were granted extension through notifications by the Ministry of Law and Justice after receiving the first set of recommendations from the collegium reported Business Standard.

Additional judges from Calcutta high court granted extension for three months from 30 October were Samapati Chatterjee, Sahidullah Munshi, Subrata Talukdar, Tapabrata Chakraborty, Arindam Sinha, Arijit Banerjee and Debangsu Basak.

Additional judges from the Karnataka high court granted three months extension with effect from 24 October are Arakalagudu Venkataramaiah Chandrashekara, Rathnakala, Budihal Rudrappa Bhimappa, Pradeep Dattatraya Waingankar and Koratagere Narasimha Murthy Phaneendra.

The additional judges from Telangana high court granted three month extension with effect from 23 October are Bulusu Siva Sankara Rao, Mandhata Seetharama Murti, Saripella Ravi Kumar, Upmaka Durga Prasad Rao, Talluri Sunil Chowdary, Mallavolu Satyanarayana Murthy, Misrilal Sunil Kishore Jaiswal, Ambati Shankar Narayana and Anis.

From 13 April to 16 October this year, there was no system in place to appoint judges in India leading to increase in vacancies in the courts as the collegium system was replaced by NJAC Act, which was under scrutiny by Supreme Court.

Realizing the shortage of number of judges at various high courts, on 18 October the Law Ministry sent files of the additional judges to the collegium for its immediate consideration, it was reported. On the recommendation of the collegium, the extension or ‘reappointment’ was cleared by the government and sent to the President for his assent and later notified.

Disciplinary proceedings set to begin today against 14 lawyers who were suspended by the Bar Council of India for creating disorder in Madras high court, have been stalled by the Madras high court, reported the Business Standard.

A bench of justices R Sudhakar and VM Velumani restrained the Special Disciplinary Committee (SDC) formed by the Bar Council of Tamil Nadu and Puducherry (BCTP) to hold an inquiry against the suspended lawyers who had allegedly stormed various courtrooms and shouted slogans against judges, as was reported by Legally India.

The bench was hearing advocate and petitioner-in-person M Mohammed Rafi’s plea seeking to move the displinary proceedings to Karnataka State Bar Council’s committee, as originally proposed by the BCI Rafi has alleged that initially, the BCI constituted a disciplinary committee consisting of members from the Karnataka Bar Council so that a fair and proper inquiry could be conducted. But following a “sly” request from the BCTP, the inquiry was transferred to it.

The petitioner claimed that the suspended lawyers have good relationship with the members of BCTP nominated by BCI to inquire against them, making the whole process a hogwash. The petitioner had reportedly made a representation to the BCI to transfer the inquiry to another state on 29 September citing open support to errant lawyers by lawyers of the BCPT, which was rejected.

The court has directed the Secretary of the BCTP, who constituted the disciplinary committee, the Chairman of the BCI and the SDC to give their views on the plea in Rafi’s petition.

Four judges of Madras high court have set an example for others by carpooling to the courts from their residence reported The Hindu. The practice, initially started by two judges in 2010 has now increased to four justices N Kirubakaran, M Sathyanarayanan, MM Sundresh and S Vaidyanathan travelling together everyday.

Kirubakaran was quoted as saying, “Travelling together helps us bust stress, especially after having a long day at work. All day, we listen to arguments and we need to unwind as well. Chatting with other judges helps us share interesting anecdotes during the hearing, and when we laugh together, our stress disappears, though we are travelling through heavy traffic. Besides, we help save fuel and money”

All the judges reside in same locality of Raja Annamalai Puram at their official residence.

A Jain monk requested eight months to answer an Ahmedabad metropolitan magistrate’s summons, as in accordance with his faith he cannot use transport to commute and will have to walk to court from his place of stay at Kolkata, reported the Times of India.

The monk - Acharya Kirti Yashurishwarji Maharaj - was charged with forgery, for allegedly publishing a false government notification declaring that the government endorses ‘Bal Diksha’- a practice of renunciation of world by children and that the practice is not illegal.

The 60-year-old Maharaj has requested for eight months as the distance between his residence and the court is 2200km and he cannot walk more than 10-12 kilometres per day due to his old age and alleged spinal injury, nor can he use transport because of having formally renounced the world.

He also asserted that his absence will not affect the case, however the court rejected his plea and issued a fresh warrant against him.

Justice Kurian Joseph’s historical counterfactual: If only the bench that heard the First Judges case in 1981 had not ignored Samsher Singh, there would not have been Second Judges, Third Judges, and Fourth Judges cases later.

The Assisted Reproductive Technology (Regulation) Bill 2014 was shared by the Health Ministry for Public comments on 30 September. India has been one of the most preferred destination for infertile couples to opt for surrogacy, with an annual revenue of Rs 2500 crore ($390m) in 2011 as reported by PIB.

However, currently there is no law in this area and this has reportedly led to unethical practices being followed in the industry. According to the Indian Journal of Community Medicine,

If we look upon the problem of surrogate mothers, things are even worse and unethical. The poor, illiterate women of rural background are often persuaded in such deals by their spouse or middlemen for earning easy money. These women have no right on decision regarding their own body and life. In India, there is no provision of psychological screening or legal counseling, which is mandatory in USA After recruitment by commercial agencies, these women are shifted into hostels for the whole duration of pregnancy on the pretext of taking antenatal care. The real motive is to guard them and to avoid any social stigma of being outcast by their community. These women spend the whole tenure of pregnancy worrying about their household and children. They are allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays. The worst part is that in case of unfavorable outcome of pregnancy, they are unlikely to be paid, and there is no provision of insurance or post-pregnancy medical and psychiatric support for them.

The present bill, if passed by the parliament would halve the demand for surrogate mothers in India [reports TOI]. The important features of the bill are:

a. Surrogacy can be availed only by Indian couple or a foreigner married to Indian citizen.b. Surrogacy can be availed only by a ‘couple’ who must be married man and woman, for a considerable time thereby disallowing live in or homosexual couples surrogacy in India.c. Commissioning couple to accept the child born out of surrogacy, even if it has abnormalitiesd. Appointment of local guardian for the surrogate by the couple till the process is completee. Clinics and banks helpting in ART to be registered under Indian Council of Medical Researchf. Only married females between 23 to 35 years of age to be surrogate mothers.g. Insurance of surrogate mother and child to be borne by the commissioning couple for any medical complications arising out of ARTh. Surrogate mothers to be Indian citizen and to have Aadhar cards

Interested parties can comment on or till 15 November to participate in the public discussion regarding the bill.

Long live the collegium and it'll have to… If it continues at the same rates as for the last decade, it'll take 33 years to fill high court vacancies.

1.5 lakh Below Poverty Line (BPL) family households in Haryana do not have toilets, while 7 lakh do have them, attorney general Mukul Rohatgi told the Supreme Court during arguments on the validity of the amendments to the Haryana Panchayati Raj Act 1994, reported the Indian Express.

Rohatgi submitted this figure in respone to justice J Chelameswar’s query while hearing the constitutional validity of the amendment mandating functional toilets in the home of panchayat poll candidates in Haryana.

The Haryana Panchayati Raj Act 1994 as amended to include the criteria on toilets, along with minimum compulsory educational qualification for a candidate, has been suspended in the state till the matter is adjudicated by the Supreme Court. The Haryana government contends that these changes would help the elected representatives to lead by example.

Taxi aggregators Uber and Ola cabs plan to get licenses to comply with latest government guidelines reported the Economic Times.

Since the two start-ups are not governed by the Motor Vehicles Act 1988 or any of the state acts on vehicles, the Ministry of Road Transport and Highways last week released governing regulations for app-based taxi aggregators, reported Livemint.

The guidelines clarify that “IT-based aggregators” are different from traditional offline taxi operators and that state governments should formulate specific policies to regulate their licencing, compliance and liability. The guidelines, which are not binding but directive, also state that these aggregators should have a mandatory 24X7 call centre and a helpline number connecting to a grievance redressal officer.

The necessity of bringing these companies under law was first felt when a case of a Uber cab driver raping his client came up in 2014, after which uber was banned in Delhi. There have been a series of litigations at the Delhi high court regarding the legal status of the start ups like Uber and Ola.

Justice J Chelameswar, who joined the Supreme Court on 10 October 2011, has so far given four dissenting judgments, including the NJAC verdict delivered on 16 October.

Advaita Legal won relief from service tax for lottery distributors, in Future Gaming’s Sikkim high court writ challenging the imposition of service tax on them.

Advaita senior attorney AR Madhav Rao and associates Rajat Mittal and Nandita Narayan acted for Future Gaming which had challenged Finance Act 2015 amendments putting lottery distributors in the category of service providers and hence liable to pay service tax.

Justices Sonam Wangdi and Meenakshi Rai observed that explanations inserted in clauses of the latest Finance Act cannot override the law laid down in judgments which have already held that Future Gaming is not a service provider.

The bench stated in its order:

“As noted earlier, the amendments in question have been carried out by the Parliament in order to overcome the decisions of this Court in the Future Gaming Case 2015 (supra) and Future Gaming Case 2014 (supra) which we have alluded to in detail. We agree with Mr. Rao that it is trite that when a Legislature sets out to validate a tax declared by a Court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before the validation can be said to take place effectively. “