Citizens' Issues
Go to high court, SC tells Vishal Dadlani
The Supreme Court on Wednesday declined to entertain a plea of music composer Vishal Dadlani to quash an FIR and to give him protection from arrest in a complaint against him for criticising Jain monk Tarun Sagar who addressed the Haryana assembly.
 
The apex court asked Dadlani to approach the Punjab and Haryana High Court with his plea, and the bench of Justice V Gopala Gowda and Justice Adarsh Kumar Goel declined to pass any order.
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.

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COMMENTS

SRINIVAS SHENOY

8 months ago

What do you think?... Write your comments. It is a very important suggestion about how to update our opt-outs, and maintain our privacy.

Judges Need Not Know All Laws
In an LLM (Master of Laws) class that this author was attending, students insisted that every judge should know every law. Being the sole opponent of that view was not an enviable position. Yet, the best of jurists have declared that it is not necessary for all judges to know all the laws. It is the duty of the contesting advocates to highlight their stand as effectively as debunking that of the opposition.
 
What is required of judges, so say the greatest of them, are two qualities. Honesty and courage. A good judge will ask all the right questions; a good advocate will point out the right answers from the statutes. He will present, to the judge, previously decided cases, notings from the legislative exercise that led to the law, and, above all, the repercussions on future problems, should the order not be passed in his favour.
 
A magistrate passed an order releasing an impounded passport. He had heard arguments in favour of such an order. He felt convinced and said so. The next day, he had doubts, nagging doubts. What was the argument that swung the case? Did the magistrate get the gist right? Can he placate his conscience?
 
You be the judge. What would you do?
 
This is how the matter unfolded. The magistrate asked the court clerk to phone, asking my presence in court at four that evening. 
 
“Why should I release the passport?” asked the magistrate.
 
“But, your Honour, you have already released it yesterday.”
 
“Yes, but I want to hear your arguments again.”
 
At the very end, “If My Lord will allow me to say so, your order is in contempt of itself.”
 
He countered, “But we have always been doing it this way.”
 
“That is no reason to continue doing it, My Lord. Today, you have a chance to correct it.”
 
The honourable magistrate had the moral courage to change the typed order, in ink, and hand it over. Honesty and courage exemplified. 
 
Last year, judges were appointed to the Bombay High Court. Being handpicked, the calibre was universally high. Yet, as senior counsels do, one judge was steeped in a particular branch of law. Before him was a rare, complicated matter that delved deep into procedure. He questioned the lawyers relentlessly, each one then referring to various Supreme Court cases to buttress his stand. As the discussion, not an argument, ended, the judge complimented and thanked both the advocates for enlightening him. Egoless courage. 
 
More recently, a client from out of Mumbai called to say that the judge, before whom we had pleaded, was averse to passing the order, feeling that he had insufficient knowledge. He and the local advocate trooped back for the afternoon session. 
 
They requested the judge to allow us to resume the arguments the next time, until we had satisfied him. The judge had the integrity to say that he had no previous experience in the matter and that, if we asked for a transfer, he would not mind it. Both sides rightly refused the offer. Adversarial system worked in a gentlemanly environment. Everyone came of age.
 
Are lawyers, advocates or gladiators? Maybe a bit of both. Like a gladiator, a good lawyer has to be sharp in his thinking. A small mistake can be fatal, if not to him, to his client. He is paid to fight, put up a good show, defend and attack, win the day. 
 
The cut-and-thrust of debate, thinking on one’s feet, ever ready to counter attack, all backed by intense preparation, is a must. Every conceivable aspect has to be forethought, an answer kept ready. The 10-minute performance follows long hours of study. The blood on the floor is invisible.
 
It is, therefore, the lawyer’s job, to know all the answers. He must convince the judge, the man who must be convinced. There is no other way. One has to assume that all judges need to be informed; even appraised. 
 
The client has a supreme duty too. To tell the lawyer the truth, the whole truth and nothing but the truth. It pays to keep his weapons sharp. 
 

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COMMENTS

vswami

8 months ago

Cross Refer >
http://swamilook.blogspot.in/
Personal Blog August 24, 2007
IGNORANCE OF LAW - IS NO EXCUSE, OR IS IT BLISS ??!!

http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&cad=rja&uact=8&ved=0ahUKEwiB46SAzpbPAhUKMI8KHTKABZwQFghVMAg&url=http%3A%2F%2Fir.lawnet.fordham.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D5054%26context%3Dflr&usg=AFQjCNFCDRU_YPb36g-TJVS7ZpXOpMSNEg

REPLY

vswami

In Reply to vswami 8 months ago

Google Search >The Special Skills of Advocacy - The Fordham Law Archive of ...

The Special Skills of Advocacy - The Fordham Law Archive of ...

Google Search >The Special Skills of Advocacy - The Fordham Law Archive of ...

vswami

8 months ago

OFFHAND
One may add a few more crucial aspects of contextual relevance needed to be focused on:
1) Proper and adequate briefing of counsel, by client, of the host of relevant ‘facts and circumstances’, with all supporting documentation, is a ‘must’, to enable counsel to marshal and address his arguments in an effective manner.

2) Counsel, on his part, in so doing, frame his propositions competently, and present to court principally on ‘first principles’ (provisions of law), and only secondarily rely on case law, after ensuring those apply on all fours to client’s case.

3) Instances are not wanting in which failure to do so results in an unfavourable outcome.

And the foregoing equally applies, being of no less relevance, to both sides - client and representing counsel.
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Bapoo Malcolm

8 months ago

Glad to report that the judge, in the third out-of-Mumbai case, passed the order in our favour yesterday. Patience, perseverance, pleadings helped. We will definitely succeed if the accused appeal because we had made sure that points of law were included in our arguments. They will stand us in good stead.

Bapoo Malcolm

8 months ago

There is a matter of jurisdiction. Many litigants are advised, "We will go to the High Court" or Supreme Court. It's incorrect. One has to FIRST go to the court of least authority, maybe even a village court. If that is overstepped, the higher court will remand the matter to the court of inferior or subordinate jurisdiction. The higher courts are really meant for arguing points of law, AFTER the lower court has collected and evaluated the evidence; and passed judgement or order. Please see what Arts. 226 and 227 say.

manoharlalsharma

8 months ago

Judges Need Not Know All Laws./Yes no need simply as in the case under 226-227 they just recommending to the concerned authority and the authority take its'own discriation with side of who is paying more like in the case of WP- 4481/2000 and now WP- 8508/2003 at Bombay HC where 315 peoples r fighting for the basic membership Right in a housing society even after paying full cost of the flat.

Bapoo Malcolm

8 months ago

Dear Dayabhai, Law books are available in many languages. In Gujrat, many statute books have English on one side and Gujrati on the other, facing, page. Excellent. I use them too. Anyone can understand the law. It's when they find it inconvenient that they balk.

Bapoo Malcolm

8 months ago

Mr. Nambiar. Thanks for the mail. You say you "dragged" Tata Motors to court. That one word put me off immensely. You file suit, ask for reliefs; dragging gives an image of a caveman "dragging' his mate by her hair. We need to remember that ours is an adversarial system; all such court cases are. One wins, another loses. The latter grumbles. Unfortunately. Very often, people think they rae in the right, but, the law is against them. Maybe be on a technicality that the perso was unaware of. It happens with amazing regularity. A CA, just because he was a C A, thought he knew all the laws and chewed our brains out with wild theories on a 6 hour journey. He was fighting his cases himself and obviously annoying the judges. So, even litigants need to study the law; dispassionately. But that's easier said than done. No one wants to be proved wrong. It's human nature. S for 'paying money and dancing to their tune', you will not believe how many clients want just that. Including lying in court on their behalf. No self respecting lawyer will submit to that. And eventually, the truth does come out. That's waht courts are for. The truth. The judgement comes later. So, feed you lawyer the truth and await the outcome. Good Luck.

Bapoo Malcolm

8 months ago

I detest incognito mail. ppnxyz, simpleton indian, speak up man; or woman. We need names. Only then can we accept what is said as the gospel truth and not just letting out frustration. What is written can and must be refuted, at least some of it, but not without proper identity. Moneylife stands up for you, people put their neck on the block; why are you hiding behind pseudo-names?

Dahyabhai S Patel

8 months ago

All laws and acts must be written in such a simple language/mother tongue that even a 4/5th class person could understand without any problem; it would be easier for such judges too to interpret. Besides common sense and natural justice must prevail.

Shyamsunder Nambiar

8 months ago

Bapoo ji, based on my experience of fighting a case personally when I dragged Tata Motors to the consumer court... Its true that a Human Being is not expected to know everything under the Sun... however since the only purpose why the matter goes to a court and we seek a judgment is to get someone who can look at both the parties perspective and then the judge would ideally come to a conclusion based on his perspective, his knowledge, experience and wisdom. nothing wrong in learning from the lawyers who are fighting against each other. I was once guided by a Judge which was protested by the opp. lawyer. But sorry to say based on another experience with a legal matter... while there may be many good lawyers who have understood their critical role in justice and fair play, there are few who have downgraded the noble legal profession to a pedestrian level... you pay money and they are willing to dance to your tune.. truth, justice, fair play is alien to them... They have no Conscience. Except for a few cases, most of the cases its clear right from the beginning as to what is the Truth but the cases go to the court because the party which is wrong is stronger has the money power to hire the best law firms with shrewd lawyers to arm-twist or deny the rightful benefits to a weaker party Except for some landmark judgments from the Supreme Court and the High courts, people don't have much hope at the lower courts...thanks to our Thareek pe Thareek adjournments, legal cases take years and decades..

REPLY

Simple Indian

In Reply to Shyamsunder Nambiar 8 months ago

I agree with your views, having experienced our rotten legal system (I refuse to call it justice system), which is compromised by not just unscrupulous lawyers but also corrupt judges at all levels. There is rampant corruption and nepotism in Lower Judiciary, which no media-house has highlighted till date. Right from procuring an FIR (which is my legal right), getting a bail, adjournments, or even favourable verdicts, everything can be got for a price. There's an unofficial "rack rate" for each of these for every judge in lower judiciary, and such malpractices seeping into higher judiciary isn't surprising, as many of the judges of lower courts get promoted as per "seniority" and end up in HCs, though much less in the SC. All three major enforcers of our legal system - the police, the Courts, and lawyers - are equally responsible for the burgeoning backlog of cases running into crores now. Unfortunately, laws themselves are so lopsided and idiotic in many cases, that there's little hope of the system being overhauled anytime soon. E.g. most people don't know that one can't vote as an under-trial prisoner, but can stand for elections. So, the law basically says that a potential lawbreaker can BECOME a lawmaker, but can't CHOOSE a lawmaker. How absurd can this be ! There are several such nonsensical provisions not just in our laws but in the Constitution of India itself, which is nothing but a cut-paste job which its drafters didn't care to prepare from scratch - as they should have. Being a cut-paste job from assorted sources, it is self-contradictory in many provisions in the Constitution, which gets challenged in Courts from time to time. But, I commend the SC for being largely sincere and committed to its task, as but for a committed judiciary, India would have been worse than a Banana Republic, or a Sub-saharan country where lawlessness is the norm.

Simple Indian

8 months ago

Agree with you Bapoo Sir. But, isn't it pertinent for the judge to educate himself of the law before adjudicating a matter related to it ? In this day n age, lawyers are shrewd operators who can confuse, obfuscate, and even blatantly lie to protect their client's interests. Isn't the judge supposed to know the law in both letter n spirit before passing orders in such cases ? Hence, while I agree with you that all judges need not know all laws, it is professionally n ethically necessary for the judge to educate himself / herself of the law related to the matter at hand. Merely getting to know the law through lawyers' arguments may become a travesty of justice. After all judges supposed to be well-qualified in law and are not like village chieftains or panchayat, which pass orders merely based on convincing arguments of concerned parties.

Bapoo Malcolm

8 months ago

Why cannot ppn1969 identify her/hiself? Makes my life so much easier.

ppn1969

9 months ago

Well said & true.

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