Thread by @barandbench

1st Justice HR Khanna Memorial National Symposium hosted by CAN Foundation with NLU Jodhpur and GNLU to begin shortly.

The session aims to pay homage to #JusticeHRKhanna and to commemorate the Judge's legacy, including his celebrated dissent in ADM Jabalpur v Shivakant Shukla

Justice UU Lalit, Supreme Court of India will be delivering the keynote address on the theme “Reflections on #JusticeHRKhanna - Nurturing India's Constitutional Fabric.”

Panelist, Senior Advocate PS Narasimha will also be speaking thereafter.

Track thread for Live Updates.

The session begins, Manu Maheswari welcomes the gathering and introduces Chief Guest, Justice UU Lalit (L), and Panelist, Senior Advocate PS Narasimha (R).

The session can be viewed live on YouTube:

#JusticeHRKhanna

Siddharth Gupta, CEO, CAN Foundation speaks: In the 1970s when there were questions on the independence of the Indian judiciary and the cherished fundamental rights were meaningless, a crusader emerged from the dark shadows.

#JusticeHRKhanna

Gupta: At a time, when even the custodians of the Constitution yielded their convictions for the ambitions, he refused to forgo his conscience for the seat of the Chief Justice of India.

#JusticeHRKhanna

Gupta: Late Shri Nani Palkhivala rightly said, 'to the stature of such a man, the Chief Justiceship of India can add nothing.'

#JusticeHRKhanna

Gupta recounts how late Senior lawyer Ram Jethmalani said that the free world should erect a monument to the ADM Jabalpur case.

Gupta recounts various other landmark rulings rendered by #JusticeHRKhanna including the Keshavanandha Bharathi case and Indira Gandhi v. Raj Narain

Gupta recounts that #JusticeHRKhanna gave the tie-breaking judgment in the Keshavanadha Bharathi case, holding that the power to amend the Constitution does not include the power to amend its basic structure, "a judgment in absolute conflict with the power dynamics of that era."

Prof. Poonam Saxena, VC of NLU Jodhpur speaks, notes that #JusticeHRKhanna is respected to the point of reverence today, as he was back when she was a student studying Constitutional law. She recounts how the Judge was recognized for his contribution to maintaining democracy.

Prof S Shanthakumar, VC, GNLU: #JusticeHRKhanna does not need any introduction in the legal fraternity. Khushwant Singh once said he was "so clean a man that he makes angels look dishevelled and dirty."

Prof S Shanthakumar, VC, GNLU: Independence of the Court does not necessarily mean always deciding against the State. Sometimes a notion prevails that the more a Judge decides against the State, the more independent he is. This is a wholly misleading notion.

Prof Shanthakumar: The activity of the State must, in the nature of things, impinge upon the private rights of individuals. The modern approach is that the welfare of the community must have primacy over the private rights of the individual.

Prof Shanthakumar: Individuals whose rights are so impinged are bound to challenge measures by the govt. If the courts in their zest to show independence were to strike down all measures of the govt, it will be setting at naught all schemes to bring about socio-economic reforms

Prof Shanthakumar: We should not take a lopsided view of the independence of judiciary. Independence of the judiciary means dispensation of justice without fear or favour, it postulates keeping the scales between the rich and poor, the mighty and the week, the state and citizen

Prof Shanthakumar: As much injustice can be done in keeping the scales weighted in favour of the citizen and against state as it can be done be keeping the weight of the scale in favour of the State and against the citizen.

Shanthakumar: We need persons on the Bench who can weigh things by supreme impartiality, daunted by any consideration but justice, whom nothing can sway - neither mob frenzy nor powers that be.

Weak characters cannot be judges. This was the observation of #JusticeHRKhanna

Justice UU Lalit begins his keynote address: I feel privileged, a bit humble, to be part of this gathering and talking about #JusticeHRKhanna, his contributions, his role in shaping modern thought, the judicial ethos.

Justice Lalit says #JusticeHRKhanna is so multifaceted, it is impossible to know everything about him

Justice Lalit: He is such a towering personality, impossible to describe or deal with his role in a 25 or 30-minute speech. But let me make an attempt.

Justice Lalit: #JusticeHRKhanna in one of his articles said liberty, democracy, and the rule of law are the most important indices of a free and civilized society. They can be described as three phases of the holy trinity which presides over the destiny of all free societies,

Justice Lalit: This holy trinity is reflected in his judgments. We only know this man through his judgments, contributions, his lectures. I feel one of my misfortunes is I never saw this man in action By the time he demitted office, I was still a student.

#JusticeHRKhanna

Justice Lalit: He again says in an article, 'we must always remember that the thoughts of great men of law are not windfalls of inspiration, they are the product of years of contemplation and brooding ..."

#JusticeHRKhanna

Justice Lalit continues quoting #JusticeHRKhanna:

"It was said of a great judge that the anguish which preceded his decisions was apparent, for again and again, like Jacob, he had to wrestle with the angel all through the night; and he wrote his opinions with his very blood..."

(Justice Lalit continuing to quote #JusticeHRKhanna):

"... But when once his mind came to rest, he was as inflexible as he had been uncertain before."

Justice Lalit: What a beautiful way to describe what the Judge actually feels when he is writing a judgment. A lot of uncertainties in his mind, but finally when he pens down his thought, that's where certainty comes in.

#JusticeHRKhanna

Justice Lalit goes through various decisions rendered by #JusticeHRKhanna.

Justice Lalit: Justice Khanna's voice when it came to minority educational institutions' rights in St Xaviers's has become the leading light on the point.

Justice Lalit: #JusticeHRKhanna was of the opinion that educational institutions must act as the repository of the nation's ideals and the sanctuaries of the country's rich heritage.

Justice Lalit speaks on the landmark judgment in St Xavier's society case by #JusticeHRKhanna dealing with educational standards by institutions maintained by religious and linguistic minorities.

Justice Lalit quotes from judgment: "Although the words secular state are not expressly mentioned in the Constitution, there can be no doubt that our Constitution-makers wanted the establishment of such a state ..."

Full judgment here: indiankanoon.org/doc/703393/

#JusticeHRKhanna

Justice Lalit speaks on the Keshavanandha Bharathi case: Today it has become an axiom of Constitutional law that the parliament cannot amend the Constitution to destroy its basic structure. #JusticeHRKhanna laid the foundation of this theory

Justice Lalit: The judgment, in that case, gave a big blow to the authoritarian powers.

#JusticeHRKhanna

Justice Lalit: In his book, 'Making of India's foundations", #JusticeHRKhanna said "Constitution is the vehicle of a nation's progress ...It has also to provide a considered response to the needs of the present and to possess enough resilience to cope with the demands of future."

Justice Lalit: A Constitution at the same time has to be a living thing, living not for one or two generations but for the succeeding generations of men and women. It is for that reason that the provisions of the Constitution is couched in general terms.

#JusticeHRKhanna

Justice Lalit: He adds further, 'A Constitution cannot contain the details of all the subdivisions of which its great power will admit, nor can it provide for different contingencies which may arise in State affairs. Where it to be so, it would probably be never understood

Justice Lalit recounts that #JusticeHRKhanna had written that the Constitution, therefore, requires, in the words of Chief Justice Marshall, 'only its great outlines marked, its important objects designated, and minor ingredients be deduced from the nature of objects.'

Justice Lalit recounts that #JusticeHRKhanna had written that the Constitution ought to state not the rules of the passing hour, but the principles for an expanding future.

Justice Lalit: What a beautiful way to quote what the Constitution means and what should it mean.

#JusticeHRKhanna's vote in the Keshavanandha Bharathi case is to be read with his opinion in the Indira Nehru Gandhi case, Justice Lalit says.

Justice Lalit: #JusticeHRKhanna's sterling contribution to our Constitutional jurisprudence was his enunciation of the unique basic structure doctrine. This doctrine has had immense impact on the development of our Constitution and the expansion of judicial review

Justice Lalit: We have now gone by basic structure theory to invalidate even Constitutional amendments. Egs. like Minerva Mills, NJAC - these are some of the cases where the same thought has become the guiding light for successive generations of judges.

#JusticeHRKhanna

Justice Lalit: In the words of #JusticeHRKhanna, a Constitution cannot be regarded as a mere legal document like a will, nor is it like a plaint. The Constitution must be the vehicle of the light of the nation.

Justice Lalit speaks of how #JusticeHRKhanna's observations on the Constitution have been far-sighted and prophetic.

Justice Lalit recalls that #JusticeHRKhanna had observed that unchecked, unlimited freedom would lead to social chaos.

Justice Khanna went on to say that there must be some area where man must have freedom without interference by the State.

Justice Lalit goes on to recount that #JusticeHRKhanna said: We cannot remain absolutely free but must give up some liberty to preserve the rest, but total self-surrender is self-defeating. What must minimum be? That which man cannot give up w/o offending essence of human nature

Justice Lalit notes that the boundaries of these minimum standards continue to be debated, #JusticeHRKhanna had observed.

Justice Lalit: This shows what must have weighed with #JusticeHRKhanna when he gave his dissenting note in ADM Jabalpur. That divine perception of what life is what man lives for, the minimum he must be guaranteed - these are beautiful thoughts which perhaps guided the great soul

Justice Lalit: During the hearing of the ADM Jabalpur matter, #JusticeHRKhanna posed a question - Whether there would be any remedy if a police officer, because of personal enmity and for reasons nothing to do with the State, took into detention a law-abiding citizen?

Justice Lalit recalls that Attorney General Niran De responded to #JusticeHRKhanna by saying: "It may shock your conscience, it shocks mine...no proceedings can be taken in a court of law during #Emergency."

Justice Lalit recounts that per, #JusticeHRKhanna, the government's actions would lapse into tyranny unless it is accompanied by the recognition that there are certain basic rights possessed by all citizens, good or bad, even the crooks, scoundrels, criminals.

Justice Lalit, referring to what #JusticeHRKhanna said: There are some rights inherently in all, because of their being human. These rights are inalienable because the enlightened conscience of the community would not permit the surrender of these rights by any citizen

Justice Lalit: He was of the opinion that the exercise of the right of liberty can never be absolute and real liberty is always regulated liberty. The freedom of one's fist must end where another man's nose begins.

#JusticeHRKhanna

Justice Lalit: The freedom of the just man is worth little to him if he can be preyed upon. Every society must have the means to protect itself against marauders by putting restraints. Liberty cannot rest on anarchy and is conditioned on ordered society.

#JusticeHRKhanna

Justice Lalit: Though the dissenting note of #JusticeHRKhanna was accepted in some judgments like Coelho, Ramdev Chauhan and others, or in Vellore Citizens case, it was only in 2017 that Justice Khanna's dissent in ADM Jabalpur was formally accepted as correct by this Court ...

Justice Lalit: ... and the majority opinion stood overruled. That was in Puttaswamy's case.

Justice Lalit recalls that Justice DY Chandrachud had called the majority opinion in ADM Jabalpur was seriously flawed while authoring his opinion in the Puttaswamy case

#JusticeHRKhanna

Justice Lalit: Similar thoughts are expressed in other judgments, as one of the previous speakers said, (in judgments by) Justice Nariman, Justice Sanjay Kishan Kaul

#JusticeHRKhanna

Justice Lalit: This is what the contribution of this man is. One singular vote of dissent now has galvanized every thought in that direction.

#JusticeHRKhanna

Justice Lalit: This has now come to be accepted as a beautiful statement on what the right to life constitutes and whether the power to amend the constitution, to what extent it can impinge on that right.

#JusticeHRKhanna

Lalit J.:In his autobiography, #JusticeHRKhanna has dedicated a chapter to this case. The realization that his opinion (in ADM Jabalpur) would cost him CJI position, the perceptible change in attitude of those around him.. It was probably this dissent that led to his supersession

Justice Lalit: But having a strong belief and conviction in the unassailability of fundamental rights and independence of the judiciary, he lost no time in relinquishing the high office of a judge of the apex court for which people keep aspiring for their lives.

#JusticeHRKhanna

In the words of Justice Krishna Iyer, #JusticeHRKhanna was an erudite judge, a daring dissenter to sustain people's life and liberty, a gracious brother on the Bench whose ambition for promotion as Chief Justice was not above his diamond heart and judicial convictions, Lalit J.

Justice Lalit: Justice Krishna Iyer adds, 'Justice Khanna was a paradigm in judicial promptitude and probity, a morally impeccable judge, #JusticeHRKhanna deserves a lofty place in the story of our age. I salute him for his humanist courage'.

Justice Lalit: We have always saluted the courage of conviction of this man, his insight into every subject, and his dissent has given the guiding path. He has been the lighthouse of our ethos in succeeding generations of judges. We all salute him.

#JusticeHRKhanna

Justice Lalit's address has ended.

#JusticeHRKhanna

Session-2 of the 1st Justice HR Khanna Memorial National Symposium to begin shorty.

Topic: 'Strengthening Doorstep Justice - Augmenting Access to Virtual Courts’.
Speakers include Justice V Ramasubramanian (Judge, Supreme Court), Dr Justice S Muralidhar (Chief Justice, Orissa High Court) and Senior Supreme Court Advocates Neeraj K Kaul and Shyam Divan.

Watch this space for intriguing session, which is to begin shortly #JusticeHRKhanna #VirtualCourts

Advocate Sriram Parakkat begins the session.

Parakkat speaks on the current norm of virtual courtrooms in High Court and Supreme Court. Where India can be connected to digital platforms in trial courts across districts. "This is the question that needs to be addressed."

Justice V Ramasubramanian begins his address: Both relieved and tensed up. At the high court level judges across used to think Justice Muralidhar "Steve Jobs" of Courts.

#virtualhearings #CANFoundation

Though e-courts launched way back in August 2013, it actually required a #pandemic to make courts virtual: Justice V Ramasubramanian

Justice V Ramasubramanian speaks on difference of virtual courts and online courts. "In virtual hearings judges, advocates, litigants need to be available for a hearing. In online courts participants need not be present simultaneously."

Justice V Ramasubramanian: Onset of Covid interim report recognised need of legal sanctity of video conferencing.

Justice V Ramasubramanian: Report of parliamentary committee stipulates three kinds of divides - access divide, connectivity divide and skill divide.

Justice V Ramasubramanian: India not alone to have woken up after pandemic. Many countries, even UN, realised the need to switch from physical to virtual mode. UNHRC adopted a resolution. Its Preamble expressed deep concerns on Covid-19.

Justice V Ramasubramanian: UNHRC resolution states to ensure judiciary has capacity to maintain due process and continuity of legal system including right to fair trial.. under unprecedented situations such as #Covid

Justice V Ramasubramanian: India not alone in this. The UK Parliament passed a law which achieved Royal assent. This Act introduced several amendments - use and availability of live links.

Justice V Ramasubramanian: Court have powers to issue directions over live links... Live video proceedings can be conducted when proceedings are of certain type.

Justice V Ramasubramanian talks about different ways of hearings in different countries such as Ireland. The unique feature of the hearings is that participants who join from other streaming services without requirement that parties use the same platform.

Justice V Ramasubramanian: Russia far more advanced when it comes to virtual hearings.

Justice V Ramasubramanian: Russian court system already demonstrated good results with Court Document Flow. Another system being developed which will ensure openness to justice.

Justice V Ramasubramanian: Coming to China. It has system which run 24/7 under China Global System.. Justice Muralidhar joins.

Justice V Ramasubramanian to #JusticeMuralidhar: You can remove your mask and be yourself.

Justice V Ramasubramanian continues his talk on advanced ways of virtual hearings in #China.

Justice V Ramasubramanian: In Beijing average duration of cases is 40 days. Court hearing loss is 37 per cent on average.

Justice V Ramasubramanian: Chinese courts have incorporated all judgments, developing a database of all judgments.

Justice V Ramasubramanian: Switching over to virtual courts is not without any issues.

Justice V Ramasubramanian mentions about a news item that appeared in a digital platform. barandbench.com/news/litigatio…

Justice V Ramasubramanian: Courts can be operated from anywhere. While I was in Hyderabad I saw state-of -art crematorium in Jubilee Hills. It provides live streaming can pay performs last rites.

Justice V Ramasubramanian: People who are stuck abroad can perform the rites digitally. Please do not think I am making a comparison between the two but I cannot help if you imagination runs riot.

Justice V Ramasubramanian wants a short clip to be played. It is about a news item in the US over a virtual hearings where the accused was appearing from the same home where the victim was present despite restraining orders.

Justice Muralidhar to start his address.

Justice Muralidhar: Very good afternoon. Thankful to Justice Ramasubramanium to accommodate me.

Justice Muralidhar: Miss being physically in a panel with Justice Ramasubramanium. First thing struck me.. Humour flows naturally with him.

Justice Muralidhar: Crucial eye contact with judges lawyers say they miss. Lots of things pass between a lawyer and judge. A shrug, look - this essential part of courtroom hearing cannot be replaced with virtual hearing.

Justice Muralidhar: Same thing with the demeanour of the witness. During the pandemic, one set of cases that have not progressed are criminal trials and civil trials.

In Orissa, trials themselves have not progressed. Lawyers are reluctant to conduct examinations in the virtual mode. They feel comfortable with physical hearings: Justice Muralidhar

In Delhi, Karkardooma, sessions court was chosen having cameras fitted. Cameras focuses on lawyers, witness, judges, connected jail, police station. System 3.0 that we are talking about now: Justice Muralidhar

Justice Muralidhar: Forensic report. There was need for the forensics person to be present in court. Likewise, a witness. Bureaucrats in different states. Just appear in Delhi, a slot could be given a slot. This was of big help.

But there was a problem. The lawyer could not take instruction from his client. Witnesses in jail. The witness could not speak as he was in jail with people around him. The information is privileged: Justice Muralidhar

Justice Muralidhar: So we thought of having a hotline. This again there was no guarantee that conversations are not overheard. We ran into this problem.

Justice Muralidhar: Video remands. Avoids prisoner from appearing in court. Imp aspect is when prisoners are in lock up, it is an imp opportunity for him to meet family. It could be a personal matter, be it daughter's marriage, etc. This opportunity was missed.

Justice Muralidhar: In Delhi high court we had paperless courts. If you find 80% adjournments in civil courts that service has not come.

Justice Muralidhar: Service of notes. We spoke to speed post service. We asked them if you can put all your reports. Many places not served by speed post or courier service.

Justice Muralidhar: Divorce matter. Wife has made allegations and vice versa and this has to be served... How will it happen in digital platform. It just can't happen. It has to go as an attachment in an email.

Justice Muralidhar: Today in Orissa HC we inaugurated digital services. Judges have gone ahead but lawyers are reluctant. Many senior lawyers say I need the brief in my hand.

Justice Muralidhar: Dr Singhvi uses a tablet. Many say thoughts flow when pen touches paper.

Justice Muralidhar: Although I have adopted technology. I. am egging lawyers to use e-filing techniques. My sense is we can't replicate every step of the process. We shouldn't. We can't replace virtual with physical fully.

Justice Muralidhar: Huge potential and a lot could be done. Justice Muralidhar thanks everyone and takes leave as he has to go back to a hearing.

Senior Advocate Neeraj Kaul begins his address.

Senior Advocate Neeraj Kaul: Last night a very distinguished senior counsel told me when he was appearing in Court. He said "am I audible and visible", which is the norm nowadays. The voice came that not only you are audible and visible, you are "incorrigible".

Senior Advocate Neeraj Kaul: Virtual court give access to everyone, everywhere. Matters are stuck at evidence stage in trial courts. There has to be a mechanism to have virtual recording of evidence.

Senior Advocate Neeraj Kaul: Delhi HC framed VC rules in recording of evidence. As per VC rules court designated coordinator is deputed where recording has to happen. However, no SOPs or direction have been issued with appointment of coordinator.

Senior Advocate Neeraj Kaul: In district court WiFis, LANs will make a difference. In district courts, 4G connections, hotpots, make hearings difficult. WFH for staffers can be facilitated with distribution of computer systems.

Senior Advocate Neeraj Kaul: Concept of open courts covered in Constitution of India.

Senior Advocate Neeraj Kaul: Lack of reliable high speed internet continued to prove a barrier for the Indian population.

Senior Advocate Neeraj Kaul: To make such drastic advancements, there has to be training for all staff, and people associated with it.

Senior Advocate Neeraj Kaul: Some concerns. While recording evidence, courts are also supposed to observe demeanour of the witness. If it is virtual, the courts can't observe.

Senior Advocate Neeraj Kaul: Under Indian laws, an accused has to be produced physically after arrest. If produced online, the accused may not speak freely.

Senior Advocate Neeraj Kaul: At times, counsels gauge body language of judges. Even judges gauge the body languages of lawyers.

Senior Advocate Neeraj Kaul: Fresh graduates are missing out on court craft, arguments, hustle bustle of courtrooms. This was easily available during the normal times.

Senior Advocate Neeraj Kaul: Nothing can replace physical hearings.

Senior Advocate Shyam Divan begins: I want to begin by commending the CAN Foundation.

Senior Advocate Shyam Divan: Special privilege to have Justice Ramasubramaniam here.

Senior Advocate Shyam Divan: I had the privilege of meeting Justice #HRKhanna once. Well past his retirement. My father took and said this Justice H R Khanna.

Senior Advocate Shyam Divan: I remember very clearly. I was in school. Nani Palkhiwala on the resignation of H R Khanna had written a tribute to him in the paper.

Senior Advocate Shyam Divan reads excerpts on a personal account during #ADMJabalpur case.

Senior Advocate Shyam Divan: Supreme Court an institution worth fighting for and preserving.. With retirement of Justice (retd) Rohinton Nariman...we have lost one of our great justices.

Senior Advocate Shyam Divan: In certain societies such as China. Just like an ATM, in China there are justice delivery kiosks running on AI in China. All sorts of issues being resolved there.

Senior Advocate Shyam Divan: From an access to justice point of view, it is a remarkable measure. It is revolutionary.

Senior Advocate Shyam Divan: Huge advancements in justice delivery one of the advantages of AI coming into the picture. Let's not take virtual courts from one perspective but from the larger points.

Senior Advocate Shyam Divan: Access to justice from the stand point of litigant. From a financial perspective, virtual courts will make access to justice a lot cheaper.

Senior Advocate Shyam Divan: Enormous plus when it comes to virtual courts. But as discussed earlier, there is aspect of confidentiality.

Senior Advocate Shyam Divan: In several courts, salute many courts, SC, where new tech has ben adopted. We find there is tremendous resistance, I am sorry to say, from judges. It is not the Bar alone.

Senior Advocate Shyam Divan: Bar associations must come forward and bridge this digital divide.

Senior Advocate Shyam Divan: Outreach with devices, infrastructure, connectivity issue as mentioned by Justice Subramaniam, need to be addressed. Bar has a role to step forward.

Senior Advocate Shyam Divan: From the stand point of the lawyer - to me our profession, for crores of people, across the country. I am talking about the entire family - the BA, LLB degree.. enormous dignity.. It also gives you a status. I am not sure time has come,

if we can shift to virtual and deprive the junior Bar. One learns from system from open hearings: Senior Advocate Shyam Divan:

Senior Advocate Shyam Divan: I am told there are platforms being adopted, which might alleviate the problem. Young bar has to have an access.

Senior Advocate Shyam Divan:: I like the suggestion of Justice Muralidhar that the transition is gradual.

Senior Advocate Shyam Divan: The SOP is an embarrassment. We need to have rules. It will force us to think and change. If it is with phases, it will compel us to adopt. Not SOP.

Senior Advocate Shyam Divan: Let us have rules. If we gets the rules, we will know that this will stay and we will work towards it. Earlier, my office drafted rules. We had an explanatory statement, hyperlinks, and statements of objects and reasons. We published it..

Senior Advocate Shyam Divan: I see a huge amount of opportunity in virtual courts.

Senior Advocate Shyam Divan: Robotic courts is one thing, robotic justice would be a problem, at least for someone like me. We should not be looking at replicating. Let's not replicate. Let us identify particular values - a fair and adequate hearings, preservation of process...

It is an enormous team effort that end of the day, justice is done: Senior Advocate Shyam Divan

Senior Advocate Shyam Divan: New lawyers are in need.. Time has come to engage them and address the huge pendency problem in the light of the new technology.

Vote of thanks by Aditya Khandekar, Founding Member, CAN Foundation.