"Nothing Wrong with Kin Practising in a Judge’s Court": Justice Mudgal

Justice Mukul Mudgal

Source : Indian Express

But undue favours should not be offered to relatives, says the outgoing chief justice

The concept of “uncle judges, per se, is not bad”, said Justice Mukul Mudgal, who retired today as Chief Justice of Punjab and Haryana High Court. He said the rot begins when a relative of a judge “starts receiving short cuts or leg-ups”.

“There is nothing wrong in relatives of a High Court judge practising in the same High Court as long as undue favours are not offered to the relatives, and a judge should go out of the way to ensure that no relative of his is misusing his/her name,” Justice Mudgal said in an interview with The Indian Express. He added that “corruption needs to be tackled decisively”.

The outgoing chief justice remarked that, “With India being a place where a father likes his child to join his own profession, having one’s relatives practising in the High Court, per se, is not bad.”

He added, “There is a perception that relatives of a judge become recipients of certain privileges. Of course, there are advantages. If my son is entering into classical music, he certainly will have an advantage over others. But this is only at an initial stage.”

On the issue of corruption in the lower judiciary, Justice Mudgal said, “Corruption is a reflection of a society. To say that there is no corruption is wrong. It is difficult to handle, but it needs to be tackled decisively. Not only monetary, there are other forms of corruption, which include corruption of friendship”.

It might be mentioned here that during his tenure, at least nine lower court judges, including two Session Judges, were terminated from service or were asked to seek premature retirement. Those shown the door included a senior Sessions Judge whose name was recommended for High Court judgeship in 2007.

Justice Mudgal had come down heavily on the Haryana government for its failure in curbing the rising menace of “honour killing” by Khap Panchayats. Feeling strongly for the runaway couples, who are being murdered ruthlessly by the self-styled law enforcement agencies, Khap Panchayats, to keep intact the “honour” of their traditions, Justice Mudgal is of the view that senior leaders of Khaps need to be educated.

“Such institutions (Khaps) may have had a social purpose. Earlier, when life was conventional, Khaps may have played a vital role in shaping lives of individuals. But now with media being in every household you cannot expect a society to remain in isolation. Khap Panchayats can have their traditions but cannot frame laws. Honour killing is a murder, nothing else. We are a developed democracy. There is need to educate seniors/leaders of Khaps. Tradition should not be rigid. The way of life has changed, there should be respect for elders. While one should honour his traditions, Khaps need to adjust values. They cannot enforce values by way of coercion,” he said.

Asked if there is a divide within the High Court judges over certain issues, he responded, “With a High Court of a strength of as large as 48 judges, there is bound to be a diversion of opinions. One has to ensure that they do not turn ugly, it should only remain a healthy debate. Differences are debated and a decision is taken”.

On the issue of ever-increasing pendency in courts, he said, “The pendency of this High Court has come down considerably. Last year, the disposal of cases was much more than the filing. The judges have put in extra effort in not only dispensing with cases but also awarding justice”.

The only lawyer-turned-judge in the family, Justice Mudgal best describes himself as a “cricket freak”. Mudgal is son of late Pandit Vinay Chandra, Padmashree. His son Dhaval Mudgal is the lead singer of a rock band named “Half Side Down” in Delhi.

From implementation of speed governors in the states of Punjab and Haryana for all heavy vehicles to building of protection homes for runaway couples; reservation for handicapped employees; awarding significant compensation to victims of crime and those murdered by Khap Panchayats; suo motu notices against the state for high-handedness and inaction were some of the key developments which took place during his tenure.

“I owe a lot to my school, Modern School, Delhi. My teachers taught me to face life, success and adversities.” He says, after retirement, he will do social work and, if required, arbitration cases.

Justice Mudgal retired on 04.01.2011 and is replaced by Ranjan Gogoi as the Acting Chief Justice of the Punjab & Haryana High Court.

Delhi Chief Minister Files Defamation Suit in the High Court

Source : Times of India

A defamation suit filed by Delhi chief minister Sheila Dikshit against state BJP president Vijender Gupta in the Delhi High Court is likely to be heard in May this year. 

The chief minister filed the suit recently against Gupta for allegedly defaming her reputation by erecting hoardings across the city accusing her government of corruption in fixing of new power tariff and conniving with the private discoms. 

Dikshit has demanded a token Re 1 as damages in her suit before the court of Justice V K Jain. She has alleged that the BJP under Gupta's leadership erected hoardings in June 2010, which said her government had "openly looted thousands of crores of rupees". On Tuesday, the case came up before Justice Jain over the matter of "condonation of delay". 

The suit says Gupta got hoardings put up, accusing the Delhi Congress government of misrepresenting facts before the people of Delhi on power tariff. The advertisements also claimed that the Delhi Electricity Regulatory Commission (DERC) was going to recommend reduction in power tariff, but the "chief minister came in the way". 

Dikshit moved court after Gupta refused to tender a "public apology for the slander" as demanded by her. Gupta had maintained that he would reply in court and is now appearing through his counsel, senior advocate Aman Lekhi. 

As per the allegations, the hoardings were erected at Pusa Road, Karol Bagh, Shankar Road, Hari Nagar, Jhandewalan, Delhi Gate, Rani Jhansi Road, Najafgarh Road, Rajendra Nagar Road, New Rohtak Road, Filmistan and Subzi Mandi.

Kraft sues Britannia over 'Treat-O biscuit'

Source : Economic Times

US-based packaged food maker Kraft Foods on Tuesday sued Nusli Wadia-owned Britannia Industries for trademark and copyright violations of its popular Oreo cookies. 

In a suit filed in the Delhi High Court , Kraft said Britannia’s recently-introduced Treat-O biscuit is a copy of its cream-filled sandwich cookies. 

The US firm has also sought an injunction to prevent Britannia from manufacturing, selling, marketing or advertising any product with any distinctive element of Oreo cookies. 

A Britannia spokesman refused comment saying the company has not received any communication on the issue so far. 

This is the second instance in four years when Britannia has been involved in a legal tussle with a multinational food company over trademark. It was, however, playing the role of a plaintiff in 2007 when it had dragged French food giant Danone to a Singapore court alleging trademark infringement of its Tiger biscuit. Subsequently, Danone ended its joint venture with Britannia and set up an independent company in India. 

In its suit, a copy of which was reviewed by ET, Kraft has sought damages for infringement of trademark and copyright, passing off and unfair competition of its ‘globally reputed’ Oreo brand of cookies. 

Oreo was registered in India in 1991 and is being imported and sold in the country ever since. 

Kraft said the Indian bakery and dairy products maker has copied the specific design etchings, such as florets and inner rings, of Oreo cookies. The company refers to the design etchings as ‘Oreo cookie trade dress’. 

“The lining on Britannia’s product, inner rings and florets and their placement on the product are identical to the original Oreo cookies,” Kraft said in the suit. 

It also alleged that the brand name, Treat-O, with an emphasis on ‘O’, is inspired by Oreo. 

Kraft’s lawsuit against Britannia comes at a time it is exploring options to locally manufacture and sell biscuits in the 11,000-crore Indian biscuit market. 

Kraft is being represented by IP Specialist Lall & Sethi.

Binding Nature of Decisions of Larger Benches on Subordinate / Coordinate Benches : The Law

RC Lahoti

A 5 Judge Bench of the Supreme Court in Central Board Of Dawoodi Bohra vs State Of Maharashtra & Anr., has discussed the legal propositions relating to Judicial Discipline. The Supreme Court has examined the binding nature of judgments given by a larger bench on co-ordinate / subordinate benches. The relevant extracts from the Judgment are reproduced below;

In Bharat Petroleum Corporation Ltd's case (supra) the Constitution Bench has ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have ordered that the matter be heard by a Bench of three learned Judges. Following this view of the law what has been declared by this Court in Pradip Chandra Parija & Ors.'s case (supra) clinches the issue. The facts in the case were that a Bench of two learned Judges expressed dissent with another judgment of three learned Judges and directed the matter to be placed before a larger Bench of five Judges. The Constitution Bench considered the rule of 'judicial discipline and propriety' as also the theory of precedents and held that it is only a Bench of the same quorum which can question the correctness of the decision by another Bench of the co-ordinate strength in which case the matter may be placed for consideration by a Bench of larger quorum. In other words, a Bench of lesser quorum cannot express disagreement with, or question the correctness of, the view taken by a Bench of larger quorum. A view of the law taken by a Bench of three judges is binding on a Bench of two judges and in case the Bench of two judges feels not inclined to follow the earlier three-Judge Bench decision then it is not proper for it to express such disagreement; it can only request the Chief Justice for the matter being placed for hearing before a three-Judge Bench which may agree or disagree with the view of the law taken earlier by the three-Judge Bench. As already noted this view has been followed and reiterated by at least three subsequent Constitution Benches referred to hereinabove.

Ms. Indra Jaisingh, the learned senior counsel for the petitioners submitted that the view of the law taken by the abovesaid four Constitution Benches is per incuriam and is not the correct law as previous decision of this Court by a Constitution Bench in Union of India and Anr. Vs. Raghubir Singh (dead) by Lrs. etc. (1989) 2 SCC 754 takes a contrary view and being an earlier decision was binding on the subsequent Benches. We do not agree with the submission of the learned senior counsel that the decisions referred to by the learned counsel for the respondent no.2/applicant are per incuriam. She has also placed reliance on a Constitution Bench decision in Union of India & Anr. Vs. Hansoli Devi & Ors. (2002) 7 SCC 273 wherein the Constitution Bench heard a Reference made by two-Judge Bench expressing disagreement with an earlier three-Judge Bench decision.

The Constitution Bench in the case of Chandra Prakash and Ors. Vs. State of U.P. & Anr. (2002) 4 SCC 234 took into consideration the law laid down in Parija's case and also referred to the decision in Union of India and Anr. Vs. Raghubir Singh (dead) by Lrs. etc. relied on by Ms. Indra Jaising, the learned senior counsel and then reiterated the view taken in Parija's case. Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a Court of co-ordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam. It is true that Raghubir Singh's case was not referred to in any case other than Chandra Prakash & Ors.' case but in Chandra Prakash & Ors. case Raghubir Singh's case and Parija's case both have been referred to and considered and then Parija's case followed. So the view of the law taken in series of cases to which Parija's case belongs cannot be said to be per incuriam.

In Raghubir Singh (dead) by Lrs.'s case, Chief Justice Pathak pointed out that in order to promote consistency and certainty in the law laid down by the superior Court the ideal condition would be that the entire Court should sit in all cases to decide questions of law, as is done by the Supreme Court of the United States. Yet, His Lordship noticed, that having regard to the volume of work demanding the attention of the Supreme Court of India, it has been found necessary as a general rule of practice and convenience that the Court should sit in divisions consisting of judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate related thereto and by such other considerations with the Chief Justices, in whom such authority devolves by convention, may find most appropriate. The Constitution Bench reaffirmed the doctrine of binding precedents as it has the merit of promoting certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individuals as to the consequence of transactions forming part of his daily affairs.

Further, the Constitution Bench speaking through Chief Justice Pathak opined that the question was not whether the Supreme Court is bound by its own previous decisions; the question was under what circumstances and within what limits and in what manner should the highest Court overturn its own pronouncements. In our opinion, what was working in the mind of His Lordship was that being the highest Court of the country, it was open for this Court not to feel bound by its own previous decisions because if that was not permitted, the march of Judge- made law and the development of constitutional jurisprudence would come to a standstill. However, the doctrine of binding precedent could not be given a go-by. Quoting from Dr. Alan Paterson's Law Lords (pp.156-157), His Lordship referred to several criteria articulated by Lord Reid. It may be useful to reproduce herein the said principles:-

(1) The freedom granted by the 1966 Practice Statement ought to be exercised sparingly (the 'use sparingly' criterion) (Jones Vs. Secretary of State for Social Services, 1972 AC 944, 966).

(2) A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision (the 'legitimate expectations' criterion) (Ross Smith Vs. Ross-Smith, 1963 AC 280, 303 and Indyka Vs. Indyka, (1969) AC 33, 69).

(3) A decision concerning questions of construction of statutes or other documents ought not to be overruled except in rare and exceptional cases (the 'construction' criterion) (Jones case (supra))

(4) (a) A decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequence of departing from it (the 'unforeseeable consequences' criterion) (Steadman Vs. Steadman, 1976 AC 536, 542C). (b) A decision ought not to be overruled if to do so would involve a change that ought to be part of a comprehensive reform of the law. Such changes are best done 'by legislation following on a wide survey of the whole field' (the 'need for comprehensive reform' criterion) (Myers Vs. DPP, 1965 AC 1001, 1022; Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027, 1086; Haughton Vs. Smith, 1975 AC 476, 500).

(5) In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step (the 'precedent merely wrong' criterion) (Knuller Vs. DPP, 1973 AC 435, 455).

(6) A decision ought to be overruled if it causes such great uncertainty in practice that the parties' advisers are unable to give any clear indication as to what the courts will hold the law to be (the 'rectification of uncertainty' criterion), (Jones case (supra)); Oldendorff (E.L.) & Co. GamBH Vs. Tradax Export SA, 1974 AC 479, 533, 535: (1972) 3 All ER 420)

(7) A decision ought to be overruled if in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy (the 'unjust or outmoded' criterion) (Jones case (supra)); Conway Vs. Rimmer, (1968) AC 910, 938).

Reference was also made to the doctrine of stare decisis. His Lordship observed by referring to Sher Singh Vs. State of Punjab, (1983) 2 SCC 344, that although the Court sits in Divisions of two and three Judges for the sake of convenience but it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three. To do so would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on points of law; consistency and certainty in the development of law and its contemporary status both would be immediate casualty.

In Raghubir Singh & Ors. case (supra), a Bench of two learned Judges had made a reference to a larger Bench for reconsideration of the questions decided earlier by two Division Benches of the quorum of two and three respectively. The Constitution Bench then opined that the matter could be heard by the Constitution Bench on such reference. It is pertinent to note that in Raghubir Singh & Ors. case the Constitution Bench has nowhere approved the practice and propriety of two- Judge Bench making a reference straightaway to Constitution Bench disagreeing with a three-Judge Bench decision. On the contrary, the Constitution Bench had itself felt inclined to hear the issue arising for decision and therefore did not think it to be necessary to refer the matter back to a Bench of three Judges. Similar was the situation in Union of India & Anr. Vs. Hansoli Devi & Ors., (2002) 7 SCC 273. Therein the Constitution Bench has reiterated the principle of judicial discipline and propriety demanding that a Bench of two learned Judges should follow the decision of a Bench of three learned Judges and if a Bench of two learned Judges was inclined not to do so then the proper course for it to adopt would be (i) to refer the matter before it to a Bench of three learned Judges, and (ii) to set out the reasons why it could not agree with the earlier judgment. The Constitution Bench concluded, "then if the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect then a reference should be made to a Bench of five learned Judges". The Constitution Bench has very clearly concluded and recorded, "the very reference itself in the present case made by the two- Judge Bench was improper". However, the Constitution Bench then proceeded to observe that as the question involved had very wide implications affecting a large number of cases, it considered it appropriate to answer the questions referred instead of sending the matter back to a Bench of three Judges for consideration. The decision of this Court in Pradip Chandra Parija (supra) was followed. Thus, the course adopted by the Constitution Bench in the case of Hansoli Devi was by way of an exception and not a rule.

Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co- equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co- equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh & Ors. and Hansoli Devi & Ors.(supra).