Ashwani Kumar is a member of Rajya Sabha, an eminent Senior Advocate, Supreme Court of India, and a former Law Minister of India. He graduated from St. Stephen’s College, Delhi. Thereafter, he pursued law and earned his Bachelor’s degree in Law (LLB) from Faculty of Law, Delhi University, and his Masters of Philosophy (MPhil) from Jawaharlal Nehru University, New Delhi. In 2004, Dr. Kumar was awarded a doctorate in Law from Punjab University. Dr. Kumar’s political career began in 1976 when he was appointed as the Secretary for the District Congress Committee Gurdaspur (Punjab). From 1999-2000, Dr. Kumar was the spokesperson of the AICC and in 2001 he became the Chairman of the Vichar Vibagh of AICC. Dr. Kumar has authored a book titled Law, Ideas and Ideology in Politics; Perspectives of an Activist in 2003. He has also written a number of scholarly articles on law; economic reforms; elections; democracy and international affairs. Dr. Kumar is presently serving as a Member of Parliament (Rajya Sabha) and is the Chairman of Parliamentary Standing Committee on Science and Technology, Environment and Forests and Climate Change.
He is also a member of the Parliamentary Standing Committee on Rural Development and member of the Parliamentary Consultative Committee on Defence. Live Law: Sir, you have been in the profession for almost over four decades now. Can you share your experience as a lawyer starting from your initial years at the Bar to the pinnacle of the profession. Dr. Kumar: The initial years at the Bar were years of struggle, but taught me the simple truth, that perseverance prevails. My life, in a very significant way is defined by my journey as a lawyer. It has been an arduous journey but an enriching one. Live Law: Sir, do you think there is an oversupply of Law Students and deficit in terms of those actually taking litigation as an area of practice? What needs to be done in order to attract young law student into the profession? What is your suggestions to BCI in this regard?
Dr. Kumar: I believe that to become a true lawyer experience of litigation is a must. Live Law: As a former Minister of Law and Justice in the Union Government, how will you describe a busy day in the office? Dr. Kumar: Mine was an 8.30 am to 8.30 pm day, sometimes even later and not a minute to spare. The range of responsibilities of a Law Minister is vast and requires reading, deliberation and reflection. Between reading of files, attending to parliamentary work, meeting visitors, conferring when necessary with officials and law officers in discharging official duties makes it a very full plate. Live Law: Can you share your experiences in Court Rooms? Any interesting event/story you would like to share with us? Dr. Kumar: There are many, but would like to share one in particular. Live Law: Can you share your experience of the most difficult case(s) of your career as a Senior Counsel? What moment of the profession do you cherish the most? Dr. Kumar: There have been such cases I can cite one or two here. One was a case concerning the enforcement of an international arbitral award in India under the 1996 Act.
The case started soon after the new Arbitration Act came into force and took several years to conclude. We finally won this case. I argued before the Division Bench of the High Court and won . The matter was taken in Appeal in the Supreme Court. I could not argue the matter because by then I had joined the Government. Earlier also, I had to leave the Bar in between in 2006 when I joined Government for the first time. In my earlier years at the Bar, I was instructing N. N. Mulla, Senior Advocate in a murder appeal before the Supreme Court. On the very day the case was to be argued, Sh. Mulla could not turn up. The appeal was against concurrent findings of the Trial Court and the High Court against my clients. They had been sentenced for life imprisonment in case of murder. I was called upon to argue and we won the appeal on a fine question of law.
This was, indeed a very satisfying and encouraging experience for a young lawyer. Dr. Kumar: As I said, it has been an arduous but a rewarding journey. A long haul with many ups and downs but then as has been said “life not put to test is not worth living”. Mine has been a life put to test. At this moment in time, I feel truly blessed with my exertions having been fully rewarded. I feel contended and fulfilled and this can only be with the Lord’s blessings. Live Law: What are your views on the Right to Stipend for a “Law Internee” in Firms, Courts, Tribunal, NGOs, and Companies etc? Live Law: Given an opportunity, what will be your response if you will be considered for the elevation to the Bench? Dr. Kumar: I had turned down such an informal offer several years ago although when I was in school, my ambition was to be the Chief Justice of India. Live Law: According to some jurists, the National Judges Accountability Bill will mark the end of ad-hoc judiciary.
What is your opinion on this? Dr. Kumar: For a variety of reasons, I would rather reserve my comment on this question. Live Law: “If it May it Pleases the court” / “If it May please your Honour” / “May it please my Lords” these phrases are used by the lawyers in their practice before judges. What exactly do these phrases mean and what message does it convey? Sir, do you really think that the judges are flattered by such phrases? We have seen some High Court courtrooms carrying a notice saying not to refer the court as “Lord” / “Lordship”. What is the correct way of addressing a court / different courts? Dr. Kumar:The Judges, to be fair to them, do not insist that they be addressed as “Lords”. It is now a sheer force of habit that the Judges of Superior Courts are addressed in a particular way. I believe, most Senior Lawyers in addressing Judges as “My Lords” feel comfortable because of a long tradition and habit.
Live Law: According to you, what is the importance of an LL.B degree for a politician? Dr. Kumar: A mere degree is not enough and I don’t think contributes significantly to the making of a politician. What is important for a budding politician is to inculcate a spirit of respect for and deterrence to law and its principles. Live Law: Sir, does corruption still exist in the judiciary? Dr. Kumar: By and large, I believe our higher judiciary has acquitted itself well on this Count. Stray examples cannot be used to make a sweeping judgment. Cases of corruption in the judiciary are exceptions and there is a mechanism in place to apply the correctives. Live Law: Now-a-days we find students, young advocates researching more from software based journals rather than reference books / manuals for primary research. Some lawyers argue their whole case directly from ipads/ tablets. Some courts have turned into E-Courts. While the intent is to reduce paper and in turn protect the environment, would you agree that reference books have now come of age and their use will eventually be lost and forgotten to electronic research? Dr. Kumar: Personally speaking while e-research has made research easier and less time consuming, there is no substitute for reading the texts and reference books for purposes of comprehensive research. The feel of a law book in hand is itself an aid to the learning and reading of law. I rely on my own reading of the case laws and commentaries from real books, but I have no quarrel with those who rely on software for research. Thank you so much sir for your time and consideration. We wish you all happiness and health in future.
On the other hand, who needs a campaign website when the Chicago Sun-Times carries your campaign announcement? Brookins was briefly a candidate for the congressional seat and state central committeeman post held by Bobby Rush (filing before rumors of Rush’s retirement proved premature). Brookins has been licensed as an attorney in Illinois since 1988, according to ARDC. In addition to his City Council duties, he maintains a law office in the Chicago Loop. Nyshana Kali Sumner filed for the 2nd Subcircuit John D. Turner vacancy initially, but she withdrew from that race in order to file for this vacancy. That’s a link to the candidate’s campaign Facebook page in the preceding sentence; I haven’t yet found a campaign website. Sumner, the daughter of retired Judge Thomas R. Sumner, has been licensed as an attorney in Illinois since 2004. She is employed as an Assistant State’s Attorney and previously sought a 2nd Subcircuit vacancy in the 2014 primary. Chelsey R. Robinson filed at the last possible moment for this vacancy. A partner in the firm of Owens & Robinson, Robinson has been licensed as an attorney in Illinois since 1996, according to ARDC. Robinson sought a 2nd Subcircuit vacancy in 2016. I have so far been unable to find a current campaign website or campaign Facebook page for Robinson.
I’m not debating healthcare reform’s alleged benefits such as lower health costs, increased coverage access, protected doctor and patient relationships and the preservation of seniors’ benefits. I am debating whether Obamacare moves America closer to the achievement of those goals or further away by placing yet an untenable burden on employers. The McKinsey report also found that employers may opt to offer healthcare benefits at exorbitant premium rates. These plans would be unacceptable under the tenets of the law, but the plan employees would be eligible for government subsidized insurance. The net result is these employers would ending up paying smaller fines and avoid complying with the healthcare reform law. As of July 2011, the Health and Human Services (HHS) department had granted almost 1,500 one-year waivers to employers. Why the need for waivers? Because without a waiver to protect these employers from a least one provision of Obamacare – a ban on annual benefits caps – they might choose to simply stop offering health care benefits to their employees. Every employer who chooses to refuse to offer health care funnels that many more uninsured individuals into the government subsidized insurance pool.
What if Obamacare is repealed? How does the employer recoup the monies spent? Employers could comply with the letter of the law (assuming they find someone who can interpret it) but discover that amendments to the law change or eliminate the need for compliance. Point of fact: the 1099 requirement has already been repealed. Their only recourse for recouping those expenses is to pass them to their customers (think you and me). What if states don’t set up their health exchanges? A July 2011 report in The Hill’s Healthcare blog states that only 10 states have enacted laws to establish insurance exchanges, but these exchanges must be set up and running by 2014 to comply with the law. These states have no financial worries about setting up their exchanges because the law guarantees them almost “unlimited sums” so it’s curious that they are not rushing to comply. Even more interesting is the fact that Oklahoma and Kansas returned their early innovator grants to the federal government.
If states simply refuse to comply and set up the exchanges, the law provides that the federal government will step in to set them up. Many states appear to be taking a “wait-and-see” attitude as the court challenges play out in the judicial system. Will employers watch events play out in their home states and wait for judicial decisions before they move ahead with implementation plans? Only time will tell, but if states can avoid compliance, employers may be able to as well. However, what if the federal government does not have the funds to set up the insurance exchanges? This is a very real possibility according to a report from Politico. Those uninformed politicians forced to find out what was in the bill after they passed it must feel pretty silly now. I think we all know where the money must come from. Government has no way to raise revenue except by more taxes on an already overburdened tax base.
Before the law was passed, there were too many unknowns and uncertainties about it. No one, including the legislators who voted it into existence, really knew what is in the law, how it would be implemented or paid for and what the true final cost would be. Most Americans probably remember Nancy Pelosi’s statement “We have to pass the bill so that you can find out what is in it…” The more we find out, the less we like it. The outcome of the various court challenges are yet to be seen, and no one knows how the Supreme Court judges will rule when and if the case for the constitutionality of the law appears before them. If Obamacare is not repealed, experts predict disastrous, expensive results. Even if it is repealed, untold amounts of time and money will have been wasted to rid taxpayers of a punitive law that they clearly told legislators they did not want. Unknown numbers of individuals may lose their health coverage entirely because employers could not or did not comply with the law. In my opinion, this is probably the worst of any bad political deal to ever be foisted upon America. Every politician who voted for Obamacare should be voted out of office whenever they come up for re-election. Those that are appointed to replace them should be voted out if they do not vigorously pursue Obamacare repeal. The sad thing is that none of this time, effort or money expenditure was necessary. If you are a company owner or employer, are you making plans to implement Obamacare? If you are an employee, what impact (if any) do you think implementation will have on your life?
The city’s childish stubbornness is going to cost taxpayers a small fortune. Mayor Daley and his anti-gun city council adopted what amounts to a “tantrum ordinance” that essentially spits in the high court’s face. The city’s handgun law requires prospective gun owners to undergo training, including at least one hour of actual time on a gun range. However, the ordinance prohibits the operation of gun stores and ranges inside city limits. Additionally, the city requires would-be Chicago gun owners to first obtain a Chicago Firearms Permit (CFP), and an application for that document requires an affidavit signed by a firearm instructor certified by the State of Illinois. Instructors cannot teach those courses anywhere inside the city because there is no place to conduct that training. Earlier, the Illinois Association of Firearms retailers and a north suburban gun shop operator sued the city over this ordinance. Now, SAF, ISRA and ATI have brought legal action. Action Target is a Delaware-based company that designs and builds gun ranges, including one in Chicago, in the Federal Reserve Bank building, for use by law enforcement.
The company wants to build a gun range in the city for private citizens, but the city’s ordinance makes that impossible. This sort of thing may be “politics as usual” in the Windy City, but it does not pass the smell test anywhere else. It sends a signal that Chicago authorities believe they are above the Constitution and the rule of law as defined by the Supreme Court. It’s the kind of attitude one sees in a schoolyard bully, suggesting that Mayor Daley and his council cronies are in desperate need of adult supervision. Perhaps when Mayor Daley was a child, he became accustomed to taking his ball and going home when things did not go his way on the playfield. Since he evidently has never grown up, he believes this conduct is still acceptable in an adult world. The citizens of Chicago have tolerated his juvenile delinquency but that doesn’t mean the rest of the country needs to. Chicago’s ridiculous gun law is proof positive that the city administration does not take the Supreme Court ruling seriously. The time has come to change that, and that will require the federal courts to spank the city again, since nothing else seems to get the city’s attention. You do wonder if Hizzonor dah Mayor will deign to issue a response. There is certainly a stimulus plan in effect in Chicago – for lawyers.
Update 4th December: The Government is to appeal the decision of SIAC. As predicted (below), the Home Secretary is not yet prepared to give up the chase! The Guardian 3rd December. The most recent round of litigation concerning Mohammed Othman (Abu Qatada) commenced in 2005 and continues with the distinct possibility that it may continue for some time to come. Why does the government wish to deport Abu Qatada? Since before 2002, the government has viewed AQ as an exceptionally high terrorist risk. The Special Immigration Appeals Commission has agreed with this. Since 2002 the Government has wished to deport him to his country of birth, Jordan and, in 2005, made a formal decision to do so. AQ has consistently resisted this. In Jordan, AQ was convicted in his absence of certain criminal offences under Jordanian law. If returned to Jordan, he would face re-trial upon certain terrorism charges. There is no doubt that, historically, torture rook place in Jordan – e.g. Human Rights Watch 8th October 2008. In 2007, Jordan amended its Penal Code to make torture a criminal offence.
In 2011, the Jordanian Constitution was amended to prevent torture or physical or emotional harm to detainees – see Amnesty Report 2012 – Jordan. The British government has tried to seek diplomatic assurances that this would not be the case including Theresa May personally flying to Jordan in March 2012 – see Channel 4 (5th March). The government was hoping that the assurances it had received would be sufficient to allow AQ’s deportation. On 17th January 2012, the European Court of Human Rights 4th Section gave judgment in Othman (Abu Qatada) v UK . Strasbourg held held that the assurances offered by Jordan were adequate to protect him personally from torture and so Article 3 (Prohibition on torture etc) would not be breached. However, the ECtHR also held that Article 6 (Right to a fair trial) could be breached since there was a real risk of the admission, at the applicant’s retrial, of evidence which had been obtained by torture of third persons.
It was against the background of this judgment that the British government sought to stiffen the assurances that Article 6 would not be breached. A request by AQ – submitted on 17th April 2012 – for the Grand Chamber to hear a reference was held to be in time (just) but the Grand chamber declined to hear the referral. Thus it was then left to SIAC to determine whether the assurances were actually sufficient to meet the requirements laid down by Strasbourg. On 12th November, SIAC (Mitting J; Judge Peter Lane; Dame Denise Holt) held that, despite the assurances, AQ could not be deported. The SIAC judgment is here. This is the OPEN judgment. There is also a closed judgment with closed reasons. The government will appeal to the Court of Appeal though such appeals have to be on points of law only. At the heart of the decision on Article 6 is a question of Jordanian law about which the various witnesses had some disagreement. ] – Jordan needs to amend its law in a number of ways if the assurances given by the Jordanian government are to be acceptable. It is therefore no surprise that the government is seeking to appeal this decision. After the Abu Hamza case (extradition to USA), the Justice Secretary announced a review of legal aid – BBC 7th November.
The Supreme Court of the United Kingdom (UKSC) and the Judicial Committee of the Privy Council (JCPC) are located in Parliament Square, London. The role of the JCPC is explained on the court’s website. Although the JCPC’s role has declined, it remains the highest court of appeal for several countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas. Since most of the court’s jurisdiction is external to the UK, its decisions do not strictly-speaking bind the English courts but they are persuasive precedents. The composition of the JCPC naturally gives its decisions a high legal authority since its permanent judges are also the Justices of the UKSC though others occasionally sit. ] UKPC 17 – Lord Neuberger, Lady Hale, Lords Kerr, Wilson and Sumption. The facts of the case arose from the damage caused by Hurricane Ivan in 2004 when it struck Grand Cayman and extensively damaged a residential village insured with Sagicor.