Whether lawyers have a right to strike and/or give a call for boycotts of Court/s.

Whether lawyers have a right to strike and/or give a call for boycotts of Court/s.

1. Constitution Bench of the Hon’ble Supreme Court in Ex-Capt. Harish Uppal vs Union of India & Anr. (Writ Petition (civil) 132 of 1988)DATE OF JUDGMENT: 17/12/2002 held thus:

“Lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalatnama of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him. It is now hoped that with the above clarifications, there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self restraint will be exercised”.

2. Contempt Petition (Civil)  550    of   2015 (Common Cause   vs Abhijat & Ors) is pending before the Supreme Court of India.

3. Law Commission of India has submitted its 266th report titled ‘The Advocates Act, 1961 (Regulation of Legal Profession) suggesting drastic changes in the Advocates Act, 1961 to the Government. The Law Commission of India has proposed widespread amendments in the Advocates Act, 1961 with a view to facilitate initiation of taking forward reforms in the legal profession. The Commission observed that unless there are compelling circumstances and the approval for a symbolic strike of one day is obtained from the Bar Council concerned, the advocates shall not resort to strike or abstention from the court work.

 The Law Commission has also placed before the Government The Advocates (Amendment) Bill, 2017. A new Section 35 states:

 “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”.

The Bill has also proposed a definition of Misconduct, which was missing in the Advocates Act.

‘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; oran 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.

In case of proved misconduct BCI can impose a fine which may extend of rupees 3 Lakhs and cost of proceedings.

 4. The Bar Council of India Chairman Manan Kumar Mishra has written to the Law Commission withdrawing the recommendations made by the BCI regarding proposed amendments to the Advocates Act. Manan Kumar Mishra in his letter to the Chairman of Law Commission of India, Justice BS Chauhan, stated that:

“A deliberation will take place with the members of the Co-ordination committee and thereafter, the recommendation will be sent. At the same time, through some news clippings, I have come to know that the Commission has made certain recommendations with regard to the Disciplinary Committee Proceedings and it has recommended that in such committee the government should nominate other people excluding members of the Bar and/or their bodies’ representatives will not be there to try their case relating to the disciplinary action against the lawyers. If there is any such proposal, I humbly request your good self to reconsider the same and strengthen the institution of legal fraternity. The outsiders’ interference in the matters of advocates may invite nationwide protests, so it is my request to consider this aspect of the matter.” 

EVM CONTROVERSY: INCORPORATION OF VVPAT SYSTEM WITH EVMs

Dr. Subramanian Swamy Versus Election Commission of India, CIVIL APPEAL NO.9093 OF 2013 (Arising out of SLP (Civil) No. 13735 of 2012), DOD- OCTOBER 8, 2013, Bench: CJI P. SATHASIVAM), J RANJAN GOGOI. The Hon'ble Supreme Court held thus:
“ From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the “paper trail”. EVMs with VVPAT(Voter Verifiable Paper Audit Trail) system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system. In the light of the above discussion and taking notice of the pragmatic and reasonable approach of the ECI and considering the fact that in general elections all over India, the ECI has to handle one million (ten lakhs) polling booths, we permit the ECI to introduce the same in gradual stages or geographical-wise in the ensuing general elections. The area, State or actual booth(s) are to be decided by the ECI and the ECI is free to implement the same in a phased manner”.

NOTE: 
INTERESTING!!
Democracy At Risk! Can We Trust Our Electronic Voting Machines? 
Author- GVL Narasimha Rao (National Spokesperson, Bharatiya Janata Party) and Foreword by Sh LK Advani Ji.
ISBN- 139788191006506
Publisher- NameVeta Citzen
Edition- 2010

A GANG OF 2/3RD MLAs SIMPLICITER NOT “BE-ALL AND END-ALL” TO WARD OFF THE SANCTION OF ANTI-DEFECTION LAW

Not all (doesn't mean NOT AT ALL) is bad with the anti-defection law. The whipping boy the para 4 of the Tenth Schedule of the Constitution enabling the merger of a political party, in fact, is highly democratic. It envisages a collaborative and participatory working between the political party concerned and its legislature party consisting of all members of the given House for the time being belonging to that political party in that House. The law tends to strike a fine balance between interests of political party and the aspirations of the Legislators (denoting the will of the people) comprising the legislature party concerned. The contents and intent of the said law lend emphatic credence to the inference that any decision for such merger can only be taken by the original political party in accordance with the rules thereto as embodied in the constitution of that political party, and to take it further to any logical conclusion must find favour with not less than two-thirds of the elected members of the legislature party concerned (ie MLAs or MPs as may be the case). Hence, the contention being articulated from certain quarters that unilateral decision of the two-third members of the legislature party bypassing the political party ipso facto seals the fate of the latter is untenable.

- TENTH SCHEDULE to Indian Constitution

4. Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party— (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

NOTE:
Only direct ruling on above clause 4 of the 10th Schedule to the Constitution is of Punjab & Haryana High Court by MR. JUSTICE K. KANNAN RE Kuldeep Bishnoi Versus Speaker, Haryana Vidhan Sabha, Chandigarh and others (CWP No.2900 of 2013), Date of Decision.09.10.2014 and falls well short of any elucidation over the matter.

Tyranny of Article 35A of the Constitution of India R/W Section 6 of the Constitution of J&K on Women of J&K

(A) Article 35A of the Constitution of India. -  Saving of laws with respect to permanent residents and their rights.— “Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,— (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment under the State Government; ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”.

(B) Section 6 of the Constitution of J&K. Permanent residents - (1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954-  (a) he was a State Subject of Class I or of Class II ; or  (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date. (2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State. (3) In this section, the expression "State Subject of Class I or of Class II" shall have the same meaning as in State Notification No. 1-L/84 dated the twentieth April, 1927, read with State Notification No. 13/L dated the twenty-seventh June, 1932.

(C)Vide Constitution (Application to Jammu and Kashmir) Order, 1954, in exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President (i.e. Central Government), with the concurrence of the Government of the State of Jammu and Kashmir, was pleased to order the insertion of a new Article namely 35A  in the Indian Constitution. Thus, it was added through an executive act and the procedure prescribed for amendment of the Constitution of India under Article 368 was not followed/or was not required to be followed in view of Article 370.  However, the manner of induction of said Article and vires/validity of the provisions thereof have been put to a challenge before Hon’ble Supreme Court of India and is still pending for adjudication.

(D) The existing legal regime (State Laws, Executive notifications and orders etc) of J&K sets out that if a man is permanent resident of J&K and he marries non-permanent resident woman of the State or marries a woman outside the State, his wife is entitled to Permanent Resident Certificate (PRC) and all the ensuing “privileges”. Children born from the wife will also get the PRC rights in full in J&K. (viz. employment under the State Government,  right to hold, inherit and acquire  immovable property in the State; settlement in the State; right to scholarships and such other forms of aid as the State Government may provide; voting right etc). Conversely, if a woman who is permanent resident of J&K marries a non-permanent resident man of the State or marries a man outside the State, she loses her PRC and privileges it entails. Hence, no question of PRCs to husband and children. No associated benefits to them whatsoever.                                                                    (E) A Full Bench of J&K High Court  in State Of Jammu & Kashmir vs  Dr. Susheela Sawhney  was called upon to decide a question as to  “Whether the daughter of a permanent resident of State of Jammu & Kashmir losses her status as a permanent resident of the state of Jammu & Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu & Kashmir?”(Note: the loss or absence of status as a permanent resident of the state of Jammu & Kashmir disentitles a person not only in respect of right to hold , inherit and acquire immovable property in the state but also in respect of employment in the state and the right to scholarship and such other forms of aid as the State Government may provide etc etc ). Vide a judgment dt 7 October, 2002, by 2-1 majority, the Bench of the High Court held that “a daughter of a permanent resident marrying a non permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir”.

(F) Thus, the rights of women married to non-state subjects have been protected by virtue of the interpretation placed by the Hon’ble J&K HC of the relevant laws/orders. But their children have been left unprotected. Children whose mother is a permanent resident but father a non-permanent resident are denied the rights. Children have no right to inherit or own property, vote, get admission to professional colleges and get government jobs in Jammu and Kashmir even though they were born and brought up in the state. Their only fault is that their mother had married a person who is not a permanent resident of Jammu and Kashmir.

(G) It is also noteworthy that in 2004, the state government led by Mufti Mohammad Sayeed had introduced a Bill in the Legislature to take away the rights of women who marry a non-state subject. The Bill, passed within six minutes in the Assembly, was blocked in the Upper House because of a massive public protest. Moreover, the Hon’ble Chief Minister of J&K Mehbooba Mufti had recently remarked that all those who are opposed to Articles 370 and 35A and favor their abrogation are “anti-nationals”. Interestingly, Farooq Abdullah (Prominent politician & Ex CM of J&K) is married to an English woman Molly based in London. Their Son Omar Abdullah (Ex CM) is married to Delhi based Payal Nath and Daughter Sarah is married to Rajasthan based Sachin Pilot (Ex Union Minister).

ENTREPRENEURSHIP IS NOT A LESSER SERVICE TO NATION

ENTREPRENEURSHIP IS NOT A LESSER SERVICE TO NATION

Employment opportunities in Government and Public sectors are on the wane gradually but steadfastly. A BIG chunk goes to caste based reservation (to some extent it's a necessity), nepotism, political and money considerations etc. However, a large swathe of populace considers that one and only panacea for their all ills and a gateway to economic salvation is a secured government job. Lust for government jobs has given rise to a frenzied scamper for getting tagged with proud LOGO of “BACKWARDS” at any cost. Reservation seeker daredevils muster up enough courage to block national highways, vandalise the public and private property, jeopardize others’ lives, assault and chase away the police and other security personnels, give and take precious lives at the altar of reservation cauldron and above the all, enjoy overt or covert political/administrative patronage. Some people conveniently forget that the political power is the magnet that attracts all other coveted temporal bliss in tow. Nevertheless, we may feign to be oblivious of agrarian crisis and resultant despair, distress and chaos at our own peril only.

On the other hand, people set up businesses/start-up ventures of self-employment and allied undertakings (small to big) by investing hard earned money of their parents or on private /public borrowings and tirelessly work for at least 12 hours a day (no holidays/vacations, social securities etc) and perennially put up with all sorts of bullying from a wide range of entities viz. Tax Depts, Police, Municipalities, Land Authorities, Environment/Pollution Depts, Labour Dept, Food Dept., Politicians, Local goondas et etc etc) in this age of cut-throat competition and market volatility. Anyhow, some perish - some survive - some thrive and also generate significant job opportunities for others besides immensely contributing to the growth and development of the economy of the Country.

 It would be in the fitness of things to say that BUSINESS INCOME upto Rs. 5 Lakh should be INCOME TAX FREE and > Rs. 5 Lakh upto 25 Lakh should not attract income tax levy of more than 5%. Same may also hold good mutatis mutandis for professional income. 
भारत माता की जय

MUCH HYPED BUT PHONEY CREAMY LAYER CRITERIA (RULE OF EXCLUSION)

UNDOUBTEDLY “FARMERS” ‘FACING BRUNT OF AGRARIAN CRISIS’ AND PERHAPS ALSO “SOME OTHER” ‘FACING ACUTE ECONOMIC CONSTRAINTS’ URGENTLY NEED RESERVATION. WOULD EXISTING FRAMEWORK OF CREAMY LAYER ALLOW EVEN A NANO DROP TO PERCOLATE DOWN TO THEM?

(1)    In terms of prevailing Central and Haryana State OBC creamy layer criteria, the present income ceiling of Rs 6 Lakh pertains to income of the parents of the applicants from ‘other sources’.  The salary from private, public and government sectors   and also agriculture income of such parents shall not be added to their income from “other sources“. Meaning thereby, it is confined to ‘income from business and profession’. (Pertinent to mention herein that as per the Government of India, poverty line for the urban areas is Rs. 296 per month and for rural areas Rs. 276 per month).

(2)    Moreover, the creamy layer status of applicant is determined on the basis of the status of his parents and not on the basis of his own status or income or on the basis of status or income of his/her spouse. Therefore while determining the creamy layer status of a person the status or the income of the candidate himself or of his/her spouse shall not be taken into account.  

(3)    Children of parents possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years are considered in creamy layer and hence excluded from benefit of reservation.

(4)    Where the husband is in some profession e.g. advocate, CA, doctor etc  and the wife is in a Class II or lower grade employment, the income/wealth test will apply only on the basis of the husband’s income. If the wife is in any profession and the husband is in employment in a Class II or lower rank post, then the income/wealth criterion will apply only on the basis of the wife’s income and the husband’s income will not be clubbed with it.

(5)    It is also notable that while the “creamy layer“criteria of automatic disqualification for the applicants whose either of the parents is a direct recruit or a promotee not beyond the age of 40 year   in Group A or both parents are in Group B of the government   services also applies to those holding “equivalent or comparable posts“in Universities, PSUs, Banks, Insurance, other allied organizations and Private sector. Pending such evaluation of the posts on equivalent or comparable basis they will be governed by Income/wealth criteria (income from salary and agriculture not to be taken into account). However, it is worth mentioning that no comparative evaluation of such posts has been done till date.

(6)    Children  of parents either or both of whom is or are in the rank of Colonel and above in the army and to equivalent posts in the Navy and the Air Force and the Para Military Forces find place in creamy layer.

(7)    In Central OBC quota, only  those applicants will be treated in creamy-layer whose parents are having irrigated land which is equal to or more than 85% of the statuary ceiling area and the rule of exclusion will not apply if the land holding of a family is exclusively un- irrigated. In Haryana, there is no qualifying limit of 85%. Moreover, relevant land ceiling law in Haryana provides for different land ceiling limit qua irrigated land, un-irrigated land and  in case of mix of irrigated & un-irrigated land ranging from  about 25 acres to 55 acres. Statutory Ceiling on land holding varies in different States.

NOTE:

1.      Existing OBC creamy layer criteria (Rule of Exclusion) is too phoney to allow any noticeable benefit of reservation to percolate down to the small farmers stuck up in unending agrarian crisis in Haryana and rest of India – one of the most needy segment of the society that deserves the benefit of reservation. Moreover, present OBC creamy layer criteria are parent specific. Needless to say that possible wrong inclusions/retentions cannot be the basis for further wrong inclusions. The time has come to open the gate of OBC list to make graceful exit of relatively resourceful ones and to permit entry of the most distressed like small farmers, small traders, industrial workers, farm labourers etc irrespective of caste and religion.

2.      However, reportedly in Haryana the children of those who have a gross annual income of up to Rs three lakh would get the first preference as far as the benefits of reservation in services and admission in educational institutions are concerned. Thereafter, the remaining quota seats, if any, would go to those in the Backward Classes category who earn between Rs three lakh and Rs six lakh per annum AS EXPLAINED ABOVE.

3.      It is worth mention that ANNUAL INCOME CRITERIA FOR ECONOMICALLY BACKWARD PERSONS IN GENERAL CASTES CATEGORY in Haryana pegging the income ceiling at Rs 2.5 Lakh is “family specific” and includes income from “all sources” eg. salary (private, public, government sectors), agriculture business, profession etc. "Family" means applicant,  Head of the family and his/her spouse, Dependent children and their spouses,  unmarried dependent brothers and sisters. In case any person in the family, as described above, is income-tax/wealth tax payee, benefit of reservation shall not be extended. Applicant or family as described above should not be in Class-I/Class-II services of Government of India or State Government level or equivalent or hold any equivalent post in any statutory board/corporation /University/ society/trust or an equivalent position in any public/private limited company or in any International organization. In case, family as described above, is engaged in a profession as doctor, lawyer, chartered accountant, income –tax consultant, financial or management consultant, engineer, architect, computer specialist, film/TV artist, play write, author, model, media personnel or holds any elected/appointed office either under the Constitution or in terms of any statute out of which emolument/salary is paid, the total annual income of the family of the applicant should not cumulatively exceed Rs.2,50,000/- per annum from all sources. The relevant notification is silent on what will happen pending such evaluation of the posts on equivalent or comparable basis.  Family, as described above, should not be employed in any Military or para-Military services with Union of India in the rank of Second Lieutenant or above in the Army or any equivalent rank in other forces of para-Military forces.

Related write-ups: 

http://rajkhushiniti.blogspot.in/2016/04/reservation-at-gun-point-violence-pays.html

http://rajkhushiniti.blogspot.in/2016/04/conundrum-of-mandal-commission-jat.html

http://rajkhushiniti.blogspot.in/2016/03/all-appeasement-no-celebration.html

http://rajkhushiniti.blogspot.in/2016/02/need-to-re-work-extant-system-of.html