“Oh, poor litigant, people languishing in jails. In the name of development and progress, I beseech you, to rise to the occasion and realise that it’s not enough to criticise. You cannot shift the entire burden on the judiciary”, struggling to keep his voice from betraying his feelings, the 43rd Chief Justice of India, Hon’ble Justice T.S Thakur made an emotional appeal to the Prime Minister for speeding up the process of judicial appointments during his speech at the Joint Conference of Chief Ministers and Chief Justices of High Courts in April 2016.

This was a time when the Five Judges Bench of the Supreme Court headed by Justice Thakur’s predecessor, Justice J. S. Khehar in the NJAC Case had declared the 99th Amendment as unconstitutional for preserving the judicial independence enshrined in the Constitution. The amendment sought to replace the Collegium System with the National Judicial Appointments Commission, which would act as the sole authority for appointing and transferring judges. In its judgment, the Apex Court did acknowledge the need for deeper introspection in the functioning of the collegium system. However, the glasnost and perestroika of the top court is yet to be initiated.

THE APPOINTMENT PROCEDURE

The appointment and the transfer of Judges to the Supreme Court and the High Court is made by the President of India in consultation with the Chief Justice and other judges in accordance with Articles 124, 217 and 222 of the Constitution of India.

About 28 years ago, the Supreme Court introduced the collegium system in the Second Judges case wherein it held that, “consultation” really meant “concurrence” and added that it was not the CJI’s individual opinion but an institutional opinion formed in consultation with the two senior-most judges of the Court. Later, in the Presidential Reference (referred as the Third Judges Case) in 1998, the collegium was expanded to a 5-member body comprising the Chief Justice and the four senior-most judges of the Court.

After declaring the NJAC as unconstitutional, the judiciary and the executive mutually devised a Memorandum of Practice (“MoP”) to be adopted for appointing and transferring judges in the higher judiciary. According to the MoP the Chief Justice would recommend the names for appointment to the Law Minister, who shall put those recommendations before the Prime Minster. Subsequently, the President under his hand and seal would accept the recommendations and appoint the person as the Judge of the Supreme Court or the High Court as the case may be.

COMPARISON WITH OTHER JURISDICTIONS

No other country in the world leaves judicial appointments solely in the hands of judiciary.

In United Kingdom, the Supreme Court judges are appointed by a 5-person selection commission which comprises of the Supreme Court President, his deputy and one member each appointed by the Judicial Appointments Committee (JAC) of England, Scotland and Northern Ireland. The JAC comprises of lay persons, members of the Judiciary and the Bar and it makes appointments of judges to lower courts as well.

In USA, all the appointments are made by the President and confirmed by the United States Senate.

Germany does the appointments through elections, wherein half the members of the Federal Constitutional Court are elected by the executive and half by the legislature maintaining the independence of the judiciary.

In Australia, the Judicial Commission invites an “expression of interest” from the members of the Bar through public advertisements, which ensures transparency in the appointment process.

In India, because of the involvement of too many authorities, the process of judicial appointments is immensely delayed.

ISSUES

According to the MoP, the Chief Justice of the High Court shall, at least 6 months before the date of the occurrence of the vacancy, communicate his views to the Chief Minister for filling up the scheduled vacancy. The MoP also states that appointments should be made at least 1 month in advance for the smooth and efficient functioning of the judiciary. However, these timelines are rarely adhered to and the process is elongated on procedural laches or the non-sitting of the collegium. This makes it extremely difficult to fill up the vacancies in time, which leads to the over-burdening of the courts.

Additionally, even if the Collegium sends the name within the stipulated time frame to the Ministry, there is no set timeline whatsoever prescribed for the Ministry to present them before the President. Numerous times the Apex Court has reprimanded the government, questioning as to why the Intelligence Bureau should take months to verify the recommendations of the Supreme Court collegium and why the Prime Minister’s Office can’t ask the IB to send its report within a time bound manner.

Surprisingly, around 170 proposals sent by the Collegium are still awaiting the clearance from the IB.

This clearly showcases that it is the need of the hour to bring in radical changes in the mechanism of judicial appointments, and to frame strict guidelines which should be complied with, both by the judiciary and the executive.

THE CURRENT SCENARIO

India, as on 1st April 2021, according to the data released by the Department of Justice, has a total of 411 vacancies in the Supreme Court and the 25 High Courts. Allahabad tops the list with 57 vacancies, followed by Calcutta at 40 whereas Rajasthan, Patna, Bombay, Punjab & Haryana have around 30 vacancies each.

The Apex Court too is functioning at strength of 29 against the sanctioned strength of 34. It is noteworthy to mention that during the 17 months tenure of Hon’ble Chief Justice S.A. Bobde, not a single recommendation was made to fill up the vacancies in the top court.

Recently, the Supreme Court in PLR Projects Ltd. V. Mahanadi Coalfields has formulated certain guidelines for the appointment of Judges to the High Courts. The guidelines recommend the IB to submit it report within 4 to 6 weeks from the date of recommendation of the High Court Collegium. Additionally, it also mandates that if the Supreme Court Collegium after the consideration of the inputs of the Central Government reiterates the recommendations, then the appointments should be made within 3 to 4 weeks.

The Union Law Minister stated in the Lok Sabha that around 63,146 cases were pending before the Supreme Court and about 56, 42,567 were pending before the High Courts in the year 2020. These figures are alarming and clearly display the immediate need to fill up the vacancies.

WOMEN REPRESENTATION IN JUDICIARY: WOMAN CHIEF JUSTICE OF INDIA, DISTANT DREAM OR POSSIBILITY?

Since the day Hon’ble Justice H.J Kania took oath as the First Chief Justice of India on 26th November 1950, in about 70 years of the functioning of the Apex Court, only eight-woman judges have been appointed to the Supreme Court, out of which 2 have been elevated from the subordinate judiciary, and only 1 has been directly appointed from the bar. Hon’ble Justice Fathima Beevi was the first woman judge of the Supreme Court appointed in 1989 and Hon’ble Justice Indu Malhotra who recently demitted office was the first woman to be appointed directly from the bar in 2018.

At present, Justice Indira Banerjee is the sole woman judge in the crop of 29 judges of the Supreme Court. Furthermore, out of the Chief Justices of the 25 High Courts, only Hon’ble Justice Hima Kohli stands as the sole woman Chief Justice of Telangana High Court, who shall demit her office in September this year.

Women Representation on the bench enhances the accessibility and openness of the judicial system because women judges bring those lived experiences to their judicial work which plays a vital role in the decision making process. The Attorney General, Mr. K.K Venugopal has stressed upon the “need for greater gender sensitization among the judiciary, which could go a long way towards a more balanced and empathetic approach towards judiciary”. Recently, while concluding his speech at the Justice Sunanda Bhandare Memorial Lecture, Justice Nariman who is and will remain a member of the Collegium till his retirement in August 2021, asserted that “in the present dispensation, the time for the first woman Chief Justice won’t be very far off”. 

In totality, when we see the All-India Judges list, out of the working strength of 669 judges in the country, only 75 judges are women. 

The line of succession of the Chief Justice of India is clear till February 2027, when Justice Surya Kant will retire. During the tenure of Justice Kant as the Chief Justice of India, all the current Supreme Court justices would retire, and Justice Kant will preside over an entirely fresh collegium. Justice B.Venkataramiah Nagarathna, who is the daughter of Former CJI Justice ES Venkataramiah, was elevated as a Judge of the Karnataka High Court on 18th February 2008. She is currently at No.3 in the Karnataka High Court and stands at No. 34 in the All India Judges List. If the collegium decides to elevate her to the top court, she will take charge as the first Woman Chief Justice of India for a good period of 9 months till October 2027, after the retirement of Justice Kant.

The Apex Court, through the appointments of Justice Dinesh Maheshwari and Justice Sanjiv Khanna has made it clear that merit plays a more crucial role than seniority. The appointments of both these judges sparked controversies as they stood at the Number 21 and 33 respectively in the combined seniority list and superseded Justices Pradeep Nanadrajog and Rajendra Menon, who were serving as the Chief Justices of Rajasthan High Court and Delhi High Court respectively.

Justice Govind Mathur who recently retired as the Chief Justice of Allahabad High Court in his farewell speech has rightly said, it is only the judiciary which can firmly stand and protect the constitutional values and morality. Therefore, it is the need of the hour that we expedite the process of judicial appointments and increase the women representation on the bench and initiate the glasnost and perestroika process of our judicial system. 

Prakhar Agrawal is an Advocate at The Law Desk, Jaipur and Anjali Assat is an Advocate at Virendra Agrawal & Co., Jaipur.

India, as on 1st April 2021, according to the data released by the Department of Justice, has a total of 411 vacancies in the Supreme Court and the 25 High Courts. Allahabad tops the list with 57 vacancies, followed by Calcutta at 40, whereas Rajasthan, Patna, Bombay, Punjab & Haryana have around 30 vacancies each. The Apex Court too is functioning at a strength of 29 against the sanctioned strength of 34. It is note worthy that during the 17-month tenure of Hon’ble Chief Justice S.A. Bobde, not a single recommendation was made to fill up the vacancies in the top court.

Indian history has been a testimony in itself to the persistence of male domination which has served as an oxygen to patriarchy, from the time it was not even an identified concept. Since time immemorial male domination has been a self – fulfilling principle built on misogyny and brutalization of women with domestic violence being a by-product. However, patriarchy has faced stern challenge due to education, awareness and flourishing movements of women empowerment. but it always returns in a new glass because the societal inequalities have not been eradicated yet. The enactment of Domestic Violence Act,2005 has served a great purpose in protecting women from such domestic abuses primarily faced due to parochial and patriarchal mindset where causing distress to woman is considered as a way to set her straight. On the similar lines the abuse of the process of law at the hands of the women has also been an open secret. There is a barrage of malafide litigations against innocent men who are the victim of the system, so to say. The courts have often found and observed that in a matrimonial discord neither the husband nor the wife is lily white and both parties tries to extort laws to cause misery to the other. In a recent judgment of Satish Chander Ahuja v. Sneha Ahuja 2020 SCC 841 (Ahuja) Hon’ble Supreme Court was faced with one such dilemma, where ultimately the court inched towards the wife, in order to meet the view and objective behind the Domestic Violence Act, 2005, being a special and welfare legislation, enacted for the protection of woman inter alia from being rendered homeless at the hands of her abusive husband or in laws.

FLASHBACK

The recent 3 judge bench judgment passed by the Supreme Court in Satish Chandra Ahuja, supra has changed and enlarged the ambit of the existing definition of “shared household” as defined under Section 2 (s) of the Domestic Violence Act, 2005 and has provided a much broad interpretation to the said definition. The earlier 2 judge bench of the Supreme Court in S.R Batra vs Taruna Batra 2007 3 SCC 169, had delved upon the definition of shared household and had provided an interpretation which held the field since 2007. The subsequent 3 judge bench judgment extensively analyses the meaning and ambit of the definition as provided by an earlier 2 judge bench of Supreme court in S,R Batra and construed it to be narrow in its ambit and not in tandem with the objective behind the 2005 legislation. The Court in its judgment has also elaborated upon the reason, object and need behind the enactment of the 2005 legislation being a special law for the protection of the women. The Court has also acknowledged that domestic violence cases are on rise and

The rationale adopted by the Supreme Court in present case is that the definition of “shared household” provided in Section 2 (s) of the Act is an exhaustive definition using the expression “means and includes”.

The Court expounded upon the definition and held that:-

“………From the above definition, following is clear:- (i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly.”

In simpler words. earlier the daughter in law could be kicked out at any point in time as per the whims and fancies of her in laws, provided the house is not owned by her husband but by her in laws who have no obligations to maintain her during the lifetime of her husband. Questions were raised on the 2007 judgment being ambiguous. The present judgment over turns the verdict in S.R Batra.

FACTS

Essentially the genesis of the present case was a suit for mandatory and permanent injunction sought by the father in law against his daughter in law to remove herself from property which was owned by him.

The son of the appellant was married to Sneha, they were residing on the first floor of the house owned by the father of the husband. Due to certain discord between the husband and wife, the husband started living in the guest room on the ground floor of the house and initiated divorce proceedings against the wife. Subsequently, wife filed an application under Section 12 of the 2005 Act, against her in laws, wherein Ld. CMM was pleased to grant an interim order in her favour thereby restraining the Respondents to not alienate the alleged “shared household” and not to dispossess the wife and children without the order of a competent court. Thereafter, the father In law who owned the house filed a suit injunction to restrain the daughter in law to live in the house. The trial court passed a decree of permanent and mandatory injunction in the favour of the father in law. However, the High Court of Delhi in an appeal preferred by the daughter in law set aside the decree and after framing certain questions remanded the matter back to be adjudicated by the Trial Court afresh. The father in law being aggrieved with the decision of the high court preferred the appeal to the Supreme Court which formed the boon of the interpretation of term “shared household” as defined in Section 2 (s) of the 2005 Act. The most crucial question that fell for adjudication before the apex court was “Whether definition of shared household under Section 2(s) of the 2005 Act has to be read to mean that shared household can only be that household which is household of joint family or a household in which husband of the aggrieved person has a share? 


In other words whether the woman who is the victim of domestic violence has the right to reside in the premises she had lived, even if the husband does not have any right or interest in the said property/premises. The answer is affirmative, if the premises qualifies to be a shared household under the 2005 Act.

RATIO

The judgment of the Hon’ble Supreme Court in Satish Chandra Ahuja came as relief and respite to many struggling women and provided them with an armory. Supreme Court while interpreting the definition of “shared household” as provided in 2(s) of the 2005, Act traced back to a three Judge bench judgment of Supreme Court in Bharat Coop. Bank (Mumbai) Ltd. Vs. Coop. Bank Employees Union, (2007) 4 SCC 685 , which explained the expression “means and include”, the words that also find place in Section 2 (s) of the 2005 Act. The Court had held in Bharat Coop. that “the use of word “means” followed by the word “includes” in Section 2 (bb) of the Industrial Development Act is clearly indicative of the legislative intent to make the definition exhaustive and it would cover only those banking companies which fall within the purview of the definition and no other”. The Court in the present case further dissected Section 2 (s) and went on to hold that the word “include” in the context of aforesaid section shall not only mean a household where aggrieved lived at any stage in a domestic relationship whether singly or with respondent but shall also include such a household either tenanted or owned either jointly by aggrieved person and husband or which may belong to the joint family of which the husband is a member, irrespective of whether the husband or the aggrieved person has any right, title or interest in the shared household.

The Court while overruling the judgment in S.R Batra also distinguished it on several counts and held the expression “at any stage has lived” is inserted for the protection of the woman i.e., on the date when the application is filed she was excluded from the possession of the house or was temporarily absent. It was never the legislative intent to include all the houses of the relatives of the husband where the aggrieved person had lived. The real test to identify whether a premises can be called shared household or not is whether the parties intended to treat the said premises as shared household or not? If the answer is Yes! and wife claims the relief of residence as provided under Section 19 of the 2005 Act then it shall be incumbent upon Court to grant such relief after considering the facts of the case and balancing the interest of the parties.

The Court has interestingly quoted Justice Sabyasachi Mukharji in B.R. Mehta Vs. Atma Devi and Ors., (1987) 4 SCC 183, where the Hon’ble Judge had observed that “right of occupation in matrimonial home which is granted under Matrimonial Homes Act, 1967 in England are not granted in India though it may be that with the change of situation and complex problems arising, it is high time to give the wife or the spouse a right of occupation”. This observation came way back in 1987 which only emphasised the need for enactment of 2005 legislation.

AFTERMATH

The Judgement comes as a step to secure social justice in a country where women often succumb to societal pressures and get stuck in the vicious cycle of violence being perpetrated against her.. The mere thought that women of our country has to suffer in silence is extremely troubling and in such times a judgment like Satish Chandra Ahuja provides some glittering hope. It is the Ahuja judgment which shall come to the rescue of many and contribute in breaking the chains of injustice that have gripped the society for years. It provides some sense of security to a woman who comes to her matrimonial home after leaving behind her home. However, there is a downside to the judgment as well if no applied correctly, it is silent on the hardships and harassment faced by the elderly in laws in cases where it is the daughter in law who is abusive, who contorts such welfare laws and misuses them to her advantage. The courts while passing order based on the Ahuja judgement cannot loose sight of such an adverse possibility and needs to carefully examine whether the claims of the wife are bona fide or not. The court in the Ahuja judgement also touched upon a very crucial nerve and reiterated that though the civil and criminal proceedings being independent of each other can progress on parallel lines but once a relief has been granted buy a Magistrate under the DV Act, the Civil court ought to take into consideration such an order while passing its own order and vice versa. Hence, the underlying tenet of the judgment which cannot be missed is balancing the rights of the parties which is of paramount importance whenever a court grants relief either under Section 12 of DV Act or in a civil proceeding.

The Court has interestingly quoted Justice Sabyasachi Mukharji in B.R. Mehta Vs. Atma Devi and Ors., (1987) 4 SCC 183, where the Hon’ble Judge had observed that “right of occupation in matrimonial home which is granted under Matrimonial Homes Act, 1967 in England are not granted in India though it may be that with the change of situation and complex problems arising, it is high time to give the wife or the spouse a right of occupation”. This observation came way back in 1987 which only emphasised the need for enactment of 2005 legislation.

Right to fair trial is the fundamental right of an accused guaranteed under Article 21 of the Indian Constitution. In Husainara Khatoon etc. the Apex Court has held that a fair trial is the most important aspect of the criminal justice system which should not be compromised at any cost. Right to fair trial assures the accused of an opportunity so that he can defend himself and S. 207 Cr.P.C plays an important role in making the documents accessible to the accused that form a part of the investigation. It is the obligation on the Court to provide the relevant documents or extracts in cases where proceedings have been instituted on a police report, so that the accused get to know about the charge levied against him and also about the material through which the charge is going to be corroborated by the prosecution. The duty to supply the copy of FIR, Police report, Statements recorded U/S 161 Cr.P.C., Statements recorded U/S 164 Cr.P.C or any other document on which the prosecution wants to rely has been casted upon the Magistrate and if the Magistrate fails to comply with the procedure laid down then it is a violation of the fundamental right of the accused enshrined under the Indian Constitution. In Kishore v. Sunanda Prasad 2002 CrLJ 802 MP, it was held that the object of S.207 Cr.P.C is to appraise the accused of the whole case against him. It is pertinent to mention that the IO of any case has no option but to submit all the documents which he has procured during the investigation and upon which prosecution will rely upon. Section 173(5)(a) Cr.P.C mandates that the investigating officer shall forward all the documents or relevant extracts on which the prosecution proposes to rely against the accused concerned along with the police report to the Magistrate. A conjoint reading of Section 173(5), 173(6) and first proviso attached to Section 207 of Cr.P.C. leaves no scope of doubt that it is the bounden duty of the police officer to forward to the Magistrate all the statements recorded under sub-section (5)(b) of Section 173 of Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under Section 207 of Cr.P.C. by furnishing copies of such statements to the accused. In Arvind Kejriwal v. State of NCT, the Hon’ble Delhi High Court held that it is the prime duty of the Investigating Agency to conduct free and fair investigation, thereafter, bring to the notice of the Court all the evidences collected without pick and choose. Without supply of documents it will be impossible for any accused to defend himself and any trial without the compliance of S.207 Cr.P.C will be an unfair trial It is germane to mention here that it is only when the Magistrate is satisfied that the documents are voluminous then he shall instead of furnishing the accused a copy, he will direct that he will only be allowed to inspect it either personally or through a pleader in court or else under any circumstances the magistrate have to comply with the provisions of Section 207 Cr.P.C even with the advent of technology many courts have started directing the prosecution to make an e-copy of all the documents and provide a soft copy of the documents in order to ensure the compliance of S.207 Cr.P.C.

In Manjeet Singh Khera vs. State of Maharashtra: (2013) 9 SCC 276, whereby the Hon‘ble Supreme Court affirming to its earlier decision in V.K. Sasikala vs. State: (2012) 9 SCC 77 held that “the Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After conclusion of investigation and before submission of the report to the court under Section 173 Cr. PC, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall under two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many at times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the court only those documents which support the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the court under Section 173(5) Cr. PC but were not relied upon by the prosecution and the accused wanted copies/ inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of a fair trial which Article 21 of the Constitution guarantees to the accused.” The accused is entitled to all the documents irrespective of the facts that it is favouring him. The Hon’ble Delhi High Court in Ashutosh Verma vs. CBI: 2014 SCC OnLine Del 6931 has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defense and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused.

SUPPLY OF DOCUMENTS WHEN THERE IS A SUPPLEMENTARY INVESTIGATION- When the IO has been granted permission of further investigation U/S 173 (8) Cr.P.C. and when the supplementary report contains the facts relating to the accused of preliminary charge sheet then the magistrate is bound to provide the copy of the supplementary chargesheet or supplementary police report to the accused.

CONTENTS OF PEN DRIVE/MEMORY CARD WILL AMOUNT TO BE TERMED AS DOCUMENT WITH REGARD TO S.207 CR.P.C. – It is pertinent to mention that any content to be termed as a document can be determined by its nature and not by the place where it is stored. It depends upon the information which is inscribed whether it is relevant or not, of course to be decided by the magistrate. Be that as it may, Section 3 of the Indian Evidence Act, 1872 elaborates that a “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and Section 2(1)(t) of the 2000 Act reads “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computergenerated micro fiche;’’ In Dharambir v. Central Bureau of Investigation , where, inter alia, the Supreme Court held [paras 13 (i) and (ii)] 13 (i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.(ii) Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA. After referring to both the sections and analyzing Dharambir (supra) it can be reduced that contents of pen drive/memory card/audio call/ video footage will be termed as a documents and it will be an obligation of the magistrate u/s 207 Cr.P.C to provide the copy of the same to the accused without delay.

RIGHT OF ACCUSED V. RIGHT TO PRIVACY OF THE VICTIM, – There are no specific guidelines with regard to protection of the right to privacy of the victim. The Hon’ble Supreme Court got an opportunity to deal with the said issue in P.Gopalkrishnan @Dileep v. State of Kerela & Anr. wherein the Hon’ble Supreme Court held that ..’’ contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial.“ For the first time Hon’ble Apex Court denied the supply of any document which violates the privacy of the victim.

SUPPLY OF OFFICIAL DOCUMENTS U/S OFFICIAL SECRETS ACT- In cases where the documents comes under the umbrella of Official Secrets Act in this regard the Apex Court has settled the law that the accused will not be deprived of his right U/S 207 Cr.P.C even if the documents of the cases comes under the preview of OSA. Recently, Delhi High Court in Ujjal Dasgupta v. State observed that, “ relying on the decision of the Supreme Court in Satyen Bhowmik observed that , “the objections raised by the prosecution in the present case are not well founded in law. As long as the prosecution is relying upon the documents forwarded by it to the trial Court along with the chargesheet it will not be open to the prosecution to deprive the accused the copies of those documents. As explained in Satyen Bhowmick merely because the case is under the OSA, the legal position cannot be different. The only difference is that the prosecution can insist and rightly so that neither the accused nor the lawyer of the accused will be permitted to make the documents public or pass them on to any person or disseminate them in any manner whatsoever. If in fact either the accused or the lawyers of the accused do not observe this prohibition they run the risk of committing an offence under the OSA”.

It is an inseparable and essential component for a fair trial to provide the copy of the document’s U/S 207 Cr.P.C and to upheld the right conferred under Article 21 of the Constitution of India. The object of Section 207 Cr.P.C is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial and has no surprise when trial commences. After having gone through the catena of judgments by the Hon’ble Supreme Court and High Courts around the country it can be concluded that it is the duty of the Court to supply copies of documents to the accused. Section 207 casts a duty on the Magistrate to supply to the accused, copies of the police report, the first information report recorded under Section 154, the statements recorded under Section 161(3), the confessions and statements, if any, recorded under Section 164 and any other document or relevant extract thereof, which is forwarded to the Magistrate along with police report.

Inputs by Adv. Shahnawaz Abdul Malik, Adv. Karam Pratap Singh, Aniket Rai, Student UPES.

There are no specific guidelines with regard to protection of the right to privacy of the victim. The Hon’ble Supreme Court got an opportunity to deal with the said issue in P.Gopalkrishnan @ Dileep v. State of Kerela & Anr. wherein the Hon’ble Supreme Court held that ..’’ contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial

“The discrimination begins even before one enters law school. Most of the top law schools, which offer the five-year integrated law course, conduct admissions through a competitive test which is only in English, besides English also being a separate component of testing. The effect of this is that only the privileged students with access to high quality English medium education are able to qualify for it, while the underprivileged students whose earlier education has been in the national or regional languages and who aspire to enter into the judicial services are deprived of the learning at these institutions. As a result, these national law schools turn out candidates who are vying for lucrative placements at private law firms, which also has a consequence on the legal education to those who join the judiciary.”

These enlightening, enriching and enlivening words which have been expressed most eloquently, elegantly and effectively have been expressed by none other than Justice Dr D.Y. Chandrachud who is not just an eminent senior Judge of the Supreme Court but also is in line to become the future Chief Justice of India from November 10, 2022 to November 10, 2024. So what he says can certainly not be dismissed lightly as a view by just any other person. It has to be taken most seriously by our law makers and given a serious consideration without any further delay.

Needless to say, Justice Dr DY Chandrachud was speaking at the virtual launch event of CEDE (Community for the Eradication of Discrimination in Education and Employment), which is a network of lawyers, law firms, Judges and other organisations and individuals who are committed towards reforming the Indian law profession. What Justice Dr D.Y. Chandrachud has suggested is in fact the crying need of the hour also! Why should there be any kind of discrimination on the basis of language?

To put it mildly: Hindi is spoken by maximum people in our country and is most popular also. Similarly regional languages are spoken by many people as different states have different regional languages. Why then should those individuals who are well versed in Hindi or in any other regional language but not in English be made to mandatorily appear in English for seeking admission in any national law school and similarly why those who aspire to join judicial service be made to suffer similarly as they fail to gain admission in the national law school due to not being well versed in English. How can such senseless discrimination be ever justified by anyone? But this is exactly that has been perpetuated in India even 74 years after the colonial British rulers have left India in 1947!

As if this is not enough, we even see some states like Delhi, Haryana among others where the medium of exam for judicial services is only English and not Hindi or any other regional language! Why should those who speak Hindi or some other regional language be made to suffer and kept in the cold just because they are not well versed in English? It is high time and our law makers must deliberate, debate and discuss on this thread bare and take the right decision so that those who have Hindi medium or any other regional language are not made to suffer in the cold!

Adding more to what he stated above, Justice Dr D.Y. Chandrachud added that till the last year, the Common Law Admission Test (CLAT) incorporated questions which tested logical reasoning capabilities that required the use of sight and which in turn discriminated against the visually challenged candidates. Justice Chandrachud also sought to point out that, “Although the National Law School consortium has now assured that this would not happen in the future, the replication of this commitment in reality is awaited.”

It cannot be glossed over that Justice Dr DY Chandrachud then also very rightly and remarkably pointed out that, “Even if a student clears this exam, then begins the secondary graduation – the choice of law school. There is a real and perceived bias among various law schools and students of the top tier National Law Universities are deemed to be better on account of their law school affiliation. But these institutions are expensive and scholarships, or even loan based scholarships, may not suffice. So one exam taken by an 18-year-old becomes a means of differential treatment which has consequences on their law school experience and life trajectory thereafter.”

More damningly, Justice Chandrachud then further goes on to explain that it is within the law school where begins the third gradation that determines which students thrive and succeed. He made it a point to mention without mincing any words that students hailing from Dalit, adivasi and other marginalized sections are often found to be relatively behind not only in terms of academic grades, but also other extracurricular activities like moots, debates and internship.

It cannot be also lost sight of that Justice Dr D.Y. Chandrachud then seeks to point out forthrightly that, “The explanation which is most commonly rendered for this is that they are just not coping with the pressure. Nothing could be further from the truth! The fact is that the natural privilege which their counterparts have been entitled to manifests into their confidence to participate and even seek training and mentorship, while there is just not enough peer and faculty support for the students from marginalized backgrounds. They are deprived of publishing and research assistance, internships offered are often in tier 1 cities and do not pay a living stipend, as a result of which students who do not hail from well-off backgrounds dismiss these opportunities.”

Not stopping here, Justice Dr Chandrachud then further goes on to canvass that the fourth gradation which commences at the stage of employment after law school. The students from the marginalised backgrounds are underrepresented in law firms. Even employment at the chambers of advocates /senior advocates are based on informal references through privileged networks and those students who hail from families having roots in the legal profession have an edge over the others.

In summation, Justice Chandrachud then holds that, “So a lawyer, who is 23-25 years old at the embarkment of his career has already been knocked down 4 gradations in relation to his peers, for no fault of his!”

As if this is not enough, it must be further added here that we see how lawyers who are unable to practice in either Supreme Court or in different High Courts and their Benches and practice in different district courts are discriminated against most blatantly. Bar Council of India also keeps demanding proof from lawyers of district court that they are practising lawyers. First it is various High Court Bar Councils who demand the same and we saw the same being done in 2018 and for five years fresh Certificates were issued as practicing lawyers after verifying all the relevant documents. But why all the High Court Bar Councils as also the Bar Council of India who identify the ‘practicing lawyers’ consider them “totally worthless” and “totally irrelevant” to be considered for appointment as High Court Judges or Supreme Court Judges? Why only advocates practicing in High Courts or Supreme Court are considered eligible for Judgeship in both High Courts as also in the Supreme Court?

It must also be asked: Why no necessary amendments have been made so far in our Constitution on Articles which pertain to conditions for appointment as High Court Judges and Supreme Court Judges? Why even after 25 years of practice in District Court are lawyers not considered competent enough to be considered for Judgeship in High Courts and Supreme Court? Why this most worst, raw and senseless discrimination between lawyers of District Courts on the one hand and lawyers of High Courts and Supreme Court on the other hand?

What’s more, why a jurist is eligible to be appointed as a Supreme Court Judge but not eligible to be appointed as a High Court Judge or a District Court Judge? Why no distinguished jurist has been appointed as a Supreme Court Judge till date? Why no use has been made of Article 124(3)(c) which stipulates for appointment of a distinguished jurist as a Supreme Court Judge? Is there no distinguished jurist in India from 1950 till 2021?

Briefly stated: Why Article 217 of the Constitution which provides for appointment as Judges of the High Court not be similarly amended? Why should Article 217(2) not be amended suitably to meet the present circumstances? Why should distinguished jurists not be eligible for appointment as Judges of the High Court?

Also, it would be worthwhile to ask: Why should District Court lawyers not be made eligible for appointment as High Court Judges and Supreme Court Judges? Why when Bar Council of India (BCI) which is always at the forefront in demanding proof from District Court lawyers to consider them eligible as “practising lawyers” not speak up at all when it comes to them for being considered as High Court Judges and Supreme Court Judges? Why should they be totally excluded from Judgeship most unfortunately as we see from 1947 till 2021 even if they practice for 25 years or 30 years or 35 years or 40 years or 45 years or 50 years?

Truly speaking, it must also be asked: Why can’t suitable changes be made to meet the present circumstances? Why can’t BCI take the initiative in this regard? Why can’t parity be brought about among lawyers practicing in different courts whether they are in District Court or High Court or Supreme Court?

No doubt, it is the bounden duty of the BCI to speak up for the rights of the District Court lawyers. Why should the District Court lawyers not be empowered when they deserve to be? Why even after submitting proof that they are practicing lawyers are they outrightly banned from being considered as Judges of a High Court and Supreme Court?

It is high time and now BCI too must speak up vociferously for their rights and not just keep asking only for proof, proof and more proof for being assured that they are “practising lawyers” and not “non-practising lawyers? All the Supreme Court lawyers too apart from BCI must now seriously consider this that why are “practising lawyers” of District Court not considered for being appointed as High Court Judges and Supreme Court Judges? Why this brutal, raw and senseless discrimination has been perpetuated from 1947 till 2021?

A question worth billion dollars is: Should this even now be continued in perpetuity even though it makes just no sense? Why are “practising lawyers” of district courts being punished for no fault of theirs? Is it a crime that they are practising in district courts? Why then are they not considered for being appointed as Judges of High Court and also Judges of Supreme Court?

Bluntly put: Why inspite of turning 45 or 46 or even 50 or even 55, the lawyers of district court are considered eligible only for appearing in the Higher Judicial Service exams which requires just 7 years experience but that’s all for them and still are not considered eligible further for becoming either High Court Judges or Supreme Court Judge? How on earth can such a raw discrimination be ever permitted? Why many of competent district court lawyers like my learned friend late Yogesh Sharma who inspite of topping in UP Higher Judicial Service exam securing 4th rank and also practising continuously for 20 years with utmost brilliance in District Court in Meerut Bar aged around 45 years when he topped in 2020 which can be independently verified also are considered totally ineligible for appointment as High Court Judges which is bound to deject them to a great extent also yet they suffer quietly? This is what pinches the practicing lawyers of District Court the most but for which the Bar Council of India or the Supreme Court Bar Association or even the High Court Bar Associations never seriously think even for a second of doing something concrete so that those who practice sincerely in District Courts get their due by being appointed very rightly as Judges of High Court and Supreme Court and remain busy only in asking for proof that they are “practising lawyers”! But now things must change and a good beginning has been made by Justice Dr D.Y. Chandrachud!

Simply put: What purpose does it serve if you shut the doors of becoming High Court Judges and Supreme Court Judges on them straightaway? It is high time and all such raw discriminations in legal field like this including those pointed by Justice Dr DY Chandrachud must now be consigned to the flames and a new beginning must be made as early as possible so that some damage can be limited to some extent. All the key players involved in doing this which includes our law makers, BCI among others must certainly play an active role to ensure that this is done at the earliest so that our legal field attracts the best talent for becoming Judges and lawyers not just in Supreme Court and High Courts but also in District Courts and there is no discrimination on the basis of language or college or university or court!

It certainly goes without saying that, “Lawyers are lawyers” and why should there be discrimination of any kind between lawyers hinging on where he/she is practising in some District Court or High Court or Supreme Court? Similarly why should individuals with exclusive English background be given priority only and why should those with Hindi medium or any regional language be straightaway barred from appearing in entrance exam or judicial service exam with language of their choice? Why BCI never speaks up on this?

As we see, Justice Dr DY Chandrachud of the Apex Court has like an experienced doctor very rightly caught hold of the “raw nerve” and it is high time and what he has pointed out must now be addressed promptly along with the other serious shortcomings as already illustrated above! This will definitely go a long way in ensuring that our legal field and judicial system remains absolutely fit to meet the present circumstances in the best possible manner! It cannot be kept in cold storage any longer.

Also, the key recommendations of the Indian Law Commission which requires implementation like creating more High Court Benches especially in big states as recommended by 230th report of Law Commission of India made in 2009 and 229th report of creating regional Benches of Supreme Court must also be implemented at the earliest so that our legal system benefits as a whole and not just one or two states as most unfortunately we see right now in our country which is nothing but a status quo since last more than 74 years! Justice Dr DY Chandrachud has set the cat among the pigeons and one fervently hopes that our law makers will certainly make the requisite corrections at least now as suggested very rightly by him!

Sanjeev Sirohi, Advocate.

A glimmer of hope has arisen towards the beginning of a resolution of the centuries-old Kashi Vishwanath Temple-Gyanvapi Mosque dispute. Recently, a district court in Varanasi has directed the Archaeological Survey of India (ASI) to constitute a five-member committee to conduct “a comprehensive archaeological survey” of the disputed site in order to ascertain whether the mosque is a superimposition, alteration or addition over any other religious structure, or structurally overlapped with such other structure.

Moreover, it directed that the ASI committee shall trace whether any hindu temple ever existed before the mosque was built, added or superimposed on the disputed site. Further, if the committee finds that a hindu temple existed, the committee is to determine which hindu deity or deities did the temple belong to.

As per the Places of Worship Act, 1991 (‘POW Act’), courts have to maintain a ‘status-quo’ over disputes relating to places of religious worship before the year 1947, except the Ayodhya dispute. On October 18, 1997, a civil court in Varanasi had ruled that the suit was not barred under Section 4 of the POW Act. However, a revisional court on September 23, 1998, had remanded the suit back to this court with a direction to re-adjudicate whether the suit was barred under the said legislation only after considering the evidence forwarded by all the parties.

Assuming that the ASI does discover the existence of a hindu temple belonging to a deity and the court accepts the ASI’s findings, and consequently, the court finds that the suit is not barred under the POW Act, a legal analysis leads one to conclude that the entire disputed site should be handed over to the presiding deity under the management of its custodians or its next friends by the court.

The Indic civilizational matrix is a large network of sacred spaces, inter-weaved together into a lively and “intricately connected” landscape. Harvard professor Diana L. Eck coins this network of holy pilgrimages as a “sacred geography”, which is imprinted across the length and breadth of Bharat as living manifestations of the deities of the Hindu pantheon. These sacred spaces, referred as Kshetras or Tirthas, are reverential symbols for the devotees who repose their faith in the existence of their deities therein. These devotees may be regarded as what the Cambridge scholar Rajat Kanta Ray calls “felt communities”, groups who rest their beliefs and link their dignity with that of the deities. An act of remedial hermeneutics begins with the acknowledgement of this socio-cultural reality. It must be stated to the credit of the Hon’ble Supreme Court that it has evolved the jurisprudence on legal identity and rights of deities which can be read largely in consonance with the idea of sacred geography. The deities’ rights over their sacred spaces have been recognized by the Supreme Court, as we shall discuss below.

As noted by the Supreme Court in Ayodhya decision ((2020) 1 SCC 1), evolution of legal personality such as a hindu deity/hindu idol was recognized by the courts for over three-centuries in both colonial and post-independence India, in order to respect and give effect to the rights of religious devotees. By recognizing a hindu deity, the pious purpose of dedication of prayers or property to the deity by its devotees is fulfilled. The fundamental right to religion of a devotee is also protected by enabling the deity’s custodian or next friend, to conduct prayers, practices and perform rituals which are associated with the deity.

In context of the Kashi Viswanath dispute, assuming that there did in fact exist a temple before the mosque was established, the hindu devotees are being unconstitutionally deprived of their right to worship the hindu deity. Alternatively, there also exists the possibility that there is no hindu temple beneath the mosque, and therefore, the mosque committee should continue to exercise their rights over the land. However, it is impossible to conclude whether a hindu temple or structure existed before the mosque, unless and until a court of law makes a determination on this point. As long as this uncertainty persists, there will always be communal tensions over the disputed site.

The Ayodhya decision shows a harmonious way out of this quarrel over history. It has held that the formlessness, absence or desecration of the hindu idol would not deprive the deity of its juridical identity. Even if the deity has been present intermittently, that of itself would not create a hindrance in the recognition of the deity’s legal personality. In Shiromani Gurdwara case ((2000) 4 SCC 146), the Supreme Court pertinently observed that judicial scrutiny of religious faith is untenable and that the juristic personality of deities isn’t meant to be restricted “in any defined circle”. It even went on to observe that “with the changing thoughts, changing needs of the society, fresh juristic personalities were created from time to time”. In a catena of judicial precedents, the faith of devotees has been a crucial factor in the conferment of a legal personality upon the deity.

The idea of sacred spaces amalgamates well with the existing jurisprudence on legal identity of deities, and makes a compelling case for the success of claims brought on behalf of the deities to reclaim their lost possessions. The present legal tussle could be adjudicated by the court in line with the Ayodhya decision, by recognizing and allowing the claims of the hindu deity, i.e., Lord Vishveshwar or Lord Shiva, over the disputed land and providing adequate compensation and an alternate land for the building of a mosque for the representatives of Gyanvapi Mosque in accordance with the precedent set by the Ayodhya judgment. Just as the Ayodhya judgment was well received by most sections of the Indian society, this would also ensure that the law of the land is upheld while maintaining communal harmony within our social fabric.

Anujay Shrivastava Co – Author

In a groundbreaking judgment which is also a grand victory for advocates, the Kerala High Court has just recently on March 30, 2021 in a latest, learned, laudable and landmark judgment titled Adv KG Suresh vs The Union of India and 3 others in WP(C)No. 21946 of 2011(S) has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). It also rightly held that, “Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961.” A two Judge Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced this pathbreaking judgment thereby allowing a writ petition filed in 2011.

To start with, the two Judge Bench of Chief Justice S Manikumar who has authored this notable judgment for himself and Justice Shaji P Chaly of the Kerala High Court sets the ball rolling by first and foremost observing in para 1 that, “Petitioner, claiming to be an Advocate practicing in the Pathanamthitta courts, has filed the instant writ petition, seeking the following reliefs:-

“(i) Issue a writ, order or direction to declare that Section 17 of the Maintenance & Welfare of parents and Senior Citizens Act, 2007, is ultra vires the Constitution, and void, repugnant to Section 30 of the Advocates Act, 1960.

(ii) Issue a writ of mandamus or any appropriate writ, order or direction, declaring the right of the Advocates / Legal practitioners to represent the either parties before the Tribunal / Appellate tribunals / court, constituted under Act 56 of 2007.””

To put things in perspective, the Bench then enunciates in para 2 that, “Facts leading to the filing of this writ petition are that petitioner has challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (Act 56 of 2007). He has contended that the said provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961, which speaks about the right of advocates to practice.”

To be sure, the Bench then points out in para 3 that, “Petitioner has further stated that Government of India have notified Section 30 of the Advocates Act, 1961, with effect from 15.06.2011, which according to him, is a subsequent legislation and overrides Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. According to him, by virtue of Section 30 of the Advocates Act, Section 17 of the Act 56 of 2007 is invalid.”

While elaborating further, the Bench then elucidates in para 4 that, “Petitioner has further stated that as per Section 30 of the Act, every advocate shall be entitled, as of right, to practice before any Court, Tribunal or person, legally authorised to take evidence. The said provision also enables the lawyers to practice in the courts across the country, irrespective of their enrollment in any Bar Council, without the need to transfer licence to their desired States.”

Furthermore, the Bench then states in para 5 that, “Referring to Sections 6(4) and 8(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, petitioner has stated that the Tribunal is empowered to take evidence and conduct inquiry, and, therefore, an Advocate and Legal Practitioner, is entitled as of right to appear before the Tribunal.”

Going ahead, the Bench then reveals in para 6 that, “Petitioner has further stated that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, came into effect from 31.12.2007. By virtue of Section 1(3) of the Act, 2007, it came into force in the State of Kerala with effect from 24.09.2008, as per Notification SRO 999/2008.”

Be it noted, the Bench then observes in para 7 that, “Advocates for the last so many years have been claiming the right to practice in all the courts, as of right, and have been agitating for the enforcement of Section 30 of the Act in that behalf. Almost 50 years have passed since the Act was enacted and the provisions have been brought into force only w.e.f 15.06.2011.”

Seen in this light, the Bench then points out in para 8 that, “In this context, petitioner has relied on the decision in Aeltemesh Rein v. Union of India and Others [AIR 1988 SC 1768], wherein a writ of mandamus was issued to the Central Government, to consider, within six months, whether Section 30 of the Advocates Act, 1961 should be brought into force or not. The Hon’ble Supreme Court, however, held that it was the discretion of the Central Government to bring this Section into force by issuing a notification in that behalf.”

As a corollary, the Bench then puts forth in para 9 that, “Petitioner has further stated that pursuant to the abovesaid direction of the Hon’ble Apex Court, rendered in the year 1988, Government of India have brought Section 30 of the Advocates Act, 1961, in force only on 15.06.2011, and therefore, advocates can practice as a matter of right in all Courts and Tribunals.”

Significantly, the Bench then quite lucidly mentions in para 44 that, “Section 30 of the Act speaks about rights of advocates to practice and the same reads thus:

“30. Right of advocates to practise.― Subject to the provisions of this Act, every advocate whose name is entered in the 3 [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends, ―

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.””

No less significant is what is then observed in para 45 that, “In exercise of the powers conferred by sub-section (3) of Section 1 of the Advocates Act, 1961, the Central Government have appointed 15th day of June, 2011 as the date on which Section 30 of the said Act shall come into force.”

What is also worth noting is that it is then most rightly and remarkably observed in para 50 that, “Contention of the learned counsel for the petitioner and the Bar Council of India, that the Tribunals are clothed with the powers of Civil Courts, for the purpose of taking evidence, enforcing attendance, production of evidence, and that denial of legal assistance to the parties before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, requires consideration, for the reason that parties to the lis are not expected to know the nuances of law, evidence, both oral and documentary , to be produced.”

Needless to say, it is then underscored in para 51 that, “Legal aid is a constitutional right guaranteed under Article 21 of the Constitution of India and legal assistance cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties.”

More significantly, the Bench then minces no words to observe in para 52 that, “Contention of the Union of India, that since the main intention of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to provide speedy and cost effective mechanism to the parents/senior citizens, to claim maintenance from their children/grandchildren/relatives, as the case may be, and participation of advocates in the proceedings will jeopardize this objective, cannot be accepted, for the reason that mere engagement of a lawyer would not delay the process of adjudication of a dispute before the Maintenance Tribunal.”

Adding more to it, the Bench then observes in para 53 that, “Cost effective mechanism, cited as one of the reasons for denying legal assistance, also cannot be accepted, for the reason that if any litigant is enable to engage a lawyer of his choice, Legal Services Authority, constituted under the Legal Services Authorities Act, 1987, comes into the aid of such litigant, by engaging a lawyer to assist him.”

Simply put, the Bench then also makes it plainly clear in para 54 that, “Union of India, cannot undermine the role of the Legal Services Authority, and the lawyers engaged by them, to assist the litigants, in comparison to the lawyers to be engaged by the children/ grandchildren/ relatives, solely on the ground that they are financially in a better position to avail the services of the best advocates.”

Of course, the Bench then concedes in para 55 that, “True that the legislation, Maintenance and Welfare of Parents and Senior Citizens Act, 2007, has envisaged that the disputes and differences should be resolved amicably and in that context, laid emphasis on the role of a Conciliation Officer, nominated by the Tribunal, but he will not be a substitute for a lawyer.”

What’s more, the Bench then also makes it amply clear in para 56 that, “Contention of the Union of India, that the makers of the Act foresaw that engagement of legal practitioners to represent cases will prolong the matter and will be more of a harassment for the parents in their last phase of life as judgment will be delayed, is wholly unacceptable.”

Finally and far most significantly, the Bench then holds in para 57 that, “As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961. In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007. Accordingly, this writ petition is allowed.”

No doubt, this historic judgment is a victory not just of one or two advocates but of advocates as a whole because this will certainly benefit the entire class and not just one or two advocates only. It must be also mentioned here that the petitioner who is an advocate KG Suresh of Pathanamthitta instituted Public Interest Litigation in the year 2011 seeking a declaration that Section 17 was unconstitutional in light of the newly introduced Section 30 of the Advocates Act. Upon consideration of submissions, the Kerala High Court held that Section 30, being introduced and notified in 2011 had an overriding effect on Section 17 of the Maintenance Act. Of course, Kerala High Court thus clearly, cogently and convincingly holds that advocates are entitled to appear in Maintenance Tribunals and bar on legal representation is unconstitutional. Very rightly so!

Sanjeev Sirohi, Advocate