Know thy Judge

 

“The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power.”

– Justice Hemant Gupta,

Nitin Pathak v. State of M.P., 2017 SCC OnLine MP 1824


Excerpts from Judgments authored by Justice Hemant Gupta


Arvind Singh v. State of Maharashtra, 2020 SCC OnLine SC 400; While allowing the appeal in part against death sentence awarded by the Nagpur Bench of Bombay High Court, the Court observed,

“What is required to be examined is whether there is a possibility of rehabilitation and whether it is the rarest of the rare case where the collective conscience of the community is so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The manner of commission of murder when committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner are aggravating factors.”

Laxmibai v. Collector, Nanded and Ors., 2020 SCC OnLine SC 187; Hearing an appeal against the order of the High Court dismissing writ petition against an order of disqualification on account of non-submission of election expenses within the period prescribed, it was held,

“The purity and transparency in election process does not give unbridled and arbitrary power to the Election Commission to pass any whimsical order without examining the nature of default. The extent of period of disqualification has to be in proportion to the default. The Election Commission has to keep in mind that by such process, an election of duly elected candidate representing collective will of the voters of the constituency is being set at naught.”

Ram Sewak Mishra v. State of M.P., 2017 SCC OnLine MP 1546; Deciding on the validity of an executive action wherein no adequate opportunity of hearing was provided to a Government employee charged under Prevention of Corruption Act, 1988, Justice Gupta noted,

The rule of audi alteram partem is the rule of the law without which law would be lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. The concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application. Whether or not the application of the principles of natural justice in a given case has been excluded, wholly or in part, in the exercise of statutory power, depends upon the language and basic scheme of the provision conferring the power, the nature of the power, the purpose for which it is conferred and the effect of the exercise of that power. The procedural precondition of fair hearing, however minimal, even post-decisional, has relevance to administrative and judicial gentlemanliness.

N.K. Janu v. Lakshmi Chandra, 2019 SCC OnLine SC 518; While making significant observation with respect to the power of Court to summon public officers, it was said,

“The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them. The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case.Read More

State of Bihar v. Sachindra Narayan, (2019) 3 SCC 803; In an appeal against the order of a Division Bench at Patna High Court, mandating the State authorities to give financial assistance on the ground of legitimate expectation, the Court observed,

“(…)legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.


Significant Judgments that Justice Gupta has been a part of


 Dr. Jaishri Laxmanrao Patil v. Chief Minister, 2020 SCC OnLine SC 727; A full judge bench of L. Nageswara Rao, Hemant Gupta and S.Ravindra Bhat, JJ., while referring the Constitution (102nd Amendment) Act, 2018 to a larger bench, held,

The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.”

The Bench further directed that the admissions to educational institutions and appointments to public services/posts under the government, shall be made irrespective to the reservations provided under, Maharashtra State Reservation (of seats for admission in Educational Institutions in the State and for appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018. Read More

Union of India v. Exide Industries Limited and Another, (2020) 5 SCC 274; A full judge bench of A.M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari, JJ., deciding on the validity of clause (f) to Section 43-B Income Tax Act, 1961, held,

“To hold a provision as violative of the Constitution on account of failure of the legislature to state the Objects and Reasons would amount to an indirect scrutiny of the motives of the legislature behind the enactment. Such a course of action, in our view, is unwarranted. The raison d’être behind this self-imposed restriction is because of the fundamental reason that different organs of the State do not scrutinise each other’s wisdom in the exercise of their duties. In other words, the time-tested principle of checks and balances does not empower the Court to question the motives or wisdom of the legislature, except in circumstances when the same is demonstrated from the enacted law.” Read More

Amit Kumar Roy v. Union of India, (2019) 7 SCC 369; A division bench of D.Y. Chandrachud and Hemant Gupta, JJ., adjudicating upon the interplay of Article 19(1)(g) and the statutory restrictions on members of Indian Airforce, said,

“A person who has been enrolled as a member of the Air Force does not have an unqualified right to depart from service at his or her will during the term of engagement. Such a construction, as urged on behalf of the appellant, will seriously impinge upon manning levels and operational preparedness of the Armed Forces.Read More


*Editorial Assistant, EBC Publishing Pvt. Ltd. 

Hot Off The PressNews

Appointments of Judges

President appoints the following to be the Judges of Gujarat High Court:

  • Vaibhavi Devan Nanavati
  • Nirzarkumar Sushilkumar Desai
  • Nikhil Shreedharan Kariel

Here’s the notification: APPOINTMENT


Ministry of Law and Justice

[Press Release dt. 01-10-2020]

Appointments & TransfersNews

Supreme Court Collegium

Supreme Court Collegium on 23-09-2020, approved the proposal for elevation of the following Judicial Officers, as Judges of the Madras High Court:

1. Shri G. Chandrasekharan,

2. Shri A.A. Nakkiran,

3. Shri Sivagnanam Veerasamy,

4. Shri Ilangovan Ganesan, and

5. Smt. Ananthi Subramanian.

6. Smt. Kannammal Shanmuga Sundaram,

7. Shri Sathikumar Sukumara Kurup,

8. Shri Murali Shankar Kuppuraju,

9. Ms. Manjula Ramaraju Nalliah, and

10. Smt. Thamilselvi T. Valayapalayam.

COLLEGIUM STATEMENT

COLLEGIUM STATEMENT


Supreme Court of India

[Collegium Statement dt. 23-09-2020]

Appointments & TransfersNews

President appoints Justice Sanjay Yadav, senior-most Judge of the Madhya Pradesh High Court, to perform the duties of the office of Chief Justice of that High Court with effect from 30th September 2020 consequent upon the retirement of Justice Ajay Kumar Mittal, Chief Justice, Madhya Pradesh High Court.


Ministry of Law and Justice

[Notification dt. 22-09-2020]

COVID 19Op EdsOP. ED.

Introduction

This article is penned especially for advocates, judges, litigants and more particularly the ministerial staff in the courts who are even without setting of Covid-19, under a lot of mental stress and require spontaneous rejuvenation. The word “health” partakes within itself physical, mental and social well-being and, therefore, this article is for seeing that we remain fit once the courts start functioning and we are out of our mental psychosis.

The setting of 2020 came with all goodnesses but by the middle of the third month i.e. spring, we felt that good relationship, sense of belonging, opportunity to physically be active all were shattered bringing in a psychological weakness in a person. Like, come September we Indians welcome seasons. The first six months of the English calendar brings various festivities.

We also started seeing what can be said as few socio-legal disturbances, namely, the families have started having mental disorders due to the pandemic as well as the lockdown and it is in this background that I am penning this article though many have given their thoughts and have uploaded many videos and sermons but we have to move ahead with all the limitations which we have.

The six months which have bygone have brought about a lot of mental stress, have brought about psychological stress. It is for our getting back on track after the lockdown may get over that these few tips would be useful to the legal fraternity by legal fraternity the undersigned also address the staff of courts, who are in a lot of stress these days.

The international data goes to show that danger of these mysterious viral diseases is still there. We need to adopt social distancing measures, here what I mean by social distancing is physical distancing so that level of risk would be much less and we should not be complacent if we are in the age group of 20-30.

If we have serious medical conditions, we should try to develop what I call rejuvenation so that psychologically we would be much better placed. The fear should not deter us and we should take preventive action every day. The World Health Organisation site can be visited as the trends go to show that fear, worry and stress are perceived and become real threats. These would change our daily life patterns.

“The need for ‘spontaneous’ rejuvenation of physical and mental well-being for lawyers and judges. A need in the modern-day scenario” was an article which the undersigned penned before 13 years and while passing through these trying times it is felt the same to be apt even after 13 years of penning the same.

I do not wish to be guilty of new rules of self-plagiarism as this article was penned by me before one decade for an in house journal Nyaypath published by Gujarat State Legal Services Authority.

It is now with great pain that I am forced to again recast this article after the onslaught of the pandemic, and sad demise of my old colleague Satyen not due to COVID but because of ill health in mysterious circumstances.

Like, come September we Indians welcome seasons. The first six months of the English calendar brings various festivities. The festivities of various communities. The coming of spring is also celebrated as bringing with it several festivals.

As said by Richard Carlson in his famous book.

As said by Richard Carlson in his famous book. A powerful and positive personality is necessary for enjoying our profession by being enthusiastic, lively and remaining and having confidence in ourselves. Which we are tending to loose, the reason is obvious the author does not wish to delve deep into reasons but wants the reader to benefit and bounce back mentally, physically and psychologically during these trying times.

The human body is the most complex machine ever built and it is one of the most familiar machines despite that most of us take our body far too much for granted. It is only when something goes wrong with we think of it. We fail to appreciate our own magnificence. The body is like a big city having dozens of power stations, sophisticated communications setup, import raw materials, manufactures goods. We operate a garbage deleting system. These systems are available from the day a person is born. It is important to know that the body is made up of several cells. The invisible muscle cells keep us going. This acts as gate keepers and decides which matter should be admitted and which should be disposed of at controls.

            If nothing went wrong with the body as narrated above, we often neglect it, and therefore, this article is to remind us the neglect of the body under the guise of “I have no time” or “I am in tremendous pressure of work today” and at the end of the day “I feel very tired”. The simple tips can rejuvenate and revitalise the body and the mind and give up the boredom.

Mental well-being is a part of the overall well-being of a human being. It is said that a healthy body will breed a healthy mind. To attain a healthy mind, it is very necessary to attain a healthy body. It would be seen that out of 100 at least 50% of judges suffer from some physical ailment. The reason/answer is very spontaneous – “my working conditions”. “I have a lot of pendency of cases. Where do I have time to spare for recreation or exercise?” It is time to introspect for whom are we working so hard? The answer would be for our family. In a healthy body lives a healthy mind, likewise, if the family head is healthy then only will he be able to provide strong support to his family otherwise the family will have to constantly worry for him. It is an admitted position that judges and lawyers constantly keep their brain engaged in various thoughts i.e. reading for preparing the plaint or reply, preparing to write the judgment, checking of administrative files.

20 minutes in a day for ourselves can we not spare? The answer would be impossible to spare. This is what I would call a negative mindset with which we are pre-occupied meaning thereby “how”, can I waste my time, Sirs, this is not waste of time but is a rare kind of investment. These “40” minutes need not be continuous at one sitting. They can be spread over “5” minutes at “wake up” time, “5” at just before you take tea. “5” just before court, the answer would be I have a lot of work instead of this thinking, practice devoting of 10 minutes to yourself. How? By keeping eyes closed and letting positive thoughts to come to your mind and body. If you think positive, the mindset would enable the positiveness to visit you and see the miracle in being on the dais. It is always the thoughts that determine your attitude for the day.

            It is often said by the entire fraternity that “I don’t have time” but everybody craves peace and mental well-being and that is why from the time of the Britishers, we observe vacation which is in a way physical form of relaxation. Physical relaxation is an escape from tension, but it would not be the solution for mental relaxation. Mental relaxation is tasting very essence of peace of mind. Even if we introspect, we would feel trying to extract peace from the world around us. Physical relaxation can be said to be an escape from tension but it is not a solution by itself. The solution to it would be when a mental connection or union is achieved through some kind of remembrance when the mind is focused on only mental peace. The same can be said to be “Yoga”.

Yoga is nothing else but the ultimate attainment of peace of mind. The word “Yoga” is derived from the Sanskrit root “Yuj” which means to unit, join, harness, contact or connect. It is the fusion of a body with a disciplined mind for the purpose of spiritual development and this gives peace of mind. It is not necessary that this exercise can be performed only in isolation or by taking out a separate time. You can do it even while performing your routine work. Say a simple example would be the rejuvenation of your eyes by sprinkling water during the recess which would give you relaxation. It is even replied that relaxation is to be planned so as to do it later which can be done on vacation in an isolated place or when you get everything done. This is according to me is not the right answer.

Relaxation can be attained at any place at any time as suggested above even while preparing for a case you can relax for five minutes by closing eyes and sitting in silence. Daily twenty minutes of this kind of relaxation exercise would definitely rejuvenate mental and physical well-being. Meditation will make you calm with the strength to deal with any kind of stress which would need only a few moments of self-introspection during day time. The third powerful aspect for refreshing a person to make mind calm is thought, which is not physical energy, which can influence soul and also matter of body. Thought ― on a limited scale, emotions, desires and moods, would generate a field around the body and soul which is like electric field which would develop the need to have a positive mindset which would create a positive atmosphere around and such atmosphere can be said as “atma-sphere”. Thus prevailing modes with meditation, yoga and/or some physical exercise during the 24 hours cycle would keep you healthy, relax and energetic to do the work up to end and to overcome the stress which we would be facing. It also enlightened the power which would create power of thought, imagination, concentration, will-power and attitudinal change. It is wrongly understood that yoga means doing asnas or only physical exercise, that is not so, that is only a form of yoga. Yoga is not a religion. I would like to end this article with the wording of none other than His Lordship Justice V.R. Krishna Iyer as written by him in his book “Off the Bench”:

“The Upanishads are instinct with a spirit of inquiry, of mental adventure, of a passion for finding out the truth about things. The search of this truth is, of course, not by the objective methods of modern science, yet there is an element of the scientific method in the approach. No dogma is allowed to come in the way.

            The aforesaid is now supplemented with the passage of these 13 years which have made life more comfortable with equipment but we are today also facing the same mindset. The difference is these days we have time to devote after gadgets like mobile phones, laptop and other games for amusement but we do not have time for rejuvenating ourselves with the eclipse of Covid-19. We are once again required to rethink as to what should be our primary aim during this pandemic and post-pandemic. As human beings we are undergoing huge stress not only mentally but physically also. The crisis has brought about various issues which can be said to be ceaseless. The media today increases our stress level which in turn disturbs all our life patterns. The mental well-being, physical well-being and social well-being is the need of the day. Before 2020, India had not got a psychosocial toll-free helpline but now it has been started by the National Institute of Mental Health and Neurosciences with the Ministry of Health and Family Welfare, refer to “health and well-being during Covid-19 Harvard T.H. Chan School of Public Health.

            We have seen that moratorium are asked due to the lockdown scenario. Individuals and the families are on the brink of mental break down which leads to physical break down also.

            I would not tax the reader with huge sermons but would request my colleagues to follow a good diet regime coupled with what I would call mental well-being to come out of hopelessness, helplessness and we need to train ourselves what is known as mental well-being and follow the strategy so that psychological break down and suicidal tendencies are properly dealt with. Due to lockdown we need to adopt e-learning. We will have to manage our expectations and manage our stress threshold. I would suggest that make routine of your best companion and/or your friend. Hereby, the term “friend” means, faithful, revered, intimate, everlasting, never forsaking and dear. We will have to maintain connection by way of virtual forum.

            I would request each to be mindful and go for regular meditation. Hereby the term “meditation” means not only prayer but to concentrate and make our mind calm so that when we sit to work it give us a nice clinical recession to do our work. I am sure that we need to be mentally and physically well-equipped for the time to come. Mental health would be several family problems also. Here a question to be asked from me that we do not have proper health regime as there is a lockdown of gyms and walking track are also lockdown. Here I am reminded of my maternal uncle who used to stay in Bombay and his house comprised of one room which was partitioned into his kitchen and his bedroom. He used to do his morning exercise for one hour in that small closet and he continued his exercise till recent times. Covid-19 has taught of many lesson. One of them is to maintain yourself in whatever you have.

            The regulations like home confinement should not result in further mental or psychological stress and it is this which has to be avoided and for which we may devote our time for well-being.

            During this pandemic, the suicidal tendencies have also increased and, therefore, emotional well-being will have to be inculcated. An article by Dr Anil Kakunje may also be referred to along with the other websites which are for getting back for mental health and well-being for my brethren and the people at large.

            Thus the undersigned would sum up with a message that we should maintain the inner harmony of an individual vis-à-vis his social well-being. During this pandemic, there may be distancing but the distancing should be not so grave that the patient feels that he is socially boycotted which would in turn cause psychological depression in the entire family and even if Covid-19 does not strike us the after-effect would be so grave that we would be psychologically, physically and mentally we would be losing both health and wealth which would not be good for an individual, family and the society.

            I would like to quote Richard Bach who has always motivated me by his book  Illusions: The Adventures of a Reluctant Messiah wherein he highlights one aspect I quote “here is a test to find whether your mission on earth is finished: if you are alive, it isn’t — illusions”.

            We will have to rejuvenate our respiratory system as both Covid-19 and H1N1 influenza damages our respiratory system and for that the best is as suggested above.

            I would end this article by quoting Sri Sri Ravi Shankar — “We don’t need an excuse to celebrate life”.


Judge, Allahabad High Court.

References:- While writing the article, I have extensively read the below-mentioned books and taken guidance from them while preparing this article.

  1. “Don’t Sweat The Small Stuff and its’ all small stuff”.
  2. Know Your Body, II Edition, A Reader’s Digest Guide, RDI Print and Publishing Pvt. Ltd.
  3. New Beginnings; Brahma Kumaris Ishwariya Vishwa Vidyalaya.
  4. Off the Bench, by Justice V.R. Krishna Iyer.
  5. The Speaking Tree- Times of India.
  6. Agony and Ecstasy of A Teenager by Abhisst Thaker
  7. How to Develop a Powerful and Positive Personality by Venkata Iyer
  8. Illusions: The Adventures of a Reluctant Messiah by Richard Bach.
  9. https://www.who.int/teams/mental-health-and-substance-use/covid-19
  10. https://www.nhs.uk/conditions/stress-anxiety-depression/
Appointments & TransfersNews

President appoints the following Additional Judges as Permanent Judges:

S/Shri Justices (i) V.G. Arun (ii) N. Nagaresh (iii) T.V. Anilkumar, and (iv) N. Anil Kumar, Additional Judges of the Kerala High Court, to be Judges of the Kerala High Court with effect from the date they assume charge of their respective offices.

Read the notification, here: NOTIFICATION


Ministry of Law and Justice

[Notification dt. 11-09-2020]

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of M. Satyanarayana Murthy and Lalitha Kanneganti, JJ., ordered an enquiry into a conversation contained in pen-drive disclosing some material about designing a plot against the Chief Justice of Andhra Pradesh and another sitting Judge of the Supreme Court.

Court stated that,

“Unfortunately, today it is an unpleasant or gloomy day in the history of High Court of Andhra Pradesh, because the High court itself has to ward-off the brazen onslaught from the third parties to demean the prestige of the pristine judicial institution in the eye of litigant public.”

Audio conversation contained in the pen drive disclosed that it was a serious conspiracy against the Chief Justice of Andhra Pradesh High Court by designing a plot and sent a petition by the person who had a conversation with a person named S. Ramakrishna allegedly, but signed by Secretary of BC/SC/ST Association.

The said person insisted on Sri S. Ramakrishna to collect material against another senior most sitting Judge of the Supreme Court to mar his future career.

Bench stated that since the plot is designed against the Chief Justice of Andhra Pradesh High Court with malafide intention unless the authenticity of the contents is established, Court cannot proceed against anyone.

Further, the Court observed that the way as to how the conversation between the two persons took place, would prima facie establish that there was a conspiracy against the Chief Justice of Andhra Pradesh and Senior-most Judge of Supreme Court, pernicious acts of the person who made such allegation to be discouraged. Otherwise, the public may lose faith in the Courts.

Conversation discloses use of intemperate language against two senior most sitting Judges of the Supreme Court and it is a matter of serious concern.

Such conversation will certinly crumble the confidence of the public on Courts and system itself.

Further, the Court added that in the judicial process, it is the solemn duty of the Court to unravel the truth. In the present matter, only way to unravel the truth is to order necessary enquiry.

Truth should be the Guiding Star in the entire judicial process.

Hence, Court found the present case to be appropriate for ordering enquiry to find out the authenticity of the conversation contained in the pen-drive.

Therefore, Justice Raveendran, retired Judge of the Supreme Court of India is requested to hold an enquiry to find out the authenticity of the conversation, with regard to the plot designed against the Chief Justice of Andhra Pradesh and being designed against senior most sitting Judges of the Supreme Court and undisclosed interest of the third parties.

Director of CBI and Director of Intelligence Bureau are directed to depute responsible officers of the department to collect information from the agencies pertaining to the conversation contained in the pen-drive and other material collected from the Registry and submit the same to Justice R.V. Raveendran, retired Judge of Supreme Court of India.

Matter to be listed in 4 weeks.[BC, SC, ST Minority Student Federation v. Union Of India, 2020 SCC OnLine AP 652, decided on 13-08-2020]

Appointments & TransfersNews

Supreme Court Collegium approves the proposal for elevation of the following Advocates, as Judges of the Delhi High Court:

1. Jasmeet Singh,

2. Amit Bansal,

3. Tara Vitasta Ganju,

4. Anish Dayal,

5. Amit Sharma, and

6. Mini Pushkarna.


Supreme Court of India

[Collegium Statement dt. 17-08-2020]

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium approves the proposal for elevation of the following Judicial Officers, as Judges of the Allahabad High Court:

  • Sanjay Kumar Pachori,
  • Subhash Chandra Sharma,
  • Subhash Chand, and
  • Saroj Yadav.

Supreme Court of India

[Collegium Statement st. 14-08-2020]

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium approves the proposal for elevation of the following Advocates as Judges of the Gujarat High Court:

  • Vaibhavi Devang Nanavati,
  • Nirzarkumar Sushilkumar Desai, and
  • Nikhil Shreedharan Kariel.

Supreme Court of India

[Collegium Statement dt. 14-08-2020]

Appointments & TransfersNews

Appointment of Judges

President appoints Justice Abhijit Gangopadhyay, Additional Judge of the Calcutta High Court, to be a Judge of the Calcutta High Court and Justice Jyotsna Rewal Dua, Additional Judge of the Himachal Pradesh High Court, to be a Judge of the Himachal Pradesh High Court.

 


[Notification dt. 27-07-2020]

Ministry of Law and Justice

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and P.B. Pardiwala, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court.

A law student raised the issue with regard to the Live Streaming/Open Access of the Court proceedings and in the public interest Gujarat High court should work out the necessary modalities for the said purpose.

Bench on perusal of the material on record, stated that to observe the  requirement of an open Court proceedings, members of the public should be allowed to view the Court hearings through video conferencing except the proceedings ordered for the reasons recorded in writing to be conducted in-camera.

Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.

As, the above-stated Court proceedings involve the issue impacting the public at large or a section of the public.

Bench appreciated the efforts of the 3rd year law student appeared in person in the public interest.

Further, in line of the above-stated observations, Bench stated that to work out the modalities to facilitate the people at large including the media to watch the virtual hearing, Committee of two Judges of this High Court has been constituted pursuant to Standing Committee’s decision on 25-06-2020.

In the near future, a report of the committee is expected after which to allow access to the public at large including the media persons of print digital and electronic media shall be finalized.

Petition was disposed of in view of the above. [Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020]

Op EdsOP. ED.

In cricket, both for fast bowlers and medium-pacers mastering the art of reverse swing is crucial to ensure that they do not get booted out of their teams. In the same manner, in the legal field today, I am trying to explore this reverse swing with the hope that I may not get booted out.

There is a big list of advisory literature and lectures on the subject: “What Judges expect from lawyers”. However, there is hardly any direct and explicit view on vice versa i.e. ‘What advocates expect from Judges’. Although, it is customary in our system that Judges sitting higher on the Bench and having reins of majesty of law, their expectations should be given preference and more weightage, as dispensing justice is considered a more pious duty than the job of the advocates, who represent the litigants for their respective cases. No doubt, the lawyers are also the officers of the court and they always try to satisfy the litigants’ desire for justice by performing their legal duties, but in the legal world, consumers of justice are ignored much, than being recognised in its true perspective.

I am, however, attempting to address this issue based upon some experience I have. The Supreme Court of Canada has said: ‘The Judge is pillar of entire judicial system.’[1] This also applies in India. The great Socrates defined the four personal qualities of a Judge, which has become famous: ‘to hear courteously; to answer wisely; to consider soberly and to decide impartially’. All the same, Judges are also human beings and so, they are not free from any fallibility. Of course, it varies from Judge to Judge, but it is imperative to understand from an advocate’s standpoint of view that how s/he sees the Judge. What he/she expects from the Judge. The inner and outer expectations of the lawyers also differ within themselves and from junior or new entrant in the profession to a seasoned senior; hopes from the Judge/s are diverse in various categories. However, there are some general points, which all advocates want and wish from the judge to consider their case/s in the given set of facts and law. I have tried to summarise the same in the following manner without repeating those four things what Socrates had said above. However, these are only illustrative and not exhaustive at all.

  1. Advocates want Judges to allow them to develop their case a little bit more, even if it is a fresh matter for admission and the Judge has already read it in advance. Of course, some Judges hear patiently even if they know there is nothing in the matter, but some are impatient by themselves and before an advocate rises to address, it is determined as ‘dismissed’. Sometimes, advocates are aware of the weakness in their own cases, but because the law is not settled, they seek a fighting chance, as there are liberal Judges and there are strict Judges. Notions for issuing notice or not also have diverging views. Hence, there is nothing wrong, if an advocate could be heard for a little more time.
  2. Advocates wish that Judges should be open till the end of the matter and should not close their minds with preconceived notions. Many lawyers feel this thing in a variety of cases. However, there is no harm in changing the opinion even at a last moment, if ultimately there is a point to consider the matter. Open-mindedness is always better for just adjudication process.
  3. Moreover, one cannot change the facts, but by interpreting the law, relief can be molded in the interest of justice, equity and good conscience, as we have inherited it from the common law tradition. Hence, endeavour should be made to see that justice is done. Arguments and counter-arguments are not the game, which is played in the courtroom. The Bench should be concerned in finding out the truth and not to watch the performance of the lawyers, unlike a wrestling match. However, to discover the truth is the most difficult task for the Judge, as sometimes, truth is stranger than fiction and it is said: Fiction is obliged to stick to possibilities, truth isn’t.
  4. Advocates want and deeply wish for an equal treatment with all the members of the Bar/profession irrespective of their standing and status as senior counsel/advocate while addressing the courts. Junior members of the Bar hardly envy of status of senior counsel/advocate, as they have full respect for them and they know that seniors have earned it by sheer hard work and talent, but what pinch them is some special treatment by a certain Bench. Painfully, the Judges justify them by saying: they have a good point, which ordinary lawyer will not be able to see because they carve out from even from a dead horse. This is debatable and most of the members of the Bar would hardly agree with this, considering on the same point, a junior advocate is snubbed by the same court, wherein the senior counsel is entertained. Here, there is hardly any need to cite specific instances, as practicing advocates see this day in day out. Nevertheless, there is not an iota of grudge or any kind of resentment against the learned seniors of this noble profession, as they are always respected and torchbearers of this noble profession, who have set highest traditions and examples for new generation, but the point is: if other things being equal, similar treatment by the Bench is required to be given to all, of course fairly and justly.
  5. And last, but not the least is: behavior of the Judge, when s/he adorns the Bench. Judges do mark conduct of the advocates while they are arguing; in the same manner, the advocates are also noticing the behavior of the Judge, while he/she is hearing the case. Sometimes, advocates understand that due to heavy workload and unbearable backlog, Judges tend to be disturbed, perturbed and become agitated on the Bench and the lawyers tolerate this by keeping quiet or sometimes with smiling face. But, if this happens every day and the mood swings of the Bench, then, it makes difficult for the advocates to conduct the case as per their preparation of the matters.

In the Indian legal system, more particularly, in litigation, as soon as fresh advocates enter in the profession, first thing they learn is about the face-law. Some seniors used to say and sometimes they rightly say: before knowing the law, know your Judge. Meaning thereby, see and observe: how s/he deals with the case, in what manner and most importantly – what s/he likes and what s/he dislikes. Law is what, Judge says.

I conclude by citing the memorable words of great Judge Justice M.C. Chagala from his autobiography ‘Roses in December’, which I quote: “Discourtesy to the Bar is essentially evidence of weakness in the Judge. Losing one’s temper while counsel is arguing is a reflection only of the  Judge’s own failing and his inability to control the Bar…’


*Advocate practicing at Gujarat High Court and Visiting Professor at Institute of Law, Nirma University, Ahmedabad

[1] The Canadian Superior Courts Judges Association, “The Qualities Required of a Judge” http://www.cscjaacjcs, (8 May, 2017)

Op EdsOP. ED.

“A Judge of the Supreme Court is not entitled after retirement to plead or act in any court or before any authority within the territory of India. He has to depend during the declining years of his life on his savings and the pension to which he is entitled as a retired Judge. The meagre pension has thus also the undesirable consequence of driving some of the Judges who have retired to find remunerative occupation which affects the dignity of the high judicial office they held.”

The above is an extract from the 14th Report of the Law Commission of India on ‘Reform of Judicial Administration’ submitted merely a decade after independence. Evidently, more than sixty years ago to the day when a former Chief Justice of the Supreme Court would be nominated to the Rajya Sabha, the Law Commission of India, then headed by none other than M.C. Setalvad himself, came to express grave misgivings precisely regarding what has transpired by way of the Home Ministry’s Notification dated March 16, 2020.

The events as have unfolded herein may not be the first instance of such a brazen assault on judicial propriety and dignity. In fact, as far back as 1958, government employment of Judges after they had superannuated from the Bench had been expressly deprecated as one having a debilitating impact on judicial independence, with the Law Commission recommending a complete prohibition thereof.[1]

However, in the years that have ensued, nothing justifies the utter disregard and oversight on part of the framers of the Constitution as well as successive elected governments insofar as this gaping void in Chapter IV of Part V[2] of the Constitution is concerned. A perusal of the Constituent Assembly (CA) Debates clearly points towards a perceptible acceptance and imbibing of the best traditions of judicial independence as well as propriety. Paramountcy was given to ensuring that the Indian Republic is bestowed with a truly independent and free thinking judiciary.

Nevertheless, one cannot but notice the disproportionate preoccupation of the Constituent Assembly with the manner and mode of ‘appointments’ and ‘conditions of service’ of Judges to the detriment of other subliminal pressures acting upon them. Perhaps the thought ran that if citizens of high moral character are appointed and allowed to function in a sufficiently insulated and isolated environment, the pressures of the other gubernatorial branches would be unable to render pliable an ‘untouchable’ judicial setup.

In fact, Granville Austin in his seminal work on the workings of the Constitution of India while stoutly defending the appointment of Judges as it transpired in the pre-Indira era has laid out several instances of the grim reality of executive inter reference based on regional, communal, linguistic as well as caste based considerations.[3] Therefore, though no outward fault may be attributed to the Constituent Assembly’s oversight, it must be accepted that with evolution in gubernatorial functioning, judicial sanctity must also assume a dynamic, varied and evolved response. 

It is bewildering to note that a constitutional prohibition on holding of any government office post-superannuation has in fact been enacted in the very next chapter of the Constitution of India[4]; Article 148 providing thereby that,

“(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.”

Similarly, vide Article 319, insofar as the Chairman of the Union Public Service Commission is concerned, it has been provided that,

“(a) the Chairman of the Union Public Service Commission shall be ineligible for further employment either under the Government of India or under the Government of a State.”

Evidently, thus, there exists ample precedence for a constitutional bar/prohibition on further employment under any government for those occupying certain constitutional posts. Perhaps an argument can be made out as nomination as a member of the Rajya Sabha strictly does not amount to ‘further employment under any Government’. Nevertheless, the manner in which a former chief of the Indian judiciary has been nominated to a legislative post shall surely dent the resolute confidence that the aware public reposes in those who occupy the highest echelons of our judicial setup.

In conclusion, it is put forth that if the state of affairs betrays a predisposed inclination, erosion of faith and confidence in the judicial establishment is indubitable. Only a bipartisan resolution to ensure that this failure and complete oversight on part of the framers of the Constitution is undone may possibly ensure restoration of judicial dignity. It is grossly undesirable that those sitting in judgment over a litigant should then be permitted to seek employment with the same litigant; such quid pro quo will surely be the death knell of natural justice.


* The authors are practising advocates in Delhi.

[1] Law Commission of India, Reform of Judicial Administration (14th Report, Vol. I,1958).

[2] Part V, Chapter IV of the Constitution of India consists of provisions establishing the ‘Union Judiciary’.

[3] Granville Austin, Working a Democratic Constitution: The Indian Experience (OUP; 2003; pp. 123-142)

[4] Part V, Chapter V of the Constitution of India pertains to the ‘Comptroller and Auditor General of India’.

Appointments & TransfersNews

Appointment Order

President appoints Karunakaran Nair Haripal, to be an Additional Judge of the Kerala High Court, with effect from the date he assumes charge of his office till 8th May, 2022.

Access the notification here: NOTIFICATION 


Ministry of Law and Justice

[Notification dt. 21-05-2020]

Appointments & TransfersNews

President is pleased to appoint the following as Judges of Rajatshan High Court:

(i) Devendra Kachhawaha

(ii) Satish Kumar Sharma

(iii) Kumari Prabha Sharma

(iv) Manoj Kumar Vyas

(v) Rameshwar Vyas and

(vi) Chandra Kumar Songara


Ministry of Law and Justice

[Notification dt. 04-03-2020]

Appointments & TransfersNews

President appoints the following as Judges of Gujarat High Court:

  • Ilesh Jashvantrai Vora
  • Kumari Gita Gopi
  • Dr Ashokkumar Chimanlala Joshi
  • Rajendra Meghraj Sareen

Ministry of Law and Justice

[Notification dt. 28-02-2020]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges of the Gujarat High Court:

1. Ilesh Jashvantrai Vora,
2. Gita Gopi,
3. Ashokkumar C. Joshi, and
4. Rajendra M. Sareen


Supreme Court of India

[Collegium Statement dt. 12-02-2020]

Appointments & TransfersNews

President appoints the following as the Judges of the Andhra Pradesh High Court:

  • Rao Raghunandan Rao
  • Battu Devanand
  • Donadi Ramesh
  • Ninala Jayasurya

Ministry of Law and Justice 

[Notification dt. 10-01-2020]

Appointments & TransfersNews

Appointment of Additional Judges as Judges of Karnataka High Court

President is pleased to appoint S/Shri Justices:

(1) Dixit Krishna Shripad,

(2) Shankar Ganapathi Pandit,

(3) Ramakrishna Devdas

(4) Bhotanhosur Mallikarjuna Shyam Prasad,

(5) Siddappa Sunil Dutt Yadav,

Additional Judges to be Judges of the Karnataka High Court with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 02-01-2020]