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Delhi High Court Surprised At Govt. Making False Claims Before Court With Impunity; Refers Plea For National Litigation Policy To PIL Bench [READ JUDGMENT]

While referring the plea to a PIL Bench, the Court observed that these false claims are being raised since there is no accountability of any government officer making such claims.

By: Nidhi N Anand, Ramaiah College of Law

While expressing its shock at the number of false claims/defenses raised by the government in various cases, the Delhi High Court remarked that the same is done with impunity owing to the lack of accountability of government officers who raise such frivolous claims.

The single bench of Justice JR Midha, while referring the plea seeking implementation of the National Litigation Policy to the PIL Bench,  observed that courts seldom take action against such officers raising false claims.

The order said that “All these cases shocked the conscience of this Court. It seems that the fake claims are raised with impunity due to the fact there’s no accountability of any Government officer for raising the fake claims and Courts seldom take any motion against the person concerned for raising fake claims/defenses.”  Additionally, the court urged the government to take action in opposition to officials accountable for making such fake claims in court.

Justice Midha opined “This Court is of the prima facie view that whenever a false claim is raised by the Government, it causes immense injustice to the litigant seeking justice; it also puts an unnecessary burden on the Court and the Government also suffers but the concerned officer who has raised the false claim does not suffer any action. If the facts given by the officers are found to be false/incorrect by the Court, the Government shall consider taking action and the copy of the judgment be kept in the ACR file of the officer. This will ensure that the officer is held accountable for the actions taken by him in the Court case.” 

It was observed that despite announcements being made by the government in 2010, no National Litigation Policy exists in place at present.

The court, relying on statistics available on Legal Information Management & Briefing System (LIMBS), a web-based portal set up through the Union Ministry of Law and Justice,  gathered that there were 4,79,236 instances wherein the government became a party, while 2,055 compliance cases and 975 contempt cases had been pending as on June 8, 2021. It was further seen that the Finance Ministry has the highest number of cases (1,17,808), while Railways has the second-highest pendency, with 99,030 cases.

The court then went on to peruse the cases wherein the government had made false claims to the High Court. It was seen that in one such case which related to the demise of 3 people who had been sleeping at the pavement outside a railway station, the Railway Claims Tribunal had granted compensation to the families of the victims. Surprisingly, as per the record produced before the Court, the Senior Divisional Operational Manager (Coaching) had asked the DGM (Law) to attempt to avoid the FIR being followed up through the High Court and to ensure that the function of the Government of NCT of Delhi must be eliminated. The revelation blew a shock to the Court’s conscience which proceeded to grant reimbursement of Rs.18 lakh to the petitioners.

In the present case, Senior Advocate AS Chandhiok, who was appointed as Amicus Curiae for the Railways case, made submissions on accountability in government litigation. He said that the governments’ indifference has time and again compelled the citizens to approach courts for seeking relief. Therefore, Governments/Public Sector Undertakings have been enjoying the distinction of being the largest litigants before the courts.

The Amicus Curiae further submitted that the 13th Finance Commission had opined the necessity of all state governments to frame state litigation policies that will aim at facilitating responsible litigation while encompassing steps to review existing cases and withdrawing cases recognized as frivolous and vexatious.

But the Central Govt.’s standing counsel, Kirtiman Singh, apprised the court of the non-existence of a litigation policy at present as he went on to state that the 2010 Policy had never been implemented.

Lastly, the Court placed reliance on the National Litigation Policy that was formulated in 2010 and reviewed in 2015. The same was highlighted by the Supreme Court in Union of India vs. Pirthwi Singh, wherein it was observed “The website of the Department of Justice shows that the National Litigation Policy, 2010 is being reviewed and formulation of the National Litigation Policy, 2015 is under consideration. When this will be finalized is anybody’s guess. There is also an Action Plan to Reduce Government Litigation which was formulated on 13th June 2017.

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Criticising Bar Council Decision, Motivated Comment Against Judges Are Grounds For Disqualification Of Advocates: BCI Amends Rules [READ NOTIFICATION]

As per the amendments, an advocate shall not be permitted to publish anything or to make any statement or press-release in the media against any resolution or order of a State Bar Council or the Bar Council of India

By: Nidhi N. Anand, Ramaiah College of Law

The Bar Council of India (BCI) has amended its Rules to make any assertion made with the aid of using an advocate that’s indecent or derogatory, defamatory, motivated, malicious, or mischievous towards any court, judge, State Bar Council, or the BCI, a ground for suspension or cancellation of license to practice law. Further, criticizing or attacking any decision of any State Bar Council or Bar Council of India on a public domain can even amount to “misconduct,” that may entice disqualification or suspension.

The new amendment was notified in the gazette on June 25, 2021. Two new provisions have been inserted in this regard withinside the BCI Rules: The first turned into the insertion of Section V in Part-VI, Chapter-II of the Bar Council of India Rules and the second being insertion of Section VA. While the former lays down Duties towards Society and Bar, the latter prescribes Code of conduct and Disqualification for members of Bar Councils. 

“Section V – Duties towards Society and Bar :— An Advocate shall conduct himself/herself as a gentleman/gentlewoman in his/her day to day existence and he/she shall not do any unlawful act, he/she shall not make any statement in the Print, Electronic or Social Media, which is indecent or derogatory, defamatory or motivated, malicious or mischievous against any Court or Judge or any member of Judiciary, or against State Bar Council or Bar Council of India.

Any such act/behavior shall amount to misconduct and such Advocates could be susceptible to be proceeded under Sections 35 or 36 of the Advocates Act, 1961, it stated.

Section 35 prescribes punishment for misconduct which may be suspension from exercise or disqualification. Any willful violation, disregard, or defiance of any decision or order of the State Bar Council or Bar Council of India may also be construed as misconduct, the amendment similarly said. 

Section VA lays down the Code of conduct and Disqualification for members of Bar Councils. It provides that no member of any State Bar Council or Bar Council of India shall be permitted to publish anything or to make any statement or press release in print, electronic or social media against any resolution or order of concerned State Bar Council or Bar Council of India or to make/use any derogatory or abusive language/comment/s/ word/s against the Bar Council or its office-bearers or members. 

Further, the decision of any State Bar Council or the Bar Council of India shall not be criticized or attacked by any Member/s of Bar Council in the public domain. Violation of the same could additionally bring about suspension or disqualification.

However, a proviso to Section VA clarified that wholesome and legitimate criticism made in proper faith, shall not be treated as “misconduct.”

Furthermore, a 3 Member Committee shall be required to hold an inquiry for declaring any Advocate or Member of Bar Council as disqualified from contesting the elections. The Committee shall be headed by a Former Chief Justice or a former Judge of any High Court and shall be constituted by the Bar Council of India consisting of any member of Bar Council of India or a Member or Office-Bearer of any State Bar Council or any Advocate with a minimum of 25 years of standing at the Bar.

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Plea In Bombay High Court By Bidi And Tobacco Traders Claims Smoking May Reduce Risk Against COVID [READ ORDER]

In April 2021, while hearing a plea on Covid-19 management in Maharashtra, the High Court recommended putting a ban on the sale of cigarettes and bidis during the pandemic, as it would greatly affect the lungs of those infected

By: Surbhi kumari, Amity University, Patna

The Bidi and Tobacco Traders and Federation of Retailers have filed a plea before the Bombay High Court claiming that people who smoke cigarettes and other nicotine products are less vulnerable to COVID-19. The plea has been filed as intervention applications in a suit pending before the High Court relating to alleged improper management of COVID-19 treatment in the State of Maharashtra.

A division bench of Chief Justice Dipankar Datta and Justice GS Kulkarni permitted the intervention applications and posted the hearing on this issue for the next week.

The applicants, Mumbai Bidi Tambakhu Vyapari Sangh and Federation of Retailers Association of India have sought intervention in that case, wherein the Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni had suggested, during its hearing in April 2021, that cigarettes and bidis should be temporarily banned during the pandemic period considering it may have a correlation with the rise in COVID severe cases.

Advocate General Ashutosh Kumbhakoni submitted a report by the Director of the Tata Memorial Centre working under the Atomic Energy Department of Central government indicating that smokers were a more vulnerable group to contracting COVID-19.

He submitted that a majority of the studies indicated that the degree of severity of the COVID infection was higher in people who smoked cigarettes.

In response, Senior Advocate Ravi Kadam, appearing for the Federation of Retailers, submitted his contrary opinion based on studies conducted by the Council for Scientific & Industrial Research.

He submitted that a report by CSIR indicated that the smokers were less vulnerable to the COVID-19 infection. He further claimed the article in fact stated that smoking protects persons from COVID-19 infection.

Mr. Setalvad, learned senior advocate appearing for the applicant in Interim Application No. 1342 of 2021, viz. Mumbai Bidi Tambakhu Vyapari Sangh submitted that there are research and media reports which present evidence that smoking helps “prevent and relieve Covid-19,” based on the pleadings as well as reports annexed to the application.

The court took note of paragraph 13 of the application which stated that reports/studies have negated any correlation between smoking and susceptibility to Covid-19 and instead suggest using “nicotine as a potential preventive agent against Covid-19 infection.”

It was also stated that nicotine which is a substance present in cigarettes purportedly prevents the COVID virus from entering the lungs.

The Court observed that this statement in the application seemed to indicate that there was no correlation between smoking and the susceptibility of COVID-19. When the Court expressed reservation for relying on a report submitted by CSIR on a subject under the medical field, considering that the CSIR does not have expertise in the medical field, the counsel responded that the reports were made after consulting doctors.

The Court then agreed to hear the intervention applications in detail on the limited issue of the effect of smoking on the COVID and posted the case for hearing on July 8.

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Advocates Lounging On Bed, Appearing With Face Pack Unacceptable: Allahabad High Court Prescribes Dress Code For Lawyers [READ ORDER]

The Court ordered that lawyers are required to wear ‘plain white shirt/ white salwar- kameez/ white saree with plain white neck band’ while appearing through virtual mode. It was said that the High court should advise its members to refrain from adopting any casual approach while appearing before this court through virtual mode as it may cause hurdles in the administration of justice

By: Surbhi Kumari, Amity University Patna

While reiterating the dress code to be strictly followed by lawyers while appearing before the virtual court, the Allahabad High Court in Smt. Jyoti v. State of Uttar Pradesh observed that Advocates appearing for court hearings through video conference while driving scooters, lounging on the bed, wearing colorful clothes, or putting on a face pack cannot be accepted. 

The Single-judge bench of Justice Saurabh Shyam Shamshery directed that lawyers are required to wear ‘plain white shirt/ white salwar- kameez/ white saree with plain white neck band’ while appearing through virtual mode.

It was observed by Justice Shamshery that advocates must understand that their appearance for hearing of cases through the virtual mode from their house or office or chamber is like an extended courtroom and it is equally as serious as attending physical court proceedings inside the courtroom.

The court observed that “Even the Supreme Court had witnessed various incidents, where many advocates adopted very casual approach while appearing through virtual mode and appeared wearing vest, tee shirt or coloured shirt, in puja attire, while driving scooter, while taking a leisurely walk, sitting inside a stationed vehicle, from market places, places with noisy surrounding, places with unpleasant backgrounds, keep talking on phone or not paying attention to the court though video and audio tab remained on, even an advocate appeared lounging on the bed and a lady advocate with face pack on.”

The Court laid emphasis on the fact that the appearance of advocates in causal attire is very inappropriate and unacceptable in any circumstance. In this regard, the court said that the office-bearers of the Bar Associations of the High Court should advise its members, not to adopt any casual approach while appearing before this Court through virtual mode “which may cause hurdle in the administration of justice.”

The observations were made after the video link sent to the counsel for a bail applicant remained non-responsive. The Court observed in its order that relaxation has been extended by different courts with regard to advocate’s dress code by exempting coat and gown while appearing through video conference.

It was further noted that the decision by the Bar Council of India relaxed the dress code for advocates across the country as it stated that all advocates can/may wear “plain white shirt/ white salwar-kameez/ white saree with plain white neckband” during hearings/proceedings before all the courts across the country, and no “coats or gowns are needed.” However, many advocates have adopted a casual approach while appearing through video conferences which cannot be allowed, the Court said.

“Even today while hearing the present case through virtual mode, an advocate, appearing on behalf of one of the parties, appeared wearing a coloured shirt and has not shown any remorse despite his conduct was objected,” the Court noted.

The Court, therefore, directed that lawyers are required to wear ‘plain white shirt/ white salwar- kameez/ white saree with plain white neck band’ while appearing through virtual mode.

It was further said that lawyers should address the Court from a premise which has a decent and presentable background with peaceful surrounding and to remain attentive towards the court. The Court finally added that it would be appreciated if they wear black coats also.

The matter will be heard again on July 28.

Top Stories

The Patna High Court Grants Bail To Student Who Shared Objectionable Facebook Post On Hindu God, Goddess [READ ORDER]

In Jawed Akhtar v. State of Bihar, the Court granted bail after noting that the accused, Jawed Akhtar has been in custody since August 9, 2020 and has no criminal antecedents.

By:  Surbhi Kumari, Amity University Patna.

Jawed Akhtar, a person from Bhagalpur is the petitioner in the present case. The allegation against the petitioner as per the First Information Report is that the petitioner has shared some objectionable Facebook photographs of Hindu God and Goddess.

The petitioner has sought regular bail for the offences punishable under Section 153(A) promoting enmity between different groups on grounds of religion, race, place of birth, residence) and Section 294 (obscene acts and songs) of the Indian Penal Code, 1860, Section 67 publishing or transmitting obscene material in electronic form) and Section 67(A)  (punishment for publishing or transmitting of material containing sexually explicit acts) of Information Technology Act.

Learned counsel for the petitioner has submitted that the petitioner has not committed any offence in the manner alleged and there was no intention of the petitioner to hurt the religious feelings of other communities. Learned counsel further submitted that from a perusal of the First Information Report, it would be evident that the petitioner has shared the post of one Reehan Khan and that the post in question did not originate from the Facebook account of the petitioner. Learned counsel also submitted that the petitioner is a 20 years old young boy and he is a student.

Learned counsel further submitted that from a perusal of the First Information Report, it would be evident that the petitioner has shared the post of one Reehan Khan and that the post in question did not originate from the Facebook account of the petitioner.

Learned counsel next submitted that Section 294 Indian Penal Code, Sections 67 and 67(A) of I.T. Act are bailable offences and from a perusal of the allegation against the petitioner, it appears that Section 153(A) is not attracted. Learned counsel also submitted that the petitioner had remained in custody since 9.8.2020 having no criminal antecedent and a charge sheet had already been submitted in the matter.

A single-judge Bench of Justice Anil Kumar Sinha granted bail to Akhtar after noting that he has been in custody since August 9, 2020, and has no criminal antecedents.

It was said that “Having regard to the submissions made by the parties and taking into consideration the materials on record and the fact that the petitioner is a student and charge sheet has already been submitted in the matter as well as he is in custody since 9.8.2020 having no criminal antecedent, I am inclined to grant regular bail to the petitioner.”

The Court after taking into consideration the fact of petitioner’s young age and that he is a student, alongwith the submissions and records, granted bail to petitioner.

The petitioner had been released on regular bail on furnishing bail bonds of Rs.10,000/- (Ten thousand) with two sureties. It was made clear that at the time of furnishing bail bonds, all the parties shall follow the guidelines regarding social distancing.

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