High Courts and the Supreme Court have the power to direct the police ‘not to take any coercive steps against the accused’.
Such power may be traceable to S.482 CrPC and/or Articles 32/226 of the Constitution of India.
Having said that, it is settled law that such a direction should not be passed casually and should be reserved only for the most deserving of cases and, in normal course, the accused should be relegated to her remedy of seeking anticipatory bail.
The power to grant ‘stay on coercive process’ should, therefore, be exercised only in those cases where, on the very face of it, it is clear that no case is made out, or there is a legal bar/prohibition to the investigation of the case. (In other words, cases where the Court, potentially, would be inclined to quash the FIR itself pursuant to Bhajan Lal principles)
Section 482 CrPC.
Articles 32/226 of the Constitution.
M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, 2021 SCC online SC 315
Contrary to popular misconception – that only a Court can grant bail in a non-bailable offence – the reality is that : The Police can also grant bail in non-bailable offences.
A perusal of Section 437, Sub-sections (2) and (4), CrPC reveals that the architects of CrPC, in fact, vested a police officer with the power to grant bail even in a non-bailable offence.
This is clear from the phraseology employed in these sub-sections : “it appears to such officer” “or “at the discretion of such officer” [Section 437(2) CrPC] and “An officer or a court releasing a person on bail…” [Section 437(4) CrPC].
Form No.45 attached to Second Schedule of CrPC further reinforces this.
An Article titled ‘Role of Police and the Law of Bail in Common Law Jurisdictions’ by Anurag Deep (Associate Professor, ILI, New Delhi) featured in ‘Taking bail Seriously’ published by LexisNexis.
Select Committee’s observations – discussed in Sohoni’s commentaries on The Code of Criminal Procedure of 1931 and other commentators on the subject.
Section 437 of the CrPC
Form No. 45 appended to Second Schedule.
PS : This post does not examine or opine on the propriety/desirability of giving such a power to the police and its consequences/practical implications; We leave that for another post – another day.
The general principle is that if a cognizable offence has taken place (and forgery is a cognizable offence!) any person can get an FIR registered.
This should hold true for forgery and filing of forged documents in court too, right? Well, the answer is Yes. But this issue wasn’t settled for a very long time.
The confusion sprang from the language of Section 195 CrPC which says, that in certain cases of offences having been committed w.r.t documents in Court, an FIR can’t be registered directly, and the court where the (allegedly) forged documents have been used has to file a complaint (after doing an enquiry u/s 340 CrPC).
This was clarified in Iqbal Singh Marwah’s case (citation below), where the SC said that, only and only if a forgery takes place w.r.t a document already filed in and in custody of the Court that the mischief of S.195 CrPC is attracted.
In all other cases, for instance, where a document is forged outside of Court and then merely used in Court subsequently, the bar of S.195 CrPC doesn’t apply and a direct FIR can be registered.
This position is more or less settled now.
Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370
Bandekar Brothers v. State, 2020 SCC Online SC 707
Section 195 CrPC
Sections 191 to 195 IPC.
PS: For a very interesting (and nuanced!) exception to this principle see : Bandekar Brothers v. State, 2020 SCC Online SC 707 (where the SC says – that in certain cases of perjury/fabrication of evidence [where the predominant offence is perjury and not just forgery]– the bar of S.195 CrPC may still apply!)
The Certificate u/s 65B is not required to be on an affidavit.
Though normally to be filed along with the electronic record (print-out, USB drive, etc), it can be filed subsequently too, either as a supplementary chargesheet, or by resort to S.311/391 of the CrPC.
In Civil cases, the certificate can be brought on record subsequently by relying upon Order 18 Rule 17, Order 16 Rule 14 CPC r/w 151 of the CPC. (Also see Order 8 Rule 1A and Order 7 Rule 14 CPC)
Objections relating to admissibility of electronic evidence should be taken promptly else they are taken to have been waived.
This is the second in a series of posts titled ‘Judgments without tears’ where we try to make complex judgments accessible and fun. A guest post by my dear friend and super talented Vishal Vyas.
Let me try unpacking Satish Chander Ahuja vs. Sneha Ahuja delivered on 15.10.2020. A 151 page judgment but a well-reasoned judgment under the Domestic Violence Act. The Apex Court in this path breaking, progressive judgment has overruled it’s previous judgment in S.R Batra and Ors. Vs. Taruna Batra and has clearly espoused that a wife is also entitled to claim a right to residence in a shared household belonging to relatives of the husband. Judgement dealt with the important questions of law pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005.
One of the questions, for instance, was about interpretation of the definition of “shared household” under Section 2(s) of Act, 2005. Whether it has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share? Another question was about the law laid down in S.R. Batra and Ors. Vs. Taruna Batra, which also interpreted the provision of Section 2(s) of Act, 2005. These were some of the important issues that the court had to adjudicate upon. To understand the judgment better, let me demonstrate facts of the case with the help of a story. Suppose, there is a father who purchased a house. After few years of the purchase, his son got married. Now, the father and the mother both are residing at the ground floor of the premises. Son and the daughter-in-law are residing at the first floor of the premises. Later, the son shifted to the ground floor owing to certain marital discord with his wife. Wife started a separate kitchen in the first floor of the house. Son, then filed a Divorce Petition under Section 13 (1) (ia) and (iii) of Hindu Marriage Act, 1955 (the 1955 Act) on the ground that his wife had treated him with cruelty. After this divorce petition, the wife filed an application under Section 12 of Act, 2005 against the whole family on the ground of emotional and mental abuse.
These proceedings were there on one side but the real complexity came when the father, who pleaded that he is the sole owner of the house & filed a suit of mandatory injunction against his daughter-in-law to vacate the premise. He also filed a permanent injunction suit restraining her to enter and reside in the house. Daughter-in-law pleaded that that the suit property is a shared household where she has right to reside. On this, the father contested that the premises is not a shared household since his son neither has any share in the suit premises nor suit premises is a joint family property. In support of his submission, he relies on judgment of this Court in S.R. Batra and Ors. Vs. Taruna Batra.
It becomes important now to have a look at the definition of “shared household” under section 2(s) of Act, 2005 which says that a
“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
Clearly, the definition uses both the expressions “means and includes”. It is a settled law that whenever the use of the word “means” followed by the word “includes” is used in a definition, it is an exhaustive definition. (Bharat Coop. Bank (Mumbai) Ltd. Vs. Coop. Bank Employees Union,(2007) 4 SCC 685) Therefore, use of both the expressions “means and includes” clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other.
Having understood that, let’s break down the definition of Section 2(s), the definition can be divided in two parts, first, which follows the word “means” and second which follows the word “includes”.
The first part reads “shared household means a household where the person aggrieved has lived or at any stage has lived in a domestic relationship either singly or along with the respondent”. Thus, first condition to be fulfilled for a shared household is that person aggrieved lives or at any stage has lived in a domestic relationship.
The second part which follows “includes” can be further sub-divided in two parts.(a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and(b) includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
From the above definition, following is clear:- (i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly.
Now, the previous decision of the Apex Court in S.R Batra Vs. Tarun Batra, which is sheet anchor of the submission of the appellant, in the present case, needs to be noticed. In the above case, it was not disputed that the house belonged to mother-in-law and her son, i.e., husband of respondent had no share. Husband had filed a divorce petition against respondent whereas respondent filed a criminal case under Sections 406, 498A, 506 and 34 of Indian Penal Code. Respondent shifted to her parents’ residence because of the dispute with her husband. She when later tried to enter the house, she found the main entrance locked hence, she filed suit to grant mandatory injunction to enable her to enter the house.
Counsel for the respondent submitted that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He also contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household. Disagreeing with this, Court said that if the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. This interpretation shall lead to chaos and would be absurd.
So, Court observed that the house in question cannot be said to be a “shared household” within the meaning of Section 2(s) of the Act, 2005. It belongs to the mother-in-law of Smt Taruna Batra and it does not belong to her husband.
Accordingly, Smt Taruna Batra cannot claim any right to live in the said house.
Clearly, laying down the law here that “wife is only entitled to claim a right to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.” Coming back to the present case, court expressed following thoughts and in the process, overturning it’s previous thoughts:
The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used for object different to what has been apprehended by this Court in S.R. Batra Vs. Taruna Batra.It was only with intent of not denying the protection to aggrieved person merely on the ground that aggrieved person is not living in the house as on the date of the application.
Shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent.
This was neither the object nor the legislative intent that wherever the aggrieved person has lived with the relatives of husband, all such houses shall become shared household.
Also, looking at the whole scheme of the Act, the words “lives or at any stage has lived in a domestic relationship” have to be given it’s normal and purposeful meaning.
Therefore, The Apex Court made it clear, in the present case, that the interpretation of definition of shared household as put by this Court in S.R. Batra Vs. Taruna Batra is not correct interpretation and the said judgment does not lay down the correct law.
The definition of shared household does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. Also, the “respondent” in a proceeding under Domestic Violence Act can be any relative of the husband. If the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived & the conditions mentioned in Section 2(s) are satisfied, the said house will become a shared household.
Accordingly, appeal was dismissed and the Daughter-in-law was “welcomed” in her “shared household”. 🙂This is what the judgment broadly seeks to clarify. A very welcome judgment- indeed. Hope you enjoyed reading it as much as I enjoyed demystifying it.
About the Author:
Vishal Vyas graduated in law in 2018 and cleared the Rajasthan Judicial Service Examination 2019 & currently undergoing his training at Rajasthan State Judicial Academy. He also Completed his LL.M in criminology in the year 2019. Vishal has a keen interest in academics and is extremely passionate about teaching, motivating & mentoring young law students and Judicial Services aspirants.
A call from the High Court is a big thing, whoever and wherever one is – in life. Especially when you are a 25-year-old Magistrate, and it is your parent High Court. It fills you with excitement and dread. One late afternoon, during my stint as a Magistrate at Dwarka Courts, I got a call. I had just finished the day’s proceedings and was making corrections to some order sheets when the landline rang, startling me in the way that landlines often do.
It was someone from the office of Justice Gita Mittal summoning me for a meeting with her. The agenda wasn’t discussed. “Damn!” I thought. This has to be about that judgment which I’d written; the one where I wasn’t totally convinced if my appreciation of evidence was correct but went ahead with it regardless – not wanting the perfect to be the enemy of the good,and not wanting to be indecisive for long. Or was it about me being a knight-errant of sorts – generally; those unconventional community service orders, or the arguably unduly lenient approach to offenders under the Railway Protection Act? ‘Chickens coming back home to roost!’ I thought, on my way to the High Court. I reached there and was led into a graceful chamber. Sitting at the very edge of my seat, I kept straightening the knot of my tie, as if – that would help me unknot the problem that I had possibly got myself into.
But all these thoughts vanished the moment Justice Mittal looked up from her papers. Boundless energy and compassion radiated from her. As it turned out, the meeting was in connection with a reference (under Section 395 of the CrPC) that I had the occasion to make on a legal question that, in my humble opinion, needed clarity. This reference was marked to a division bench headed by Justice Mittal. Justice Mittal was generous in her praise for the effort, and the free-wheeling conversation went-on from the reference, to trial court judging, family, and the books that both of us were reading. She was extremely warm and genuinely interested in who I was, and, in general, the challenges that trial court judges faced and the ways and means in which things could be made better. She had the calm self-assurance of someone who had made it – all on her own and broken many a glass ceiling. She was also possessed of energy which was boundless and contagious. But what struck one the most was her compassion and sensitivity, which radiated from her and lightened up whatever and whoever was around. You could see how her heart rankled at each injustice and how she was always trying to come up solutions to make justice accessible, courts more humane, and relevant, down to the last woman in the line.
Justice Mittal recently retired as the Chief Justice of the High Court of J&K after an extraordinary judicial career. (A longer piece about her life and her days at the Bar will follow). This column is a tribute to her extraordinary career at the Bench and some path-breaking judgments delivered by her. Given the sheer number and diversity of judgments that Justice Mittal has delivered, I would – at best – be touching only the tip of the iceberg.
To start at the start, a broad look at her judgments reveals, at once, that Justice Gita Mittal’s judicial philosophy combined academic rigour (and fidelity to statute/the rule of law) and the need to make law and justice accessible, fairer and, most importantly, coincide. Her sensitivity to the human element in each case, the underlying life story is palpable. Her judgment in the 1984 riots related cases is a great starting point. Here, the Court was faced with a situation of glaring misses in the collection of evidence and blatant attempts to shield the powerful from accountability. The case was almost a test study in botched up investigations and improperly conducted trials. Such a trial was a travesty of justice and disproportionately affected Sikh widows, who never got the justice they deserved. Observing that the courts had a legal duty to ensure that the justice delivery system was followed in earnest, the cases were re-opened. The next question that confronted the Court was: How is one supposed to dig up the past and fix responsibility for what transpired three decades back? One way of retrieving faith in the system for the victims was directing the State to pay compensation to the victims. This is what the Court did in [Manjit Singh Sawhney v. Union of India2005 SCC Online Del 560].
In an attempt to do justice, and to ensure that there were consequences for serious human rights violations, Justice Mittal, in Court on Its Own Motion v. Vidyanand (2017 SCC OnLine Del 7705), ordered re-trials in as many as five cases relating to the 1984 anti-Sikh riots. Justice Mittal noted, “Perhaps had these terrible offences in 1984 been punished and the offenders brought to book, the history of crime in this country, may have been different. We are of the view that if we fail to take action even now, we would be miserably failing in our constitutional duty as well as in discharging the judicial function.” Notably, in these cases, the accused had been acquitted on account of non-examination of the eye-witness/independent witnesses by the prosecution. It was a case of hasty and superficial disposal of the case – in the first instance. The Court’s conscience was shocked, and that led to an examination of the statutory framework, with a view to finding a way of intervening in the matter as the appellate Court. Section 401 of the CrPC gave the Court that window. Ordinarily, High Courts do not interfere with findings of acquittal by the Trial Court. However, an exception can be made in cases of glaring illegality and a grave miscarriage of justice. This power is seldom exercised, and courts have usually adopted a ‘hands-off’ policy. Adherence to this self-imposed restraint would have been tantamount to judicial abdication in a case such as this and keeping this in mind, the Court felt that it was under a constitutional duty to order re-trials. This was later termed by Mr HS Phoolka, and rightly so, as the first instance of proactive judicial intervention in the 1984 set of cases.
In Delhi High Court Bar Association v. Govt. of NCT of Delhi (2013 SCC OnLine Del 4091), the question of access to justice was – once again – in issue and the Court, led by her, rose to the occasion. The Kafkaesque amendments to the Court Fee Act, which increased the court fee by more than 10%, and in certain instances to more than 200 to 400 times, were under challenge. With a vast part of the population already marginalized and totally excluded from justice, this amendment could turn potentially justice into a commodity; a commodity to which only the rich and the privileged had access. In rejecting the marketplace analogy, the Court struck down the said amendments as a gross violation and an egregious denial of the right to justice.
Terming litigants as “consumers of justice” and Court fee as the “price of this service” was rightly taken to be a crude extension of the free-market principles to justice; an extension that our Constitution did not permit. This judgement is the only Indian judicial pronouncement that finds a place in Professor Judith Resnik’s celebrated book – ‘The Reach of Rights’ – on ‘Global Constitutionalism’.
Justice Mittal has also pushed the frontiers of law by creative and sensitive judicial interpretation in many cases. Justice Mittal, on multiple occasions, has favoured an interpretation that is alive to the social context and aligned with the ideals of our Constitution. For instance, in Court on its own Motion v. State of Jammu and Kashmir (MANU/JK/0922/2018), the Court dealt with the phenomena of, what the International Association of Women Judges terms, “Sextortion”. An offence that combines the worst of two things- illicit sexual advances and extortion, two very different areas conventionally- one being an offence against the body and the other against the property. Victims of these offences, who often come from the most disenfranchised of backgrounds, were sexually exploited in the garb of providing employment.
The Court held that these cases need to be dealt-with properly. While doing so, the Court recognized the reality that, simply by virtue of being a woman, a victim is often put under great pressure to establish sexual relationships with an accused, who is in a position of authority. The legislative vacuum in dealing with this situation amounts to a total barrier to prosecution and women’s access to justice. Drawing from the international best practices, the Court (Justice Mittal writing the opinion) directed consideration on this issue. As a result of the Court order, the Ranbir Penal Code was duly (and promptly) amended by the State including, within the code, the offence of sextortion
Another inspiring decision was Mohd. Ismail v Slum & JJ Department (WP (C) No 819/2009). This was a case where a litigant had been forcibly evicted during the infamous Turkman Gate slum demolition and was denied rehabilitation under the resettlement scheme on account of non-appearance before the State on the designated date. One of the arguments of the State (which was resisting the claim) was that the petition is hopelessly time-barred and that the same should be dismissed at the very outset. The procedure, which is to be the handmaiden of justice, was sought to be used to deny justice. Instead of taking the case as a mere serial number on the cause list and a file, the Court dived deeper into who the Petitioner was; it found that he was a person of extremely limited means. In fact, after suffering the trauma of forcible eviction, he then suffered an accident which confined him to bed for a long period. This was the life-story behind the case; a case sought to be shot down on a technical ground. Court held that given the circumstances, the delay was understandable. The Court observed that the law of delays and latches is not an inflexible rule and social context, realities and the asymmetries of power and opportunity – especially in a country like ours are extremely important considerations to be kept in mind. What more evidence does one need of financial pecuniary being a barrier to access to justice than the fact that it took over 30 years, from 1976 to 2009, for a financially impoverished man to walk the distance of mere two and a half kilometres to reach the gates High Court of Delhi to seek enforcement of his fundamental right of shelter.
Another decision that is a testament to Justice Mittal’s sensitivity for the poor is the case of Suhail Rashid Bhat v. State of Jammu and Kashmir (2019 SCC OnLine J&K 869). Here, the impugned law, Jammu and Kashmir Prevention of Beggary Act, 1960,in its colonial and arbitrary sweep, criminalized begging. The focus of the law and whip seemed to be directed towards beggars and not begging. It was forgotten that: the idea is not that no one should beg; it is that no should have to beg. Being poor is not a crime. The Court observed that laws such as these are totally divorced from reality and the structural reasons that compel people to beg. Lack of education, poverty, homelessness and isolation, all contribute to such a practice. In most cases, it is not a product of free-will but a circumstantial necessity. Punishing a beggar, in such circumstances, is akin to telling the poor person that the State will now prosecute her because she told people about her plight and secured a meal for herself; a meal which the State could not bring to them. The Constitution wouldn’t permit that – the Court held; especially when we live, as Justice Krishna Iyer calls it, in the land of Daridra Narayana, where monks have begged for alms for centuries and piety is considered the very soul of our culture.
Upholding the law would have been a gross misapplication of criminal law and Constitutional principles alike, and the Court rightly struck down the draconian/colonial law. This especially struck a chord with me as, a few years back, I had the great fortune of exonerating many young persons accused of selling tea (without a license) in trains by applying similar logic. In a lot of ways – it felt like the humble fragments of my song, had come – at last – to a fine melody in this decision.
Justice Mittal has also done substantial work to make our courts more victim-friendly. In Virender Singh v. State (Crl A No 121/2008), she had the opportunity to emphasize the need for creating a comfortable environment for child victims and witnesses. The facts of the case were most unfortunate; a child in IIIrd standard was a victim of sexual abuse. The Court here recognized the trauma that a victim has to face in recounting the details of the offence, in a room full of strangers, and in a courtroom which is extremely daunting and intimidating. Here, the Court drew strength from the earlier judgements of the Supreme Court in culling out and streamlining the guidelines for investigation and examination victims of sexual offences. These guidelines were wide-ranging and path-breaking. For instance, it was envisaged that the officer recording the statement of the victim should not be in police uniform; immediate steps should be taken to associate a scientist from Forensic Science Laboratory or some other Laboratory or department in the investigation; the assistance of a psychiatrist should be sought – whenever needed; statement of the victim should be recorded verbatim; truth should be brought out by seeking proper clarifications and comforting the witness; statements should be recorded promptly without any loss of time; parents of the child or any other person in whom the child reposes trust and confidence should be allowed to remain present; at no point should the child victim come in contact with the accused; ensure that the child victim is medically examined at the earliest preferably within twenty-four hours; a friendly environment in the Courts, orientation for doctors registering MLCs etc. The judgment contributed a great deal in changing the dynamics of our courtrooms, making them less intimidating and led to the creation of the much-needed vulnerable witnesses room.
The decision also went on to be considered by the prestigious JS Verma Committee in their 2013 report, which emphasized the need for similar guidelines by High Courts across the country – in dealing with vulnerable witnesses. The Committee suggested that the HCs exercise their powers under Article 235 of the Constitution of India to direct the Trial Courts accordingly, in their respective states.
Despite being the law’s proverbial eyes and ears, witnesses have always been treated by the system with disdain and neglect. The decision above went a long way into making the process less torturous for them. The Vulnerable Witness Courtroom Project, which Justice Mittal spearheaded, was one such initiative in making the Courts more responsive to the needs of the vulnerable victims and witnesses. The Vulnerable Witness Courtroom project, (which, I can speak from experience, has helped a great deal in Delhi) was also introduced in the beautiful State of J&K by Justice Mittal.
Justice Mittal’s interventions even on the sentencing front, have been quite important. As the trial ends, punitive dilemma begins. The dilemma was sought to be eased for the Court by laying down proper guidelines for grant of compensation. Victim, again – a forgotten entity in the system, was put at the forefront of the sentencing exercise. In Vikas Yadav v. State of UP (2015 SCC OnLine Del 7129),the Court (with Justice Mittal writing) seized such an opportunity. On facts, was a case that was a manifestation of the skewed power relations in the society – which are unduly bent in favour of some. The accused persons had murdered the partner of their sister in a bid to preserve their hollow “honour”, as they did not approve of her partner. The immediate question was, first, whether the victims of the crime (the family of the deceased) were entitled to be compensated for the harm caused to them. In answering the same in affirmative, the Court further held that ‘honour killing’ on account of objection to a woman’s choice of life partner is the gravest violation of a fundamental right to life of the woman and that woman in question (and not just the family of the deceased) is a victim of the crime and ought to be treated as such.
Justice Mittal’s judgment in P K Koul v. Estate Officer (2010 SCC OnLine Del 4207) concerned several internally displaced persons (IDP) of the J&K minority ‘Kashmiri Pandit’ community who were relocated to Delhi due to violence in the valley post-1989. They were Central Government employees and had approached the Court seeking protection against forcible eviction of the quarters occupied by them on the ground that it is the only roof available to them. Justice Mittal wrote a landmark judgement upholding the human right to adequate housing.
Recognizing the ‘right to shelter’ as a fundamental right, Justice Mittal observed, “The right to shelter of every person has been recognized as an essential concomitant of the right to life under Article 21 of the Constitution of India.” The judgement condemned the practice of forced evictions, and the Court chastised the respondents for failing to even consider providing rehabilitation to the IDPs. The Court went on to impose exemplary costs inasmuch as the threat of forcible eviction, by the process resorted to, affected the fundamental rights of the petitioners.
One may talk endlessly on how compassion must inform our lives, but the same is meaningless unless we put our pens where our heart is, and our compassion translates into judgments that make a meaningful difference to people’s lives. Justice Mittal’s commitment to institution building and leadership on the administrative side has also been extremely inspiring. For instance, one of the last initiatives by her (though certainly not the least!) was the launching of a two-pronged initiative titled ‘Insaaf ki Dastak’. This initiative seeks to enable continuous access to justice to people living in far-flung areas of J&K. Areas ravaged and cut off by harsh weather and geographical conditions, which is further compounded by ignorance, illiteracy, disability, poverty or any other disabling reasons in approaching the nearest Munsiff, Magistrate, District and Sessions Courts and the High Court. Justice was sought to be brought close to them by allowing them to file certain petitions through the nearest post office.
One common trait in most of Justice Mittal’s verdicts is her remarkable ability to refer to a catena of judicial pronouncements, both domestic and foreign, (tracing the evolution of law) and then distilling the law down to its essentials.
Court On Its Own Motion v. DSP Jayant Kashmiri(2017 SCC OnLine Del 7387) is yet another example of Justice Mittal’s commitment to free speech and the need to ensure that contempt laws do not scuttle the freedom of expression. The facts of the case are interesting. In this case, the Ld. Trial Court had passed an order for the release of documents seized by the Central Bureau of Investigation (“CBI”) during an investigation. The Hon’ble High Court of Delhi set aside this order and the CBI, in its reply, relied on this order of the High Court to support its submission that, as the investigation was still underway, it would not be appropriate to defreeze certain bank accounts at that stage. The Ld.Trial Court took objection to the reliance placed by the CBI on the order of the High Court noting, inter alia, that the reliance was misplaced as the order of the High Court concerned seizure of documents and had no relation to the defreezement of bank accounts and that the said reliance was placed “as a warning and intended to vilify a judicial office” and was a “calculated psychological offence and mind game to intimidate the judge” into seeking orders in their favour”. Observing that this did not amount to fair criticism in good faith, the Ld. Trial Court preferred a reference for criminal contempt against the investigating officer (the Respondent) and other officials of CBI who had approved the reply. While deciding this, the High Court undertook a detailed examination of what was meant by contempt of Court and the different scenarios where this law could be invoked. The Court noted that its shoulders were broad enough to shrug-off such comments and the raison d’etre of the law of contempt, i.e., protection of the administration of justice, should never be forgotten.
Calling for careful consideration in invoking contempt jurisdiction, Justice Mittal also noted the difference between a remark against a Judge as a Judge and a Judge as a person and observed that this law was not for “for the gratification of the desire of an individual to settle scores or on account of undue sensitivity of an individual judge”. Based on these principles, the Court held that the reference by the Ld.Trial Court could not succeed.
Justice Mittal’s observations in Indu Jain v. Forbes(2007 SCC OnLine Del 1424) are also interesting. This was one of the first cases to discuss whether constitutional remedies could be employed to address questions of privacy between private persons. The judgment of the Court is also noteworthy for its observations on the limitations on the right to privacy of public personalities. In this case, Forbes magazine was to publish an issue on Indian billionaires, including the Petitioner. The Petitioner, on a claim of breach of the right to privacy, sought an injunction prohibiting the defendants (Forbes) from effecting publications relating to the plaintiff or posting information about her on their website. Justice Mittal eruditely differentiated between the privacy of an individual and the privacy of a public figure, such as the Petitioner, and the right of the media to report about such influential figures. The Court observed that it was settled law that “the citizen has a legitimate and substantial interest in the conduct of such persons and the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events”. The Court held that the Petitioner had admitted that she was a public person and, given that her accomplishments were widely acknowledged by both the media and the public at large, it was not open to the Petitioner to claim seclusion from a technical analysis of information which was already available in the public domain.
Another interesting decisions is Mahender Yadav v. CBI(2016 SCC OnLine Del 5810), where a division bench of the Delhi High Court (headed by Justice Mittal) was faced with the question as to whether it was sufficient to merely allege that, on an apprehension of bias justice will not be done, and the judge must recuse himself/herself from hearing the case? The Court discussed the issue in detail, placing reliance on Supreme Court rulings and important verdicts rendered by the foreign courts including the United Kingdom, Australia and South Africa. Holding that a duty is cast on the judge to objectively consider the objection and exercise judgment upon it, rejecting tenuous and frivolous objections, acceding only to a reasonable objection of substance, the Court refused to accede to the submission that mere apprehension of bias constitutes as reason enough for judges to recuse themselves. It was further held that the onus of establishing reasonable apprehension of bias rests on the applicant and the same can be established by materials ascertained facts that are “readily ascertained and easily verifiable by making reasonable inquiries”.
Justice Mittal’s versatility as a Judge is manifest from her equally prolific judgments on the commercial law side.
In Angle Infrastructure Pvt Ltd v. Ashok Manchanda (2016 SCC OnLine Del 1534), an interesting question arose before the Court. In a petition u/s 9 of the Arbitration Act, the parties were referred to mediation, where a settlement agreement was arrived at. Later, one of the parties backed-out of the settlement, as a result of which, the legal question of enforceability of such an agreement came to be examined. The Ld. Single Judge in the case had held that given the fact that the settlement agreement was arrived at in what can be called ‘conciliation proceedings’, it morphed into an arbitral award, and was executable in the same manner as a decree. This was under challenge before the Division Bench led by Justice Mittal. Holding that none of the elaborate steps prescribed for a valid ‘conciliation’ under Part III of the Arbitration and Conciliation Act, 1996 were taken, Justice Gita Mittal went on to clarify the difference between ‘mediation’ and ‘conciliation’ in a lucid manner while also enunciating the difference between the manners in which the settlements reached by the two methods are to be executed. The most important one being that a settlement reached through conciliation is executable as an arbitral award, while the one reached through mediation is executable as any court order. This judgment very pithily examined the nuanced question of enforceability of a settlement agreement arrived at during S.9 proceedings (through mediation). The judgement also went on to inspire the insertion of Section 8A in the Jammu & Kashmir Arbitration and Conciliation Act, 1997 which specifically made mediated settlements (arrived at in S.9 proceedings) to be executable in the same manner as arbitral awards.
In Delhi Towers Ltd v. GNCT of Delhi(2009 SCC OnLine Del 3888), Justice Gita Mittal held that a ‘Scheme of Amalgamation’ approved by the High Court would be subject to stamp duty. Analyzing the scope of the courts in sanctioning a scheme of amalgamation under S 394 of the Companies Act, 1956 the Court held that sanctioning such a scheme is based upon the consent of the parties and the transfer of property under the scheme is not an involuntary act. The Court further held that scheme would be regarded as an instrument, therefore a ‘conveyance’, under the Indian Stamp Act, 1899 and, therefore, subject to stamp duty under the Act.
Justice Mittal’s unparalleled contribution to society has been recognized multiple times. For instance, the President of India conferred Justice Mittal with the Nari Shakti Puraskar 2017, the country’s highest civilian honour for women. She also received the P N Bhagwati Award (2019) at the Capital Foundation National Awards in recognition of her stellar judicial work towards access to justice and her innovation in designing the ‘Vulnerable Witness Deposition Complex’.
One can really go on and on about her inspiring body of work and still not be able to do justice. I would just end the piece by saying that, Justice Mittal has taught me (and a lot of people!) the meaning of compassion and justice; helped them navigate the journey from mere judging to justicing. She has been one of the most transformative influences in my life, and over the years, I’ve tried, with much less grace and style- of course (and little success!), to model myself on her, as a young judge, a lawyer, and – more than anything else – as a human being.
Authored by Bharat Chugh.
The Author wants to thank Advocate Rushabh Aggarwal, and Shreyash and Sushant for their invaluable inputs.
I didn’t imagine 2020 to shape out the way that it did. And my guess is – you didn’t, either. ‘The most well laid out schemes of mice and men often go awry’. The Pandemic brought life and all fancy plans to a grinding halt and compelled us to think, and meditate.
“There are decades when nothing happens and then there are weeks when decades happen.” Lenin said. In the weeks following March, decades really happened in a matter of few days. It was almost as if one slept in one’s own comfortable bed but woke up in an almost unrecognisable world. This led to musings such as, ‘Is the pandemic a portal to a better world, or would it destroy to bits – the already precarious economics and politics of the world?’
I am not an expert, and therefore, wanted help in interpreting this ‘post-pandemic world’ and understand what it means for us. I wanted to understand, first, the gravity of the problem, state of the world’s preparedness, and the adequacy of response. I wanted to understand the the short and the long term impact that this would have on economies and lives – worlwide.
This book turned out to be a good lens to look at the world with. Written in simple, engaging and conversational style, it tells us about the state of healthcare worldwide, the kind of government systems which are best equipped to deal with situations such as this, the countries which performed the best and the worst, historical analogies, approaches to expert advice and cultivation of a scientific/evidence based reasoning/temper.
The author tells us as to why and how we need to listen to the experts (scientific temper) and the experts need to listen to us (and not be ivory-tower elitists). It discusses how some regressive forces have pulled us back in our response to the crisis.
It also puts a spotlight on how situations such as this may push the already precarious democracies – off the cliff into the arms of dictatorships and juntas.
How it will increase income inequalities and push the world further to the right and inward. It shines some light on how a pandemic disproportionately affects certain sections – who are already vulnerable, pushing them deeper into the arms of greater poverty, and how government support – most often – is concentrated in a few hands further exacerbating income inequality.
The transition to everything digital (even lives!) and the benefits and the seen and the unseen costs associated with it. Author also talks about how AI is helping crunching big data and coming up with better outcomes and predictions in terms of treatment and the way ahead.
To cut the long story short, a great book to interpret the post-pandemic world. Just to give you a quick peek, the ten lessons that the author pivots the book on are:
Buckle up : In times of crisis, nations stand alone. Awareness against the world’s instinctive response to turn parochial and inwards when faced with crisis. On how purely local solutions don’t work against global problems.
What matters is not the quantity of government but the quality of government. A analysis of how different nations dealt with the pandemic and key takeaways.
Markets are not enough. Need direction and regulation.
People should listen to the Experts – and the Experts should listen to the People.
Life is digital; most solutions are – too.
Aristotle was right; we are social animals. When togetherness turns fatal. The rise of the countryside.
Inequality will get worse. Author demonstrates as to how much of the gains made to reduce inequality during 1990 to 2018 may be reversed due to COVID – if governments don’t act fast. How bail-outs and stimulus may lead to a situation of ‘socialism for the rich and capitalism for the poor’ and the need to ensure equitable distribution. The Author argues that we should watch out for the risk of becoming a market society (Where everything is looked at through the prism of price), rather than a market economy, as Sandel puts it.
Globalisation is injured but not dead.
The world is becoming bipolar.
Sometimes – the greatest realists are the idealists.
Despite the enormity of challenges that await us, the book ends on a positive note by telling us not to be fatalists and that, “Nothing really is written!”. It beckons us to recognise that this ugly pandemic has created this possibility for change and reform. (It is impossible to change wheels on a moving car, right?) It has opened up a portal to a new world. A better world – hopefully!
I want the cultures of all lands to be blown about my house as freely as possible. But I refuse to be blown off my feet by any.
In a debilitating blow to their functioning, the Enforcement Directorate (“ED”), while acting on a foreign government’s Letter of Request (“LoR”) recently, froze a number of bank accounts belonging to a few Indian companies. This was done on the basis of an unsubstantiated allegation (by a foreign government) of monies in these bank accounts being ‘proceeds of crime’.
In this, ED acted on a foreign LoR, without any independent evaluation and appreciation of the tenability of the request and the underlying evidence, and in total disregard of the domestic law – including the provisions of the Prevention of Money Laundering Act, 2002 (“PMLA”) and various international instruments.
This, unfortunately, is not an isolated instance but another one in a series of extremely harsh actions taken by the ED, which – in the recent past, has acquired the unenviable reputation of an agency that’s a bit too trigger happy. ED’s aggressive approach becomes starker given the fact that the constitutionality of many PMLA provisions is currently under serious challenge and being contested in various cases. The serious design flaws, which make PMLA extremely amenable to misuse and constitutionally suspect, are being pried upon in various cases. But this – unfortunately, hasn’t made ED tread lightly at all.
In this background, we argue that ED’s act of attaching assets and freezing bank accounts – solely at the ipse dixit of a foreign government, and in disregard to domestic law, is legally untenable and arbitrary. But before that, let us start at the start with a few quick words on what really is a Letter of Request.
A ‘Letter of Request’ (LoR), in criminal law parlance, is a formal written request from a foreign government/court to a foreign court/authority seeking assistance in relation to a criminal investigation/inquiry or trial. Usually these requests are made on the basis of a Bilateral Treaty/Agreement, Multilateral Treaty/Agreement or International Convention, or on the basis of an assurance of reciprocity.
LoRs are important. The investigation of cross-border crime often involves gathering evidence in foreign countries. National sovereignty, international law obligations, however, prevent a country from just flying into another country to collect evidence or attaching assets alleged to be involved in criminal activity. This is where LoRs become important. With increasing internationalisation of crime and the need for international cooperation to fight against transnational organised crime, the significance of LoRs can hardly be emphasised enough. To put it simply, when crime crosses borders, so should the law enforcement. But how, is the question.
Broad Legal Framework Governing LORs.
The legal framework in respect of an LoR can be traced to the arrangements between two countries and the respective domestic laws. An LoR is forwarded through Mutual Legal Assistance Treaty (“MLAT”), special multilateral treaties (such as the United Nations Convention Against Corruption/UNCAC), Memorandum of Understanding (MoU)/Arrangements, or on the basis of reciprocity.
The implementation/origination of such LoRs within a country is governed by domestic laws such as the Code of Criminal Procedure, 1973 (“CrPC”) and special laws such as the PMLA, among others.
CrPC provisions on execution of LORs.
Under the CrPC, Section 105 deals with the service of a summons, execution of warrants/search warrants – received from a foreign government.
Chapter VII-A (Sections 105A to L) of the CrPC lay down the procedure of attachment and forfeiture of property pursuant to a foreign government’s request.
A perusal of Sections 105-A to 105-L reveals that merely because a foreign government makes a request under a treaty, it does not mean that the same has to be executed without any further enquiry. An LoR, prior to execution, is required to be scrutinised by the Central Government (or the specific nodal agency) for compliance with Indian Laws and the treaty/treaties. Thereafter, the Indian Court to which the request is sent for execution – once again – examines the request independently and executes it only if it is in accordance with the domestic law.
For instance, in a case of a request by foreign government seeking assistance in freezing of assets situated in India, as per Section 105-G of the CrPC, the domestic court is under an obligation to independently formulate an opinion as to the existence of ‘reasons to believe’ (sufficient cause) that the property in question is ‘proceeds of crime’. It is only when the domestic court is independently satisfied that there is sufficient cause and prima facie merit in the request that it proceeds further. In fact, as per the statutory scheme, the domestic court cannot even issue a notice to the person affected without or before recording its satisfaction as to existence of sufficient cause.
Further, Section 166-B of the CrPC makes a similar provision in case of LoRs seeking assistance in investigation in India, which is required to be executed in the same manner as an investigation in India would entail. That is, with the same safeguards and checks and balances as if the investigation originated within the territory of India.
This is the mechanism under the CrPC.
Let us see what the PMLA says in this regard:
PMLA on assistance in LoRs seeking attachment and confiscation of property
Chapter IX of the PMLA deals with mutual legal assistance to and from contracting states. The relevant sections in this regard are Section 58 (which deals with recording of evidence in India pursuant to an LoR through Indian Special Court) and Section 60 (which deals with execution of LoR in India and attachment and confiscation of property by the ED).
A perusal of these sections would reveal that in either case, the foreign government’s LoR is not to be taken at face value and executed mechanically, The recording of evidence or the attachment of assets in India (as the case may be) has to be in accordance with the provisions of the PMLA.
Therefore, the legislative intent and policy is absolutely clear and broadly in line with CrPC. An LoR cannot be executed mechanically and without an independent evaluation of its merits, in accordance with domestic law. This is in sync with the settled position that – in a battle of supremacy between an international law provision/obligation and the domestic law, it is the latter that triumphs.
In the larger scheme of things, the idea behind mandating compliance with domestic laws while implementing an LoR is rooted in sovereignty and the policy of non-intervention in a State’s domestic affairs; This principle of non-intervention covers both extra-territorial application of laws as well as extra-territorial exercise of power by foreign investigation authorities.
For instance, the United Nations Convention against Transnational Organised Crime (“UNCATOC”), which was brought in force with the primary intent to encourage mutual legal assistance between contracting states, in Article 4 recognises the principles of sovereign equality and territorial integrity of States and promoting the policy of non-intervention in domestic affairs.
At a micro level, the upshot of this is protection of fundamental rights and guaranties afforded to the citizens through domestic laws. So, despite receipt of an LoR from a competent Court of a foreign country, ED is still obligated to act in compliance with the provisions of PMLA. For instance, if the LoR seeks freezing of bank accounts, ED has to act in accordance with the provisions of Section 17 of the PMLA and record independent ‘reasons to believe’ as to the property being involved in money laundering, and only upon being satisfied – go on to attach the same. This is an important bulwark against arbitrary state action which seems to have been set at naught in the case under discussion, amounting to a violation of not only domestic law and constitutional rights but various international instruments, In addition, it also raises concerns for the larger state policy of non-intervention and protection of sovereignty.
Position under international instruments
The obligation to act in accordance with domestic law is also reinforced by international arrangements. Take – for instance, the United Nations Convention Against Corruption (“UNCAC”) – which seems to have been pressed into action by the ED (in the cases above) to freeze the bank accounts. Here, a bare reading of Articles 31, 43, 46, 54, 55, 57 of UNCAC manifests that all requests received under UNCAC can be executed only and only if the same are compatible with the domestic law and in strict accordance with the domestic law. Further, these articles also make it clear that all actions under UNCAC are to be without prejudice to the rights of bona fide third parties; bona fide parties who have nothing to do with the offences in question.
There are similar provisions in the UNCATOC too, which make it absolutely clear that domestic law cannot be set at naught merely because a foreign government makes a request for attachment of assets.
This is also the position under the 2019 guidelines issued by MHA in relation to executions of LoR/MLAT requests, where:
Article 1.10 provides that the MHA has to ensure execution of requests “in accordance with Indian Laws and in the manner specified by the foreign country, if it is not contrary to Indian Law.”
Article 1.14 further provides that execution of a request should not be refused “if it can otherwise be executed in accordance with the laws of Contracting State.”
Article 2.2 provides that MHA has to be examine if a request is “complete and fit to be executed in India”.
Article 2.4 provides that “All the incoming requests are executed in terms of provisions of extant Bilateral Treaties/Agreements, Multilateral Treates/Agreements or International Convention and in accordance with Indian Laws”.
The principles of comity and international cooperation in the fight against crime indeed merit that all LoRs are given serious consideration. However, in this endeavour, important safeguards under domestic laws should not be disregarded. In a country such as India which boasts of constitutional safeguards and the checks and balances it imposes on the legislative and executive exercise of power, the very idea of implementing LoRs without consideration of domestic laws amounts to circumvention of the entire protective constitutional framework. Further, it speaks to a greater concern of national integrity- an unnerving willingness and callousness of nations to dilute their sovereignty when it comes to protection of individual rights and freedoms. We must remember : comity is good, but not a comity of errors.
Authored by Bharat Chugh, Advocate, and Nimrah Alvi, Sr. Associate (Shardul Amarchand Mangaldas & Co). Views of the authors are personal.
This is a guest post by the very talented young judge – Pratik Sagar, (Civil Judge, 30th batch, Bihar). This is how it goes:
Hello, hope you are doing fine! If you are reading this article, it means either you are preparing for coveted judicial service examination or maybe you are still in the decision making process to prepare for it! This article could be helpful for both the categories. First, let me introduce myself: my name is Pratik Sagar and I am from Ranchi, Jharkhand. I had always been an average student with no major academic achievements. I graduated in History from the University of Delhi and did my LLB from the same in 2017. I cleared the 30th Bihar Judiciary Exam (2018-19) with 54th rank in my first attempt. Earlier, I also took mains of Delhi and UP. After cracking the Bihar Judicial Service Exam (BJSE), I have been asked many questions regarding my strategy for the exams by many people. This prompted me to write this article so that others may also get benefitted from it.
First, a disclaimer: There is no fixed route to success and everyone carve one’s path, so whatever I am discussing is what I followed in my preparation and many may beg to differ thus, may apply their discretion and prepare accordingly. Our destination is the same, routes may be different.
Since, the examination pattern of every state is different and requires different approach of preparation hence, I will be sticking mainly towards Bihar’s examination. However, it’s not that all these cannot be applied while preparing for another state examination.
Before delving towards the strategy I adopted for the exam, there are few things which I want to discuss with you all, and I hope you bear because trust me all these small things though seems trivial, could matters a lot.
Passing any college exam and clearing any competitive exam are two different things. To crack a coveted exam like judiciary you need a different approach; you cannot rely on any short trick or jugaad, or just wait for the night before the exam to study, or depend on someone’s photocopied notes. Here, you have to sail alone in the rough sea and become your light-house. You need to devote time, put effort, sacrifice many things, and have to convince your mind for the long battle ahead.
In two and half years of my journey, I have seen many students who have started the preparation with full zeal and vigor but lost the same within few months, or some held it till the preliminary exam but once failed to lose all the zeal and changed path. So, if you want to prepare for the exam then first make up your mind taking into consideration all the factors and problems which you would face. I am pointing out a few of them which I had to tackle:
FINANCIAL PROBLEM: It is one of the biggest problems most aspirants usually face. You may be a fresh law graduate with no source of income or a practicing advocate. You have to be dependent on your family or your savings (if you have) for at least one to two years. Barring some, most of us would not afford a luxurious life with weekend parties and all. Besides, you continuously need money to buy books, fill up the exam form and for traveling to different cities to take exams, and if you are preparing by staying away from your home then add all the other expenses yourself. If you have savings then you don’t need to bother much, but still, you need to get your job as soon as possible.
SOCIAL PROBLEM: You may have to face various irrelevant and annoying questions from your relatives, neighbors, and school or college friends regarding your career and future. There will be some kind of invisible societal pressure on you to get settled soon. You may face taunt or ridicule for being unemployed or for wasting your precious time. Some of your peers may get placed in good firms with handsome salaries or have flourishing practice, some may get admission in coveted universities for further studies, or some may even get married. And here you are struggling with your notes and burning the midnight oil. With the cloud of doubts and failures looming over your head, you might feel a loser in life and could question your decision of choosing this path.
MENTAL PROBLEM: You have to live a mundane life; the same rigorous routine for every day except for a few off. No long vacations, not much weekend parties, not much binge-watching, etc. Your books and notes will be your only companion. You may, while scrolling through Instagram watch your friends having the best time which could give you FOMO(feeling of missing out). All these could take a toll on your mental health!
I have seen many succumbed to the above-mentioned problems, while few stronger ones came out as a winner. By mentioning the above problems, I do not want to dissuade or demotivate you. I just want you to be aware of the problems which you might face. The competition level is high these days. Some students are giving ten to twelve hours a day for the past one or two years. You need to beat them to get yourself in merit, so it will not be a walk in the park for sure. I don’t want you to start preparation and give your valuable six to seven months and retreat facing these problems. So it’s good to remain mentally prepared in advance. However, I must tell you this, if you prepare for this exam religiously then you may, God forbid, not clear it but you will never be the same person. As it is said, “what can’t kill you makes you stronger”. Thus, wherever you would go you will outshine others with your knowledge, persistence, and hard work.
Now, let’s start the business for which you are here. Bihar Judiciary exam consists of three stages: Preliminary, mains, and interview. I will be dealing with the preparation for each stage separately.
Paper 1 (100 marks)
i) General Knowledge including current affairs
ii) Elementary general science
Paper 2 Law (150 marks)
Law of Evidence and Procedure( CPC and CrPc)
Constitutional and Administrative law
Hindu and Muslim Law
TPA, Equity, Trusts, and Specific Relief Act
Contracts and Torts
Sale of Goods Act, Negotiable Act, Company law, Partnership Act
P.S: No Indian Penal Code 1860
First, let’s see how to prepare for the law part. Ideally, one should prepare for PT and Mains simultaneously.As once you clear the PT you will have quite a less time (around 40 to 50 days) for mains preparation. Thus, I would suggest you devote time for both till the notification is out and after the release of notification, you should prepare only for the PT.
Preliminary exam check your command over the bare Acts, the basic concept of law, and landmark case laws. So your primary tools will be the following:
Bare Acts of all the subjects (latest).
Notes self-prepared or of any good coaching.
Books to solve MCQ: Universal MCQs or Singhal MCQs.
Previous years questions: OP Tripathi or Pariksha Manthan( I had this) or Singhal.
Highlighters( colors matter in our boring life)
Live Law website or app for legal current affairs.
Books I referred:
Constitution: Laxmikanth (polity), J. N Pandey, Singhal’s law guide, Ghatnachakra(polity)
IPC: Pillai’s (for interview)
Administrative law: Takwani
Evidence: V.P Sarathy, you can go for Batuk Lal
TPA: R.K. Sinha’s
Trust: Bare Act
SRA: Singhal’s law guide
Torts: Singhal’s law guide, Bangia
Hindu law: Singhal’s law guide, Paras Diwan
Muslim: Aquil Ahmad, Singhal’s law guide
P.S: I also had Rahul’s IAS coaching notes.
Bare act will be your Bible, Quran, and Bhagwat Gita for the PT, so you need to give it the same respect and keep it close to your heart and mind. Your preparation starts and ends with it.
The following are the methods that I adopted to cover the bare acts and clear the PT of almost all the states in my first attempt.
First, read the contents to get an acquaintance with the Act. Then give a slow first reading from the first line to the last (only if it is a small act like SRA, Contract). Don’t highlight or underline in the first reading.
Then start reading slowly chapter-wise. Try to understand the provisions keeping in mind words like – notwithstanding, provided etc. Read all the illustrations as well, since, lots of questions come from those. Once you are done with the chapter close it and open PYQ (previous year’s questions) and try to solve the questions related to that chapter. Mark the questions and sections in which you were unable to answer correctly and simultaneously read the concerned section in the bare act. Try to analyze the trend of the questions and figure out the pattern of the questions – how they are framing the questions, which portion and illustrations seem relevant, etc.
Once done with this, read again the same chapter and highlight the important words and illustrations.
After doing the above, close everything and try to mentally recall all the important provisions of that chapter and see if you can recall or you are missing anything. If you are missing anything then open and read again. Sometimes, I would just open the index and try to recall all the ingredients and landmark case laws of the sections.
After completing one Act before heading to a new one do give one revision, if it is not possible, then must try to revise it within one week.
I know all the above-mentioned steps seem time-consuming and exhausting, but trust me it’s very important. It is very easy to forget everything if you do not imbibe it in your memory, otherwise, you have to start de-novo. Whatever we remember get store in our short-term memory; we have to convert it into our long -term memory. For this, revision is the only key so try to revise as many times as possible.
It may happen that when you try to revise any subject after a month or later, you feel you have forgotten most of the things and that may put you in anxiety. It happens with most of us so, don’t worry, and keep on revising, with time everything will get etched in your memory.
For Acts like CPC and CrPC, I did not follow the above methods, as these are lengthy Acts and take the most time to cover. I would suggest never try to cover these in one go. Keep reading these along with other minor Acts. What I used to do was, every day I would give one hour to these (either CPC or CrPC) and rest for others. By adopting such a strategy there was harmony in my preparation. I would never get bored of reading only the dry provisions of procedural law and simultaneously my other minor Acts would also get completed, which would further boost my confidence (much needed in a long time). Every day I would try to complete one or two orders of CPC and solve Mcqs, same with CrPC (a few sections every day).
Here, I would also like to clarify that reading CPC and CrPC requires understanding. You should not just open the Bare Act and start reading. First, prepare these subjects according to the mains examination with the help of books or notes of any coaching. The above-mentioned suggestion should be adopted when you are done with mains and have entered in PT preparation. As when you are studying from a PT perspective, you need to read the whole Acts (at least once) and a basic understanding of the subject will help you in remembering the provisions.
If you look at the previous year’s questions of procedural law of all the states, you will find that you do not need to read and remembers all the sections or orders. For CPC, I feel, out of 51 orders, 30 around are the important ones. So, after reading all the orders once, focus more on these orders while re-reading.
I find the following most important: Order 1 to 20, O 21(few rules related to Garnishee etc) O 22, O 23, O 24, O 32, O 35, O37, O38, O39, O40, O43, O47, O48 along with all the sections. You ought to have a good command over these orders. Rest you can read and remember if you have time, keeping in mind the marks allocation of the subject.
Do try to remember all the chapters numbers and orders number, as you may get direct questions from there, mostly from CrPC, CPC, TPA, IPC, SRA.
In one place write down the date of enforcement (including important amendments date) of all the Acts, since, many Acts have the same date of enforcement it will be easier to remember.
While reading gives more importance to amended sections and new sections inserted in the Act.
If possible, try to write landmark case laws related to particular sections near those sections only. I had dual-language bare acts so I would stick notes of case laws on the Hindi side of the Acts. It becomes easier to remember case law by this method.
Try to make learning as interesting and active as possible– use highlighters of different colors, sticky-notes, tables, charts, tricks, etc whatever aids you in your learning. Keep trying new and innovative methods to learn sections and case laws. Passive reading will not take you further.
Self Assessment is the key
If you are not attending any coaching class, then you need to know whether you are on the right track or not. A mock test is the most important tool for that. Generally, most of us solve MCQs after completing one subject; it’s good and necessary, but may not prepare you completely for the examination. In the examination questions may not be divided subject-wise. Your mind needs to jump from one subject to another which makes it difficult to recall the exact provisions, and with time running it becomes even trickier. Therefore, once a week try solving question papers of previous exams from all the states, even if the pattern is different or some subjects are out of your state syllabus (leave those).
Try to create the exam-hall atmosphere; don’t let anyone disturb you during your mock. By giving mocks regularly, your mind will be trained to solve questions under pressure within the time. It will be immensely helpful to you on your D-Day. We all know how important the mock-test is; still, due to fear of self-assessment, we tend to avoid it.
Remember, the primary purpose of giving mocks is to prepare ourselves for the examination. Even if you are getting bad marks, it is okay keep doing it. Further, it will also help you analyze what kind of mistakes you are making and in which subject you need to work more. If you take my example, I found that I would not read all the options carefully, and despite knowing the correct answer I was committing mistakes. So always try to attempt mocks with utmost diligence.
For General Knowledge and General Science
It is said that Gk/GS is the one which decides whether you will clear the exam or not. I, from my own experience, can say that I have seen many bright and hard-working students who did not able to clear the exams due to GK/GS (especially in Delhi, UP, and Bihar). It is because of the step-treatment which we give to these subjects. Since the beginning of the preparation, we focus all our attention on law papers.
I know we get a certain kind of satisfaction reading law which we may not get while reading Gk. But we also need to keep in mind that the clearing exam is our main purpose, which requires giving equal importance to GK/GS. Mind my words; do not underestimate GK/GS. You may think you can do it anytime or you may plan to do it after completing your law subjects. Trust me on this it could be your biggest mistake.
Syllabus of GK/GS is not limited; they can ask questions from anywhere or on anything. For example, in my mains, there was this question- why the Red Sea is red? Or when Doctor’s day is celebrated and why on that day? I knew the date but did not know the reason for its celebration. I think I need not give you more examples to show you the variety of questions which you can expect. So I beg you to start reading GK/GS at least for two hours from day one.
BOOKS I REFERRED FOR GK/GS
For General knowledge:
Newspaper – The Indian express/ The Hindu (English), Dainik Jagran (national edition, Hindi). If offline is accessible then prefer that over online.
News and Events (you can find on Readwhere app) and Pratiyogita Darpan or Arihant special editions
Study IQ youtube channel, Live Law, some telegram channels etc.
Self notes for Current Affairs and Static GK
General knowledge (Crown publication/ Lucent)
Ghatnachakra special edition for History and Polity
Lucent General Knowledge objective
For General Science:
Lucent General science special edition
Upkar General Science ( First 100 pages only)
Ghatnachakra Special Edition for Science ( Must)
NCERT class 6th to 10th ( one reading)
Some PDF notes such as “most important MCQs for Science” got online.
For the preparation of the above paper, there is no fixed strategy; every one prepare as per one’s strategy. However, I would like to bring out a few important points which we must keep in mind while doing so.
Do not run after materials: Internet and market are flooded with materials for general knowledge. We download hundreds of pdfs, apps for current affairs, e-books etc. Then give one or two readings of those and moved on. You should never do it. Go through past year papers of ten years, analyze the questions properly and then decide which books and sources would be appropriate to you; stick to those till the end.
I used to live in Mukherjee Nagar (Delhi) (hub of IAS coaching’s) and in the market, I would get all types of material. Not buying them seemed irresistible. But after a few setbacks, I realized I need to stick to few sources only. As revision is the key. You need to revise the same material throughout the year so that all the facts get fixed in your mind. And, reading from multiple sources will not serve that purpose
History and Geography: Almost 50 questions come from these two in PT. So prepare it nicely. If you do not have any idea about History, then, first I would suggest you read NCERT (from 6 to 10) to have some basic understandings of the entire event so that you may connect while remembering the facts. – If not much time left then you may leave reading NCERTs. Further, you must give at least three readings of Ghatnachakra. No need to read and remember all the explanations, just try to remember the questions and answers. Same strategy for Geography. Try to remember all the important tables of History and Geography from lucent, lots of questions come from those.
Current Affairs: I reiterate don’t run after materials. Follow one standard newspaper and read it as per the requirement. Remember, we are not preparing for Civil Services so no need to research everything. Just have a good understanding of everything important happening all around the world. No need to read political, entertainments, local news much. Focus on what is relevant.
Notes from the Newspaper! I do not suggest you to make daily notes from the newspaper. Though, I will suggest having one notebook, and whenever you come across anything important from the essay, mains, or interview point of view note down only those. For the rest, you have your monthly magazines. Read and revise those throughout the year.
I will also suggest having one notebook for current affairs wherein you make various categories such as – books and authors, awards, sporting events, important relevant abbreviations, deaths of famous personalities, days of the year, etc (analyze previous years). While reading newspaper and current affair magazines if come across important facts related to these categories then note down in your notebook. By doing so, you will have all the important facts in one place. Then it will be easy to remember and revise at the last moment say a day before the exam.
P.S- Remember your purpose should be to prepare in such a manner that you can revise everything a week from the exam as that is the most crucial time.
Legal Current Affairs: Being a law student, propriety requires that you should be aware of all the important happenings of the legal world including landmark judgments. Even in the interview as well as mains questions could be asked on the latest case laws, thus, you should follow it from the beginning.
For this, live law (blog) and newspapers are the best source. Daily try to give half-hour reading legal news and make short notes. I had one notebook which was divided into three parts: civil, criminal, and Constitutional. I would write down all the important case laws therein with brief facts and whatever was held by the Supreme Court as well the High court of my targeted states.
Other useful online sources for legal knowledge are the following:
Bar & Bench
The Leaflet by Indira Jai Singh
Faizan Mustafa’s (VC of NALSAR, Hyderabad) youtube channel, quite informative and analytical.
Youtube channel- Vidhik Shikhsa by Man Mohan Joshi, Theory of Abrogation, Finology Legal, Delhi Knowledge track ( for interviews of judiciary toppers)
Telegram channels: Judiciary my dream, Judicial Services etc
Choti Magar Moti batein (little things matter most)
Eat healthy think better: Never compromise on your health while preparing. Every day gives at least thirty to fifty minutes to physical exercise such as yoga, stretching, running, anything you like. One of my friends has suffered ignoring his health. Sitting long hours for studies gave him a spinal problem and he was bedridden for a month before mains. You don’t want that to happen to you right?
Mind is your biggest tool so take extra care of it. Do meditation regularly, if you don’t know then learn it; no need to be a master of it, simple breathing exercise would suffice. In the long term, you will feel its benefit trust me on this. It will keep you calm, and ward off negative thoughts, and also help in concentration as well as retention. There are so many videos available on youtube, even there are apps such as headspace, etc.
Try to avoid junk foods and include in your diet food which is good for your mental health such as green vegetables, milk, egg, almonds, etc. I still daily eat almonds.
When you are down:It will be a long journey for sure (around 1.5 years for everything to get completed) and not every day will be the same. Some day you may feel low in energy and lack of motivation or someday you may feel like Spartan warriors. It happens with everyone, it is okay! If you don’t feel like studying, take a break, go out meet your friends watch movies, have dinner and forget everything for a while, refuel yourself for the next day.
Someday, you may need to motivate yourself to get going, watch motivational videos or interviews of IAS or Judiciary toppers. Close yourself and imagine yourself fulfilling your dream and the smiling faces of your closed ones. Believe me, the day you will achieve your dream, that feeling cannot be expressed in words, it will emotional and magical at the same time. I used to imagine how I will tell my parents about my result and how will they react Study for that day.
Sometimes, I would also, to inspire myself, watch movies and read books related to law and courtroom drama.
Following are my all-time favorites, do watch and read when you get time, you will also get to understand our responsibility as a judge or as an advocate in the society.
Movies- Shahid(2013), A few good men(1992), Twelve angry men (1957), Witness for the prosecution(1957), A time to kill(1996), Primal Fear(1996), The Firm(1993), Erin Brockovich(2000), Suits (series)
Books- To kill a mockingbird (movie also), the Rainmaker, the Alchemist (motivational), Before Memory Fades, Legal Eagles, Courtroom Genius.
Have a goal:Always have goals for your preparation. It should be a short-term goal and long-term goals. Short-term goals include your daily and weekly targets. Long-term include monthly target.
Whenever you go to sleep, just a few minutes before that, you must decide what you will study tomorrow and how much you will have to cover so that when you wake up, you have a goal to achieve for that day. Never start a day without a goal. It will have a psychological effect on your mind, followed by many toppers.
At last, have faith in your hard-work and destiny, if you have given your best then your effort will never go in vain. And the most important, enjoy the journey and the learning process. ALL THE BEST! SEE YOU AGAIN.
Guest post by Pratik Sagar. (Civil Judge, 30th batch, Bihar)
This is a guest post by the very talented lawyer Ambanshu Sahni. This is how it goes:
The Jasmine Revolution in 2010-2011 in the Middle East showed us the power of social media. Social media appeared as a tool for righting many wrongs. It was this great unifier before which everyone was equal. It provided a voice to the muted. It provided space to our thoughts and opinions; it gave us a sense of being heard.
Fast forward 10 years and we are far from being heard but, yes, we are a herd! We are knowingly or unknowingly part of herds led by wolves. Our questions, our needs, our demands have been removed from the public discourse, and every day we are provided with a new outrage. We get online we rant, we abuse and we come back. The great unifier has become the greatest divider of the 21st century. It was supposed to be our thing; it was supposed to be the weapon of the ‘have nots’ against the tyrannies. This piece attempts to understand how social media has failed us and how we failed it as citizens.
Daily Mental screw up
Suppose I ask you to laugh for 20 seconds and then ask you be angry for another 20 and then I ask you to cry for another 20 and then admire a beautiful painting for 20 seconds and then I ask you to look at this 20-second cute puppy video and then I suddenly show you a brutal lynching and then for another 20 seconds I make you hear a man abusing someone and then I ask you to repeat the cycle for 3 hours daily. You would say, “Are you trying to screw with my brains?” This appears to be a clear attempt on my part to make you lose your mental faculties. This is exactly what is happening to us at 100 Mbps speed. The high-speed internet, the ever imaginative apps, and our twitter-facebook feedsdo exactly that, we go through a range of emotions within fractions of second, maybe I have seen too many Hindi movies but the so-called Pagal (Mentally challenged) depicted in those movies used to go through that many emotions in such a short period. Not only does it affect our attention span but it reduces our ability to think and in addition to this it encourages herd mentality. We consume too much information in little time and don’t have time to reflect. More often than not our opinions are based on one-sided half baked information.
Memes replacing books and newspaper
Today we see the most complex issues of economics, national security, and even science is reduced to memes. A photograph carrying two lines or more attempts at cheap humor and in the process reduces the nuance of the issue at hand to zilch. No matter how tangled the webs are these memes try to simplify it, a process that they fail most of the time. This might appear to be a pro-government example but take for example : ‘Petrol Price rise’; here we see various memes criticizing the government, we laugh at them, and in process we also form an opinion regarding the same. The process of petrol pricing is complex and is market-driven but we tend to understand through the eyes of a memer or his understanding. The meme was probably made without any seriousness or maybe with an agenda. Another example is fall of UPA 2; if you look closely the fall of UPA 2, it coincided with the rise of Whatsapp, Facebook, and twitter. Every day we were flooded with memes on corruption, on petrol price rise and other issues. The end result saw a regime change but was there a systemic change the answer is NO! There has not been a single conviction in the “corruption” cases of the UPA era. The rapes are still happening in India. People have forgotten about the joy of reading books. The newspaper is a thing of past now and social media is the culprit here. Our laziness towards reading has allowed social media to control our thoughts and action.
The Internet never forgets: The age of no step back
Recently Shashi Tharoor took out an old tweet of Actor Anupam Kher which talked about questioning the Government. The actor who was an open critic of the Government during UPA has turned supporter of the present regime. The said tweet talked about questioning the government whenever it’s wrong. The message of the tweet holds good no matter which party is in power but the actor went on defensive and things got ugly from there. But I digress; the political parties and politicians can take hard stances because they are committed to an ideology or so they should be but we the citizens why do we harden our stance? We do that because the internet never forgets because we have taken a public stance and this era of machismo we cannot take a step back. We are by such actions hurting ourselves and the democracy the most, the citizens are patriots and son soil and such other things but they are Consumers too and are being provided a service by the Government. When we fail to question the service provider for poor service we are harming ourselves too. Not only we fail to question the government for its failures but due to our previous stance, we openly defend transgression of our rights by the state. I mean the one thing that was common to us Indians was our love for cricket and hate for our political class. I am not saying hate your political class, but also feel free to question them when he steps out of line, I mean haven’t we all questioned authority in our schools our colleges does that mean we hate our school or college or our principals and teachers personally? Let the Internet remember but you don’t forget your questions will strengthen the democracy not weaken it.
Silver lining and other things
It is not as if social media is all bad. It has shown its power the most in helping out the distressed during a national calamity. The messaging is fast and effective and the problems get sorted in hours. The social media has reached deep into our villages and has forced our babus to make social media accounts. These accounts have encouraged accountability. Some of the IAS officers have put social media into innovative use and delivered exceptionally. Late External Affairs Minister Sushama Swaraj used social media to become the savior of many stranded in foreign lands. In the present time, it is helping us stay in touch with our loved ones. If the above usage of social media does not work for you there is always a puppy video. So there is no straight solution to the problem at hand. I feel a reduction in screen time, softening of stance, and questioning and ensuring accountability would ensure better use of social media.