Better judgement

India is a land of great promise. While there are many things going for us, the judicial machinery has not kept pace with the demands of India on the march. The fact that there is a backlog of 20 million civil disputes in the Indian courts that will take another 20 years to complete under the present system does not augur well for our judicial system. The courts are simply unable to cope up with the volume of workload partly due to lack of resources and due to their style of functioning. Every malady, however, has a cure. For starters, the Supreme Court of India should establish regional benches in Mumbai, Kolkata, Chennai and only take up matters of constitutional importance. The High Courts need to establish a bench in one city other than the capital of respective states and be the highest judicial forum for all civil cases. Senior Counsels should be made to serve as Judges for a certain minimum period, say one quarter every year, and the compensation package should be good enough to attract qualified and successful lawyers. In matters of Arbitration & Conciliation, the system should provide statutory recognition to conciliation proceedings. Arbitration needs to be made litigant friendly in terms of costs, time frame and ease. Adjournments are the bane of our judicial system and we need to impose restrictions on the number of adjournments . Dates of hearings must be agreed to by the lawyers and marked in the court calendar accordingly. Final and third hearing of the main case should be held not later than three months from the date of the first notice to both the parties. Lawyers who absent themselves or cause unnecessary delay should be penalised. And finally, the types of appeal need to be regularised and disposed off within two months of the first hearing. To achieve all this, our courts need to adopt the latest in technology to improve efficiency. Mere tinkering will not yield the desired results. Bold and substantial steps need to be taken to transform the judicial system by the year 2012.
ThKarti Chidambaram Age: 36 Managing Director, Chess management services THE ECONOMIC TIMES 29 Feb, 2008, 0423 hrs IST, TNN

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High court quashes Chhattisgarh’s ban on chewing tobacco sale

After an almost two month long ban, gutka or chewing tobacco Friday returned with a bang to shops and kiosks in Chhattisgarh following a high court order.
Vendors hung up rows of gutka pouches in front of their shops after the Chhattisgarh High Court in Bilaspur Thursday quashed a five-year ban imposed on the sale of gutka by the state government on Jan 1.
As per an official estimate, around Rs.100 million worth of gutka is sold in the state per month.
The court order came in response to an appeal filed by gutka traders challenging the ban. The high court remarked in its order that such a ban can only be imposed by the central government and declared the state government’s prohibitive notification illegal.
Chhattisgarh’s Bharatiya Janata Party (BJP) government had issued a notification Dec 31, 2007 for a complete ban on manufacturing and sale of gutka in the state from Jan 1, 2008. It said violators would face up to three years of imprisonment besides being fined under the Prevention of Food Adulteration Act of 1954.
Official sources said the state government was waiting for the formal copy of the high court order to decide on the further course of action.
From correspondents in Chhattisgarh, India, 11:31 AM IST
(Staff Writer, © IANS)
India enews

High court reserves order on spectrum allocation

The Delhi High court on Thursday reserved its order on a petition filed by GSM operators challenging the central government’s decision to allow use of dual technology in mobile telephony and allocate radio spectrum required for wireless communications.Judge Gita Mittal reserved the order after hearing both parties.
In its petition, Cellular Operators Association of India (COAI) had requested the court to quash the department of Telecommunication’s Oct 18 and 19 decisions to permit the use of dual technology and acceptance of Telecom Regulatory Authority of India’s recommendation for adoption of an enhanced subscriber-linked criteria for allocation of additional radio waves.
The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) Dec 12 had refused to stay the allocation of spectrum.
COAI has also challenged TDSAT’s order before the Delhi High Court.
Indo-Asian News Service
New Delhi, February 28, 2008

Cops, Todis abetted suicide: CBI

KOLKATA, Feb. 28: Rizwanur Rehman, whose body was found near the railway tracks at Dum Dum on 21 September last year a month after his marriage with Ms Priyanka Todi, had committed suicide, according to the CBI report placed before Mr Justice Dipankar Dutta of Calcutta High Court today. The report sought permission, inter alia, to start criminal proceedings against Mr Ashok Todi and Mr Pradip Todi, father and uncle of Priyanka, Mr Anil Saraogi, Priyanka’s maternal uncle for abetting Rizwanur’s suicide, Similar permission was sought to start proceedings against Mr Ajoy Kumar, the then deputy commissioner of police (detective department), some officers of the Kareya police station, Mr Sukanti Chakraborty and Mr Krishnendu Das, both officers of the anti-rowdy wing, and Moinuddin alias Pappu, stated to be a friend of the Rehman family. The state government was recommended to take departmental action against Mr Prasun Mukherjee, the then commissioner of police for his involvement in this matter. Major disciplinary proceedings were recommended against Mr Gyanwant Singh, the then deputy commissioner (headquarters) of the city police. The matter will come up for hearing on 12 March. The report follows an interim order of the court in October directing the CBI to probe the cause of Rizwanur’s death and the police officers who were accused of being involved in the intimidation of Rizwanur Rehman, including Mr Prasun Mukherjee, were transferred from their posts. The home secretary, Mr Prasad Ranjan Roy, said the government would abide by the directions of the High Court. Some time back the city witnessed violence over Rizwanur’s death when some people laid a virtual siege to bridge No.4 and set a few passing cars ablaze demanding a CBI probe. A large cross-section of people supported the demand in a no less forceful but non-violent way. A candle-light silent protest before St Xavier’s College, the deceased’s alma mater, as well as a signature campaign underscored the demand. Even as pressure mounted following a series of talk shows and opinions by civil rights activists, lawyers and social scientists, the Rehman family moved the High Court seeking a CBI probe. The state government announced a judicial probe but even as the matter was pending before Mr Justice Soumitra Pal, the Rehman household in Tiljala saw several senior politicians dropping in to console Mrs Kishwar Jehan, the bereaved mother. They included Miss Mamata Banerjee, Trinamul Congress chief, Mr Rabin Deb, former local MLA of the CPI-M and several other leaders. Even chief minister Mr Buddhadeb Bhattacharjee called on Mrs Jehan amid tight security. Meanwhile, in the long legal battle Mr Kalyan Banerjee put forth his submissions for the Rehman’s cause while Mr Balai Roy, advocate-general, pleaded for quashing of the petition. Ordering a CBI probe, the court held that CID investigation was not possible as some of the accused mentioned in the petition were in positions of authority. The popular mood surfaced when people in the court room burst into applause on hearing the verdict and then became silent again in keeping with the dignity of the court.The Statesman (Statesman News Service)

No leniency in rape cases: apex court

New Delhi: Holding that no leniency should be shown in rape cases, the Supreme Court has declined to interfere with the sentence of life imprisonment awarded by the trial court and the High Court to an accused .
A Bench consisting of Justices S. B. Sinha and V. S. Sirpurkar said, “There would be no question of taking a lenient view particularly because of the daring dastardly act on the part of the accused persons in which the appellant took active part in as much as out of the six accused persons, he was one of the three accused who had committed rape on the lady.”
Writing the judgment, Justice Sirpurkar said, “We cannot ignore the fact that the lady was a married person and was tricked into accompanying the accused, who obviously had an evil design. Here was a defenceless married person, who was tricked out of her house taking advantage of the drunkenness of her husband, and then ravished in a most dastardly manner by as many as three persons, one of whom was the appellant before us. Under such circumstances we do not think that any leniency can be shown in the matter of sentence.”
Veer Bhan, Ajmer Singh and Ramesh Kumar gang-raped the wife of Lalchand, in the early hours of February 6, 1999 in Haryana’s Rajapur village after taking her to the fields on the pretext that her husband was lying there in a drunken state.
The Sessions Court awarded life sentence to the three accused and 10 -year imprisonment to the other three . On appeal, the Punjab and Haryana High Court confirmed the life sentence on the three accused and let off the others with the sentence already undergone by them.
The present appeal by Ramesh Kumar is against this judgment.
Two others who were sentenced to life did not prefer an appeal.
Dismissing the appeal and confirming the life sentence, the apex court Bench said: “It cannot be forgotten that out of the three accused only one has come up by way of an appeal. He cannot be treated differently from others who are serving their life sentence.”
Legal Correspondent/The Hindu; Friday, Feb 29, 2008

Justice Khanna was a crusader for civil rights

New Delhi: The Supreme Court Bar Association paid glowing tributes to Justice H.R. Khanna, former judge of the Supreme Court, who passed away on February 25 at the age of 95.
Presiding over a condolence meeting on Wednesday, SCBA president P.H. Parekh described Justice Khanna as a crusader of civil and human rights. His passing away was a great loss for all those championing the cause of civil liberties and independence of the judiciary, he said.
Quoting eminent jurist Nani Palkhivala, Mr. Parekh said Justice Khanna’s statue must be installed in every street corner of the country for the yeoman service rendered by him for the cause of justice.
The meeting resolved to unveil a portrait of Justice Khanna in the Palkhivala library in the new chamber block.
Justice Khanna was a judge of the Supreme Court from September 1971 to March 1977, when he resigned after Justice M.H. Beg superseded him as the Chief Justice of India.
A Bench of five judges of the apex court heard what has come to be known as the habeas corpus case (ADM Jabalpur Vs Shiv Kant Shukla). The only question before the court was whether a petition for habeas corpus and other similar petitions under Article 226 of the Constitution were maintainable, notwithstanding the suspension of the fundamental rights following imposition of Emergency.
On April 28, 1976, four judges decided in favour of the government, holding that the petitions were not maintainable. Justice Khanna, in his dissenting judgment, held that the petitions were maintainable.
In 1977, on the principle of seniority, Justice Khanna should have been appointed Chief Justice. His dissenting judgment in the habeas corpus case sealed his fate. On January 28, 1977 Justice Beg, who decided in favour of the government, was appointed the CJI.
Equally noteworthy is his stand in the famous Kesavananda Bharati case (1973). In the 13-member Bench, six judges ruled that Parliament’s power was limited because of implied and inherent limitations of the Constitution, including those tagged to the Fundamental Rights. Six others held that there were no limitations at all on Parliament’s power to amend the Constitution.
Justice Khanna, however, held that because Parliament had the power only to amend the Constitution, it must leave the basic structure of the Constitution intact.
Mr. Parekh said Justice Khanna’s ruling still held the field.
He said there would be a full court reference in the Supreme Court next week.
The Hindu: National Legal Correspondent
Friday, Feb 29, 2008

EUROPEAN COURT REAFFIRMS BAN ON TORTURE

The European Court of Human Rights has re-affirmed the absolute prohibition of torture and other inhuman or degrading treatment or punishment. In the court’s ruling in the case of Saadi v Italy on Thursday, it found “substantial grounds had been shown for believing that there is a real risk” that Nassim Saadi would be subjected to torture or other ill-treatment if he were deported, relying heavily on reports by Amnesty International and Human Rights Watch. The Italian authorities sought to deport Mr Saadi to Tunisia under the “Pisanu Law” that was originally adopted in 2005 as “an urgent measure to combat terrorism”. The Italian authorities argued that he posed a security risk to Italy. The Court deemed the reports by Amnesty International and Human Rights Watch to be credible, consistent and corroborated by numerous other sources. Amnesty International’s research indicates that torture and other ill-treatment by the security forces in Tunisia are widespread.The practices reported, including against people charged with terrorism-related offences, include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns. Allegations of torture and ill-treatment in police custody are not investigated by the relevant Tunisian authorities. “Confessions” extracted under torture may be used as the principal evidence in trials that result in long prison sentences or the death penalty. Consequently, the European Court of Human Rights ruled that sending Nassim Saadi back to Tunisia would violate the Italian government’s obligations under the European Convention on Human Rights. “This judgment should serve as a reminder to all states: not only they are not allowed to commit torture themselves, but they are forbidden from sending anyone to countries where they would be at risk of torture or other ill-treatment,” said Ian Seiderman, Amnesty International’s Senior Legal Adviser. The case took on additional significance when the United Kingdom intervened in an attempt to persuade the European Court to change its long-established case-law in a way that would have significantly weakened the absolute prohibition on torture and other ill-treatment. The Court rejected as “misconceived” the arguments advanced by the UK, with which the Italian government had agreed. While the Court acknowledged the immense difficulty states face in protecting their communities from terrorist violence, it affirmed that the danger of terrorism “must not however call into question the absolute nature of [the prohibition of torture and other inhuman or degrading treatment or punishment].”
28 February 2008

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