Arrest – Frequently Asked Questions

“Ignorance of law is no excuse unless of course you’re a lawyer” – anonymous 

Around 8 pm, on a Sunday. My friend is waiting to board a train at an awfully jammed Dadar station. One bulky police officer in uniform approaches my friend and tells him that he wants to check his bag and mobile. Before my friend could even respond, the police officer snatches both.

The officer finds few pornographic videos saved in his mobile. He tells my friend that carrying pornographic videos in mobile is a crime and that he is going to arrest him.

Completely unaware of what has caught him in a new place, my friend requests for his mobile phone to be returned so that he could call any of his friends. The officer refuses to return the phone and tells him that he has to stay put in the station for a day. After almost 10-15 minutes of begging and unwarranted explanation of how those videos have actually got into his mobile, the officer shows an easy way-out. Win-win situation for both.

The officer guards my friend to a nearby ATM. He makes him withdraw the entire amount from his account and double-checks the same with the printed balance receipt. Takes the entire money and sends my friend off to his destination, Bangalore.

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(i) The police officer, though has the right to check your belongings on suspicion; he has no right to check your mobile phone for no reason whatsoever; (ii) Possession of pornographic videos in your mobile is not a crime; (iii) The police officer had no right whatsoever to arrest or detain you in that situation; (iv) Whatever has happened is nothing but an extortion.

I explained my friend when he called me after boarding the train. So furious I was, I asked my friend to get down at next station, come back to Dadar, identify the police officer and file a complaint against him. I was fast reaching Dadar. He said, “I have an office to attend tomorrow”.

This happened a year back.

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It’s not just about my friend. There is a general lack of awareness amongst the common public, including highly educated people, as to when can a police arrest and what legal rights we have as citizens. Law and order is equally overwhelming these days that people are being arrested for drawing cartoons, updating facebook statustweeting about minister’s son and even drinking tea suspiciously.

So as a small step forward – FAQs on arrest. I thank my friend @suo_motu for helping me with framing the questions from a non-lawyer perspective.

1. What is the difference between: (a) police station lock up, (b) jail and (c) prison? When is a person sent to (a) / (b) / (c)? And, where is a person sent after arrest?

Police station lock up

  • Place where police generally keeps custody of an arrested person for interrogation purposes.
  • Upon arrest, a person is considered to be taken into police custody. He has to be produced before the nearest Magistrate court within 24 hours of arrest.
  • Magistrate would thereafter direct either police custody or judicial custody considering the facts and circumstances of the case.
  • In any event, police custody cannot be extended for more than 15 days.

Jail

  • Place where undertrials (people who are awaiting trial in a competent court) are kept when the court directs judicial custody of the accused.
  • Generally followed by police custody.
  • Persons who have been convicted for minor offences are also sometimes kept in ‘jail’.

Prison

  • Place where convicts (people who are sentenced by a judge) of major crime are generally kept.

However in India, the term ‘Jail’ is misleadingly used to mean both ‘Jail’ and ‘Prison’.

2. When can a person be arrested? only for charges filed under IPC? or can someone be arrested for charges filed under civil law also? (for e.g. Ramalinga Raju of Satyam was arrested for fraud I think)

Arrest happens generally for criminal offences, which not necessarily have to be embodied under Indian Penal Code (IPC). IPC is not an exclusive Act under which all the criminal offences are defined. There are plenty of criminal minor Acts, including Information Technology Act, Prevention of Money Laundering Act, Prize Chits and Money Circulation Scheme (Banning) Act, Arms Act, NDPS Act, and etc.

Though there is a provision for civil arrest under law, the same is exercised very rarely by courts and as a last resort in case of execution of a civil decree.

[Ramalinga Raju was arrested for various criminal charges but not for any civil case. He was charged under various charges including fudging of account books, forgery, fabricating of invoices and fixed deposit receipts, and falsifying of Income Tax returns.]

3. How long can a person be arrested for? (before he has to be produced in court)

A person who is arrested and detained in custody has to be produced before the nearest magistrate within a period 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate.

4. What is the difference between complaint / FIR / chargesheet?

First Information Report (FIR) is the basic report that is registered by police authorities upon receipt of complaint. FIR would generally have following details: (i) Name & address of the complainant, (ii) Sections for which FIR is registered, (iii) Place & date of occurrence, (iv) Name & address of the accused, (v) Particulars of properties involved, (vi) Brief contents of the complaint and (vii) Reasons for delay in filing FIR, if any.

Chargesheet is a report filed by the investigating authorities upon investigation. This report would generally have post investigation findings along with the witness statements and affidavits. The chargesheet names the persons against whom the charges are framed. The trial starts after filing of chargesheet.

Complaint is commonly used to refer complaint filed by an individual with the police authorities before registration of FIR and also a private complaint filed by an individual before the Magistrate.

5. Which organizations have the authority to force an arrest? Police, CBI, anybody else?

Besides police agencies and CBI, following authorities have the power to arrest:

(i) Enforcement Directorate (under Section 19 of Prevention of Money Laundering Act, 2002 – see here)

(ii) SEBI (under the ordinance of September, 2013 – see here)

(iii) Central Excise and Customs (see here)

(iv) National Investigation Agency (see here)

(v) Income Tax authorities (see here)

(vi) Sales tax authorities (see here)

(vii) Serious Fraud Investigating Office (SFIO) will have the power to arrest under Companies Act, 2013. However, provisions with respect to the same are yet to be notified.

I'm the police and I'm here to arrest you.

I’m the police and I’m here to arrest you.

6. Is there a maximum time before which a crime should be reported? for example this Asaram Bapu case: some woman has complained about rape after some 10 years. Isn’t there a limit before which you should report a crime?

According to Section 468 of the Criminal Procedure Code, no court shall take cognizance of an offence after the expiry of the period of limitation and the limitation periods are as follows:

(i) 6 months – if the offence is punishable with fine only;

(ii) 1 year – if the offence is punishable with imprisonment for a term not exceeding one year;

(iii) 3 years – if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years

In effect, there is no limitation period if the offence is punishable with imprisonment for a term exceeding three years.

For all practical purposes, there is no strict rule followed with respect to limitation. Reasons for delay in filing complaint, if any, are generally recorded in the FIR. However, if there is an inordinate and unexplained delay to file an FIR, the same may be taken as a ground for seeking quashing of such FIR.

7. Can a police officer arrest without warrant?

Yes, if in case of cognizable offences, a police officer can arrest without warrant. Some of the cognizable offences are murder, robbery, theft, rioting, counterfeiting etc. Non-cognizable offences are less serious offences.

Schedule I to the Criminal Procedure Code classifies the offences under IPC as cognizable and non-cognizable.

8. What is the procedure to be followed while making arrest?

(i) While making an arrest, every police officer should bear an accurate, visible and clear identification of his name which will facilitate easy identification.

(ii) He should prepare a memorandum of arrest which shall be attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made counter-signed by the person arrested.

(iii) The police officer should also inform the person arrested (unless the memorandum is attested by a member of his family) that he has a right to have a relative or a friend named by him to be informed of his arrest.

[For all practical purposes, nobody cares.]

9. Do you have the right to meet an advocate during interrogation?

Yes, when a person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

10. What is the difference between bail and anticipatory bail?

Bail is post-arrest and anticipatory bail is pre-arrest.

If a person apprehends that he might be arrested in a particular case, he may approach sessions court or high court seeking anticipatory bail.

After a person is arrested, he may apply for bail. In all bailable offences, bail is a matter of right and in non-bailable offence, bail is discretion of court. Though it is the discretion of the court, there are well settled principles as to when a bail has to be granted or rejected.

11. Why most of the accused despite having committed serious crimes come out of bail? Why can’t they be just jailed for longer term?

Because, the criminal law in India on this aspect works on following basic principles:

(a) There is a presumption of innocence in favour of the accused till he is found to be guilty.

(b) The bail is the rule and denial thereof is the exception. For the purpose of denial of the bail there must be extraordinary circumstances necessarily meaning that bail ought not to be denied to an accused only on the ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused.

(c) While considering the grant of bail, both the factors, namely, the seriousness of charges and the severity of punishment which the offence carries must be taken into consideration.

(d) The bail ought to be granted in a case where there are no chances of the accused fleeing away from the processes of law or in other words, the accused, who is released on bail must be readily and willingly available to submit himself to the custody of the Court at any given point of time.

(e) The grant of bail ought not to be denied only on the perceived apprehension by the Court that the petitioner, if restored to a liberty, he will tamper with the evidence. There must be some prima facie evidence on record or reasonable and justifiable grounds to believe that in case the benefit of bail is extended to an accused he is going to misuse his liberty or so as to create

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I am hoping to write a Part – II with few more questions soon.

If you have anything further to add/ ask, please write in as comments. Thanks.

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40 Years of Kesavananda Bharati!

24th April, 1973.

The day when Indian Judiciary managed to save the Constitution by a whisker.

The day when Supreme Court of India passed its judgment in Kesavananda Bharati vs. State of Kerala holding that amending power of the Parliament cannot be used to alter the basic structure or the essential features of the Constitution.

Marking 40th anniversary of passing of this landmark judgment, here is some of the interesting trivia about the case:

1. This was the largest Bench (13 Judges Bench) that had heard the lengthiest arguments and covered the widest area of case laws and legal literature in the history of the Supreme Court.

2. This decision was made by a wafer-thin majority of 7:6, i.e. with 6 judges dissenting to the majority view. (If the decision of Justice Khanna is vivisected carefully, one would find that the verdict is really 6.6:6.4!)

3. The case was heard for the longest number of days. It totally took 68 working days commencing on October 31, 1972 and concluding on March 23, 1973. The written arguments were submitted by March 27, 1973.

4. The entire case came close to being reheard because of the illness of Justice Beg. He fell ill in February and March, 1973 and was hospitalized thrice. At that time, Chief Justice Sikri had to go on a two-week trip to Europe in the last week of March and was to retire on April 24, 1973. If Beg did not sit again or if Chief Justice Sikri retired, the hearings, which had already taken five months, would have to commence once again.

5. The illness of Justice Beg left Nani Palkhivala who appeared for the Petitioner with no choice but to give up his arguments in rejoinder for the last two days.

6. Ironically, the Petitioner ‘His Holiness Kesavananda Bharati Sripadagalvaru’ neither met Nani Palkhivala nor even spoke to him. Kesavananda Bharati was actually quite surprised to see his name appearing in the papers every day and wondered why the case was taking so much time.

7. The longest judgment, covering 703 pages was delivered on April 24, 1973. The headnotes of SCC reported judgment alone runs into 80 pages.

8. The controversial summary of the judgment was prepared by the Bench however it was signed only by nine judges out of thirteen judges. Justices Ray, Mathew, Beg and Dwivedi refused to sign it.

9. Though the most important contribution of this judgment is the basic structure theory, there was no unanimity on what constituted the basic structure of the Constitution even among the judges who gave the majority view. Different examples of what constitutes basic structure were given by different judges.

10. A shocking revelation by T. R. Andhyarujina (in his book ‘The Kesavanada Bharati Case – The Untold Story of Struggle for Supremacy by Supreme Court and Parliament‘) is that the Government was in possession of some of the draft judgments even before they were delivered on April 24, 1973.

11. H.M.Seervai, one of the staunchest supporters of the unlimited power of Parliament to amend the Constitution appeared on behalf of the Respondents in the case. With his characteristic honesty, he later admitted that if the basic structure doctrine had not been laid down, the consequences would have been very grave and India would have been in danger of being converted into a police State ‘as the experience of the emergency clearly showed’.

12. The judgment was delivered on the last working day of Chief Justice Sikri. He retired on April 25, 1973. The tradition of appointing the senior most judge as the Chief Justice was abandoned and Justice Ray, who was the fourth in the line of seniority, superseded Justices Shelat, Hedge and Grover. This announcement was first made known through a radio broadcast over the All India Radio.

13. The marathon hearing yielded no relief to His Holiness Kesavananda Bharati or any of the other petitioners. But they have the consolation of being responsible for the basic structure doctrine and saving India democracy.

[The above facts are extracts from the book ‘Nani Palkhivala – The Courtroom Genius’ written by Soli Sorabjee and Arvind P Datar. No student of law, no lawyer, no chartered accountant, no member of the judiciary, and no well-informed citizen can afford to miss reading this book!]


An eventful year – 2012

2012, unarguably, is one of the worst years for Indian politics with unvarying scams and uninspiring deeds of politicians. Hardly any steps were adopted (except for few attempts in later half) to revive the economy either. If there is a single institution which had an eventful year, it has to be the Apex Court of India. Far from perfection though.

Here is a simple review of landmark judgments/ legal developments happened in this eventful 2012 (with links to judgments and reading materials). Hope you will find it useful.

JANUARY 20, 2012 – VODAFONE JUDGMENT

On January 20, 2012, the Supreme Court ruled in favor of Vodafone saying capital gains tax is not applicable to the telecom major. The Court overruled the judgment of Bombay High Court and held that Income Tax department should return Rs.2,500 Crores to Vodafone with 4% interest. As a huge boost for cross border mergers in India, the Court held that there is no question of TDS being deducted under Section 195 of the Income Tax Act, 1961 and that it is a bonafide FDI transaction. It is considered to be one of the major blows for the tax department in recent years.

Full text of the Bombay High Court Judgment (September 8, 2010) – Click here.

Full text of the Supreme Court Judgment – Click here.

Reaction

The matter however did not rest with the judgment of Supreme Court.

The government, in March 2012 proposed, in its budget, the most controversial retrospective amendment to the Income Tax Act that would help the government to overturn the Supreme Court order.

The prospective retrospective amendment can be seen here. [Taxmann]

Recently, the government has approached the Apex Court seeking a review of the judgment. The department wants the matter heard afresh by a larger seven-judge bench. [Financial Express]

Besides these desperate attempts by the government, there are few people who have also criticized the judgment for having exceeded its jurisdiction. [Indian Express]

FEBRUARY 2, 2012 – CANCELLATION OF 122 TELECOM LICENSES 

On February 2, 2012, the Apex Court cancelled all 122 unified access service licences which were issued in January 2008 by former telecom minister A Raja. The decision came as a heavy setback for the government. The eight companies who were holding the licences together invested Rs 35,000-40,000 crore, of which two-thirds was put in by two telcos, Uninor and Sistema.

The Court also directed the Telecom Regulatory Authority of India (TRAI) to make fresh recommendations for the telecom spectrum auction route in future, within four months of the Order.

List of cancelled 2G licenses [Business Standard]

Full text of the Judgment – Click here.

Reaction

Few observations and directions by the Court on method of disposal of natural resources lead to a Special Reference by President under Article 143 of the Constitution of India. The Hon’ble Court rightly ensured, through this special reference, that this judgment does not fall within the never-ending battle between Judiciary and Legislature/ Executive. It clarified that the scope of 2G judgment is restricted only to spectrum and also that Court cannot and will not prescribe any policy as the only constitutional permissible policy. It was a concurring opinion which offered separate reasons for same conclusions on majority.

Original presidential reference – Click here.

September 27, 2012 – Opinion rendered by Supreme Court in presidential reference – Click here.

APRIL 12, 2012 – RIGHT TO EDUCATION JUDGMENT

On April 12, 2012, the Supreme Court rejected a batch of petitions and upheld the constitutional validity of Right to Education Act (RTE), 2010 through a majority of then Chief Justice SH Kapadia and Justice Swatenter Kumar. However, Justice Radha Krishnan dissented from the view that a fourth of seats in all schools, including private ones, should be reserved for admission to economically weaker students.

RTE mandates 25 percent reservation and the bench brought all educational institutions within the ambit of this Act except for unaided minority institutions. The Act, which is operational in at least 19 states, envisages free and compulsory education for all poor children aged between 6 and 14 years.

Full text of the Judgment – Click here.

AUGUST 31, 2012 – SAHARA

The second major judgment of the year, in terms of money involved, came from the bench of Justices KS Radhakrishnan and Justice JS Khehar on August 31, 2012, where two Sahara group companies were ordered to refund Rs 24,000 Crores they had collected through optional fully convertible debentures, to SEBI with 15 per cent interest by November 30, 2012, since they had violated various regulatory norms. The judgment is undoubtedly a boost for SEBI in reinstalling its powers as a regulator in the market.

Full text of the Judgment – Click here.

Reaction

The Court invited strong criticism recently when a bench presided over by Chief Justice of India Altamas Kabir modified the judgment of August 31, 2012 by allowing SAHARA to pay the amounts in installments. It was a shocking incident for many lawyers. Legal luminaries have criticized this order particularly because final order passed by one bench could not possibly be modified by another bench and that it would set a wrong precedent. [Legally India]

SEPTEMBER 6, 2012 – BALCO JUDGMENT ON ARBITRATION

On September 6, 2012, the Constitution bench of then Chief Justice of India SH Kapadia and Justices D. K. Jain, Surinder Singh Nijjar, Jagdish Singh Khehar and Ranjana Prakash Desai overruled the doctrine laid down in its own 2002 landmark judgment Bhatia International v Bulk Trading SA & Anr case, which held that Indian courts had exclusive jurisdiction to test the validity of an arbitral award made in India even when the proper law of the contract is the law of another country.

The Apex Court held that part 1 of the Arbitration Act does not apply to international arbitration and that the seat of arbitration will determine jurisdiction of the court. This judgment is hailed as one of the landmark judgments which renewed arbitration in India.

Full text of the Judgment – Click here.

SEPTEMBER 11, 2012 – MEDIA GUIDELINES

The special constitutional bench of Supreme Court, on September 11, 2012 laid down a new doctrine that, if requested, would allow courts to temporarily ban media from reporting a case if it would adversely affect the trial. However, the Court declined to create wider guidelines on how the media should report court cases

The Chief Justice of India S.H. Kapadia, said that if publishing news related to a trial would “create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial”, the court could grant a postponement order, temporarily gagging electronic or print media from reporting on the case.

However, this excise undertook by the Court was more of an academic nature and it helped none.

Full text of the Judgment – Click here.

SEPTEMBER 13, 2012 – RTI JUDGMENT

On September 13, 2012, a division bench of the Supreme Court, comprising Justice AK Patnaik and Justice Swatander Kumar disposed of a writ petition (within two months) ruling that information commissions under the Right to Information Act, 2005 (RTI Act) must function with two-member benches, one of the two members being a high court chief justice or a supreme court judge for the post of chief information commissioner. The judgment certainly brought the functioning of CIC to an abrupt emergency halt.

The judgment also prescribed procedures for appointment to these posts.

Full text of the Judgment – Click here.

Reaction

This judgment has been criticized by all quarters and considered to be one of the major blunders committed by the Apex Court. It is opined by many RTI activists and legal luminaries that this judgment could just kill the RTI Act and that it would create unnecessary hurdles and delay in its enforcement.

Few articles:

A recent Supreme Court ruling could kill RTI [Forbes]

Judges’ quota ruffles RTI panel [Hindustan Times]

SC ruling stumps RTI fraternities [The Hindu]

Information Commissions need judicial members: apex court [Live Mint]

NOVEMBER 9, 2012 – REVISITING COLLEGIUM SYSTEM

After almost 19 years of nine-judge bench of Supreme Court passing a judgment as to collegium in the appointment of judges in Supreme Court and High Courts, the possibility of Supreme Court revisiting the same by eleven-judge bench has increased. The bench headed by Chief Justice of India Justice Altamas Kabir on November 9, 2012 issued notices to the Union of India and Attorney General on a petition filed by a trust seeking review of the 1993 judgment.

The government has already been working on, for a long time, a Constitution Amendment Bill to provide for a Judicial Appointments Commission.

OTHER MAJOR DEVELOPMENTS

(i) Many issues as to validity of few provisions of IT Act, 2002 (particularly Section 66A) as also its enforcement were raised this year by various quarters and rightfully so. Incidents like blocking twitter accounts/ websites and unnecessary arrests/ charges had triggered these issues and recently a PIL has been filed by one law student in Supreme Court challenging constitutional validity of Section 66A of the Act. The Court has taken cognizance and issued notice to the government.

(ii) Though it is more of a policy decision, allowing FDI in multi-brand retail can be considered one of the major legal developments happened in the year 2012. On September 14, 2012, the government of India announced the opening of FDI in multi-brand retail, subject to approvals by individual states. On September 20, 2012, the Government of India formally notified the FDI reforms for single and multi-brand retail, thereby making it effective under Indian law. On December 7, 2012, the Government of India allowed 51% FDI in multi-brand retail in India. The government managed to get the approval of multi-brand retail in the parliament despite heavy uproar from the opposition.

(iii) After a long wait, Companies Bill, 2011 has been passed by Lok Sabha on December 18, 2012.

Full text of the Companies Bill, 2011 – Click here.


Nation-wide Strike by Lawyers – Why?

It is quite natural for a lawyer (more particularly, a trial court lawyer) to go on for a boycott/strike without even knowing the reason for it. Most of us have been there and done that before.

Bar Council of India has called for nation-wide strike on July 11 and 12 to oppose the government’s proposed Higher Education and Research Bill (HER) Bill, 2011 and quite naturally, many lawyers have no idea what this Bill is all about.

Though BCI is also opposing National Accreditation Regulatory Authority for Higher Educational Institutions Bill 2010, the Foreign Educational Institutions (Regulation of Entry and Operations) Bill and the National Law Schools Bill, it’s main concern is that of HER Bill, 2011.

Besides the argument on validity of this strike, which is altogether a different topic, here is a quick overview of what is this HER Bill, what problem BCI has with this bill and why BCI is wrong:

(1) What is HER Bill?

Like most of the new-age Acts, this bill too has quite an attractive objective, which is,

“to promote autonomy of higher educational institutions and universities for free pursuit of knowledge and innovation and to provide for comprehensive and integrated growth of higher education and research keeping in view the global standards of educational and research practices and for that purpose to establish the National Commission for Higher Education and Research to facilitate determination, coordination, maintenance and continued enhancement of standards of higher education and research including university education, vocational, technical, professional and medical education other than agricultural education and for
matters connected therewith or incidental thereto.”

To summarize this bill which is yet to be enacted:

  • It shall apply to all the higher educational institutions and universities other than those institutions engaged mainly in agricultural education and research
  • It will set up a National Commission for Higher Education and Research
  • It will further establish (a) General Council, (b) Collegium of Scholars, (c) Board for Research Promotion and Innovation (BRPI), (d) Higher Education Financial Services Corporation (HEFSC)
  • The Commission members (7 including Chairman) will be appointed by President on the recommendation of Selection Committee. Prime Minister is the Chairman of Selection Committee and other members mostly from the part of Government.
  • General Council will have more members, apart from the Commission members, like, head of the professional bodies, university vice chancellors and etc.
  • Collegium of Scholars will consist of thirty Fellows, being persons of integrity and eminence in higher education and research
  • BRPI will have a Chairperson and 12 other members (prominent academia) to be appointed by the Commission
  • HEFSC will be act as a body corporate, with power to acquire, hold and dispose of property, both movable and immovable. The board of directors would be from the Commission, General Council and few nominated persons from finance and other departments.

What will this Commission do?

The Commission, in consultation with the General Council and other bodies concerned, take all such steps as it may think fit for the promotion and coordination of higher education and research. It covers a vast area with respect to higher education and research, wherein virtually nothing is left out of its ambit. Most importantly, grant of approval to educational institutions.

What will this General Council do?

The General Council shall make recommendations and advise the Commission in the exercise of its functions.

What will this Collegium of Scholars do?

The Collegium will basically recommend to the Commission on various issues including vision on the emerging trends in different
fields of knowledge

What will BRPI do?

The Board will recommend measures to the Commission to promote and facilitate research in the fields of knowledge in higher educational institution

(2) What problem BCI has with this bill?

The plain reading of the bill would have given a clear indication of what possible problem Bar Council of India can have with this bill. Simple and precise. Their territory is being conquered. They surely don’t want ‘legal education’ to be within the ambit of this particular bill.

BCI’s issues are:

(a)  This bill is aimed at usurping the BCI’s control over legal education.

(b) It affects the independence of Legal Education and Judiciary (!)

(c) This proposed bill is unconstitutional

(3) Why BCI is wrong?

(a) It is wrong to say HER Bill will take away all BCI’s powers [See S.83(2) of the bill]

“Provided that nothing contained in this section shall be construed as restricting the power of the Bar Council of India to specify standards of higher education concerning practice in courts’

(b) BCI head will anyways preside over the Expert Advisory Group concerning legal education, which would be appointed by General Council [See S.27(4) of the bill]

(c) BCI has been defined as ‘Professional Body’ and listed foremost in the First Schedule to the bill and most of the places, their role concerning the legal education is specified.

(d) One cannot simply rule out benefits HER Bill might provide to legal education. For the first time in the history of Indian higher education and research field, there is some level of consortium is being attempted.

(e) BCI opposing the bill is more of an ego clash than anything else. It must have hurt the most when bill takes away the right to sanction educational institutions (negotiations on sharing of these powers are still possible).

(f) BCI is talking about ‘independence of legal education’, which is just a misnomer and never prevailed.

(g) About this bill being unconstitutional, sorry, I fail to see their point.

(h) Legal education needs a revival big time. BCI is not doing it. At least, not quite enough.

One of the bar members reportedly said in an interview that, “the state and national bar council set up as a result have played a pivotal role in ensuring and upholding quality of legal education”. Am not quite surprised. He said ‘upholding quality‘.

But, not for a moment I am suggesting that, the new set up would do wonders. Yet, the bill is promising and it is certainly worth trying. It would be a stupid decision to remove legal education from the ambit of this bill just to regret it later.


Happy birthday Ninth Schedule

18th June, 1951

Operation theatre. First surgery, within just 18 months. Tensed atmosphere. Yet, experts were around.

Situation demanded surgery. At least, that is what everyone around believed.

Motive was clear. To make an egalitarian society. At least, that is what everyone around believed.

Injury was healed, less successfully. Yet, the worst nightmare came alive. The infection that surgery caused that day remained for almost 56 years. And, it helped causing a vital blow to the heart in 1975. Though there might be people saying that the intense is reduced now, the scars that infection created, are very much there; as a symbol of political shame in the Indian independent era.

That infection, Ninth Schedule to the Constitution of India.

What an idea sir ji?

After series of judicial pronouncements starting from Kameshwar Singh V State of Bihar, where the courts struck down land reform laws on the ground that they violated fundamental rights enshrined in the Constitution, the Government got apprehensive that the whole agrarian reform programme would be endangered. Reasonably, so.

As a result of which, this day in 1951, the Government came up with the First Amendment to the Constitution.

Besides few other things, what all the Government did was very simple. Inserted Ninth Schedule to the Constitution and said ‘none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provisions is inconsistent with, or takes away or abridges any of the rights conferred by , any provisions of this part, and notwithstanding any judgment , decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force’. Well played.

In other words laws under Ninth Schedule are beyond the purview of judicial review even though they violate fundamental rights enshrined under part III of the Constitution.

The best part of this amendment is that it is retrospective in nature that is when a statute is declared unconstitutional by a court and later it is included in the Ninth Schedule, it is to be considered as having been in that Schedule from its commencement. Indira Gandhi would have said ‘Love you Papa’ for this genius.

The first real ‘tussle’ between Judiciary and Executive. The first real lesson modern day politicians learnt which they ought not to have.

Backfire

Since then, Ninth Schedule instantly became a bin which heartily welcomed every bit of dust and garbage. 1951 – 13, 1955 – 7, 1964 – 44, 1971 – 2, 1974 – 20, 1975 – 38, 1976 – 64, 1984 – 14, 1990 – 55, 1994 – 1, 1995 – 27. In 61 years, 284 Acts have been dumped in Ninth Schedule by taking a formidable lead against Olympic medal tally in the entire history by India.

The vital blow was when Judiciary held against Indira Gandhi in an election petition. She made amendments to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws Amendment Act, 1975. ‘You tell me I lost. I go and change the rules of the game.’ Like that, very simple. And, court upheld the amendment too. Legendary.

That amendment bill was introduced on August 7, 1975 and passed by the Lok Sabha the same day. The Rajya Sabha passed it the next day and the President gave his assent two days later. No Anna Hazare. No fast unto death. Bill got passed just like that.

Another noteworthy political shame was when Seventy Sixth Amendment was passed in 1994 to accommodate Tamil Nadu Government’s Legislation which provided 69 percent reservation for backward classes. Somebody should have simply said, “Boss, wrong number!”.

Remains

After legendary battles in courts (and, considerably increasing law students’ syllabus), the position is somehow settled now after January 11, 2007. While delivering the judgment, 9 Judge Constitutional Bench of the Supreme Court held that, all amendments to the Constitution made on or after 24th April 1973 (i.e. the date of Judgment of His Holiness Kesavananda Bharati case) by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution.

In other words, even though an Act is put in the Ninth Schedule by a Constitutional Amendment, its provision would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right.

For teaching all of us some priceless lessons which many of us already forgot, I shall remember you this day and wish you, “Cheers! Long live! Happy Birthday Ninth Schedule!”


Frequently Asked Questions

General perception among people is that, Lawyers are supposed to know everything. It is also the general perception that, Lawyers don’t actually know anything.

So, if you are a lawyer or even if you have anything remotely to do with law (like being a driver to judge’s car), there are always some frequently asked questions, just to validate the above two perceptions. You better know the answers before you would get ridiculed.

Here I have compiled few of such FAQs with answers. A bit of research in and around internet. Hope, it helps.

1. If LL.B means Bachelor of Laws, then for what another ‘L’ stands for?

“LL.B.” actually stands for Legum Baccalaureus in Latin. The “LL.” of the abbreviation is from the genitive plural legum (of lex, legis f., law). It is sometimes erroneously called “Bachelor of Legal Letters” to account for the double “L”.

Interestingly, the abbreviation “LL.M” the post graduation degree or ‘Masters of Law’ as we know stands for Legum Magister in case of male students and for female students Legum Magistra.

2. Why do lawyers wear black gown or robe?

Are we still mourning?

History suggests that, by the start of 16th century, the fashion was for a long, open gown of sombre color, mostly mulberry. Thereafter, on the death of Charles II in 1685, the Bar entered a period of mourning and barristers wore a mourning gown. This was actually the origin of the robe worn by barristers today: with pleated shoulders and bell-shaped sleeves tapered at the elbow with two buttons.

For no particular reason, the fashion followed by the barristers and it was carried on for a longer period than they thought it would prevail.

The modern robe or gown also has a mysterious piece of triangular cloth attached to the left shoulder, often described as ‘violin-shaped’, which is cut in two lengthways. Its origin is obscure and there exist two theories. The first is that, this was once a money sack for brief fees. According to some, it is divided in half to create two segments, one for gold coins, and the other for silver. The theory is that since barristers were not openly paid for their work, clients placed ex-gratia payment into counsel’s pocket, literally behind their back, to preserve their dignity. The idea was that, if barristers could not see how much they were being paid, the quality of their advocacy in court could not be compromised.

The second theory is that the triangular cloth is a derivative of the mourning hood introduced following the death of Charles II, in keeping with traditional mourning dress of the time. This was the cast over the barristers’ left shoulder and held in place by a long tassel known as liripipe, originally held in the left hand. This liripipe has survived on the robe today, and is now represented by the strip of cloth that hangs down the front of the modern gown.

3. Why do lawyers wear Bands (Jabot)?

The white-collar bands which lawyers wear these days too has a long-standing in history. In 1640, lawyers swapped their neck ruffs, the fashion of the era, for plain linen ‘falling bands’, to conceal the collar of the shirt. The bands were originally wide and tied with the lace at the front. By the 1860’s, they had become two rectangles – as worn by barristers today. One theory is that the two rectangles represent the tablet of Moses. They were also worn by doctors and clergymen, however, and were probably a sign of learning.

4. Why do Judges wear Wig?

Ain’t I cool?

Weirdest theory for wigs. Even now, many Judges across the Globe wear wigs of different types. Costumes of Judges across various countries can be seen here. A glimpse of it would show, Judiciary is more fashionable than any other profession of its time.

Historically speaking, Charles II returned to England from France and brought with him the trend of the ‘periwig‘ from Louis XIV’s court. English society adopted the trend, as did barristers in 1663. Thereafter, the most fashion-conscious members of society tried to outdo one another with larger and larger wigs, hence the term ‘bigwig‘. Certain judges and senior counsel even today wear the long, bottomed wig – the spaniel look – on ceremonial occasions, to indicate their position.

Three styles of legal wig survived the fashion trends of the 17th and 18th centuries and are still in use:

(a) the long full – bottomed wig;

(b) the bob-wig, or ‘bench’ wig, which has frizzled sides rather than curls and a ‘queue’ (looped tail), and

(c) the tie-wig, the most common style worn by the majority of barristers today. The tie-wig has a fuzzed crown, with rows of curls, known as ‘buckles’ along the sides and back, and a looped tail at the rear.

In the time of King Charles II, all lawyers wore the full-bottomed wig. These were abandoned around 1740 in preference for the smaller, lighter tie-wigs. By the 19th century, the tie-wig became the hairpiece of choice for barristers, and is still worn today. Though, in many countries, the fashion of wearing wigs is still prevalent, India has lost interest in it. And, thankfully so.

5. What is ‘Called to the bar’?

Bar without a bartender.

Initial days (many of the courts, still prevalent), the courts rooms were partitioned off or enclosed by two bars or rails; one separated by the judge’s bench from the rest of the room; the other segregated the area for lawyers engaged in trials from the space allocated to the public, and from the space allocated to the public, and from those appearing before the court.

Advocate, or counsel, were called before the court, came to the ‘bar‘, and were admitted into the sealed-off area of the court hence; the term ‘called to the bar’ or being given the privilege to appear, before the court.

6. What is a ‘bench’?

Bench in legal contexts means simply the location in a courtroom where a judge sits.

The historical roots of that meaning come from the fact that judges formerly sat on long seats or benches (freestanding or against a wall) when presiding over a court. In modern courtrooms, the bench is usually an elevated desk area that allows a judge to view the entire courtroom (see photo at right).

But the word also has a broader meaning in the law – the term “bench” is a metonym used to describe members of the judiciary collectively, or the judges of a particular court, such as the Queen’s Bench or the Common Bench in England and Wales, or the federal bench in the United States.

The term is also used when all the judges of a certain court sit together to decide a case, as in the phrase “before the full bench”.

7. Who is the blind lady with scales and a sword?

No. That’s not how it works.

The blind lady, often rightly called as ‘Lady Justice’ is the Roman Goddess ‘Justitia‘, who is equivalent to the Greek Goddess Dike. Justitia is an allegorical personification of the moral force in the judicial system.

Justitia is most often depicted with a set of scales typically suspended from her right hand, upon which she measures the strengths of a case’s support and opposition. She is also often seen carrying a double-edged sword in her left hand, symbolizing the power of Reason and Justice, which may be wielded either for or against any party.

Since the 15th century, Justitia has often been depicted wearing a blindfold. The blindfold represents objectivity, in that justice is or should be meted out objectively, without fear or favor, regardless of identity, money, power, or weakness; blind justice and impartiality. Justitia was only commonly represented as “blind” since about the end of the 15th century.

8. Do lawyers have any history?

19th century painting where lawyers found gossiping about judges.

Yes. They do have a history.

The first people who could be called lawyers were the great speakers of ancient Greece. Individual people were presumed to present a defense their own cases, but that was circumvented by having a friend better at speaking do it for you. Around the middle of the fourth century, the Greeks got rid of the request for a friend. Second, a more serious obstacle, which the Greek orators never completely overcame, was the rule that no one could take a fee to plead the case of another. This law was disregarded in practice, but was never abolished, which meant that orators could never present themselves as legal professionals or experts. They had to uphold the ruse that they were an ordinary citizen helping out a friend for free, and so they could never organize into a real profession,with professional associations and titles ,like their modern lawyers.

If one narrows the definition to those men who could practice the legal profession openly and legally, then the first lawyers would have to be the orators of ancient Rome. A law enacted in 204 BC barred Roman advocates from taking fees, but the law was widely ignored. Not surprisingly, though.

The ban on fees was later on abolished by Emperor Claudius who legalized advocacy as a profession and allowed the Roman advocates to become the first lawyers who could practice openly—but he also imposed a fee ceiling of 10,000 sesterces. But very early on, unlike Greece, Rome developed a class of specialists who were learned in the law, known as ‘jurisconsults, iuris consulti, Jurisconsults‘ who were wealthy amateurs who dabbled in law as an intellectual hobby; they did not make their primary living from it. They gave legal opinions responsa on legal issues to all comers Roman judges and governors would routinely consult with an advisory panel of jurisconsults before rendering a decision, and advocates and ordinary people also went to jurisconsults for legal opinions. Thus, the Romans were the first to have a class of people who spent their days thinking about legal problems, and this is why their law became so “precise, detailed, and technical”.

9. What is the difference between ‘Lawyer’, ‘Advocate’, ‘Attorney’, ‘Barrister’ and ‘Solicitor’?

Lawyer. Attorney. Advocate. Solicitor. What am I exactly?

This could be the most confusing query for even most of the lawyers.

The answer is they are all types of Lawyers originated from various legal systems. Some of the terms are from the English legal system, some are from Scotland and some from the American legal system.

An Attorney is somebody legally empowered to represent another person, or act on their behalf.

A Lawyer is somebody who can give legal advice and has been trained in the law.

A Solicitor – One that solicits, especially one that seeks trade or contributions. The chief law officer of a city, town, or government department but does not act as an advocate in court, as opposed to the Attorney who pleads in court. (English Law).

A Barrister (Called Advocate in Scotland) presents the case in court. Most senior and distinguished barristers are designated King’s (Queen’s) counsel.

A Counselor at law– In the past at least in some U.S states there was a distinction between the term A Counselor at Law who argued the case in court and an attorney who prepared the case but didn’t argue it.

In practice, legal jurisdictions exercise their right to determine who is recognized as being a lawyer; as a result, the meaning of the term “lawyer” may vary from place to place.

  • In Australia the word “lawyer” is used to refer to both barristers and solicitors (whether in private practice or practising as corporate in-house counsel).
  • In Canada, the word “lawyer” only refers to individuals who have been called to the bar or have qualified as civil law notaries in the province of Quebec. Common law lawyers in Canada may also be known as “barristers and solicitors”, but should not be referred to as “attorneys”, since that term has a different meaning in Canadian usage. However, in Quebec, civil law advocates (or avocats in French) often call themselves “attorney” and sometimes “barrister and solicitor”.
  • In England and Wales, “lawyer” is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, legal executives and licensed conveyancers; and people who are involved with the law but do not practise it on behalf of individual clients, such as judges, court clerks, and drafters of legislation.
  • In India, the term “lawyer” is often colloquially used, but the official term is “advocate” as prescribed under the Advocates Act, 1961.
  • In Scotland, the word “lawyer” refers to a more specific group of legally trained people. It specifically includes advocates and solicitors. In a generic sense, it may also include judges and law-trained support staff.
  • In the United States, the term generally refers to attorneys who may practice law; it is never used to refer to patent agents or paralegals.

Let me have your feedback.


Issue 4 – Supreme Court’s power to frame guidelines

Whether Supreme Court has the power to impose restrictions on Article 19(1) (a) when Article 19 (2) specifically mentions that limitations can be imposed only by ‘state enacted law’?

Most of the senior counsels including Fali Nariman and Ram Jethmalani contended that Supreme Court does not have any power whatsoever to impose restrictions on Article 19 (1) (a) and it would be considered a judicial outreach because as per Article 19 (2), only state enacted law can impose restrictions on the said right.

Undoubtedly, the contention is unambiguous. Only State can impose restrictions through its laws. But, what if State fails to enact a law? What if there is a vacuum?

Particularly regarding the issues which are being discussed by the Supreme Court in this case, Law Commission submitted its report almost 5 and half years back and suggested few changes in law. However, so far, the Government has not accepted the said report or enacted any law to protect the rights of an accused.

As stated in the earlier post, there certainly is a vacuum in case of protection of rights of an accused till the charge sheet is filed in case of criminal cases since the Contempt of Courts Act does not cover the same.

The Supreme Court has decided in numerous cases that when there is a vacuum in law and State has failed to fill the same, it is essential and indeed a constitutional obligation for the Supreme Court to issue such directions/ guidelines for the enforcement of fundamental rights.

Chief Justice Kapadia had a simplified illustration. For example, if some restrictions are being imposed by the Supreme Court on a Mining business to safeguard fundamental rights of other aggrieved persons, is it outside Supreme Court’s jurisdiction simply because Right to business/profession [Article 19(1)(g)] can be restricted only by state enacted law under Article 19 (2) ? What if there is no law?

This is certainly not the first time that directions/guidelines have been issued by the Supreme Court. The law on this aspect is very clear. Article 142 of the Indian Constitution is certainly wider enough to include the powers of the Supreme Court to frame guidelines for the purpose of protecting fundamental rights of the citizens.

Some of the cases wherein guidelines were issued by the Supreme Court are as follows:

  1. S.P. Gupta v Union of India 1981 Supp SCC 87 para 27
  2. Lakshmi Kant Pandey v Union of India 1984 (2) SCC 244 (para 1)
  3. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, para 13
  4. Delhi Judicial Service  Assn v State of Gujarat (para 51, guidelines at para 55) 1991 (4) SCC 406
  5. Union Carbide Corporation etc v UOI, & Ors. (para 15) 1991 (4) SCC 584
  6. Kartar Singh Vs. State of Punjab (1994) 3 SCC 569 (para 263)
  7. Kumari Madhuri Patil v Commr. Tribal Development 1994 6 SCC 241
  8. Common Cause v Union of India 1996 (1) SCC 752 (para 1, guidelines/directions at para 14)
  9. Delhi Development Authority v Skipper Construction Co. (P) Ltd. & Anr. 1996 (4) SCC 622 (paras 15, 16, 32, 34)
  10. People’s Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and Anr.  (1997) 1 SCC 301
  11. D.K. Basu v State of West Bengal 1997 (1) SCC 416 (para 22, 23, 35)
  12. Vishaka & Ors v State of Rajasthan & Ors 1997 (6) SCC 241 (paras 1, 11 and 16)
  13. Vineet Narain & Ors v Union of India & Anr. 1998 (1) SCC 226 (paras 49, 51, 52, and 53)
  14. Union of India v Association for Democratic Reforms & Anr with PUCL & Anr v UOI & Anr 2002 (5) SCC 294 (para 15, 16, 20, 45, 46)
  15. Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284, para33
  16. Destruction of Public & Private Properties v State of AP 2009 (5) SCC 212 (paras 17, 18, 25, 28, 29 30, 32)

Irrespective of the fact that, whether the guidelines which might be framed by the Supreme Court would be effective or not and even could be enforced or not, this case would certainly set what rights are available to the press and what are not.

Or, at least, it will give an opportunity for the future judiciary to overrule and come up with a better judgment.