The era of never-ending oral arguments and verbose pleadings has to go", Plea in Supreme Court seeks use of plain English for laws

A plea has been filed in the Supreme Court praying for the use of plain language in the drafting and issuing of all government rules, regulations, notifications, communications that are of interest to the general public.

In order to facilitate access to justice for laypersons, the petitioner has also sought directions to the Union Law Ministry to make available guides and handbooks on laws of general public interest and redressal of grievances in easily understandable language.

The petitioner lawyer, Dr Subhash Vijayran, has based the plea on the basis of the fact that the "writing of most lawyers is: (1) wordy, (2) unclear, (3) pompous and (4) dull." The plea states,

"It is the common man who is most ignorant of the system – in fact quite wary of it. Why? Because he neither understands the system nor the laws. Everything is so much complicated and confusing. The way laws are enacted, practiced and administered in our country violates the fundamental rights of the masses by denying them – Access to Justice. ‘Speedy Justice’ and ‘Legal Awareness’ are the two, out of the many, facets of Access to Justice."

Highlighting the importance of using plain language, the petitioner states,

"It avoids verbose, convoluted language and jargon. Using plain language in communications ultimately improves efficiency, because there is less ambiguity for the readers, and less time is taken for clarifications and explanations. This is a step toward Access to Justice."

Plea filed in Supreme Court

The petition states that too much precious time, energy and resources of both the Court as well as lawyers/litigants is wasted due to badly written & verbose drafts and ad-nauseam oral arguments, and that there is a need to prioritize and efficiently use resources.

"If this court is to be truly a court of the masses – and not court of a fortunate few – the era of never-ending oral arguments and verbose pleadings has to go."

Dr Vijayran further prays for directions to the Bar Council of India (BCI) to introduce a mandatory subject of “Legal Writing in Plain English” in the three-year and five-year LL.B. courses at all law schools in India.

He has also called for the direct imposition of a page limit for pleadings and a time limit for oral arguments before the Supreme Court. The plea states,

"As a humble suggestion vis-à-vis oral arguments – for each side – time limits of 5-10 minutes for applications, 20 minutes for short cases, 30 minutes for cases of moderate length, and 40-60 minutes for long cases may be imposed. Only in exceptional cases of constitutional and public importance, should the time limit of oral arguments be relaxed beyond one hour..."

The matter is likely to be listed for hearing on October 15.

NRI quota neither sacrosanct nor inviolable: Supreme Court on right of private medical and dental colleges to scrap NRI quota

The Supreme Court today ruled that private medical colleges are not compulsorily required to provide a quota for Non-Resident Indians (NRIs).

The judgment rendered by a Bench of Justices L Nageswara Rao and S Ravindra Bhat states that private medical institutions offering professional and technical courses are well within their powers to decide whether or not NRI or management quota may be culled out, and to what extent the same can be done, within the permissible ceiling.

"...it is evident that the NRI quota is neither sacrosanct, not inviolable in terms of existence in any given year, or its extent," the Court held.

The Court further held that should a decision be taken by the concerned authority to do away with such a quota, a reasonable notice to this effect must be given so that aspirants can accordingly apply for other seats.

The verdict was passed in a petition filed against the decision of a Division Bench of the Rajasthan High Court which had held that private medical colleges and institutes are not mandated to provide for an NRI quota. The High Court had that should the colleges avail the same, it must be within the limit of 15 per cent of the total seats as per the judgment of a seven-judge Bench of the Supreme Court in the case of PA Inamdar.

The Division Bench had reversed the ruling passed by the Single Judge of the High Court which had ruled that NRI candidates cannot be denied admission under the quota. The petitioners subsequently moved the Supreme Court against the Division Bench's decision.

The Apex Court, however, agreed with the Division Bench's findings. While referring to the decision in PA Inamdar, it held,

"A plain reading of the judgement of this court in Inamdar reveals that a provision for 15% NRI quota was not compulsory; it was only potential... Clearly, this court had the benefit of past experience with the concept of NRI quota: witness its skepticism about filling of such seats (in the past) by undeserving and unmerited candidates, to the detriment of more meritorious students. Therefore, the court indicated a limited quota with some essential controls in the manner of filling up of such NRI quota seats."

The Court summarised in its judgment the "crucial elements" as regards filling up of the NRI quota seats that were stipulated in the PA Inamdar verdict. These are:

"...one, the discretion of the management (whether to have the quota or not); two, the limit (15%); three, that seats should be available for genuine and bona fide NRI students, and lastly that the quota was to be filled based on merit."

In the instant case, the Chairman of the NEET PG Counselling Board had issued a notice to scrap the NRI quota for admissions, clarifying that the aspirants who had applied under the quota would be considered for admission based on other eligibility criteria. When this notice was challenged by some candidates before the High Court, the Single Judge had directed for those candidates to be given admission.

The Division Bench, while reversing this ruling, also said that the Single Judge could not have passed a direction for granting admission to the candidates before the Court. The Apex Court agreed with the Division Bench and made the position in law on the scope of "positive directions" clear. It held,

"There is a body of case law which clarifies that sans a statutory duty, a positive direction to do something in a specific manner, cannot be given (“it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.”). The NRI candidates could not assert a right to be admitted; furthermore, while granting relief, the single judge could at best have directed consideration of the cases of the writ petitioners before him."

Having said so, the Court also underscored the peculiar circumstances in this case owing to the COVID-19 pandemic and the last minute policy change on the issue of NRI quota.

The order of the Single Judge, the Apex Court noted, "opened a Pandora's box" and led to a large number of fresh claims being filed by candidates, eventually leading to a second round of counselling being conducted especially for NRI quota candidates. Therefore, in order to do complete justice, the Supreme Court said,

"In the circumstances of this case and to do justice to all the parties, this court is of the opinion that a special counselling session should be carried out by the board, confined or restricted to the seats in respect of which admissions were made pursuant to the single judge’s directions."

Senior Counsel V Giri represented the appellants before the Court while Senior Advocates Siddharth Dave and Wasim Qadri as well as Advocates Anand Verma and DK Garg represented other candidates.

Additional Advocate General Manish Singhvi argued for the State of Rajasthan, while Senior Advocate Nakul Dewan argued for an intervenor. His arguments found support in the submissions made by Advocate Shiv Mangal Sharma, who appeared for one of the respondents

ORDER XII ADMISSION - RULE 1, 2, 2A 3, 3A, 4 OF CODE OF CIVIL PROCEDURE 1908

What is Notice of admission of case? What is notice Notice to admit documents? What is the meaning Document to be deemed to be admitted if not divided after service of notice to admit documents? What is Form of notice? What is the Power of Court to record admission? What is Notice to admit acts? Rule 1, 2, 3 and 4 of Order XII of Code of Civil Procedure 1908

Notice of admission of case, Notice to admit documents, Document to be deemed to be admitted if not divided after service of notice to admit documents, Form of notice, Power of Court to record admission and Notice to admit acts are defined under Rule 1, 2, 3 and 4 of Order XII of Code of Civil Procedure 1908. Provisions under these Rules are:

Rule 1 Order XII of Code of Civil Procedure 1908 "Notice of admission of case"

Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

 

Rule 2 Order XII of Code of Civil Procedure 1908 "Notice to admit documents"

Either party may call upon the other party to admit, within fifteen days from the date of service of the notice any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.

 

Rule 2A Order XII of Code of Civil Procedure 1908 "Document to be deemed to be admitted if not divided after service of notice to admit documents"

(1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability :

Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.

(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.

Rule 3 Order XII of Code of Civil Procedure 1908 "Form of notice"

A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.

Rule 3A Order XII of Code of Civil Procedure 1908 "Power of Court to record admission"

Notwithstanding that no notice to admit documents has been given under rule 2, the Court may, at any stage of the proceeding before it, of its own motion, call upon any party to admit any document and shall in such a case, record whether the party admits or refuses or neglects to admit such document.

 

Rule 4 Order XII of Code of Civil Procedure 1908 "Notice to admit acts"

Any party, may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact, or facts. mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs:

Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in the favour of any person other than the party giving the notice :

Provided also that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just.

The Supreme Court, in a recent judgment, ruled that a daughter has the same rights as a son in ancestral property under the Hindu Succession (Amendment) Act, 2005, irrespective of whether the father was alive at the time of the amendment. Till its amendment in 2005, the principle law - the Hindu Succession Act, 1956 (HSA) - did not grant daughters rights in ancestral property. While the amendment in 2005 and the recent ruling by the Supreme Court are significant steps towards eliminating gender-based discrimination in inheritance in Hindu Personal Law, the law is not yet free of discrimination against women. In matters of devolution of property, the HSA still discriminates against women and their families.

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Hindu Succession Act, 1956: The Fight To End Gender-Based Discrimination Continues

The Supreme Court, in a recent judgment, ruled that a daughter has the same rights as a son in ancestral property under the Hindu Succession (Amendment) Act, 2005, irrespective of whether the father was alive at the time of the amendment. Till its amendment in 2005, the principle law - the Hindu Succession Act, 1956 (HSA) - did not grant daughters rights in ancestral property. While the amendment in 2005 and the recent ruling by the Supreme Court are significant steps towards eliminating gender-based discrimination in inheritance in Hindu Personal Law, the law is not yet free of discrimination against women. In matters of devolution of property, the HSA still discriminates against women and their families.

The HSA governs intestate inheritance of property belonging to Hindus, Buddhists, Jains, and Sikhs in India (approx. 80% of the population). Section 8 of the HSA governs devolution of men's property, and Section 15 governs the devolution of women's property. Under Section 15(1) of the HSA, if a Hindu woman dies without creating a living will, her estate is divided in the following order: Firstly, to the husband of the deceased woman, and her children (and children of any of her children who may have died before her); If there is no surviving husband or children, then upon the heirs of the deceased's husband; If there are no heirs of the husband, then upon the husband's parents; If the husband's parents are not surviving, then upon the heirs of the deceased woman's father; and If there are no heirs of the father, then upon the heirs of the deceased woman's mother. This scheme of devolution applies to two categories of property. First, any property the woman acquires on her own. Second, any property which she inherits from people other than her husband or her parents. The husband's natal family, therefore, has a stronger claim to the woman's self-acquired property than her own natal family. The same rule also applies to any property she inherits from siblings and distant relatives. We do not see any reciprocal provision in Section 8 for property belonging to men.

Section 15(2) of the HSA dictates how the property she inherits from her husband and parents devolves. Under Section 15(2) of the HSA, if a widow dies childless, any property she inherits from her parents devolves to the heirs of her parents (viz her siblings). Any property she inherits from her husband devolves to her husband's heirs. Again, there is no reciprocal provision in the scheme of devolution for men's property. After his children and the wife, a man's natal family has a claim over all the property which belongs to him. The woman's family is not mentioned at all.

In both Section 8 and Section 15, the fathers (and their heirs) in either case have a stronger claim than the mother. In general, relatives through male lines are given a far higher priority than relatives through women.

The injustice of these provisions is showcased perfectly in a 2009 case heard by the Supreme Court of India - Omprakash v. Radhacharan and Ors. [(2009) 15 SCC 66]. The dispute was between the brothers-in-law and parents of one Narayani Devi. Narayani Devi's husband died within three months of their marriage in 1955. Her in-laws promptly threw her out of her marital home. Narayani Devi went back to live with her parents, who provided her with an education. She then got a job and eventually amassed a significant amount of property in the form of savings in a bank account and a provident fund. Narayani Devi died in 1976, without creating a living will. Her mother then sought to claim her property, but her brothers-in-law opposed her claim. The dispute eventually ended up in the Supreme Court. The Supreme Court ruled that since Narayani Devi did not have children and did not inherit the property in dispute from her parents, its devolution would be governed by Section 15(1). Under Section 15(1) the husband's heirs - i.e. her brothers-in-law - had a stronger claim than her parents. So it came to pass that the same marital family which had thrown Narayani Devi out after her husband died, ended up with the property she acquired through her effort and skill.

 This would not have happened if Narayani Devi were a man. It also would not have happened if she were Christian or Parsi. The outcome under the Indian Succession Act, 1925 (ISA), which governs intestate succession for Christians and Parsis, would have been more equitable. Similarly, the outcome would have been far more equitable if she were domiciled in Goa, which has its own unique civil code, derived from the Portuguese Civil Code.

This problem has not gone unnoticed. The 174th Report of the Law Commission of India recognised that the scheme of devolution fails to account for the possibility that a woman might be capable of acquiring property on her own, through her own effort and skill. The 207th Report of the Law Commission also noted that the HSA does a disservice to women by not recognising their self-acquired property. It also recommended an amendment to govern women's self-acquired property.

The most potent criticism of the discriminatory provisions in Section 15, has come from the Bombay High Court in its judgment in Mamta Dinesh Vakil vs Bansi Wadhwa (2012). The court determined that the HSA - in matters of devolution of property - discriminates solely on the basis of gender, and therefore violates the right to equality guaranteed under Article 15(1) of the Indian Constitution. It also criticised the HSA for being out of touch with modern times. Ultimately, though the Bombay High Court, referred the question of constitutionality to a larger bench, which has so far not been constituted. So the question of whether the discrimation violates the Constitution, is not yet settled. Even if the Court rules these provisions to be ultra vires of the Constitution, it is the legislature's job to actually amend the law.

One of the solutions that is often proposed to mitigate this issue is for women to make living wills. There are two problems with this thinking. First, a recent survey found that 73% of urban Indians are unaware of the concept of a living will, and less than 6% reported to have actually made one. Second, there is a significant cost - in terms of both time and money - in creating and executing a living will, and for getting a probate (i.e. a certification from the Court that the will is valid). Furthermore, the existence of a mitigating mechanism (in this case the right to make a living will to govern devolution) cannot excuse retaining a discriminatory provision of a law. If a law or any part of it is discriminatory, the discrimination itself has to be removed.

The HSA fails to recognise women as economic actors. It treats women as entities without agency, and it devalues the familial ties a woman has with her natal family, while fully recognising such ties for a man. The need of the day is to amend the HSA to make the schemes of devolution gender-neutral. Examples of gender-neutral schemes of devolution are already present before us in the ISA and the Goa Civil Code. The Parliament needs to take this opportunity to complete the project which started with the amendment in 2005.

scheme suit

Sec 92

Section 92 CPC applies only when the religious or charitable trust is for a public purpose. ... The suit contemplated by Section 92 proceeds on the allegation of breach of public trust or is founded on the necessity of having direction from the Court regarding the administration of such trust.²

that reason the decree and the scheme framed in that suit are without jurisdiction and void. The learned Counsel submits ... spite of the decree and the scheme framed in pursuance thereto the suit properties arc available for execution