Op EdsOP. ED.

The first courtroom scene in the recent Amazon prime series — “Guilty Minds” — shows a Supreme Court setting —  a briefing counsel looks over her shoulder nervously to wait for the arguing counsel to turn up, a young supremely confident arguing counsel shows up and opposes vociferously, and the Judges pass an order even as he tries his level best to protest. The scene mirrors reality, as close as possible, of a usual Supreme Court miscellaneous day hearing. It was a refreshing change from the otherwise Hindi movie courtroom scenes I have seen growing up, such as, a villain gets hanged in courtroom (Shahenshah), or the hero opening an exhibit bottle and drinking it to prove that it is not poison (Meri Jung) or the most famous of all — tareek par tareek (Damini). The first courtroom scene, thus, got me interested as a lawyer.

At certain levels, the series reflects realities of the courtrooms and litigation practice; a courtroom facing power outage, Supreme Court precincts, immaculately trimmed lawyers of a big law firm, allegations against sitting Judge, parties trying everything possible to get a verdict, an experienced lawyer browbeating a witness, a young Harvard educated third generation lawyer being made a partner even as an associate having worked for year looks on in dismay among others and so on.

However, the reason for this write up is the depiction of the trials and preparation by the lawyers, which are far from reality.

In almost all the episodes, the lawyers are taken by surprise by the facts, which emerge once the court proceedings begin. In the process, once the so-called trial has started, the lawyers challenge themselves in gathering evidence and further information. Much talented and hardworking, as the lawyers shown in the series may be, all of them are scuttering around looking for answers after the trial begins. A client or a young lawyer can easily assume that it is normal to keep on looking for answers even after your case is before the court.

This, to my mind, is the biggest shortcoming of the series. To any layman or a fresh lawyer, such an approach is misleading and better ignored. A good litigator is supposed to gather and be aware of all the facts relating to the case. It is usual that the clients do not provide full information in the first instance whether intentionally or inadvertently. However, it is the job of a good lawyer to extract all the information that would be relevant for a case. Unlike what is shown in the series, a lawyer is not expected to go around looking for evidence once the case is before the court and the trial has already started. Even before filing a case or appearing in the court, a lawyer needs to be aware of the weak points of the case and a response to the same — either legal or factual – needs to worked out well in advance. I wish the series had reinforced the notion of prior hard work and assessment of factual and legal points before a case is filed. Unfortunately, it fails to do so.

The second issue is the mode and manner of trials. It seems funny that the witnesses are called out in random order, they are partly examined and then re-examined, and arguments are made even during the cross-examination. The series lawyers are not averse to calling the opposite side as their witnesses. As and when the lawyers discover new facts, the witnesses are recalled at pleasure. The procedure shown is alien to both civil and criminal law.  In reality, the list of witnesses has to be provided in advance. The examination of the witnesses is not expected to be in phases, nor can they be recalled at will.  I have never seen an opposing counsel calling the other side to appear as a witness. It is entirely the discretion of a party whether to stand in the witness box or not. If it does not, an adverse inference would be drawn. The cross-examination has to be precise and pinpointed. A smart lawyer would never put open-ended questions in the cross-examination to allow the other sides’ witness to blurt out whatever they may desire.

The writers of the series do show creativity in the kind of issues raised in each episode. However, the creativity ought not to have crossed over in depiction of the courtroom scenes. A series that starts on a promising note disappoints in not coming close to reality and ends up being misleading for the general public and young lawyers. Alas, we still have to wait for our very own “My Cousin Vinny” or “A Few Good Men”.


†BCL (Oxford), LLM (Columbia). Counsel at Supreme Court of India and Delhi High Court. Admitted to Practice at New York State Bar. Author can be reached at <aguptalaw@gmail.com>.

Legal RoundUpWeekly Rewind

 


Top Story


 Thane Court

Man allegedly cheats a woman by suppressing material fact of him being homosexual: Will Thane Court grant him bail? Read

Noting the fact that a man suppressed the material fact of his private life before marriage i.e., about him being a homosexual, Rajesh S. Gupta, J., found that, the whole life of a young girl had been spoiled due to the material suppression, if the same would have been shared prior to the marriage then the consequence would be different.

Bench expressed that,

No doubt, every individual has its dignity to live in the society. No other person can interfere into lifestyle but that does not mean that a person gets liberty to spoil the life of either of spouse.

https://www.scconline.com/blog/post/2022/04/12/man-cheats-woman-not-disclosing-homosexuality/


Supreme Court | Updates


Husband suspects paternity of child; Supreme Court allows DNA test while granting conditional compensation of 30 lakhs to wife if suspicion proves to be wrong

In a very interesting case where the husband had disputed paternity of child on suspicion, though the Supreme Court has allowed the DNA test, it has also granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and husband turns out to be the father of the child.

The couple got married on 05-02-2014 and the marriage was consummated on 09-02-2014. The child was born after 261 days, i.e., about 17 days earlier which was almost after 9 months, therefore, the wife had contended that there was no reason to presume that the petitioner was pregnant when she married the respondent.

Before the Supreme Court, the Bombay High Court had also directed the DNA test.

https://www.scconline.com/blog/post/2022/04/12/paternity-dna-test-compnesation-husband-wife-family-supreme-court/

2006 Meerut Fire Tragedy| Organizers held guilty! 60:40 liability to compensate victims fixed on Organizers & State

In the 2006 Meerut fire case, the Supreme Court has held the Organizers responsible for the incident and not the Contractor as the Contractor was only responsible for executing work as assigned to him by the Organizers.

The victims can finally see some ray of hope after 16 years of the unfortunate incident that claimed 65 lives and left 161 or more with burn injuries as the Supreme Court has now directed the Chief Justice of the Allahabad High Court to entrust the work of determination of compensation to a Judicial Officer in the rank of District Judge/Additional District Judge at Meerut within two weeks of the present order to work exclusively on the question of determination of the compensation on day-to-day basis.

https://www.scconline.com/blog/post/2022/04/13/meerut-fire-tragedy-compensation-organizers-supreme-court-judgments-legal-research-updates-news/


High Court | Updates


Bombay High Court

Whether absence of President of State Commission or District Forum for reasons beyond control is sufficient for striking down S. 29A as unconstitutional? Bom HC decides

Stating that, the Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable, the Division Bench of Bombay HC, addressed a matter wherein the constitutional validity of Section 29A of the Consumer Protection Act, 1986 was challenged.

High Court observed that, the language of Section 29A of the Consumer protection Act is intended to provide for a situation where a President of State Commission or District Forum is non-functional, either having not been appointed in time or is on leave due to reasons beyond his control.

The scheme of appointment and adjudication of consumer disputes is laid down under the Act to make the District Forum or State Commission continuously functional, allowing the Members in the absence of the President to function in a situation beyond the control of the Members of the Forum.

https://www.scconline.com/blog/post/2022/04/12/constitutional-validity-of-section-29a-of-consumer-protection-act-district-forum-state-commision-president/

Lawyer-client relationship is a fiduciary one; any act which is detrimental to legal rights of clients’ needs to be punished 

Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justicethe Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated

In this case, the Court was perturbed by the act of the Advocate to keep valuable security owned by the Client with him.”

Bench also observed that, The Advocates owe a social obligation to the Society while discharging professional services to the litigant. The Advocate should not commit any act by which a litigant could be deprived of his statutory and constitutional rights on account of the sublime position conferred upon him under the judicial system in the country.

https://www.scconline.com/blog/post/2022/04/12/lawyer-client-relationship-is-a-fiduciary-one/

Every partner is liable, jointly with all other partners and also severally for all acts of firm done while he is a partner: Is it true? Bom HC answers

Expressing that, a firm is not a legal entity, the Bombay High court, held that a partnership firm is only a collective or compendious name for all the partners. A partnership firm does not have any existence apart from its partners. Therefore, a decree in favour of or against the firm in the name of the firm has the same effect like a decree in favour of or against the partners.

Hence, when a firm incurs a liability, it can be assumed that all the partners have incurred that liability and so the partners remain liable jointly and severally for all the acts of the firm.

https://www.scconliane.com/blog/post/2022/04/15/every-partner-is-liable-jointly-with-all-other-partners-and-also-severally-for-all-acts-of-firm-done-while-he-is-a-partner/


 Punjab & Haryana High Court

Wife makes unfounded, indecent and defamatory allegations against husband to his senior officers, destroying his career & reputation: Mental Cruelty or not? P&H HC elaborates

Expressing that, Matrimonial cases are matters of delicate human and emotional relationshipthe Division Bench of P&H HC., expressed that, the Court no doubt should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.

The Court remarked that, The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties

https://www.scconline.com/blog/post/2022/04/11/wife-destroying-career-and-reputation-of-the-husband-irretrievable-breakdown-of-marriage-mental-cruelty/


Rajasthan High Court

Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

Rajasthan High Court granted parole to a convict whose wife sought 15 days of emergent parole for want of progeny.

High Court observed that, having progeny for the purpose of preservation of lineage has been recognized through religious philosophies, the Indian culture and various judicial pronouncements. the right of progeny can be performed by conjugal association; the same has an effect of normalizing the convict and also helps to alter the behavior of the convict prisoner.

https://www.scconline.com/blog/post/2022/04/11/raj-hc-reiterated-right-to-procreation-survives-during-incarceration/


Legislation Updates 


Income-tax (8th Amendment) Rules, 2022 

Ministry of Finance notified Income Tax (8th Amendment) Rule, 2022 in order to amend the guidelines of Infrastructure Debt Fund in the parent rules of Income Tax Rules, 1961. The 8th amendment will be in force with immediate effect. The amendment set up the Infrastructure Debt Fund as a Non-Banking Financial Company (NBFC) according to the conditions set by the Reserve Bank of India in the Infrastructure-Debt Fund–Non-Banking Financial Companies (Reserve Bank) Directions, 2011.

https://www.scconline.com/blog/post/2022/04/09/infrastructure-debt-fund-guidelines-modified-vide-income-tax-8th-amendment-rules-2022/

SEBI (Listing Obligations and Disclosure Requirements) (3rd Amendment) Regulations, 2022 

On 11th April, 2022, Securities and Exchange Board of India issues Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) (3rd Amendment) Regulations, 2022. This regulation comes into effect with immediate effect and aims to replace “asset cover” with “security cover” for the listed debt with Securities and Exchange Board of India (SEBI). Asset cover certificate is used to monitor the adequacy of assets charged against the debt obligations of the person issuing it. It is submitted to the Debenture Trustee.

https://www.scconline.com/blog/post/2022/04/12/asset-cover-sebi-security-cover-legal-research/

Foreign Exchange Management (Non-debt Instruments) (Amendment) Rules, 2022 

On April 12, 2022, the Department of Economic Affairs (DEA) has issued the Foreign Exchange Management (Non-debt Instruments) (Amendment) Rules, 2022 to further amend the Foreign Exchange Management (Non-debt Instruments) Rules, 2019. The amendment modifies the period of “Convertible note”from 5 years to 10 years.

https://www.scconline.com/blog/post/2022/04/15/foreign-exchange-management-non-debt-instruments-amendment-rules-2022/

National Insurance Company Limited (Merger) Amendment Scheme, 2022 

The Central Government notifies National Insurance Company Limited (Merger) Amendment Scheme, 2022 to amend the National Insurance Company Limited (Merger) Scheme, 1973.

In the National Insurance Company Limited (Merger) Scheme, 1973, the authorised share capital of three public sector general insurance companies has been enhanced from ‘seven thousand five hundred crore divided into seven hundred fifty crore’ to ‘fifteen thousand crore divided into fifteen hundred crore’.

https://www.scconline.com/blog/post/2022/04/15/authorised-share-capital-of-three-public-sector-general-insurance-companies-enhanced-vide-national-insurance-company-limited-merger-amendment-scheme-2022/

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justice, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

Applicants had invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure challenging the registration of FIR for an offence punishable under Sections 420, 406, 409 and 120B of the Penal Code, 1860 read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999.

It was submitted that applicants and non-applicant 3 resolved their dispute amicably and therefore, the Court proceedings were required to be set aside.

Factual Scenario


Post-dated cheques for the amount to be paid to non-applicant 3 by the applicants were handed over to Advocate Anilkumar Mulchandani. Further, it was added that, till 23-3-2022, the post-dated cheques were not handed over to non-applicant 3.

During the course of hearing, Anilkumar Mulchandani, Advocate submitted that non-applicant 3 had not demanded post-dated cheques from him.

Issue


Whether the non-applicant 3, in fact, demanded the cheques or not and whether Anilkumar Mulchandani, Advocate refused to hand over the cheques to non-applicant 3?

Analysis, Law and Decision


Bench in view of the clear language of the Deed of Settlement (absence of clause to withhold post-dated cheques till the release of the applicant on bail or quashing of FIR) and considering the affidavit filed by the non-applicant no. 3 denying the grant of permission to withhold cheques till the release of the applicant on bail or quashing of FIR, prima facie, it appears that Shri Anilkumar Mulchandani, Advocate, had refused to hand over the cheques in spite of demand made by non-applicant 3.

Since Anilkumar Mulchandani, Advocate was not justified in keeping the post-dated cheques with him, the Court expressed that it is constrained to refer the present case to the Bar Council of Maharashtra and Goa to hold an inquiry as to whether the act of the Advocate withholding post-dated cheques, amounts to misconduct within the meaning of Section 35 of the Advocates Act, 1961?

High Court remarked that,

“We are perturbed by the act of the Advocate to keep valuable security owned by the Client with him.”

The term misconduct means wrongful gain and not ere error of judgment.

One of the main objectives behind Section 35 of the Advocates Act is to prevent the exploitation of clients at the receiving end of the Advocate’s services and maintain the legal profession’s integrity.

The Bench also observed that, the lawyer-client relationship is a fiduciary one; any act which is detrimental to the legal rights of clients needs to be punished.

The Supreme Court explored the amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates Act in the case of Pralhad Saran Gupta v. Bar Council of India, (1997) 3 SCC 585, wherein the Supreme Court has held that retaining amount by the Advocate which is deposited with him on behalf of the decree-holder amounts to misconduct.

Elaborating further, the High Court opined that while dealing with money or any other articles or documents entrusted with the Advocate, he is expected to keep in mind the high standards of the professions and its value practised for centuries.

The Advocates owe a social obligation to the Society while discharging professional services to the litigant. The Advocate should not commit any act by which a litigant could be deprived of his statutory and constitutional rights on account of the sublime position conferred upon him under the judicial system in the country.

On noting the above, the Bench directed the Bar Council of Maharashtra and Goa to hold an inquiry into the allegations made by non-applicant 3 against Advocate Anilkumar Mulchandani.

As the applicants sought permission to withdraw the present application unconditionally, Court disposed of this application as withdrawn. [Pankaj v. State of Maharashtra, 2022 SCC OnLine Bom 771, decided on 6-4-2022]


Advocates before the Court:

Shri Anil Mardikar, Senior Advocate a/w. Shri P. V. Navlani & Shri Rommill Jain, Advocate for applicants.

Shri T. A. Mirza, APP for non-applicant nos. 1 and 2/State.

Shri Anilkumar Mulchandani, Advocate for non-applicant no. 3.

Case BriefsHigh Courts

Allahabad High Court: While enunciating that “Nobility and contribution to freedom struggle of our nation are the two attributes which rush to our minds whenever and wherever the profession of law practice is ever referred to” the Division Bench of Devendra Kumar Upadhyaya and Narendra Kumar Johari, JJ., stated that, judiciary neither has power of sword nor that of purse, it stands tall only by virtue of trust and faith of people.

 This Court was called upon to deal with the criminal contempt proceedings instituted on a letter dated 17-8-2001 written by the then District Judge, Gonda whereby a reference had been made to initiate contempt proceedings against 12 lawyers.

“It is painful for this Court to deal with the contempt proceedings drawn against the lawyers who are supposed to be the officers of the Court first and whose role stands recorded in the annals of history in strengthening the judiciary of our country which is supposed to embark upon a perilous and painstaking path of imparting justice to our citizenry.”

Further, the Bench observed that, in the present times, Court had noticed the uncalled for and unwarranted conduct/behavior of the lawyers which has the potential of eroding the faith and trust of the public in the judicial system.

What did the letter contain?

The said letter of the District Judge contained allegations that on 01-12-2000 the lawyers resolved to go on strike and boycott the court of First Civil Judge (Junior Division), Gonda and on that date the respondents-lawyers along with their colleagues indulged in an act of destruction and throwing away the records of the said court. However, further mishappenning could be avoided as the Presiding Officer of the said court went on leave. The letter further stated that on 01-12-2000 itself the respondents and their fellow advocates misbehaved with the then In-charge District Judge.

The allegation in the letter further was that the District Judge took charge on 11-08-2000 and immediately thereafter he received certain complaints about the functioning of the then Chief Judicial Magistrate. The letter further stated that a complaint was received against the then Chief Judicial Magistrate in respect of certain misconduct regarding his misbehaviour with a girl whose statement was recorded by him under Section 164 of the Code of Criminal Procedure. The District Judge in the said letter had further stated that he went to Allahabad to apprise the Registrar General of this Court.

On 14.11.2000 the lawyers passed a resolution to go on strike on the said date on the instigation of the then Chief Judicial Magistrate and the First Additional District Judge.

The letter also stated that for maintaining peace and order in the court premises, on the request of the District Judge, police personnels were deployed and it is in these circumstances that the District Judge by the said letter requested to initiate contempt proceedings against the contemners.

High Court Decision

In the instant matter, what Court noted was that the notices were issued only on 31-10-2001 and accordingly the rigour of Section 20 of the Contempt of Courts Act will operate in this case as well.

Another significant point which was noted was that out of 12 respondents, 6 respondents have since died.

Further, it stated that all the respondents are senior citizens, who are aged between 62 years to 78 years. The incidents, on the basis of which contempt proceedings have been instituted, are said to have occurred about 21 years ago.

Respondents who are alive had submitted their unqualified apology and condemned their alleged incidents.

In view of the above stated, Bench opined that the present matter now needs to be given a quietus, on accepting the apology of the respondents.

Before parting with the matter, Court wanted to put on record its anguish and concern emanating from the reports which this Court receives almost on daily basis about the conduct and behaviour of the Advocates.

Certain observations have been made about the nature of the legal profession by Supreme Court in the case of R. Muthur Krishnan v. Registrar General, (2019) 16 SCC 407, Ex Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45 and certain other decisions.

Lastly, the High Court stated that

“We understand that the approach of the Court while dealing with contempt specially against the lawyers should be correctional…”

Court hopes that no such incident shall be repeated. [State of U.P. v. Rama Kant Pandey, 2021 SCC OnLine All 918, decided on 24-12-2021]

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., dealt with an interesting matter where the petitioner who was administrator of a WhatsApp group approached the Court for relief.

The instant petition was filed to quash the impugned FIR as far as the petitioner was concerned. Petitioner had formed a ‘WhatsApp Group’ in the name and style of “Karur Lawyers” and was the administrator.

It was stated that in the above-said group certain highly offensive messages were posted by one Pachaiyappan and on reading those messages it was clear that the said messages would cause ill-feeling between two communities.

Therefore, the second respondent who was a practising lawyer lodged information before the first respondent.

The above-stated led to the registration of the FIR for the offences under Sections 153A and 294(b) of the Penal Code, 1860.

Why was the present criminal original petition filed?

The instant petition was filed contending that the petitioner was only a group administrator, and he was in no way responsible and cannot be implicated as an accused.

Analysis, Law and Decision

Bench stated that since the forensic report was still awaited, it would be pre-mature to entertain the present petition. However, the first respondent shall bear in mind the decision of the Bombay High Court in Kishore v. State of Maharashtra, (2005) 12 SCC 569.

High Court expressed that if the petitioner had played the role of a group administrator alone and nothing else, then while filing final report, the petitioner’s name shall be deleted. Though, if some other material was also gathered by the first respondent so as to implicate the petitioner, then of course the petitioner will have to challenge the case on merits.

In view of the above discussion, the present petition was disposed of. [R. Rajendran v. Inspector of Police, Crl. OP (MD) No. 8010 of 2021, decided on 15-12-2021]


Advocates before the Court:

For Petitioner: Mr T. Lajapathi Roy

For R-1: Mr E. Antony Sahaya Prabahar, Additional Public Prosecutor.

For R-2: Mr G. Thalaimutharasu, for Mrs S. Prabha.

Law School NewsLSAT IndiaMoot Court Announcements

Law schools organize Moot Competitions to train law students in reasoning, argument, and legal analysis. These competitions teach students to explore both sides of an argument, learn to present their conclusions coherently and improve their written and oral communication.

LSAC Global is providing this opportunity to law aspirants through the 2nd Moot Court Competition for Law Aspirants on 5th and 6th February 2022. This competition aims to provide a challenging and yet fun experience of the courtroom to law aspirants to help them develop their analytical, critical reasoning and advocacy skills without the need to have legal knowledge or any legal training. An interactive event that will provide an opportunity for participants to learn about the legal system and what it is like to be a lawyer.

The participants will be analyzing the factual matrix of the situation provided and arguing on the same.

 

Eligibility

The competition is open to all school students currently in grade 11, 12 or who are yet to be enrolled into a law school.

 

Objectives

LSAC Global is conducting this competition with the objective of improving communication skills, critical thinking skills and problem-solving abilities of law aspirants. This will help in exposing high school students to the nuances of court system in India and provide real-life experience and training in presenting relevant oral and written arguments.

Registrations

Interested students can register for the event till 25th January 2022. All participants will be required to submit a Memorial on 31st January 2022 after due training is provided to them. Preliminary rounds will be conducted on 5th February 2022 for the shortlisted students and the winners of each preliminary round will qualify for the final round on 6th  February 2022. There is no registration fee for participating in this competition.

Prize

All participants who will register, successfully submit the memorials on the due date and appear for the oral rounds on the event date will be awarded a Certificate of Participation

The winners in the rounds will receive a Certificate of Merit and a medal under each of the following categories:

  • Winner
  • Runners-up
  • Best Written Argument and Memorial
  • Best Speaker

Important Dates

Registration for Moot Competition 7th October – 25th  January 2022
Mentoring/ Training Session 27th January – 29th January 2022
Memorial Submission 31st January 2022
Allotment of Sides 02nd February 2022
Preliminary Round 05th February 2022
Final Round 06th February 2022

 

Important Links

Moot Problem

2nd LSAC-DLI-Moot-Court-Brochure

Contact Details

For more details, please visit our website.

To register for the 2nd DLI Moot Court competition click Here.

In case you have any queries, write to discoverlawindia@lsac.org.

Interviews

Nitin Sarin specialises in asset / aircraft, finance / leasing / repossession & is a qualified lawyer (in both India & England and Wales) and also the Managing Partner of Sarin and Co.; Nitin completed his B.A.; LL.B from the Army Institute of Law, Mohali . He has also completed his Advanced LL.M. in Air and Space Law from Leiden University, Leiden, the Netherlands. 

He has been interviewed by EBC/SCC Online Student Ambassador, Nritika Sangwan who is currently pursuing law from AIL, Mohali.

 

1. Where did this love for planes begin and what is it that you find most fascinating about them?

It does surprisingly have a link with law. My father was always a busy lawyer and we spent most of our childhood seeing him always in office – weekends or weekdays. The only escape he had was to leave the country else clients would find some way or the other to reach him. At that point domestic travel did not have many options so every June we would be flying out somewhere overseas and that is where the passion really stems from. It used to be the most exciting part of the year – the smell, the feel and the “abroad” factor. The places we visited may not seem very exotic now as we as a nation are travelling so much more than in the early 1990s, but at that time my parents had to work very hard to take their three children on these international holidays. That is how I became fascinated with planes and even now I am constantly fascinated by the ability that we can fly, it is unlike any other mode of transportation we have.

2. Give us a snapshot of your journey from being a student at Army Institute of Law, Mohali (AIL) to being ranked highly in the Legal 500 lawyers and law firm list in the aviation category.

I do not feel I deserve any of it because my journey has just begun. As a student, I was not a very interested student – I never enjoyed studying or participating in moot courts even though ironically, we run one now. I was more focused on my own life and did not really want to conform to the norm, I barely scraped through. I graduated in 2008 and immediately went to Netherlands for my masters where we ended up being a class of only 3 as the economic downturn had just started. I developed close relationships with my professors and got individual attention at that point.

Overseas education that one receives is very different from what one receives here in India. I specialised in Aircraft Finance which was a very small part of the curriculum. After my masters, I came back and practised in the Punjab and Haryana High Court. I had an understanding with my father that if I got any aviation work that would take priority over court work.

My first break was when Kingfisher Airlines went bankrupt, and I advised an American aircraft leasing company on how to take their planes back – that is when I really learnt on the job. I put in all my time to get this right.  Eventually, the balance tipped in my favour and I began to get more aviation work. I went out there and “marketed” myself by introducing myself, sending out emails, attending conferences and so on. It was primarily luck as at times, I was found through a Google search.  The rest is all totally up to you to utilise an opportunity. Now we are in a situation where large companies having trillion-dollar market caps are engaging us specifically for their aviation work in India. That is how we have carved out a niche for ourselves.

3. Do you believe that mooting as an activity is essential for a law student?

Definitely very important from the point of view that the student can gauge whether they enjoy litigation or not. That is the starting point to see whether you enjoy arguing in court or prefer being the brains behind the magic by carrying out the backend research. It sort of enables you to decide that for yourself.

4. The Sarin-McGill Annual Student Essay Contest on Aircraft Finance and Leasing was launched in 2020. Do you believe that academic writing is important for law students even if they do not want to pursue a career in academia?

The aim of these competitions is not really academic but rather to encourage students to do the research and learn about what the subject is. I can read those articles and gauge who has understood the law and who has not. Talking specifically on aircraft finance, it is such a niche subject that we need more discussions and research to take place, the essay contest is aimed to encourage just that.

5. Air law is a niche practice area and students do not get easy opportunities to explore the field, what are the avenues available for students to explore this field and figure out if they are interested in the aviation law or not?

There are essentially three aspects to aviation law – you have the financial side of it i.e. leasing and financing aircraft; you have the regulatory side of it where you are dealing with bilateral rights with countries and regulators; and the third one is where you are dealing with passenger rights and claims. For students of law, getting that exposure is difficult because most firms say they do aviation work but it only goes so far. The kind of work you get will depend on which aspect you choose. For exposure, airlines are a good option to intern and gain such experience. Law firms may not be able to give a holistic approach because not everyone has the bandwidth and workstream to provide that kind of training.

6. Do you place importance on a masters /LLM degree?

I think so, and I am talking specifically about an LLM overseas. I think they are very important for a number of reasons; you learn how other systems work which is very important and those systems are different from ours. They promote a more open book culture which is opposite to the rote learning culture we follow here (at least till when I was a student, hopefully that is changing). If a student has a particular interest, I believe they must go and do a masters in that. It is simply the next step – you know like a teenager growing up and becoming an adult.

7. Are there any courses or colleges in India that impart the same quality of education as any college overseas?

I have not had any first-hand experience but I think some of the newer institutions that have international teachers coming to teach are giving that kind of experience. I do foresee a changing atmosphere in the sense that we will find more international universities partnering with local universities in India to give students that kind of exposure. By no means am I implying that our educational institutions are by any means any less competent, its small things like style of teaching, openness with your teachers and equality between student and teacher which make a difference.

8. What are the job opportunities for someone choosing the aviation field?

It really depends on which part of aviation you want to be in. If the student is interested in the finance part of it – they are a better off doing a finance LLM and qualifying somewhere overseas where they can work with a law firm which specialises in general financing of assets because aviation will usually always come under that. There are huge prospects even in India because there are very few law firms that manage all the work. They are short on staff so yes, the scope is large. Opportunities are great – we are going to be the largest aviation industry in the world in the next couple of years and the amount of work at the end of the tunnel is massive.

9. What do you look for in students and professionals while hiring them at Sarin & Co.?

It is very old school but I look for individuals who are interested in the work and are doing it because they want to do it. Dedication and hard work are what I look for. All this may sound cliché but it is difficult to find people like that. We try to look for people who will happily give up a weekend to work (we respect our teams off time, but I learned early on that “assuming” that you get a weekend off is really living in a fool’s paradise). Also, I look for persons wanting to grab work, an associate sitting around waiting for work to be assigned to him or her is just not what we are looking for. We have the work, come, and take it and do your best.

10. Do you think India has enough regulations to tackle the massive environmental impact of the aviation industry or do you see some change happening?

I see changes coming in very rapidly the world over. The thing with aviation is that, firstly, airlines want machines that burn the least amount of fuel so automatically the industry is pushing itself towards becoming a greener industry. Airbus, Boeing, Embraer and other manufacturers thus have an incentive to make aircraft as efficient as possible. Secondly, it cannot  be that one jurisdiction has more stringent laws than the other, it has to be a global change since the distribution of asset is also such – the aircraft are going to travel across jurisdictions, so the laws need to be aligned. Yes, aviation will be one of the industries to step up to the mark whether it is the use of bio-fuel or other things.

11. What is your opinion on carbon offsetting? Do you think it is a legit solution or do you think there is a better alternative to it?

As long as the money is going towards properly offsetting the pollution, that is justified. But in our country, is it really going there? We have to be very conscious of our carbon footprint. We are going through the so-called industrial revolution wherein people are making so much money but are blinded by the environmental damage being caused. We will regret this in the future and think of how much better we could have done. The EU went through that cycle where they started off with their clean and green phases, went through their industrial revolution, polluted everything and eventually realised the gravity of their pollution. While their realisation finally arrived, they have used the last many decades to clean up while we in India have not reached that stage yet where we realise the impact that our plundering the environment is going to have on us.

12. How has Covid impacted aviation lawyers?

It depends on who you work for. If you work for airlines then you are one of the directly affected parties. However, we at the firm have been busier than before. There are so many matters due to the current situation – a lot of default has been happening. Almost all airlines in the world have defaulted in their obligations and in some cases renegotiation of aircraft lease agreements has been going on as a consequence thereof. We have seen a lot of negotiations happening to take aircraft back and prevent bankruptcy. We are also seeing a lot of people and corporate houses investing huge amounts of money in private jets which is very interesting.

13. What does a typical work day for an aviation lawyer look like?

The first four hours of the day are important. I get to work by about 7 a.m. and I work till 11 a.m. and I am done with 90% of my work. The kind of clients you have also guides your daily schedule. If you have international clients, you function according to their timings and so you make time for your other activities accordingly. There is no structure as such, you just go with the flow. You work whenever the work comes. Every day can look different. Some days I have several hours to myself and some days are so busy I have no time.

14. What is the most challenging part of your job?

To keep my clients, both new and old happy, consistently. Especially clients who have been with us for a while. The longer our association becomes, the more challenging it gets, in my opinion, to ensure we continue to be their go-to law firm in India. That is what keeps you going and that is what keeps you on top of the game.

15. If not a lawyer, what would you have done?

Sometimes I actually wonder what I am doing here. If not a lawyer, I would definitely have loved to cook or have a piece land and done something there. I realised very early in my career that work should only be a tool to do what you want to do and life should be enjoyed because you never know when it will end.

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J., after a wholesome discussion, rejected the idea of the constitution of a “two-tier” Confidentiality Club proposed by InterDigital Technology Corporation, and instead suggested the terms for constitution of a single-tier Confidentiality Club.

Factual Background

Xiaomi Corporation has been sued by Interdigital Technology Corporation alleging infringement of Indian Patents Nos 262910, 295912, 298719, 313036 and 320182.

Standard Essential Patents (SEPs)

Xiaomi has been using the technology contained in Standard Essential Patents (SEPs) without obtaining the license from Interdigital.

Hence in view of the above, Interdigital has sought a permanent injunction against Xiaomi from manufacturing, selling, assembling, distributing, advertising, exporting, importing or using, in their devices, technology which infringes the SEPs.

In the alternative, a direction has also been sought to XIAOMI, to take a license from Interdigital, for usage of its SEPs, on fair reasonable and non-discriminatory (FRAND) terms to be fixed by this Court.

InterDigital filed IA’s under Oder XXXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 and Chapter VII Rule 17 of the Delhi High Court (Original Side) Rule, 2018.

Chapter VII Rule 17 of the Original Side Rules reads thus:

“17. Confidentiality Club. – When parties to a commercial suit wish to rely on documents/information that are commercially or otherwise confidential in nature, the Court may constitute a Confidentiality Club so as to allow limited access to such documents/information. In doing so, the Court may set up a structure/protocol, for the establishment and functioning of such Club, as it may deem appropriate. An illustrative structure/protocol of the Confidentiality Club is provided in Annexure F. The Court may appropriately mould the structure/protocol of the Club, based upon the facts and circumstances of each case.”

Confidentiality Club Regime is standard protocol, especially while dealing with litigations involving allegation of patent infringement.

Bench in the instant case is concerned whether the Confidentiality Club could be set up in the manner sought by InterDigital.

What kind of Confidentiality Club does Interdigital seeks to be set up?

It seeks setting up of a “two-tier” Confidentiality Club, comprising an “outer tier” and an “inner tier”. The documents which would be open to the members of the “outer tier”, are denoted, in the application of InterDigital, as “Confidential Information”, whereas the documents, to which members of the “inner tier” alone would have access, had been denoted as “Legal Eyes Only (LEO) Confidential Information”.

Parties, as well as their officials and employees, would have no access to the “inner tier” documents.

Mr Parvin Anand has stated that the exclusion of representatives of the parties, from having access to the inner tier documents is non-negotiable.

Bench posed two queries to Mr Parvin Anand, which were as follows:

  • How an advocate could be expected to be appropriately instructed, if he is unable to share, with his clients, the material on which the OP seeks to rely?
  • How the Court could come between the advocate and his client, insofar as the “inner tier” documents were concerned, and injunct the advocate from disclosing the documents to his client?

Wouldn’t the above-stated amount to an unwelcome and unjustified, incursion by the Court into the sacred space that exists between the client and counsel?

Mr Anand submitted that no occasion would arise for the Court to come in between the client and counsel as, if this Court were to accede to the prayer, of InterDigital, for setting up of the “two-tier” Confidentiality Club, it would be for Xiaomi to instruct its Counsel not to disclose, to it, the “inner tier” documents.

Court was befuddled with the above response and expressed that it does not understand how the Court could insist on Xiaomi contracting with its counsel to keep documents shown to its counsel and on which InterDigital relies against Xiaomi, undisclosed to Xiaomi itself.

Hence, the Court held that it cannot by judicial fiat, impose any such contractual dispensation between Xiaomi and its Counsel.

Bench’s opinion on setting up of ‘Confidentiality Club’

Bench in very clear words opined that the mere fact that Courts, overseas, may have acquiesced to the setting up of such Confidentiality Clubs cannot be of any substantial significance, in deciding the present application of InterDigital.

Bench relied on the decision of this Court in M. Sivasamy v. Vestergaard Frandsen A/S, 2009 (113) DRJ 820 (DB), wherein the following was the Court’s observation:

“…with respect to the litigation in India, the Courts in this country would be guided by the provisions of the Laws as applicable in this country and the pleadings in the suit in this court and not by any orders or decisions of the foreign court, unless, the decision of the foreign Court becomes final and so that it can operate as res judicata between the parties and operate in the parameters of Section 13 and Section 44-A of the Code of Civil Procedure, 1908.

No useful purpose will be served in making reference to various orders of the Courts in the different countries as one does not know what are the ingredients/requirements of causes of action of the different laws of those countries and what were the pleadings of the cases in the foreign courts.”

Bench needs to decide on whether “comparable patent licence agreement” could be justifiably included in an ‘inner tier’ of confidential documents, to be kept away from the eyes of the defendant, as well as all its officers and employees?

Court denied the prayer for keeping certain documents, and information, inaccessible to Xiaomi and its personnel, and allow access, thereto, only to the advocates and experts nominated by Xiaomi.

Whether “two tier” Confidentiality Club legally palatable in the mind of the Court or not?

In case the Court finds the request, of InterDigital, for setting up of a “two-tier” Confidentiality Club, to be acceptable, the benefit thereof would, naturally, ensure to Xiaomi as well. The question, therefore, is not whether Xiaomi would also get the benefit of such an arrangement, but of whether such an arrangement is, to the mind of the Court, legally palatable or not.

No civil suit, be it for enforcement of rights relating to intellectual property, or any other right, can claim innocence to the rigour and discipline of the CPC and the Specific Relief Act, 1963.

Further, the Court observed:

Whether either of the parties, to litigation, needs, or does not need, to see a particular document, would be a decision which essentially rests with the party itself.

Can InterDigital, simply put, assert that Xiaomi does not need to see a document on which InterDigital places reliance, to contest the case initiated by it against Xiaomi?

For the above-stated Court’s opinion was in negative and bench relied on the observations in the decision of Transformative Learning Solutions v. Pawajot Kaur Baweja, 2019 SCC OnLine Del 9229, in paras 23 and 24.

Adding to its observations Court also stated that:

Patent infringement, in the case of SEPs, has, however, a unique feature. A holder of a SEP is not entitled, of right, to seek an injunction against infringement of its SEP, merely on making out a case of such infringement. This, essentially, means that every holder of a SEP is required, in law, to agree to the licensing of its SEP to willing licensees.

Court noted that the plaintiff desires to include the license agreements in the ‘inner tier’ to be kept away from the eyes of the defendants as well as all their officers and employees.

Bench found the above suggestion to be completely antithetical to, and destructive of, the most fundamental notions of natural justice and fair play.

Court again stressed upon the fact that while penning this judgment, it is only addressing the prayer of InterDigital, for the constitution of a two-tier Confidentiality Club, consisting of “inner tier” and “outer tier” documents.

In line of the above position, Court remarked:

Permitting the constitution of such a Club would amount to granting blanket permission, to InterDigital, to keep certain documents away from Xiaomi, its officers and its employees.

Adding to the above, Court also stated that in case the parties are able to agree and arrive at a level playing field, then this judgment shall not come in the way of their doing so.

As the Bench is only concerned with the issue of whether such an arrangement as being discussed can, against its wishes be imposed on Xiaomi.

Court further dealt with the Annexure-F to the Original Side Rules which is cited as “an illustrative structure/protocol of the Confidentiality Club” which may be “appropriately moulded” by the Court.

Membership of the Confidentiality Club, constituted in the manner envisaged by Annexure F is, clearly, limited to three advocates and not more than two external experts. Mr Anand submitted, relying on this Annexure, that the parties, and their officials and representatives, may legitimately be excluded from the Confidentiality Club constituted by the Court.

Bench asserted that, if InterDigital can come to terms with Xiaomi, and they agree, ad idem, to the constitution of such a Confidentiality Club, in which “inner tier” documents would remain away from the prying eyes of InterDigital and Xiaomi, as well as their officers and employees, this order shall not stand in their way. As of today, however, Xiaomi is not agreeable to such an arrangement.

Client-Lawyer Relationship 

Further, stating that the client-lawyer relationship in Indian Law, has its own distinct incidents, Bench relied on the Supreme Court decision in Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373.

Supreme Court in its’ decision of An Advocate v. B.B. Haradara, 1989 (1) ARC 72 (SC) and Om Prakash v. Suresh Kumar, 2020 SCC OnLine SC 100, iterated that the duty of advocates to act, at all times, under instructions from their clients.

SEP infringement litigation cannot be treated as a category sui generis, to which the principles enunciated in these decisions, as well as the Bar Council of India Rules, would not apply.

Court cannot trust such arrangements discussed above upon Xiaomi, without its consent, in the absence of any clear right having been established by InterDigital, for the imposition, on Xiaomi, of such an arrangement.

During the course of the hearing, the thought came to the Court several times that – What if XIAOMI is unwilling — as it is, in the present case – for the 3rd party license agreements, on which InterDigital relies, to be shown only to its advocates and experts, and not its own officials of personnel?

What if Xiaomi says that it is not willing to contract, with its counsel, to keep undisclosed, from Xiaomi, the documents which have been shown to him?

To the above, Mr Pravin Anand submitted that, having involved Xiaomi in a litigative exercise, by filing the present suit against it, InterDigital can insist on Xiaomi prosecuting the suit, and defending itself against InterDigital, without being shown the documents on which InterDigital proposes to rely.

Bench on hearing the above submission summarily rejected it.

Further, in Court’s view, there can be no question of this Court lending its approval to any arrangement in which the third-party license agreements, constituting the very basis of the case set up by InterDigital against Xiaomi, remain undisclosed to Xiaomi, as well as its officials and personnel and are shown only to advocates (who are not in-house counsel) and experts. Any such arrangement would violate the provisions of the Bar Council Rules as well as the law laid down in various decisions including, inter alia, Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373.

No setting up of a “two-tier” Confidentiality Club

While concluding its decision, Court held that there is substance in Mr Pravin Anand’s submission that InterDigital cannot, very well, disclose details, in third-party license agreements which, as agreed between InterDigital and such third parties, are required to remain confidential. At the same time, InterDigital cannot, rely on such material against Xiaomi, holding the material back from the representatives of Xiaomi on the plea of confidentiality. InterDigital is, therefore, at liberty to redact, from the documents being treated as confidential, any such detail which, according to it, cannot be disclosed to any third party, including the representatives of Xiaomi.

Though if, Xiaomi agrees to the constitution of such a Club, then this Order would not stand in its way.

Bench held that instead of a “two-tier” Confidentiality club, a single-tier Confidentiality Club can be constituted in the following terms:

(i) Each party shall nominate four advocates, six representatives and two experts, who would constitute the confidentiality club.

(ii) The members of the confidentiality club alone shall be entitled to inspect the confidential information. In the case of the advocates and experts, such inspection would be to the extent such inspection is required in order to perform their professional duties in relation to the present proceedings on behalf of the party by whom they are engaged.

 (iii) The documents, regarded as “confidential information” would be filed in sealed cover, to be retained with the Registrar General of this Court under seal and in safe custody.

(iv) The members of the confidentiality club shall be entitled to inspect the confidential information before the Registrar General and, after the inspection is over, the documents and information shall be resealed and returned to the Registrar General.

 (v) The members of the confidentiality club shall be bound by confidentiality orders passed by this Court and will not be allowed to make copies, disclose or publish the contents of the confidential information or documents anywhere else or to any individuals who are not privy to the confidential information, including in other legal proceedings or oral and written communications to the press, etc.

(vi) During the recording of evidence and other proceedings of this Court with respect to the confidential information, or when the confidential information is being looked at, only members of the confidentiality club shall be allowed to remain present. Such proceedings will be conducted in camera.

  (vii) Any evidence, by way of affidavit or witness statement, containing confidential information shall also be kept in a sealed cover reflecting the confidential and designation, with the learned Registrar General, and would be accessible only to the members of the confidentiality club.

(viii) Neither party would be permitted to rely on any material which is not disclosed to the nominated representatives (as opposed to advocates and experts) of the opposite party. Should either party feel that any details, contained in any document, cannot be shown to the nominated representatives of the opposite party, it is at liberty to redact such details or particulars from the document(s) in question. Needless to say, the party that redacts any particular is, in any document or evidence, shall not be permitted to rely on such a redacted particulars. It shall, however, be open to the opposite party to plead that disclosure of such redacted material is necessary for its defence. In such a case, the court would decide, on a document-to-document basis, whether redacting of the “confidential” details, in the document, should, or should not, be allowed. This, in Court’s opinion, is the maximum extent to which the plea, of InterDigital, for keeping away, from the representatives of Xiaomi, “confidential” details and documents, can be accommodated.

(ix) The confidential documents/information shall not be available for inspection after disposal of the matter, except to the parties producing the same.

Hence, the application stands disposed of in the above terms. [Interdigital Technology Corpn. v. Xiaomi Corpn., 2020 SCC OnLine Del 1633, decided on 16-12-2020]


Advocates for the parties:

For the plaintiffs: Pravin Anand, Vaishali Mittal, Siddhant Chamola and . Pallavi Bhatnagar, Advocates.

For the Defendants: Saikrishna Rajagopal, Siddharth Chopra, Sneha Jain, Garima Sahney, Anu Paarcha, Dr Victor Vaibhav Tandon, Arjun Gadhoke and Charu Grover, Advocates.

Case BriefsHigh Courts

Punjab & Haryana High Court: In an interesting order, Arun Monga, J acknowledged a lawyer’s commitment towards discharging his duty to his client as he had kept his Doli ceremony on hold to appear in a matter through video conferencing. The lawyer had got married a day before the hearing.

The Order read,

“At this stage, learned counsel for the petitioner opposes the adjournment and submits that he has been sitting since morning waiting for this matter to be heard. Notwithstanding his personal difficulty, as he got married only yesterday night, and morning ceremony of Doli has been on the hold due to him, since he has been throughout sitting in the video conference, waiting for his turn in the larger interest of discharging his duty to his client. This court wishes him a blissful and happy married life.”

The matter related to delay in filing of challan. Adjourning the matter to December 15, 2020, the Court, considering the inordinate delay in filing the challan by the prosecution, granted interim anticipatory bail to the petitioner, subject  to filing a report qua the conduct/antecedents of the petitioner.

[Angrej Singh v. State of Punjab, CRM-M-23046 of 2020, order dated 28.10.2020]

Case BriefsHigh Courts

Madras High Court: G.K. Ilathiraiyan, J., observed that, Section 500 of the Penal Code, 1860 cannot be attracted wherein an advocate acts professionally on the instructions of his or her client.

The reason for present criminal original petitions was to quash the proceedings of Metropolitan Magistrate having been taken cognizance for the offences under Sections 500, 192 read with 34 of the Penal Code, 1860.

Five accused persons are there in the present petition, in which the petitioners are arrayed as A1 to A5. The second accused is an Advocate who appeared on behalf of other accused persons.

A1 to A5 are members of the Committee of Creditors. Respondent was initially appointed as the Insolvency Resolution Professional of Oceanic Edibles International Limited which is undergoing Corporate Insolvency Resolution Process by the National Company Law Tribunal, Chennai.

In light of several allegations against the respondent, accused persons filed an application seeking appointment of another Resolution Professional, after which the respondent was removed and another person was appointed as Resolution Professional.

Respondent stated that petitioners made statements which were defamatory in nature resulting in defaming his reputation.

Statements like:

a) Resolution Professional “is not up to the expected standard” (para 21)

b) “He is only keen on entering into the brawl with everyone, thus undermining the judicial process, if he is allowed to continue the interest of COC will be jeopardized”(para 21)

c) COC had already lost precious 50 days from the date of his appointment, no effective business has been conducted to evolve the resolution process in a forward-moving directions (para 22)

d) Resolution professional has misrepresented to media violating the code of conduct (para 23)

e) seeking amendments in IBC is beyond the Rps scope(para 18)

f) resolution professional again sent mails to the top executives wherein he had made statements to the top executives in a very unethical manner and uncalled for (para 19)

Petitioner Counsel submitted that the petitioners were members of COC vested with statutory powers under the IBC to replace the Resolution Professional in the manner provided under IBC. Accordingly, they instructed their counsel namely the second accused to filed an application before the NCLT.

In view of the above, Court stated that it would not attract offence under Section 499 IPC.

Section 499 IPC:

Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Bench stated that the statements of the petitioners do not attract Section 499 of IPC. A2 was an advocate for other accused persons and filed an application on the instruction of COC before the NCLT to remove the respondent.

Petitioners Counsel relied on the decision in Ayeasha Bi v. Peerkhan Sahib,1953 SCC OnLine Mad 3, wherein it was held that,

“…a lawyer is an advocate, one who speaks for another.Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client.”

Kerala High Court in K. Daniel v. T. Hymavathy Amma, 1985 SCC OnLine Ker 110, held that the English Courts have reiterated the view during last four hundred years that the statements made by Judges, Juries, counsel, parties and witnesses in the course of judicial proceedings are not actionable in civil law for defamation as the occasion is absolutely privileged. 

Supreme Court along with various High Courts repeatedly held that,

an advocate who acted professionally as per the instruction of his or her client cannot be made criminally liable for offence of defamation under Section 500 unless contrary is alleged and established.

Hence, the Court allowed the criminal original petitions and the entire proceedings on the file of the Metropolitan Magistrate Court, Chennai. [M.L. Ganesh v. CA V. Venkata Siva Kumar, 2020 SCC OnLine Mad 2732, decided on 30-09-2020]

OP. ED.SCC Journal Section Archives

Mahatma Gandhi has been recognised throughout the world as a glorious symbol of truth and non-violence. He laid great emphasis on the purity of means for achievement of noble ends. Truth is as old as the Himalayas. Everyone knows its value and strength but Gandhiji applied it in every aspect of his life and proved that one could achieve success even in the most difficult areas of his activities by sticking to truth. There is an erroneous belief that to be a successful lawyer one has to twist facts and sometimes present certain facts which are not wholly true. But this was not so with Gandhiji. He had been in search of truth from his early life. There are a number of incidents in his life which go to show that he followed the path of truth even in the face of numerous difficulties. He disproved the theory that without using untruth no one could be a successful lawyer. He held that ‘it was not impossible to practice law without compromising truth’.

He had expressed that in England and South Africa lawyers were consciously or unconsciously led into untruth for the sake of their clients. He vehemently opposed an English lawyer when he advocated that the duty of a lawyer was to defend a client even if he knew that he was guilty. Gandhi on the other hand was emphatic that the duty of a lawyer was to place correct facts before the judge and to help him to arrive at the truth, and not to prove the guilty as innocent.

[Read more]


* Research Officer, (Law) U.P. Government

**  This Article was first published in Supreme Court Cases (1970) 1 SCC J-7. It has been reproduced with the kind permission of Eastern Book Company

IDIA

Here’s the story of Biswajit Shil, an IDIA Scholar:

Background

My name is Biswajit Shil and I am studying at the WB National University of Juridical Sciences. I did my schooling from Ramakrishna Mission Blind Boys Academy. I belong to the South Dinajpur district of West Bengal. I belong to a middle-class Bengali family.

My father is a farmer and a small businessman and my mother is a housewife. We are three brothers and one sister. Two of us are visually challenged. From my childhood, I am fighting against my physical disability and because of this, I had to face various kinds of problems in my life. Due to my disability, I also felt sad at times. From the beginning of my educational life, I was in a boarding school. After leaving home, I learned, socializing, how to overcome my disability, how to adjust with the other people and how to present myself in front of the society.

I can recall that I was neglected by some people before starting my education but they also appreciate me at present. Now I feel proud of myself because I am more eligible than many people of the society in spite of being physically disabled.

Preparation for CLAT

I am fond of listening to and playing music. I learned to play the violin in my school. I am fond of reading stories and novels as well. The role of IDIA in my life is incomparable and it is like a blessing of God on me. A sensitization programme was conducted by IDIA in our school. I was impressed by law as a meaningful career option and therefore I attended INAT for becoming an IDIA trainee. I did not do well in the first attempt and I was disappointed. I appeared again the second time and I got selected as an IDIA trainee. For preparing for CLAT, IDIA provided me training through admission to a coaching center. The IDIA members of NUJS also guided me with great care. Then I appeared for CLAT and got admission to the WB National University of Juridical Sciences.

Law School & the Hurdles

After coming to law school, I faced many kinds of problems. For instance, I come from a Bengali medium school and as such, the English language is a big issue for me. I do not know English well. For being a good lawyer, writing skills must be good, but I feel that my writing skills are very poor. I am determined to improve the same. My communication skills are not so good, as a result, I feel difficult to participate in the class properly. I cannot complete my everyday lessons in time. I face difficulties in doing my projects work as well. Apart from this, I cannot access the online database independently because I have low knowledge of computers. So, I am unable to do research work properly. As I cannot use hard copy material, I have to take the help of technology. Therefore, I feel I must take computer training.

IDIA Volunteers

After the classes, if I feel any difficulties, IDIA volunteers are eager to help me as much as they can. After coming to law school my confidence level has increased a lot. I hope that I can improve myself and I will be able to reach my goals in life of becoming a good lawyer and most importantly, a good human being.


About IDIA:

IDIA is a pan-India movement to train underprivileged students and help transform them into leading lawyers and community advocates. IDIA is premised on the notion that access to premier legal education empowers marginalized communities and helps them help themselves. IDIA selects and trains students from underprivileged backgrounds (IDIA Trainees) to crack top law entrance examinations in India. Once they are admitted to top law colleges, it provides a scholarship to these students (IDIA Scholars) that comprises financial support, training and mentorship among other things.

Read more about IDIA here: https://www.idialaw.org/

Get in touch with them here: info@idialaw.org


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Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Attau Rahman Masoodi and Rajeev Singh, JJ., addressed the matter wherein the Government Counsel who has been alleged for raping a young practicing lawyer, has challenged the FIR lodged against him and sought a direction to police to not arrest him.

Present matter is pertaining to a complaint filed by a Lawyer against a Government Counsel who raped the lawyer in her chamber.

Counsel for the informant prayed for a week’s time to file counter affidavit, to which Court granted the said time.

A.G.A. pointed out that the contents of the FIR reflect that some relevant material was left at the place of occurrence i.e. chamber of the petitioner(accused). In the fitness of things, he prayed that such material may also be taken into custody by the investigating agency as the chamber of the petitioner(accused) is sealed.

Hence, in view of the above, Court in view of being satisfied that a case for intervention is made held that the petitioner (accused) may not be arrested under Sections 328, 354(A), 376 IPC till next date of listing.

Court also directed that petitioner shall co-operate with the investigation by making available as and when called for. He may also not indulge in any activity subjecting the complainant to any intimidation or causing any threat to her life or property. [Shailendra Singh Chauhan v. State of U.P., 2020 SCC OnLine All 890, decided on 31-07-2020]

High Courts

Kerala High Court: While dealing with a matter before the Court where a State Brief, who was appointed for the appellant to prosecute the Criminal Appeal filed by him against conviction and sentence under Section 302 of the Penal Code, expressed his desire to withdraw from the case as he is facing difficulty to conduct the case “by telling lies in the Court”, a division bench of K. T. Sankaran and Babu Mathew JJ, opined that the State Brief cannot express his view to the Court about the falsity or otherwise of the case of the accused.

The Court stated that it is not the duty of the State Brief or any lawyer to tell lies before Court while defending an accused, infact he is duty bound to present the case for and on behalf of the accused with reference to the materials on record and bring to the notice of the Court the facts which will go to the benefit of the accused. The Court added that an advocate should fearlessly defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.

However, in the instant case, the Court directed the Registry to appoint another State Brief to deal with the matter, as the present State Brief has expressed his unwillingness to appear in the case. The Court further directed that the name of the State Brief shall not be mentioned in the judgment and in law journals to avoid embarrassment to the counsel and also not to discourage him. Chandran v. State of Kerala2015 SCC OnLine Ker 9499 decided on 17.03.2015