Speedy disposal of Intellectual property rights cases

BajajAuto Limited Vs. TVS Motor Company Limited JT 2009 (12) SC 103

 Dispute over Patent for the Use of Twin-Spark Plug Engine Technology – Speedy disposal of Intellectual property rights cases- The Supreme Court of India by this landmark judgment has directed all the courts in India for speedy trial and disposal of intellectual property related cases in the courts in India. In two-year-old dispute involving two companies, which have been locked in a patent dispute over the use of a twin-spark plug engine technology, the Supreme Court observed that suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. The Supreme Court directed that hearing in the intellectual property matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit. The Supreme Court further directed to all the courts and tribunals in the country to punctually and faithfully carry out the aforesaid orders.

Trump on Copyright: How the Trump Administration will approach copyright law and potential copyright reforms

This month the International Intellectual Property Alliance published its report on the contribution of copyright industries to the US economy. It demonstrated the major economic benefits to our society that are attributable to our traditional protection of intellectual property rights. At the issuance of this report, Congressman Doug Collins, House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet Vice Chair, stated, “Creativity undergirds the 21st century economy, and strong intellectual property rights ensure that our economy benefits from the innovation and pluck of American workers who bring many of our dreams to life…..Our nation’s founders, in their wisdom, placed intellectual property rights under the umbrella of our protected Constitutional rights. From the beginning, Congress has had the responsibility of upholding and strengthening those rights—which fuel American ingenuity….”

We know that not only are copyrights grounded in the constitution, but core copyright industries contribute approximately $1.2 trillion to the U.S. economy annually, and employ over 5.5 million American workers. At the same time, however, we are acutely aware that, unfortunately, copyright theft online is rampant, and the Digital Millennium Copyright Act (DMCA) has increasingly become ill equipped to address even flagrant, willful copyright infringement in the digital world.

What we don’t know, however, is how President-Elect Trump and the Trump Administration will view copyright issues, and whether pro-creator copyright reforms will be on the President’s agenda come January 20, 2017. We can, however, make some educated guesses based on Trump’s entertainment industry ties, his potential Supreme Court nominees, and those he is surrounding himself with on his Transition Team and in a Trump Administration that is increasingly taking shape.

Trump Entertainment Industry Ties

People have called Trump many things, but even his most vociferous critics must admit he is a media genius. As an entertainment personality, he first became known as an author, writing: Trump: The Art of the Deal, first published in 1987. Trump has written other books since, but he became most widely known for his starring role as the host of the reality TV series The Apprentice. Trump recently tweeted that he conceived of the idea of The Apprentice with producer Mark Burnett, and he will continue to receive Executive Producer credit on the show even after he is sworn in as President. Trump also owned the Miss Universe beauty pageant from 1996 until 2015. All in all, Trump has over 30 copyrights to his name, not including any owned by his companies.

Despite this background, we cannot be certain that the new Administration will side with copyright owners. To be sure, the President-elect has been for some time a larger than life media personality and talent within the industry, and thus might be inclined to support others in the creative industries Moreover, Trump has had on-again off-again rocky relationships with broadcast networks over the years (see here and here) and the Silicon Valley giants that find themselves at cross purposes with content creators in the digital era did nothing to endear themselves to Trump during the campaign. In fact, with the exception of Peter Thiel and to a lesser extent Mark Zuckerberg (who was largely defending Peter Thiel) the Silicon Valley elite snubbed, mocked and ridiculed Donald Trump and his supporters throughout the election cycle. With all that said, however, predicting the new Administration’s position on specific copyright issues is a fool’s errand at this time.

Potential Supreme Court Nominees

One of the first things President Trump will likely do is appoint a Supreme Court Justice to fill the vacancy left by the death of Justice Antonin Scalia. Trump has released a list of possible nominees for the Supreme Court. Only a few seem to have any copyright experience or familiarity in their professional past.

Florida Supreme Court Justice Charles Canady previously served in the House of Representatives from 1993 to 2000. While in Congress, Justice Canady served on the House Judiciary Committee and its Subcommittee on Courts, Intellectual Property, and the Internet. He co-sponsored during his time in Congress two bills related to copyrights: (1) The Copyright Term Extension Act; and (2) The Intellectual Property Antitrust Protection Act.

Senator Mike Lee (R-UT) has had some involvement with copyright policy in the music industry as chairman of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, but he did not tip his hand about whether he places more value on copyright as a property right or on a consumer’s ability to access the copyright. As an example, he summarized his opening statement in a hearing last congress with the non-committal statement, “As we listen today, we must remember that we have both a responsibility to encourage creativity by recognizing the value of copyrights and a duty to ensure that prices for music remain competitive for consumers.” In 2012, Senator Lee opposed the Protect IP Act, legislation supported by the copyright industries to provide the US government and copyright holders additional tools to curb access to rogue websites dedicated to the sale of infringing or counterfeit goods. In a statement Senator Lee released on January 18, 2012, explaining his opposition to the Protect IP Act, he explained he was sympathetic to the objectives of the Act, but thought the bill “would threaten Internet security, stifle the free flow of online information, and unduly burden third parties.”

Senator Lee’s brother, Utah Supreme Court Associate Chief Justice Thomas Lee, previously specialized in intellectual property law while in private practice. Justice Lee also taught intellectual property law at Brigham Young University. However, Justice Lee seems to have primarily specialized in trademark law, not copyright matters. Only two articles relating to copyright law could be located that were authored by Justice Lee, both written while he was a Law Professor at BYU. They are: (1) Eldred V. Ashcroft and the (Hypothetical) Copyright Term Extension Act of 2020 (2003); and (2) “To Promote the Progress of Science”: The Copyright Clause and Congress’s Power to Extend Copyrights (2002) (co-authored with Senator Orrin Hatch R-UT). In the 2003 article, he argued that if the Supreme Court ruled in Eldred that a term of life plus seventy years was “limited” than they would be unlikely to rule differently in the case of life plus 100 years. A thirty year increase is still not a “perpetual copyright.” In the 2002 article, however, the authors argued in favor of the Copyright Term Extension Act (CETA). Specifically, they supported their argument using the scarcely referenced preambular purpose provision of the Copyright Clause, “promot[ing] the progress of science” and took issue with the then-existing scholarly literature that asserted “that copyright fulfills its constitutional purpose only if it increases the quantity or quality of the existing body of artistic works.” They argued that progress does not inherently equal “more” but rather the physical movement forward. “The Copyright Clause,” they wrote, “encompasses the broader notion of encouraging the dissemination and preservation of existing works. Since the CTEA can be understood to advance those objectives” it should be upheld as “constitutional.”

Trump, Trump Transition Officials and Trump Nominee Statements on IP

Perhaps the closest thing the President-elect has offered as an insight into how he will treat copyright as President came during an August 8th speech outlining his economic plan. He stated (with the following underlining added for emphasis):

“At the center of my plan is trade enforcement with China. This alone could return millions of jobs into our country. They break the rules in every way imaginable. China engages in illegal export subsidies, prohibited currency manipulation, and rampant theft of intellectual property. They also have no real environmental or labor protections, further undercutting American workers. Just enforcing intellectual property rules alone could save millions of American jobs. According to the U.S. International Trade Commission, improved protection of America’s intellectual property in China would produce more than 2 million more jobs right here in the United States.”

One of the transition team members, Congresswoman Marsha Blackburn (R-TN), House Energy and Commerce Committee Vice Chair recently stated, “Creativity unleashes endless possibilities as evidenced by the results of this study. The contributions made by the creative industry to the US economy are remarkable. It’s imperative that we continue pushing to protect intellectual property rights.”

Another of Trump’s transition team members, Congressman Tom Marino (R-PA), a member of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, has been a long-time copyright supporter. He noted upon introducing the Copyright Office for the Digital Economy (CODE) Act, “Creativity is the essence that has made America the most prosperous nation in the world.” At an event for music publishers and songwriters, he said, “I know firsthand what it is like to work hard for a paycheck and stretch a buck into next week. I appreciate the painstaking hours you put into your craft. When I think of songwriters, I think of the extraordinary gifts songwriters create for society. Music provides the soundtrack to our lives… Call me crazy, but if you work for hours and hours on a hit that is played around the world, your paycheck ought to reflect that success and make a good living for you and your family… There are songwriters in each district in America… If each of these songwriters reaches out to their members of Congress, we can make a difference. Advocacy is of the utmost importance.”

The President-elect’s nominee for Secretary of Commerce, Wilbur Ross, wrote an op-ed in July 2016 saying WTO provides “little or no protection” against IP theft. Moreover, he stated that future trade deals should have “zero tolerance” for IP theft.

Conclusion

The creative works that are supported by America’s copyright laws – music, movies, TV, books, software, and video games – bind us together as a nation. Admittedly, there are far more questions than answers with respect to how the President-elect and his Administration will approach specific copyright law issues and potential copyright reforms, but there is reason to hope that they understand the critical importance of copyright to our economy, to good American jobs, and to our global competitiveness.

http://www.ipwatchdog.com/2016/12/18/trump-administration-copyright-law-copyright-reforms/id=75793/

Aircel-Maxis deal: Supreme Court orders 4 accused to appear before Special Court

The Supreme Court on Friday said that the four accused in the Aircel-Maxis case would have to appear before the Special Court and the scheduled the hearing on February 3, 2017.The SC said Aircel spectrum was to be seized & transferred within 2 weeks if the controller & owners did not appear in court in connection with the case. Earlier yesterday, the Chennai High Court had dismissed a bunch of petitions challenging the summons by the Enforcement Directorate citing that the Aircel-Maxis deal was being heard by the Supreme Court. One of these petitions had been filed by former Union Minister P Chidambaram. Karti Chidambaram and Advantage Strategic Consultants Private Limited’s directors were among the other known petitioners, who had challenged the ED summoning. Karti, in his petition, had contended that the summons was a malice in law and added that the summons was campaign was to aim to bear ill reputation of his father, P Chidambaram. Justice B Rajendran had concurred with the Centre’s counsel and said that the matters related to the case were being monitored by the Apex Court.

Earlier in September, senior advocate Harish Salve had appeared for the accused and said that the Aircel-Maxis case was in no way related to the 2G spectrum scam. He had argued that the Chennai-based Telecom promoter C Sivasankaran had been unduly pressured by the then Telecom Minister Dayanidhi to sell the stake in Aircel to Ananda Krishnan owned Maxis in 2006 but it had nothing to do with the 2G scam.

The trial court, however, had said that the Aircel-Maxis deal fell “fairly and squarely falls within the description of 2G scam”. The CBI had earlier alleged that Dayanidhi had “pressured” and “forced” Sivasankaran to sell his stakes in Aircel and two subsidiary firms to Malaysian firm Maxis Group in 2006. The Malaysian firm had favoured by Dayanidhi and granted a licence within six months after the takeover of Aircel in December 2006, it had said. Ex-Telecom Secretary J S Sarma was also named in the CBI’s charge sheet. His name was put in a column of the accused against whom trial cannot proceed.

Justice Markandey Katju Submits Apology In Supreme Court Over Post Criticising Soumya Verdict

With an unconditional apology, former Supreme Court judge Markandey Katju today extricated himself from a contempt case over a blog post in which he had sharply criticised the court's verdict in the 2011 rape and murder of 23-year-old Soumya in Kerala.

The Supreme Court accepted Justice Katju's apology and closed the case.

In a Facebook post, the outspoken former judge had commented that the Supreme Court had seriously "erred in law" by reducing the sentence of the convict in the Soumya case.

The Supreme Court described the post as "a serious assault on judges, not on judgements" and initiated a contempt case.

"I don't bother," Justice Katju declared in the courtroom during a hearing. The judges then asked for him to be escorted out of the court.

Justice Katju said in an affidavit today that he respects judicial proceedings and the judiciary.

Soumya, an employee of a Kochi shopping mall, was assaulted by Govindachamy, a serial offender in an empty ladies' coach of Ernakulam-Shoranur passenger train on February 1, 2011.

Govindachamy grabbed her by the hair and hit her head repeatedly against the wall of the coach. After she was thrown off the moving train, he jumped after her, hit her with a stone and raped her in her wounded state.

She died five days after the savage attack.

Govindachamy was sentenced to death by a trial court and the order was confirmed by the high court in 2013. In September, the Supreme Court cancelled Govindachamy's death sentence saying there was no evidence that he had caused Soumya's death or had intended to kill her.

In November, the top court dismissed petitions to review its judgment

Commenting that there had been a "gross error of judgement", Justice Katju wrote that the court had relied on hearsay.

http://www.ndtv.com/india-news/justice-markandey-katju-apologises-to-supreme-court-over-post-criticising-soumya-verdict-1645845

Supreme Court rejects HC ruling: No sovereignty for J-K outside Constitution of India

Snubbing the Jammu and Kashmir High Court for asserting the state’s “sovereignty” and “sovereign powers”, the Supreme Court Friday said J&K “has no vestige of sovereignty outside the Constitution of India”. A bench of Justices Kurian Joseph and Rohinton Nariman also rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India.

“It is clear that the state of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India… they (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir,” the bench said, referring to the preamble of the Constitution of J&K, 1957.

The bench called it “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state. “It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment,” the judges said.

The bench also clarified that J&K residents are “first and foremost” Indian citizens. “It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India… permanent residents of the state of J&K are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world,” it said.

The top court pointed out that it was constrained to observe these because in at least three places, the High Court, in its judgment, “has gone out of its way to refer to a sovereignty which does not exist”.

Underlining that the quasi-federal structure of the Constitution of India continues even with respect to J&K, the bench said: “Article 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India.” It said the J&K Constitution has been made to further define the existing relationship of the state with the Union of India as an integral part thereof.

The court said this while deciding a legal question on whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) will be applicable to J&K or the law was outside the legislative competence of Parliament since its provisions would collide with Section 140 of the Transfer of Property Act of J&K.

SARFAESI Act entitles banks to enforce their security interest outside the court’s process by moving a tribunal to take possession of secured assets of the borrower and sell them outside the court process. The High Court had said that the state has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties.

After the State Bank of India appealed against the High Court order, the J&K government submitted in the Supreme Court that this law encroached upon the property rights of permanent residents of the state and must be read down so that it will not be permissible to sell property belonging to a permanent resident of the state to outsiders. It was also argued that Parliamentary legislation would need concurrence of the J&K government before it could apply to the state under Article 370.

But the Supreme Court bench shot down these arguments, saying SARFAESI Act deals with recovery of debts due to banks and financial institutions, which is relatable to a subject under the Union List and parliamentary legislation did not require concurrence of the state government since the Centre had power to make law on this subject.

“Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking… the Act as a whole would necessarily operate in the state,” the bench said, adding that the SARFAESI Act had itself made a special provision for sale of properties in J&K.

The bench, however, made it clear that any provision of the J&K Transfer of Property Act will have to give way to the central law in case the former is found repugnant. “It is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law,” it said, adding that its judgement had no effect on Article 35A, which confers on permanent residents of J&K special rights and privileges regarding acquisition of immovable property in the state.

PayPal opposes registration of Paytm’s new trademark

Global payments major PayPal has filed a complaint opposing the registration of Paytm's trademark in a notice with the local trademark office, which falls under the ministry of commerce. The notice reviewed by TOI, says that PayPal has pointed out that Paytm's trademark is "deceptively and confusingly similar to PayPal" with a similar color scheme.

"The first syllable in each mark is in dark blue colour and second syllable is in light blue colour. Further both marks begin with PAY' which consumers tend to remember more than the second syllable, and the marks are of similar length.These similarities cause likelihood of confusion in the aggregate, specially considering the fame of the opponent's (PayPal) earlier trademark," the notice said.

When contacted, both PayPal and Paytm spokespersons refused to comment on the matter.

The Noida-based Paytm had advertised its trademark registration in July, a mandatory step, after which anyone, if at all, gets a period of four months to raise objections. The timing of PayPal's notice is interesting since it was filed on the last day of the mandatory timeline. Paytm has been one of the biggest beneficiaries of the government's demonetisation plan announced over a month back. It has seen a big jump in new users, transaction volumes due to the cash crunch. PayPal has mentioned in its notice that its brand name has been registered since 1999 across the globe. "It remains to be seen if the matter will reach the courts if they do not find a resolution through this process,".

Pending Companies Act matters to be transferred to NCLT

The Ministry of Corporate Affairs  has issued a notification stating that pending proceedings under the Companies Act – with some exceptions – shall be transferred from the district and high courts to benches of the National Company Law Tribunal, with effect from December 15.

The Centre has taken this step in lieu of its power under Section 434(1)(c) of the Companies Act 2013, under which it was empowered to specify a date on which pending matters relating to arbitration, compromise agreements and reconstruction and winding up of companies would stand transferred to NCLT benches.

Under the Companies (Removal of Difficulties) Fourth Order of 2016, all cases related to winding up pending in high courts wherein petitions have not been served on the respondents, shall be transferred. Moreover, the notification also states that matters other than those relating to winding up, in which orders have been reserved by high courts, shall not be transferred.

The Companies (Transfer of Proceedings) Rules 2016 also states that those cases pending before high courts relating to voluntary winding up of companies shall not be transferred. The Rules also clarify that no fee would be payable for these transfers.

The government has also notified as many as eighteen provision of the 2013 Companies Act to come into force this week. These include variation of shareholder rights, reduction of share capital, compromises, arrangements and amalgamations.

Court finds trademark infringement, but imposes only future prohibition

Facts

Guangzhou Hongfu Real Estate Co Ltd is the owner of registered Trademarks 1946396 (September 28 2002) and 1948763 (September 21 2003) comprising combination trademarks STAR RIVER in Chinese characters and device, to be used respectively for the services of "real estate rental, real estate management" in Class 36 and "architecture" in Class 37.

Hongfu assigned the trademarks to Guangzhou Star River Industrial Development Co Ltd, which licensed Hongfu to use the trademarks – enabling Hongfu to bring infringement actions in its own name. Hongfu and its affiliated companies developed several Star River real estate projects in Guangzhou, Beijing, Shanghai and other cities, and won many awards.

In 2000 Jiangsu Weifu Group Construction & Development Co Ltd launched various real estate projects using the names 'Star River Garden', 'Star Garden' and 'Star Scenery Garden' in Nantong – a city in Jiangsu Province. The names of the apartment blocks were approved by the Municipal Civil Affairs Bureau of Nantong.

Star River Co and Hongfu sued Weifu on the grounds of trademark infringement and unfair competition.

The Nantong City Intermediate People's Court ruled that Weifu's use of 'Star River Garden' as the name of its apartment blocks did not constitute trademark infringement, since it did not mislead consumers as to the developer of the buildings. The first-instance court further found that – since Weifu had not intended to free ride and had not caused misidentification among consumers – Weifu's use of 'Star River Garden' did not constitute an act of unfair competition. The court therefore dismissed the claims.

Star River Co and Hongfu appealed to the High People's Court of Jiangsu Province, which upheld the first-instance judgment.

Star River Co and Hongfu then filed a retrial application to the Supreme People's Court.

Decision

The Supreme People's Court determined that Weifu's use of 'Star River Garden' as the name of its apartment blocks was likely to cause confusion and misidentification among the relevant public, due to its similarity to the cited marks, which constituted infringement. Consequently, the court overruled the first and second-instance judgments, concluding that Weifu must not use 'Star River' as the name of buildings yet to be developed and sold, and must compensate Star River Co and Hongfu Rmb50,000 for their economic loss.

Comment

The case attracted a lot of attention, since it involved the protection of trademarks registered for real estate sale services and liability after a court had found infringement. In the retrial, the Supreme People's Court clarified that when an IP right such as a trademark conflicts with a property right, whether the parties should be ordered to stop using the trademark should be based on the principle of good faith and by taking into account the public interest. The court considered the fact that the name of Weifu's apartment blocks had been approved by the local civil affairs agency. In addition, residents had been living in the complex for many years and there was no evidence to prove whether they knew, upon initial purchase, that the name of the building infringed the cited trademarks. Terminating all use of 'Star River' would have created imbalance between the interests of the trademark owner and those of the public or residents. As a result, the court did not order a complete prohibition against use of 'Star River Garden', but ruled that buildings yet to be developed and sold must not use the name. The verdict protected the trademark owner's interests to the extent allowed by the law, while minimising the harm against the public interest – highlighting the significance of the judicial guidance.

The fact that the infringing products were apartment blocks, with each unit sold individually, created an unusual situation where the final product (the apartment) did not bear the infringed trademark and where the buyer may have been unaware that infringement had been committed. Knowledge of the exact claims submitted by the plaintiffs is essential to assess the significance of this decision. If the plaintiffs requested that the first and second-instance courts affirm the existence of infringement, order the cessation of the infringement and compensate the damages caused, the court's decision did as requested and it was not necessary to rule further. However, if the plaintiffs requested that the courts order the modification of all existing buildings' names, the court's dismissal of the plaintiff's claims may be questioned. Unlike the Patent Law, the Trademark Law contains no reference to the public interest. On the contrary, it is in the interest of consumers not to be confused by an act of infringement, which could happen if the owner of one of the infringing apartments decides to resell.

http://www.lexology.com/library/detail.aspx?g=78035f01-10ca-46e9-934e-8307d0067c1b

Seniority is not the ideal norm to determine the appointment of the chief justice of India..

The Department of Justice in the Ministry of Law and Justice issued a terse notification on December 19 saying that by exercising the powers conferred by clause (2) of Article 124 of the constitution of India, the president had appointed Justice Jagdish Singh Khehar, a Supreme Court judge, as the 44th Chief Justice of India (CJI), with effect from January 4, 2017.

The notification, albeit routine, issued ahead of the swearing-in of the new CJI is significant because of what it fails to reveal. Strange as it may seem, clause (2) of Article 124 of the constitution does not confer any such power on the president to appoint the CJI.

The relevant part of clause (2) of Article 124 reads:

“Every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the president may deem necessary for the purpose and shall hold office until he attains the age of 65 years. Provided that in the case of appointment of a judge other than the chief justice, the Chief Justice of India shall always be consulted.”

No doubt, a CJI is also a judge of the Supreme Court and, therefore, it may be suggested that the power to appoint a CJI can be inferred from this provision. Justice Khehar, however, has already been appointed as a Supreme Court judge once and continues to be one till date.

Therefore, without a clarificatory notification, the use of this provision would mean the appointment of the same person twice.

The absurdity of the literal reading of this provision apart, the lack of clarity in clause (2) of Article 124 with regards to the appointment of the CJI might suggest that the framers of the constitution perhaps envisaged the appointment of a person to the post other than the judge of the Supreme Court. Or at the very least, the framers did not envisage the consultation of the president with the judges of the Supreme Court – or the CJI – with regard to the appointment of the incumbent CJI’s successor.

The supersession issue

By appointing Justice Khehar – the senior-most judge in the Supreme Court after outgoing CJI Justice T.S. Thakur – as the next CJI, the president has put to rest the speculations that have been doing the rounds for weeks.

The news must come as a relief to those who could not rule out supersession in the judiciary by the present government, as well as to those who believed that the present government would hesitate to take an unwise step like the supersession of the CJI, ignoring the convention of elevating the senior-most judge in the Supreme Court as the CJI.

The senior most puisne of the Supreme Court has always been appointed as the CJI except on two occasions.

The convention was breached when Justice A.N. Ray was appointed as the CJI on April 25, 1973, by superseding three senior-most judges. The supersession was made on the day following the Supreme Court’s judgment in the Kesavananda Bharati case.

The second supersession took place during the Emergency when Justice M.H. Beg was appointed as the CJI on January 29, 1977, by superseding Justice H.R. Khanna.

During the hearing of the National Judicial Appointments Commission (NJAC) case last year, the government counsel defending the NJAC assured the Supreme Court’s constitution bench that these two instances of breaching the convention should be considered as aberrations.

The bench also took note of the fact that the first prime minister, Jawaharlal Nehru wanted to supersede Justice Patanjali Sastri, who was the senior-most judge of the Supreme Court, when the first CJI, Harilal Kania, died in office on November 6, 1951.

The bench was told – on the basis of reliable records – that all the six judges of the Supreme Court threatened to resign if Sastri was superseded. Sastri only had a few months left until his retirement and the government acceded to the so-called non-existent convention at the time.

The petitioners in the NJAC case, who doubted the government’s bonafides, pointed to the amendment of the constitution inserting the new Article 124(C), which said that the parliament may – by law – regulate the procedure for the appointment of CJI and other judges of the Supreme Court, and the chief justices and other judges of high courts.

The petitioners were aghast that the new provision equated the appointment of the CJI with that of the other judges of the apex court and chief justices and other judges of high courts without taking note of the convention of seniority guiding the appointment of the CJI, which was cast in stone all these years.

The petitioners were also concerned about the vagueness of the term ‘fitness’, used in Section 5 of the NJAC Act, while referring to the fitness of the senior-most judge of the Supreme Court, to be determined by parliament, for the purpose of his elevation as the CJI.

While Attorney General Mukul Rohatgi clarified to the bench that fitness meant physical and mental fitness alone, doubts remained whether the parliament could define “fitness” in a manner subserving the interests of the executive.

The petitioners’ concerns prevailed over the bench, which struck down both the NJAC Act and the Constitution 99th Amendment Act 2014, on grounds that if the parliament has the authority to regulate the procedure for the appointment of judges – including the CJI – by framing laws, it would mean legislative control, which would breach the “independence of the judiciary.”

The convention of appointing the senior-most judge of the Supreme Court as the CJI, following the retirement of the outgoing CJI, was given the stamp of approval in the Second Judges Case in 1993.

In that case, a nine-judge bench had held that “there is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary.”

The appointment of the CJI, by its very nature, was considered distinct from the appointment of other judges of the apex court and the high courts.

The convention has its own justification – there is no provision for consultation in the constitution between the CJI and the president for the appointment of the CJI, unlike in the case of the appointment of other judges and it is for that reason that a healthy convention has developed of appointing the senior-most judge of the court as the CJI.

This convention, the Supreme Court was told in the Second Judges Case, is in keeping with the concept of independence of the judiciary as it excludes the possibility of executive interference in the matter. The Supreme Court’s nine-judge bench accepted this contention and ruled accordingly. No wonder then that in the NJAC case, another five-judge bench of the Supreme Court found this convention inviolable.

Seniority convention has no roots

Abhinav Chandrachud, a scholar and lawyer, however, found little evidence for this convention prior to the establishment of the Supreme Court, specifically in the high courts of Bombay, Calcutta, Madras, Allahabad, Patna, or in the Federal Court of India (FCI).

According to him, the seniority norm for the appointment of the chief justices of these high courts and in the FCI did not prevail. He observed that when viewed as a whole, the seniority convention in the high courts of India was an exception rather than a rule.

He adds that in the1950s, the appointment of the CJIs on the norms of seniority was an aberration, today, however, it is perhaps indispensable in order to safeguard the independence of the judiciary.

Chandrachud cites a few instances of non-judges becoming chief justices in high courts – Basil Scott was an advocate general and he directly became the chief justice of the Bombay high court, while P.V. Rajamannar was made the chief justice of the Madras high court by superseding four judges. William Patrick Spens was appointed as a chief justice of the federal court – a post vacated by his predecessor, Maurice Gwyer – even though he was not a federal court or a high court judge.

India’s first attorney general, M.C. Setalvad, was asked by the then home minister, K.N. Katju, whether he was interested in taking Kania’s place as the CJI – referring to a custom prevalent in England where the attorney general replaces the lord chief justice. Setalvad reminded the home minister that he had already surpassed the retirement age. Setalvad apparently suggested to the home minister that M.C. Chagla, the then chief justice of the Bombay high court, be considered for the post.

There is evidence suggesting that the framers of the Indian constitution contemplated someone other than the Supreme Court judge to become the CJI in order to ensure that the incumbent has a longer term in office than what most CJIs – elevated on the basis of seniority – can hope to have.

It is too late in the day to speculate what could have been the consequence had the six judges of the Supreme Court not threatened to quit in the face of Nehru’s threat to supersede Sastri in 1951. Since then, seniority as the only norm for the appointment of the CJI has become synonymous with the independence of the judiciary.

The rapid succession of the CJIs and the experience of outgoing CJI Thakur – who had just about a year in office as the chief justice before his retirement and was therefore at the receiving end of the government’s indifference to the collegium’s recommendations for filling vacancies of judges in high courts – should tell us that in the absence of fixed minimum tenures, no chief justice can hope to reform the judiciary and thereby ensure its independence from the executive on aspects other than the appointment of the CJIs.

The next CJI, Khehar, who assumes office on January 4, 2017, will retire on August 27, 2017, with a summer vacation lasting for one and a half months.

Seniority is not the ideal norm to determine the appointment of the CJI, but there appears to be no alternative at present with the government’s lack of respect for institutions hitting an all-time low.

https://thewire.in/88687/seniority-norm-cji-appointment-thakur-khehar/

Supreme Court stays Delhi HC order on Unitech-home buyers meetings

The Supreme Court on Thursday stayed the Delhi high court order, which had directed realty firm Unitech to hold meetings with home buyers and opening escrow accounts for completion of delayed projects.

A bench of justices, Dipak Misra and Amitava Roy, said the execution proceedings in the cases filed by the home buyers before the NCDRC, which were stayed after the Delhi HC order, will now continue.

The high court had on September 2 granted an opportunity to beleaguered real estate firm to complete its delayed housing projects and hand over possession of flats to the buyers by opening escrow accounts and using the money deposited in it solely for these projects.

The apex court, on November 18, had stayed all the meetings of homebuyers of Unitech Ltd for giving their approval or disapproval to a proposed compromise scheme forwarded by the company to enable it to complete pending projects.

The bench had also issued notice to the company, saying “there is suspicion that it is trying to subvert the order of this court”.

It said that people who were successful at the level of the national consumer commission and are before the apex court, should get their money back from the developer.

The Delhi HC had directed the home buyers across the country to hold meetings for approval or disapproval of proposed scheme of compromise so the company can complete pending projects and hand over the flats.

Justice Sudershan Kumar Misra, who retired on September 6, in his order, said four meetings of home buyers should be held on November 20 in Mohali, Punjab, on November 27 in Chennai, on December 4 in Gurgaon and on December 11 in Noida.

The company had told the high court that it would open escrow accounts in which the amounts received from the buyers and sale of lands would be deposited, and the money would be used solely for completing the delayed housing projects.

The court had put in “abeyance” all the proceedings pending before different forums against Unitech Ltd to enable it to fulfil its commitment towards homebuyers by handing over possession of flats. It also appointed a court commissioner to monitor the functioning of the escrow account.

It had clarified that cases in which directions had been issued or might be issued in future by the apex court to the company in this regard should stand exempted from the scope of the order.

http://www.hindustantimes.com/india-news/supreme-court-stays-delhi-hc-order-on-unitech-home-buyers-meetings/story-dupH3ecApVD7SE1hS928rJ.html