Recently, Hon’ble Justice Prathiba M. Singh of Delhi High Court in Sulphur Mills Limited v. Dharmaj Crop Guard Limited, [CS(COMM) 1225/2018 & CC(COMM) 9/2019] said, to argue on basis of submissions made before Commissioner of Customs, there is no novelty or inventive step in Indian Patent Number 282429, would lead to an anomalous situation and incongruous results. The tests, standards and purpose of both laws being completely different, one cannot be conflated with the other. The over-emphasis is clearly a red herring.

A red herring before Court is a Counsel’s attempt to distract, for a reason that is either intentional or is based on an absolutely wrong interpretation of law. Several decisions of SC have spotted a red herring, some of which are mentioned here.

_____

Diverting our attention to incidents of suspicious exercise… would be nothing short of drawing a red herring. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

He intentionally fabricated false dues, laid false trails, drew many a red herring across the net, smothered the truth, burked the inquest, falsified official records and short circuited the procedural safeguards. Kodali Purnachandra Rao v. Public Prosecutor, Andhra Pradesh, (1975) 2 SCC 570.

Rakesh, accused for murder of Dharam Pal, was acquitted by Additional Sessions Judge who held, “there might be some other Rajbir and some other Rakesh and some other Mahesh.” Despite evidence, they were given benefit of doubt on the ground of their identity not being established. The dispute about the identity was only a red herring. It was only a smoke screen. Rakesh v. State of U.P., (2002) 6 SCC 384.

The lack of seriousness of the debate exhibits, the debate was nothing but a red herring to divert attention from the sinister, politically motivated design masked by the ‘tearful’ faces of the people masquerading as champions of the poor and down trodden. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.  

Let us first put aside the Miranda decision that seems to have entered into the discussions of this case as a red herring. Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1.

The allegation, Judge Loya was not provided even a car to travel from Ravi Bhavan to Dande Hospital and onwards to Meditrina, is a red herring. Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72.

_____

Irrespective of a civil or criminal flavor, cases before SC are often argued with a time-length which is unnecessary. Is it desirable? If on an instance, Counsel is yet to arrive at his final conclusion but has successfully imagined a novel argument, which, though Counsel is aware is irrelevant to the case, may ensure Court granting more time to Counsel to prepare his submissions – should or should not Counsel, on that instance, cite the red herring? Perhaps, Counsel can’t conclude which of its efforts are red herrings. It’s best left to Court.