Law of Advocacy

PROFESSION OF LAW IS NOT TRADE, IT IS A PUBLIC FUNCTION: Advocacy is a calling to some higher satisfaction than a commercial gain. It requires a higher degree of autonomy that lawyers experience from external controls other than those imposed by self-regulation.

Advocates to be the only recognized class of persons entitled to practice law in India and every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Advocates  Act extends. In Supreme Court only an Advocate-on-Record is entitled to file an appearance or act for a party in the Court, no advocate other than an Advocate-on-Record can appear and plead in any matter unless he is instructed by an Advocate on- Record.

No person having an Advocate-on-Record shall be heard in person except by Special Leave of the Court.  The Chief Justice and the Judges may, with the consent of an advocate, designate him as Senior Advocate, if in their opinion, by virtue of his ability, standing at the Bar or special knowledge or experience in law, he deserves such a distinction. A Senior Advocate cannot file Vakalatnama or act in any Court or Tribunal in India. He cannot appear, without an Advocate-on-Record, in the Supreme Court, and without a junior in any other Court or Tribunal in India. He cannot accept any brief or instructions directly from the client, to appear in any Court or Tribunal in India. He cannot accept instructions to draw pleadings or affidavits. He cannot advise on evidence or do any drafting work, though he is entitled to settle any matter in consultation with a junior( ch 2 practice & procedure of  Supreme Court)

  • The attorney’s first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter. Clients are also called “wards” of the court in regard to their relationship with their attorneys.
  • Advocacy is the means by which a Barrister or an Advocate puts their client’s case to the Court, and may be both written and oral. It is a specialist skill, the quality and excellence of which distinguishes the Bar from other providers of Legal Services. It is in the interests of the public, the court and the profession that barristers and Advocates  present their cases to the highest possible standards

“Advocate” means an advocate entered in any roll( state bar council after completion of LLB and citizen of India completed the age of 21 years with clean morality u/s 24A ) under the provisions of Advocates Act 1961. There shall be two classes of advocates, namely, senior advocates and other advocates. (2) An advocate may, with his consent, be designated as a senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability 1 [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction. (3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe( S 16 OF THE ADVOCATES ACT). State Bar Councils to maintain roll of advocates(S 17).The Attorney-General of India shall have pre-audience over all other advocates(S 23)

Legal Practice in India is governed by the Advocates Act 1961 and Bar Council of India being a creature of the Advocates Act, acts as Statutory regulator responsible for the issuance of Licence, regulation of Practice and disciplinary proceeding against an Advocate amongst others.

Bar Council of India has been empowered under section 49 of the Advocates Act to make rules. In exercise of those powers Bar Council of India made rules which were published in the official gazette on 6 September 1975.

Law Commission of India by its 226 Report recommended certain changes in the present Advocates Act. Supreme Court by  Mahipal Singh Rana vs. State of Uttar Prades [AIR 2016 SC 3302] recommended for overhaul of Advocates Act so that public can have some faith restored that bar council or a new regulatory body can do the job of punishing violations of standards of conduct by advocates.

  •  Supreme Court observed in Mahipal Singh Rana vs State Of U.P on 5 July, 2016
    Corum: Anil R. Dave, Kurian Joseph, Adarsh Kumar Goel  as below:-

We may also refer to certain articles on the subject. In “Raising the Bar for the Legal Profession” published in the Hindu newspaper dated 15th September, 2012, Dr. N.R.Madhava Menon wrote:

“……..Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 percent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.

In Bar Council of Maharashtra versus M.V. Dabholkar following observations have been made about the vital role of the lawyer in the administration of justice.

 Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon (his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation(para 32)

  • Allahabad High Court in Prayag Das vs Civil Judge, Bulandshahr And Ors. on 14 March, 1973 Equivalent citations: AIR 1974 All 133 observed:-

    It is correct that the High Court does not possess the power to take away an Advocate’s right to practice in courts. That power can be exercised only by the Bar Council which may also frame rules under Section 49(ab) of the Advocates Act. But in our opinion, the High Court has the power to regulate the appearance of Advocates in Courts. The right to practice and the right to appear in courts are not synonymous. An Advocate may carry on chamber practice or even practice in court is various other ways, e.g., drafting and filing of pleadings and Vakalatnama for performing those acts. For that purpose, his physical appearance in court may not at all be necessary. For the purpose of regulating his appearance in court the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of Advocates and proceedings inside the courts.

  • The Law Commission has  produced  The Advocates (Amendment) Bill, 2017, thereby inter alia recommended :

Expanded definition advocate :  “advocate” means an advocate entered in any roll under the provisions of this Act and includes an advocate carrying on practice in law with a law firm, by whatever name called, and a foreign lawyer registered under any law in a country outside India and recognised by the Bar Council of India.

Definition of misconduct elaborated :‘misconduct’ includes-an act of an advocate whose conduct is found to be in breach of or non- observance of the standard of professional conduct or etiquette required to be observed by the advocate; or forbidden act; or an unlawful behaviour ;or disgraceful and dishonourable conduct; or neglect; or not working diligently and criminal breach of trust;or any of his conduct incurring disqualification under section 24A

New definition and recognition :‘Law Firm’ means a firm, formed and registered under the Indian Partnership Act, 1932; or under the Limited Liability Partnership Act, 2008; or a private or public limited company incorporated under the Companies Act, 2013 comprising of an advocate or advocates for carrying on practice in law and includes law firms formed and registered under any other law outside India.

Training: The Law Commission has proposed one-year apprenticeship for a new candidate and after enrollment Continuing Legal Education for practicing lawyers, irrespective of the experience.

Ban on Strike and Cease Work :“No association of advocates or any member of the association or any advocate, either individually or collectively, shall, give a call for boycott or abstinence from courts’ work or boycott or abstain from courts’ work or cause obstruction in any form in court’s functioning or in court premises”

Suffering litigants shall be compensated by the lawyer: If any person suffers loss due to the misconduct of the advocate or for his participation in strike or otherwise, then, such person may make a claim for compensation against the advocate in the appropriate forum established under any law for the time being in force.

The non-payment of fees, either in full or part, by a person to his advocate, shall not be a defence available for the advocate against whom such claim for compensation is made.


APPEARANCE BY ADVOCATES AND CONTEMPT OF COURT

A lawyer’s duty to the court is a fundamental obligation that defines a lawyer’s role within the adversarial system. A lawyer’s duty to the court relates to his or her status as a professional who serves, not only clients, but also the public interest. Historically, a professional was distinguished from a tradesperson by a public declaration – demonstrated today by the oath taken at admission to the Bar – to serve others and devote their intellect and efforts to the public good.

Harish Uppal vs. Union of India and Another, (2003) 2 SCC 45, examined the question whether lawyers have a right to strike and/or give a call for boycott of Court(s). In paragraph 34 of the decision, the Court made highly illuminating observations in regard to lawyers’ right to appear before the Court and sounded the note of caution for the lawyers. Para 34 of the decision need to be reproduced below:

“34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practice in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for his clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of a client event though his appearance inside the court is not permitted.

Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is genus of which the right to appeal and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practice law. While the Bar Council can exercise control over the latter, the courts are in control of the former. The distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empower the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as to persons practicing before this Court. Similarly, Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to practice in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a Court to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in a court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by the Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 Constitution of Indian on the other.”[ Supreme Court of India R.K.Anand vs Registrar,Delhi High Court on 29 July, 2009].


Duties Of  Lawyers

Lawyers typically do the following:

  • Advise and represent clients in courts, before government agencies, and in private legal matters
  • Communicate with their clients, colleagues, judges and others involved in the case
  • Conduct research and analysis of legal problems
  • Interpret laws, rulings, and regulations for individuals and businesses
  • Present facts in writing and verbally to their clients or others and argue on behalf of their clients
  • Prepare and file legal documents, such as lawsuits, appeals, wills, contracts, and deeds

Lawyers, also called attorneys, act as both advocates and advisors.

As advocates, they represent one of the parties in criminal or civil trials by presenting evidence and arguing in support of their client.

As advisors, lawyers counsel their clients about their legal rights and obligations and suggest courses of action in business and personal matters. All attorneys research the intent of laws and judicial decisions and apply the laws to the specific circumstances that their clients face.

Lawyers may have different titles and different duties, depending on where they work.

While working in a law firm, lawyers, sometimes called associates, perform legal work for individuals or businesses. Some attorneys who work at law firms, such as criminal law attorneys or defense attorneys, represent and defend the accused.

Attorneys also work for federal, state, and local governments. Prosecutors typically work for the government to file a lawsuit, or charge, against an individual or corporation accused of violating the law. Some may also work as public defense attorneys and represent individuals who could not afford to hire their own private attorney.

Others may work as government counsels for administrative bodies of government and executive or legislative branches. They write and interpret laws and regulations and set up procedures to enforce them. Government counsels also write legal reviews on agencies’ decisions. They argue civil and criminal cases on behalf of the government.

Corporate counsels, also called in-house counsels, are lawyers who work for corporations. They advise a corporation’s executives about legal issues related to the corporation’s business activities. These issues may involve patents, government regulations, contracts with other companies, property interests, taxes, or collective-bargaining agreements with unions.

Legal aid lawyers work for private, nonprofit organizations that work to help disadvantaged people. They generally handle civil cases, such as those about leases, job discrimination, and wage disputes, rather than criminal cases.

In addition to working in different industries, lawyers often specialize in a particular area. The following are just some examples of the different types of lawyers that specialize in specific legal areas:

Environmental lawyers deal with issues and regulations that are related to the environment. They may represent advocacy groups, waste disposal companies, and government agencies to make sure they comply with the relevant laws.

Tax lawyers handle a variety of tax-related issues for individuals and corporations. Tax lawyers may help clients navigate complex tax regulations, so that they pay the appropriate tax on items such as income, profits, or property. For example, they may advise a corporation on how much tax it needs to pay from profits made in different states to comply with the Internal Revenue Service (IRS) rules.

Intellectual property lawyers deal with the laws related to inventions, patents, trademarks, and creative works, such as music, books, and movies. An intellectual property lawyer may advise a client about whether it is okay to use published material in the client’s forthcoming book.

Family lawyers handle a variety of legal issues that pertain to the family. They may advise clients regarding divorce, child custody, and adoption proceedings.

Securities lawyers work on legal issues arising from the buying and selling of stocks, ensuring that all disclosure requirements are met. They may advise corporations that are interested in listing in the stock exchange through an initial public offering (IPO) or in buying shares in another corporation.

Litigation lawyers handle all lawsuits and disputes between parties. These could be disputes over contracts, personal injuries, or real estate and property. Litigation lawyers may specialize in a certain area, such as personal injury law, or maybe a general lawyer for all types of disputes and lawsuits.

Some attorneys become teachers in law schools.


ROLE OF A LAWYER AS OBSERVED BY Supreme Court of India in O.P.Sharma & Ors vs High Court Of Punjab & Haryana on 9 May, 2011(extract)

The role and status of lawyers at the beginning of Sovereign and Democratic India is accounted as extremely vital in deciding that the Nation’s administration was to be governed by the Rule of Law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. These include the names of galaxy of lawyers like Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Bhulabhai Desai, C. Rajagopalachari, Dr. Rajendra Prasad and Dr. B.R. Ambedkar, to name a few. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the Court in the administration of justice.

13) Section I of Chapter-II, Part VI titled “Standards of Professional Conduct and Etiquette” of the Bar Council of India Rules specifies the duties of an advocate towards the Court which reads as under:

“Section I – Duty to the Court

1. An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.

2. An advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.

3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.

4. An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the advocates himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth-piece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court.

5. An advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable.

6. An advocate shall not enter appearance, act, plead or practice in any way before a court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

For the purposes of this rule, Court shall mean a Court, Bench or Tribunal in which above mentioned relation of the Advocate is a Judge, Member or the Presiding Officer.

7. An advocate shall not wear bands or gown in public places other than in courts except on such ceremonial occasions and at such places as the Bar Council of India or the court may prescribe.

8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation, if he is a member of the Executive Committee of such organisation or institution or society or corporation. “Executive Committee “, by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation.

Provided that this rule shall not apply to such a member appearing as “amicus curiae” or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.

9. An Advocate should not act or plead in any matter in which he is himself peculiarly interested.

Illustration I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt.

II. He should not accept a brief from a company of which he is Director.

10. An advocate shall not stand as a surety, or certify the soundness of a surety for his client required for the purpose of any legal proceedings.”

Again

Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection or other fundamental human rights, freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practicing the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. But they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial processes. Any adverse opinion about the judiciary should only be expressed in a detached manner and respectful language. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary [vide D.C. Saxena vs. The Hon’ble Chief Justice of India, (1996) 5 SCC 216].

A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalize the Court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary. [vide M.Y. Shareef & Anr. Vs. Hon’ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757  In Lalit Mohan Das vs. Advocate General, Orissa & Another, AIR 1957 SC 250, this Court observed as under:

“A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalizing the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; if brought into disrepute the whole administration of justice.”

Advocates Role and Ethical Standards:

An advocate’s duty is as important as that of a Judge. Advocates have a large responsibility towards society. A client’s relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with the utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and the justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system. An advocate should be dignified in his dealings to the Court, to his fellow lawyers and to the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. An advocate has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.

As a rule, an Advocate being a member of the legal profession has a social duty to show the people a beacon of light by his conduct and actions rather than being adamant on an unwarranted and uncalled for the issue.[Supreme Court of India O.P.Sharma & Ors vs High Court Of Punjab & Haryana, para 30, 31]

THREE KEY DUTIES OF A LAWYER WHICH IS ESSENTIAL FOR TRUE ADVOCACY :

(A) to use tactics that are legal, honest and respectful to courts and tribunals;

  • A lawyer cannot knowingly offer or rely on false evidence or misstate evidence.
  • Not to knowingly mislead the court on evidentiary issues, a lawyer cannot misstate the law. Lawyers are under a positive duty to make full disclosure of all the binding authorities relevant to a case.

(B) to act with integrity and professionalism while maintaining his or her overarching responsibility to ensure civil conduct;

  • Lawyers are officers of the court and as such, must act with integrity and professionalism while maintaining their overarching responsibility to ensure civil conduct.  (1) avoiding sharp practice; (2) having respect for the court(A lawyer should not abuse the court process. A lawyer should not unreasonably raise or defend an action for which there is no legal justification, similarly, a lawyer should not waste time on irrelevancies, even if prompted to do so by the client and should not make frivolous and vexatious objections. In addition, requests for adjournments should not be taken lightly and (3) maintaining civility in dealing with others. A lawyer’s duty to be civil to opposing counsel, includes the following conduct: a) the duty not to engage in acrimonious exchanges with opposing counsel or otherwise engage in undignified or discourteous conduct; b) the duty to be honest and truthful with opposing counsel; and c) to be accommodating and flexible regarding scheduling and routine matters. A lawyer also has a duty to maintain an honest relationship with opposing counsel.

and

(C) to educate clients about the court processes in the interest of promoting the public’s confidence in the administration of justice. Below is a discussion of these three duties.

These rules have been placed thereunder. Some of the basic and crucial duties are summed up below:-

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT-Chapter II, Part VI of the BCI RulesU/S  49(1) (c) of the Advocates Act, 1961

•    Bound to accept briefs.
•    Not appear in matters where he himself is a witness.
•    Full disclosure to the client.
•    Uphold the interest of the client.
•    Not suppress material or evidence.
•    Not disclose the communications between the client and himself.
•    An advocate should not be a party to stir up or instigate litigation.
•    An advocate should not act on the instructions of any person other than his client or the client’s authorized agent.
•    Not charge depending on the success of matters.
•    Not bid, purchase or transfer property arising from legal proceeding.
•    Not adjust fees against personal liability.
•    An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
•    Keep proper accounts.
•    Adjust fees after termination of proceedings.
•    Not appear for opposite parties.

The Bar is independent of the State and all its influences. It is an institutional safeguard lying between the ordinary citizen and the power of the government. The right to counsel, which as mentioned, is inter-related with the law of privilege, depends for its efficacy on independence.

In the United States, the duty to the client is generally seen as the lawyer’s primary duty, while in Britain the duty to the court is preeminent. In our  Indian system, the two duties are given equal prominence. We follow the Buddhist Middle Path.


What Judges Can Expect from a Counsel

  • Judges are entitled to expect that counsel will treat the court with heartfelt manner, fairness and courtesy.
  • Judges are entitled to expect that a counsel is by training and experience competent to handle the matter before the court.
  •  Notwithstanding that the parties are engaged in an adversarial process, judges are entitled to expect that counsel will assist the court in doing justice to the case. Judges are entitled to expect counsel to assist in maintaining the dignity and decorum of the courtroom and their profession and avoid disorder and disruption. Judges are entitled to expect counsel to be punctual, appropriately attired and adequately prepared in all matters before the courts.
  •  Judges may expect counsel to properly instruct their clients as to behaviour in the courtroom, and any court-related proceedings. Counsel are expected to take what steps are necessary to dissuade clients and witnesses from causing disorder or disruption in the courtroom.
  •  Judges are entitled to expect that counsel, in their public statements, will not engage in personal attacks on the judiciary or unfairly criticize judicial decisions.
  • A lawyer, well equipped in the art of advocacy, would, by intuition as also from experience, realise that there is no purpose served in intimidating a judicial officer. But, often righteous indignation and flaring up of tempers, at the heat of a moment; results in such rich experience, being shrouded by emotions. That is human nature, but a judicial officer entrusted with the process of adjudication cannot afford to succumb to such coarse, baser instincts. A judicial officer should always realise that a lawyer’s indiscretion should not influence the adjudication process, thus resulting in the litigant’s claim being negatived; by reason of such bias alone. [ KERALA HIGH COURT in VINOD KUMAR  Vs. A. SASI [(2014) 4 KHC 631]

The Lawyer as Witness

The lawyer who appears as an advocate should not submit the lawyer’s own affidavit to or testify before a tribunal save as permitted by local rule or practice, or as to purely formal or uncontroverted matters. This also applies to the lawyer’s partners and associates; generally speaking, they should not testify in such proceedings except as to merely formal matters. The lawyer should not express personal opinions or beliefs, or assert as fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer must not in effect become an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to someone else. Similarly, the lawyer who was a witness in the proceedings should not appear as an advocate in any appeal from the decision in those proceedings. There are no restrictions upon the advocate’s right to cross-examine another lawyer, and the lawyer who does appear as a witness should not expect to receive special treatment by reason of professional status.


Supreme Court Rules on Advocates


 

SPORTS LAW IN INDIA

Contents

  1. Sports Administration Pyramid: European and American Models of Sports Organisation
  2. Regulation of Labour and Social Protection of Sportsmen and Coaches
  3. Organisation of Official Sports Events
  4. Dispute Resolution in Sports
  5. Disciplinary Disputes in Sports
  6. Disputes Resulting from the Conduct of Spectators at Sports Events
  7. Financing and Taxation of Sports income
  8. Intellectual Property Rights in Sport

Introduction  to Indian Sports Law

Sports law in India is a collection of some Court Cases and Policy decisions under the auspices Government of India. India never enacted a statute in this field like some countries to be mentioned below. What we called Sport`s law is a borrowed term in Indian legal field, as we borrowed so many legal ideas from abroad.

Subject to 7 th schedule, state list, entry 33 of the Indian Constitution, enacting of sports Law is subject matter of state( federal). No state has yet enacted any law governing sports.

THEREFORE THERE EXISTS NO  SUBSTANTIVE SPORTS LAW IN INDIA COMPARING WITH The Sports Development Act 1997 (ACT 576) OF MALAYSIA OR  The Amateur Sports Act of 1978 (36 U.S.C.A. § 391) OF USA.

Development

 “Sports bodies have to have a degree of autonomy with the Government playing the role of an effective regulator” D O S S I E R to IOA BY the Govt of India dated  16 T June  2010.


Court Cases

JUDICIAL REVIEW UNDER WRIT JURISDICTION

BCCI is a Society and was registered as such on 28.11.1940 under the Tamil Nadu Societies Registration Act, 1860. BCCI is ‘State’ under Article 12 of the Indian constitution by Zee Telefilms Ltd. & Anr vs Union Of India & Ors on 2 February, 2005 LINK

  • The BCCI has a monopoly over organized cricket in India. Every youngster, maybe an aspiring Rahul Dravid or an Irfan Pathan, who dreams to play cricket for his State or zone or India cannot do so without the permission and approval of the BCCI. We must not forget that cricket, is no longer what it used to be. It is not just a sport which people dressed in white flannels and rolled up shirt-sleeves enjoyed on lazy summer’s afternoons in England between sips of tea and munches of scones. It is no longer the reserve of the nawabs, the maharajas, the brown sahebs and the rich who had the time and the inclination. It now permeates all levels of society. To many it presents itself as an opportunity to a better livelihood. Cases abound in India, where cricket has brought financial succour to persons and their families who were otherwise doomed to lead lives enslaved in poverty. Cricket is regarded as a profession, an avocation. Many in India, play cricket not just for the love of the game but for to heir own survival. The BCCI performs the vital public duty and function of providing this opportunity. It has an elaborate network and is a massive organisation controlling every aspect of cricket in India. Dr Singhvi, the learned senior counsel who appealed on behalf of BCCI, submitted that no part of the capital of BCCI is held by the Government; no financial assistance of the State is enjoyed by it; the Government does not exercise any control over it; BCCI is a non-statutory body; no public duty is imposed upon it by statute; it is a society, nothing but a ”private club” and as such issuance of a writ against it would be completely beyond the scope of article 226 of the Constitution of India. This argument is untenable in the light of the discussion above.( RAHUL MEHERA VS UOI, DELHI HIGH COURT 2004) .  If a public duty or public function is involved, anybody, public or private, qua that duty or function, and limited to that, would be subject to judicial scrutiny under the extraordinary writ jurisdiction of article 226 The BCCI which is the simple repository of everything cricket in India has attained this ”giant” stature through its organisation, skill, the craze for the game in India and last but not the least by the tacit approval of the Government. Its objects are the functions and duties it has arrogated to itself. Many of these are in the nature of public duties and functions. Others may be in the field of private law such as private contracts, internal rules not affecting the public at large etc.,. Therefore, BCCI cannot be said to be beyond the sweep of article 226 in all eventualities for all times to come. That is the certificate that BCCI wants from this court. We are afraid, we cannot grant that. Consequently, this petition cannot be thrown out on the maintainability issue(VIDE RAHUL MEHERA)
  • In Ajay Jadeja VS UOI Delhi High court 2001, it is observed:

    ”When the Government stands by and lets a body like BCCI assume the prerogative of being a sole representative of India for cricket by permitting BCCI to choose the team for India for appearance in events like the World Cup, then it necessarily imbues BCCI with the public functions at least in or far as the selection of the team to represent India and India’s representation in International Cricket fora and regulation of Cricket in India is concerned. Thus the monopoly status of the respondent No. 2 is evident. It is also clear that such monopoly status is indisputably state recognized as evident from the later of Ministry of Culture, Youth Affairs a Sports dated 22nd December 2000 and indeed by acquiescence of the Government, can be considered state conferred. Similarly, the plea of the BCCI that it does not own or lease the stadia is of no consequence as the stadia are owned and leased by its members and it is not disputed that all international matches are played in such stadia. Similarly, membership of BCCI of the International Cricket Conference (ICC) cannot ipso facto imply that it is not amenable to writ jurisdiction. In fact, BCCI represented India on this own showing and depending upon the nature of the action impugned, would be amenable to writ jurisdiction.” We agree. BCCI, like everyone else, is amenable to writ jurisdiction. However, not every action of BCCI would be subject to the scrutiny of judicial review. Only those actions which fall within the ambit of public law would call for any direction, order or writ under article 226. Disputes or acts in the sphere of pure private law having no traces of public law would not be the subject matter of writs, directions or order to be issued under article 226.

  • Indian Hockey Federation (IHF) is an autonomous society registered under the Societies Registration Act, 1860 and has got recognition of Ministry of Youth Affairs & Sports as apex national level sports federation engaged in the promotion of the game of Men’s Hockey in the country.

SPORTS REGULATION 

MINISTRY OF YOUTH AND SPORTS

  • NATIONAL DOPE TESTING LAB( Under Youth Ministry )National Dope Testing Laboratory (NDTL) is responsible for analytical testing of samples and research in the field of dope analysis was registered in 2008. The lab was modernized in 2002 with an aim to get it permanently accredited by International Olympic Commission and WADA.
  • SPORTS AUTHORITY OF INDIA-The Sports Authority of India (SAI), a successor organization of the IXth Asian Games held in New Delhi in 1982, was set up as a Society registered of Societies Act, 1860 in pursuance of the Resolution No. 1-1/83/SAI dated 25th January 1984 of the Department of Sports, Govt. of India with the objective of promotion of Sports and Games as detailed in the Resolution.
  • INDIAN OLYMPIC ASSOCIATION (The IOA is a registered society) , the apex Sports Organization of Olympic Sport in the country is responsible for the Indian contingent’s participation in the Olympic Games, Commonwealth Games, Asian Games(Outdoor-Indoor-Beach) and South Asian Games. Each Olympic and Non-Olympic Sport has a Federation at the National level and are affiliated/recognized to/ by  IOA.
  • Ministry of Youth Affairs & Sports RECOGNISE EVERY YEAR THE NATIONAL  SPORTS FEDERATIONS ATTACHED WITH INDIAN OLYMPIC ASSOCIATIONS LINK
  • INDIAN OLYMPIC ASSOCIATION IS A ‘PUBLIC AUTHORITY UNDER RIGHT TO INFORMATION ACT 2005  VIDE JUDGEMENT Indian Olympic Association vs Veeresh Malik & Ors. BY DELHI HIGH COURT[ 7 January, 2010]
  • National Olympic Committees(NOCS) is to ensure that athletes from their respective nations attend the Olympic Games. Only a NOC is able to select and send teams and competitors for participation in the Olympic Games.
  • In terms of Olympic-Charter, IOA has the exclusive powers for the representation of India at the Olympic Games and at the regional, continental or multi-sports competitions patronized by the IOC. In other words, the main function of IOA is to act as the nodal agency for the participation of Indian sports contingents in various international sports events. Then IOA also claims to be the apex of all National level sports federations; it represents the national face of the IOC. It has the power to affiliate or recognize other domestic sports federations, which in turn can select and sponsor sportsmen to represent the country in games and events. GOVERNMENT OF INDIA ALLOCATION OF BUSINESS RULES 1961, the Indian Olympic Association and National Sports Federations have been specifically listed as an item of Business allocated to Ministry of Youth Affairs & Sports. For these reasons, it is contended that the IOA is a public authority.

NATIONAL SPORTS POLICY 2001

In terms of the National Sports Policy, 2001, the Central Government, in conjunction with the State Government, the Olympic Association (IOA) and the National Sports Federation will concertedly pursue the twin objectives of “Broad-basing” of Sports and “Achieving Excellence in Sports at the National and International levels.

National Sports Development Code 2011

The various orders/ circulars issued by the Government from time to time are amalgamated under this National Sports Development Code of India, 2011.

SPORTS ARBITRATION 

COURT OF ARBITRATION FOR SPORTS AS A DISPUTE RESOLUTION BODY CAS &TAS

The CAS Statute of 1984 was accompanied by a set of procedural Regulations. Both were modified slightly in 1990. Under these rules, the CAS was composed of 60 members appointed by the IOC, the International Federations (IF), the National Olympic Committees (NOC) and the IOC President (15 members each).

OBJECT: With the aim of facilitating the resolution of disputes in the field of sport, an arbitration institution entitled the “Court of Arbitration for Sport” (hereinafter the CAS) has been created, and that, with the aim of ensuring the protection of the rights of the parties before the CAS and the absolute independence of this institution, the parties have decided by mutual agreement to create a Foundation for international sports-related arbitration, called the “International Council of Arbitration for Sport” (hereinafter the ICAS), under the aegis of which the CAS will henceforth be placed.

UEFA Anti-Doping: UEFA is recognised as one of the world’s leading team-sport organisations in the fight against doping, and the organisation continually strives to ensure that its education and testing programmes remain at the cutting edge of science and recognised good practice in all areas of prevention and detection.

SPORTS CONTRACTS: A TYPICAL SPORTS CONTRACT COULD BE AS BELOW:

  1. Professional services contracts – SALARY, INSURANCE, DURATION, NUMBER OF MATCHES AND OTHER FINANCIAL INITIATIVE( INDIAN CONTRACT LAW APPLICABLE)
  2. Endorsement contracts: IT IS GENERALLY SPONSORSHIP CONTRACT OR ADVERTISEMENT CONTRACT
  3.  Appearance contracts: GUEST APPEARANCE BY A SPORTS PERSON FOR THE ORGANISER IN PUBLIC FUNCTION.

INDIAN ARBITRATION ACT 1996

THE SEXUAL HARASSMENT OF SPORTS WOMEN: Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

AN IDEAL INDIAN SPORTS LAW MAY CONSISTS OF:

A.SPORTS POLICIES AND SPORTS  GOVERNANCE

B.THE LEGAL REGULATION OF SPORTS

C. SPORTS PARTICIPATION

D. SPORTS AND CONTRACT OF EMPLOYMENT

E.Protection of Sports person from Physical Injury

F. Controlling of Spots Violence

F. Prohibition of drug use

G. Enforcement of Intellectual Property Law in Sports

H. Sports franchise and player auctioning

I. Maintenance of Sports Stadium

J. Auction and mutual transfer of players.

k. Betting in sports etc………

Connected Links

National Sports University


News: 

List of substances and methods banned for use in sports  in Russia updated

5 May 2019

The list of substances and methods prohibited from use in sports, to serve as a reference for articles 230.1 and 230.1 of the Criminal Code, is brought into correspondence with the International Standard of the World Anti-Doping Agency (WADA), entitled the 2019 Prohibited List, including substances and methods banned during the in-competition and out-of-competition period.

Federal Law No.392-F8 of 22 November 2016 made it a criminal offence for coaches, sports medicine specialists and other sports and fitness specialists to encourage athletes by to use substances and (or) methods prohibited from use in sports (Article 2301 of the Criminal Code), or to apply substances and methods prohibited from use in sports to athletes regardless of his or her consent, except in cases when, pursuant to Russian legislation, this does not violate the anti-doping rules (Article 2302 of the Criminal Code).

Government Executive Order No. 339 of 28 March 2017 approved a list of substances and methods prohibited from use in sports, to serve as a reference for Articles 2301 and 2302 of the Criminal Code (hereinafter – the “List”).

Every year, the World Anti-Doping Agency adopts a list of substances and methods prohibited from use in sports. In 2019, WADA’s international standard, the 2019 Prohibited List, came into effect.

The signed resolution brings the List into correspondence with the 2019 Prohibited List, including substances and methods banned during the in-competition and out-of-competition period.


DEFENCE MANAGEMENT IN CRIMINAL TRIAL

a. Every judgment must mandatorily have a preface showing the name of the parties and an appendix showing the list of Prosecutions Witnesses, Prosecution Exhibits, Defence Witnesses, Defence Exhibits, Court witnesses, Court Exhibits and Material Objects.

b. Witnesses/documents/material objects be assigned specific nomenclature and numbers.

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CODE OF CRIMINAL PROCEDURE 1973   @  PROCEDURAL SAFE GUARDS

  • Mansukhlal Vithaldas Chauhan v. State of Gujarat, it has been held by this Court as under: “. Since the validity of “sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.” Sanction is void on the ground of non- application of mind and is not a legal and valid sanction.
  • X was a chargesheet witness although his statement under Section 161 CrPC was never recorded and thus, the accused persons had been naturally deprived of an opportunity to effectively cross-examine the witness and thereby they were very much prejudiced
  • in the case of Ranjit Singh v. State of Punjab,which case is relied upon in the case of Ajit Singh(supra) this Court observed as under :  “Before adverting to the facts to have been narrated by the accused as recorded in the two confessional statements, it deserves to be noticed that in case the recording officer of the confessional statement on administering the statutory warning to the accused forms a belief that the accused should be granted some time to think over the matter, it becomes obligatory on him to grant reasonable time for the purpose to the accused. In other words, the cooling time that is granted has to be reasonable. What time should be granted would of course depend upon the facts and circumstances of each case. At the same time, however, when the time to think over is granted that cannot be a mere farce for the sake of granting time.

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THE INDIAN EVIDENCE ACT @ PROPAGATION OF DEFENCE EVIDENCE – DEMOLITION OF POLICE EVIDENCE
  • Defence Witnesses to be given same weightage as prosecution witnesses. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.Munshi Prasad v. State of Bihar, I.C.D.S. Ltd. v. Beena Shabeer & Anr. and State of Uttar Pradesh v. Babu Ram
  • Delay in recording statements of accomplices and confessional statements of the accused persons-the case of State of Andhra Pradesh v. S.Swarnalatha & Ors., wherein even 26 days delay in recording statements of prosecution witnesses was not allowed by this Court , Jagjit Singh @ Jagga v. State of Punjab.
  • Suppression of material witness draws an adverse inference against the prosecution-Tulsiram Kanu v. The State, Ram Prasad & Ors. v. State of U.P. and State of U.P. v. Punni & Ors.
  • Failure of prosecution to establish a nexus between the accused persons and the crime
  • Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, wherein this(SC) Court had further stated with regard to the combined effect of Sections 133 and 114, Illustration (b) of the Indian Evidence Act, 1872 and held that corroboration must connect the accused persons with the crime.
  • Sarwan Singh v. State of Pubjab, wherein this Court has laid down the legal principle that the courts are naturally reluctant to act on such tainted evidence unless it is corroborated and that independent corroboration should support the main story disclosed by the approver apart from a finding that the approver is a reliable witness. The accomplice evidence should satisfy a double test, i.e. he is a reliable witness and that there is sufficient corroboration by other evidence to his statement. This test is special to the case of weak or tainted evidence like that of the approver. Ravinder Singh v. State of Haryana, Abdul Sattar v. U.T. Chandigarh, Narayan Chetanram Chaudhary v. State of Maharashtra, Sheshanna Bhumanna Yadav v. State of Maharashtra and Bhuboni Sahu v. R
  • Alternative stories put forth by the prosecution-Even the prosecution was not certain as to which of the three versions was true. It was submitted that therefore, in the presence of these major discrepancies in the prosecution story, and the non reliability of the confessional statements of the accused persons, they were entitled to acquittal.
  • Vijay Kumar Arora v. State(Govt. of NCT of Delhi) , wherein the Court held as under: “ In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicion do not take place of legal proof.In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them, on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies.”
  •  The evidence of the accomplices cannot be used to corroborate the confessional statements of the accused persons in the absence of independent evidence and the delay of more than one year in recording their statements causes us to disregard their evidence.
  • Aloke Nath Dutta & Ors. V. State of West Bengal, this Court held as under: “ A retracted confession of a co-accused cannot be relied upon for the purpose of finding corroboration for the retracted confession of an accused.

DEATH PENALTY IN INDIA

INDIAN SUPREME COURT – A LONG STANDING EXPERIENCE WITH “AFTER DUE DELIBERATION OF PROCESS”

  • The Constitutional validity of death penalty was tested in Bachan Singh v. State of Punjab.
  • The Bachan Singh principle of the ‘rarest of rare cases’ came up for consideration and elaboration in Machhi Singh v. State of Punjab.

1. NIRBHYA GANG RAPE CASE Death penalty awarded categorizing it  “rarest of rare cases”.

the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment

2. DEATH PENALTY COMMUTED ( 25.04.2013)Shankar Kisanrao Khade VS State of Maharashtra, the court prepared a balance sheet  pertaining to the capital punishment. Justice Madan B. Lokur (concurring) while elaborately analysing the question of imposing death penalty in specific facts and circumstances of that particular case, concerning rape and murder of a minor, discussed the sentencing policy of India, with special reference to execution of the sentences imposed by the Judiciary. OBSERVED-It does prima facie appear that two important organs of the State that is the Judiciary and the Executive are treating the life of convicts convicted of an offence punishable with death with different standards. While the standard applied by the Judiciary is that of the rarest of rare principle (however subjective or judge-centric it may be in its application) the standard applied by the Executive in granting commutation is not known. Therefore, it could happen (and might well have happened) that in a given case the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the Executive has taken a diametrically opposite opinion and has commuted the death penalty. This may also need to be considered by the Law Commission of India.

3.Travesty Of Justice @Yakub Abdul Razak Memon Versus State of Maharashtra and Anr.(30.07.2017) -principle stated in Shatrughan Chauhan (supra), the petitioner is entitled to claim commutation of death sentence to life imprisonment on the basis of supervening circumstances. The question that emerges for consideration is whether on the ground of not granting of 14 days’ time from the date of receipt of communication of rejection of the mercy petition, should the warrant which is going to be executed at 7.00 a.m. on 30.07.2015 be stayed. Mr. Mukul Rohatgi, learned Attorney General for India, appearing for the respondent, would submit that the mercy petition is considered by the President of India in exercise of his power under Article 72 of the Constitution of India and when he has rejected the mercy petition after due consideration of all the relevant facts on earlier occasion, if such kind of repetitive mercy petitions are allowed to be submitted and further challenge to the rejection of the same is permitted, the danger of the concept of ad infinitum would enter into the field. HELD-In our considered opinion, to grant him further time to challenge the rejection of the second mercy petition for which we have to stay the execution of the death warrant dated 30.04.2015 would be nothing but travesty of justice.

  • CHRONOLOGY -The two-Judge Bench of this Court which had decided the appeal on 21.03.2013. The review petition was dismissed by circulation on 30.07.2013 by the two-Judge Bench of this Court which had decided the appeal. A mercy petition(first) was submitted by Suleman, brother of the petitioner, on 06.08.2013 which stood rejected on 11.04.2014 by the President of India and that was communicated to the petitioner on 26.05.2014. The Constitution Bench in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and Ors. dealing with the  rule(reviewing) opined that in death cases, the matter should be heard by a three-Judge Bench and the review petition should be heard in the open court by giving maximum time limit of 30 minutes to the convict. Accordingly, his review petition was heard by a three-Judge Bench in the open Court. After rejection of the said review petition on 09.04.2015, he filed a curative petition on 22.05.2015 which also got dismissed on 21.07.2015. After rejection of the curative petition on the 21.07.2015, the petitioner submitted a mercy petition to the Governor, Maharashtra which was received on22.07.2015. He also submitted another mercy petition to the President of India which was received by the President of India at 2.00 p.m. on 29.07.2015.W.P. (Crl.) No. 129 of 2015 which has been dismissed on 29.07.2015 at 4.15 PM. Both these mercy petitions have been rejected( therefore the accused was asking for another 14 days counting from 29.07.2015). The death warrant was issued on 30.04.2015 which was admittedly received by the petitioner on 13.07.2015 and the date of its execution is 30.07.2015 at 7.00 AM. WRIT PETITION (CRL.) NO.135 OF 2015 was rejected on about 3.15 a.m. on 30.07.2015, Menon executed at 7.00 AM.
  • PRINCIPAL OF CURATIVE PETITION EXPLAINED-The creation of curative jurisdiction by this Court is based on the Constitution Bench judgment in Rupa Ashok  Hurra vs. Ashok Hurra, 2002 (4) SCC 388. Prior to the said judgment, the decisions in certain matters used to be challenged under Article 32 of the Constitution,the Bench laid down the ex debito justitiae principle. We are required to understand what is meant by the words “judgment complained of”. According to Rupa Ashok Hurra (supra) principle, a second review is not permissible. However, a curative petition is evolved in exercise of power under Article 142 of the Constitution of India to avoid miscarriage of justice and to see that in the highest Court, there is no violation of principle of natural justice, and bias does not creep in which is also fundamentally a facet of natural justice in a different way. We reiterate at the cost of repetition, whether other grounds can be taken or not, need not be adverted to by us. The principle of review as is known is to re-look or re-examine the principal judgment. It is not a virgin ground as has been held by Krishna Iyer, J. in Sow Chandra Kante and Another vs. Sheikh Habib (1975) 1 SCC 674. The said principle has been reiterated in many an authority. Thus, it is luculent that while this Court exercises the jurisdiction in respect of a curative petition, it is actually the principal judgment/main judgment, which is under assail.LINK
  • Mercy petition for Yakub Memon

4. Mohammad Ajmal Mohammad Amir Kasab v. State of Maharashtra (29.08.2012)[terrorist attack]

“If the case is of death sentence, this Court can exercise its power to examine material on record first hand and come to its own conclusion on facts and law, unbound by the findings of the Trial Court and the High Court” Adambhai Sulemanbhai Ajmeri & Ors. … Versus State of Gujarat

  • Putting the matter once again quite simply, in this country death as a penalty has been held to be Constitutionally valid, though it is indeed to be awarded in the “rarest of rare cases when the alternative option (of life sentence) is unquestionably foreclosed”. Now, as long as the death penalty remains on the statute book as punishment for certain offences, including “waging war” and murder, it logically follows that there must be some cases, howsoever rare or one in a million, that would call for inflicting that penalty. That being the position we fail to see what case would attract the death penalty, if not the case of the appellant(PARA 585)
  • Against all this, the only mitigating factor is the appellant’s young age, but that is completely offset by the absence of any remorse on his part, and the resultant finding that in his case there is no possibility of any reformation or rehabilitation.(para-582)
  • If we examine the present case in light of the Machhi Singh decision, it would not only satisfy all the conditions laid down in that decision for imposition of death sentence but also present several other features that could not have been conceived of by the Court in Machhi Singh. We can even say that every single reason that this Court might have assigned for confirming a death sentence in the past is to be found in this case in a more magnified way(para-569)
  • The kind of cases in which protection to life may be withdrawn and there may be the demand for death penalty were then enumerated in the following paragraphs: “32. … It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

1. Manner of commission of murder – When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder . When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime (a) When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons(para 567)

MERCY PETITION TO THE PRESIDENT OF INDIA  (Rejected- Commuted – Pending)

DEATH PENALTY INFORMATION CENTER USA

AMERICAN EXPERIMENT ON DEATH PENALTY