Advocate Rajendra

Welcome to my website

I am a lawyer practicing primarily in the courts and quasi-judicial forums in Pune District, NGT, and occasionally at Bombay High Court at Mumbai, in civil and criminal jurisdictions. I currently chair the global non-profit, The Secular Community. I am interested in envirometal and human-rights issues. 

This page provides some practical tips on law for the common citizen. Other pages deal with specific topics of current interest. One page acts as my blog with small articles reflecting my personal views.

To be a law-abiding citizen in a civil society under honest governance one need not have any special knowledge of law. The common citizen intuitively knows what is the right (lawful) behavior. Communities as cooperatives govern themselves within the framework of local laws. For cooperative housing societies, here is a book of model bye-laws available online. However, societies and government are far from ideal and it is not uncommon for citizens to have a brush with law at one time or another -- if only to defend one's own rights -- for example, as a consumer. 

Unfortunately, there is no reliable central repository of laws and connected rules for the public in India. For residents of Maharashtra here are the hyperlinks to Consumer Forums; Bombay High Court; and District Court of Pune linked to an online database of district courts. These sites offer some access to relevant laws and rules.

Launching a portal is one thing and keeping it functional is another. Although I shall be updating this page time to time, don't be surprised if not all links lead to their intended destinations at all times. At the time of writing, Industrial and Labour courts across Maharashtra can't be located. I hope they will be accessible in due course. There are other quasi-judicial fora that have no web access -- for example the forums where rental or leave & license matters are heard, namely The forum of Competent Authority established by State administration. These are supposed to be fast-track forums but, unfortunately, the matters with them often move at snail's pace.

Consumer law is one from the category termed beneficial laws that are less stringent in their conduct and lean toward the public. Text of most of the beneficial laws can be found online at various governmental and legal websites, albeit (once again) not necessarily so, or up to date.

For example, The Right to Information Act, 2005, can be found at the website of Central Information Commission but, at the time of writing, it is a poorly scanned heavy file to load. Google or such search engines will produce many law websites publishing these laws. Many laws can be downloaded to phones as apps. Buying a copy of the last published Bare Act, that is, laws exactly as enacted by the Parliament including the last amendment/s is, however, the best option.

Apart from the bare Acts most of the legal cases in the lower courts are decided on what are called the relevant case laws, meaning the interpretations of the bare laws made in formerly passed judgments by a higher court in a similar, comparable situations: This process is called precedence.  With the vast database of  judgments available there are several case laws for almost every case one encounters. While a search engine will produce a fair number of citations, a professional will subscribe to an online resource that ensures daily updates.

The judicial process, however (should I say) is a three-handed game with the bar with opposite parties and the judicial officer forming the trio. Interpretations of law, even of case laws, differ and the outcome of a case if often a conflict of what each party believes is the just and fair.

This said, interpretation of any law must  pass the Constitutional test, that is, adherence to the principles laid down by Constitution of India, as amended time-to-time, and its interpretation by the apex  (Supreme) Court of India. Litigants and sometimes the trial courts approach High Courts and the Supreme Court for such validation. The Supreme Court judges often and freely visit and refer to the legal frameworks of other free-world nations to decide complex cases.

Should I litigate?

We will keep crimes out of this discussion. A citizen must inform the police of cognizable crimes (serious crimes) as a matter of duty. A non-cognizable private criminal complaint can be filed in the court of a Judicial Magistrate First Class (abbreviated JMFC).

Here, by litigation we mean civil action pertaining to legal relations among persons. Barring beneficial laws (for example, consumer protection law and public interest matters) and special laws dealt by quasi-judicial authorities, for example, The Real Estate (Regulation and Development) Act, 2016, the civil litigation begins at the bottom of the judicial pyramid and moves at a snail's pace for various reasons.

Therefore, the first step to resolve disputes should obviously be taken outside of the courts. Here is a Wiki article on alternative dispute redressal mechanism much of which is duly formalized by law. On the court premises, Lok Adalats take a short-cut route to dispute resolution through compromise between parties with the resulting compromise decree being binding on both parties. 

There are many factors you should consider before taking a plunge into civil litigation -- finding the right lawyer being one of them. To start with, the factor of time. It is not uncommon for a civil litigation to run into years. There are too many pending cases and too many escape routes for your opponent's lawyer to delay the matter to suit her client. Thus the a civil litigation costs money and time, and demands your patience. Weighing benefits against losses in terms of time, money and restrictions of movement -- the last arising from the need to appear in the court when necessary -- are among the primary factors to consider before you take a plunge. A good lawyer, after examining your case particulars, will provide you a reasonably accurate picture of the strengths and weaknesses of your case, how it would move, and help you take a well-informed decision; for a fee. It is worth the fee.

The perspective changes for a (should I say) professional litigant. A real estate company, for example, will actually use the long-drawn character of civil litigation in India to take control of a disputed land by tiring out individual claimants over years of litigation to subsequently develop the land reaping rich profits. A not-so-honest company may (and a no-hold-barred white-collared land mafia in the business of land grabbing in a metro city will) file even a false case against an innocent claimant to use the process of law itself against the rightful owners of the land! 

Are you a victim of false case?

Dishonestly filed false case is a deadly weapon. For example, in the real estate business to wrongfully usurp a property.

The menace was recognized as early as 1999 when the Code of Civil Procedure, 1908 was amended to make it mandatory to swear an affidavit while filing a court case. Thus, a false case means a false affidavit, which has severe punishment under the Indian Penal Code, 1860.  Apart from the false affidavit, even a false claim made before a court invites penal punishment. However, as you might have guessed, it is one thing to have a law and another to get a criminal punished by an ordinary citizen and more often than not, the dishonest litigants get away with such frauds on the courts. This note aims at awareness to deal with false cases.

It may come as a surprise to some that even the pious seat of justice could be used for grinding a vicious axe.  This is unthinkable in highly developed Scandinavian countries.  However, given the lack of awareness as well as the falling moral standards among the legal fraternity, such activities are on the rise. It is my belief that if false cases are dealt sternly under the penal law the astronomical figure of number of pending cases may also be eased.

If your adversary files a false civil case before a court of justice, ask your lawyer to examine the sworn affidavits accompanying the suit for falsehood and the false claims made in the suit. Both invite severe punishments (7 and 2 years of imprisonment and fine, respectively) through sections 195 and 340 of the Code of Civil Procedure, 1908. Same goes for the false evidence produced in the course of prosecution.

Another trick used by dishonest litigants is to file selected supporting documents before the court withholding crucial information related to the matter that may trash their case. The Supreme Court has declared this practice as fraud both on the court and the adversely affected party. Your lawyer must make use of this provision of law to protect you from the false case.

Dealing with false information given to police is more tricky because only the recipient police officer can take any action and s/he would be most reluctant to do so. Ask your lawyer to deal with such crime using the defamation law which, according to decided cases, has no bearing on the falsehood in the information given to the police.

You may have noted that I did not use the phrase "complaint to police". This is because,  police deals with information of cognizable crimes and is not competent to deal with a criminal complaint. A court is.

It is common for some false claimants to lodge a civil case and disappear from the scene. While courts are empowered to throw out such cases of claimant being absent when the case is called for hearing at the first instance, the lawyers often fail to mention to the judge to do so.  A little awareness of the client will keep the lawyer on her toes.

Alternative dispute resolution

There is a saying in Marathi: Shahanyani kortachi payri chadhu naye, that is, if you are wise, do not step into a court. I would put it this way: alternative dispute resolution (ADR) is the first choice of the wise.

Given the enormous time and cost involved in litigations, ADR should always be the preferred choice. Negotiaion, facilitated negotiation (also called mediation) and arbitration constitute a set of three  well-developed ADR processes. What distinguishes arbitration from the former two is, arbitration is an adversarial process like court litigation, minus the complications of the litigation processes. On the other hand negotiation and mediation focus on a win-win solution for both the contesting parties.

Mediation is a novel concept for India. Contracts talk about only negotiations and arbitration as the steps for future dispute resolutions. In Tara Ollapally's words (interview published by Bar & Bench on 17/10/2018), today's dispute resolution clause is "We will sit and negotiate, if negotiations fail, we go into arbitration."; it should be "We will sit, negotiate. If negotiation fails, we will do a facilitated negotiation and if that also fails we go in to arbitration." Tara challenges lawyers to do better than just "strike harder". Quoting Tara again,  we  (the lawyers) are dispute resolvers. We are here to be able to find appropriate resolution for clients who come to us in a distress situation. They are frustrated, they are angry, they are helpless. They want a way out. But the only thing that they know is to strike. And we, as lawyers, are trained to help them strike harder. We just take them up this conflict path but we do not realise that our objective should be to get this person out of this mess in the quickest, safest, most respectful kind of way. We don’t even think of it that way. It is critical that our law students are exposed to this way of dispute resolution. The mark of a civilised society is in our ability to manage conflict. Conflict is inevitable, it is a result of progress. We cannot stop conflict but we have to find better ways to manage conflict so that conflict is opportunity.

Clearly, mediation is an emerging field in India.  I would like to encourage readers to gear up for mediation the next time you run into legal conflict. Mediation is an informal meeting of minds facilitated by a trained mediator in a formal setting. There are no bindings. The party can walk out of mediation at any time. The success of mediation rests on two important factors. Firstly, as against adversarial processes including arbitration, mediation takes a global views of the conflict and explores all venues of possible compromise. Second, the realization that alternative is adversarial litigation that comes with heavy cost in terms of both money and time. Mediation processes across the world have high success rate. According to Tara, many mediations are one-day successes where the litigation would have taken years.  For the common public and those who would like to train themselves as mediators (advocates and non-advocates alike) here is a useful resource: The Mediation Handbook 2013 2014 by Jonathan Dingle & Judith Kelbie published by London School of Mediation. 

Right to Information

The RTI Act, 2005 is a revolutionary piece of legislation. It is unfortunate the corrupt political powers are always trying to dilute it. Well, here are few tips for its optimal use.

Information under the RTI Act can be easily obtained through online application. RTI application to central government can be filed at https://rtionline.gov.in/ whereas information from Maharashtra State can be obtained through https://rtionline.maharashtra.gov.in/index-e.php. The State Government's online system is not efficient though. You end up paying much more than Rs 10 as, apparently, some intermediary institutions charge their own fees.

These websites, after one-time registration, allow submission of applications and appeals with online payment of fees. The central government charges just Rs 10  and provides information at your doorstep. However,  the State charges more than Rs 10 under various heads. 

The key to  successful  retrieval of information is to first know what you can and cannot ask for. What is NOT on public records, cannot be made available. And even among the public records, information in few areas (e.g., defence secrets) cannot be revealed. However there is not a total moratorium on information sharing in the exempt departments. Information on administratiave matters can certainly be obtained.

Law only allows you to have copies of pages from government records. It does not cast on governments a duty to generate or process information on your request. 

For example, if you are not satisfied with the quality of road under construction in your area and ask, "information on why the quality of the road being constructed is not good" you will get nothing. The right thing would be to seek "copy of contract including technical specifications" stating the road under construction and also "the name and contact details of the officer responsible for ensuring that the work is done as per the contract specifications" of the said contract. You will see that, the government will take corrective action on the road project even before it delivers information to you!

PSUs like banks and BSNL also have a powerful RTI system in place and you can fix problems by using the RTI tools.

Public servant

A public servant can be both a victim and an assailant. Given the highest protection among the organized sector, public servants can both make or break the society.

To be able to serve the public without fear and favour, a public servant enjoys immense protection. They can use this to serve the public, or to transfer the public wealth into their private coffers in India and abroad. On the private-sector front, needless to say no Neerav Modi can escape without the active support from public servants.

It comes to justice system to protect or punish the public servant depending on whether they serve or rob the public. If a public servant serves the public honestly, s/he need not expect to be praised or hailed -- they are paid well for it and it alone.  A public servant is bound by administrative law that often restricts her right of free speech. But new generation of officers is re-writing this law, for example, the IAT topper of 2010. PS. The system did not support him. As you may be aware, he has gracefully exited the Service and taken to political life to help the people of Kashmir.

Disclaimer 

For more information, write to me at:

info@advocaterajendra.com