Case BriefsForeign Courts

Supreme Court of the United Kingdom: The 11-Judge Bench of Lady Hale (President) and Lord Reed (Deputy President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, lady Arden, Lord Kitchin and Lord Sales, while explaining the meaning of “Prorogation of Parliament” held that the suspension of the Parliament by Her Majesty for a period of 5 weeks on Prime Minister’s advice was unlawful and thus null and of no effect.

In the present Judgment it has been emphasized that the issue is not when and on what terms the United Kingdom is to leave the European Union, in fact, the issue is:

 Whether the advice is given by the Prime Minister to Her Majesty the Queen on 27th or 28th August, 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful.

The Bench explained the essence and meaning of “Prorogation”. Prorogation of Parliament brings the current session to an end. While Parliament is prorogued, neither House can meet, debate and pass legislation. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch in the next session of Parliament.

Parliament does not decide when it should be prorogued, as this is a prerogative power exercised by the Crown on the advice of the Privy Council.

“Under current practice, a proclamation is made by Order in Council a few days before the actual prorogation, specifying a range of days within which Parliament may be prorogued and the date on which the prorogation would end. The Lord Chancellor prepares a commission under the great seal instructing the Commissioners accordingly. On the day chosen for the prorogation, the Commissioners enter the House of Lords; the House of Commons is summoned; the command of the monarch appointing the Commission is read; and Parliament is formally prorogued.”

On August 28th, 2019 Mr Jacob Rees-Mogg, Lord President of the (Privy) Council and Leader of the House of Commons, Baroness Evans of Bowes Park, Leader of the House of Lords, and Mr Mark Spencer, Chief Whip attended a meeting of the Privy Council held by the Queen. Order in Council was made ordering that:

“The Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September2019 to Monday the 14th day of October 2019” and that the Lord Chancellor “do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”

As soon as the prorogation was announced, Gina Miller launched proceedings in the High Court in England and Wales, seeking a declaration that the Prime Minister’s advice to her Majesty was unlawful. Divisional Court dismissed the claim on the ground that the issue was not justiciable. They granted a “leap-frog” certificate so that the case could come directly to this Court.

Supreme Court heard the appeals and noted the following four issues that arose:

  • Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?
  • If it is, by what standard is its lawfulness to be judged?
  • By that standard, was it lawful?
  • If it was not, what remedy should the court grant?

Conclusion

Mrs Miller asked the Court to make a declaration that the advice given to Her Majesty was unlawful and we can certainly do that.

Court relied on the case of R v. Chaytor, [2010] UKSC 52; [2011] 1 AC 684, and stated that the said case established:

  • That it is for the Court and not for Parliament to determine the scope of Parliamentary privilege, whether under Article 9 of the Bill of Rights or matters within the “exclusive cognisance of Parliament”;
  • That the principal matter to which Article 9 is directed is “freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place.”
  • That “exclusive cognisance refers not simply to Parliament, but to the exclusive right of each House to manage its own affairs without interference from the other or from outside Parliament”; it was enjoyed by Parliament itself and not by individual members and could be waived or relinquished; and extensive inroads had been made into areas previously within exclusive cognisance.

Bench added to its observation that prorogation itself takes place in the House of Lords and in the presence of Members of both House. But it cannot sensibly be described as a “proceeding in Parliament”. It is not a decision of either House of Parliament. Quite the contrary: it is something which is imposed upon them from outside. It is not something upon which the Members of Parliament can speak or vote.

Supreme Court is not, therefore, precluded by Article 9 or by any wider Parliamentary privilege from considering the validity of the prorogation itself. That advice by the Prime Minister was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.

Parliament has not been prorogued and that this court should make declarations to that effect.

Counsel for the Prime Minister has stated that he will take all necessary steps to comply with the terms of any declaration made by the Court.

As Parliament is not prorogued, it is for Parliament to decide what to do next.

Thus in view of the above, Mrs Millers’s appeal is allowed. [R v. Prime Minister, [2019] UKSC 41, decided on 24-09-2019]

Case BriefsHigh Courts

Bombay High Court: A.S. Chandurkar, J., clarified that a contract whereby an advocate asks for the fee based on the outcome of the arbitration proceedings, wherein he acted in the capacity of a “counsel” for the party and did not appear as an “advocate”, is valid.

It is pertinent to note that such contracts (generally called a contract for a contingent fee) are held to be opposed to public policy and hence void under Section 23 of the Contract Act, 1872 where such contract is entered into by an Advocate with his client.

In the present case, the respondent was a partnership firm engaged in providing consultancy services in arbitration matters. They entered into an agreement with the appellant as per which, they were to represent the appellant in an arbitration proceeding. As per the terms of the agreement, the respondent would be entitled to 1% of the award amount upto Rs 1 crore, and 1.5% thereof over Rs 1 crore. Based on the result of the arbitration proceedings, the respondent raised a claim for an amount of over Rs 1.28 crores. However, the appellant did not pay the amount and the respondent filed a recovery suit which was allowed by the trial court.

An important question before the High Court was — whether the agreement was hit by the provisions of Section 23 of the Contract Act, 1872?

D.V. Chavan, Advocate appearing for the appellant urged that the partner of the respondent firm who appeared in the arbitration proceeding was a qualified advocate, and thus he was precluded from seeking remuneration on the basis of the outcome of the proceedings in which he represented the appellant. Per contra, Yash Maheshwari, Advocate representing the respondent submitted that the partner concerned of the respondent firm was not a registered advocate under the Advocates Act, 1961.

The Court discussed the decision of ‘G’, a Senior Advocate of the Supreme Court, In re, AIR 1954 SC 557 and noted that in Paragraph 11 of that case, the Supreme Court observed that there was nothing morally wrong, nothing to shock the conscience, nothing against public policy and public morals in such a transaction “per se” when a legal practitioner is not concerned. Also, such agreements are legally enforceable when entered into between third parties.

Noting that the “aforesaid observations” though in the passing are in the nature of obiter dicta and hence binding on this Court.”, the High Court observed, “The aforesaid observations are clear that with regard to such an agreement in which a legal practitioner is not involved, the same would be legally enforceable. It is thus clear that an agreement of the aforesaid nature if entered into by an Advocate would be against public policy and the same may not be so when third parties are involved.”

As per the Court, there was no evidence to indicate that the partner of the respondent firm acted as an “Advocate while representing the appellant; in fact, he represented them only as their counsel, and the representation before the arbitrator could not be said to be a representation before the Court. It was held: “Mere fact that the said partner happened to be a law graduate by itself would not be sufficient to conclude that the agreement entered into by him for being entitled to remuneration based on the outcome of the arbitration proceedings would render that agreement contrary and opposed to public policy and hence void under Section 23 of the Act of 1872.”

On such view of the matter, along with the decision on other points which also went against the appellant, the Court dismissed the present appeal and confirmed the decree passed by the trial court. [Jayaswal Ashoka Infrastructure (P) Ltd. v. Pansare Lawad Sallagar, 2019 SCC OnLine Bom 578, decided on 07-03-2019]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench comprising of Dinesh Maheshwari CJ and S. Sujatha, J. declined to exercise PIL jurisdiction in petition filed by residents of Kottur Town Panchayath challenging approval for construction of town panchayath building on a land.

Mr N. Shankarayana Bhat, counsel on behalf of the petitioners, placed reliance on the Record of Rights (RTC) and submitted that the subject land was reserved for public purpose and specifically shown as ‘park and overhead water tank’ in revenue records. It was submitted that the order granting approval for construction of new panchayath building in that land was not as per procedure prescribed under Section 306 of the Karnataka Municipalities Act, 1964 and as such unsustainable in law.

Learned counsel Mr M.V. Hiremath, appearing on behalf of respondent, refuted the contentions of petitioner and submitted that the subject land was purchased by respondent for constructing town panchayath office and water tank, and RTC records clearly depicted the land to be for official buildings and water tank.

The Court noted that the subject land was purchased by respondent through a registered sale deed for constructing panchayath building and water tank. However, mistakenly, the RTC extracts reflected purpose of land as ‘park and water tank’. The said mistake was corrected on respondent’s representation and that order remained unchallenged. The said order, having attained finality, petitioner could not seek liberty to maintain a park in the subject land.

It was further held that Section 306 of the Act is applicable only if Deputy Commissioner is of the opinion that execution of any order or resolution of a town municipal council is unlawful, or is likely to cause injury/ annoyance to public, or lead to a breach of peace.

Since the proposal to use subject land for building panchayath office and water tank did not militate against public interest, the petition was dismissed.[K.S. Iswara Goud v. Town Panchayath, Kottur, 2018 SCC OnLine Kar 2705, decided on 10-12-2018]