Supreme Court

Senior counsel Gopal Subramanium has suggested in his 3 November submissions to the Supreme Court that is hearing a consultation on how to reform the collegium system the following seven ways in which the collegium should be improved to improve transparency, formulation of eligibility criteria, establishment of a permanent collegium secretariat and a mechanism to deal with complaints or adverse reports

As the Supreme Court’s five-Judge Constitution Bench presided over by Justice JS Khehar began its hearing on reforming the collegium (the in-house mechanism to recruit Judges to the higher judiciary after its recent revival by the same bench) the bench sought advice from counsel on both sides on how to navigate the plethora of diverse proposals which it received.

The Tamil Nadu government has asked the Supreme Court for relief from a Madras high court order directing it to put in place Central police (CISF) security worth Rs 16.6 crore at the Madras high court, reported the Times of India.

Madras HC Chief Justice Kishan Kaul and Justice TS Sivagnanam had on 30 October ordered the state government to deposit Rs 16.6 crore, within a week, with the central government for deploying a 650-personnel CISF contingent at the high court for six months, and ordered that the new security protocol should be in place on 16 November.

The Tamil Nadu government told the Supreme Court that lawyers and police on the Madras high court have no bad blood ‘as on date’ and that the problem lies in the 29 October 2009 administrative order which requires state police to get a prior permit before deploying forces. The government said that this takes away the state police’ free hand to act during law and order disturbances on court campuses.

“Had the administrative restraint been lifted, the state police authority would be in a better position to give better security than any central force on the high court campus,” the Tamil Nadu chief secretary told the court, it was reported.

The Madras high court has been suffering from disruptions and disturbance due to rallies, demonstrations, occupation of chief justice’s court and ruckus by lawyers for a few months now. Chief Justice of India H L Dattu had also taken note of the disturbances in the HC and had remarked about the ‘fear psychosis in the court halls’. Bomb hoaxes have also been received by the high court in the last few months.

The state government is opposing any central force to take either full or a part of security arrangements in the high court and has told the Supreme Court “It is not open to the high court to take away the powers of the state and entrust it to the central security...It would amount to encroachment of the powers of the government by another wing of the State - Judiciary.”

“Further it was recorded that deployment of central force would lead to jurisdictional issues and consequent problems, and the introduction of central police force would worsen the prevailing situation due to non-familiarity of local language,” the SLP stated, it was reported.

The Supreme Court refused to stay the rules regarding the Certification of Practice (CoP) of the Bar Council of India (BCI) reported webindia.

A division bench of Justices Pinaki Chandra Ghosh and RK Agrawal were hearing transfer petition of BCI and declined to stay the CoP rules. The court had stayed the CoP rules in August.

The CoP rules require practicing lawyers to renew their registration with the bar council every five years. The deadline for the registration was extended to 31 December 2015 by the BCI following the orders of the court.

Senor advocate KK Venugopal was briefed by advocate Ardhendumauli Kumar Prasad for the BCI He argued in court that the number of fake lawyers was growing in the bar. Venugopal reportedly submitted that these advocates move freely in courts wearing robes and soon the situation in the Madras high court would be replicated everywhere else.

The Supreme Court allowed the BCI to continue the CoP rules but also reportedly warned it not to be prejudiced against lawyers not practicing in courts. The division bench adjourned the matter for further hearing without giving any next date, it was reported.

As Justice Khehar-led Constitution Bench reassembles today (3 November) to hear proposals for reforming the revived collegium to select judges of the higher judiciary, it cannot help listening to the echoes of its momentous decision to strike down the 99th Amendment Act and the NJAC Act in their entirety, even two weeks after it was delivered on 16 October.

The Hindu Succession (Amendment) Act 2005 will not apply to women whose father died before the amendement came in force, ruled the Supreme Court, effectively withdrawing such women’s right to equal share in their fathers’ property, reported The Indian Express.

The Supreme Court bench of justices Anil R Dave and Adarsh K Goel ruled that the amendment to the act cannot apply retrospectively and a daughter will become a co-sharer in inherited land from her father only if the father was alive on 9 September 2005.

Females are already ineligible for a share if the property was alienated or partitioned before 20 December 2004, the date the bill was introduced, and this judgment goes a step further to disqualify another class of women.

The bench overruled the view taken by some high courts that the amendment should be applied retrospectively as it is a social legislation.

The judges observed in the order that “the text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the amendment Act. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text,” it was reported.

The Bar Council of India (BCI) is to continue functioning as per current procedure, as the BCI succeeded in its appeal against the Madras high court order that had suggested transferring its functions to an expert judicial body, reported The Hindu.

The Madras high court on Friday stayed its justice N Kirubakaran’s order in which he had given 14 radical recommendations including the transfer of BCI’s function to a body headed by a retired Supreme Court judge.

A bench of Chief Justice SK Kaul and justice TS Shivagnanam passed an interim stay on four of the 14 recommendations in justice Kirubakaran’s 6 October order.

According to internet freedom watchdog Freedom House, “Internet freedom in India has improved in the past year” in its report of 65 countries, with India having seen “positive developments relating to ‘regulatory framework, declining detentions for online speech and burgeoning digital access’”, reported the WSJ, following the Supreme Court striking down section 66A _of the _IT Act:

More than half of the countries included in the report saw online freedom deteriorate since June 2014, the report said.India improved its measure on two criteria: the obstacles to Internet access and violations of user rights. Its total score went up from 42 to 40, with Internet penetration leaping from 5% to 18% in the past five years. The lower the score, the better the country’s Internet freedom.

Full India country report available here:

Key Developments: 

Key Developments

• The Supreme Court struck down Section 66A of the IT Act in 2015, which had been the cause of several arrests for online speech, particularly on social media (see Legal Environment).

• Though the Supreme Court also upheld the IT Act’s Section 69A, which authorizes government blocking of online content, it did make the blocking process more transparent, and strengthened intermediary liability protection (see Blocking and Filtering and Content Removal).

• Website blocks ordered by the government or the courts temporarily affected entire platforms, such as Vimeo or Google Docs (see Blocking and Filtering).

• In April 2015, over 1 million people rallied to protect net neutrality and prevent regulation allowing telecommunications providers to charge extra for select services (see Digital Activism).

No “fresh permission or renewal of permission” shall be granted by the RBI to foreign law firms seeking to open a liaison office in India “till the policy is reviewed based on final disposal of the matter by the Supreme Court”, the _Reserve Bank of India (RBI) _said yesterday in a notification reported by the PTI.

This was possibly issued to comply with the Supreme Court orders in the AK Balaji case, most recently in September, directing the RBI to maintain the status quo, or there is an outside chance the notification was prompted by a foreign law firm inquiring about the status of the policy.

The [https://www.legallyindia.com/News/download-the-judgement-lawyers-collective-v-ashurst-chadbourne-parke-white-a-case Bombay high court had first artculated the ban in 2009 against Ashurst, White & Case and Chadbourne & Parke that had representative or liaison offices in India.

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.