Penalty imposed by SC for Publicity Interest Litigation

I found this piece in Kantipur. Supreme Court has done extremely well to slap a fine on those Advocates who work for the sake of being famous and in quest of their name in Media. I think the advocate has found his name in Nepalese Paper but for bad reason.

I wholeheartedly agree with what SC did but Rs. 5 is very very nominal amount. I understand that SC wanted to send a clear signal of what it will be doing in future if these kinds of activities are repeated by the same advocate or by any other advocates of that kind BUT still, the fine amount could be imposed more than that. The trend of the advocate to file frivolous and fabricated petitions must be discouraged in future as that does not serve any public interest/social interest. Well done SC!!!!

In the first case of its kind in the history of Nepal’s judiciary, the Supreme Court has fined a lawyer with Rs 5 on the charge of bringing what it called a “frivolous and publicity-oriented” public interest litigation (PIL) before it.

The court said the decision to slap the fine on advocate Dhananjaya Khanal was taken on Wednesday to discourage those lawyers who bring PILs before it just for the sake of publicity. It further said that such litigations were wasting the court’s valuable time.

“If we go on entertaining such type of frivolous and publicity-oriented writ petitions, the real litigants waiting for justice will suffer,” Justices Bal Ram KC and Gauri Dhakal said in a verdict slapping the fine.

“PILs are meant for public interest, not for publicity,” they said.

Advocate Khanal had moved the court with a PIL seeking a court order on the government to give him all documents and treaties pertaining to bilateral relations between Nepal and India.

According to the court, Khanal did not specify what exactly he wanted when he sought such documents and treaties from the concerned government agencies.

Though fines on litigants who bring frivolous petitions before courts is very common in India and other countries, it is the first time the court has fined a writ petitioner in Nepal on the charge, a Supreme Court judge said.

Co-spokesperson of the court Hemanta Rawal said the court has noticed in recent times an increasing trend of lawyers bringing frivolous writ petitions just for publicity.

“The court has been spending its time and resources on such writ petitions to date. But now, the bench has attempted to discourage such petitions,” Rawal said.

Judiciary should know its limits

I found this article written by Dr Trilochan Upreti in Kantipur. I do not know who the learned author is  but he has to say something about “judicial activism” v, “judicial restraint”. It is always interesting to talk about this topic. In India, it has always taken the centerstage and there are umpteen number of instances where our learned brothers at bar and bench express their opinions on either way. No one knows the limit of judicial activism as it is not that easy to fathom it. I have my few points to make on this topic and in this weekend, I will be commenting on this article. For that You need to keep on visiting my page. And the report goes here:

 

 

India’s judiciary has been known as an active and popular institution in protecting people’s rights, for which it has interpreted the constitution, law and jurisprudence in favor of the people. By the name of Public Interests Litigations (PILs), it has issued a range of orders/verdicts against the corporate house, government and other entities. The issues of judicial activism emerged and have largely been practiced by India’s Supreme Court since the time of PN Bhagawati as Chief Justice of India. But, since then, it has remained a moot issue in political and executive circles.Recently, a two-judge bench comprising justices AK Mathur and Markandeya Katju criticizing judicial activism, disapproved the tendency of courts to rule on issues like nursery admissions and auto-rickshaw drivers flecking commuters. The judges should know their limits and not try to run the government.

Further, the judges have been criticized for repeatedly coming across cases where they are unjustifiably trying to perform executive or legislative functions, which in their view, is clearly unconstitutional, and judges should not cross their limits and try to take over functions which belong to other organs of the state. They listed a number of local issues in which courts were involved like unauthorized schools, criteria for free seats in private schools, the size of speed breakers on Delhi roads and penalty, which, they said, were “matters pertaining to exclusively to the executive or legislative domain”.

For instance, the ruling calling for a trust vote on CCTV in Jharkhand state assembly or trial of strength between Jadambika Pal and Kalyan Singh to resolve the chief ministership issues in UP, the bench said that it was a case of constitutional breach, violating the separation of powers as mandated in the Constitution.

According to their interpretation, if there is a law, a judge can enforce it. But judges cannot create a law and seek to enforce it. “They (judges) must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Likewise, courts cannot create rights where none exist, nor can they go on making orders which are incapable of enforcement or violative of other laws of settled legal principle.”

This judgment has drawn public attention especially in political, legal, societal and judicial circles. The Times of India has written an editorial supporting the notion of the judgment. While leaders of popular national political parties have widely supported the verdict insisting on the grounds that the executive and legislature must be allowed to function freely and a minority felt that intervention of the courts was unavoidable as long as governance remained weak and was subject to political pressure. The confessional comments of the Supreme Court were music to the ears of the political brass.

PN Bhagawati, who had hard-pedaled the judicial innovation of PILs, who holds the view that PILs revolutionized the concept of justice, allowing any public spirited person to knock on the apex court’s doors, said that a fine line between the public good and private benefit had to be drawn by the court if independence of the judiciary was to be maintained. He further asserted that the poor and underprivileged sections of society are the ones who must benefit from judicial activism. For example, providing health care and medical assistance, cleaning of the Yamuna River, reducing pollution via CNG operating transport system in Delhi are clearly public welfare measures which became possible due to judicial intervention.

That is not the end of the story of the judgment, however. A similar case was referred to when the case of a larger bench by a two-judge bench considering the essence of the above judgment and a three-judge bench headed by the present chief justice took a stern stand on the observation on “judicial activism and overreach”, saying that “we are not bound by the two-judge bench order”. The intellectuality and level of knowledge of judges in Indian high courts and the Supreme Court is considered to be of world class with higher dignity and reputation.

The trust of the people is undisputed and huge in comparison to such name and fame in our own context. The judgments rendered in PILs have immensely benefited the larger population of India. For example, removing hundreds of polluting industries from New Delhi and Agra to save the world monuments like Taj Mahal were not possible through executive or legislative actions. At the same time, these judgments were fully complied with by the other two organs of the state.

One can consider the problem relating to polluting of the venerated Bagmati River and pollution level in the Kathmandu valley and wish that our Supreme Court could have done something about it.

Likewise, stakeholders of Nepal Telecom have been keeping trust on the Supreme Court on matters of safeguarding their interests in getting a fair and equitable share. Considering the failed effort of the recent past in respect of the political change after the April uprising, had the judiciary acted in favor of reinstatement of the House of Representatives, many people’s lives could have been prevented from loss and the nation wealth would have been protected from destruction.

People, who blame our judiciary unfairly forgetting the positive verdicts, are consistently blaming the judges for their inconsistent stand on freedom of the judiciary over the matter of accepting to take an oath before the public hearing system within the parliament. No single justice has shown his guts by challenging this unfair system by resigning, even though quite a few of them were reported in the press as having said that that they would rather quit than go to the parliament for oath.

Justices in the Supreme Court don’t even bother to resign or take leave a month before retirement, which is the standard practice prevailing in other countries. They would rather prefer to hear and decide the cases in a dubious manner even before retirement. All in all, there is also an allegation that even the sitting Chief Justice prefers to sit with the retiring justice in hearing complicated, mooted and infamous cases.

The state has provided enough economic benefits for ensuring their independence.

However, in return for their performance, the reputation and trust among the people at large has further eroded. Even the lawyers’ umbrella organization formally boycotted the bench across the country in protest against the judiciary’s involvement in corruption. The media has been consistently reporting the wrong-doings in the courts; civil society, parliamentarians and noted lawyers are blaming the eroding efficiency clouded with corrupt practices and unfair delivery of overall justice. If fifty percent of the allegations are true, it is a shame on our judiciary. People expect from the justices an example of cleanliness, efficient, studious and ethical behavior, which has not been seen in the country. Therefore, we need independent, capable, clean and efficient justices and judiciary, for which overhauling of the entire judiciary and addressing of the causes of the present day problems need to be researched and rectified as quickly as possible.

Mediation resolves cases pending long years

Kiran Chapagain, who is famous for writing legal columns in Kantipur has this news for us.

In this legal story, he shows how the ADR Method (Alternative Dispute Resolution Method) is helping to solve the cases in short time. Being a student of Law and particularly being interested in ADR, I found the News of great significance. Speedy Justice, Justice in Low cost and without many hurdles should be part of our constitutional rights. It’s good that in our country also, judiciary is seeing ADR as alternative and in most of the time, an appropriate mode of resolving disputes. There must be continued efforts to solve the matters by applying other non-litigative ways. You can read the whole story here:

 

 

On a recent Thursday afternoon inside the mediation center at the Supreme Court, advocate Tara Prasad Poudel was urging plaintiffs and defendants of a land case to compromise and resolve their longstanding land dispute.Sitting on one side of an oval-shaped coffee-colored table, Poudel also reminded litigants they had engaged in legal battle for 16 years already and warned that the case might continue for generations if it was not settled. Poudel then asked both sides for possible solutions.

Poudel had hardly finished speaking when Udaya Maya Khatri, a plaintiff, exploded, saying “How can I compromise with them (pointing at two defendants who were sitting at the other end of the table)?”

Then both the plaintiffs and the defendants started trading charges, even in abusive language, as if they were going to fight right there, making the ongoing mediation uncertain. Poudel intervened calmly there and then.

“Perhaps you have heard the story of Safala Devi [who fought land-related legal battles throughout her life and died a couple of years ago, with her cases unfinished.] You might face a similar situation,” Poudel warned.

Finally, Poudel was successful in persuading the parties to compromise. They left the mediation center agreeing to finalize the case in the next sitting.

Many cases are being settled through mediation, as an alternative to the existing practice of resolving disputes inside court chambers by judges. In this practice of dispute settlement, known as court-referred mediation, trained mediators like Poudel facilitate plaintiffs and defendants to resolve dispute referred by courts through bilateral negotiations.

Available data from Kathmandu District Court shows that the practice, which began officially from December 7, 2006, is becoming popular among litigants as an alternative to the traditional method of dispute resolution inside court chambers. Altogether 16 percent of the total cases the court received in the last one year were settled through mediation, according to Krishna Ram Koirala, chief administrator of the court.

Even officials at the mediation center at Patan Appellate Court and the Supreme Court are upbeat with the success of mediation in the very first year of its operation.

According to Ram Prasad Neupane, chief of Patan Appellate Court mediation center, the court referred 162 cases to the center and 26 cases were successfully resolved through mediation in the last one year. Fifteen cases are awaiting settlement. The other remaining cases were returned to the benches for judgment.

Similarly, the Supreme Court mediation center finalized 41 out of 189 cases referred by the court for settlement while 32 are running, according to Prakash Raut, chief of the meditation center.

In general, mediation is more difficult in cases that are in appellate courts and the Supreme Court because parties become more certain of winning the case by the time the cases reach higher courts. “Mediation is more successful when cases are in the district courts since parties are less certain about which way the verdict might go,” says Neupane.

Initiated with initial support of USAID, court-referred mediation is being practiced in all courts across the country in a bid to address chronic backlogs and delay in justice delivery. Besides, the practice is expected to make justice less expensive.

“We have been successful in finalizing cases within three months,” said Raut.

At present, trained mediators comprising lawyers, former judges and court employees, have been providing mediation service free of cost. However, the Supreme Court has recently decided to provide Rs 300 for mediators at the Supreme Court Mediation Center as taxi fare. But mediators at appellate and district courts are not provided even taxi fare.

“We are going to request the government for budget so that we can give some money to mediators for their service,” said Dr Ram Krishna Timalsena, registrar of the Supreme Court.

Efforts are underway to institutionalize the practice. A mediation law is being drafted. “At present, the court can refer cases for mediation only after parties agree to mediation. But once the mediation law comes into effect, courts can impose mediation on litigants,” said mediator and advocate, Raj Kumar Thapa.  Though mediation can save time, effort and money of litigants, people are yet to be adequately educated about the advantages of mediation. “It is urgent that litigants be made aware of the practice and its benefits,” Neupane said. As this scribe met Udaya Maya after her 16-year old case was settled, she said, “Both of  us won, nobody lost as the dispute was settled through bilateral negotiation. We  lost thousands on litigation, but the case was solved in just two sitting,” “She is correct that nobody loses when a case is resolved through mediation,” mediator Poudel said.