Citizens' Issues
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

3 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 3 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

3 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

3 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

3 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

3 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

3 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

3 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

3 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

3 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

3 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 3 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

3 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

3 months ago

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

ppn1969

3 months ago

Well said & true.

Why the new RBI guidelines for sale of stressed assets are unrealistic
The Reserve Bank of India (RBI) on 1 September 2016 issued Guidelines on Sale of Stressed Assets by banks. The Guidelines are an attempt to improve the framework for sale of stressed accounts by banks. The essence of the Guidelines is urging banks to create mechanism for timely identification of stressed accounts and take appropriate actions to ensure there is low vintage and better price realisation for banks.
 
The guidelines view the world with rose-tinted glasses. Currently the non-performing asset (NPA) levels in the financial system are extremely high and are causing sleepless nights to the Boards of banks and financial institutions. In such times where there is a dire need for quick resolution, the Guidelines are optimistic about finding takers for bad assets and creating dynamic market for the same outside of ARCs as well. While this is the core area for ARCs and special situation funds (which the guidelines do not make a mention of at all), there may be very little or no motivation for other non-banking financial companies (NBFCs) or banks to acquire bad loans.
 
The Guidelines also seem to suggest that the sale of junk should be undertaken by an open auction process, which will result in price discovery. The existing Framework for Revitalising Distressed Assets in the Economy as applicable to banks and issued on 26 February 2014 mentioned that there were practically challenges in sale of assets through auction process. The bidding process is quite costly and the due diligence takes long. The framework urged for creating transparency in the auction process and required prescription of sufficient disclosures for seamless auction process. Unfortunately, none of these issues from the 2014 Framework are addressed in the new Guidelines. We highlight the prescriptions of the recently issued Guidelines in this article. 
 
Process of identification of stressed assets 
 
The Guidelines mandate the banks to do the following:
 
1. Early identify stressed assets and special mention accounts and make them available for sale. 
 
2. Identify and list internally, once a year (preferably at the beginning of the year), specific financial assets available for sale to other institutions.
 
3. Doubtful assets above a threshold should be identified and reviewed by the board or its committee to make them available for sale.
 
4. The sale should be undertaken through e-auction process, so as to attract wide variety of buyers and enable larger participation from prospective buyers. 
 
5. At the time of sale, specifications should be provided for acceptance of internal or external valuations. In case of exposure beyond Rs50 crores, take 2 external valuation reports.  
 
6. Banks should provide adequate time for due diligence with a floor of 2 weeks’ time.
 
7. Cost of valuation to be borne by banks
 
Eligible buyers of banks’ junk
 
Banks can sell the stressed assets to:
 
a. Asset reconstruction companies; 
b. Other banks; 
c. Non-banking financial companies; 
d. Financial institutions.
 
Preference will be given to asset reconstruction companies as buyers. 
 
Swiss Challenge Method
 
This is the prime focus of the Guidelines. As in case of government tenders and bidding, Swiss Challenge Method is envisaged to be introduced for sale of stressed assets as well. The mechanism is as follows:
 
1. Prospective buyer gives a bid to the bank for acquisition of assets;
 
2. Where a prospective buyer offers more than the minimum percentage specified in the bank’s policy in the form of cash, the bank shall be required to publicly call for counter bids from other prospective buyers, on comparable terms; 
 
3. Once bids are received, the bank shall first invite the securitisation companies (SCs) and reconstruction companies (RCs), if any, which has already acquired highest significant stake to match the highest bid. Asset Reconstruction Companies (ARCs) acquiring majority stake and bidding highest will be given a right of first refusal for acquiring the assets 
 
4. The order of preference to sell the asset shall be as follows: 
 
a. The SC or RC, which has already acquired highest significant stake;
b. The original bidder and 
c. The highest bidder during the counter bidding process.
 
5. In any event, preference will be given to asset reconstruction companies to acquire the assets
 
6. Bank may sell to the winning bidder otherwise make provision which would be higher of the two:
 
a. The discount on the book value quoted by the highest bidder; and
b. The provisioning required as per extant asset classification and provisioning norms
 
Investment in security receipts (SRs)
 
Banks typically sell the stressed assets to the ARCs and then hold them in the form of security receipts. This is a way of creating a façade whereby the banks continuing to hold the bad assets as investment. The guidelines state that where banks continue to hold 50% or more of security receipts with the underlying of the assets it sold to the ARCs, then higher of the below mentioned provisioning norms shall apply
 
a. Provisioning rate required in terms of net asset value declared by ARCs
b. Provisioning rates as applicable to banks
 
The above provisions will become applicable from 1 April 2017. The threshold of 50% investment in SRs will be reduced to 10% from 1 April 2018. 
 
In addition, banks will be required to do disclosure of SRs acquired and the disclosure goes 8 years backward. 
 
Buy-back of refurbished junk
 
The Guidelines state that the Banks should have a board approved policy to buy-back financial assets from asset reconstruction companies once the asset has become standard after successful implementation of the restructuring program by the ARCs and after satisfactory performance of the asset during the specified period. 
 
However, banks cannot buy-back the assets they sold to the ARCs. This means banks can buy someone else’s refurbished junk but cannot buy-back its own. 
 
Banks to formulate policies 
 
In light of the Guidelines issued, banks will be required make changes in their policies dealing with stressed assets. The following are the changes or policies required:
 
1. Banks to lay down board approved policies and guidelines for sale of stressed assets, which would include  
 
a. Types of financial assets to be sold
b. Norms and procedures for sale 
c. Valuation procedure to be adopted and policy for valuation either to be taken internally or externally.
d. Delegation of powers for undertaking the sale of financial assets 
e. Discount rates used for valuations will be provided for in the policy
f. Minimum percentage/ floor of cash expected in case of sale 
 
2. Banks will require a board approved policy for buy-back of financial assets. The policy should provide for facets such as type of assets that may be taken over, due diligence requirements, viability criteria, performance requirement of asset, etc. 
 
3. The existing NPA policies should be reviewed and revised in lines with the Guidelines. 
 
Selling of bad loans is not a thriving business where price discovery is the primary agenda, neither is broadbasing investors in junk the agenda. However, the Guidelines do focus on sensitising the banks by saying a stitch in time will save nine.
 
(Nidhi Bothra is executive vice president at Vinod Kothari Consultants Pvt Ltd)
 

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COMMENTS

T.c. Shivswamy

3 months ago

There is nothing original in this.This is what the US did resulting in hundreds of Banks and Financial institutions going Bankrupt.Our US modelled Central Bankers ape their Gurus.

Mahesh S Bhatt

3 months ago

Match fix nahi ho raha Mahesh

Gupta

3 months ago

Rajan isn't wearing rose tinted glasses as the author says.... probably the author is wearing coal tinted glasses! :-)

Gupta

3 months ago

Is it a rule that we have to criticise everything? While moneylife comes up with brilliant topics and analysis, one thing that is worrisome is that everything is viewed with suspicion. These are marvellous guidelines which may not solve the problem of current bad loans, but it is intended to force banks to not postpone the problem by restructuring. Banks will be forced to make provisions faster and will almost be marking Loan values to market price. If you know how large borrowers arm twist banks to restructure, you will realise what a sea change these guidelines bring. What it does is to force banks to take the most effective commercial decision rather than a temporary accounting solution by deferring the problem. These guidelines will force provisioning anyway and will take away the incentive of restructuring. More importantly, the fear of these new guidelines which will lead to more provisioning will improve Credit decisions as the corrupt bankers can no longer hope to be retired by the time the bomb they created explodes. The new guidelines will trigger the explosion much much sooner. These are excellent innovative ideas and only talented people like R3 could do this. Kudos to Rajan, what a loss for India.. ... sad.

Tsunami drill begins in India, other Indian Ocean nations
A major Indian Ocean-wide tsunami mock drill involving India and 23 other Indian Ocean countries began on Wednesday to test warning and detection systems.
 
A tsunami warning was simulated with an earthquake of magnitude 9.2 south of Sumatra, Indonesia in the eastern Indian Ocean at 8.30 a.m.
 
The exercise involves evacuation of around 35,000 people from the coastal regions of India. The evacuation is being taken up in Andaman and Nicobar Islands, Odisha, Andhra Pradesh, Tamil Nadu, West Bengal, Kerala, Gujarat and Goa.
 
Authorities in Andhra Pradesh have selected a village each in nine coastal districts for evacuation as part of the exercise to check the preparedness.
 
The end-to-end warning systems -- from tsunami detection and forecast, threat evaluation and alert formulation, dissemination to public and their awareness and responses -- would be put to test during the mock drill, officials said.
 
Named 'IOWave16', the two-day mock drill is being organised by the Intergovernmental Oceanographic Commission (IOC) of the UNESCO, which coordinated the setting up of Indian Ocean Tsunami Warning and Mitigation System (IOTWMS) in the aftermath of the December 26, 2004 tsunami.
 
The major objectives of IOWave16 include testing the efficiency of communication links, disaster management offices and local communities at risk.
 
The Indian Tsunami Early Warning Centre (ITEWC), based out of the Indian National Centre for Ocean Information Services (INCOIS) here is capable of detecting tsunamigenic earthquakes within 10 minutes of their occurrence and issue timely advisories to disaster management officials as well as to the vulnerable communities.
 
On the second day of the two-day exercise on Thursday, agencies involved will simulate a magnitude 9.0 earthquake in the Makran Trench, south of Iran and Pakistan, in the northwestern Indian Ocean.
 
More than 2,00,000 people were killed in Dec 26, 2004 tsunami, which was triggered by an undersea earthquake off Sumatra, Indonesia.
 
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

Bapoo Malcolm

3 months ago

When do we have one in Mumbai? It's got tons of low lying areas and will wash from west to east coast.

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