Why I Support Justice Swatanter Kumar’s Defamation Lawsuit.

I will make my bias for writing the post clear at the outset. I started my litigation practice after completing my Masters in intellectual property and returning to India in 2005. Like every other rookie in the Courts, I was assigned the job of observing the proceedings and to learn. In legal parlance, rookies are counsels to take passovers in the Courts at best in their initial phase.

It was His Honour Swatanter Kumar who grilled the confidence in me and made me totally comfortable to argue a matter before him. Long story short, the patient Judge asked my Senior to sit next to me and assist me when required. I completed the final arguments of the case when I was just two weeks old in the profession. Knowing the file quite well also helped me from not fainting during the arguments in a courtroom packed of lawyers.

Of many instances when I got a chance to appear before His Honour Kumar, I once also saw a matter where an elderly lady was in his Court who knew no English and could speak only in Punjabi. Justice Kumar spoke to her in Punjabi patiently and kept dictating the order in English as well. The list is endless but the purpose is just to express my experience of the Judge, as a Judge.

Much has already been in circulation about the magnitude of the recent allegations against His Honour Swatanter Kumar. This post is not about that. Not exactly, about that.

Since January 10th when CNN-IBN first broke the news that the intern had named His Honour in her affidavit, nearly the entire media had been presenting the same news with as much juice as possible. After having witnessed the recent media frenzy against His Honour A. K. Ganguly and the way TV crews were chasing the Judge nearly every possible place to shove a microphone at His mouth, we all apprehended same frenzy against His Honour Kumar as well.

Although the intern has moved the Supreme Court for implementations of the Vishaka guidelines, His Honour Kumar also filed a civil action for defamation against certain national dailies and news channels seeking damages.

Justice Manmohan Singh’s interim order passed today in Justice Swatanter Kumar’s suit can be accessed here. Justice Singh has restrained the Defendants in the interim from showing Justice Kumar’s photographs among other relief. Justice Kumar’s counsel fairly conceded during the course of hearing that there can be no embargo on news report insofar they are disseminating news and information.

Coming back to the media, just to fill the 24 hours slot, a news channel cannot, and should not, be allowed to add or insert contents which are not even remotely the suggestions in the main complaint.

A particular journalist’s tweet, on the allegations surrounding His Honour Kumar, I found utterly objectionable. In fact, even if assuming that all the allegations against the Judge are proven true even then such a language cannot be used by anyone. Especially not from someone in the media who boast of the very freedom of speech and expression which the Courts provide them.

In legal fraternity, everyone is hoping that the matter is resolved soon. Justice Kumar has spent close to half a century in the profession, he has a name to reckon with. Of course as of now the matter is only His words against hers but media should behave very cautiously while adding a thousand words in the name of editorial content when the basic complaint is not even of 100 words. An independent media should not be interfered with, not even by the Courts unless the situation demands.

Justice Singh also laid emphasis that there should be a time limit before which the girl should initiate the complaint. I concur totally. Waiting for more than a year to file a complaint does not help the case, the cause and the parties involved. If her allegations are true, by sitting over the matter for a considerable length of time, the intern has not really helped herself that much. I understand it required a great deal of courage on her part to take on a Judge in a legal battle even when her own career has not commenced. It is also a sorry state of affairs since the Supreme Court itself had not been able to appoint a committee in terms of the Vishaka guidelines which the Court laid down more than a decade ago. Maybe such a mechanism, if was existing and working, would have expedited the matter, who knows.

Legal battles are supposed to be fought in the Courtroom with evidence, even though circumstantial in a given case. News channels / papers can never be allowed to decide these battles.

Let us see how the legal proceedings in the Supreme Court and the Delhi High Court shape up in time to come.

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Transfer List of 228 District Court Judges (Jan 2014)

Vide notification dated January 08th, 2014, Delhi High Court has finally approved and circulated the transfer list which was anxiously awaited in the District Courts.

The file for transfer list of Lower Judiciary can be accessed here:

Transfer List DJS DKMahant

The file for transfer list of Higher Judiciary can be accessed here:

Transfer List DHJS DKMahant

The transfers shall take effect from January 15th.

Transfers in the lower judiciary, including reshuffling of the Higher Judiciary, is a routine feature. Interesting elements in these transfer lists are the following: -

  1. All the 6 Joint Registrars (JRs) of Delhi High Court now stand replaced;
  2. The strength of JRs in the High Court is now 8 instead of 6 earlier with two new Courts getting created for them;
  3. 49 Judges from the Lower Judiciary are promoted to Higher Judiciary; and
  4. 39 new Courts are created in the Higher Judiciary for these promotions from the Lower Judiciary.

With this list, I sincerely foresee a lot of backlog getting cleared gradually in the District Courts, especially at the stage of Higher Judiciary level.

Delhi High Court should, in time, consider doing away with the original jurisdiction and focus on filling up the sanctioned strength of 48 Judges and clearing the backlog of the appeals in the criminal side, writ petitions and various suits pending since long.

A new era in the District Courts of Delhi shall commence from next week.

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Delhi High Court Bar Association Election 2013: Bar Versus Bar?

On December 13 this year, Members of Delhi High Court Bar Association (DHCBA) shall cast their vote in the elections for various candidates for separate posts. Since last 8 years I have been a member of DHCBA, I have exercised my franchise and always voted in favour of a Brother / Sister lawyer whom I trusted with the responsibility.

In last 8 years, to my knowledge, never DHCBA elections were discussed so much in Courtroom than in the High Court canteen. The sequence of litigation can be gathered from the recent order by His Honour Vipin Sanghi in a civil action by Mr. Rajiv Khosla.

The crux of the litigation is that Mr. Khosla challenged the recent amended rules of DHCBA. Briefly, the most contentious amendments, per me, are

  1. One Bar One Vote;
  2. Office bearers of any other Bar Association to be debarred from contesting for three years till demitting office of that Bar; and
  3. A lawyer must be a DHCBA Member for a period of 25 years for contesting a post of the President of DHCBA.

His Honour Sanghi disallowed interim injunction application mainly on ground of delay in approaching the Court and put the suit for trial. Mr. Khosla has already assailed the order by filing an Appeal which will also come up for hearing tomorrow.

Since the Rules and their implication are sub-judice including the arguments whether they are null and void or not, I will refrain from commenting on them. However, as a lawyer I have a point of view on the noted amendments.

One Bar One Vote: Means, as what happens in Supreme Court Bar Association (SCBA) elections, if a Member of SCBA intends to vote in the election there, she has to first give a declaration to SCBA that she will not cast her vote in any other Bar Association–including DHCBA. This principle has already been hotly contested in the Supreme Court. By casting vote in DHCBA under this proposed amendment, as I understand, it would be impossible for me to cast my vote in other Bar Association where I am Member.

Since I have 15 lawyers in my family and many lawyers friends who are also active in various Bar Associations, it will be shocking for them if I show my incompetence in voting for them in their elections–if and when this happens–when I cast my vote under One Bar One Vote rule in the DHCBA.

In addition, this rule, if it spreads in all the 6 District Court Bar Associations of Delhi gradually, can further create a divide between lawyers who are Members of multiple Bar Association at District Court levels. For example, I’m Member of Delhi Bar Association, DHCBA and SCBA–I don’t cast my vote there.

This rule might have find an approval in the Supreme Court but, I reckon, that was only in the context of litigation of SCBA rather than making it law of the land for all Bar Associations of India.

Imagine a paradox where a Lawyer approaches District Court for campaigning for DHCBA election and lawyers there are in an awkward position where casting vote in DHCBA will disqualify them for their own District Court elections.

3 Years After Demitting Office of Other Bar: This rule, though might have been adopted after much deliberation, raises only one question in my mind. If an office bearer of any other Bar Association was unaware about this rule in 2010 since it wasn’t in force, how can he be penalised for it in 2013 for no fault of her? Correct approach would have been to give a breathing period of three years from 2013 to all Bar Association office bearers for them to be enabled to be contesting for DHCBA elections. If afterwards a lawyer elects to be an office bearer somewhere, it will be his decision knowing about the disqualification.

The 25 Years Membership Embargo: Same logic as last one, as also contended by Mr. Khosla in his civil action, if he was allowed to contest in the last elections of DHCBA in which he lost by only 160 votes–there must be more Members than that at any given point of time in canteen alone–how is he disqualified to be contesting elections this time around?

I have also sought comments from my seniors from the DHCBA for their input. I hope the legal dispute is resolved at the earliest. It is really disheartening to anticipate a situation where various Bar Associations might be in conflict with each other. Productive time of lawyers should go in productive activities.

Maybe someone will like to explain to me how to come out of this predicament. As of now I have been posing this question to some senior Members of Bar but to no avail.

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WWE Versus Reshma Collection: Territorial Jurisdiction of Delhi High Court.

Last week, His Honour Vipin Sanghi of Delhi High Court has ruled on the point of the territorial jurisdiction in intellectual property civil actions. The matter was World Wresteling Entertainment versus Reshma Collection.

Briefly stated, World Wrestling Entertainment Inc. (WWE), a Delaware corporation, instituted a civil action in Delhi High Court against a Mumbai based company. The allegation of WWE was that the Defendants were selling apparels and related items prominently displaying WWE’s characters and talents.

WWE claimed jurisdiction of Delhi High Court on the basis of following: -

  1. The broadcast of its programmes in Delhi;
  2. Its merchandise being available for sale in Delhi; and
  3. The merchandise is available on its website which is accessible in Delhi.

At the inception stage before even registering the plaint and issuing the summons of the suit to the Defendants, His Honour wanted to satisfy himself whether the Court had jurisdiction to entertain the matter. Mr. Pravin Anand, representing WWE, submitted at length the arguments and various precedents to impress upon His Honour that the Court indeed had territorial jurisdiction.

It was  not the case of WWE that the goods of the Defendants were available in Delhi. So WWE invoked the jurisdiction of the High Court only on account of Section 134 of the Trade Marks Act, 1999 and Section 62 of the Copyright Act. Both the provision provides an additional ground to the Plaintiff to institute a civil action provided Plaintiff is residing or carrying on business within the jurisdiction of the Court.

Mr. Anand submitted that although WWE has no place of business in Delhi, the transactions taking place online, a Company should be deemed to carry on the business within the territorial limits of the Court since the website can be accessed by residents of Delhi. Mr. Anand further submitted that the issue whether the Plaintiff carries on business in a particular territory is a mixed question of law and fact can could be gone into at the final hearing of the trial.

Per His Honour Sanghi,

The test to be satisfied as regards the aspect of carrying on business has been laid down in Dhodha House (supra). The sum and substance of the criteria laid down in Dhodha House (supra) is that an essential part of the plaintiff‟s business , coupled with an element of control exercised by the plaintiff, must exist in such place where the plaintiff claims to be carrying on business either on its own or through an exclusive agent.

Mr. Anand submitted that the Courts should now take into account a concept of “New Media” and make arrangements for the technological advancements. His Honour, rejecting this argument, held that the advent of internet transaction can be also compared to the time when the transaction used to take place simply by telephones and fax involving more than one jurisdiction. The New Media, per His Honour, is as applicable as Old Media which has always been used.

Mr. Anand relied upon the ruling of Division Bench in Banyan tree Holding. In that case, the DB held that if a Defendant, through its website, targeting people of a particular jurisdiction then the Court in that jurisdiction can entertain a civil action. However, His Honour Sanghi categorically pointed out that the situation at hand was not the Defendant’s site but of WWE’s. Hence, the reliance was of no consequence.

Finally, per His Honour in paragraph 30: -

When it is clear to me that this Court has no territorial jurisdiction even in the face of the plaintiffs own averments in the plaint, I am not inclined to issue summons to the defendant. The Court is obliged to return the plaint under Order 7 Rule 10 CPC, once it becomes clear that it has no jurisdiction, to be presented to the Court in which the suit should have been instituted.

Territorial jurisdiction is always the most simple aspect in a civil action for intellectual property right. However, it is, at the same time, most contentious point of determination and takes up most of the judicial time of Delhi High Court.

Lets see if WWE challenges the order or files the action in Mumbai, where Defendants are situated.

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Full Text of Court Fee Ruling. Delhi High Court Concurs With My Blog.

Delhi High Court today has passed the verdict in the writ petitions challenging the Amendments to the Court Fee applicable in Delhi.

The Full text of the judgement can be accessed here: -

Court Fee Ruling DKMahant 09Oct13

My friends at LegallyIndia.com have also covered the news item here.

My own earlier post, heavily criticising the perverse and illogical amendments about the portion specifically to the intellectual property actions is available here.

I specifically put across the question that what is the rationale for allowing cash rich companies to file a civil action for intellectual property for a fixed fee of Rs. 5,000 whereas a common man had to arrange not less than Rs. 80,000 before approaching the High Court for a civil action.

I am most content to note that their Honours sitting in the Division Bench (Gita Mittal & J. R. Midha) (DB) have devoted an entire section of the judgement to this perversity by the Delhi Government.

More specifically, DB notes that Delhi Government has not been able to advance any reasoning for this treatment. In specific words of the DB in paragraph 506 of the judgement: -

No object for such magnanimity is disclosed for such favoured treatment to these classes of litigation.

The DB further echoed sentiments of my blog in paragraph 507 in following words: -

The parties to this litigation are largely economic giants. They are certainly not the economically deprived whose access to justice was or would be impeded by court fee levy.

The DB, in para 509 holds that such under charging of the court fees is an arbitrary exercise and prescription without any basis.

Let us see what happens in the Supreme Court. I still need to study the entire ruling. However, with respect to the intellectual property actions, I am glad DB agreed with me that the litigants were misusing the Court Fee provisions.

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Delhi Gangrape Trial: Full Text Of Conviction & Sentencing Judgement

Here is the file for everyone to access to read the verdict which His Honour Yogesh Khanna, Additional Sessions Judge, Saket Court has passed giving death penalty to all the accused in the December gangrape trial.

Sentencing 13Sep13

And here is the link of the judgement dated September 10th, 2013 convicting the accused. THIS is quite a large file.

Conviction

Though I shall upload my comments later, do go through the judgement.

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Irretrievable Breakdown of Marriage: New Ground of Divorce.

Law Minister recently moved in the Upper House of Parliament Bill to amend the Hindu Marriage Act. Marriage Laws (Amendment) Bill 2010 in provision relating to divorce. Two major amendments are as follows:

  1. In Section 13B which provides for divorce by mutual consent in two consecutive motions, the requirement is that a couple, staying separately for at least one year, can file the first motion before District Judge and the second motion is 6 moths thereafter but before 18 months from the first motion. Since many a times one of the parties do not support the second motion, the remaining party has to then fight the battle through contested divorce than mutual. In the proposed amendment, the second motion has been done away with. Meaning thereby, divorce by mutual consent can be possible only by moving the first petition subject to the Judge finding everything OK.
  2. Second amendment is insertion of Section 13C incorporating irretrievable breakdown of marriage as a new ground for divorce. This clause is missing in the Act so far. The newly inserted provision though has a multi tier process for a District Judge to go through before declaring the wedding as broken down irretrievably.

Furthermore, the wife, in such a petition of the husband, can challenge it on the ground of financial hardship for herself, and of children if any. The District Judge has a discretion to dismiss the petition of the husband then or make sure that the husband makes arrangement for the wife, and children if any.

Logic of including such alimony apart, biggest worry I find in this newly inserted ground is that a couple need to have lived separately for at least three years before approaching the District Judge for a decree of divorce.

Imagine a situation where a guy is 27 years of age at the time of marriage. After 2 years, marriage seems to have broken down irretrievably.

Age is now 29.

Couple have to live separately for the next three years. At 32, he approaches the Court for a decree of divorce. Now if the wife wants to contest the matter, the Judge will take Her own time and allowing or rejecting husband’s petition. Add couple of years. At 35 divorce is final, guy wanted the divorce at 29. At 35, his chances of settling down are poor. Same maths goes for the wife as well.

Lets see how the law finally turns out at the ground level. Times of India reports that the law is women friendly and wife shall get a share in the property of the husband. Such reporting, though which required a lot of research, itself is sufficient to make Govt realize that the law should be seen as non partisan. Already matrimonial laws are so skewed in favour of females that it is a constant risk of property and of personal liberty of the husband and his family who get dragged into uncalled for litigation and harassment more often than not.

Though my reading of the Bill does not concur with the Times headline. Anyway, I do read The Hindu since I was a kid. That said, the Bill talks about making financial arrangement for the wife and the kids, if there is any. The so called reference to share in husband’s property is something I could not find and would request Times only to assist me.

Through this post, I’m not advising that couple should start getting divorces at the drop of a hat. But when two adults decide they cannot live with each other, why to present a situation before them which makes it worse than ever for them to seek a remedy?

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