Daily Legal News 30.09.2008

GO cancelling co-op societies polls quashed http://www.expressbuzz.com/edition/story.aspx?artid=P9z2jrQY3A0=&Title=GO+cancelling+co-op+societies+polls+quashed&SectionID=vBlkz7JCFvA=&MainSectionID=fyV9T2jIa4A=&SectionName=EL7znOtxBM3qzgMyXZKtxw==&SEO=
CHENNAI: The Madras High Court has set aside a GO dated July 11, 2007 of the Co-operation, Food and Consumer Department, which cancelled the elections held or were in progress to all the co-operative societies in the State, in respect of two writ appeals.
The GO cancelled the elections to primary, central and apex co-operative societies in the State, commencing on June 8, 2007, under the provisions of the Tamil Nadu Co-operative Societies Act.
Dr P Rajaji and D Kulasekaran moved the court with writ petitions challenging the GO and a consequential order of the Registrar of Societies cancelling their election to the Madras Advocates Co-operative Society Limited. And a single judge dismissed their petitions on June 3, 2008. Hence, the writ appeals.
KANCHI SP DIRECTED TO APPEAR: The Madras High Court has directed the Superintendent of Police, Kanchipuram district, to appear before it on October 28, in connection with a contempt of court application involving Fisheries Minister K P P Samy, on Monday.
CONSULT BAR BEFORE APPOINTING JUDGES: The Madras High Court Advocates Association has appealed to the Chief Justice to consult the Bar Associations before selecting persons to the post of High Court judges. A resolution to this effect was adopted at the general body meeting of the association, chaired by its president R C Paul Kanakaraj, last week.
ASSISTANT DIRECTORS RE-POSTED: As many as 18 assistant directors of Horticulture,who were reverted as Horticultural officers due to want of vacancies, were given re-postings as assistant directors in the Horticultural departments in various districts. Originally, S Mudiyandi and 17 others filed a writ petition challenging the reversion orders issued on July 18, 2008.
VACATION JUDGES NAMED: Justice T Sudanthiram and Justice K Kannan will be the vacation judges during the Pooja holidays. They will sit on Oct 7 and take up urgent matters. Cases can be filed on October 6.
They will first constitute a division bench to dispose of urgent bench matters and then they will sit single.
Express News Service
30 Sep 2008 03:38:00 AM IST

Despite HC stay, Govt set to run Bhamashah scheme
JAIPUR: The state government on Monday announced that it would not stop distributing the smart cards under the Bhamashah Naari Shashaktikaran Scheme as the Rajasthan High Court had only stayed the implementation of the notice issued on July 7, 2008, which had directions about awarding cash prizes for a good job done by gram sevak patwaris and others. Addressing a press conference after a cabinet meeting on Monday, state cabinet minister Ghanshyam Tiwari said, “The scheme will continue. There is no ban on the implementation of the scheme or distributing smart cards.’’ Tiwari alleged that the PIL which led to the high court staying the notice was a foul play of the Congress. “The Congress has failed to counter our development agenda for the forthcoming assembly elections and hence, is now using such tactics,’’ he alleged, adding the person who had filed the PIL is known for filing several of them, most of which had been rejected. Tiwari added that the Congress — within the state and at the Centre — has been acting in a biased manner. Citing the example of the NREGS, he claimed that despite the fact that the state ranked first for three consecutive years for its implementation, the Centre was deliberately not releasing funds. “It has released funds for districts like Sawai Madhopur and Jhunjhunu, which are Congress strongholds but not other districts. Is that not a biased decision,’’ he added. The cabinet on Monday also decided to re-send the New University Ordinance to the governor S K Singh, which he had recently sent back to the government. The government had passed the ordinance to open three new universities at Alwar, Sikar and Bharatpur. “We had approached the advocate general and there is nothing wrong with it. The Congress, when it was even power, had opened the Kota University under the same act,’’ he said, adding that he hoped that the governor clears it soon for the benefit of the residents of these districts. The cabinet on Monday also passed the proposal of forming the mineral development company of Rajasthan, the office-bearers of which would be of the rank of departmental secretaries. It also cleared the Guaranteed Land Title Bill.
30 Sep 2008, 0608 hrs IST,TNN

Did Ramadoss flout dental council norms?
NEW DELHI: In its hurry to grant permission to dental colleges to conduct post-graduate courses in surgery, has Union health ministry under Anbumani Ramadoss cleared applications — of as many as 18 institutions — either bypassing or disregarding the views of the Dental Council of India? A PIL in the Delhi high court alleged that through this open defiance of norms and procedures, which have been earlier upheld by Supreme Court, the ministry set up its own “central inspection teams” (CITs) which were dispatched to colleges to carry out assessments and on the basis of their reports, MDS courses were sanctioned. The ministry has set up CITs under Section 10A(4) of the Dentists (Amendment) Act, 1993, under which the Centre can obtain “requisite” documents from applicant institutions but does not empower it to set aside or ignore the role of the DCI which is mandated to carry out inspections, the PIL said. The use of CITs was contrary to law. The PIL, taken up last week by the HC, said the clause does not allow the ministry to conduct non-statutory inspections nor give the Centre power to set up a CIT to ascertain infrastructural facilities in a college. The entire set of permissions are now under scanner as the PIL alleges that both the time schedule for admissions as well as the DCI’s central role has been brazenly flouted by the ministry. “Central government has conducted inspections of dental colleges not recommended by DCI for PG courses for academic year 2008-09,” the PIL has stated. The HC has issued notices to the health ministry and DCI to respond in four weeks. The apparent ruse of using the “CIT route” to grant permission for courses seems to be a favourite device of the ministry. Last Friday, the ministry granted permission to an Indore college to admit 150 medical students on the very day the institution’s plea was dismissed by the SC on the basis of Medical Council of India reports which were endorsed by the Centre’s senior law officer Gopal Subramaniam. The PIL has said that during the academic year 2008-09, 27 letters of intent (LOI) had DCI recommendations and 18 had CIT endorsements. Of the 18 LOIs, in six cases, the recommendation of both DCI and CIT were available, said petitioners Indian Dental Association and Dr Sabu Kurien, who is a member of the association. They have pointed to the ministry having “conducted inspections of dental colleges not inspected at all by the DCI”. The Supreme Court has held that though the Centre is the final authority in granting permission to medical and dental colleges, it could do so only with a recommendation to that effect from the Medical Council of India (MCI) and the DCI. The colleges which have been named in the petition and which are party to the case include colleges based in areas like Tirupati, Vishakapatnam, West Godavari, Mangalore, Gulbarga, Bangalore, Yelahanka, Hassan, Pune, Chennai, Lucknow, Mathura and Bareilly. The petition alleged that the ministry has submitted that the last date for completion of admission procedure is May 31, 2008, as per schedule framed in pursuance of SC judgment and LOP have been issued before this date. But the schedule of admission, as laid down by SC, is May 2 and according to DCI regulations, the LOP can be issued only up to March 31. The distortion in the ministry response is aimed at justifying “illegal and improper issue of LOP to respondent colleges”, the petition averred. The modification of the March 31 deadline can only be done in exceptional circumstances and by recording reasons in writing but not in the reckless manner adopted by the ministry.
30 Sep 2008, 0449 hrs IST, Rajeev Deshpande & Dhananjay Mahapatra,TNN

Custodial violence: SC seeks response from States http://www.zeenews.com/articles.asp?aid=472813&sid=NAT
New Delhi, Sept 29: The Supreme Court on Monday sought response from state governments on steps being taken by them to prevent custodial violence, which a PIL alleged was on the rise. A three-judge bench of Chief Justice K G Balakrishnan, Justices P Sathasivam and J M Panchal, sought the response within eight weeks, after senior counsel and amicus curiae (friend of court) Abhishek Manu Singhvi, complained that the earlier directions framed by the apex court to prevent custodial violence were not being followed by the States. The amicus curiae submitted that in 1997, the apex court in the D K Basu vs State of West Bengal had strictly prohibited the use of third degree methods on suspects and framed various guidelines for protecting their human rights. It had also passed periodical directions asking the States and the State Human Rights Commissions (SHRC) to ensure compliance of its directions and had further requested the chairpersons of SHRCs to constitute sub-committees to oversee the compliance of the directions. But despite such directions, the States and the SHRC have not been forthcoming with compliance reports, Singhvi stated. He submitted that custodial rapes, deaths and torture continue to occur in various parts of the country. Quoting a report of the National Human Research Bureau, he said there were 78 custodial deaths in the country during 2005. Magisterial inquiries were ordered only in 15 of the cases while in one incident a judicial inquiry was ordered. Though 48 cases were registered against erring policemen officials, not a single policeman was chargesheeted or convicted for custodial deaths, he added. Bureau Report

Hari Masjid case: Why is CBI running away, asks High Court
The Bombay High Court on Monday asked the Centre why the Central Bureau of Investigation (CBI) is reluctant in investigating the Hari Masjid police firing case in which seven people had died 15 years back. “Why is the agency running away from the case? You rush to investigate other cases. Here seven persons died but you are aloof,” a Division Bench of Justice F I Rebello and Justice Ashutosh Kumbhakoni said.
The case pertains to the death of seven persons in police firing outside the mosque during the 1992-93 riots. Farooq Mapkar who was chargesheeted for murder and rioting in 1992-93 had urged the court to initiate action against the then assistant police inspector Nikhil Kapse, who was held “guilty of unjustified firing” and “inhuman and brutal behaviour” in the Srikrishna Commission report.
Mapkar had moved the High Court seeking a CBI inquiry. Although the Maharashtra Government is ready to hand over the case, the CBI is not willing to take it up. The state government issued a notification last year, handing over the case to CBI. But the agency told the High Court that its hands were full and it cannot investigate a 15-year-old case in which a Special Task Force had already given the police a clean chit.
Although the Commission report had indicted Kapse’s team for opening fire without any provocation, a departmental inquiry found that the police were not at fault. The police had filed a case of rioting against Mapkar. The court today said it would examine whether the CBI can refuse to take over a case despite a request from the state government and adjourned the hearing to October 7.
Posted: Sep 30, 2008 at 0301 hrs IST

Consumers should avoid filing frivolous cases in court: CJI
New Delhi, Sept 30: Though consumer is king, they should avoid filing frivolous cases in consumer courts, the Chief Justice KG Balakrishnan said on Tuesday. Justice Balakrishnan said that people, knowingly and unknowingly, enter into several service contracts. “Even travelling in a DTC bus passengers enter into a contract,” he said. The CJI said that most of the people are unaware about the implication of laws, hence, suffer problems. Like big industrial houses, small traders also enter into contract with the consumers, but they should not be made to pay compensation which they cannot afford, he suggested. He claimed if a small trader earning Rs 1000 is made to pay a compensation of Rs 20 thousand then he will have to wind up his business. “Therefore, though a king, consumer should avoid filing frivolous cases before the consumer forums,” the justice said addressing a gathering to mark the launch of a book ‘Consumer is King’ National Consumer Disputes Redressal Commission member Rajyalakshmi Rao. Bureau Report

Cash at judge`s door: Officers of HP govt questioned http://www.zeenews.com/articles.asp?aid=473102&sid=REG
Chandigarh, Sept 30: The three-member judge panel set up to probe the cash at judge’s door scandal on Tuesday questioned some officers of the Himachal Pradesh Government and a few others. The panel, which continued its examination at the Union territory Guest house here, questioned at length as many as three officers from the Revenue and other departments of Himachal Pradesh in a “closed chamber”, sources said. Police had last month registered a case under the Prevention of Corruption Act after Rs 15 lakh was “mistakenly” delivered at the residence of Justice Nirmaljit Kaur by a Munshi (clerk) of the then Haryana Advocate General Sanjiv Bansal allegedly on behalf of a Delhi businessman Ravinder Singh. A land deal at Solan is also under the scanner of the panel set up by Chief Justice of India K G Balakrishnan. An elderly couple, believed to be the land owners, too was examined by the panel comprising Allahabad High Court Chief Justice Hemant Laxman Gokhale, Gujarat High Court Chief Justice K S Radhakrishnan and Justice Madan B Lokur of the Delhi High Court. The Himachal Pradesh Government had reportedly granted permission to 18 persons, including Justice Nirmal Yadav of the Punjab and Haryana High Court, to buy land at Rihun village near Solan, the sources said. Bureau Report

FIR must? SC doubts validity of order
NEW DELHI: A three-judge Supreme Court Bench comprising CJI and Justices P Sathasivam and G S Singhvi on Monday virtually made light of an earlier directive of a two-judge Bench proposing penal action against cops if they refuse to register an FIR immediately on a complaint alleging commission of a serious crime. When earlier contradicting judgments of the apex court on the issue of immediate registration of FIRs was cited before the two-judge Bench, it had referred the vexed issue to a larger Bench while keeping in force its interim order providing for punishment to cops who refuse to lodge FIRs. Finding prima facie lacunae in the two-judge Bench order, the three-judge Bench said if the police was to register any complaint disclosing a cognizable offence, then no citizen of the country would be safe from police cases. “The police must be satisfied about the bona fide of the complaint and its veracity before registering an FIR,” the Bench said.
30 Sep 2008, 0453 hrs IST,TNN

Quake relief fund: BJP MLA under High Court scanner
AHMEDABAD, SEPT 29 A controversy regarding misappropriation of Rs 60.96 lakh by Radhanpur BJP legislator Shankar Chaudhary from the Prime Minister’s relief fund for the 2001 quake victims has reached the Gujarat High Court. Notices have now been sent to the Centre and the National Building Construction Corporation (NBCC) in this regard.
The notices were issued based on a petition by a Radhanpur resident, Farsunbhai Mujibhai Goklam, who charged Chaudhary of misappropriating the funds.
According to the petition, Shri Vivekanand Vikas Mandal, a trust run by the MLA and his family, ran a number of educational institutions, including the Nalanda Girls School in Radhanpur.
The said school was run from a rented building belonging to another trust — the Sarvodaya Arogya Nidhi and did not suffer damage in the earthquake. But Chaudhary “connived with the state Government officials and fabricated evidence to swindle the amount from the relief fund for his personal benefit.”
Syed Khalique Ahmed Posted: Sep 30, 2008 at 2349 hrs IST

Mumbai High Court Ask Cipla to Reply in 2 Weeks
Mint has further reported that Justice Abhay Oka of Mumbai High Court has asked Cipla to reply in two weeks to the patent infringement suit filed by Swiss-major F Hoffmann-La-Roche over anti-infection drug Valganciclovir. The case is expected to come up for hearing in the third week of October. In parallel, Roche is also facing post-grant oppositions from Ranbaxy, Cipla and the Delhi Network of Positive People in the Chennai Patent Office. Though we are not able to go through the complete specification of Valganciclovir patent but according to reliable sources Roche’s patent has broadly issued claims which may likely invalidated on the grounds of obviousness (and possibly be challengeable under section 3(d) on the grounds of obvious variation of known compound ganciclovir).
By Varun @ 3:00:00 AM
Tuesday, September 30, 2008

Cinema employee gets six months imprisonment under SC/ST Act
NEW DELHI: A former cinema theatre employee, who worked as a ticket booking clerk, on Monday was sentenced to six months of simple imprisonment by a sessions court for using abusive language against his subordinate. Convicting the accused under Scheduled Caste/Scheduled Tribe (SC/ST) Act, ASJ Rajnish Kumar Gupta also imposed a fine of Rs 2,000 on convict Satya Prakash alias Bhatnagar. A resident of Karol Bagh in central Delhi, 69-year-old Satya Prakash was held guilty under Section 3(1)(x) of the Schedule Caste/Schedule Tribe Act (Prevention of Atrocities) Act dealing with insulting or intimidating with the intent to humiliate an SC/ST in public view. The purpose of the Act is to prevent atrocities and help in social inclusion of Dalits into the society. The court relied heavily on the prosecution’s version while holding Satya Prakash guilty. According to the prosecution, Satya Prakash, who worked as booking clerk at Regal Cinema in Connaught Place, had used abusive language against complainant Nanak on August 10, 2003. An FIR was registered at the Connaught Place police station on the victim’s complaint. Following the examination of prosecution witnesses, the court convicted Satya Prakash and awarded him imprisonment and also slapped a fine on him. Earlier, the SC had observed that addressing Scheduled Caste people as ‘ chamar ’ may amount to an offence punishable under the provision of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
30 Sep 2008, 0322 hrs IST,TNN

Custodial deaths up by 81%, SC seeks Centre’s reply
NEW DELHI: In the UPA government’s first year in office, the custodial death figure shot up by 81%. Acting on this complaint, the Supreme Court on Monday issued notices to the Centre and all state governments asking them to give responses within eight weeks. The dramatic rise was pointed out by amicus curiae, senior advocate A M Singhvi and advocate Suruchii Aggarwal, before a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and K M Panchal. They alleged that the 10 commandments laid down by SC in 1997 in the famous D K Basu case — to stop harassment of detainees by police and keep the arrested persons in humane conditions — appeared to have been confined to the files and signboards in police stations. Quoting National Crime Records Bureau and its publication ‘Crime in India for the Year 2005’, the amicus curiae said during the year 2005, there were 67 deaths in police custody.
30 Sep 2008, 0458 hrs IST,TNN

SC reinstates Chahal’s relief
Chandigarh, September 29 In a major sigh of reprieve for ex-media advisor B I S Chahal to former Punjab CM Amarinder Singh, the Supreme Court has stayed the operation of the order passed by the Punjab and Haryana High Court on September 10.
Through the order, the High Court had recalled the interim relief given to Chahal wherein the Punjab Government had been directed to issue three days notice before arresting Chahal in any fresh case. However, this order was later withdrawn by the High Court. Chahal moved the Supreme Court, which today issued notices to the Punjab govt and reinstated the relief given to Chahal.
Chahal had alleged that he might well yet again be made a victim of political vendetta for his close association with Captain Amarinder Singh.
Express News Service Posted: Sep 30, 2008 at 0350 hrs IST

State govts, sleuths get SC notice on custody deaths
NEW DELHI: The Supreme Court on Monday sought explanations from state governments on steps taken to protect rights of an accused during custodial interrogation. The court also issued notices to CBI, RAW, Directorate of Enforcement, Directorate of Revenue Intelligence, CID, State Armed Police and others. A bench comprising Chief Justice K G Balakrishnan, Justice P Sathasivam and Justice J M Panchal called for a report with regard to the custodial deaths in 2006 and 2007 across states. The order was on a plea which alleged that there has been a sudden rise in custodial deaths across the country. During 2005, there were 78 custodial deaths of persons who were remanded to such custody by courts, said an application filed through advocate Suruchi Aggarwal. It cited a report of the National Human Research Bureau to substantiate its plea. “As per the report, such deaths have increased by 12.1% in 2004 over 2003 (from 33 in 2003 to 37 in 2004) and 81.1% in 2005 over 2004 (from 37 in 2004 to 67 in 2005) at the all-India level. Magisterial inquiry was ordered/conducted only in 15 reported incidents in 2005. Judicial inquiry was ordered only in 1 such incident. Correspondingly, 48 cases were registered against police personnel and no policemen was either charge-sheeted or convicted for custodial deaths,” the application said. “There were 61 incidents of deaths in police custody of persons who were taken in custody by police in 2003, which declined to 49 in 2004 and increased to 61 in 2005. Magisterial inquiry was ordered in 38 incidents of 61 such deaths reported, and judicial inquiry was ordered only in 4 incidents. Cases were registered against police personnel in 33 incidents. 4 policemen were charge-sheeted and 3 police personnel were convicted in 2005,” it said. Relying on the report of National Human Research Bureau, the application said that more number of deaths in police custody took place during hospitalisation/treatment (49), suicides (30) and illness/natural death (28) in year 2005. It said that there has been continuous decline in custodial deaths due to suicides during 2002-04 as 36, 30 and 24 such deaths respectively have been reported during these years. Custodial deaths due to illness/natural deaths have shown a decrease of 12.5% in 2004 over 2003 (from 16 deaths in 2003 to 14 deaths in 2004) which increased to 28 in 2005 (by 100% in 2005 over 2004), report said. It has also drawn attention of the court towards incidents of custodial rapes. Seven cases of custodial rape were reported in 2005. Jharkhand reported highest with 5 such incidents with 1 each coming from Tamil Nadu and Andhra Pradesh. Two out of 5 such cases in Jharkhand and one in Tamil Nadu is pending investigation, the application said. It is difficult to prosecute guilty policemen accused of using third-degree methods during custodial interrogation, it said. In the case of prosecution by police in custodial deaths, it is very difficult to find eye witnesses.
30 Sep, 2008, 0304 hrs IST,Sanjay K Singh, ET Bureau

SC to take up speed governor case today
Transport operators stick to their decision to go on strike
BANGALORE: Various transport organisations on Monday reiterated their threat to go ahead with the proposed strike from Tuesday midnight against the speed governor rule. If the Supreme Court upholds the Karnataka High Court order on Tuesday, all the organisations will have their vehicles off the road even as inter-State operators will not enter Karnataka, representatives of these organisations.
Transport Minister R. Ashok appealed to these operators to withdraw their strike and wait for the Supreme Court verdict. He told presspersons here on Monday that the authority to order installation of speed governors was now with the Centre and the State Government was helpless in the matter. The State Government had done its best to convince the Supreme Court on the need for a uniform policy across the country governing speed governors, he added.
No study
It has been nearly three years since all heavy goods vehicles, stage carriages, contract carriages and school buses were fitted with speed governors in Kerala. Neither has there been any study on the impact of this device nor has there been any marked change in the accident rate in that State during these years.
No study has either been conducted by the Union Ministry of Road Transport and Highways.
The Ministry’s website just lists the number of accidents, State-wise statistics and the number of those killed in these accidents, that too as of 2004. No scientific study on the nature of accidents and the causes appears to have been conducted by the Ministry.
However, the statistics show a decline in the number of accidents and the number of deaths per thousand vehicles since 1971 without there being any speed governor rule.
While 814.42 accidents and 103.50 deaths were reported per thousand vehicles in 1971, it came down to 147.56 and 53.09 in 1990, 80.12 and 18.27 in 200 and 59.12 accidents and 12.74 deaths in 2004. The number of vehicles during the period grew from 1,14,100 to 4,29,910 and the number of total deaths increased from 14,500 to 92,618.
Lobby at work?
Transporters’ organisations have been alleging that the lobby of speed governor manufacturers was behind enforcement of this rule. If the rule was enforced across the country, nearly one crore transport vehicles would have to be fitted with these devices and each unit of the device costs not less than Rs. 15,000. Manufacturers of the device stand to mop up not less than Rs. 15,000 crore.
Tuesday, Sep 30, 2008
Anil Kumar Sastry

SC without adequate number of judges for 4 months
The Appellate and High Court (HC) divisions of Supreme Court (SC) have been without adequate judges as two judge’s posts at Appellate Division have remained vacant since July 2 and no new judge was appointed to the HC in more than four years.Sources said at least seven HC Division judges would retire next year while five Appellate Division judges would retire by 2010 with the chief justice retiring next year.The shortage has resulted in increasing number of cases pending with both the divisions, causing suffering to litigants.At present, the Appellate Division has five judges against seven posts following retirement of two judges.The HC, on the other hand, now has 61 judges. The number had risen to 72 after 19 additional judges were appointed to the HC on August 23, 2004, but 11 of them have since either retired or been promoted to the Appellate Division.Sources said the government is not appointing judges as appeals against HC judgments in two cases regarding recruitment of judges are pending with the apex court. The HC in its judgment directed the government to reappoint 10 HC judges and declared illegal a part of the Supreme Judicial Commission Ordinance 2008 promulgated for appointing judges.The attorney general’s office, however, observes that the government could still appoint judges as per the chief justice’s recommendations.A deputy attorney general said, “The government earlier appointed judges to the High Court although a case regarding recruitment of judges was pending with the Supreme Court.”If new judges are not appointed soon, the crisis with pending cases will be very serious and the government will have to face it,” he said, stressing that judges should be immediately appointed to the two divisions for quick disposal of the pending cases.Attorney General (AG) Salauddin Ahmed also said, “The government is the authority to appoint judges to the apex court. It can appoint judges any time.” He expressed hope that the vacant posts of judges in the Appellate and HC divisions would be filled soon.Legal experts meanwhile stressed the need for appointing competent, honest and courageous judges to the two divisions.Senior jurist and former Supreme Court Bar Association president barrister M Amir-Ul Islam said only increasing the umber of judges at the Appellate and HC divisions would not do the judiciary any good if the judges are not competent and honest.”If incompetent judges are appointed, the number of pending cases would still increase causing suffering to litigants,” he said.Renowned lawyer Dr Shahdeen Malik said, “The present government–being not a political one–is expected to appoint competent and impartial judges soon. I hope that judges will not be appointed on political consideration.”Among the Appellate Division judges, Chief Justice MM Ruhul Amin will retire on December 23, 2009, Justice Md Joynul Abedin on January 1, 2010, Justice Md Tafazzal Islam on February 8, 2010, Justice Md Abdul Matin on February 26, 2010, and Justice Mohammad Fazlul Karim on September 30, 2010.
Published On: 2008-09-30
Ashutosh Sarkar

HC directive on NE undertrials http://www.assamtribune.com/scripts/details.asp?id=sep3008/at02
GUWAHATI, Sept 29 – Division Bench of the Gauhati High Court comprising Chief Justice J Chelameswar and Justice BK Sarma today directed that all undertrials languishing in different jails of five NE States – Assam, Meghalaya, Nagaland, Manipur and Arunachal Pradesh, who have completed 90 days or 60 days as the case may be shall be released on personal bonds in case chargesheet is not filed within the aforesaid period. The High Court had earlier registered a writ petition WP(C) (Taken up) No. 4299/06 on the basis of order dated August 2, 2006 passed by the Assam Human Rights Commission regarding violation of human rights of the prisoners in various jails of the State on the ground of non-availability of bailers. Human Rights Commission had taken up the case on the basis of a newspaper report published in the Assamese daily Asomia Pratidin wherein it was highlighted that one Mikel Kanyak has been leading a prisoner’s life in Dibrugarh jail for five years for want of a bailer. Similarly, there are many prisoners who could not be released due to non-availability of bailers. Considering the seriousness of the matter, High Court in its earlier order directed all the seven States on North East to file their affidavits as regards the position of undertrials or convicts in different jails. A status report on undertrials and convicts of different jails of the States, Meghalaya, Nagaland, Manipur and Arunachal Pradesh was submitted by the appointed amicus curie before the court on the basis of affidavits filed by five States.The court after hearing the respective subnissions of the Advocates General and government advocates of all the seven States and appointed amicus curie and also after going through the status report, directed that all undertrials who are in jails for 90 days or 60 days as the case may be shall be released on personal bond within a period of two weeks in case the chargesheet is not submitted within the statutory period of 90 days or 60 days. The court has also given the liberty to the States to place all the materials before the magistrate to show such undertrial prisoners who are arrested in heinous crimes only against surety and not on personal bond.The court further directed that those convicts who have completed the sentence as per their charges as shown in the status report submitted by the amicua curie should also be released forthwith. The court also directed that those who were arrested under Section 41 Cr PC should also be released forthwith unless specific charges are brought against them. Direction was also given that those prisoners who have completed half of the total sentence provided for the offence, shall be released on personal bond with or without surety under Section 436A Cr PC. In respect of convicts and lunatic prisoners, the hearing will take place on the next date fixed on 5.11.08.

HC slams Home Ministry on homosexuality
As the financial meltdown hit the world on Monday, the Home Ministry too was shocked.Home Minister Shivraj Patil is already drawing flak for failing to deal with terror. Now, his ministry is being slammed for being moralist and backward.Delhi High Court criticised the Home Ministry when it equated homosexuality with “widow remarriage.” (Watch)The bench remarked that going by the government’s stand on homosexuality and AIDS, it would be wise to ban sexual intercourse itself.The ministry is also at the receiving end of the bloggers.
NDTV Correspondent
Monday, September 29, 2008, (New Delhi)

Parcel bomb murder: HC rejects bail plea of accused
New Delhi, Sept 29: The Delhi High Court on Monday refused to grant bail to ex-Army officer S J Choudhary who was sentenced to life imprisonment for killing businessman Krishan Sikand in a parcel bomb explosion 26 years ago. Dismissing the bail application, a Division Bench of Justice B N Chaturvedi and Justice P K Bhasin said that the court would hear the appeal filed by him challenging the conviction order at the earliest and the Bench did not feel this was the time to suspend his sentence. Former Lt Colonel Choudhary was on May 3 sentenced to life imprisonment by a Delhi court for killing Sikand in a parcel bomb explosion to avenge the victim’s alleged proximity with his estranged wife. Choudhary, 70, was also fined Rs 10,000 under section 302 (murder) of the IPC and sections 3 and 4 of the Explosives Act for procuring and using Pakistan-made hand grenade in the offence. Sikand, 40, had died in an explosion caused by the parcel bomb delivered at his Sunder Nagar residence here on October 2, 1982. The CBI, in its chargesheet, had imputed motive on Choudhary saying victim Sikand, a divorcee, was seeing the convict’s wife and was earlier threatened to stay away from her. The wife of the convicted officer was living separately from him and later developed friendship with the victim and moved into his house in Sunder Nagar here, the CBI had said. Bureau Report

Govt tells HC to ignore Ramadoss’ views on allowing gay sex http://www.ptinews.com/pti/ptisite.nsf/0/51513391A0839557652574D30042DB69?OpenDocument
New Delhi, Sep 29 (PTI) The government, under flak for taking a contradictory stand on the homosexuality law, today told the Delhi High Court not to consider Union Health Minister Anbumani Ramadoss’ views on allowing gay sex among consenting adults.”It doesn’t matter what the minister says. It is also not important what the affidavit says. It is for the court to decide the issue,” Additional Solicitor General P P Malhotra said before a bench headed by Chief Justice A P Shah.The Centre’s response came after the court on the last hearing had pulled it up for speaking in two voices on the homosexuality law.In a contradictory stand taken by Health and Home ministry, the former had suggested decriminalisation of gay sex while the latter said that the penal provision against such acts cannot be scrapped. PTI

Modi innocent, Godhra fire preplanned, says Justice Nanavati http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=257&page=4
Just after the report was filed, many of the respondents this magazine spoke to across the country revealed two things: one, people would have been surprised only if the report said otherwise on Modi government’s role in the riots as things were as plain as daylight. The number of Hindus who were killed in the police firing only told a story of a tough state. The best part of the report is reserved for the post-Godhra riots when the secular parties had, as Salman Rushdie would put it, shown manufactured outrage. The conclusion that the train burning was a pre-planned conspiracy was based on the statements recorded of the passengers of Sabarmati Express.
Justice Nanavati Commission’s first report on Godhra is a slap on the face of all secular parties, to put it plainly. And expectedly, the spokespersons for the secular parties, be it the Congress, the Left, the Samajwadi, the RJD and their likes, have all been frothing in their mouth since the report was tabled on Thursday evening. Even the stock markets reacted the next day with a thumbs up to Modi, when Gujarat-based company stocks went up in the green in morning trade. The two major inferences drawn from the report amongst many others are that the Muslim mob which lit the Sabarmati Express coach full of pilgrims coming back from Ayodhya was a premeditated conspiracy. And second, the report clarifies Gujarat Chief Minister Narendra Modi and the state police have performed their jobs as they were expected to. At least the incidents of large number of Hindus getting killed in the police firing to control the mobs were not lost on the commission. Just after the report was filed, many of the respondents this magazine spoke to across the country revealed two things: one, people would have been surprised only if the report said otherwise on Modi government’s role in the riots as things were as plain as daylight. The number of Hindus who were killed in the police firing only told a story of a tough state government. Second, there is so much of a relief that in the whole muddle of deliberate misinterpretations, misleading statements and witch-hunting there is one commission which has the courage to speak the truth. Though the first report filed by the commission is dealing more with the Godhra incident it has alluded to the state government’s role in controlling the mobs that took to the streets after the gruesome mass killing of Hindu pilgrims in the S6 coach of Sabarmati Express. Over 58 pilgrims on their way from Ayodhya were burnt to death in that incident. The commission comprising Justice GT Nanavati and Justice Akshay Mehta have to be commended for its sagacity if not its level-headedness in coming to those conclusions. The language used in the report is remarkably shorn of superlatives. The report dealt with the torching of the Sabarmati coach in February 2002 extensively. The commission has put paid to the counter-conspiracy theories which wanted to show the incident was an accident. To begin with a coach full of Hindu pilgrims getting lit up in a Muslim-dominated locality where the train stopped was too much of a coincidence. Interestingly, the point which the media misses here is that just after the Godhra incident there were very many stories floating around—mostly to do with reported rowdy behaviour of the karsevaks who had enraged the Muslims at Godhra station. One television channel incessantly provided fodder to the rumour mill saying that young Muslim girls were harassed by the pilgrims in the coach. Nanavati Commission states unambiguously that 140 litres of petrol was stored and kept by the mob at Godhra, waiting for the train with pilgrims to come by. The conspiracy, the commission added for good measure, was hatched at the Aman Guest House in Godhra. Expectedly, Hindu anger split on the streets. Nearly 1,000 people died in the communal riots following the Godhra incident. The Nanavati Commission has inadvertently proved to the world that the Justice Banerjee Commission instituted by the Union Railway Minister Lalu Prasad Yadav just before Bihar state elections which claimed that Godhra incident was an accident, remains in a shambles. “There is absolutely no evidence to show that either the Chief Minister or any of the ministers in his council or police officers had played any role in the Godhra incident,” said the report of Justice GT Nanavati, a former Supreme Court judge that went into the train burning incident. Well, it only reaffirmed what most Hindus felt in the country. The first part of the report was tabled in the state assembly on Thursday. Congress spokesman Abhishek Singhvi went to the extent of questioning the credibility of the commission. But the cake goes to Lalu Prasad Yadav who came on television channels to say that the world had already passed judgement on Narendra Modi and his government and so any commission cannot ‘rub the stain away’. If the world thought so, wonder how Modi keeps winning elections one after the other. Also, Lalu’s demeanour reveals a dangerous streak in thinking that pronouncement of justice has no value, and someone can be indicted just by making accusations. Worse still, the best part of the report is reserved for the post-Godhra riots when the secular parties had, as Salman Rushdie would put it, shown manufactured outrage. The conclusion that the train burning was a pre-planned conspiracy was based on the statements recorded of the passengers of Sabarmati Express. The passengers said that the stone pelting continued for 10-20 minutes to prevent the passengers from coming out of the coach. Again, not coincidentally, the attack was only on the coach which had the Hindu pilgrims. 140 litres of petrol was purchased by Razzak Kurkur and Salim Panwala to execute the conspiracy, the Commission emphasised. According to eyewitnesses, Shaukat Lalu and Mohammad Latika had possibly opened the sliding door connecting the S6 and S7 coaches and entered S6 through that door. One Hassan Lalu had thrown a burning rag which had led to the fire in the S6 coach, it said. The commission report elaborated that the conspiracy was hatched at the Aman Guest House on the directions of Maulvi Umarji and executed by Razzak Kurkur, Salim Panwala, Shaukat Lalu, Imran Sheri, Rafique Batuk and Shiraj Bala. “The conspiracy hatched by these persons further appears to be a part of a larger conspiracy to create terror and destabilise the administration”. On the state government’s role commission reiterated what has always been known to be true and that is, there is no evidence to show there was lapse in the role of the chief minister or his ministers in providing protection, relief and rehabilitation to the victims of communal riots or in the matter of not complying with the recommendations and direction given by the National Human Rights Commission.
By Aditya Pradhan

India, Russia extend military commission tenure till 2020
New Delhi, Sept 29 (PTI) India and Russia today decided to extend the tenure of an inter-governmental commission for military cooperation by another 10 years to 2020 and inched closer to resolving Gorshkov aircraft carrier price and T-90 tanks technology transfer issues.New Delhi and Moscow also decided to form an apex body headed by the defence secretaries of the two countries to coordinate operation of several working groups for military cooperation.”We have taken an in principle decision to extend the tenure of the Inter-Governmental Commission (IGC) for Military and Technical Cooperation by another 10 years to 2020 from 2010, when the current Commission’s 10-year term ends,” Defence Minister A K Antony and his Russian counterpart Anatoly Serdyukov said at a joint press conference soon after their annual IGC meeting here.”The apex body headed by the two defence secretaries will meet every six months to review the joint working groups’ functioning and to sort out all issues concerning defence relations,” Antony said.The two Defence Ministers said Indo-Russian military relations have evolved over the years from “buyer-vendor” to “partners” for joint development of weapons and equipment. PTI

Judge appears before cash-at-judge’s door probe panel
Chandigarh, Sept 29: Punjab and Haryana High Court lady judge, Nirmaljit Kaur on Monday appeared before a three-judge panel set up by Chief Justice of India (CJI) K G Balakrishnan to look into the cash-at-judge’s door scandal.
The panel consisting of Allahabad High Court’s Justice Hemant Laxman Gokhale, Jammu and Kashmir High Court’s Justice K S Radhakrishnan and Delhi High Court’s Justice Madan B Lokur was set up by the CJI on August 26 this year.
With the panel beginning its probe today, Justice Kaur, whose staff member is a complainant in the case in which five persons, including a former Haryana’s Additional Advocate General (AAG) Sanjeev Bansal had been arrested, was asked to provide necessary inputs in the case.
According reports, the panel initiated the inquiry proceedings from Justice Kaur and may question Justice Nirmal Yadav, whose name appeared during the questioning of the five alleged accused in the case by the Central Bureau of Investigation (CBI) and the Chandigarh Police.
The panel may also question Bansal, his clerk Parkash Ram, home guard jawan Nirmal Singh, a Delhi-based businessman Ravinder Singh Bhasin and property dealer Rajeev Gupta.
While the prime accused Bhasin is in CBI custody till September 30 in this case, four others including Bansal, Parkash Ram, Rajeev Gupta, and Nirmal Singh are in judicial lock up.
It may be recalled that the Chandigarh administration had last month referred the scandal, which is related to the alleged delivery of Rs 15 lakh at the house of Justice Kaur “mistakenly” by the clerk of Bansal on August 13, to the CBI on the ground that it may have inter-state ramifications.
Both the CBI probe and the judge’s panel inquiry will proceed on simultaneously. (ANI)
Submitted by Raman Iyer on Mon, 09/29/2008 – 09:17.

Allahabad HC Landmark Judgment On RTI Act
Everybody interested in RTIs must read it completely.
Given below is a decision which comes from a division bench of theAllahabad High Court. This decision is landmark in the sense that it willcontribute immensely to the RTI law getting settled eventually at the SupremeCourt level – as and when that happens. Will just list the key issues settled atthis level at least.
1. No need for a citizen to give reasons why he seeks information, hisbackground is no reason for information to be denied to him under RTI2. PIO cant take a plea that its third party info while denying info u/s8.(1).(j), without first referring it to the third party3. PIO to hear the third party and then to decide where is the larger publicinterest – in disclosure or non-disclosure4. The MOST important issue: It has ruled in favor what we have always believedin and practiced in Gujarat. Section 18 to 20 are all interlinked and cant belooked at in isolation. Therefore a complaint against denial / deemed denial ofinformation u/s 18 which empowers a SIC / CIC with powers vested in a civilcourt under the code of Civil Procedure, cant be held hostage with section 19 of1st appeal. The CIC has been guilty of holding this stand since the Act cominginto effect. This decision views all these 3 sections and their respectivesub-sections as having one objective – securing access to information andkeeping truant officers in check5. A SIC / CIC can hearing a complaint can require a public authority to provideinformation at the same time penalize him to ensure that its done
http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=633\75Writ Petition No. 3262 (MB) of 2008Public Information OfficerVs.State Information Commission, U.P. and others.
Hon’ble Pradeep Kant, J.Hon’ble Shri Narayan Shukla, J.(Delivered by Hon’ble Pradeep Kant, J.)
Following two questions arise for determination in the present writ petition:(1) Whether the information disclosing the names of the persons includingaddress and amount, who have received more than Rs.1 lac from the Chief MinisterDiscretionary Fund, can be given to the information seeker or it is aninformation, which stands exempted under Section 8 (j) of the Right toInformation Act.(2) Whether the Chief Information Commissioner while considering the complaintsunder Section 18 of the Right to Information Act, 2005 is competent only toaward the prescribed punishment, in case of failure of information being givenas per the provisions of the Act or while dealing with the said complaints, anydirection can also be issued for furnishing the information which has not beenprovided, though it is not found to be exempted under the provisions of the Act.
Right to Information Act, 2005 (referred to as the ‘RTI Act’) enacted by theParliament, received assent of the President on 15.6.2005, and which came intoforce w.e.f. 12.10.2005, is relatively a new legislation and, therefore, ishaving its teething problem giving rise to various issues, which requireconsideration by the Court.
Needless to mention that the Act is not meant for creating a new type oflitigation or a new forum of litigation between the information seeker and theinformation giver, but may be that some of the informations asked for, beinconvenient to the persons to whom it relates and, therefore, every effortwould be made to refuse divulgence of such an information and for that mattereither to refuse the information by delaying the process or passing a specificorder of refusal, may be some time by taking shelter under the provisions ofSections 8 and 9 of the Act, which are the exemption clauses.
The information covered by the aforesaid provisions is either completelyexempted or it has been given limited protection i.e. though the information isotherwise exempted but can be disclosed on the satisfaction of the PublicInformation Officer, if he is satisfied that the disclosure of such aninformation is in larger public interest.
Our Constitution establishes a democratic republic. Democracy requires aninformed citizenry and transparency of information which are vital to itsfunctioning and also to contain corruption and to hold Governments and theirinstrumentalities accountable to the governed. The revelation of information inactual practice is likely to conflict with other public interests includingefficient operations of the Governments, optimum use of limited fiscal resourcesand the preservation of confidentiality of sensitive information and, therefore,with a view to harmonise these conflicting interests while preserving theparamountcy of the democratic ideal, the Parliament enacted the Act of 2005 toprovide for furnishing certain information to citizens who desire to have it.
RTI Act in fact, has been enacted to provide for setting out the practicalregime of right to information for citizens to secure access to informationunder the control of public authorities, in order to promote transparency andaccountability in the working of every public authority, the constitution of aCentral Information Commission and State Information Commissions and for mattersconnected therewith or incidental thereto.
‘Right to Information’ is the right to obtain information from any publicauthority by means of, (i) inspection, taking of extracts and notes; (ii)certified copies of any records of such public authority; (iii) diskettes,floppies or in any other electronic mode or through printouts where suchinformation is stored in a computer or in any other device. Information in thiscontext means any material in any form relating to the administration,operations or decisions of a public authority.
The Act provides for making information held by executive agencies of the Stateavailable to the public unless it comes within any one of the specificcategories of matters exempt from public disclosure. Virtually all agencies ofthe executive branch of the government are required by the Act to issueregulations to implement the provisions of the Act. These regulations inform thepublic where certain types of information may be readily obtained, however,other information may be obtained on request, and what internal agency appealsare available if a member of the public is refused the requested information.
The Right to Information Act is designed to prevent abuse of discretionary powerof the governmental agencies by requiring them to make public certaininformation about their working and work product. Right to information or rightto know is an integral part and basic tenet of the freedom of speech andexpression, a fundamental right guaranteed under Article 19(1)(a) of theConstitution. It also flows from Article 21 as enunciated by the apex court inthe case of *Reliance Petrochemicals Ltd. vs. Proprietors of Indian ExpressNewspapers Bombay Pvt. Ltd. And others, (1988) 4 SCC 592. The apex court in thiscase while dealing with the issue of freedom of press and administration ofjustice, held that “we must remember that the people at large have a right toknow in order to be able to take part in a participatory development in theindustrial life and democracy. Right to know is a basic right which citizens ofa free country aspire in the broader horizonof the right to live in this age in our land under Article 21 of ourConstitution. That right has reached new dimensions and urgency. That right putsgreater responsibility upon those who take upon themselves the responsibility toinform”.
It is thus, a fundamental right, which cannot be denied, unless of course itfalls within the exemption clause or otherwise is protected by some statutoryprovisions.
The functioning of the State and its instrumentalities and functionaries underthe cover of darkness leave the citizens ignorant about the reasons andrationale of any decision taken by the authorities or any policy made and theimplications thereof, whereas the citizens have a guaranteed ‘Right to Know’.The legal and consequential corollary of the aforesaid right will be that aperson getting the required information may move for redressal of the wrong doneor any action taken, order passed or policy made by approaching the appropriateforum, as may be permissible under law. The purpose and object of the act is notonly to provide information but to keep a check on corruption, and for thatmatter confers a right upon the citizens to have the necessary information, sothat appropriate action may be initiated or taken against the erring officersand also against the arbitrary and illegal orders.
The Supreme Court even before the advent of the Right to Information Act, 2005had stressed upon the importance of transparency in administration andgovernance of the country and for that matter time and again has entertainedwrit petitions requiring the State to disclose the information asked for.
Reference can be made to the case of State of U.P. vs. Raj Narain, (1975) 4 SCC428**. *A Constitution Bench of the apex court in this case, considered the pleaof privilege of not disclosing the information with respect to the tourarrangement of Smt. Indira Nehru Gandhi for her tour programmes of Raebareli andalso the information disclosing any general order for security arrangementduring the general elections alongwith disclosure of all correspondence betweenthe Government of India and the State Government, and between the Chief Ministerand the Prime Minister, and held unanimously that the informations asked for,are to be disclosed. The appeal against the judgement of the Allahabad HighCourt was allowed. His Lordship Justice Mathew, in a separate concurringjudgement, in Para-74 observed as under:“In a government of responsibility like ours, where all the agents of the publicmust be responsible for their conduct, there can be but few secrets. The peopleof this country have a right to know every public act, everything that is donein a public way, by their public functionaries. They are entitled to know theparticulars of every public transaction in all its bearing. The right to know,which is derived from the concept of freedom of speech, though not absolute, isa factor which should make one wary, when secrecy is claimed for transactionswhich can, at any rate,have no repercussion on public security. To cover withveil of secrecy, the common routine business, is not in the interest of thepubic. Such secrecy can seldom be legitimately desired. It is generally desiredfor the purpose of parties and politics or personal self-interest orbureaucratic routine. The responsibility of officials to explain and to justifytheir acts is the chiefsafeguard against oppression and corruption.”
As a result of constant demand of disclosure of information and to make thepeople know about the functioning of the Government, its authorities andfunctionaries and the manner in which, decisions are taken or even policy made,including their implementation and to uproot corruption, redtapism and delay infunctioning of the State functionaries, apart from decisions taken in individualcases the central legislation in the shape of Right to Information Act, 2005 hasbeen enacted, which prescribes the substantive as well as procedural provisionsfor securing the information by any person, who seeks that information, withoutrequiring him to disclose the reason as to why this information is being askedfor.
The Act obligates every public authority as defined in Section 2(h) to designateas many officers, as Central Public Information Officers or State PublicInformation Officers, as the case may be, in all administrative units or officeunder it as may be necessary to provide information to persons requesting forthe information under Section 5 of the Act.Section 2(j) says that “right to information” means the right to informationaccessible under this Act which is held by or under the control of any publicauthority and includes the right to-(i) inspection of work, documents, records;(ii) taking notes, extracts or certified copies of documents or records;(iii) taking certified samples of material;(iv) obtaining information in the form of diskettes, floppies, tapes, videocassettes or in any other electronic mode or through printouts where suchinformation is stored in a computer or in any other device,’whereas Section 3 says that ’subject to the provisions of this Act, all citizensshall have the right to information. ‘Section 4(1) obligates that* (a) every public authority shall maintain all itsrecords duly catalogued and indexed in a manner and the form which facilitatesthe right to information under this Act and ensure that all records that areappropriate to be computerised are, within a reasonable time and subject toavailability of resources, computerised and connected through a network all overthe country on different systems so that access to such records is facilitated.(b) publish within one hundred and twenty days from the enactment of this Act-(i) the particulars of its organisation, functions and duties;(ii) the powers and duties of its officers and employees;(iii) the procedure followed in the decision making process, including channelsof supervision and accountability;(iv) the norms set by it for the discharge of its functions;(v) the rules, regulations, instructions, manuals and records, held by it orunder its control or used by its employees for discharging its functions;(vi) a statement of the categories of documents that are held by it or under itscontrol;(vii) the particulars of any arrangement that exists for consultation with, orrepresentation by, the members of the public in relation to the formulation ofits policy or implementation thereof;(viii) a statement of the boards, councils, committees and other bodiesconsisting of two or more persons constituted as its part or for the purpose ofits advice, and as to whether meetings of those boards, councils, committees andother bodies are open to the public, or the minutes of such meetings areaccessible for public;(ix) a directory of its officers and employees;(x) the monthly remuneration received by each of its officers and employees,including the system of compensation as provided in its regulations;(xi) the budget allocated to each of its agency, indicating the particulars ofall plans, proposed expenditures and reports on disbursements made;(xii) the manner of execution of subsidy programmes, including the amountsallocated and the details of beneficiaries of such programmes;(xiii) particulars of recipients of concessions, permits or authorisationsgranted by it;(xiv) details in respect of the information, available to or held by it, reducedin an electronic form;(xv) the particulars of facilities available to citizens for obtaininginformation, including the working hours of a library or reading room, ifmaintained for public use;(xvi) the names, designation and other particulars of the Public InformationOfficers;(xvii) such other information as may be prescribed, and thereafter update thesepublications every year’. Apart from the informations aforesaid, the Act permitsany person to seek information in the prescribed manner by moving an applicationto the Public Information Officer, giving the details of the information askedfor and also depositing the requisite fee, as may be prescribed.
Section 6 of the Act says that a person, who desires to obtain any informationunder this Act, shall make a request in writing or through electronic means inEnglish or Hindi or in the official language of the area in which theapplication is being made, accompanying such fee as may be prescribed, to-“(a) the Central Public Information Officer or State Public Information Officer,as the case may be, of the concerned public authority;(b) the Central Assistant Public Information Officer or State Assistant PublicInformation Officer, as the case may be, specifying the particulars of theinformation sought by him or her. Provided that where such request cannot bemade in writing, the Central Public Information Officer or State PublicInformation Officer, as the case may be, shall render all reasonable assistanceto the person making the request orally to reduce the same in writing.Sub-clause (2) says that an applicant making request for information shall notbe required to give any reason for requesting the information or any otherpersonal details except those that may be necessary for contacting him.”
Section 7 of the Act provides the mode and manner of disposal of request made,seeking information, which prescribes a maximum period of thirty days forproviding such information from the date of receipt of the application onpayment of such fee, as may be prescribed. It also says that the application mayeither be accepted or may be rejected for the reasons specified in Sections 8and/or 9.
The proviso annexed to Section 7(1) says that where the information sought forconcerns the life or liberty of a person, the same shall be provided withinforty eight hours of the receipt of the request.
Sub-clause (2) says that if the Central Public Information Officer or StatePublic Information Officer, as the case may be, fails to give decision on therequest for information within the period specified under sub-clause (1), theCentral Public Information Officer or State Public Information Officer, as thecase may be, shall be deemed to have refused the request.
Section 7 in effect prescribes not only the procedure, which is to be adoptedafter receipt of the request of seeking information but also prescribes the timelimit, in which such information is to be given, the payment of requisite feeand various other procedure, which may be required to be fulfilled while seekingand giving the information.
The present controversy does not relate to the prescription of fee and themanner in which additional fee can be asked for, but is confined to thequestions, formulated in the opening part of this order. If the information isnot given within the time period prescribed for giving information, it would bedeemed to have been refused, even if information is not specifically refused ordenied. The information can be refused only in case there exists any reasonspecified in Section 8 or Section 9. Sub-clause (8) of Section 7, makes itmandatory to communicate the person making the request; (i) the reasons for suchrejection; (ii) the period within which an appeal against such rejection may bepreferred; (iii) the particular of the appellate authority.
Section 8 provides exemption from disclosure of information and it categoricallyprovides the specified informations, where disclosure of the information shallnot be obligatory notwithstanding the provisions of the Act, 2005..
A perusal of the aforesaid provisions of Section 8, reveals that there arecertain informations contained in Sub-clause (a), (b), (c), (f), (g) and (h),for which there is no obligation for giving such an information to any citizen;whereas informations protected under sub-clause (d), (e) and (j) are thoughprotected informations, but on the discretion and satisfaction of the competentauthority, that it would be in larger public interest to disclose suchinformation, such information can be disclosed. These informations thus, arehaving limited protection, the disclosure of which is dependent upon thesatisfaction of the competent authority that it would be in larger publicinterest as against the protected interest to disclose such information.
Sub-clause (i) protects the information with respect to cabinet papers includingrecords or deliberations of the Council of Ministers, Secretaries and otherofficers, for a definite period after which protection umbrella stands erodedwhen the decision is taken and the matter is complete or over, provided furtherthat those matters which come under the exemptions specified in this sectionshall not be disclosed. There can be no quarrel or any dispute with respect tothe information which are completely protected or to say totally exempted frombeing disclosed as no citizen can claim a right to have such an information, butthe dispute arises where exemption is being claimed under any of the aforesaidprovisions of Section-8, but the question arises as to whether information askedfor is covered by any of the exemption detailed in the said section or not.
The controversy arises where exemption is claimed under limited protectionprovided under sub-clause (d), (e) and (j), and the information seeker requestsfor disclosure of the information, but the Public Information Officer refuses tosupply such information on the ground that information stands exempted. In suchcases, the role of the appellate authority or that of the Commission includingthat of the Chief Information Commissioner is very important, depending upon thejurisdiction exercised and the satisfaction arrived by such authority indeciding as to whether;(i) information asked for, at all stands exempted under any of the aforesaidprovisions; and (ii) even if it is exempted, should it be disclosed in largerpublic interest as against the protected interest of the individuals. In case ofthird party information, the provisions of Section 11 are to be taken intoaccount, which prescribe a procedure of affording opportunity to the third partyto whom the information relates, or who has given the information and who hastreated the said information in confidentiality, by giving him notice to haveits views and, thereafter, it is to be decided as to whether the informationshould be disclosed or not, as per the satisfaction of the competent authority.
In case of refusal of information either by specific order by Public InformationOfficer or under the deeming provision of refusal, the matter can be taken up inappeal under Section 19, before the first appellate authority as may beprescribed and further in second appeal to the Central Information Commission orthe State Information Commission, as the case may be. The provision of appealhas been made for third party also under sub-clause (2) of Section 19. Theperiod for deciding the first appeal is thirty days with total extended time of45 days. The limitation for filing the appeal is also thirty days, but thisperiod can be condoned on sufficient cause being shown by the appellant, by theappellate authority. The second appeal has to be filed within 90 days from thedate on which the decision should have been made or was actually received. TheCentral Information Commission or State Information Commission, as the case maybe, may admit the appealafter the expiry of the period of ninety days if it is satisfied that theappellant was prevented by sufficient cause from filing the appeal in time. Inappeal, reasonable opportunity is to be given to the third party also, if thematter relates to third party.
Sub-clause (7) of Section 19 says that the decision of the Central InformationCommission or State Information Commission, as the case may, shall be binding,and sub-clause (8) says that in its decision, the Central Information Commissionor State Information Commission, as the case may be, has the power to-“(a) require the public authority to take any such steps as may be necessary tosecure compliance with the provisions of this Act, including-(i) by providing access to information, if so requested, in a particular form;(ii) by appointing a Central Public Information Officer or a State PublicInformation Officer, as the case may be;(iii) by publishing certain information or categories of information;iv) by making necessary changes to its practices in relation to the maintenance,management and destruction of records;(v) by enhancing the provision of training on the right to information for itsofficials;(vi) by providing it with an annual report in compliance with clause (b) ofsub-section (1) of Section 4;(b) require the public authority to compensate the complainant for any loss orother detriment suffered.(c) impose any of the penalties provided under this Act;(d) reject the application. “
Section 19 (8) thus, authorises the Commission to require the public authorityto take any such steps as may be necessary to secure compliance with theprovisions of the Act, and sub-clause (c) also permits to impose any of thepenalties provided under this Act. The penalty has been provided under Section20 of the Act, which can be imposed in the given circumstances mentionedtherein.
Sub-clause (1) of Section 20 gives the circumstance, under which the penalty canbe imposed and it permits a penalty of Rs.250/- each day till application isreceived or information is furnished, so however, the total amount of suchpenalty shall not exceed Rs.25000/-. Sub-clause (2) of Section 20 gives power torecommend for disciplinary action against the Central Public Information Officeror a State Public Information Officer, as the case may be, under the servicerules applicable to him, in case the Central Information Officer or the StateInformation Officer, as the case may be, has denied the request for informationor knowingly given incorrect, incomplete or misleading information or destroyedinformation which was the subject of the request or obstructed in any manner infurnishing the information.
Section 18 is the provision for making complaint and lays down the procedure forentertaining a complaint and making enquiry.Section 18 reads as under:“18(1) Subject to the provisions of this Act, it shall be the duty of theCentral Public Information Commission or State Information Commission,, as thecase may be, to receive and inquire into a complaint from any person- (a) whohas been unable to submit a request to a Central Public Information Officer orState Public Information Officer, as the case may be, either by reason that nosuch officer has been appointed under this Act, or because the Central AssistantPublic Information Officer or State Assistant Public Information Officer, as thecase may be, has refused to accept his or her application for information orappeal under this Act for forwarding the same to the Central Public InformationOfficer or State Public Information Officer, or senior officer specified insub-section (1) of Section 19 or the Central Public Information Officer or StatePublic Information Officer, as the case may be;(b) who has been refused access to any information requested under this Act;(c) who has not been given a response to a request for information or access toinformation within the time limit specified under this Act;d) who has been required to pay an amount of fee which he or she considersunreasonable;(e) who believes that he or she has been given incomplete, misleading or falseinformation under this Act; and(f) in respect of any other matter relating to requesting or obtaining access torecords under this Act.(2) Where the Central Public Information Commission or State InformationCommission, as the case may be, is satisfied that there are reasonable groundsto inquire into the matter, it may initiate an inquiry in respect thereof..(3) The Central Information Commission or State Information Commission, as thecase may be, shall while inquiring into any matter under this section, have thesame powers as are vested in a civil court while trying a suit under the Code ofCivil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:-(a) summoning and enforcing the attendance of persons and compel them to giveoral or written evidence on oath and to produce the documents or things;(b) requiring the discovery and inspection of documents;(c) receiving evidence on affidavit;(d) requisitioning any public record or copies thereof from any court or office;(e) issuing summons for examination of witnesses or documents; and(f) any other matter which may be prescribed.
(4) Notwithstanding anything inconsistent contained in any other Act ofParliament or State Legislature, as the case may be, the Central InformationOfficer or State Information Commission, as the case may be, during inquiring ofany complaint under this Act, examine any record to which this Act applies whichis under the control of the public authority, and no such record may be withheldfrom it on any ground.”
Section 18 thus is a provision which is a consciously introduced section, so asto exercise complete control over the functioning of the Public InformationOfficers, at the time of receiving application, and at the time of givinginformation or during the appeal under the Act. Any applicant who has not beengiven a response to a request for information or access to information withinthe time limit specified under the Act, or who has been required to pay anamount of fee which he or she considers unreasonable, or has been given falseinformation, and in respect of any other matter relating to requesting orobtaining access to records under the Act, may approach the Commission, whowould enquire into the complaint, and while making an enquiry, it has all thepowers as are vested in a civil court while trying a suit under the Code ofCivil Procedure, 1908 (5 of 1908), in respect of the matters enumerated therein.
The Commission under sub-clause (4), which begins with a non obstante clause,during enquiry of any complaint under the Act, can examine any record to whichthis Act applies which is under the control of the public authority, and no suchrecord shall be withheld from it on any ground. In the light of the aforesaidprovisions of the Act, the matter in issue requires consideration. Learnedcounsel for the petitioner has argued that the information asked for, namely,names and details of all the persons who have received more than Rs.1 lac fromthe Chief Minister’s Discretionary Fund during the period 28.8.2003 upto31.3.2007, cannot be provided as it stands exempted under Section 8(j) of theAct.
The second argument is that the Commission while dealing with the complaintsunder Section 18, could not direct the Public Information Officer to supply theinformation within a specified time, regarding which complaint has been made, asunder Section 20, it is only the penalty which can be imposed on the erringofficer, but information cannot be directed to be given, as such a directioncould be issued only in appeal, whether first or second and the presentapplicant having not preferred the second appeal, his prayer for disclosure ofthe information asked for, in proceeding under Section 20 could not have beenentertained.
Section 8 (j) of the Act gives limited protection. The information asked forunder the aforesaid clause, can stand protected, if it satisfies, either of thefollowing conditions :(i) it should be an information which relates to personal information, and thedisclosure of such information has no relationship to any public activity orinterest(ii) or it would cause unwarranted invasion of the privacy of the individual.”The discretion, which has been given to the Central Public Information Officeror State Public Information Officer or the appellate authority, as the case maybe, is to the effect that on their satisfaction that the larger public interestjustifies the disclosure of such information, the same may be supplied. It meansthat though the information asked for is otherwise exempted from being supplied,but it can be disclosed if larger public interest justifies the disclosure ofsuch information. Who will decide this larger public interest? It is not theapplicant or the person against whom the information is asked for, but theinformation officer or the competent authority, as the case may be. Of course,while deciding the aforesaid question, the views of both the parties can betaken into account or so to say have to be taken into account by the concernedauthority under the RTI Act, for the reason that the person who is asking forthe information, wouldsay it is in larger public interest to disclose the information, whereas theperson against whom the information is being asked for shall dispute theaforesaid fact.
The information regarding the money advanced beyond Rs.1 lac to any person fromthe Chief Minister’s Discretionary Fund, apparently is not an information whichcould be said to be protected under the provisions of Section 8 and inparticular Section 8(j) of the Act. The petitioner’s case is that if such aninformation is disclosed, it would cause unwarranted invasion of the privacy ofthe individual. The individual means the person who is the beneficiary of suchamount. Elaborating the aforesaid plea, reliance has been placed upon theapplication /objections filed by the petitioner before the ommission, wherein ithas been said that the persons who have received or would have received thediscretionary fund of the Chief Minister also have a social status and selfrespect and if their names are disclosed, that will be an unwarranted invasionin their privacy.
For testing the aforesaid plea, the nature of such grant has to be seen and itis also to be tested, whether the Chief Minister’s Discretionary Fund is immuneto any sort of scrutiny or audit or that such fund can be used or diverted inany manner, as the Chief Minister desires and that no limitation or restrictionhas been imposed under the scheme, under which this fund is to be provided orits disbursement stands protected under the provisions of Section 8. A keen lookupon the scheme of Chief Minister’s Discretionary Fund, and the Rules whichgovern it, is necessary for dealing with the issue involved.
In supersession of the U.P. Chief Minister’s Discretionary Fund Rules, 1989,Rules of 1999 were enforced by the Governor of the State in exercise of hispowers under Article 283(2) of the Constitution of India. Article 283 (1)…Article 282 and 283, which fall under Chapter-I, Part-12 of the Constitutiondealing with finance, has been placed under the heading ‘Miscellaneous FinancialProvisions’.Article 282 deals with the expenditure defrayable by the Union or a State out ofits revenues, lays down as under: “*The Union or a State may make any grants forany public purpose, notwithstanding that the purpose is not one with respect towhich Parliament or the Legislature of the State, as the case may be, may makelaws.”
Article 283 is about the custody, etc, of Consolidated Funds Contingency Fundsand moneys credited to the public accounts, wherein sub-clause (2) provides that*’Consolidated Fund of the State and the Contingency Fund of the State and thecustody of public money other than those credited to such funds received by oron behalf of the Government of the State, their payment into the public accountof the State and withdrawal of moneys from such account and all other mattersconnected with or ancillary to matters aforesaid shall be regulated by law madeby the Legislature of the State, and, until provision in that behalf is so made,shall be regulated by rules made by the Governor of the State’. It is inpursuance of the aforesaid power vested with the Governor, the Rules of 1989 andthereafter, the Rules of 1999 have been framed.
The Rules of 1999 were amended by notification issued on 22.11.2005, withrespect to certain clauses and again vide notification dated 22.11.2006, issuedby the Governor in exercise of his powers under Article 283(2) of theConstitution of India. Amendments / modifications made in the Rules of 1999 areonly with respect to the entitlement category and the amount which can beawarded to the person entitled for such discretionary fund, rest of the Rules of1999 are still in force. In the Rules of 1999, Rule-2 provides that the adequateor sufficient amount, with the sanction/consent of the Legislature of the State(Rajya Vidhan Mandal), shall be placed in the Chief Minister’s DiscretionaryFund, which shall be granted to the individuals or to the institutions by theChief Minister. The explanation given therein deals with the situation whenthere is President’s Rule in the State.
Rule-3, lays down the conditions under which the grant/payment from the ChiefMinister’s Discretionary Fund can be given. Sub-clause (1) says that the grantshall be made to such persons or institutions, who are eligible for such a grantfrom the State fund. Sub-clause (2) says that the grant shall not be recurringand it would not mean that it would be spent in any personal type of expenditurenor such an expenditure would be borne by the discretionary fund. Sub-clause (3)of Rule-3, lays down the category of persons to whom the grant can be made andalso the maximum amount which can be paid to such persons including theinstitutions.
Sub-clause (4) gives the discretion to the Chief Minister to award the amount inexcess of the amount prescribed to any person in any special matter, as per hisor her discretion, as the case may be, whereas sub-clause (5) prescribes foraudit of the discretionary fund by the Accountant General, making it obligatoryfor the Chief Minister’s office, to forward him a copy of the order of grantmade in favour of any person. Sub-clause (6)(Ka) and (6)(Kha) confers power uponthe Chief Minister or the officer nominated by him to make inspection of therecord of the person, to whom the grant has been made, if it is a grant of morethan Rs.5,000/-. Sub-clause (6)(Kha) says that the District Magistrate shallmake verification and shall certify about the utilization of the grant made andhe will make relevant records available at the time of audit. The DistrictMagistrate shall also ensure that the grant has been made to the eligiblepersons.
Sub-clause (7) requires the beneficiary to give a certificate that he has nottaken the benefit of any discretionary fund of any Minister and has not appliedfor any discretionary fund of any Minister and that in the relevant year, he isnot a beneficiary of such a grant. It is only after giving such a certificate,the grant shall be disbursed. Sub-clause (8) says that the beneficiary has toutilise the amount of grant from the Chief Minister’s Discretionary Fund withinthe prescribed period and if he fails to do so, he will have to return theunused money in one go. Sub-clause (9) obliges the District Magistrate to giveutilization certificate of the amount paid to the beneficiary, and sub-clause(10) says that the order of sanction form the discretionary fund and the accountdisbursed, shall be maintained in the Account Section of the Chief Minister’soffice.
Sub-clause (11) says that where the amount of such discretionary fund is morethan Rs.500/-, the beneficiary will have to give a stamp receipt inacknowledgement thereof. By means of the amendment/modificat ion by thenotification dated 22.11.2005, sub-clause (3) which deals with the category ofpersons entitled for the grant and the amount which can be given to a particularperson including institutions has been amended, enhancing the said amount tocertain extent and lastly by the amendment of 2006, amendments have been made insub-clauses (3), (4) and (6) to the same effect, i.e. the category of persons towhom the grant can be made from the discretionary fund of the Chief Minister andthe maximum amount that can be paid to such persons, etc.
The Chief Minister’s Discretionary Fund thus, is a part and parcel of theConsolidated Fund of the State, subject to all constitutional sanctions andstatutory bindings. It is in fact the public money and, therefore, public has aright to know about it. The Chief Minister’s Discretionary Fund thus, is not andcannot be treated as personal fund of the Chief Minister, but it is thediscretionary fund, which has to be disbursed, at his/her discretion, as thecase may be, which disbursement again is governed by the Rules. The discretionhas to be exercised in the manner as may be prescribed under the Rules.
The amount of Rs.1 lac or more can be given to persons, who are enumerated inRule 3(b) to 3(f). Rule-3 read as under: “(3)This grant may be given by theChief Minister to the persons upto the limit mentioned below according to hisdiscretion: (a) to helpless, Disabled, persons of poor classes or boys orwidows: Not more than Rs.1,00,000/ – (b) to institutions involved into socialand cultural activities (other than institution based on caste or religion : Notmore than Rs. 5,00,000 /- (c) to poor persons suffering from illness : Not morethan Rs. 5,00,000/- (d) to for the construction of building of non governmentaleducational institutions : Not more than Rs. 5,00,000/- (e) to poor familieswhose earning member is killed in a brutal murder / crime or died due toaccident, snake bite or drowning of boat: Not more than Rs. 5,00,000/- (f) topersons suffering from massive fire breakout, land sliding, snowfall or othernatural calamities : half of the lossoccurred on general standards or Rs. 200,000/- whichever is less. (g) to personseriously injured in (one) accident and is in need of money: Not more than Rs.1,00,000/- (h) to needy person injured in (two)accidents: Not more than Rs.25,000/-”
The rules aforesaid thus prescribed the category of persons, who are entitledfor the benefit of discretionary fund of the Chief Minister with the maximumamount that can be given to them, of course subject to discretion of the ChiefMinister, who is authorised to give an amount even in excess of the prescribedlimit, but it does not lay down anywhere that the discretionary fund can begiven to persons not entitled under the rules. Even supposing (though the Rulesdo not permit) that the Chief Minister has the power to extend the benefit ofthe discretionary fund to any class of person/persons with discretion of anysuch amount being paid, none the less, it is governed by the rules and,therefore, if any amount is paid to a person, as enumerated under the rule orthat the amount has been paid in excess of the amount prescribed, the amountpaid even then cannot be treated to be an action of the Chief Minister or theChief Minister’s Secretariat, which isnot amenable to the public knowledge.
The discretion which is governed by the rule cannot be treated as insulated withimmunity so as to cover it up and not to make it known to the person,* *who isasking for such an information. No rule or provision, either constitutional orstatutory has been placed before us to draw a presumption of secrecy withrespect to the amounts disbursed and the details of such person or in otherwords, with respect to the disbursement of the discretionary fund from the ChiefMinister Secretariat, to the persons who are the beneficiary of suchdisbursement. In the case of Coimbatore District Central Coop.. Bank v.Employees Assn. (2007) 4 SCC 669, the court dealing with the doctrine ofproportionality, a principle where the Court is concerned with the process,method or manner in which the decision maker has ordered his priorities, reacheda conclusion or arrived at a decision, observed that the doctrine ofproportionality has its genesis in the field of administrative law. TheGovernment and its departments, in administering the affairs of the country, areexpected to honour their statements of policy or intention and treat thecitizens with full personal consideration without abuse of discretion. There canbe no “pick and choose”, selective applicability of the government norms orunfairness, arbitrariness or unreasonableness. The very essence of decisionmaking consists in the attribution of relative importance to the factors andconsiderations in the case. The doctrine of proportionality thus steps in focustrue nature of exercise, the elaboration of a rule ofpermissible priorities. “Proportionality” involves “balancing test” and“necessity test”, whereas the former (balancing test) permits scrutiny ofexcessive onerous penalties or infringement of rights or interests and amanifest imbalance of relevant considerations, the latter (necessity test)requires infringement of human rights to the least restrictive alternative.
The Chief Minister while distributing the amount to the persons entitled to havethe benefit of the aforesaid public fund, has the discretion to make such grantto the eligible persons and while exercising the discretion, he/she as the casemay be, has the discretion to enhance the amount as against the amount normallyprescribed for each category, but the discretion to whom the amount under thediscretionary fund should be paid and what amount should be paid also has to beexercised with caution and care and on a reasonable basis, e.g., in any specialmatter where the amount specified is found to be very low, so as to meet theexigency for which the amount is to be paid, the Chief Minister would have thediscretion to make a larger payment which means that the discretion of givingenhanced amount is also circumscribed by the requirement of it being a ’specialmatter’. For example, in case a poor person needs to have the medical expensesfor kidneytransplant, lever transplant, bypass surgery or any other disease like canceretc. requiring huge expenditure in his treatment, the enhanced amount can begiven. Illustrations aforesaid are not exhaustive, as there may be many morecases, under different entitlements, where the Chief Minister could exercise thediscretion of providing any enhanced or increased amount as against the oneprescribed. Whenever a discretion is vested with any authority to do or not todo a thing, it has to be done by exercise of sound discretion, as per the rulesand guidelines given under the rules.
When the Rules themselves prescribe the categories of persons to whom thebenefit can be extended with the eligibility criteria, the maximum amount whichcan be paid to such defined persons, there being requirement of making audit bythe Accountant General, U.P., of the Chief Minister’s Discretionary Fund withpowers to the Chief Minister and District Magistrate to look into the records ofthe beneficiaries and verify that the amount has been received by the eligiblepersons, coupled with the fact that the beneficiary is also under the obligationto utilise the fund given to him within the prescribed period for the purpose itwas given, failing which, unused amount has to be refunded in one go, it cannotbe said that there can be any secrecy in the matter either with respect to thedisbursement of the discretionary fund to any particular person or his/herentitlement for the same nor it would be a case of infringing any right ofprivacy of a person, towhom the benefit has been extended.
There appears to be no reason for not making such information known to thepublic or atleast not making it known to the persons, who asks for suchinformation, when the disbursement is made under the Rules notified by theGovernor. Extending the benefit to the eligible and deserving persons, is alaudable object and a highly appreciative function of the Chief Minister and,therefore, also the disclosure of such an information would not affect thecredibility of the Chief Minister’s Secretariat or its functioning, but wouldmake the entire functioning transparent, which would enable the applicant toknow that the discretionary funds have been properly utilized. In a democraticset up, every organ of the State including the legislature and the executive isanswerable and accountable to the public. There cannot be a bar nor anyimpediment can be placed in disclosing such an information which relates to thebenefits extended from the discretionary fund ofthe Chief Minister to the persons entitled to such benefit. Chief Minister’sDiscretionary Fund is a name, but none the less it is a public fund and publicmoney. The citizens have a right to know that in what manner, the saiddiscretionary fund has been used and utilized. From the category of persons towhom this benefit can be extended, it is clear that it takes into account notonly the destitute, disabled weaker section of people, widows, children, but italso prescribes the given amount for social and cultural organizations, poorperson suffering from disease, for construction of the school building of anynon-governmental educational institution etc. etc. That being so, there cannotbe any plausible reason for not disclosing the information regardingdisbursement of the discretionary fund to any person.
The plea that if such an information is disclosed, it would cause unwarrantedinvasion of the privacy of the person who is a beneficiary is concerned, thesame is wholly untenable and devoid of substance. The person who is extended thebenefit of discretionary fund does not compromise with his honour and prestigenor acceptance of such a benefit belittles his status. The Chief Minister whileextending the benefit of the given amount from the Chief Minister’sDiscretionary Fund, discharges his/her, as the case may be, social obligation,in consonance with the socio economic policy of the State to the person, who isentitled under the rules for having the said benefit. The extension of theeconomic assistance to the persons entitled, is a step towards discharging thefunctions of a welfare State by providing monetary help to the deserving underthe Rules.
The benefit is supposed to be extended possibly to the maximum number ofpersons, who fall within the category of entitlement, which care has been takenby providing the maximum amount against each category of person, which can benormally provided. This has been done with a view to meet the economic capacityand the amount, available in the Chief Minister’s Discretionary Fund. The amountappears to have been prescribed against each category, with a view to make thefunds available to maximum possible number of people and not allowing thediscretion to be exercised in a manner, so that it concentrates into the handsof few beneficiaries. Of course, those who are not entitled for thediscretionary fund, may not be allowed the money from the said fund, if the ruleor the law otherwise does not permit. The beneficiary of the discretionary fundcannot feel any inconvenience or discomfort, in case the information is givenabout the amount, that has been givento him under the said rule. Of course, if any undue advantage has been derived,it cannot stand protected by simply hiding or by not disclosing the informationto the person, who asks for the same.
The plea that if such an information is given, it would cause unwarrantedinvasion of the privacy of the individual beneficiary is otherwise also notavailable to the petitioner or the Public Information Officer or the State norto the department concerned, as it may be the individual defence, if at allavailable, to the beneficiary. The information asked for, is only to provide theinformation with respect to the discretion of the Chief Minister’s Secretariat,where the funds have been released to the beneficiaries, and not the informationfrom the beneficiaries, as to what they have done to the funds given to them. Incase, any such information is asked for, which relates to third person, namely,the beneficiary, and if, he or she had claimed confidentiality of such aninformation, and if such an information can at all be treated as confidential,only in that case, provisions of Section 11 would apply, but it would also notmean that such aninformation would stand absolutely exempted from being disclosed.
It is to be noticed that when the beneficiary of the grant from the ChiefMinister’s Discretionary Fund is under an obligation to use the money so paidfor the same very purpose, for which, it has been paid with the obligation uponthe beneficiary to return the unused money in one go, and that too within theprescribed period, for which utilization certificate has to be furnished by theDistrict Magistrate after making necessary verification, it cannot be said thatit is an information, which can seek confidentiality within the meaning ofSection-11 of the Act of 2005 or can be treated as confidential by thebeneficiary, treating it to be a third party information. One cannot forget,that the monetary assistance extended to the beneficiary is from the publicfund.
In our considered opinion, the information asked for regarding the names anddetails of the persons, who have been paid an amount of more than Rs.1 lac fromthe Chief Minister’s Discretionary Fund for the period in question, is not aninformation, which is covered under Section 8(j) nor it stands exemptedotherwise. This takes us to the next question regarding the authority of theCommission/Chief Information Commission to direct the Public Information Officerto give the information asked for within a specified period, while dealing witha complaint under Section 18 of the Act.
The petitioner in support of his plea, that the Commission cannot direct forsupply of the information, in proceedings under Section 18, has relied upon thecase of *Reliance Industries Ltd. vs. Gujarat State Information Commission andOrs., reported in AIR 2007 GUJARAT 203. A learned Single Judge of the High Courtof Gujarat in this case, while considering the effect of information asked forrelating to third party, taking into account the provisions of Sections 11 and19 of the Act, also had an occasion to consider the scope of Section 18 of theAct, wherein the Court observed that a third party information cannot be givenunless the rules of natural justice are followed in the manner prescribed underthe Act.
The legal proposition as enunciated by the Gujarat High Court with respect toaffording of reasonable opportunity to the third party to whom either theinformation relates or who had supplied the information and which information isbeing treated as confidential by such a person, is not only the tenet of theprinciples of natural justice but it also flows from the statutory provisions ofSection 11 1) itself. In case where Section 11 applies, of course, dueopportunity, as provided under the Act, has to be afforded to the third partyand only after following its rules, the information can be supplied or refusedand that too by giving reasons.
We, therefore, are in respectful agreement with the aforesaid view of followingthe rules of natural justice, expressed by the Gujarat High Court.
The view expressed otherwise in respect of locus standi of a person to seek aninformation and also on the scope of Section 18 of the Act, requiresconsideration. The Gujarat High Court while dealing with the aforesaidproposition of law, took into consideration the judgement of the apex court inthe case of Ashok Kumar Pandey vs. State of West Bengal and others, reported inAIR 2004 SC 280, for holding that care has to be taken that the information isnot asked for by the persons, who seek the information with an intention toblackmail the person against whom the information is asked for and that thenature of the information asked for and the person who asked for information arethe relevant considerations.
In regard to the observations of the Gujarat High Court, suffice would be tomention that the Court proceeded on the assumption that the right to seekinformation is like filing writ petition in the nature of public interestlitigation. In a public Interest litigation, care has to be taken that it is nota petition for settling the personal score or satisfying the personal vendettaor is not a publicity interest litigation or pecuniary interest litigation. Theessence of the grievance raised and the bona fide of the person in bringing theissue to the Court, are such key factors, which play an important role in thepublic interest litigation.
The Supreme Court even in a petition of PIL has held in the case of T.N.Godavarman Thirumulpad (98) vs. Union of India and others, (2006) 5 SCC 28 andVishwanath Chaturvedi (3) vs. Union Of India and others, (2007) 4 SCC 380, thateven if the person bringing the cause to the Court has no locus standi to pursuethe matter or he is not a bona fide person or a public spirited person or mayhave approached the Court with political reasons but still in such a case thegrievance raised can be looked into and if found genuine and worth beingenquired into, the same can be entertained.
Under the Right to Information Act, the locus standi of the person is of noavail. Any citizen can ask for any information, which is not protected under therelevant clauses of exemption. The Public Information Officer is under the legalduty to supply the information so asked for. Sub-clause (2) of Section 6 itselfsays that an applicant making request for information shall not be required togive any reason for seeking the information or any other personal details exceptthose that may be necessary for contacting him. This leaves no room of doubtthat the information cannot be refused on the ground that the person asking forinformation is not a bona fide person and it cannot also be enquired from him asto why he is seeking the information.
The view, therefore, expressed by the Gujarat High Court in this regard withoutadverting to the scheme of the Act, 2005 and without noticing the provisions ofSection 2(j) and Section 3 of the Act, are contrary to law. Section 2(j), saysthat the right to information means the right to information accessible underthis Act, which is held by or under the control of any public authority andSection 3, says that subject to the provisions of this Act, all citizens shallhave the right to information.
We thus find that the Gujarat High Court did not take into consideration theprovisions of Section 2(j) and Section 3 and also sub-clause (2) of Section 6,which specifically prohibits from making any enquiry from the applicant forgiving reasons for seeking the information or any other personal details excepthis address, where he could be contacted. Thus, the view expressed by theGujarat High Court in respect of the locus standi of the applicant, asking forany information cannot be said to be a binding precedent.
We, therefore, with utmost regard to the learned Judge of the Gujarat HighCourt, are unable to subscribe to the said view. Gujarat High Court also heldthat the information cannot be directed to be given under Section 18, butrecourse can be taken in appeal for having the information, which has beeneither illegally withheld or has been specifically refused.
For finding out the true meaning, import and scope of Section 18, we have tomake purposive interpretation of the provision, keeping in view the object andpurpose of the Act. On seeing the scheme of the Act, the relevant extracts ofwhich, we have reproduced earlier, it is beyond doubt that the object andpurpose of the Act is to provide information to the citizen (applicant), whomakes a request for having such an information, which can be given under the Actand which does not stand exempted or so to say is not prohibited from beingfurnished under the provisions of the Act.
Normal rule of interpretation is, to give such meaning to the provisions of theAct, which furthers the object of the Act and does not restrict itsapplicability so as to defeat its very object and purpose. The intention inmaking a provision, the principle which guided for such an enactment and themischief which is intended to be rectified cannot be lost sight of, whilediscovering the true meaning and import of the provisions of the Act.
While interpreting any statute, normally a literal construction of the provisionhas to be made and if the language is clear, unambiguous and meaningful, whichforwards the cause of enactment, the Court would restrain itself from making aneffort to interpret the provisions in any different manner, which would have theeffect of amending the rule or rewriting the provision.. The literal rule ofconstruction is the normal rule of interpretation, which does not infringe uponthe statute or the statutory provision and carries forward the intention, objectand purpose of the Act. Any hardship to any person or any lacuna in the Act canalso not be filled in, unless of course the provision militates against theobject and purpose for which it has been enacted or leads to absurdity.
In the case of A.N. Roy, Commissioner of Police and another vs. Suresh ShamSingh, reported in (2006) 5 SCC 745, the Supreme Court observed as under: “*itis now well-settled principle of law that the court cannot enlarge the scope oflegislation or intention when the language of the statute is plain andunambiguous. Narrow and pedantic construction may not always be given effect to.The Courts should avoid a construction, which would reduce the legislation tofutility. It is also well settled that every statute is to be interpretedwithout any violence to its language. It is also trite that when an expressionis capable of more than one meaning, the court would attempt to resolve theambiguity in a manner consistent with the purpose of the provision, havingregard to the great consequences of the alternative constructions. “
In the case of Southern Petrochemical Industries Co. Ltd. vs. ElectricityInspector and ETIO, (2007) 5 SCC 447, held that only in case a literalinterpretation gives rise to anomalous situation, purposive interpretation maybe resorted to, and again in the case of S.B. Bhattacharjee vs. S.D. Majumdar,(2007) 10 SCC 513, it was said that for giving effect to the legislative intentin the face of draftsman’s unskillfulness or ignorance of law, the court mustconsider executive instructions or office memorandum as executive interpretationbased on the doctrine of contemporanea expositio.
In the case of *Raghunath Rai Bareja vs. Punjab National Bank, (2007) 2 SCC 230,the Supreme Court held that the literal rule of interpretation really means thatthere should be no interpretation. In other words, we should read the statutesas it is, without distorting or twisting its language. The literal rule ofinterpretation is not only followed by judges and lawyers, but it is alsofollowed by the layman in his ordinary life. The meaning of the literal rule ofinterpretation is simply that we mean what we say and we say what we mean. Thefirst and foremost principle of interpretation of a statute in every system ofinterpretation is the literal rule of interpretation. The other rules ofinterpretation e.g. The mischief rule, purposive interpretation, etc. can onlybe resorted to when the plain words of a statute are ambiguous or lead to nointelligible results or if read literally would nullify the very object of thestatute. Where the words of astatute are absolutely clear and unambiguous, recourse cannot be had to theprinciples of interpretation other than the literal rule. Even if the literalinterpretation results in hardship or inconvenience, it has to be followed.
The Supreme Court had an occasion to consider the principle of purposiveinterpretation in the case of State of U.P. and others vs. Jeet S. Bisht andanother (2007) 6 SCC 586, wherein two Hon’ble Judges have delivered thejudgement separately, but the out come of the petition is the same, thoughreference to Larger Bench has been made, on the reasoning given by them.
In paragraphs 72 and 73, Justice S.B. Sinha, held as under: “72.With the adventof globalisation, we are witnessing a shift from formalism to a value-ladenapproach to law. In the contemporary scholarship, especially with the decimationof law as purely an autonomous discipline (with the emergence of cross-cuttingrealms such as Law and Economics, Law and Philosophy, Law and Society, IPR etal), we see that laws embody a goal, which may have its provenance in sciencesother than law as well. It is no more the black letter in the law which guidesthe interpretation but the goal which is embodied by the particular body of law,which may be termed as the rationality of law.
73. Law, in its value-laden conception, is not entirely endogenous in itsmeaning and purpose, the construction thereof also depends on the statement ofpurport and object. There is a spillover of the aforementioned shift inphilosophy of law to statutory interpretation. Purposive interpretation, oflately, has gained considerable currency, which is relevant for the sake ofmaximising the efficiency in respect to the point behind the rule. There may bea situation when purposive interpretation is required even in the context ofdeciphering the constitutional mandate by invoking the notion of active libertydiscovered by Justice Stephen Breyer of the American Supreme Court. This is theprecise role which was exhorted by Bruce A. Ackerman in the famous StorrsLecture.”
Despite reference to Larger Bench, the rule of purposive interpretation, canstill be made applicable to understand the provisions in the instant case..
Section 18 of the Act is a provision, which allows the applicant who has beenrefused information or who believes that complete information has not beengiven, or who has been denied the information by simply delaying theinformation, to make a complaint to the Commission, Central or State, as thecase may be, who would make an enquiry into the said complaint.
Section 19(8)(a) is in general terms, which confers power upon the Commission,may be the Central or the State, to require the public authority to take anystep as may be, necessary to secure compliance under the said Act includingproviding access in a particular form to the information asked for. This meansthat the Commission can direct for supplying the necessary information in suchform, as may be required, therefore, there cannot be any dispute that in theappeal proceedings, the information which has not been given by the PublicInformation Officer can be directed to be supplied.
What would be the position, in case a complaint has been made under Section 18of the Act, regarding refusal of information etc. is a matter which requiresconsideration.
Section 18 is a provision which gives a statutory avenue for vindicating thegrievance of the persons, who asked for such information, but the same has notbeen given. To keep a check and control upon the functioning of the PublicInformation Officers, so that they may not go berserk and violate the statute,capriciously and arbitrarily, Section 18 has been enacted. In case theCommission finds that the concerned officer has violated the provisions of theAct, in discharging the duties under the Act and has illegally, wrongfully ormalafidely refused the information, he can be subjected to a penalty, which maybe, namely, Rs.250/- per day, till the information is provided or to a maximumof Rs.25000/-.
In case the intention of the provision of the aforesaid Act was only to punishthe guilty information officer, there would have been no occasion under Section18(3) to confer powers upon the Commission, which are vested in a civil courtwhile trying a suit under the Code of Civil Procedure, 1908 (5 of 1908),requiring discovery and inspection of documents and requisitioning any publicrecord or copies thereof from any court or office, and for specificallyproviding under sub-clause (4) of Section 18 that notwithstanding anythinginconsistent contained in any other Act of Parliament or State Legislature, asthe case may be, the Central Information Commission or the State InformationCommission, as the case may be, may, during the inquiry of any complaint underthis Act, examine any record to which this Act applies which is under thecontrol of the public authority, and no such record may be withheld from it onany grounds.
The obvious intention and the purpose of the aforesaid powers being vested withthe Commission in the matter of enquiry is to confer all such powers upon theCommission, which can compel the erring officers to disclose and supply theinformation, which cannot be withheld for any reason whatsoever under theprovisions of the Act. Of course, an enquiry on such a complaint naturally wouldmean to enquire as to whether the information was rightly refused, delayed orwas incorrectly given, and for that matter, the power, as given in sub-clauses(3) and (4) of Section 18 the Act, have to be used and on finding that theinformation was wrongly refused or illegally withheld or was incorrectly ormalafidely refused, the Commission cannot be stopped from issuing direction forgiving the necessary information.
The purpose of holding enquiry would be of no meaning if only punishment isgiven to the erring officer, as it would not serve the purpose of the Act andthe power so conferred upon the Commission, requiring requisitioning of anypublic record or copies thereof from any court or office, shall also have only alimited purpose to find out as to whether the punishment should be awarded tothe erring officer or not. This is not the intention of the Act or theprovisions of Section 18.
Section 20 which prescribes the penalties, takes into account both ‘complaint’and ‘appeal’, says that the Central Information Commission or the StateInformation Commission, as the case may be, while deciding any complaint orappeal, if satisfied that the application has wrongly been refused from beingentertained or the information has not been given for the reasons given therein,impose the penalty as prescribed, meaning thereby that at the time of eitherdeciding a complaint or an appeal, the Commission has the power to imposepenalty and that this penalty would be imposed till the application is receivedor information is furnished. This clarifies that the penalty can be imposed bythe Commission while deciding the complaint or while deciding the appeal. Suchpenalty can be imposed for such term, till the application is received orinformation sought for is given, as the case may be, @ Rs.250/- each day,subject to a maximum of Rs.25,000/-.
So far the power to issue direction for receiving the application or forsupplying the information is concerned, it is for one and the same purpose,i..e., for supplying the correct information to the applicant, if it does notstand exempted under the Act. In this regard, there can be no distinction, whenthe Commission enquires into a complaint or hears an appeal under the aforesaidpower. This view also stands fortified by the fact, that Section 20, which givesthe consequence of enquiry being held under Section 18, on a complaint beingreceived, says in sub-clause (1) “…… It shall impose a penalty of Rs.250/-per day, till the information is provided or to a maximum of Rs.25000/-”,meaning thereby that the penalty is to be imposed for compliance of theprovisions of the Act.
The aforesaid clause in inverted commas, means beyond doubt that the Commissionon being satisfied about the complaint and while deciding any complaint orappeal, if it is of the opinion that without any reasonable cause, theapplication was refused, or the necessary information has not been given or thesame has not been furnished within time or has been malafidely denied or theknowingly incorrect information has been given etc. etc., only then it shallimpose the penalty aforesaid. Since the penalty of Rs.250/- per day is to beimposed till the application is received by the Public Information Officer,Central or State, as the case may be, if they had refused to accept applicationor the information asked for is furnished, it is apparent, that the very purposeof this penal provision is to make the officer concerned to supply theinformation.
In a given case, where a complaint has been made that the information has notbeen furnished, the penalty of Rs. 250/- each day, shall be imposed till theinformation is furnished, to a maximum of Rs.25000/-, which means that evenwhile dealing with the complaints, the Commission can ask for the disclosure ofthe information, otherwise, the provision would not have contained the phraseaforesaid, which prescribes the penalty of Rs. 250/- each day, till applicationis received or information is furnished, as the case may be.
The intention of the provision is clear. The penalty is to be imposed for theperiod during which either the application is not received or the information isnot given, but the moment, the application is accepted or information is given,as the case may be, the penalty cannot be imposed any further.. Of course, themaximum limit of penalty is Rs.25000/-, but that does not in any way fetter thepower of the Commission to issue a direction for furnishing the information. Themaximum amount of penalty does not qualify the main substantive provision, whichsays that it shall be imposable till the information is given or the applicationis received, as the case may be.
In a given case where no appeal has been filed or even after first appeal, theinformation has not been given and if no second appeal has been filed, but acomplaint has been made, it would be the discretion of the Commission to passappropriate orders for furnishing of the information, in case the Commission issatisfied and if it is established from the record that the information wasillegally refused or not given correctly etc. etc.
In the absence of any prohibition under Section 18 and there being no otherprovision, which puts any embargo or curtails the jurisdiction of the Commissionto order for supply of the information not duly supplied, or to ask forreceiving of the application, which has been wrongly refused from beingentertained, the provisions of Section 18 has to be read in a manner, which doesnot have the effect of curtailing the jurisdiction of the Commission, whichotherwise can be exercised under the provisions of the Act.
Section 18 is a substantive provision regarding lodging and enquiring into acomplaint, whereas Section 20 is the consequence of such an enquiry. The wholepurpose of making an enquiry on a complaint being given by the affected person,shall stand defeated, if the two provisions are read in isolation or they aregiven a meaning which does not further the object of the Act. From a harmoniousconstruction of the aforesaid provisions keeping in mind the purpose for whichthey have been enacted, it can be safely concluded that the powers of theCommission under Section 18 are not restricted only to make enquiry and awardpunishment, but they also extend for issuing direction for receiving theapplication or for giving the necessary information under the provisions of theAct. Any other interpretation would not be in consonance with the scheme of theAct and shall also amount to restricting and curtailing the power of theCommission by judicialinterpretation.
The Act contains two types of information; first which is to be suo motuprovided without even being asked for under Section 4 and the other information,which is to be given when asked for. Of course, there is a third classification,which exempts certain information from being disclosed and a corollary to thesaid exemption is such information, which though stands protected, but can bedisclosed by the competent authority, if satisfied that it is in larger publicinterest to disclose such information. Any interpretation to any of theprovisions of the Act, if leads to absurdity or may lead to defeat the verypurpose of the Act, has to be avoided. There is no attempt to twist the words orthe phraseology used, but for correct interpretation of provision of Section 18,it cannot be read in isolation, but has to be seen in the light of theconsequences of a complaint of Section 18, as given in Section 20 of the Act,besides also the purpose and object ofthe Act for which it has been enacted.
It shall be a futile exercise in case the enquiry as contemplated, on acomplaint is made, but remains confined only to the award of punishment with noconsequence of furthering the object of the Act, i.e. without requiring thePublic Information Officer to supply the information asked for. The meaning,intention and import, therefore, is clear that if a complaint is made and if theCommission is satisfied that the information has wrongly been withheld or hasbeen refused, etc., then in addition to the penal actions prescribed it can alsoorder for supply of such an information.
We, therefore, with deep respect are unable to concur with the view expressed bythe Gujarat High Court to the contrary in the case of Reliance Industries Ltd.vs. Gujarat State Information Commission and Ors., reported in AIR 2007 GUJARAT203, with respect to the scope of Section 18.
In view of above, we are of the considered opinion that neither the informationasked for regarding distribution of the discretionary fund viz. in the instantcase, information regarding the details of the persons, who have been given anamount of more than Rs.1 lac can be refused nor it stands exempted under Section8(j) of the Act. We are also of the view that the Commission while enquiringinto the complaint under Section 18, can issue necessary directions forsupply/disclosure of the information asked for, in case the Commission issatisfied that the information has been wrongly withheld or has not beencompletely given or incorrect information has been given etc.., whichinformation otherwise is liable to be supplied under the provisions of the Act.
Before parting, we will also like to put on record that all the informationregarding the Chief Minister’s Discretionary Fund, including the informationregarding the persons, who have been granted any amount from the discretionaryfund with their category and the amount paid/disbursed, may be treated such aninformation, which requires to be made available to the public in terms ofSection 4 of the Act. The public has a right to know about the disbursement ofthe Chief Minister’s Discretionary Fund to the persons and the amount which hasbeen paid with a further information that whether the amount has been properlyutilized in the given time or not.
We, however, refrain ourselves from issuing any such directive, but we hope andtrust that the State Government shall look into the matter and exercise itsdiscretion, particularly when there are specific rules, duly formulated by theGovernor, prescribing for audit by the Accountant General, U.P. of thediscretionary fund and also other provisions regarding the entitlement andutilization etc., which we have already discussed above.
We have been persuaded to make these observations in accordance with theprovisions of the Rules of 1999, sub-clause (xvii) of Section 4(1)(b) and alsosub-clause (2) of Section 4 of the Right to Information Act, 2005, which saysthat it shall be a constant endeavour of every public authority to take steps inaccordance with the requirements of clause (b) of sub-section (1) of Section 4,to provide as much information suo motu to the public at regular intervalsthrough various means of communications, including internet, so that the publichave minimum resort to the use of this Act to obtain information. We, thus donot find any illegality in the impugned orders dated 12.12.2007, 18.1.2008 and15.2.2008, contained in Annexure Nos.1, 2 and 3 respectively to the writpetition, passed by the Commission nor we find any reason for the petitioner notto supply the information asked for.
The writ petition is devoid of merits and is dismissed.July 1st, 2008
Published September 29, 2008 RTI Act


Daily Legal News 29.09.2008

Call to make Indian Legal Education Global
THE Indian legal education system may witness big changes in the coming years. On one hand, while realising the importance of globalisation, law schools have called for making Indian legal education globally relevant. On the other, they are planning to introduce changes to the Common Law Admission Test (CLAT) to select students who have the skills to become international lawyers. These plans were announced at seminars organised in Hyderabad and Delhi recently by US-based Institute of International Education (IIE), an international exchange organisation. The seminars brought together the US Law School Admission Council (LSAC) and the National Law Schools (NLS) of India. “Expansion in business across the world has generated a need for lawyers who are global in their approach. Legal education has to play a big role in creating such lawyers. We at our organisation believe in international exchange of ideas so we thought to facilitate exchange of ideas,” said Ajit Motwani, director, IIE India. CHANGES IN CLAT Entrance examinations are an important parameter to select the right candidate. And while CLAT is only a year old, LSAC has the experience of holding Law School Admission Test (LSAT) across US, Australia and Canada for nearly 60 years. Veer Singh, vice-chancellor of NALSAR University of Law, Hyderabad, will be the convenor of CLAT 2009. Singh, while elaborating on the plans to introduce changes in the exam, said, “Approximately 1.5 lakh aspirants from three different countries take LSAT. They have proved their credibility in terms of fairness of content, testing candidate on logical and verbal reasoning and language comprehension. So, we want to learn from them the things that can make CLAT more reliable.” When asked about the feasibility of applying a US testing method in India, Singh said, “We will not be replicating the LSAT, since CLAT 2008 had its own peculiar problems like local, gender and caste reservations. Besides, some take it online and some don’t. So, we will consider all these factors before reaching any conclusion.”

Elaborating on the universal approach of LSAT in selecting candidates, Daniel Bernstine, president, LSAC, said: “We have to remember that the exam is not about law. It is conducted to test a student’s ability to work as a lawyer. So, we provide equal playing fields to students from different disciplines.” Ellen Rutt, chair, LSAC, added: “The exam is designed in the US, but it is taken by students from various countries. It can effectively judge the critical thinking and reasoning ability of a student regardless of him/her sitting in Nairobi or New Delhi.” FOR A GLOBAL CLASSROOM Once the right candidates have been selected, the focus shifts towards imparting quality education. So, those present at the Delhi seminar made suggestions on improving the legal education system in the country. “We require a new breed of schools that will be able to handle global issues such as climate change, arbitration, mergers and acquisitions. Hence, it is important to initiate dialogue with other countries. And since the US is also a democracy, we can learn a lot from them,” said Moolchand Sharma, eminent law professor, and vicechairman, University Grants Commission (UGC). Elaborating on the required changes, Dalveer Bhandari, judge, Supreme Court, said: “Considering the sheer number of global law firms that have set up shop in India in the past 10 years, there is an urgent need for truly global legal education. We also need to have a special fleet of lawyers who can represent India in the World Trade Organisation. The Bar Council of India is doing very little in this regard. The council should also consider a fiveyear law course where faculty could consist of accomplished lawyers and researchers.” Bhandari also felt that the country needed clinical legal education so that students could get real life dealing in courts and with clients. On the other hand, Ranbir Singh, vicechancellor, NLS-Delhi, said: “We will be local in our thinking but the focus would be to create lawyers who can relate to the global situation. Hence, our vision is to increase interaction between our law school and others worldwide.”
29 Sep 2008, 1316 hrs IST,TNN

State delays, Simlipal denudes- Timber mafia thrive with tribal help
Cuttack, Sept. 28: The state government’s scant regard for high court notices prompted by a PIL, seeking a curb on illegal tree felling and free-run of timber mafia in Simlipal Biosphere Reserve, has aggravated denudation in the area.
The PIL had sought the court’s direction to the government to either hand over protection of Simlipal to the Central Reserve Police Force (CRPF) or raise a Forest Reserve Protection Force in Orissa.
With the government not buying any of the proposals offered in the PIL, the denudation of the vast stretches of forest and greenery in Simlipal has aggravated.
The timber mafia, with the help of local tribals, rules the roost in Simlipal. The illegal activities flourish mostly in Josipur, Bangriposi, Shyamakhunta and Kaptipada and the stolen timbers allegedly find their way to neighbouring Bengal en route to Baripada and Balasore.
The wilful non-compliance to a high court order related to it, it seems to have been detected when a PIL filed way back in 1998 came up in the list for hearing last week before the two-judge bench of Chief Justice B.S. Chauhan and Justice B.N. Mohapatra.
Pravat Ranjan Dash, a high court lawyer, had filed the petition in 1998 soon after then state environment and forest minister Prasanna Das admitted in the Assembly that an inter-state timber mafia was behind the rampant tree felling in the Simlipal reserve.
The minister had further raised concern over the administration’s inability to check the menace. Das had filed the PIL quoting the minister’s statement in the Assembly.
Acting on the PIL, the high court had issued notices to both the Centre and the state government asking their reply about the steps to be taken to protect the Simlipal Biosphere Reserve.
But the state government is yet to submit an affidavit.
Taking note of it Chief Justice Chauhan expressed displeasure and issued fresh notices to the government to file an affidavit within three weeks stating the steps taken and plans drawn up for protection and preservation of the reserve.
“The case will be taken up for hearing on submission of the affidavit by the state government as the Centre has already submitted a reply,” the court said.
Monday , September 29 , 2008

‘Builders to face heat for tweaking FSI in suburbs’
MUMBAI: Builders have violated floor space index (FSI) norms in 234 cases in the suburbs despite a PIL pending in court, sources in the BMC have said. It is also learnt that the civic body is contemplating action against the developers concerned. Earlier this year, the government raised FSI in the suburbs from 1 to 1.33. Following this, builders involved in several ongoing projects started using the additional .33 FSI hoping to get their modified plans approved by the BMC. But the Bombay high court, in response to a PIL filed by advocate Y P Singh on behalf of activists Amit Maru and Arun Gaikwad, stayed the government’s decision. Singh pointed out that any builder using an FSI of more than 1 could face contempt proceedings. In the PIL, he contended that the grant of extra .33 FSI was illegal as it amounted to a major modification of the development plan for Mumbai and that too without following the procedures laid down under the Maharashtra Regional Town Planning Act. Singh said an increase in FSI up to 10% would have constituted a minor modification, which was permitted under the law. But a 33% hike in FSI was announced by the government and implemented with immediate effect without waiting for objections and suggestions from the public. He said this was tantamount to the introduction of a new development plan for the suburbs through the backdoor. Sources in the BMC said the only way out of the imbroglio was by regularizing illegal construction in the 234 cases by using Transfer of Development Rights (TDR). “In any case, the cap of 2 FSI continues in the suburbs. Within this stipulation, it should be possible to regularize the illegal construction by consuming TDR, whose rates have dropped considerably. This should be affordable to the developers who want to escape the demolition of illegal additional work carried out by them,” a BMC engineer said.
29 Sep 2008, 0218 hrs IST, S Balakrishnan,TNN

Make officers accountable, high court tells I-T dept
MUMBAI: It is an accepted fact that files move at a snail’s pace in government departments. This lackadaisical approach was highlighted by the Bombay high court in a recent order on a bunch of appeals filed by the income-tax department. The court, while commenting on the inordinate delay in filing of appeals, observed that the attitude of the officers was “I will deal with the matter at leisure and my convenience.” The court directed the department to issue a circular to officers and introduce the concept of public accountability and responsibility in the discharge of its official duties, besides fixing a time-frame for filing appeals. Further, senior officers will be responsible for compliance to the directives in the circular. The high court’s directive was in response to 43 appeals filed by the income-tax department against orders of the Income Tax Appellate Tribunal (ITAT), which went in favour of the assessees. The assessees included major companies like Tata Sons, Standard Chartered Bank, American Express, Asian PPG and Ornate Traders. One appeal was filed by a company against an ITAT order that went against it. The court clubbed all the matters as the main issue in all of them was condonation of delay in filing the appeals. In one of the matters related to Bhansali Engineering and Polymers, the department filed an appeal four years after the ITAT order. A division bench of Chief Justice Swatanter Kumar and A P Deshpande said, “Courts are inclined to show greater indulgence to the departments because of the inter and intradepartmental steps to be taken before initiating legal proceedings , but this indulgence has its limitations and cannot be extended without any reasonable cause and that too beyond the permissible time.” One of the interesting reasons for the delay was that court fee stamps were not readily available. Terming this attitude as casual and negligent , the court said there is a difference between “readily available’ ‘ and “not available” . “It is expected that the government departments should function in a properly mechanised manner and not act so casually that the public exchequer is made to suffer.” It observed, “A casual or negligent litigant who has acted with utter irresponsible attitude cannot claim the condonation of delay in law.” The bench said irrespective of the observations of various courts on the need to deal with matters expeditiously, there was no improvement. “An officer can hardly justify that a file would lie on his table for months or days together and he would not act on the said file just because he claims to be preoccupied . Actions that can be condoned by the court should fall within the realm of normal human conduct. It is neither expected nor can it be the normal conduct of a public servant or a litigant that they would keep the files unmoved, unprocessed for months together on their tables.” According to the justices, in some cases, the explanation given is vague. The court commented that wherever there is higher public revenue, they have greater responsibility to act swiftly. “It cannot justify the conduct that you sleep over and ignore your statutory rights for years and then take up the plea of public revenue. The court cannot completely ignore the interest of the assessee.” The court rejected 19 appeals as delay for filing the appeals was not explained. In some of these cases which were dismissed not on merits but due to delay, it would have adverse consequences. “It is expected of the authorities concerned to adopt a more practical and pragmatic approach and handle the judicial matters with utmost efficiency and expeditiousness ,” the court said. toireporter@timesgroup.com
29 Sep 2008, 0554 hrs IST,TNN

HCs cannot transfer civil cases outside State”
New Delhi: A High Court, exercising its jurisdiction in a State, has no power or authority to transfer civil suits, appeals and other proceedings, including matrimonial cases, from one subordinate court in that State to another subordinate court in another State.
“If two courts are subordinate to different High Courts, one High Court has no power, jurisdiction or authority to transfer a case pending in any court subordinate to that High Court to a court subordinate to other High Court. It is only the Supreme Court [this Court] which may order the transfer,” said a Bench consisting of Justices C.K. Thakker and D.K. Jain.
The Bench said that “by this decision it is overruling all previous decisions of various High Courts wherein the respective High Courts had assumed the power to transfer civil proceedings to other States.”
Writing the judgment, Justice Thakker said: “It is wrong to presume that Section 23 of the Civil Procedure Code is a substantive provision which authorises High Courts to transfer civil cases outside a State as held by the High Court [concerned] in various decisions so far. Under the amended [1977] provision of Section 25 of the Code, it is only the Supreme Court which has the power and authority to transfer a case, proceedings or trial from one State to another State.”
Territorial limits
The Bench said: “Every court has its own local or territorial limits beyond which it cannot exercise the jurisdiction. So far as this court is concerned, its jurisdiction is not circumscribed by any territorial limitation and it extends over any person or authority within the territory of India. But, it has no jurisdiction outside the country. So far as a High Court is concerned, its jurisdiction is limited to territory within which it exercises jurisdiction and not beyond it.”
“The writs issued by a High Court cannot run beyond the territory subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be within those territories which clearly imply that they must be amenable to its jurisdiction in accordance with law.”
Divorce plea
In the instant case, the appellant Durgesh Sharma was married to Jayshree Sharma (respondent) in May 1989. After the marriage, they lived in Ujjain in Madhya Pradesh. In October 2004, Mr. Sharma moved the Family Court at Ujjain seeking divorce. On a petition from Mrs. Jayshree, the Bombay High Court, by an order dated January 25, 2007, transferred the case pending in the Family Court, Ujjain, to a competent court at Malegaon, Nasik in Maharashtra. The present appeal by Mr. Sharma is against this judgment.
Allowing the appeal, the Bench said that “in our opinion, the order passed by the High Court is not sustainable and deserves to be set aside.”
Monday, Sep 29, 2008
J. Venkatesan

Moral policing
Being gay in India is to know the brute power of state and society in the most immediate, humiliating ways — the entire spectrum from police harassment to social ostracisation. Section 377 of the IPC contains the legal abomination that allows the Government to extend its tentacles into the intimate life of lakhs of its queer citizens. Now, a much deferred liberation movement, to strike down the part of Section 377 that criminalises homosexuality, is playing out in the Delhi High Court. The government’s stand had previously been split between the health ministry’s tentative suggestion, couched in the language of AIDS intervention that maybe Section 377 be reconsidered in the interest of public health, and the home ministry’s conviction that legalising homosexuality would unleash moral armageddon. The court hearings have been a tragicomedy of errors, as the government floundered on its own absurd arguments, at one point claiming that homosexuality spreads AIDS and therefore it should remain illegal, and then throwing in non sequiturs about widow remarriage — inviting stern rebuke and ridicule from the court.
Gay rights movements have flowered all over the world, and institutions have reluctantly ceded ground, after raging culture wars. Countries like the UK decriminalised homosexuality half a century back, though Victorian-era legacies like Section 377 still retain a vise-like hold on Indian society. It is not only here that the issue has sunk into a mire of intellectual confusion and emotional recoil — in the US, as late as 1986, Bowers vs Hardwick upheld the law penalising homosexuality. But the Indian government’s hypocrisy and patently ridiculous reasoning are themselves the best demonstration of the vacuity of the moral case against scrapping 377.
It is reprehensible that a democracy like ours should be among the last to accept this most fundamental of desires — the need to stop living a lie. The right to love who you love, after all, is far more significant for most people than even voting freely. And it is a human right.
The Indian Express Posted: Sep 29, 2008 at 0025 hrs IST

High Court stays fine imposed on varsity official
Kozhikode: The High Court has stayed the fine imposed on an official of Calicut University by the State Information Commission for the delay in furnishing information under the Right to Information Act.
State Information Commissioner P.N. Vijayakumar had in August found Public Information Officer K.P. Sasikumar, Deputy Registrar of the Planning and Development Wing, guilty under Section 20 (1) (delay in furnishing information) of the Right to Information (RTI) Act. According to the order issued by the Commissioner, he had to remit a penalty of Rs.21,250 within 30 days of the receipt of the order, failing which the amount should be recovered from his salary of the ensuing month or should be recovered by attachment and sale of his movable or immovable properties.
Time factor
As per the RTI Act, the time period to get information is 30 days from the date of application and 48 hours for information concerning the life and liberty of a person.
Failure to provide information within the specified time is deemed refusal. In this case, there was a delay of 88 days. After deducting the days for receipt and despatch of information the delay was calculated to 85 days.
The applicant was the Vypeen-based Sree Ayyankali Cultural Council State general secretary P.K. Bahuleyan, who had sought information on several issues including those relating to the Scheduled Caste/Scheduled Tribe.
‘No wilful negligence’
Mr. Sasikumar had in his reply admitted the delay but also stated that there was no wilful negligence on his part for not furnishing the information within the stipulated time.
Saturday, Sep 27, 2008
Special Correspondent

‘SC judge must probe Godhra’
BANGALORE: Gowda has expressed shock at the Nanavati Commission findings that the Godhra train tragedy was part of a conspiracy. “It’s shocking to see the commission has given a clean chit to Gujarat chief minister Narendra Modi and his administration. “I am disappointed ,” he said. According to him, this judgment will further widen the gap between Hindus and the minorities. He demanded a probe by a Supreme Court sitting judge into the Godhra issue and the violence that followed. Panel for minorities Gowda said he had urged Prime Minister Manmohan Singh to set up a Truth and Reconciliation Commission to bring justice and solace to minorities, as done in South Africa. “I am yet to hear from the PMO” , he said. The commission should hear grievances of minorities who are victims of atrocities since 1992. They should get compensation and the guilty should be punished. “That is the only way to bring them into the mainstream ,” he said. The Truth and Reconciliation Commission (TRC) was a judicial body formed in South Africa after it successfully fought apartheid. Any victim of racist atrocity could approach the RTC to seek justice or compensation . Similarly, those accused of committing atrocities could request amnesty. Gowda did not comment on this aspect of the RTC, though.
29 Sep 2008, 0611 hrs IST,TNN

Denied SC nod, medical colleges get Ramadoss OK
New Delhi, September 29: Anbumani Ramadoss’s Health Ministry last week permitted two private medical colleges to take in more students even though a Supreme Court order, the very same day, had denied permission to both colleges saying their facilities were “inadequate”.
The Ministry on September 26 allowed Index Medical College (Indore) and Rohilkhand Medical College (Bareilly) to enroll students for academic year 2008-09 on grounds that a Central team from Safdarjung Hospital had found both institutions to house “adequate facilities”.
Amitav Ranjan Posted: Sep 29, 2008 at 0903 hrs IST

Media should not conduct parallel trial: SC judge
Pune, September 28 The press should not conduct its own parallel trial or give their evaluation of evidence and foretell the decision of the court, said Justice Dalveer Bhandari, Supreme Court Judge, while addressing the students during a lecture series organised by Symbiosis International University at Symbiosis Vishwabhawan on Saturday.
Bhandari said, “In the Arushi murder case, before the investigations were over the media interviewed the officers. Though what they spoke to the media is not admissible in court, people believed it and her father became the most hated man in the world, a criminal before the verdict was out.”
Bhandari said, “In a free democracy, even the person who had assassinated the Father of the Nation also has right to a fair trial. The media is expected to not invade the rights of an individual or obstruct a fair trial. Their obligation of fair reporting becomes even more important when they know that the judiciary does not respond or the judges by and large do not respond because of the longstanding convention that the Judges speak only through their Judgements.”
He said that the time has come that every court should have a senior person who should assist the press in getting them the certified and other copies of the orders passed by the court, particularly in areas of larger public interest.
Express News Service Posted: Sep 29, 2008 at 0335 hrs IST

Ramadoss nod to medical college despite SC no
NEW DELHI: When it comes to granting clearances to medical colleges, the health ministry under Anbumani Ramadoss is a law unto itself. It can not only ignore a negative rating by Medical Council of India, but also openly defy the Supreme Court. The health ministry moved to allow an Indore college to admit medical students the very day the institution’s plea had been rejected by the apex court. On Friday, SC declined the plea of Index Medical College, Indore, to admit 150 students for 2008-09 as MCI, the statutory body which certifies whether a college be granted permission, said the institution’s infrastructure was inadequate for teaching students. After the court was apprised of MCI’s adverse report by counsel Maninder Singh, a Bench headed by Chief Justice K G Balakrishnan sought the response of the Centre which had also inspected the college. Additional solicitor general Gopal Subramaniam, appearing for the Centre, supplemented MCI’s assessment, saying the central team too had found the infrastructure “woefully inadequate”. He told the Bench that no permission could be granted. Senior advocate Ranjit Kumar, appearing for Mayank’s Welfare Society which runs Index Medical College, had no option but to accept the SC verdict wishing it better luck for the next academic session. The order clearly read, “ASG Gopal Subramaniam, appearing for Union of India, stated that inspection was also conducted but the percentage of the teaching staff in various departments and other facilities were inadequate and the petitioner institution cannot be given permission”. It added, “The writ petitions are accordingly disposed of without prejudice to their rights and to continue to get permission in the next calendar year.” But the petitioner did not have to wait for even a day longer. Within hours of the SC’s thumbs down, the health ministry wrote to the chairman of Mayank’s Welfare Society, saying the college could admit 150 students this year itself by September 30, the apex court mandated last date for admission. The September 26 letter from the ministry, signed by under-secretary N Barik, said, “After careful consideration of MCI inspection reports and central team inspection report, the approval of the central government is granted for renewal of permission for admission of second batch of 150 MBBS students for the academic year 2008-09 at Index Medical College.” This, despite the fact that MCI had conducted four inspections of the college on May 8, May 9, May 27 and August 19 and each time, found the infrastructure inadequate. The executive committee of MCI had considered the inspection reports and recommended to the Centre not to renew permission for the admission of 150 students for 2008-09.

The law laid down by the Supreme Court says, “It is the Medical Council which is primarily responsible for fixing standards of medical education and overseeing that these standards are maintained.” The SC had said in 1998, “It is the MCI which can prescribe the number of students to be admitted in medical courses in a medical college or institution though it is the central government alone which can direct increase in the number of admissions but only on the recommendation of MCI.” The health ministry’s decision, which quotes MCI and Central inspection reports, appears to be in clear breach of Friday’s SC order and its 1998 decision that empowers the Centre to increase the seats only on a recommendation from MCI. In this case, the MCI clearly declined permission for intake of 150 students. dhananjay.mahapatra@timesgroup.com
29 Sep 2008, 0054 hrs IST, Dhananjay Mahapatra,TNN

Judicial system has become a business: SC judge
CHANDIGARH, SEPTEMBER 28 Taking a strong view of the country’s judicial system, Supreme Court judge Justice G S Singhvi on Sunday said the judicial system had become a business in the eyes of the people. Recalling the days of freedom struggle, Sanghvi said there was a time when lawyers fought not for money, but for sacrifice. “Whether it is lawyers or judges, have we forgotten our task towards society?” he asked.
Commenting on the mindset of judges, Justice Sanghvi said the general mindset was how many cases are disposed of in a day and there was a need to redefine their role in society.
Addressing a seminar on ‘Responsibility of Judicial System Towards the Society’, organised by the Intellectual Associations Chandigarh, Justice Sanghvi said due to the harassment suffered by the common man in his struggle for justice, 95 per cent of the people do not go to courts at all, suffering silently. “Those 5 per cent who do go, wait in queue for many years, empty their pockets to hire a lawyer. It’s a nightmare for the common man to travel to a higher court,” he said, adding that this was the reason people had started taking law in their hands.
“Who is going to return the 10 years of a common man’s life who is then acquitted? Recalling an incident when a woman wrote to him that she was granted bail, but unable to furnish a Rs 2000 security, she spent another year in jail. Have we become totally insensitive? Each one of us needs to join hands to contribute towards the society,” he said.
Express news service Posted: Sep 29, 2008 at 0106 hrs IST

Corruption and misconduct in judiciary
‘Restatement of Values in Judicial Life’ (conduct-code for judges) adopted by all the judges of Supreme Court should be prominently embossed on walls/pillars to make consumers of justice aware of possible violation of conduct-code by judges.

JUSTICE S Ravindra Bhat of Delhi High Court has set a noble example by offering transfer of a case listed before him only because his one-time junior was associated with one of the parties involved in the case. Otherwise, there has been incidents where a High Court judge refused to transfer a case even though a party had performed marriage of his grand-daughter from official residence of that judge. It was even more regrettable that the then Chief Justice of India found no fault in the judge’s act. Even Department of Justice (or Injustice) dragged Central Information Commission to the courts to obtain an ex-parte stay on its order to make public appointment-file of the concerned judge for being chief justice of a state, that too when the appointment-file was once returned by the then President of India.

Thanks to RTI Act which has sparked a lively debate in till-now taken-to-be a completely shielded judicial system with victims created by misconduct or corruption by some elements in judiciary can only realise burnt of torture faced by them with dumb mouth in our present totally unaccountable judicial system. Even Supreme Court like many other retired judges has accepted presence of black sheep even in judiciary. After all judges are also from same human society which has both honest and dishonest persons. If chairs of judges could turn even dishonest persons occupying those chairs into honest ones, then breeding of more trees with that special wood could perhaps solve all problems of corruption in the country.

Judges Enquiry Bill presently pending with the government is highly defective because it requires an enquiry-panel of three judges from different high courts to be together to conduct enquiry. Such a process also adversely effects efficiency of high courts because of absence of judges for the enquiry process. It is not understood why government hesitates to accept most accepted and justified approach to have a judicial council with retired Supreme Court judges acting as member-nominees of president, prime minister, opposition leader, chief justice of India and Bar Association of India with Central Vigilance Commissioner as ex-officio member of the high-powered Commission to replace non-practical and cumbersome procedure of impeaching judges. ‘Restatement of Values in Judicial Life’ (conduct-code for judges) adopted by all the judges of Supreme Court should be prominently embossed on walls/pillars of Temples of Justice to make consumers of justice aware of possible violation of conduct-code by judges.

Standards For Higher Judiciary
Never has there been a greater threat to the judiciary than now and what was worse is that the people are taking the daily assault on the dignity’ of the judiciary without a protest.”-Soli Sorabji, during 1980 The judiciary continues to command respect and credibility even after being involved in controversial judgments. The judges have the power, though not the right, to travel within the interstices of the bounds set to judicial innovation by precedent and custom. Our judiciary at times has been near crossing this limitation which has given rise to a proposal seeking amendment in the present Judges Enquiry Act, 1958 and attempts to include it within the purview of The Right to Information Act, 2005.
There is virtually no area of legislative or executive activity, which is beyond the highest court’s scrutiny. The nation expects from the superior Judicial officers, the wisdom of Solomon; the courage of David; the strength of Samson; the patience of Job; the leadership of Moses; the kindness of Good Samaritan; the strategic training of Alexander; the diplomacy of Lincoln; and the tolerance of Carpenter of Nazareth and the intimate knowledge of every branch of natural, biological and social sciences. Judiciary can perform the role of “auxiliary precaution” against the excesses of majoritarian democracy only when men of wisdom are there to work out in democratic institutions in harmony.
Have judges in this country have become tyrannical and irrational; despots in black robes? Whenever the Supreme Court has tried to flout the Constitutional mandate manifestly, demonstrably, consciously or in disregard of law creating a new edifice has never existed in any democracy ever; it has taken a position above the law.
The Constitution expects of the Supreme Court to be shorn of political compulsions and would thus, “declare law” by interpreting the constitutional, legal and surrounding circumstances bereft of any bias. The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and the bounds of their expertise by engaging in policymaking committed to the elected branches or the states. Judicial independence was not designed as, and should not be allowed to become, a shield for judicial misbehaviour or incompetence or a barrier to examination of complaints about injudicious conduct on a political criteria.
Chief Justice K.G.Balakrishnan has observed that it becomes an imminent necessity for the supreme Court to intervene in a timely manner and curtail the violation of fundamental rights and its duty to protect the rights of the people. Its role extends to preserving the supremacy of the Constitution and work to give relief to the people. Even when other organs fail to deliver , it must not get involved in judicial over-reach.
The Supreme Court will continue to transgress into the realm of the executive and Parliament till the health of the executive is not restored by the formation of stable single-party governments and till the health of Parliament is restored through the revival of the two-party system, deregionalisation and decriminalisation of Indian politics. Unless that happens, the Supreme Court will continue to fill up that political vacuum and shall continue to resort to judicial activism and overreach. It may appear as a healthy development.
The strength of any judicial institution must depend on the standards of accountability that it sets. Higher the standard, the more respect from the citizens. Beijing Principles state that judges are entitled to freedom of expression “to the extent consistent with their duties as members of the judiciary”. It is subject to critical appraisal by jurists, legislators, interested organizations and the public.
The Committee for Judicial Accountability, 2002 pointed out that only the setting up of a truly independent and autonomous National Judicial Commission will settle the issue of who will judge the judges and guarantee greater accountability and transparency within the higher judiciary. Judicial accountability if stretched too far can seriously harm judicial independence and thus it is essential that we strike the right balance between the two. The judges of higher echelons should be men of fighting faith with tough fibre not susceptible to any pressure of any sort. As every one else, it must welcome reasonable control from outside in the form of fair and rational criticism of its acts done in judicial capacity.
It is not permissible for the Court to take over the role of statutory bodies or other organs of State and perform their functions.
Bhumika Sharma
Sep 28

Madras HC directs Additional Chief Metropolitan Magistrate to expedite case
The Madras High Court has directed the Additional Chief Metropolitan Magistrate (ACMM), Egmore, to complete the case against Dinesh Dalmia of Chennai, more particularly within six months from the date of framing of charges.Denying bail to Dalmia against whom and three others the CBI had filed a chargesheet on a complaint lodged by the Securities and Exchange Board of India (SEBI), Justice K N Basha, on Friday, said the court was constrained to direct the ACMM to proceed with the matter on a day-to-day basis, giving preference to the case, considering the gravity of the offence alleged against Dalmia and the other accused.The prosecution case was that Dalmia, who was the then Managing Director of D S Q Software Limited, fraudulently got dematerialised unlisted shares in the name of four entities, New Vision Investment Limited, UK, Technology Trust, Softec Corporation and New Vision Investment Private Limited.Later, these shares were sold in the market. The proceeds of the sale of the shares were credited in the accounts of D S Q Holdings Limited, Hulda Properties and Trade Limited and Powerflow Holding and Trading Private Limited, in which Dalmia was alleged to have had an interest. Thereby, he misappropriated and cheated investors.In the process, he was alleged to have made a wrongful gain of about Rs 594 crore.In his bail application, Dalmia said he was awaiting trial in the case since his arrest in February 2006. The prosecution case was based upon documentary evidence, all of which were with the CBI.Hence, the question of tampering with evidence did not arise, he said.The CBI, represented by its Special Public Prosecutor (SPP) N Chandrasekharan, submitted that Dalmia had been most reprehensible and did not inspire an iota of confidence about the reliability of the promises made by him in his bail petition. He deliberately did not make himself available during investigation and absconded from India, the SPP added.Justice Basha said in the event of any other accused prolonging the proceedings under the guise of filing discharge petition or any other petition, the Additional CMM should split up the case against the petitioner and proceed with the trial as expeditiously as possible. UNI

Delhi HC directs CRPF to maintain hierarchy in jobs http://www.indlawnews.com/Newsdisplay.aspx?03ff994e-d19c-4779-8af2-d59ed266dd4f
The Delhi High Court has ruled that hierarchy in jobs must prevail and seniority should be respected.Directing the Director General of CRPF, a division bench of the High Court comprising justices Sanjay Kishan Kaul and M C Garg said, “Under no circumstances can a person wearing a higher rank report to a person of lesser rank or to the one who has picked up the rank after him.” The hierarchy in service was necessary to maintain and for all practical purposes, a person who holds a rank cannot be asked to report to his junior.The bench was hearing a petition filed by a doctor in CRPF Dr N C Saha challenging two official letters of the CRPF Director General (DG) dated September 22, 1999 and October 18, 2001 stating that the annual confidential reports of chief medical officer (NFSG), who is otherwise equivalent to a commandant of a duty battalion, would be written by a person who was junior to him and the other of his transfer to a posting where the administrative head would be a person who had picked up his present rank three years before the commandant of the said unit.According to the counsel for Dr Saha, the doctor joined the CRPF in 1986 as a medical officer as Deputy Superintendent of Police. He was promoted as Senior Medical Officer in 1990, Chief Medical Officer in 1996 and Chief Medical Officer in NFSG in 2002. The medical officers are —- combatised —- in CRPF and wear uniform with rank and badges at par with the general duty officer or unit commandant.The counsel said that Dr Saha was holding a rank of CMO (NFSG) commandant in pay scale of Rs.14300-18300 with effect from April 5, 2002 whereas commandant of 76th Bn. CRPF Mr P K Sharma (where Dr Saha has been promoted now) was promoted as commandant with effect from May 11, 2005 (three years junior to him) and drawing a lesser salary.Dr Saha challenged this appointment as it violated the basic principal of seniority laid down by the Supreme Court. His counsel said that if Dr Saha was made to join 76 Bn, Mr Sharma would become his administrative head as well as administrative reporting officer whereby he would write the ACR (administrative confidential report) which was contrary to law. According to the service rules, the officer writing the ACR should be of a higher rank which would not be so here.Counsels for the CRPF argued that there was a separate Cadre for medical officers, therefore, they got promoted very fast and acquired higher ranks earlier to the serving officers.“What do you mean pick up the ranks? They earn their ranks and are doctors in anyway less respectable then the serving officers? When both the cadres are separate, there is all the more reason for no conflict,” the judge said.UNI

HC stays Raje govt’s ambitious scheme
In a major setback to the Raje government, the Rajasthan High Court has stayed a pet project of Chief Minister Vasundhara Raje.Under the Bhama Shah scheme, her government was to gift 1,500 rupees each to 50 lakh women in Rajasthan. But a PIL filed by a senior citizen claims the scheme launched just three months before elections in the state, is only a ploy to woo votes for the BJP. After the first hearing, the High Court has stayed the implementation of the ambitious scheme. After HC’s decision, Vasundhara Raje’s dream scheme has suddenly turned into a nightmare. “This scheme is totally illegal and unconstitutional. The government has not laid out any criteria for selecting the women nor any rules on who will or won’t get the money. They are misusing public money like a bribe to buy votes from people,” said Karan Pal Singh, lawyer for petitioner.Besides doling out money for women, the government was to pay commission even to its own officials, enrolling beneficiaries under the scheme. But despite the High Court stay, the government insists it is aim was not to garner votes, but only to empower women economically.”We have honest intentions behind this ambitious scheme. You may think it is just to please women. But I feel if a woman is empowered, the whole family gets empowered,” said Vasundhara Raje, Chief Minister, Rajasthan.But in election year, the Raje government has handed out a string of sops, ranging from higher salaries for government employees to raising reservation quotas. But with the High court stalling it, Raje’s pet project for electoral gains has now turned into a huge embarrassment for the BJP, just ahead of elections in Rajasthan. Rajan Mahan
Sunday, September 28, 2008, (Jaipur)

HC orders inspection of six industrial units
Ahmedabad: Gujarat High Court has asked Gujarat Pollution Control Board (GPCB) to conduct spot inspection of six industrial units in Surat, Vadodara, Bharuch and Mehsana and submit a report before October 20. Acting on a petition filed by Taraben Gamit against polluting industrial units, HC on suo motu had directed GPCB in 2005 to inquire into the waste water discharge during 1994 to 1997 by Central Pulp Mills Ltd, now J K Paper Ltd, Surat; Minal Oil & Agro Industries, Mehsana; Sushma Textiles, Bharuch; Deepak Nitrite Ltd, Baroda Dairy and Torrent Gujarat Biotech Ltd, Vadodara. GPCB’s expert committee came out with conclusions that “all six units caused environmental pollution, therefore , they must compensate for such damage on the principle of ‘Polluter Pay’ . The committee recommended they should compensate on basis of 1 per cent of the total production capacity or turnover of the unit during that particular period. But, when the case came up for hearing before a bench of Chief Justice KS Radhakrishnan and Justice MS Shah, the petitioner claimed that the committee’s report didn’t specifically indicate extent of actual damage done by these units. Therefore, the report can’t be accepted. Hence, the court directed GPCB to conduct a fresh inspection of these units.
28 Sep 2008, 0622 hrs IST, Saeed Khan,TNN

CJI: Tough anti terror law needed to curb the menace http://www.indlawnews.com/Newsdisplay.aspx?4b5ebc04-7425-4bda-8a3e-9eadbb0f0fce
Chief Justice of India K G Balakrishnan has said tough anti-terror law is needed to check the increasing incidents of terrorism in the country.The CJI, however, pleaded that a mechanism must be evolved to check the misuse of such draconian law. He also pleaded for setting up of a Federal Agency which can be entrusted with the cases of terrorist violence and violation of Human Rights.Justice Balakrishnan, who yesterday inaugurated an exhibition on the trial of Shaheed Bhagat Singh, Rajguru and Sukhdev in Lahore Conspiracy case in which all three were awarded death sentence, said, ” we are known as one of the best protectors of Human Rights in the world.” The exhibition will be on for a week in the Supreme Court museum.UNI

Will Godhra ghost drive LS poll?
Gandhinagar: The Nanavati-Mehta commission report on Godhra train burning incident has given BJP a new opportunity to use its findings for political ends, with forthcoming Lok Sabha polls in mind. Chief Minister Narendra Modi says, till now BJP was awaiting the commission to tell people full truth of Godhra on fateful February 27, 2002, when 59 kar sevaks were burnt. An MLA remarked how the report “cheered Modi up” . The bigger suspense now is what will be the outcome of the second report in case it is timed well before the Lok Sabha elections to be held next year. Justice GT Nanavati has been giving feelers that the second report would come out before the expiry of his term in December this year. The BJP is already calling the Justice UC Banerjee report on the Godhra train burning “politically motivated” . The Banerjee commission came out with its interim report calling the train burning an “accident” , on the eve of the Bihar assembly polls. Modi had already pulled off the mask of development as he delved into his favourite rhetoric of “pseudo secularists” – a term he used for human rights activists post 2002, when talking of the Nanavati report. Addressing a public meeting on Thursday, he said “they were still not ready to accept the reality that the Godhra train burning incident was a conspiracy” and criticised the Congress and human rights organisations for calling the Nanavati commission report as having come on “expected lines.” The propaganda machinery of the Modi government has begun sending “informal” press notes, got prepared by the state home department, showing how the UPA-appointed Banerjee commission had no locus standi, while the Nanavati commission had Supreme Court backing. The comparison says how the Banerjee commission based its reports only on examination of a “handful of passengers and witnesses” , while the Nanavati commission examined 44,474 persons. Congress, which fears being accused of ‘minority appeasement ‘ if it opposes the Nanavati commission, has decided to use a different strategy . State Congress president Siddharth Patel added, “The fact that the commission has given a clean chit to the government even for post-Godhra riots suggests its intention.” Newly-formed Mahagujarat Janata Party president Gordhan Zadaphia believes that people are “no fools any more” , and they will not accept the “pseudo-Hindutva rhetoric of the BJP.” Modi was home minister when the train burning took place, he says.
28 Sep 2008, 0626 hrs IST, Rajiv Shah ,TNN

HC dismisses IT dept appeals due to delay
Mumbai, September 27 The Bombay High Court recently dismissed 40 appeals filed by the Income Tax (IT) department challenging 40 orders of the IT Tribunal for not filing its papers in time. The IT department cited shortage of stamp papers as reason for the delay. The court dismissed the applications which were filed after a delay of over one year.
The court, however, held that a delay of one year in filing an appeal was not inordinate in case of a department like IT that undertakes “large-scale litigation.”
The court however allowed those applications seeking condonation of delay between six days to 345 days on the ground, that they provided a “reasonable explanation” for the delay in filing appeal.
IT department contended that every time the department receives an order from the IT Tribunal, a scrutiny report is prepared and sent to the higher officials for approval.
Express News Service
Posted: Sep 28, 2008 at 0147 hrs IST

Tribunal for bounced cheque cases
NEW DELHI: In what could give relief to lakhs of litigants involved in cheque bounce cases, Law Commission is likely to recommend setting up of separate tribunals to deal exclusively with these cases. It is believed there are over 38 lakh cheque bounce cases pending in various courts in the country. The report, though ready, would be finalised once the full commission meets next month. Law Commission said separate tribunals would dispose of cheque bounce cases under section 138 of the Negotiable Instruments Act. Commission chairperson A R Lakshmanan said the proposal before the commission suggested that unless speedy justice was delivered to the aggrieved, the purpose of amending the Act in 2002 would be defeated. Under the amendment, such cases are considered serious in nature. It also provides for enhanced punishment by way of penalty and period of punishment. The commission said that since there were not enough judicial officers to deal with such cases, more than 38 lakh cheque bounce cases had piled up.
29 Sep 2008, 0330 hrs IST,TNN

Daily Legal News 28.09.2008

HC to govt: Pay interest of 18% on retiral dues
PATNA: In a significant verdict, the Patna High Court on Friday directed the state government to pay penal interest of 18 per cent per annum on retiral dues of its employees. The retiral dues have not been not paid for the last several years in a number of cases. A single bench presided over by Justice Jaya Nandan Singh delivered the judgment on a bunch of 260 writ petitions of Ram Ekbal Singh and other employees of the state government. It also directed the state government to fix individual responsibility of officials and employees whose lapse led to non-payment of retiral benefits. Justice Singh added that the 18 per cent penal interest would be over and above the statutory interest on retiral dues which the employees are entitled to. This should be calculated from the date of their filing the writ petitions till the payment of the principal amount. Maintaining that it would not be proper to saddle the public exchequer with the extra burden of the interest payment for the fault of the state government, it said individual government functionaries at different levels would have to be held responsible and the interest amount recovered from their salary. “This is because they did not comply with the requirement of law and the instructions issued by the government from time to time as regards payment of retiral dues,” the bench said. For this purpose, the commissioner and secretary of the respective departments should hold an inquiry and fix responsibility. The head of the department – commissioner – should take disciplinary action against those responsible for the lapse, as per a cabinet decision taken by the state government on May 10, 1974, and a circular issued by the state government on October 5, 1993.
28 Sep 2008, 0553 hrs IST, Ravi Dayal,TNN

Thane in danger of losing its institution
Local politician proposes relocation of Thane Mental Hospital to Bhiwandi so that the 72-acre plot may be used for commercial purposes. Hospital says move will violate global mental health policy.Doctors have often equated Mumbaikars’ state of mind to a pressure cooker ready to explode. Now, adding to the stress is a proposal to relocate the city’s closest mental hospital, the Regional Mental Hospital, at Thane.
Vinayak Mahajan, 75, a former clinical psychologist at the Thane mental hospital has filed a PIL in the Bombay High Court opposing the proposal to shift the mental hospital to Bhiwandi, which is 30 kms from Thane. According to a proposal mooted by local politicians and a former Member of Parliament, Prakash Paranjpe, the mental hospital will make way for a suburban railway station and a commercial complex.
The hospital is spread across 72 acres of prime land between Mulund and Thane stations. The green expanse in the heart of the city is an ideal place for psychiatric treatment. Its 1,850 beds often fall short as it is the only state-run mental hospital for Mumbai, Thane, Nashik, Raigad and tribal districts like Nandurbar and Dhulia. Three other government mental hospitals are situated in Yerwada, Nagpur and Ratnagiri.
The PIL has sought the court’s intervention in restraining the state government from shifting the mental hospital, stating that such a move would cause hardship to patients and their relatives. Petitioner’s lawyer, Indrajeet Kulkarni told the court last week that the proposal to relocate the hospital was mooted first in 2003 by Paranjpe seeking allotment of the land to the railways. In June 2007, state minister Ganesh Naik called a meeting to discuss the proposal. The HC had then asked the petitioner to join the railways as a party to petition.
Sources in the state health department said that they had opposed the proposal. The hospital is located strategically in the heart of the city and is accessible both by rail and bus. “Shifting the hospital to a remote area like Bhiwandi will go against the global mental health policy of providing psychiatric care within the community,” the source said. The land for the hospital was donated by Navrottamdas Madhavdas in the 1901.
“In fact, the 107-year-old hospital should be declared a heritage structure,” the source added.
The PIL adds that commercial interests should not be allowed to over-ride public interest. Apart from housing persons with serious mental ailments and providing treatment to visiting patients, the hospital also serves as a training centre for psychiatrists, clinical psychologists, and social workers.
Anshika Misra
Sunday, September 28, 2008 03:16 IST

Court stays Raje scheme for rural poor
Jaipur, September 27 A division Bench of the Rajasthan High Court has stayed the Vasundhara Raje-led BJP Government’s much-hyped Bhamashah Yojna, a financial empowerment scheme for the rural poor.
HC ordered the stay on Friday following a PIL alleging that the scheme was nothing more than a bribe to garner votes from the rural poor in the upcoming Assembly elections. The court has now sought replies from the Finance Secretary and the Chief Election Officer. However, on Saturday, BJP state in-charge, Gopinath Munde, speaking at a BJP executive committee meeting, said they would move the Supreme Court.
Rajasthan Chief Minister Vasundhara Raje had announced the Rs 1,000-crore Bhamashah Yojna in her Budget speech earlier this year. The scheme was launched in July as the Bhamashah Financial Empowerment Scheme. Under the scheme the state Government planned to deposit Rs 1,500 in the accounts of 50 lakh rural families through biometric smart cards along with health insurance.
Mohan Lal Sharma, a Jaipur-based social worker, filed the PIL on Monday. Sharma’s advocate, Karan Pal Singh said a Division Bench of the HC, comprising justices R C Gandhi and R S Chauhan, admitted the PIL and stayed the Government circular introducing the Yojna. “This is an unconstitutional scheme and is more like bribery,” claimed Singh. He added that his client had earlier approached the Chief Election Officer about the same issue, but moved the HC when no action was taken.
Express news service Posted: Sep 28, 2008 at 2352 hrs IST

HC asks government to reply to PIL against minister
The Bombay High Court has sought a reply from the State Environment Ministry on the Public Interest Litigation (PIL) filed by NGO Janhit Manch which alleges that sand-mining and ship-breaking business, in which state Minister Ganesh Naik allegedly has interests, are damaging the coastal ecology and environment. The division bench of Chief Justice Swatanter Kumar and Justice A P Deshpande on Thursday gave “one last chance” to Principal Secretary, Environment and Forests Department to file a reply to the litigation. The government had not filed reply despite earlier orders. “File the reply within six weeks, or keep your secretary present in the court,” the judges said.
Posted On Saturday, September 27, 2008

Hold counselling as per merit: High Court to medical university
Chandigarh, September 27 The Punjab and Haryana High Court on Saturday reprimanded the Punjab Government for framing “arbitrary” policy for holding second extended counselling for BDS without giving equal opportunity to all students.
Refusing to contest the petition filed by Arshdeep Kaur and three other students, the counsel appearing on behalf of the Baba Farid University, Faridkot, submitted that the university is in full support of the students and does not want to harass them.
The matter regarding counselling, which was scheduled for Saturday was stayed by the High Court, came up for hearing today.
On the other hand, the law officers for Punjab government submitted that the notice — issued regarding the second counselling, where students who had already got admission in various colleges affiliated to the University were not allowed to appear — has been withdrawn. Thus, the High Court directed that the counselling be conducted as per merit.
Express News Service Posted: Sep 28, 2008 at 0306 hrs IST

HC slams Centre’s casual response to PIL on gay rights
NEW DELHI: From its claim that private consensual sex between adults of same gender will encourage AIDS, to the clerical mistake in its affidavit, which described widow remarriage as an “offence”, the central government is attracting a lot of flak for its stand on homosexuality before the Delhi High Court. On Friday, HC was surprised to know that a typographical error had led to mention of widow remarriage as a crime in the central government’s affidavit (the government admitted it was an error which would be removed). Pulling up the government counsel for the casual manner in which the Centre fashioned its response to a PIL on gay rights, the court also criticized the government for talking in two voices. While the health ministry has batted in favour of gay rights by pointing out it helps in its fight against AIDS, the home ministry has warned any relaxation in the section will lead to moral degradation of society. Curiously, the government has sought to reconcile the difference in approach by arguing before HC that “homosexuality results in spread of AIDS” and justifying its opposition to the PIL. Relying on National Aids Control Authority (NACO) figures which the authority cited to press for decriminalisation of private consensual sex between adult gays, additional solicitor general P P Malhotra argued otherwise. Malhotra claimed since AIDS was rampant amongst gays, it showed homosexuality was the cause for this disease and if legalised, AIDS cases would shoot up. The government’s stand has not only been viewed with skepticism by the court itself, but also been greeted with criticism by the legal community. “The government stand is not always understandable. Personal biases creep into such issues and less research is done. The basis on which they are giving such an analogy is very questionable,” wondered advocate Manoj Taneja, saying the government can’t be stuck with antiquated laws. “Gays are only saying that private consensual sex can’t be treated as a crime. A gay person is born with a certain proclivity. You can’t punish a inborn trait, just like one can’t punish a disability. Is attaching criminality to a personality trait justified? The government stand is completely off the mark. The section is a dead letter,” maintains noted criminal lawyer K T S Tulsi, trashing the arguments of the central government.
28 Sep 2008, 0005 hrs IST,TNN

Indian high court hears of gay rights and wrongs in case against Section 377
New Delhi — Despite earlier hints that it might be willing to scrap a colonial-era law called Section 377 that criminalizes homosexuality, the Indian government on Friday said in a court hearing that it will not do so.
Calling homosexuality a “social vice” and “a reflection of a perverse mind”, a solicitor representing India’s central government told the Delhi High Court that the government is opposed to any change in the law.
The Indian penal code at present defines gay sex as an ‘unnatural offence’ and section 377 provides a punishment of up to life imprisonment for indulging in it.
“If we scrap section 377 of the Indian Penal Code, then it will disturb the law and order situation and might create unnecessary problems in the society,” a solicitor speaking for the government told the Delhi High Court.
The court was finally hearing a case brought more than seven years ago by Naz Foundation.
Earlier in the week the two justices hearing the case had compared criminalization of homosexuality to India’s old caste system.
At Friday’s hearing, Chief Justice A. P. Shah and Justice S. Muralidhar were both critical of inconsistencies in affidavits submitted for the government by home ministry and health ministry, Times of India reports.
An affidavit from the home ministry argued, “Indian society strongly disapproves of homosexuality and the disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private.”
But an affidavit filed by National Aids Control Organisation (NACO), which is associated with the health ministry, urged repeal of the parts of the section that criminalize private adult sexual behavior.
“Section 377 demeans a gay man. It silences a gay man into accepting the discrimination against him. He will not come out to declare his orientation,” the NACO contended in its affidavit, according to Sify News.
NACO also argued that laws against gay sex contribute to the country’s rising HIV epidemic by “pushing the persons suffering from HIV underground.”
The justices asked the government’s counsel to explain the conflicting affidavits.
“Two affidavits have been filed by the two ministries. The two ministries are speaking in two voices. What is the stand of the government? Are you clear about the stand the central government is taking on the issue,” the bench demanded to know.
Additional Solicitor General PP Malhotra insisted that the government was firmly opposed to any relaxation of the law, saying that changing the law would lead to “breach of peace.”
“Homosexuality is a social vice and the state has the power to contain it,” Malhotra argued. “If it is allowed, then evils of AIDS and HIV would further spread and harm the people. It would lead to big health hazard. It would degrade moral values of the society.”
The justices heard detailed arguments earlier in the week from Anand Grover, representing Naz. The main “prayer” or relief Naz is asking for is that Section 377 “read down” to exclude consenting sexual acts between adults, Express Buzz reports.
Grover explained that the petitioners were asking for a “reading down” of the law rather than a complete repeal of the section. He said repeal would lead to a lacuna in existing laws when it came to non-consensual sex, specifically child sexual abuse.
At Friday’s hearing, the justices sharply questioned the government’s counsel about why he seemed to ignore the more limited purpose of the case.
“We are concerned about homosexual acts among consenting adults in private here,” the bench told Malhotra.
“Homosexuality is a social vice and the state has the power to contain it,” Malhotra contended.
On Thursday, advocate Shyam Diwan, appearing on behalf of the Naz, argued that morality cannot triumph over constitutional rights.
He added that LGBT people in the country do not have full “moral” citizenship and are being treated as second-class citizens, Sify News reports.
“The moral argument cannot triumph over constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex,” Diwan said.
While questioning Grover, Shah, the chief justice, disagreed with that assertion, “To say that public morality cannot be a source of criminal law is not correct,” Shah said.
Grover replied that the rights of minorities must be protected in a democracy, and the state needed to show what the legitimate aim of the law was to enter the zone of privacy, Express Buzz reports.
Grover had argued that criminalizing homosexuality was a violation of the right to dignity that has been read into the right to life guaranteed in the Indian Constitution.
In comments, both justices compared discrimination based on sexual orientation to caste-based discrimination, Express Buzz reports. “If you belong to the ‘untouchable’ category, you suffer a disadvantage in every aspect of life. The effect of criminalisation (of homosexuality) is like treating you as a member of a scheduled caste”, said Chief Justice Shah.
Source: Final hearings of the homosexuality case Express Buzz Homosexuality a criminal offence: Govt tells court Sify News Centre: Homosexuality is a reflection of a perverse mind Times of India Centre against scrapping of law outlawing homosexuality Indian Express
Posted by NewsEditor on Sep 27 2008, 04:07 PM
Source: Times of India, Express Buzz, Indian Express, Sify News
Qnews 15 hours ago

SC notices to Gujarat
NEW DELHI, Sept 26: The Supreme Court today issued notices to the Gujarat government on a petition seeking stay against publication and circulation of the Nanavati Commission’s preliminary report that called the Godhra carnage a conspiracy and gave a clean chit to chief minister Mr Narendra Modi, his Cabinet colleagues and Gujarat Police officers for their alleged involvement in the 2002 Gujarat communal riots. A Bench of Chief Justice KG Balakrishnan and Justice Sathasivam, issued notice to the Gujarat government on the petition filed by the People’s Union for Civil Liberties (PUCL) but did not stay proposed action on the report saying the matter would be heard on 13 October. Legal Correspondent

SC to hear plea on smoking ban on Sept 29
NEW DELHI, Sept 26: The Supreme Court will hear on September 29 the appeal of the Union Government against a Madras High Court order restraining the government from implementing its notification banning smoking in public places from October 2. A bench of Chief Justice Mr KG Balakrishnan and Justice P Sathasivam today fixed the date when Additional Solicitor General Mr Gopal Subramanium mentioned the matter for urgent hearing. Mr Subramanium contended that since the birth anniversary of Mahatma Gandhi is only a week away, the order of the High Court should be stayed, so that the government’s 30 May notification, banning smoking in public places with effect from October 2, can be implemented. n SNS

Move SC if you don’t want Kosi panel: Bihar to Centre
Patna, September 27 The Bihar Government on Saturday dared the Centre to move the Supreme Court against its “right” to set up a judicial commission to look into the causes of Kosi breaches. It was responding to Union Water Resources Ministry’s observation, questioning the legality of the judicial commission it had set up under retired Patna High Court Judge Rajesh Walia on September 9.
Water Resources Minister Bijendra Prasad Yadav told The Indian Express: “We are deeply anguished at the discouraging and contradictory correspondence relating to the commission from the Centre”. He said it was well within the state’s power to appoint a commission under provisions of the Commission of Enquiries Act, 1952.
Yadav said the Union Water Resources Department Secretary, in a letter to the Bihar Irrigation Secretary on September 24, had questioned the locus standi of the judicial commission. The letter read: “The Kosi agreement is a bilateral agreement between two sovereign states, India and Nepal, and Bihar is not a party to either 1954 or the 1966 agreement.” The Centre suggested that it would first discuss the matter with Nepal during the forthcoming (September 29 to October 1) meeting of the joint committee on water resources at Kathmandu.
However, Yadav said there was no question of “discontinuing” the commission. “If the Centre challenges the legality of the commission, it is free to move the SC. We are tired of the frequent political spats.” He wondered why the Centre did not cite the “international law” provisions when the commission was set up.
Santosh Singh
Posted: Sep 28, 2008 at 2355 hrs IST

HC relief for ‘illegally’ detained man
Mumbai: The Bombay high court on Friday directed jail authorities to release Rajan Gamre, a robbery suspect. The court was hearing a plea filed by his mother Shantabai which stated that Gamre was picked up from his Kalina home in March by officials of the Thane crime branch and detained illegally for a month. Public prosecutor Satish Borulkar said following the HC order, Rajan was released on Friday. The HC rapped the police and jail authorities for not informing the MCOCA court that the suspect’s custody was not required since there was no evidence of his involvement in the robbery. The matter is kept on Tuesday to enable the police to suggest a compensation amount which they may have to cough up.
27 Sep 2008, 0541 hrs IST,TNN

HC to lower courts: adhere to norms
Bangalore: Taking exception to the delay in disposal of cases on account of wanton adjournments, the high court has directed lower courts to strictly adhere to norms specified in civil procedure code while granting adjournments . “It is because the courts are tolerating these tendencies , the entire judicial system is ridiculed. People are afraid of coming to court,” Justice N Kumar observed in his order. “Before criticizing the snail’s pace of the judicial process, litigants, lawyers and others should know the real reasons behind it. Dilatory tactics on the part of the litigant and conduct of a handful of members in the Bar are the major causes of the delay. Litigants want to dictate the course of litigation, with assistance from their attorney. The judge is rendered helpless,” Justice N Kumar observed in his order. The judge directed civil courts to post the case for appearance of parties after pleadings are completed. The framing of issues should be done in open court to save time. Judges should maintain a diary to keep tabs on the number of cases that can be handled and no adjournments should be given once trial begins. If any adjournment is sought, the other party must be duly compensated. Once trial is over, arguments are to be heard immediately and continuously and the judgment has to be pronounced within the stipulated time, the judge said. Land for BMIC: status quo ordered A division Bench has ordered stay on further proceedings pursuant to land acquisition notifications of 2003-04 in respect of 7 acres and 22 guntas of land at Thotaguddadahalli in Dasanapura hobli, Bangalore North, acquired for the BMIC project. The Bench also directed appellant M Nagabhushan to maintain status quo on the land by not altering it till disposal of the petition. Food to Telgi as per doctor’s chart Justice Arali Nagaraj has directed the Central Prison authorities to serve food as per the diet chart given by doctors to Abdul Kareem Telgi, main accused in the stamp paper scam. Telgi, who claims to be suffering from diabetes and is also an HIV patient , challenged the August 7 verdict of the special court rejecting his plea for homely food on grounds that he is a prisoner. He had moved the special court requesting for homely food and telephone facility after he was arrested in November 2001. The court granted telephone under section 30 of the Karnataka Prison Rules. Notice to BBMP A division Bench has ordered notices to the BBMP on PIL seeking eviction of illegal occupants from a civic amenity site in Rajajinagar IV Block. The petitioners claimed that Savitri , Mahadeviah and Shivakumar have encroached upon 3,000 sqft area by unauthorisedly building a temple, and the authorities have not acted so far despite earlier court orders. toiblr.reporter@timesgroup .com
27 Sep 2008, 0448 hrs IST,TNN

HC scraps ‘flawed’ percentile system of admissions for XI
MUMBAI: The Bombay high court on Friday threw out the controversial percentile system that the state government had devised to ensure that SSC students got a ‘level-playing field’ in the race for a junior college seat. Justice J N Patel, the third Bombay HC judge to hear the case after a two-member division bench gave a split verdict, said the government decision was “hurried, taken with no representation from the ICSE and CBSE boards… and flawed”, ICSE counsel Naushad Engineer told TOI. He also said the government had gone by public sentiment and its stand was not based on data. The government order was illegal and “hurt (students’) right to equality”, the judge added, according to Engineer. The state decision had gone against the right to equality, Patel pointed out, adding that he found the government decision promoting “mediocracy over meritocracy”. The decision, however, brought little solace to thousands of students from other boards who were forced to give up dreams of studying in some of Mumbai’s better-known junior colleges. The verdict will not affect admissions, which are already over this year, and will only affect admissions from the next academic year. But that failed to be a dampener for 16-year-old Francisco Luis, who had petitioned the court against the percentile system. The ICSE passout said the system—announced after the process for admissions to junior colleges had already started this year—gave SSC students a headstart over students from other boards. “I am happy. We struck a blow against the political establishment. I am not upset that I have been affected; at least, my brother and sister and all future batches will gain admission on the basis of only merit,” he said on Friday. State school education secretary Sanjay Kumar refused to comment on the issue till he got a final copy of the order. In an interview that appeared in TOI on July 19, he had said: “I am thinking of 15 lakh students who will benefit, not just 10,000. It is unfair to say a lot of people have been affected; have you carried out a plebiscite?” Activity High School principal and secretary-treasurer of the association of principals of ICSE schools in Maharashtra, Perin Bagli, said truth had eventually prevailed. The association had joined Luis’s petition against the government order. Principals of SSC schools were, predictably, despondent. Cumballa Hill School principal Yasmin Chagla said the percentile system had proved to be a great leveller. “A large number of SSC students come from rural and not-so-wealthy families. I don’t think a level playing field exists now,” she said.
27 Sep 2008, 0418 hrs IST,TNN

Anti-terror law should have a mechanism to check misuse: CJI
New Delhi, Sep 27 (PTI) A tough anti-terror law could be helpful in tackling militant activities but there should be a mechanism to prevent its misuse, Chief Justice of India K G Balakrishnan said here today while favouring a federal agency to deal with such cases.”A draconian law is likely to be misused,” the CJI said adding that “it is for Parliament to decide what type of law the country needs”.He said a tough anti-terror law would only be successful if it embodies a mechanism to prevent its misuse.The CJI said the problem for such laws are at the implementation level vis-a-vis human rights violation.”We are known as one of the best protector of human rights in the world,” he said on the sidelines of a programme at an exhibition on the trial of Bhagat Singh at the Supreme Court Museum.Justice Balakrishnan favoured setting up of a federal agency to deal with the terror activities.”Setting up of federal agency would be good as in the inter-state crimes like terrorism one investigating agency could do a better work,” he said adding that though CBI is already there but a separate federal agency could have an altogether different character. PTI

Cash Scam: 3-Judge panel arrives tomorrow
Chandigarh, September 26The three-Judge committee, constituted by the Chief Justice of India for looking into the cash-at-judge’s doorstep case, is apparently initiating its probe from the very first link for establishing the chain of events.
Justice Nirmaljit Kaur, on whose behest the first information report was registered by the Chandigarh police last month, is among the first ones the committee members will meet.
The panel is scheduled to arrive in the city on Sunday. Arrangements have been made for the stay of the committee members at the UT guest house.
It is learnt that the committee has sought the assistance of Justice Nirmaljit Kaur of the Punjab and Haryana High Court to unravel the truth behind the scam that surfaced on August 13 after Haryana law officer Sanjeev Bansal’s clerk erroneously delivered Rs 15 lakh at her house.
A team of the Central Bureau of Investigation (CBI), now looking into the case, has already taken Justice Nirmaljit Kaur’s help in the matter, as it was her clerk Amrik Singh who had formally submitted a complaint in the matter to the police.
The committee consists of Allahabad High Court Chief Justice Hemant Laxman Gokhale, Jammu and Kashmir High Court Chief Justice K.S Radhakrishnan and Justice Madan B. Lokur of the Delhi High Court.
Available information suggests Justice Gokhale committee, during its three-day visit to the city, will examine Justice Nirmal Yadav, whose name had surfaced in the statements of one of the accused in the case.
Already, Justice Nirmal Yadav has gone on leave after Chief Justice Tirath Singh Thakur took serious note of the scam. Justice Yadav is unlikely to have gone on leave voluntarily, whatever her claims.
The committee is also associating in its inquiry prime accused Sanjeev Bansal and his clerk, along with co-accused in the scam Ravinder Singh and Rajeev Gupta. Bansal is currently in judicial custody and his bail application is pending, while Ravinder Singh’s has been remanded in the CBI custody till Saturday.
Arrangements are being made to ensure their production before the committee by the CBI. It is believed that a special team of CBI from Delhi arrived in the city this morning to facilitate the probe by the committee.
The panel has been thought of by the CJI, Justice K.G. Balakrishnan, as an internal mechanism to inquire into the serious charges of corruption that have come to the surface involving a judge of the high court. The members will be submitting their report to the CJI at the earliest possible.
Saurabh MalikTribune News Service

PM calls for introspection on judicial appointments
NEW DELHI: With judiciary reeling under the embarrassment of allegations of corruption facing several of its members, Prime Minister Manmohan Singh on Thursday called for “introspection” on judicial appointments. Singh, who was speaking at the launch of a book “Judicial Reflections of Justice Bhagwati”, was quoted by agencies as saying that the time has come for “introspection on judicial appointments”. The remark coincided with a spike in concern over corruption in judiciary over the past month or so when many skeletons have tumbled out of the judicial cupboard. It was not clear whether by calling for introspection Singh was, besides lamenting the slide in standards, also calling for a fresh look at the existing scheme of judicial recruitments. Singh’s concern about the decline in quality of judicial recruitments came off clearly. The agency report said that PM, while referring to the impressive credentials of Justice P N Bhagwati, said that a review of recruitments was necessary to ensure that judicial appointments at all levels lived up to the standards associated with the former CJI. “There is no doubt that the personal record and reputation of those who sit in judgement does not shape our view of the judicial system,” the agency report quoted the PM saying. This was not the first time that the PM had expressed his anxiety about the falling standards. This time, however, they may have greater resonance.
12 Sep 2008, 0041 hrs IST,TNN

Article: Judiciary comes under the scanner
The judiciary comes under the scanner over charges of corruption and misconduct.
Justice K.G. Balakrishnan, Chief Justice of India (seen here with Justice A.R.Lakshmanan, Chairman of the Law Commission, to his left), wrote to Prime Minister Manmohan Singh recommending constitutional proceedings against Justice Soumitra Sen for his removal. He also became the first Chief Justice of India to permit an investigating agency to register a criminal case against Judges of a High Court when he permitted the CBI to interrogate two Judges of the Punjab and Haryana High Court in the cash-for-Judge scam
IN an unprecedented move, the Chief Justice of India, Justice K.G. Balakrishnan, wrote to the Prime Minister, Manmohan Singh, recommending that the proceedings contemplated by Article 217(1) read with Article 124(4) of the Constitution be initiated for removal of Justice Soumitra Sen, Judge, Calcutta High Court.
Earlier, an in-house committee, in a report submitted to the Chief Justice of India on February 1, recommended that Justice Sen be removed from office. The committee comprised Justice A.P. Shah (then Chief Justice, Madras High Court), Justice A.K. Patnaik (Chief Justice, Madhya Pradesh High Court) and Justice R.M. Lodha (Judge, Rajasthan High Court).
Under Article 217(1) (b) of the Constitution, a Judge of the High Court may be removed from office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court.
Article 124(4) states: “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”
The procedure for removing a Judge involves three stages. In the first stage, under the Judges (Inquiry) Act, 1968, a notice for presenting an address to the President for the removal of a Judge has to be signed by 100 members of the Lok Sabha, and submitted to the Speaker. A similar notice can also be signed by 50 members of the Rajya Sabha and submitted to the Chairperson of the Rajya Sabha. If the Speaker or the Chairperson admits the motion, he must appoint a three-member committee comprising the sitting Chief Justice of India or a sitting Judge of the Supreme Court, a sitting Chief Justice of a High Court, and an eminent jurist.
In the second stage, the committee takes over the investigation into the charges of misbehaviour against the Judge. If the committee reports that the Judge is not guilty, the motion pending in the House shall not be pursued. It is only if the Committee finds the Judge guilty of any of the charges of misbehaviour that Article 217(1)(b) or 124(4) comes into play, in the third stage.
Jurisdictional issues
It is instructive to recall the role of an in-house committee constituted by Chief Justice Sabyasachi Mukherji when audit reports in 1990 carried detailed charges against Justice V. Ramaswami regarding improper use of funds by him as the Chief Justice of the Punjab and Haryana High Court, before his elevation as a Supreme Court Judge.
This committee, comprising three Supreme Court Judges, inquired whether or not, in the interest of the administration of justice, Justice Ramaswami should continue as a Judge of the Supreme Court. At the beginning of the inquiry itself, Justice Ramaswami told the committee that it had no jurisdiction to hold an inquiry into his conduct. The committee, nevertheless, found that there was no prima facie case before it since inquiries by competent authorities were going on.
Ramaswami maintained a studied silence over the charges against him. Subsequently, the inquiry committee set up by the Speaker of the Lok Sabha found that the charges against him were substantially true. Parliament, however, failed to remove him from office because the then ruling party, the Congress, had orally directed its members to abstain from voting on the motion in the Lok Sabha on May 11, 1993, thus leading to the defeat of the motion.
In contrast, Justice Sen not only subjected himself to the jurisdiction of the in-house committee but made submissions to it in his defence.
The Supreme Court’s in-house committee draws its legitimacy from the Supreme Court’s judgment in C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Others (SC 339, Judgements Today, 1995(6)). The in-house procedure contemplated in that judgment was seen as an answer to the yawning gap between proved misbehaviour and bad conduct inconsistent with the high office on the part of a non-cooperating Judge/Chief Justice of a High Court. The court had believed that the latter could be disciplined by self-regulation through in-house procedure. “This in-house procedure would fill in the constitutional gap and would yield salutary effect,” the Bench had suggested.
The charges
Justice Soumitra Sen was a practising advocate of the Calcutta High Court before he was appointed a Judge of that High Court on December 3, 2003. The charges against him pertain to his conduct as Receiver before his appointment as Judge.
A Receiver is an impartial person appointed by the court to collect and receive the rents and profits of land or personal estate, and to protect, preserve and manage property during the pendency of a suit. A Receiver is an officer of the court and subject to its orders.
The in-house committee constituted by the Chief Justice of India has in its report accused Justice Sen of breach of trust and misappropriation of Receiver’s funds for personal gain.
In 1983, Steel Authority of India Limited (SAIL) filed a money suit in the Calcutta High Court against Shipping Corporation of India Limited, and others, seeking that it make an inventory of fire bricks lying at Bokaro Steel Plant and sell them. The High Court, on April 30, 1984, appointed Soumitra Sen as a Receiver to make an inventory of these goods, which had been imported and then rejected by SAIL, and to sell them and hold the sale proceeds to the credit of the suit.
The court directed Soumitra Sen to deduct 5 per cent of the sale price towards his remuneration as Receiver, keep the balance in a separate bank account in a bank of his choice and to hold the same free from lien or encumbrances, subject to the further orders of the court.
The in-house committee found that Soumitra Sen did not have honest intention, since he mixed the money received as Receiver and his personal money and converted the Receiver’s money to his own use; and that there had been misappropriation (at least temporary) of the sale proceeds.
On April 10, 2006, Justice Kalyan Jyoti Sengupta of the High Court, on a petition from SAIL, directed Justice Sen to repay Rs.57,65,204, which included interest amounting to Rs.26,25,644 (since the purchase consideration was Rs.31,39,560). In his judgment, Justice Sengupta made several adverse remarks against Justice Sen. After paying the entire money as directed, Justice Sen went on leave. After the expiry of the leave, no judicial work was allotted to him.
Meanwhile, a Division Bench heard his appeal against Justice Sengupta’s judgment and found that there was no material to hold that he had misappropriated any amount or had made any personal gain. The Division Bench directed deletion of all observations made against Justice Sen in Justice Sengupta’s order. Interestingly, none of the parties to the litigation contested the proceedings before the Division Bench or made any allegations against Justice Sen.
The Chief Justice of India’s letter to the Prime Minister recalls this factual matrix but does not explain why the Division Bench’s judgment could not be considered final. Legal experts say it is because the Division Bench’s judgment was not appealable and was seen as collusive that the Supreme Court had to step in, by constituting the in-house committee. Justice Sen’s critics point out that he ought to have returned the money held by him as Receiver before he was appointed as a Judge. But sources close to Justice Sen said the money held by him as Receiver was not his personal property irrespective of the place he had kept it and could only be returned after proper adjudication and a direction by the court. The sources also added that there was no mala fide intention on Justice Sen’s part and there was absolutely no proof whatsoever that he utilised any part of the purchase consideration for personal gain.
In a note given to Frontline, Justice Sen’s counsel hinted that the in-house committee exceeded its jurisdiction. Under the procedure by which it was constituted it could only inquire into Justice Sen’s conduct after he became a Judge, counsel said.
The Chief Justice of India has forwarded a copy of the committee’s report to Justice Sen. A fair appreciation of the case for Justice Sen’s removal from office may have to wait until this report is made public.
Other cases
The Chief Justice of India’s letter to the Prime Minister indicates his keenness to strengthen the people’s confidence in Judges at a time when serious cases of judicial corruption have cast their shadow on the credibility of the higher judiciary.
Chief Justice Balakrishnan also happens to be the first Chief Justice of India to grant permission to an investigating agency to register a criminal case against Judges of a High Court. This power, conferred on the Chief Justice of India in 1991 in the Justice K. Veeraswami case, remained unused all these years even though several cases of corruption within the higher judiciary had come to light.
Chief Justice Balakrishnan allowed the Central Bureau of Investigation (CBI) to interrogate two Judges of the Punjab and Haryana High Court, Nirmaljit Kaur and Nirmal Yadav, in connection with the cash-for-judge scam. A law officer sent Rs.15 lakh to Justice Nirmaljit Kaur’s official residence and later claimed that it was meant for Justice Nirmal Yadav and had been delivered to Justice Kaur by mistake.
Though intended to protect a Judge from frivolous prosecution and unnecessary harassment, the power also bestowed on the Chief Justice of India a great deal of discretion. In the Justice K. Veeraswami case, the Supreme Court laid down that no criminal case can be filed against a Judge or Chief Justice of the High Court or Judge of the Supreme Court without the consent of the Chief Justice of India.
In the Ghaziabad provident fund (PF) scam, involving 34 Judges belonging to lower courts, High Court and the Supreme Court, a misappropriation of Rs.23 crore from the PF of Class III and IV employees was detected on the basis of the confessional statement of Ashutosh Asthana, a Ghaziabad court official. He reportedly confessed that he used the PF funds to buy expensive gifts for Judges and their families. Although the police had secured vouchers and delivery receipts as preliminary evidence, the Chief Justice of India permitted the police to interrogate the Judges only through questionnaires. However, with the Uttar Pradesh Police pleading its helplessness to investigate further the case with all its ramifications, the Supreme Court conceded the State government’s request to hand over the case to the CBI.
The outcome of these cases will be keenly watched as they have a bearing on the accountability of the higher judiciary.
Saturday, September 27, 2008

Supreme Court won’t restrain Gujarat from acting on report
New Delhi: The Supreme Court on Friday refused to restrain the Gujarat government from circulating, publishing and acting on the Nanavati Commission report on the Godhra train carnage.
(The commission, appointed by the State government, said the February 27, 2002 fire aboard coach S-6 of the Sabarmati Express at the Godhra station was a “pre-planned conspiracy by local Muslims.”)
A Bench, consisting of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam, however, issued notice to the government on a special leave petition filed by Citizens for Justice and Peace against a Gujarat High Court order refusing to pass an interim order restraining it from placing the report in the Assembly.
Senior counsel Rajinder Sachar said there was no provision under law for a commission to submit an interim report particularly when there were several terms of reference. He said the High Court earlier restrained the tabling of the Justice Banerjee Committee report on the same issue in Parliament.
(The Banerjee Committee, appointed by Railway Minister Lalu Prasad, said the fire was “purely accidental.”)
Mr. Sachar argued that the Nanavati Commission had named the conspirators and if the government arrested them, communal harmony would be distrubed.
When Justice Balakrishnan asked counsel whether the commission had given any specific direction to the government or recommendations for implementation of the report, Mr. Sachar said “We have not gone through the report.”
Justice Balakrishnan said: “It would not be possible to pass an interim order without hearing the Gujarat government.” The Bench then posted the matter to October 13.
The petitioner said tabling one part of the Nanavati report and making it public was detrimental to the public interest. It questioned the commission’s action in withholding the report on the “dubious role” of the State government in supporting the accused involved in the carnage against the minority community, which followed the train fire.
Saturday, Sep 27, 2008
J. Venkatesan

HC dismisses IT dept appeals due to delay
Mumbai, September 27 The Bombay High Court recently dismissed 40 appeals filed by the Income Tax (IT) department challenging 40 orders of the IT Tribunal for not filing its papers in time. The IT department cited shortage of stamp papers as reason for the delay. The court dismissed the applications which were filed after a delay of over one year.
The court, however, held that a delay of one year in filing an appeal was not inordinate in case of a department like IT that undertakes “large-scale litigation.”
The court however allowed those applications seeking condonation of delay between six days to 345 days on the ground, that they provided a “reasonable explanation” for the delay in filing appeal.
IT department contended that every time the department receives an order from the IT Tribunal, a scrutiny report is prepared and sent to the higher officials for approval.
Express News Service Posted: Sep 28, 2008 at 0147 hrs IST

Nanavati Commission has forgotten the real story of the Gujarat Carnage
· The Nanavati Commission has conveniently misunderstood Mr. Modi and his Government without examining them.· Mr. Modi and his Government got Full Marks without appearing in the Exam of the Nanavati Commission.· We strongly feel that the Nanavati Commission has forgotten the real story of the Gujarat Carnage 2002, publicly admitted and proudly advocated by the Mr. Modi and his BJP. – Rohit Prajapati & Trupti Shah – Activists, Gujarat[. . .]http://www.sacw.net/article45.html
Posted by c-info at Saturday, September 27, 2008
September 27, 2008
Press Release

Daily Legal News 27.09.2008

Terrorists know they will get legal support from Govt’
New Delhi, September 27: With yet another blast rocking the national capital, BJP demanded the resignation of Union Home Minister Shivraj Patil saying he has no right to be in office in the wake of continuing terror attacks in the country.
V K Malhotra, BJP’s Chief Ministerial candidate for Delhi who visited the blast site in South Delhi’s Mehrauli, also demanded convening of an early session of Parliament to discuss the security scenario in the country.
Attacking Patil, the BJP leader said, “instead of changing his clothes thrice, he should have taken actions like discussing the matter with public. Instead of doing all that, money is being collected for terrorists, demonstrations are being held for them.”
He said the security scenario has worsened and now terrorists do not have any fear in carrying out strikes in the country.
“The only ones who are scared are the public. The terrorists know that. Even if they get caught, they will be getting money and legal support from the government,” he said.
Posted: Sep 27, 2008 at 1720 hrs IST

Mohammed panel can’t dictate: HC
KOCHI: The Kerala High Court on Friday held that the Admission Supervisory Committee (Justice P A Mohammed Committee) had no power to direct the managements of private medical colleges to give admission to students.
Allowing a writ petition filed by the Kerala Christian Medical College Managements’ Federation, Justice V Giri held that if the committee was of the opinion that the admissions made by the managements were irregular, it could only recommend to the government for appropriate action.
The court also directed that all complaints pending before the committee regarding admissions would stand closed.
The court quashed the order passed by the committee to give admission to four students, who allegedly were denied admission for non-appearance during allotment on account of the alleged fault in the Federation’s website.
The Federation, however, consented to admit the four students, Nissam of Kakkanad and three other students, who had also filed writ petitions, provided they are prepared to pay the fees fixed by the managements as per the prospectus.
Express News Service
27 Sep 2008 11:07:00 AM IST

Rajasthan: Raje receives a setback, HC seeks explanation on eviction of people around CM’s house
Jaipur: Rajasthan high court has stayed the BJP government scheme called Bhamsha Yojana, the scheme for the empowerment of the rural people

A PIL was moved in the court against the scheme on the pretext that the BJP was trying to bribe the poor to vote for their party trough this scheme. While admitting the pill, the court has issued a stay order on the scheme.

The division bench of the court has also sought replies from the state government and the election commission in this regard.

HC seeks explanation on eviction of people around CM’s house

The state government has been asked to explain the forceful eviction of people from the Sukham Garden area near the CM’s house.

Acting on a PIL filed in this connection, the court has sought an explanation from the state administration. It was stated that the eviction was done without any proper orders from the magistrate.
(Dr. Lalit Kishore)
Publication Date 27/9/2008 10:39:47 AM(IST)

Explain eviction near CM’s house, HC to state
JAIPUR: A division bench of Rajasthan High Court on Friday sought an explanation from the state officials about the alleged forceful eviction of 44 people residing in Kothi no. 7, popularly known as Sukham Garden, near the CM House. Six families had been evicted, allegedly forcefully around 2 am some days back. The state authorities have been asked to file their reply on the controversial eviction by October 13 when the court will hear the matter again. This interim order was passed on a PIL filed by one Kurshid Ahmed Khan, a practising lawyer. It has been alleged in the PIL that 44 members of six families were forcefully evicted from their houses located at Kothi no. 7 at the instance of some powerful people. Now they have been sent to Baksawala village near Sanganer. On the basis of certain media reports, it has also been alleged that a few influential people of the state are involved in this scam. The bench has issued showcause notices to the chief secretary, principal secretary, home department, district magistrate and collector Jaipur, DGP, SP, CBI, SP (South), and SHO (Sodala). It was alleged by the petitioner’s counsel that the state administration is fulfilling the illegal objective of the person behind the curtain and dishonouring the rule of law. “In case of one Khadak Singh, the Supreme Court had ruled that the state authorities and the police cannot move into the house of any person after midnight without taking permission from the city magistrate. But here, the police and state officials acted in haste and an unjust manner to dispossess 44 members of the families in a high-handed manner in the late hours without any proper permission from the magistrate,” said Rajendra Sharma, the counsel for the petitioner.
27 Sep 2008, 0502 hrs IST, Abhinav Sharma,TNN

Court won’t restrain Gujarat from acting on report
Tabling just one part is detrimental to public interest: PIL
New Delhi: The Supreme Court on Friday refused to restrain the Gujarat government from circulating, publishing and acting on the Nanavati Commission report on the Godhra train carnage.
(The commission, appointed by the State government, said the February 27, 2002 fire aboard coach S-6 of the Sabarmati Express at the Godhra station was a “pre-planned conspiracy by local Muslims.”)
A Bench, consisting of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam, however, issued notice to the government on a special leave petition filed by Citizens for Justice and Peace against a Gujarat High Court order refusing to pass an interim order restraining it from placing the report in the Assembly.
Senior counsel Rajinder Sachar said there was no provision under law for a commission to submit an interim report particularly when there were several terms of reference. He said the High Court earlier restrained the tabling of the Justice Banerjee Committee report on the same issue in Parliament.
(The Banerjee Committee, appointed by Railway Minister Lalu Prasad, said the fire was “purely accidental.”)
Mr. Sachar argued that the Nanavati Commission had named the conspirators and if the government arrested them, communal harmony would be distrubed.
When Justice Balakrishnan asked counsel whether the commission had given any specific direction to the government or recommendations for implementation of the report, Mr. Sachar said “We have not gone through the report.”
Justice Balakrishnan said: “It would not be possible to pass an interim order without hearing the Gujarat government.” The Bench then posted the matter to October 13.
The petitioner said tabling one part of the Nanavati report and making it public was detrimental to the public interest. It questioned the commission’s action in withholding the report on the “dubious role” of the State government in supporting the accused involved in the carnage against the minority community, which followed the train fire.
Saturday, Sep 27, 2008
J. Venkatesan

Homosexuality a criminal offence: Govt tells court
New Delhi: The government on Friday told the Delhi High Court that it is not scrapping the present law on homosexuality as it is a “criminal offence” and would “disturb the law and order situation and create unnecessary problems in society.”
Additional Solicitor General P P Malhotra said the government was not in a position to scrap the law at this time. “It (homosexuality) is a criminal offence,” he said.
“If we scrap section 377 of the Indian Penal Code (that makes homosexuality an offence), then it will disturb the law and order situation and might create unnecessary problems in the society,” Malhotra said before a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar.
The IPC at present holds homosexual acts as an offence and section 377 provides a punishment of up to life imprisonment for indulging in it.
Meanwhile, the court pulled up the government for not clearing its stand on the two different affidavits filed by two ministries on de-criminalisation of homosexuality among consenting adults.
“Two affidavits have been filed by the two ministries (Home and Health). The two ministries are speaking in two voices. What is the stand of the government? Are you clear about the stand the central government is taking on the issue?” the court asked while posting the matter to Monday.

Centre fails to take a stand on homosexuality
On Thursday, gay activists argued that morality cannot triumph over constitutional rights.
“The moral argument cannot triumph over constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex,” said advocate Shyam Diwan, appearing on behalf of the activists.
He added that homosexuals in the country do not have full “moral” citizenship and are being treated as second-class citizens.
The government in its earlier reply had taken a contradictory stand with the Home Ministry favouring the retention of the penal provision for homosexual acts while the Health Ministry was against the enforcement of Section 377 (‘unnatural offences’) in cases involving consenting adults.
“Indian society strongly disapproves of homosexuality and the disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private,” the Home Ministry had said in its affidavit earlier.

Homosexual US citizen jailed in TN
“Deletion of the section can open the floodgates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts,” it had said.
The Health Ministry, on the other hand, opposed the enforcement of the penal provisions against consenting homosexual adults.
“Enforcement of Section 377 can adversely contribute to pushing the persons suffering from HIV underground which would make such risky sexual practices go unnoticed,” said an affidavit filed by the National Aids Control Organisation (NACO), which comes under the health ministry.
“Section 377 demeans a gay man. It silences a gay man into accepting the discrimination against him. He will not come out to declare his orientation,” the NGO contended.
Friday, 26 September , 2008, 21:08

BMW hit-and-run: Utsav Bhasin moves high court for bail
Utsav Bhasin, 19-year-old son of a Haryana-based industrialist who allegedly rammed his BMW car into a motorcycle killing one and injuring another, filed an anticipatory bail plea in the Delhi High Court on Monday.
The high court is likely to hear the plea on Tuesday.
Bhasin’s move came four days after Additional Sessions Judge Brijesh Singh had rejected the bail application stating that the offence committed was non-bailable.
During the arguments, Delhi Police counsel while opposing Bhasin’s plea informed the sessions court that they had recorded the statement of Mrigank Srivastav Sep 15, who along with Anuj Singh was injured in the Sep 11 accident. Singh succumbed to his injuries Sep 13.
Srivastav, in his statement, has narrated how the accident took place and how Bhasin fled the spot soon after hitting them, the police counsel said.
“To form the exact sequence of events and conduct a test identification parade (TIP), we need the custody of the accused,” he said.
Refuting the police’s contention, Bhasin’s counsel Ramesh Gupta said: “Utsav has admitted he was driving the car at the time of the incident and it is he who called up the police after the accident but left the place in confusion, fearing misbehaviour from the police.” Bhasin, who was allegedly drunk at the time of the accident, now faces stringent penal provisions as police have amended the charges against him in the first information report (FIR).
It has included the clause Section 304 (culpable homicide not amounting to murder), a non-bailable offence under the Indian Penal Code. Earlier, the FIR was filed under Section 279 (rash and negligent driving) and 337 (causing hurt and endangering life).
Police have already seized Bhasin’s passport on the direction of the Delhi High Court.
On Sep 11, Srivastav and his friend Singh were on a bike when the car driven by Bhasin allegedly hit them and sped away in south Delhi’s Lajpat Nagar. Bhasin was arrested from Kashmere Gate Sep 12 and granted bail.
The accident took place soon after the verdict in a similar case in which Sanjeev Nanda, who belongs to an influential family, had mowed down six people in 1999 and was sentenced to five years in jail for the crime.
Indo-Asian News Service
New Delhi, September 22, 2008

Calcutta High Court sets aside order on Nano deal
The Calcutta High Court Friday set aside the order of the West Bengal information commissioner directing the state government to make public its agreement with Tata Motors for setting up the Nano plant in Singur.

The Calcutta High Court Friday set aside the order of the West Bengal information commissioner directing the state government to make public its agreement with Tata Motors for setting up the Nano plant in Singur.
Giving the directive, Justice Dipankar Dutta also asked the information commissioner to hear the case afresh and give Tata Motors a chance to represent its case.
The information commission was asked by the court to hold the hearing within eight weeks.
Tata Motors had moved a writ petition against the information commission order for uploading sections of the Nano agreement to the state government website.
The commission, working under the Central Information Commission, was set up by the state government with a chairman and member nominated by Chief Minister Buddhadeb Bhattacharjee and the leader of the opposition in the state assembly Partha Chattopadhyay.
Kolkata, West Bengal, India, 2008-09-26 21:45:03

Impersonation in Cidco land row: SC orders probe
New Delhi: The Supreme Court has ordered a high-level inquiry into the shocking incident of getting a case adjourned through impersonation in a dispute pertaining to land worth hundreds of crores. Solicitor general G E Vahanvati, appearing for the Maharashtra government , made a huge noise before a Bench headed by Justice S H Kapadia about the level of operation that has come to be practised in the apex court and wanted a thorough probe into it. When the Bench inquired from the registry, it was informed that the Chief Justice has already ordered a probe into it. A neat mishief was played on the apex court on Monday and an adjournment of hearing in a case scheduled for September 26 was obtained behind the back of the counsel appearing for the Maharashtra government, City and Industrial Development Corporation (CIDCO) and the landowner Dosu Aardeshir Bhiwandiwala. “Who mentioned it?” was the obvious question from Vahanvati before the Bench as he raised several pointed questions towards the counsel appearing on behalf of Bhiwandiwala . Land owner’s counsel Mukul Rohtagi and R F Nariman were equally firm that the matter needed to be gone into thoroughly and the culprits punished.
27 Sep 2008, 0548 hrs IST,TNN

SC refers Capt’s expulsion to larger bench
NEW DELHI: It was a mixed bag for former Punjab chief minister Amarinder Singh in the Supreme Court on Friday. Though he failed to get any immediate relief on his petition challenging the legality of his expulsion from the assembly, he was successful in impressing the court about the importance of the question raised by him. “Keeping in view the importance of the question raised by the petitioner, let the matter be placed for hearing before a three-judge Bench,” said Justices S B Sinha and Cyriac Joseph while seeking assistance of the attorney general in the matter that would now be heard afresh on October 3 for consideration of the plea to stay the expulsion. It also issued notice to the assembly, through its secretary, and to the Parkash Singh Badal government seeking their response to the petition. Amarinder Singh had moved the Punjab and Haryana HC which had stayed the custodial interrogation in a graft case registered by the Vigilance Bureau following a directive from the assembly after his expulsion.
27 Sep 2008, 0340 hrs IST,TNN

Centre seeks SC help to implement smoking ban
New Delhi, September 26 With the October 2 deadline for implementation of smoking ban at public places drawing closer, the Centre on Friday sought the SC’s intervention in ensuring that the ban was effective from the said date.
Additional Solicitor General Gopal Subramaniam submitted that various companies, similar to a petition filed in the Delhi HC this week, are trying to prevent the ban from being enforced.
The Bench headed by Chief Justice K G Balakrishnan has posted the petition for September 29, when other petitions seeking transfer are also listed for hearing.
The ASG pleaded to the Bench to transfer to itself the entire petition against the anti-smoking order so that the Government was not prevented from implementing the order.
Express news service Posted: Sep 27, 2008 at 2340 hrs IST

SC refuses to stay publication of Nanavati report
New Delhi, September 26 The Supreme Court on Friday refused to stay the publication and circulation of the Justice G T Nanavati Commission report describing the Godhra train carnage as a “pre-planned conspiracy” and giving a clean chit to Gujarat Chief Minister Narendra Modi regarding the subsequent riots.
The three-member Bench headed by Chief Justice K G Balakrishnan issued notice to the Gujarat Government on a petition filed by an NGO, Citizens for Justice and Peace, contending that the publication of the report could disturb communal harmony.The petitioner claimed the publication of the report by the Commission would provide grounds to the state Government to take a liberal stand against the accused in the post-Godhra riots of 2002 that claimed over 1000 lives.
Before passing the order, the Bench, which also included Justices P Sathasivam and J M Panchal, asked senior advocate Rajender Sachar appearing for the Citizens for Justice and Peace if the Commission had given any specific direction to the state Government for its implementation. However, when Sachar said “we have not gone through it”, the Bench issued a notice and posted the matter for hearing on October 13.
Express news service Posted: Sep 27, 2008 at 2337 hrs IST

Sensing legal trouble over Oct 2 smoking ban, govt rushes to SC
NEW DELHI: Sensing a spate of litigation in high courts challenging its decision to completely ban smoking in public places from October 2, the Centre on Friday rushed to the Supreme Court seeking transfer of all such petitions from the HCs to the apex court for a uniform adjudication. The first of such apprehended litigation has already been filed in the Delhi high court by ITC, one of the largest cigarette manufacturers, and Indian Hotels Association arguing that the notification banning smoking made no distinction between a public place and private space. Mentioning the Centre’s transfer petition before a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam, two additional solicitors general, Gopal Subramaniam and Mohan Parasaran, termed the late challenges, just before the D-day, as nothing but dilatory tactics and meant to create confusion in the minds of the people. The Bench listed it for hearing on Monday. Subramaniam said the ban order was in sync with the earlier apex court verdict in the Murli Deora case, where it had expressed concern over the large number of tobacco-related deaths occurring every year in the country. He said: “Ban on public smoking is sought to be enforced in the light of declarations by World Health Organisation (WHO) of which India is a member country and also a party to the declaration to bring into effect ban on smoking and other activities affecting public health.”
27 Sep 2008, 0155 hrs IST,TNN

Jamia shootout: Inquiry by SC judge sought
NEW DELHI: Not everybody is convinced about the September 19 Jamia encounter. Civil society groups, in particular, are punching holes in the police theory. A team of Janhastakshep Campaign Against Fascist Designs and People’s Union for Democratic rights (PUDR), which visited Batla House two days after the encounter, has demanded an independent, time-bound comprehensive probe by a sitting Supreme Court judge into the incident. Briefing the media on Friday, Prashant Bhushan, senior SC advocate and part of the six-member team, said: ‘‘The police theory has many holes. It’s very clear that the special cell was not sure if the occupants of L-18 were terrorists but just hours after the operation they branded them as IM masterminds responsible for the recent blasts.’’ Expressing deep concern over the media’s handling of the issue, Bhushan added: ‘‘Unless things are proved, media should behave in a responsible way and should not tarnish the image of any innocent.’’ Shahana Bhattacharya, who represented PUDR, said: “The issue seems to be very mysterious and our interim findings clearly suggest that there is an immediate requirement of an independent inquiry.’’ Clearing doubts that the team was no way putting a question mark on the validity of the encounter, Shahana added: ‘‘We are no one to decide what is right and what’s not, but all that our team has found only suggests that the degree of transparency is bare minimum.’’ The team is also planning to bring out a detailed report of their findings next week.
27 Sep 2008, 0000 hrs IST,TNN

Impeachment ultimately a political decision: CJI
A judge should not be thrown out of judiciary by a simple procedure
There is a prescribed procedure; if Parliament wants to change it, it can do so
NEW DELHI: Chief Justice of India K.G. Balakrishnan on Thursday said impeachment of a judge of higher judiciary was ultimately a “political decision” and Parliament had to decide it.
While admitting that the process was “too cumbersome and long-drawn,” he was, however, not in favour of simplifying it.
“I agree it takes time but it is also important to protect the independence of the judiciary. A judge should not be thrown out of the judiciary by a simple procedure, it will have serious repercussions. There is a prescribed procedure; if Parliament wants to change it, it can do so. Too much simplification is also not good, there are leaders in Parliament who are accountable to people, let them think about it.”
Justice Balakrishnan was replying to queries during an interaction with journalists here. Some questions related to his recommendation that Justice Soumitra Sen of the Calcutta High Court be impeached on charges of “misconduct.” The Centre also approved the decision as he did not heed the advice of the Chief Justice of India to either resign or take voluntary retirement. Justice Balakrishnan said complaints against judges were of a very “general nature” and often anonymous. “It is not that there are no complaints but mostly these are from disgruntled litigants. Many do not disclose their names. If there is a specific complaint and of a serious nature, we look into it seriously,” he said, citing the Supreme Court handing over to the CBI the probe into the Uttar Pradesh provident fund scam.
On filling vacancies in High Courts, Justice Balakrishnan said that out of the sanctioned strength of 876 judges there were 264 vacancies. “Some High Courts have recently raised their strength. In the Madras High Court, 11 vacancies are being filled up. It is a long process which takes nearly three to four months and passes through several Ministries like Law and Home before getting the final approval of the President for appointment of High Court judges.”
The selection proforma was also being changed slightly with the inclusion of details of any pending criminal case and any pending inquiry by the Bar Council of India.
The main criterion was to look for good practising lawyers who had been meticulous and who had displayed exemplary behaviour and dignified conduct in their profession.
But the Chief Justice’s main concern was a rather large number of vacancies at the level of district judges and senior civil judges. “In the subordinate courts, we have total sanctioned strength of 16,158 district judges and senior civil judges and there are a little over 3,000 vacancies which we are not able to fill up quickly.”
Saturday, Sep 27, 2008
Vinay Kumar

HC declines to grant ad interim injunction
CHENNAI: The Madras High Court has declined to grant an ad interim injunction restraining the Board of Control for Cricket in India (BCCI) from permitting N.Srinivasan, board treasurer, to participate in the general body meeting scheduled in Mumbai on Saturday for the election of the board’s new office-bearers and contest for the post of Secretary or any other post in the board.
In his interim order on an application filed by A.C. Muthiah in a civil suit, Justice M. Jeyapaul ordered notice to Mr. Srinivasan returnable in three weeks. He ordered that the counter of the first respondent, the BCCI, represented by its president, having its registered office at M.A. Chidambaram Stadium, Chepauk, be filed then.
Mr. Justice Jeyapaul said the court found that there was a potential substance in the arguments by the senior counsel P.S. Raman, appearing for the board. Therefore, he was not inclined to grant ad interim injunction at this stage.
Mr. Muthiah’s senior counsel, Nalini Chidambaram, submitted that Mr. Srinivasan being the board treasurer was an administrator. As per the regulation, no administrator should have directly or indirectly any commercial interest in the matches or events conducted by the board.
Mr. Muthiah wrote a letter this month bringing to the notice of the board president seeking direct action against Mr. Srinivasan, who was the Managing Director of India Cements, for having earned commercial interest and benefits despite being one of the franchisees of IPL. But no action was initiated. The applicant had established that Mr. Srinivasan had breached the board’s code of conduct.
Mr. Raman said on December 26, 2007, an invitation to participate in the auction conducted by IPL was extended to India Cements by the board. On receipt, Mr. Srinivasan sought a clarification whether the company could participate in the auction. He received a communication from the board that there was no embargo for the company to participate in the auction.
Thereafter, having submitted the tender proposals, the company purchased the Chennai Super Kings. The match was over even during May-June. In the event of the administrator committing any default against the regulations, the board had been authorised to levy a fine and/or debar him from holding such positions. When there was an alternative penalty prescribed, debarring at the stage when all steps had been taken to convene the meeting on September 28 for holding the election was not warranted.
Saturday, Sep 27, 2008
Special Correspondent

Muthiah moves HC against BCCI treasurer
Chennai, Sept 26 : The row between industrialist A C Muthiah and BCCI treasurer N Srinivasan over BCCI Secretary post reached the Madras High Court today, when Muthiah filed a petition seeking disqualification of Srinivasan for breach of code of conduct for administrators.
The General Body meeting of the BCCI, scheduled for tomorrow, will select a new secretary.
Justice M Jeyapaul, before whom the petition came up for hearing, however refused to interfere with the BCCI proceedings as the petition was filed in the eleventh hour.
But the Judge ordered issue of notices to the BCCI and Srinivasan returnable in three weeks.
Senior Counsel Nalini Chidambaram, appearing for Muthiah, sought a permanent injunction restraining the BCCI from permitting Srinivasan to participate in the general body meeting and wanted the court to direct the BCCI to appoint a commissioner to probe the allegation.
She submitted that Srinivasan attracted disqualification under Clause 6.2.4 of BCCI Regulations by bidding for the Chennai team in the IPL.
The Clause, barred the administrators from having any direct or indirect commercial interest in any of the events of the BCCI, she submitted.
Senior Advocate P S Raman, appearing for the BCCI, however opposed the allegations and submitted that the Clause did not provide for any disqualification.
He contended that the petition had been filed at the last moment due to ‘personal rivalry’. – Agencies
Published: Saturday, September 27, 2008

HC sets aside order on Tata-Bengal deal details
The Calcutta High Court today set aside an order of the State Information Commission to make public Tata Motors’ agreement with the West Bengal government for the Singur small-car plant.
Observing that the Information Commissioner should hear the matter afresh, Justice Dipankar Dutta directed that Tata Motors must be heard before it passed any order.
Justice Dutta also directed the Information Commissioner to complete the hearing of the application for disclosure of the details of the agreement within eight weeks. Tata Motors had moved the HC challenging the commission’s order claiming it was unconstitutional as it had not given it any opportunity to state its position.
Meanwhile, Tatas’ reported plan to roll out Nano from Pantnagar seems to have run into trouble with a group of farmers planning an agitation against giving more land to the firm. Hanif Gandhi, a member of the “Kisan Kisani Abhiyaan,” said farmers will launch a movement on the lines of “Chipko movement” if Uttarakhand provided any more land to the company.
Press Trust Of India / Kolkata September 27, 2008, 0:52 IST

Sundaram Pap to challenge HC order in derivatives case
Mumbai-based Sundaram Multi Pap today said that it will appeal against the Bombay High Court’s verdict asking the company to pay Rs 2.92 crore to ICICI Bank in a dispute over forex derivative contracts between the parties.
Sundaram Multi Pap Chairman Amrut Shah told Business Standard that the original case filed by his company against ICICI Bank for mis-selling forex derivative contract is still pending and is likely to come up for hearing next month. “Based on the latest order, we do not consider this as a debt. We will appeal against this order,” he said.
According to the Bombay High Court order, the company has to either pay the bank the said loss amount or the bank will be allowed to wind up the company.
“Our asset base is Rs 80 crore with 600 workers. We have made a profit of Rs 8 crore. How can a company be wound up over a dispute of Rs 2.92 crore?” Shah asked.
Sundaram Multi Pap is a Bombay Stock Exchange-listed company manufacturing education paper stationery and is not in any way related to South-based TVS Group, which has many group companies bearing the name Sundram or Sundaram.
However, one TVS Group company — Sundaram Brake Lining — is also involved in a similar legal tangle with Kotak Mahindra Bank over a similar issue involving losses suffered on account of forex derivative contracts the bank had sold the company.
In August this year, the Madras High Court had directed Sundaram Brake Linings to take up its case against Kotak Mahindra Bank with the arbitrator as specified in the agreement between the parties.
Sundaram Multi Pap’s stock price closed 1.26 per cent higher at Rs 8.86 today on BSE. The 52-week high for this stock was quoted on January 1, 2008 at Rs 29.50. The company had filed its first suit against ICICI Bank in December 2007.
Bs Reporter / Chennai September 27, 2008, 0:53 IST

Muthiah moves HC against BCCI treasurer
CHENNAI: The row between industrialist AC Muthiah and BCCI treasurer N Srinivasan over BCCI Secretary post reached the Madras High Court on Friday, when Muthiah filed a petition seeking disqualification of Srinivasan for breach of code of conduct for administrators. The General Body meeting of the BCCI, scheduled for Saturday, will select a new secretary. Justice M Jeyapaul, before whom the petition came up for hearing, however refused to interfere with the BCCI proceedings as the petition was filed in the eleventh hour. But the Judge ordered issue of notices to the BCCI and Srinivasan returnable in three weeks. Senior Counsel Nalini Chidambaram, appearing for Muthiah, sought a permanent injunction restraining the BCCI from permitting Srinivasan to participate in the general body meeting and wanted the court to direct the BCCI to appoint a commissioner to probe the allegation. She submitted that Srinivasan attracted disqualification under Clause 6.2.4 of BCCI Regulations by bidding for the Chennai team in the IPL. The Clause, barred the administrators from having any direct or indirect commercial interest in any of the events of the BCCI, she submitted. Senior Advocate PS Raman, appearing for the BCCI, however opposed the allegations and submitted that the Clause did not provide for any disqualification. He contended that the petition had been filed at the last moment due to ‘personal rivalry’.
26 Sep, 2008 2159hrs IST, PTI

Gay sex is immoral and can’t be decriminalised, Govt tells HC

New Delhi, Sep 26 (PTI) Gay sex is immmoral and a reflection of a perverse (rpt perverse) mind and its decriminalisation would lead to moral degradation of society, the Centre today told the Delhi High Court.”Homosexuality is a social vice and the state has the power to contain it,” the government contended.”It (decriminalising homosexuality) may create breach of peace. If it is allowed then evils of AIDS and HIV would further spread and harm the people. It would lead to big health hazard. It would degrade moral values of society,” Additional Solicitor General P P Malhotra contended.The Centre’s stand assumes significance in view of the contradictory stand taken by two of its ministries, with the Home Ministry opposing decriminalisation of such acts while the Health Ministry favouring the scrapping of penal provisions which provide a punishment of upto life sentence for homosexual acts.Appearing before a bench headed by Chief Justice A P Shah, the ASG said it is crucial to hold such unnatural behaviour (homosexuality) as a criminal offence and its deletion would lead to moral degradation in society.Countering the contentions of the gay right activists, the government said such behaviour is not a natural trait but a reflection of a perverse mind.Citing a judgement of Orissa court, he said such behaviour was because of perverse mind which needed to be controlled.But the court was not satisfied with his contention saying that the order was passed 25 years ago and in that case a boy was sexually assaulted.”We are concerned about homosexual acts among consenting adults in private so that judgement is not relevant here,” the Bench, also comprising Justice S Muralidhar said.”Much water has flown under the bridge during last 25 years,” the court observed. PTI

HC grants permission to buy security gadgets for Sabari temple
Kochi, Sept 26: Kerala High Court on Friday granted permission for Travancore Devaswom Board (TDB) to utilise Rs 4.72 crore to procure security equipment for Lord Ayappa temple in Sabarimala which is visited by millions of pilgrims every year. Earlier, Devaswom Ombudsman had submitted a report to the High Court regarding security arrangements to be made in Sabarimala during the coming mandala season. The Additional DGP submitted a report to the high court stating that Sabarimala was also under the threat of militant attack. Director General of Police (DGP), Ramon Srivastava, ensured that sufficient police personnel, including commandos can be deployed in Sabarimala. A division bench comprising justices P R Raman and T R Ramachadnran Nair directed the board to give all infrastructural facilities to the security personnel. For the smooth conduct of the festival all departments should work in coordination, the bench observed. Bureau Report

HC sets aside order to make public TM- govt. agreement
Kolkata (PTI): The Calcutta High Court on Friday set aside an order of the State Information Commission to make public Tata Motors’ agreement with West Bengal government for the Singur small car plant.
Observing that the Information Commissioner should hear the matter afresh, Justice Dipankar Dutta directed that Tata Motors must be heard before it passed any order.
Justice Dutta also directed the Information Commissioner to complete the hearing of the application for disclosure of the details of the agreement within eight weeks.
Tata Motors had moved the High Court challenging the order of the Commission claiming that it was unconstitutional as it had not given it any opportunity to state its position.
It had also claimed before Justice Dutta that certain portions of the agreement were trade secrets of the company and disclosure of that would amount to the compromise of Tata Motors’ interests.
Counsel Kalyan Banerjee for the petitioner had contended that as the land was acquired for public purpose and spending public money, contents of the deal must be made public.
Justice Dutta had on September 12 passed an interim stay for two weeks on operation of the Information Commission’s order of September eight that asked West Bengal Industrial Development Corporation, a nodal government agency of the state for the project, to make public the full text of the document.
A tripartite agreement was signed on March nine, 2007 among Tata Motors, West Bengal government and WBIDC on the small car project.
Friday, September 26, 2008

No judge is accused in UP PF scam: CJI
Chief Justice of India K G Balakrishnan on Thursday (September 25) said there was no case registered against any judge as an accused in the multi-crore rupee Uttar Pradesh Provident Fund scam in which names of 34 members of judiciary, including a Supreme Court judge, have cropped up.
“So far not a single judge is accused. Not a single judge is there to my knowledge against whom a case is registered,” the CJI said when asked about the involvement of an apex court judge and judges from the Allahabad High Court in the scam, the investigation of which was handed over to the Central Bureau of Investigation (CBI) on Tuesday.
He said the then investigation officer of Uttar Pradesh Police had sought his sanction for recording the statements of some of them under section 161 of the Code of Criminal Procedure (CrPC) as required during the probe. “I allowed it,” he said during his interaction with apex court legal correspondents and added that one of the allegations was about the alleged fake bills in the names of the employees of Ghaziabad treasury. (PTI)
( This post is from an independent writer. The opinions and views expressed herein are those of the author and are not endorsed by APakistanNews.Com.)
Friday, September 26, 2008 at 3:09 am

Number of judges to be increased at all levels: CJI
The number of judges at all levels of judiciary will be increased to ensure speedy disposal of pending cases, Chief Justice of India (CJI) K G Balakrishnan said.Interacting with media persons and responding to their queries on the increasing incidents of corruption in the judiciary, the CJI said it was the job and duty of Parliament and the government to punish corrupt judges.A sitting Supreme Court or High Court judge can only be removed through impeachment by both houses of Parliament and the CJI can only recommend action against a judge facing allegations of corruption.Justice Balakrishnan said the procedure for appointment of judges would be further streamlined and efforts would be made to ensure appointment of better quality of judges in the High Courts and the Supreme Court.Union Law Minister H R Bhardwaj criticised the procedure of appointment of judges in higher judiciary by the Supreme Court collegium, comprising of the CJI and three senior-most judges of the apex court.The recommendation of the CJI on the basis of consultation with the collegium is binding on the government.
Posted by Cyber Cell at 4:54 PM
Friday, September 26, 2008

Explosion injures four of a family
Mumbai, September 26 Four members of a family were injured on Friday afternoon after a box filled with some unidentified materials exploded inside a house at Dharavi transit camp behind the Dharavi police station.
According to the Dharavi police, Prabhu Wadkar (45), a driver, found a small box wrapped in white paper kept near a tree next to the Sion police station. “Wadkar thought it contained tobacco and brought it home. While he was trying to cut the cello tape and open the box, it exploded injuring Wadkar, his wife Kamal (40), her sister Vimal who had come to visit them and Wadkar’s 20-year-old son, Santosh, who was helping him to open the box,” said Senior Police Inspector Rajendra Thakur from the Dharavi police station.
Santosh and Kamal suffered severe burn injuries while Prabhu and Vimal were discharged after first aid.
When asked about the material used in the explosive, Dharavi police officers said that they had given the explosive material for testing at the Kalina laboratory. “Though we have sent the materials found inside the box for testing, we think that it was the work of some local miscreants. However, the incident was not related to any terrorist activity,” said DCP Milind Barambe (Zone 5).
Express News Service Posted: Sep 27, 2008 at 0320 hrs IST

Supreme Court won’t restrain Gujarat from acting on report
New Delhi: The Supreme Court on Friday refused to restrain the Gujarat government from circulating, publishing and acting on the Nanavati Commission report on the Godhra train carnage.
(The commission, appointed by the State government, said the February 27, 2002 fire aboard coach S-6 of the Sabarmati Express at the Godhra station was a “pre-planned conspiracy by local Muslims.”)
A Bench, consisting of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam, however, issued notice to the government on a special leave petition filed by Citizens for Justice and Peace against a Gujarat High Court order refusing to pass an interim order restraining it from placing the report in the Assembly.
Senior counsel Rajinder Sachar said there was no provision under law for a commission to submit an interim report particularly when there were several terms of reference. He said the High Court earlier restrained the tabling of the Justice Banerjee Committee report on the same issue in Parliament.
(The Banerjee Committee, appointed by Railway Minister Lalu Prasad, said the fire was “purely accidental.”)
Mr. Sachar argued that the Nanavati Commission had named the conspirators and if the government arrested them, communal harmony would be distrubed.
When Justice Balakrishnan asked counsel whether the commission had given any specific direction to the government or recommendations for implementation of the report, Mr. Sachar said “We have not gone through the report.”
Justice Balakrishnan said: “It would not be possible to pass an interim order without hearing the Gujarat government.” The Bench then posted the matter to October 13.
The petitioner said tabling one part of the Nanavati report and making it public was detrimental to the public interest. It questioned the commission’s action in withholding the report on the “dubious role” of the State government in supporting the accused involved in the carnage against the minority community, which followed the train fire.
Saturday, Sep 27, 2008
J. Venkatesan

Supreme Court issues notice to Badal over Amarinder’s expulsion
New Delhi, Sept 26: The Supreme Court on Friday issued notices to the Punjab Government and Chief Minister Prakash Singh Badal while acting on a petition filed by former Chief Minister Amarinder Singh.
Questioning the State Assembly’s power to expel a member, Amarinder had challenged his expulsion.
The apex court issued the notice to Badal in his personal capacity.
Seeking assistance from the Attorney General, a bench headed by Justice S B Sinha referred the matter to a larger three-judge bench, saying that an important question of law is involved in it.
On September 10, the Punjab Assembly passed a resolution to expel Amarinder and declared his Patiala seat vacant on the basis of a House Committee report in the Amritsar land scam.
The committee in its report had held guilty Amarinder and two other Congress leaders Jagjit Singh Chaudhary and Jugal Kishore Sharma for alleged irregularities in exempting 32.10 acres of land for private development in Amritsar during his tenure as chief minister. (ANI)
Submitted by Saurav Shukla on Fri, 09/26/2008 – 09:33.

Daily Legal News 26.09.2008

It’s OK to provide legal aid to blasts suspects: Arjun
Jamia Nagar encounter: NHRC issues notic…No decision to ban Indian Mujahideen by …5 picked from Mumbai for Delhi, Ahmedaba…
New Delhi, September 26: HRD Minister Arjun Singh backed the decision of Jamia Millia Islamia University to provide legal aid to two of its students accused in the Delhi serial blasts, saying the step was in national interest.
Jamia Vice-Chancellor Prof Mushrul Hasan met Singh to apprise him of the decision of the university to provide legal aid to the two students, a move criticised by the BJP.
“There is nothing wrong in providing legal aid. In this case, I have got full details. Whatever Mushirul Hasan told me, I understand in this context, the decision of the university is in the interest of the nation,” Singh said.
BJP has demanded dismissal of the Vice-Chancellor and termed the decision as ‘atrocious, anti-national and highly objectionable’.
After meeting the minister, Hasan said BJP’s allegation that the university was diverting the government funds for providing legal aid was ‘baseless’.
“Providing legal aid is the decision of the Academic Council. Legal aid is the constitutional right of every person. We stand by our decision. There is no question of my resignation,” he said.
Noting that the classes have been running smoothly and the recent incidents have not affected the confidence of students, he said, “the confidence of students has gone up after my interaction and peace march in the campus”.
Appealing to political parties not to politicise the issue, Hasan said, “if it is politicised, the repercussion will not be good”.
Asked whether he was facing any threat, Hasan said it should not affect the ‘principle’.
Posted: Sep 26, 2008 at 1720 hrs IST

IBA brings together legal pro bono practitioners around the world through website
A new website at http://www.internationalprobono.com has been developed by the International Bar Association (IBA) to promote and support pro bono legal work and access to justice at both national and international levels. It enables legal professionals worldwide to exchange and share experiences and information on pro bono initiatives across jurisdictions, with the aim of facilitating best practice in the design and delivery of pro bono services.
The website provides links to practitioners and organisations engaged in pro bono legal work, for users to locate and contact others who are participating in similar work, or in work on which they would like to model their own. It features news items related to pro bono work, and an ever-expanding library of material from organisations and individuals undertaking pro bono work, including presentations on pro bono work from conferences held by the IBA. A calendar of local, regional, and international pro bono events alerts site users to all opportunities to meet and network.
A special section of the site will feature original content on best practices in certain thematic areas, in order to foster dialogue on ways to strengthen and support pro bono and access to justice initiatives. The inaugural topic will focus on university law clinics, led by an article from the IBA Pro Bono and Access to Justice Committee, on the pro bono clinical programme at American University’s Washington College of Law. Further articles and dialogue will be solicited around different themes related to pro bono and access to justice.
Philip Zeidman, of the IBA Public and Professional Interest Division, who led the initiative to create the IBA International Pro Bono website, said, “The website brings together pro bono practitioners at all levels around the world, as well as those who are interested in getting involved in pro bono work. In addition, it specifically promotes legal pro bono work as an integral part of the legal profession; promotes the development of a strong international legal pro bono network; provides recognition to those participating in innovative international pro bono work; and encourages leadership and support of legal professionals contributing to pro bono activity and work. Prior to the development of the website, the ‘Best in International Pro Bono’ sessions, held at the IBA Annual Conference, usefully identified how and where pro bono work was being carried out, but the audience was limited to those attending the conference. The IBA International Pro Bono website allows an unlimited reach, is not restricted by geography and is accessible 24 hours a day. It is proving a valuable resource.”
Haji Sulaiman Abdullah, Chair of the IBA Pro Bono and Access to Justice Committee said, ‘We believe the site will prove very useful to all of our members, whether their practice involves international pro bono work or is limited to the development of pro bono within their own jurisdictions. The Pro Bono and Access to Justice Committee has always sought to encourage ‘best practices’ in the delivery of pro bono legal work and expects that the website will prove most beneficial in this regard.”
Thursday, September 25



I’ll be back in India soon: M F Hussain
NEW DELHI: The Supreme Court on Sept 8, in a major relief to renowned artist M F Hussain, refused to initiate criminal proceedings against the painter for allegedly hurting public sentiments through some of his paintings. These paintings had been dubbed as obscene. ( Watch ) Speaking to TV channel Times Now, M F Hussain said his return to India could be sooner than expected. He said, “I am already there (in India). I may not be physically there but I haven’t gone anywhere. For the last 60 years I have been working all over – Paris, New York. I don’t have a studio even in India.” When asked about his return, Hussain instantly said, “I can come tomorrow. There is no question of when and where. You might see me in India tomorrow itself.” Talking about the Supreme Court judgement he added, “It is a very important judgement. The dignity of art has been upheld. There have been incidents in the past as well when our ‘art’ has been attacked. But has anything happened to our ‘art’? We have a tradition of five thousand years which is very dynamic.”
26 Sep 2008, 1154 hrs IST,Times Now

Guj HC asks police to file FIR against 22 Asharam followers
The Gujarat High Court on Monday asked the police to register FIR against 22 followers of Asharam Bapu who had allegedly attacked media persons and people living near the Ashram on July 18.
The order was issued by a division bench of Chief Justice K S Radhakrishnan and Justice M S Shah, before disposing off the PIL filed by NGO Jan Sangarsh Manch (JSM) last month.
The court has asked the police to register FIR against 22 people whose name were supplied by JSM as per its earlier directions.
It further ordered that investigation in the case be conducted by DSP Gandhinagar, under whose jurisdiction the Ashram falls.The PIL had asked for formation of Special Investigation Team to probe into the attack on media and people living near the ashram by supporters of religious guru Asaram Bapu during the bandh call given on July 18.
Incidences of violence were reported in the city during the bandh call given over the mysterious deaths of two boys, Abhishek and Dipesh Vaghela, whose bodies were found from the bank of river Sabarmati on July five.
The case is being investigated by state CID (crime).The government has also ordered an inquiry commission headed by a retired judge into the case.
By admin on September 24th, 2008

Raj’s Sena terrorising Maharashtra: high court
Criticising the state government for failing to act against Maharashtra Navnirman Sena (MNS) president Raj Thackeray for enforcing Marathi signboards on shops, the Bombay High Court on Thursday told the authorities to “wake up and take steps to restore the confidence of common man in the state administration”.
“Gone are those days when we used to worship heroes like Shaheed Bhagat Singh. Today, terrorists are being worshipped,” said Justice JN Patel while hearing a petition filed by the Federation of Retail Traders’ Welfare Association. The association has challenged the letters purportedly written by Thackeray to shopkeepers, asking them to put up Marathi signboards in bold lettering.
“Nowadays, terrorists send e-mails and warn about their plans before indulging in terror crimes. Raj Thackeray also sends written notices before his acts, and while you get hold of terrorists, you cannot arrest him (Raj),” a visibly upset Patel, sharing the bench with Justice KK Tated, said.
Patel made these observations after taking on record a letter written by the petitioners to Chief Minister Vilasrao Deshmukh, urging action against Thackeray. The MNS chief and his party workers continued to “terrorise” them by throwing stones at their shops and ATMs, auto rickshaws and taxis in Chembur even after the court had passed and order against such acts, the shopkeepers said.
“If a political party does something good for the people, we will highly appreciate (it), but here all energy is used for destruction. If any other common man was in his place, he would have been arrested and put behind bars. Even the home minister had taken a strong objection to a remark made by Joint Police Commissioner KL Prasad about Thackeray that the city was not the personal property of anyone, then why spare MNS chief,” the court asked.
Observing that the state was a mute spectator to the “misdeeds” of Thackeray and his party, the judge said the government was not following the law in letter and spirit. “Be serious, otherwise every party will bully you,” the judge warned and asked the state to file an affidavit by October 16, detailing what steps it proposed to take against Thackeray.
Government pleader DA Nalawade told the court, “We will take action as per law. The first priority of the state was to maintain law and order. There cannot be an extra-constitutional authority who can take law into his own hands.”
Sunil Shivdasani, Hindustan Times
Email Author
Mumbai, September 26, 2008

SC dismisses Todi’s plea for status quo in Rizwanur case
NEW DELHI: The Supreme Court on Thursday rejected Kolkata businessman Ashok Todi’s plea to halt the trial court from proceeding further on the CBI chargesheet accusing him of abetting the suicide of his son-in-law Rizwanur Rehman. The CBI had accused Todi of driving Rizwanur to suicide by his incessant attempts to break his daughter’s marriage. Todi’s counsel argued before a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal that the CBI had exceeded the brief given to it by the Calcutta HC. He said the agency was asked by the HC to find the reason behind Rizwanur’s death. Instead of filing a status report before the HC, the CBI went to the trial court to file a chargesheet on September 22, the counsel said, questioning the agency’s motive. Refusing to grant stay on the proceedings before the trial court, the Bench simply ordered the case to be put up for hearing on October 13.
26 Sep 2008, 0151 hrs IST,TNN

Zakir Shaikh’s family pins hope on judiciary
Surat, September 25 Local cops unaware about his role in planting of bombs; he is innocent, says elder brother
The family members of Mohammed Zakir Shaikh are shocked after his name surfaced in the Surat live bombs and Ahmedabad blasts cases. “We don’t rely on the police investigations. We have full faith in the judiciary and we will accept the decision of the court,” said Zakir’s elder brother Mohammed Danish Shaikh. Zakir (28) was picked up from his house in Bhiwandi, Mumbai.
During his interrogation, he confessed to his involvement in the terrorist attacks. He has a masters degree in Psychology from Shibli College in Azamgarh (UP) and belongs to a family of landlords.
Kamaal Saiyed Posted: Sep 26, 2008 at 0053 hrs IST

Zero tolerance for black sheep judges, says CJI
NEW DELHI: With a recent case of impeachment against a judge of the Calcutta high court and a CBI inquiry into a PF scam involving several judges showing the judiciary in poor light, Chief Justice of India K G Balakrishnan promised tough measures against “black sheep” in judicial robes. Interacting with the media on Thursday, the CJI made it clear that he would not hesitate to permit prosecution of corrupt judges if investigating agencies presented unimpeachable evidence against them. He said he was agreeable to making the impeachment process itself less tortuous, though safeguards could not be diluted. Holding that corruption in judiciary was “just not acceptable”, the CJI said the collegium of judges headed by him had widened the scope of information about antecedents of a prospective candidate for judge so as to spare the judiciary embarrassment as in the case of Justice Soumitra Sen. The CJI had to recommend the impeachment of the Calcutta HC judge following his refusal to resign after being indicted for corruption. Asked whether the present process of impeachment was cumbersome and hindered swift action against judges found corrupt by the judiciary’s in-house mechanism, Justice Balakrishnan said impeachment was a political decision approved by Parliament. There was scope for simplification, he agreed, but immediately clarified that “too much simplification will be counter-productive”. “If it is made very simple, then the lives of judges will be rendered miserable as any aggrieved party will attempt to invoke impeachment motion,” he said. So, what would happen if Parliament refused to impeach a judge, rejecting a motion initiated on the basis of a recommendation by the CJI who is fully satisfied about his unsuitability? The CJI said, “We should not undermine the understanding of Parliament, prime minister and the MPs. They are all responsible to the public as much as the judges are. Anyway, if Parliament refuses to pass an impeachment motion, the person would continue as a judge, but it is the prerogative of the Chief Justice whether or not to assign him judicial work.” Examining a lawyer’s suitability to be appointed judge in the HCs or SC was a difficult task, the CJI conceded. However, the recent incidents – Justice Sen’s impeachment, cash-at-doorstep scam in Punjab and Haryana high court and the multi-crore PF scam in which it is suspected that 35 judges from all three tiers of judiciary are involved – seem to have made the CJI more sensitive to the need for urgent remedial measures. It is a two-pronged strategy devised by him and the collegium – tighten the scrutiny of the antecedents of lawyers agreeable to be appointed as judges and a “zero tolerance” approach towards the “black sheep” in the fold. The impact is quite discernible – the queries about antecedents of prospective judges have been given teeth by adding as many as 12 new points of inquiry that included checking whether any family members were practising in a court where an appointment was going to be made. On the “zero tolerance” approach, the CJI has already made public his intentions by allowing CBI to quiz two sitting judges of Punjab and Haryana HC in the cash-at-doorstep scam. Will he supplement the bold decision and allow the CBI to prosecute them if it gathers strong evidence against them? The indication from the CJI was that he would. “I will cross the bridge when I come to it. Let the investigating agency collect hard evidence, present it before me for scrutiny and seek permission for their prosecution. You will see what decision I will take,” said the CJI. Huge pendency of cases – almost three crore – and large number of vacancies in the trial courts still worries the CJI, who said despite all urgent measures, the demon refused to be tamed. The CJI also had a different approach towards representation of gender in judiciary. In nearly six decades of existence, the Supreme Court has seen only three women judges. But Chief Justice K G Balakrishnan is not unduly worried, for in his view, merit came before gender, caste or creed so far as selection of a judge was concerned. “We have to focus on talented lawyers, many of whom are not interested in taking up judgeship. We have to look for talent and not equal representation for gender, caste or creed,” he said in response to a question whether there was a chance of a woman getting a berth in the three vacancies in the apex court. Does it bother him that the fair sex is not represented better in the judiciary? “I am not unduly bothered as we are in search of talent with integrity. We are much better, if you take this as a parameter, than the US Supreme Court which got a woman judge after 200 years of its existence,” Justice Balakrishnan said. Justice Sandra Day O’Connor was the first woman judge in the US Supreme Court, nominated by President Ronald Reagan in 1981.
26 Sep 2008, 0046 hrs IST, Dhananjay Mahapatra,TNN

Impeachment of judge is a political decision: CJI
New Delhi (PTI): The cumbersome procedure involved in impeachment of a judge cannot be substituted by a simple procedure, Chief Justice of India K G Balakrishnan said on Thursday.
“Everyone knows it (removal of judge through impeachment) is a cumbersome process. It has to be decided by Parliament represented by political parties. Ultimately it (impeachment) is a political decision,” the CJI said in an interaction with apex court legal correspondents.
He said a judge should not be “thrown out” by a simple procedure and “that is why the procedure is cumbersome”.
“Too much simplification for impeachment is not good,” Justice Balakrishnan said when his view was sought on the prevalent procedure which requires that for presenting an impeachment motion in Parliament there should be the support of 100 Lok Sabha MPs or 50 Rajya Sabha members, apart from the requirement that the motion should be passed by two-thirds majority.
He said his personal opinion on impeachment does not matter as political leaders including the Prime Minister are accountable to the public. The procedure for impeachment was aimed at protecting the independence of judiciary, he said.
The CJI also spoke about the recommendation he made for the impeachment of Justice Soumitra Sen of Calcutta High Court and said after an in-house inquiry judicial work was withdrawn from him.
He was given an opportunity to resign, the CJI said adding that Justice Sen preferred not to do so.
He said though at the appointment level some allegations are not known about a judge but there are checks and balances to keep the black sheep away from the judiciary.
He refrained from making any comment on the cash-at-door scam in which a Punjab and Haryana High Court judge is allegedly involved. The matter is with the CBI.
Thursday, September 25, 2008

Bomb threat at Calcutta HC, city civil court triggers panic
Kolkata, Sep 25 (PTI) A threat to blow up the Calcutta High Court and the city civil court sent panic waves in the metropolis today but police did not find anything after launching a massive search.As news spread about the calls, panic gripped lawyers and the people, who were asked to the vacate the buildings.”There were two separate calls from a telephone booth on Kiran Sankar Roy Road which is within a couple of 100 m from both the court buildings at around 4 pm,” Deputy Commissioner of Police (Headquarters), Vineet Kumar Goyal said.”A massive search was launched with sniffer dogs and personnel of the anti-sabotage department. However, they did not find anything,” he said.Goyal said there were sufficient security arrangements not only for the high court and the city civil court but also at all vital installations and important buildings of the metropolis.There was no disruption of the court as proceedings end at 4.15 pm. PTI

Curbs on gay sex is violation of fundamental right, HC told
New Delhi, Sep 25 (PTI) The gay rights activists today contended before the Delhi High Court that the government cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.”The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But these rights of 25 lakh homosexuals in the country are being violated,” Advocate Shyam Diwan, appearing for gay rights activists said before a bench headed by Chief Justice A P Shah.The Court was hearing a petition filed by a bunch of NGOs, including Naz Foundation, seeking court’s direction to decriminalise homosexual acts among consenting adults by amending Section 377 of Indian Penal Code.The IPC at present holds homosexual act as an offence and the Section provides a punishment of up to life imprisonment for indulging in such acts.”Moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex,” Diwan said adding that gays in the country don’t have full “moral” citizenship and they are being treated as second class citizens.”There are many identities by which a person is recognised. Normally people’s identity is decided by one’s nationality, caste, religion and region but when it comes to a gay, lesbian or trans-gender person, it is their sexual orientation which becomes their sole identity,” he said. PTI

Centre has no power to ban smoking in pvt office, HC told
New Delhi, September 24: ITC Ltd, which has approached the Delhi High Court against the Centre’s notification banning smoking in private offices, on Wednesday contended that the Government has no power to take such a decision.
Senior Advocate Soli Sorabjee, appearing for the company contended that the Act under which the notification was issued has already been stayed by the Madras High Court.
“When the Act has already been stayed where is the question of framing rules under the law. The government need to have statutory power to frame rules. After the Madras High Court interim order staying the operation of the law, the government has no power under the law,” he contended before a Bench headed by Justice Vikramjit Sen.
He submitted that the rule which bans smoking at work places is unjustified as it would include private offices like a lawyer’s chamber and studio of an artist.
Agencies Posted: Sep 24, 2008 at 1737 hrs IST

HC admits plea against illegal detention
Mumbai: As Mumbai police made the first five arrests from the city on Wednesday in connection with the Ahmedabad blasts, in a significant development, the Bombay high court admitted a petition filed by an accused in the March 2003 Mulund blast case challenging his 35-day illegal detention prior to his arrest five years ago. Earlier this year, the HC had directed that a judicial inquiry be held by the principal sessions judge into the alleged 35-day illegal detention of accused Adnan Mulla. The probe has confirmed that it was a case of illegal detention , said Mulla’s advocate Mubin Solkar. The HC on Wednesday directed that the three police officers who were named in the inquiry be made party to the petition now. Mulla, who has been in jail since 2003, had moved the high court seeking probe into his illegal detention in connection with the Mulund blast in which over 10 people were killed.
25 Sep 2008, 0546 hrs IST, Swati Deshpande ,TNN

Guide books get HC clean chit from copyright charges
NEW DELHI: The much-used guide books, the ubiquitous “kunjis”, have survived a challenge to their existence with Delhi high court holding that books which offered “step-by-step” answers to questions contained in text books could not be seen to have violated copyright laws. Often the last resort of students hurrying to catch up with curriculum ahead of exams or those considered “weak” at studies, the “kunji” has for long attracted the ire of authors who have felt it was a barely disguised attempt at plagiarism or an unedifying rendering of their works. But now, guide books have emerged stronger, riding on a sympathetic ruling from the HC which dealt with a copyright challenge petition moved by ‘The Chancellor Masters & Scholars of the University of Oxford’, the well-known publisher of academic books. Disposing of the attack, HC said guides had no pretentions, neither masquerading as text books nor containing theoretical or explanatory portions of them. They just provided a step-by-step, or easy to understand, solutions to questions, which were copied for “fair use” and hence could not be charged for copyright violation. They catered to a different category – students ‘weak’ in understanding the subject. The publisher complained that one Narendra Publishing House, which brought out guide books, was in breach of copyright law as it had copied entire sets of questions from its mathematics text books for class XI and XII and solved them. Counsel Rajiv Bansal said sequencing of chapters and questions at the end were identical as in the guide books, and said authors of the book as well as the publisher had a copyright over these queries as well. “Guides compete with original text books for market share and hence, hurt commercial interest of publishers of the text books,” Bansal said. Appearing for the guide book publisher, counsel Pratibha Singh said attempt to provide solution to the questions was based on the doctrine of fair use and was intended to help weak students. “Preparation of a guide book, which independently contains the working of every mathematical problem and steps for solving them, cannot be termed an infringement of the text book,” she said. Accepting her contention, Justice Ravindra Bhat ruled in favour of the guide books giving them a clean chit from the charge of copyright infringement. Justice Bhat said a careful analysis of guide books against text books showed the latter did not contain the step-by-step process of arriving at solutions or answers, while guide books did not refer to theoretical or explanatory content as in the text books. The use of questions and answers by the guide book, which provided the process of reasoning, was for a different purpose, the judge said.
25 Sep 2008, 0541 hrs IST, Abhinav Garg & Dhananjay Mahapatra,TNN

CJI unruffled by criticism on judges’ appointment procedure
New Delhi (PTI): Facing criticism of the system of appointment of judges for the Supreme Court and High Courts, Chief Justice of India K G Balakrishnan on Thursday said the procedure was the outcome of a judgement of the Constitution Bench of the apex court.
He said that the collegium which consists of three senior-most judges of the apex court only abides by the decision of the Supreme Court.
“We are following Supreme Court order on the procedure for appointment of judges. So long it is there we will follow the procedure,” the CJI said in an interaction with the legal correspondents of apex court.
“I am bound by the decision of the Supreme Court till a change is brought by the legislatures,” he said.
He was responding to the reported statement of Law Minister H R Bhardwaj, who was of the view that there was a need for a re-look at the collegium system, for appointment of judges, which he claimed has failed.
Justice Balakrishnan said even in the present system of appointment of judges government has some say.
“Previously government had more say. Even now they can have say subject to the satisfaction of the CJI,” he said refrained from giving his personal view.
The CJI conceded that there were some difficulties and mistakes in the appointment of judges and corrective measures were taken to streamline the process.
“There are some difficulties and mistakes. I tried to correct and streamline the process,” he said and elaborated that help of Bar Councils are also taken to find out whether any cases are pending against the advocates likely to be appointed as judges.
Thursday, September 25, 2008

Law panel suggests separate tribunal for bounced cheque cases
NEW DELHI: Litigants involved in over 38 lakh cheque-bounce cases may get relief if a proposal, being considered by the Law Commission, to set up separate tribunals takes concrete shape.
The board of the Law Commission, which meets next month, is likely to approve a report which envisages separate tribunals for disposing cases under section 138 of the Negotiable Instruments Act to extend speedy justice.
“The board of the Commission will meet next month to approve the report…it will then be handed over to the government,” said Law Commission of India Chairman, Justice A R Lakshmanan.
The proposal before the Commission says that unless speedy justice is delivered to the aggrieved, the purpose of the amendment in the Act in 2002 gets defeated.
Under the amendment, such cases are considered serious in nature. It also provides for enhanced punishment by way of penalty and period of punishment.
Since the number of judicial officers to deal with such cases is not enough, over 38 lakh such matters are pending before various courts in the country.
The magistrates have to dispose a variety of cases under provisions of IPC and CrPC and also cases under section 138 of the Negotiable Instruments Act, the proposal says.
The courts, it says, have very little time to deal with cases of commercial nature. – PTI

Independent tribunal accuses World Bank of human rights abuse
Mumbai, Sep 25 (PTI) A tribunal has accused the World Bank of fostering Human rights abuse and causing environmental damages in bank-funded projects in India.The Independent People’s Tribunal (IPT) on World Bank Group, which submitted its final report on Wednesday, said the multilateral agency had been accused of several human rights abuses, including miscalculation of poverty, contribution to India’s agricultural depression and farmers suicides.The tribunal also said, the World Bank led development had not improved employment levels in India and the Bank through policies of financial liberalisation, had reduced credit to India’s rural poor, particularly dalits and adivasis and had undermined the elementary education system in India.There were 29 such charges against the World Bank in the final report that included water management, damage to environment and power reforms.”The evidence and depositions we have witnessed presents a disturbing picture of increased and needless human suffering since 1991 among hundreds of millions of India’s poorest in rural areas and in the cities,” the tribunal said.”It is clear that a significant number of Indian government policies and projects financed and influenced by the World Bank have contributed directly and/or indirectly to this increased impoverishment and suffering,” the tribunal release said.A 1,000 page document was prepared by the tribunal and the final report was of 35 pages, the tribunal release said. PTI

VHP welcomes Nanavati Commission report
The VHP on Thursday described as a “landmark judgement” the Nanavati Commission report which gave a clean chit to Gujarat Chief Minister Narendra Modi.
VHP international secretary Pravin Togadia said that the report has established that Godhra train carnage was a “pre-planned attack.”
The fact that 140 litres of petrol was purchased a day before the train fire proves that it was a “pre-planned attack,” Togadia told PTI on the sidelines of the parishad’s national council meeting in Agra.
The meeting decided to stage a nationwide agitation against jihadi forces.
Togadia also urged Prime Minister Manmohan Singh to disassociate himself from any dialogue process with Pakistan.
Press Trust Of India
Agra, September 25, 2008

Commission “satisfied” with findings, says Justice Nanavati
New Delhi, Sept 25 (PTI) With opposition parties critical of the report on the Godhra train carnage, Justice G T Nanavati today said the commission was “satisfied” with its findings.”Unless we were satisfied, we would not have tabled the report. We have no doubt about what we have written,” Justice Nanavati told ‘Times Now’, when asked whether he was convinced about the findings of the report.Asked to comment on Congress allegation that the panel had given clean chit to Gujarat Chief Minister Narendra Modi, he said “everyone is entitled to expressed ones’ opinion. I have nothing to say about it”.He said it was for people to draw whatever inference they wished to.Congress said it was “not at all surprised” by the findings of the commission, appointed by the Gujarat government, giving a clean chit to Modi.RJD chief and Railway Minister Lalu Prasad, said “people will not believe that Modi is innocent”, while LJP chief and Union Minister Ramvilas Paswan dismissed the report as an “eyewash”. The CPI has termed the findings as “partisan”. PTI

Daily Legal News 25.09.2008

Booming market rings in legal disputes for telecom JVs
MUMBAI: With current and erstwhile joint venture partners of most telcos locked in legal battles, telecom seems to have become one of the most litigious sectors in India. And as operators expand beyond India, they need to spend more on legal due diligence. Combined with legislation that lends itself to multiple interpretation, legal expenses of operators are only moving northwards. There is so much money in the sector, adding over 9 million users every month, that disputes are the most likely fallout. “When most JV partners got into the business, it was without a clear and defined path. They didn’t anticipate this kind of growth and as businesses are becoming bigger, everyone wants a bigger pound of flesh,” KPMG director (telecom) Romal Shetty told ET. The Birlas and Tatas joined hands with USA’s AT&T in 1995 to form a telecom venture now called Idea Cellular. However, the growth brought with itself the battle for having operational control. Ultimately, Tatas exited the JV in 2006, but also moved court against the Birlas for allegedly flouting the shareholders agreement. The matter is now under arbitration.
“Also, foreign operators who came to India in the second and third wave through M&As had to spend a huge amount of money for due diligence, fees etc. In Vodafone’s case, income tax litigation has opened a Pandora’s box,” said Akil Hirani, managing partner at law firm Majmudar & Co. “The difference of opinion between DoT and regulator TRAI on a whole host of operational matters causes a lot of difficulties. It results in filing of writ petitions or seeking legal opinion, increasing expenses,” he added. Amit Karkhanis, an advocate at the Bombay High Court, said when partners have disputes, they have no option but to approach the courts. “Telecom Disputes Settlement & Appellate Tribunal (TDSAT) does not have the power to adjudicate disputes between joint venture partners, leading to increase in number of court cases and legal fees,” he added. Vodafone is locked in arbitration with JV partner, the Essar group, over BPL Mobile while Malaysia’s Maxis, which bought Aircel Cellular from serial entrepreneur C Sivasankaran in January 2006 is now in arbitration with the Chennai industrialist. During the last fiscal, Bharti Airtel spent a whopping Rs 907 crore on ‘legal and professional expenses’ while the figure for Tata Communications (earlier VSNL) was Rs 421 crore. Reliance Communications clubbed it with administrative expenses, which stood at Rs 770 crore. However, an Airtel spokesperson said, “The generic account head ‘legal & professional’ includes several other expense heads. It includes other items such as expenses pertaining to IT and customer service under our strategic outsourcing arrangements with IBM and leading call centre service providers.” Analysts point out that with increasing global ambitions of Indian operators, legal expenses are bound to rise. “Stakes are very high in cross-border transactions. Stringent legal due diligence is required to ensure all norms are adhered to,” said Mr Shetty. Earlier this year, both Bharti Airtel and RCOM were chasing South African giant MTN for a possible combination of businesses. While a deal could not be signed, both the companies did spend crores on fees of lawyers, he said.
25 Sep, 2008, 0154 hrs IST,Rashmi Pratap, ET Bureau

HC Orders CS to Appear over Dal Lake Pollution
Srinagar, Sep 24- – Kashmir High Court today directed Chief Secretary S S Kapur to appear before it on Thursday, over a public interest litigation (PIL) on the rapidly deteriorating condition of the world famous of Dal Lake.Taking a serious note of the non-appearance of Kapur, a division bench comprising justices Nisar Ahmad Kakroo and Hakim Imtiyaz Hussain directed the principal secretary, law department to ensure the chief secretary’s presence in the court at 10 am.Despite an order, Kapur opted for non-appearance and on his behalf principal secretary to government, department of law, had appeared, reporting that the chief secretary was busy in a meeting.”Does it amount to make the direction of the court subservient to the meetings in the secretariat? We choose not to express our opinion at this stage,” the bench said.In order to avoid appearance of the chief secretary and commissioner secretaries of other departments, on an earlier occasion, the court had directed the state to appear through the advocate general.”But he has chosen for oblivion and the state and its functionaries, excepting Lakes and Waterways Development Authority (LAWDA) have gone unrepresented, leaving no option for the court but to direct personal appearance of the chief secretary,” the order said.The court observed that at a point of time, it wanted to operate through the chief secretary and consequently all the officers concerned and their responses were sought through him.”The report received from the Pollution Control Board (PCB) among other things described the condition of the Lake as stinking, savage looking and flow of sewage and waste into the Lake to be the rule of day,” the court observed.Quoting the report, the court said the condition of Lake was “alarming”.Earlier, all the state functionaries, including the chief secretary, were made accountable to the court, requiring them to file a detailed report in terms of the direction dated September 19.”This order was communicated to the chief secretary but amazingly he did not respond in writing.” the bench said.

Missing in Action
In the wake of the Delhi blasts and the terrorist attacks in other cities, there has been plenty of talk about intelligence gathering and coordination among states and security agencies. But a fundamental point seems to have been missed. The police are woefully understaffed to meet the challenge of tackling terror and crime. According to the latest figures, there are more than 1.3 lakh vacancies in the central and state police. This works out to a mere 143 policemen per lakh of population, which is well below the UN-mandated minimum norm of 222 police personnel for every one lakh people. While the ratio of police-to-people in India is much lower than most developed countries, it does not even compare to developing countries. Mexico, for instance, has 492 policemen per lakh of population. What is worrying is that some of the states that are worst hit by violence have the most police vacancies. For instance, Chhattisgarh – one of the states most affected by Naxalite violence – has about 7,000 vacancies in its police force. Another Naxalite-hit state, Jharkhand, has nearly 9,000 vacancies. But it’s not just about numbers. There are serious problems with the structure of the police. The beat constable – the lowest link in the police but also the most indispensable – is poorly paid and given scant respect. He has little incentive to do his job and is liable to be corrupt. There is also a problem with the way the police functions as an institution. The police haven’t yet shed its colonial-era baggage. So many years after independence the police still have an adversarial relationship with citizens. They haven’t been able to win the trust of the people, something that is amply reflected even in Bollywood films. Efforts to reform the police have often hit a wall. In response to a PIL, the Supreme Court in 2006 ordered a comprehensive restructuring of the police force. This included a minimum tenure for police officers and a separation of investigative and law-and-order functions. Most states have, however, stalled these reforms. There is also massive under-reporting of crime in the anxiety of state governments to keep crime figures low. Uttar Pradesh is one of the worst offenders. This, along with the low conviction rate of criminals, has led to increasing instances of people taking the law into their hands. These cases of vigilantism and mob justice are an indication that the rule of law is seriously impaired in India.
25 Sep 2008, 0010 hrs IST

Plea seeks self-government status for Gandhinagar
The Gujarat High Court Tuesday admitted a public interest litigation (PIL) seeking the local self-government status for state capital Gandhinagar.
Jayant P. Bhatt, counsel for the petitioner Gandhinagar Shaher Jagrut Nagrik Parishad, told IANS that the state government had in December 2007 mooted a proposal to give the local government or municipal corporation status to Gandhinagar, about 40 km from here.
“As per article 243 (q) and 243(r) of the constitution and as per the 1994 amendment to Article 74, it is mandatory for all state governments to establish local self-government in large urban areas,” he said.
Gandhinagar, a planned township that was developed as state capital after the Bombay state was carved into Maharashtra and Gujarat in 1960, has been part of the Ahmedabad district administration.
“If Junagadh with a population of 165,000 can be declared the seventh municipal corporation in the state, why not Gandhinagar with 195,000 inhabitants?” Bhatt pointed out.
Advocate General Kamal Trivedi appeared for the state during the hearing.
By Indo-Asian News Service on Tuesday, September 23, 2008

High Court stays reinstatement of GMC council
GUWAHATI, Sept 24 – The Division Bench of the Gauhati High Court comprising Justice AH Saikia and Justice Anima Hazarika today stayed the order of restoration of GMC council passed by the single judge of the High Court on September 15. The GMC council was dissolved by the Govrnment on May 26, 2008 and the dissolution was challenged by four councillors before the Gauhati High Court by filing a writ petition. The court by a judgment and order dated September 15, 2008 passed by Justice BK Sarma quashed the order of dissolution of the council dated May 26 and directed restoration of the council. The State Government has filed writ appeal No. 320 of 2008 challenging the earlier order dated September 15 and the court after hearing the appeal today issued notice returnable by November 5, this year.KN Choudhury, additional advocate general, Assam, J Patowary, advocate appeared on behalf of the State of Assam while GMC was represented by senior advocate Niloy Dutta and Debojit Saikia, standing counsel, GMC advocate Saurav Kataky appeared on behalf of the four GMC councillors.
Legal reporter

No undertrial to be handcuffed without permission, says High Court
Chandigarh, September 24 To ensure that no undertrial is handcuffed without the prior permission of court, the Punjab and Haryana High Court has issued directions to the Director General of Police, Punjab and Haryana, and the Chandigarh Inspector General of Police to convey the same to their officers.
A Division Bench of the High Court has also directed all the magistrates of Punjab, Haryana and Chandigarh to verify from each and every undertrial produced before them if they were handcuffed by the police.
The High Court has also directed the magistrates to know every detail before granting permission to handcuff any undertrial.
The Court made it clear that the police will have to give a reason if it wants to handcuff an undertrial.
Express News Service Posted: Sep 25, 2008 at 0118 hrs IST

High Court wants fresh board to hear Nalini’s plea
The Madras High Court on Wednesday ordered the constitution of a fresh advisory board to hear the demand of convicts in the Rajiv Gandhi assassination case who are seeking early release.
The court also urged Nalini Murugan and others to approach the Tamil Nadu government afresh with their demand, saying only the state had the power to effect premature release of life convicts.
Justice S. Nagamuthu, however, struck down the government order rejecting the demand for premature release, saying it was based on improper recommendations of the advisory panel.
S. Doraiswamy, the senior counsel who represented the convicts, claimed victory.
“The judge upheld our contention that the government had mindlessly rejected a just demand and … ordered the reconstitution of the advisory panel whose recommendations were unjust and illegal. It is a big victory for those who believe in justice,” Doraiswamy told reporters.
Prosecution sources told IANS that the court had not struck down the state’s powers to decide upon the release of the convicted prisoners and had thus upheld its main contention.
Nalini Murugan alias Sriharan, who had accompanied the suicide bomber to the election rally where Gandhi was killed in May 1991, had sought her release saying she had spent more than the mandatory maximum 14 years in jail.
Three other convicts sentenced to death in the same case had appealed for release on the ground that they had waited for years for the hangman – a condition worse than the capital punishment. Further, they said they also had completed the life imprisonment period.
Nalini, her husband and former Tamil Tiger guerrillas Murugan and two others were sentenced to death for their role in the killing of Gandhi.
The Madras High Court had upheld Nalini’s plea for clemency on a technicality and on the basis of an earlier ruling of the Supreme Court, which said that both the parents of a child should not be put to death. Her death penalty was commuted to life sentence.
Nalini had delivered a girl Megara (presently studying in Britain) in prison in 1992.
Indo-Asian News Service
Chennai, September 24, 2008

Security stregthened in Kerala High Court http://www.hindu.com/thehindu/holnus/004200809241950.htm
Kochi (PTI): Security has been strengthened in the Kerala High court.
The State Home secretary and DGP had met Chief Justice H L Dattu on Tuesday and after discussions a decision was taken to tighten security, high court sources said.
Metal detectors would be installed in all main entrances of the court. Staff have been directed to bring their identity cards from tomorrow.The number of police personnel deployed in the high court has also been increased.
The security was tightened following an earlier proposal to increase the security in the court.
Wednesday, September 24, 2008

Women can serve alcohol: Karnataka High Court
Bangalore, Sept 24 (ANI): The Karnataka High Court in a land mark judgment gave ruling which allowed the employment of women at places that serve alcohol here today.
The ruling also quashes the existing “Karnataka Excise Act 1965”, which prohibits women from working at such places including pubs, dance bars and live bands, where liquor is served.

The High Court while announcing its verdict also referred to a similar judgment by the Supreme Court last year, which permitted women to be employed as bar tenders provided their security was ensured.

While talking to media, Advocate for the live band association, bar girls association A.N. Ramesh said the High Court today quashed the Karnataka Excise Act 1965 and allowed women to serve liquor in bars.
Karnataka live band association’s secretary Sanjay Kochar who fought the case said this judgment would provide more employment to women in Karnataka.
The Karnataka high court Judge Justice Shailendra Kumar delivered this judgment putting an end to a long controversy. By Kestur Vasuki (ANI)
Bangalore, Wed, 24 Sep 2008 ANI

Tax dept must accept cos’ audited accounts: SC
NEW DELHI: The Supreme Court has said the Income-Tax Department has to accept the authenticity of the accounts maintained in accordance with the provisions of the Companies Act and certified by the auditors. The assessing officer cannot go beyond the net profit shown in the profit and loss account, except to examine whether the books of accounts were duly certified by the authorities and properly maintained, the court said. A bench comprising Justice S H Kapadia and Justice B S Reddy said: “The AO (assessing officer) has to accept the authenticity of the accounts maintained in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, which are certified by the auditors and pressed by the company in the general meeting.” “The AO has only the power of examining whether the books of accounts are duly certified by the authorities under the Companies Act and whether such books have been properly maintained in accordance with the Companies Act. The AO does not have the jurisdiction to go beyond the net profit shown in the profit and loss account except to the extent provided in the explanation (appended to Section 115J of the Income-Tax Act),” it said. According to explanation of the Act, the “book profit” means the net profit as shown in the profit and loss account prepared under sub-section (2) of the Act. The court said Section 115JA of the Act, which refers to ‘deemed income relating to certain companies’ has an overriding effect upon other provisions of the Act. In this case, HCL Comnet Systems & Services had filed its return for 1997-98. During the course of assessment proceedings, the AO found the company had debited Rs 92.15 lakh on account of bad debts to the profit and loss account. However, on the ground that it was a provision for bad and doubtful debts, the AO added the amount to its book profits.
25 Sep, 2008, 0258 hrs IST,Sanjay K Singh, ET Bureau

SC: no urgent directions on release of TN prisoners
New Delhi, September 24 The Supreme Court on Wednesday declined to pass any urgent directions on a petition challenging the release of 1,405 prisoners, including 22 women, by the Tamil Nadu Government on the occasion of the birthday of former chief minister C N Annadurai.
Refusing to grant an urgent hearing, the Bench headed by Chief Justice K G Balakrishnan said it will hear the matter in due course. The matter has been scheduled for hearing on October 13.
The PIL filed by four advocates — N Rajaraman, K Satish Galla, K K S Krishnaraj and V Senthil Kumar — alleged that the Government order relating to the release of prisoners was mainly to facilitate the release of partymen of the ruling dispensation by either misusing the power or by using the political will of the ruling party to get the sanction of the Governor, completely contravening the law.
“The Act (to release prisoners) was illegal and arbitrary and the Government had not taken necessary steps to obtain reports from the jail authorities about the convicts,” the petition stated.
Express news service Posted: Sep 25, 2008 at 0101 hrs IST

SC: right to property now a human right
New Delhi, September 24 Taking a cue from courts in the US and UK, the Supreme Court has taken a view that the right to property is now a human right.
Referring to several landmark decisions passed on the law of adverse possession of property, the Bench comprising Justices Dalveer Bhandari and H S Bedi noted, “The right of property is now considered to be not only a constitutional or statutory right but also a human right.” Quoting from a decision passed by an English court, the Bench said, “Human rights have been historically considered in the realm of individual rights such as right to health, right to livelihood, right to shelter and employment, etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension.”
“Therefore, even claim of adverse possession has to be read in that context,” the apex court remarked taking an ‘activist approach’ similar to the English courts. “But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights,” Justice Bhandari, writing the judgement, said.
The bench said the Central Government should “seriously consider” a change in law to prevent squatters from dishonestly enjoying property. “There is an urgent need of a fresh look regarding the law on adverse possession. We recommend the Centre seriously consider and make suitable changes in the law of adverse possession,” it ruled while dealing with a provision of law which requires that the burden of proof lies on owners to show that they have the title to and have been in possession of the property and were dispossessed within a period of 12 years from the date of filing the suit.
Express news service Posted: Sep 25, 2008 at 2336 hrs IST

SC relief to Sony India on customs duty
NEW DELHI: The Supreme Court has held that components of colour television (CTV) imported by Sony India cannot be treated as completely knocked down units and therefore would attract less duty. A bench headed by Justice S H Kapadia dismissed a petition filed by the Customs and Excise Department challenging the sectoral tribunal’s ruling which held in favour of Sony India, a wholly-owned subsidiary of Sony Corporation, Japan. The department had alleged that the consignments imported by Sony India, a wholly owned subsidiary of Sony Corporation, Japan, between April 1995 to 1997 were not components but completely knocked down (CKD) kits which draw higher customs tariffs. The bench upheld the Customs, Excise & Gold (Control) Appellate Tribunal verdict which set aside the demand notice issued by the department asking the company to pay a differential duty demand of more than Rs 42.89 crore under the Customs Act, 1962. The tribunal while quashing the penalty of more than Rs 30.19 crore imposed on Sony India for duty evasion had also held that the duty demand by the department, direction for confiscation of components and imposition of penalty were unsustainable in law.
24 Sep, 2008, 2033 hrs IST, PTI

Justice J.S.Verma on Judicial Appointments
In this interview, Justice J.S. Verma pleads for transparency in judicial appointments, while looking at his majority 1993 judgment in the Advocates-on-record case retrospectively. To a question on the Justice Sen affair, I am reproducing his reply which has not been carried in the published interview: “Even doubtful appointment should not be made. It is better not to appoint a doubtful person rather than appoint him and regret later. The amount which he got as a Receiver was meant to be deposited in some other account, and he deposited it in his own account, and kept it there for years. Even if he could not use it, he had it, and interest was accruing. So he had the benefit of that amount whether he used it or not. At least, this is a doubtful case, even if he had returned it later unless there is a cogent explanation why he had to deposit it. I can understand if immediately there is no other account, so he deposits the amount, and opens another account to transfer it. So his intention is clear. But if you retain it for years, and you need a court order, well, then, that is not something which a person at that level is expected to do.”If those who recommended Justice Soumitra Sen’s appointment did not know his antecedents, they lacked due diligence. There may be certain things which are known only to the Executive, but this was something which must have been known, because it was part of the court record. And he was practising. His name must have been recommended by the Chief Justice of that court. SAIL is a PSU. That means there was lack of due diligence, if the Chief Justice did not know. If they knew, and did not act, it was failure. The question of accountability of the collegium now is only academic. You can only prevent these things, and put them on guard.”
Posted by V.Venkatesan at 2:13 PM
Wednesday, September 24, 2008

HC to hear ITC’s plea against ban on smoking on Sept 30
‘” href=”http://www.blogger.com/’%20+%20google_ads%5B0%5D.url%20+%20%20%20%20%20%20%20%20%20%20%20%20%20%20′” target=_bank>New Delhi, September 24 The Delhi High Court will hear Indian Tobacco Company (ITC) Ltd’s petition challenging Government’s notification of banning smoking in private offices and other establishments on September 30.
A bench headed by Justice Vikramjit Sen deferred the hearing after Centre conten-ded that a case related to the issue is coming before Supreme Court on September 29.
Besides ITC, two other petitioners, including Indian Hotels Association, have also moved separate pleas challenging the May 2008 notification issued by the Union Health Ministry to implement smoke-free rules from October 2 in all public places, including restaurants, hotels, pubs and discotheques.
Representatives of the hotel industry had approached the ministry last week asking for various exemptions in the implementation of the new rule, claiming that they would approach the court if their demands were not met. Teena Thacker Posted: Sep 25, 2008 at 0057 hrs IST

HC postpones hearing on Haj pilgrims’ ‘erroneous’ list
Ahmedabad, September 24 The Gujarat High Court’s division bench of Chief Justice K S Radhakrishnan and Justice M S Shah on Tuesday deferred further hearing on the ‘erroneous’ list of Haj pilgrims from Gujarat to October 6.
As every state is allotted a limited quota as per their population ratio and there is huge rush of pilgrims, the names are sorted out through draw of lots by Haj committees of respective states.
In Gujarat, which has been allotted a quota of 4,211 pilgrims by the Central Haj Committee (CHC), about 7,200 pilgrims were selected by mistake through a computer generated draw on April 21 this year.
Although the CHC corrected the mistake on April 22 and held another draw for 4,211 from among the 7,200, it led to complications. Those who had their names on the list of 7,200 sorted out earlier had celebrated the event and made arrangements for the pilgrimage.
Express News Service Posted: Sep 25, 2008 at 0049 hrs IST

Karnataka HC okays women staff in bars
Karnataka High Court on Wednesday allowed women to be employed in bar and restaurants.
In response to two writ petitions filed by a group of bar owners and women employees, challenging the restrictions imposed by the state, Justice D.V. Shylendra Kumar held Rule 9 of the Excise Rules which prohibits employment of women as bars hostesses and Section 20 (2) of the Karnataka Excise Act as violative of the Constitution.
The petitioners complained the restrictions were hindering their fundamental rights and resulting in loss of job opportunities. “The restrictions are outdated and does not fit the modern thinking. They are against gender equality.”
They had also filed an undertaking stating no woman employee at their bar and related establishments will be compelled to serve liquor, if they have objections. “We may not start employing women straight away after the orders, we will wait for some time,” said M.S Jayaram, a petitioner and member of the live band owners association.
B.R. Srikanth, Hindustan Times
Email Author
Bangalore, September 25, 2008

Battle for elected Gandhinagar municipality goes to HC
Ahmedabad, September 24 Gandhinagar is the only state capital in the country that does not have an elected local body
The battle for an elected civic body for Gandhinagar — the only state capital in the country without an elected municipality — has now reached the Gujarat High Court.
After all efforts of the Gandhinagar Shaher Jagrut Nagrik Parishad to get a favourable decision from the court failed, it moved a Public Interest Litigation (PIL) on Tuesday before a two-judge bench comprising Chief Justice K S Radhakrishnan and Justice M S Shah.
Syed Khalique Ahmed Posted: Sep 25, 2008 at 0040 hrs IST

Sale of K-G basin gas: Govt to approach HC
The government will approach the Bombay High Court to remove the ban on sale of gas from Reliance Industries’ D6 block in the Krishna-Godavari (K-G) basin, a top official in the petroleum ministry said today.
If the court lifts the ban on sale of gas, RIL would be able to sell gas to entities other than the two companies — Reliance Natural Resources Ltd (RNRL) and NTPC Ltd, with whom it is locked in a court battle.
“Efforts are on to get the injunction vacated so that gas production can start at the earliest,” said Petroleum Secretary RS Pandey. “Till the stay is vacated, gas production (from the block) cannot begin. This is an issue of national importance,” he added.
Earlier this year, the Bombay High Court had ordered RIL not to enter into any third-party contract for the gas the company planned to produce in January this year. The entire volume of gas is under dispute, with Anil Dhirubhai Ambani Group company RNRL and government-owned power producer NTPC laying claim to a major volume of the gas.
The peak rate of flow of gas from the area is projected to be 80 million cubic metres per day (mcmd), which is nearly double India’s gas availability. Pandey said that many power and fertiliser plants were waiting to utilise their idle capacities by using the gas as fuel.
Pandey said the government had assessed the work in the gas block and the estimate was that production would begin by the end of the year. Earlier this week, RIL Chairman Mukesh Ambani had said the gas production would start between January and March next year.
However, the gas continues to be under dispute with the Bombay High Court scheduled to hold the next hearing in the case between RIL and RNRL on September 30.
When asked if the government would seek the lifting of the court stay order on the gas sale before the next hearing on September 30, Pandey said there was still some time for the gas to be ready to start flowing.
The dispute between the companies promoted by the two Ambani brothers relates to allotment of gas from the D6 block in the Krishna Godavari basin, operated by RIL, to a proposed power plant by RNRL, a company controlled by Anil Ambani.
RNRL claims it is entitled to 28 mcmd at a price of $2.34 million British thermal unit (mBtu) for 17 years, according to an agreement signed between the two brothers while separating the assets of the undivided RIL. The price was, however, rejected by the petroleum ministry in June 2006 as it claimed the price was not arrived at through an ‘arm’s length’ mechanism.
Last year, the government of India also set a higher benchmark price of $4.2 mBtu for the gas from the K-G basin. This is almost double the original price of $2.34 per mBtu agreed upon by RIL and RNRL.
Bs Reporter / New Delhi September 25, 2008, 0:24 IST

Consider Nalini’s early release plea again: HC to TN Government
‘” href=”http://www.blogger.com/’%20+%20google_ads%5B0%5D.url%20+%20%20%20%20%20%20%20%20%20%20%20%20%20%20′” target=_bank>Chennai, September 24 Maintaining that the Prison Advisory Board that looked into the premature release petition of Nalini Sriharan — sentenced to life for her role in Rajiv Gandhi’s assassination — was not properly convened, the Madras High Court quashed the report filed by the board and the subsequent Government order that rejected her application, and directed authorities to reconsider the matter.
Passing verdict on a petition filed by Nalini’s counsel, Justice S Nagamuthu accepted the petitioner’s contention that the Advisory Board of Vellore Special Prison for Women did not go through all relevant matter while preparing its report.
Holding that members of the board including its chairman were not informed about the meeting; that the district collector presided over the meeting without the authority of the law; and that all parameters enumerated in Prison Rules were not taken note of by the board, Justice Nagamuthu pulled up the authorities stating, “from the records available, what I could gather is that the entire exercise has been treated only as an empty formality and no serious concern was ever shown by the authorities to validly conduct the meeting and to seriously consider the issues in accordance with law.”
However, the court held that the petitioners did not have any “vested right” to demand premature release either under Article 161 or under the provisions of the Code, but added, “they have got a right to demand that their cases be considered for premature release if they satisfy the requirements of the Tamil Nadu Prison Rules.”
Express news service Posted: Sep 25, 2008 at 2327 hrs IST

Cheers! women bartenders
BANGALORE: Raise a toast to women. Women in Karnataka can now be employed in licensed liquor serving joints – male bastions – as bartenders. Providing relief to women seeking employment in bars and restaurants, the Karnataka High Court on Wednesday quashed Rule 9 of the Karnataka Excise (General Conditions) Rules which had forbidden women from being employed in such places. In reaction to the verdict, the excise department said it had nothing to contest: the Act allows women to obtain all kinds of excise licences; there is no reason for us to prohibit women from serving liquor. Predictably, the government said it was yet to receive the judgment copy. Justice D V Shylendra Kumar, while allowing petitions filed by the owners of several bars and restaurants as well as women seeking employment, also set aside Sub-section (2) of Section 20 of the Karnataka Excise Act as unconstitutional. The section had allowed employment of women in such places on seeking prior permission of the deputy commissioners concerned. The judge, while negating the state government’s contention that the rule was framed as a special provision under Article 15(3) to protect women, observed that Rule 9 of the Karnataka Excise (General Conditions) Rules, 1967 is ultra vires and unenforceable. Sub-section(2) of Section 20 of Karnataka Excise Act is unconstitutional, it noted. The judge has followed the Supreme Court’s recent verdict in the Anuj Garg case wherein Section 30 of the Punjab Excise Act – with similar provisions – was struck down as discriminatory and unconstitutional and violative of Articles 14, 15, 16, 21 and 39. “The two-judge Bench of the apex court was aware of the order of the larger Bench which the state government has quoted in defence of its action in bringing this regulatory provision,” the judge observed. “While as per Section 20 of Excise Act women can be employed with due permission from the deputy commissioner, Rule 9 of the Excise Rules clearly forbids women from being employed in such places. What has been given in the Act has been taken away in the rules,” the petitioner had contended. R Roopa and other women had approached the court challenging the validity of Rule 9, calling it discriminatory and infringing on their fundamental right to means of livelihood. “With regard to social development, current social norms, trends and commerce, India having expanded and having become global, the restriction of the nature sought to be imposed is totally outdated and does not fit into modern thinking and (is) also against gender equality,” the petitioners had contended. The state government, represented by advocate-general Udaya Holla, had defended the provision saying: “To safeguard general values, reasonable restrictions can be imposed. The state has the power to impose such conditions in the larger public interest.” “Though liquor is dangerous, the right of women and their professional choice to seek employment cannot be curbed like this,” counsel for the petitioners had submitted. The bar owners promised, “We will undertake that no woman employee employed in any capacity in our establishments will be compelled to serve liquor in the bar in the event she has objection to doing so.”
24 Sep 2008, 2049 hrs IST,TNN

Concerned over Dal’s plight, HC seeks CS’s presence
Srinagar, Sep 24: In response to a Public Interest Litigation on the deteriorating situation of Dal Lake, the double bench of the High Court on Wednesday sought the presence of State Chief Secretary, S S Kapoor in the court on September 25. Taking strong note of the absence of Advocate General, Altaf Naik, who was supposed to be present during the hearing, the double bench of the High Court comprising Justice Nissar Ahmed Kakroo and Justice Hakim Imtiyaz Hussain ordered the presence of the Chief Secretary and adjourned the court till 3:30 PM. However, Principal Secretary to Law department appeared in the court reporting that the Chief Secretary was busy in a meeting and hence could not reach the court. Annoyed by this the judges remarked, “Does it amount to holding the directions of the court subservient to the meetings in the secretariat.”The judges choose not to express their opinion at that stage and listed the case at 10 am on September 25 with a direction to the Principal Secretary Law department to ensure appearance of the Chief Secretary of the state before the court.Justice Nissar Ahmed Kakroo and Justice Hakim Imtiyaz Hussain observed said that from day one their endeavour has been to impress upon the state and its functionaries to realize the vital importance of Dal Lake vis-à-vis human and animal life besides maintaining its ecological balance.They observed, “At a point the court wanted to operate through chief secretary of the state. Consequently all the officers concerned were made accountable to him and their response was also sought through him. But the deviation became imperative on the last day of the hearing because the chief secretary simply transmitted the report of the officers to the court. He chose not to take corrective measures at his own level which he was empowered to by earlier directions of the court”.The double bench observed that the report received from the Pollution Control Board inter alia described condition of the lake as stinking savage with daily flow of sewage and waste into it. “Crux of the report of the agency is the disclosure of an alarming situation. In the given background a direction making all the functionaries of the state directly accountable to the court including the chief secretary came to be passed. They were directed to file a detailed report in terms of the direction of September 19,” they observed.“The order was communicated to the Chief Secretary but he did not respond in writing. So much so when the case came up for consideration today, the Advocate General chose oblivion compelling the court to seek the presence of the chief secretary,” they said.
Thursday, September 25, 2008 (Srinagar)
Rashid Paul

Karna HC allows women to work in Bars and Restuarants
Bangalore, Sep 24 (PTI) The Karnataka High Court today allowed women to be employed as hostesses in bar and restaurants where liquor is served.The Court, while passing orders on a batch of petitions, held Rule 9 of the Excise Rules which prohibits employment of women as bars hostesses and Section 20 (2) of the Karnataka Excise Act as violative of the constitution.The petitioners C Ramesh and others had challenged these provisions.Justice D V Shylendra Kumar, while rejecting the government advocate’s contention that since children and women needed to be protected in such places, ruled that “the Rule 9 of the said Act is ultra virus and unenforceable and Sub Section 2 of Section 20 of the Act is unconstitutional as it violates Article 14, 15, 16, 21 and 39 of the Constitution”.The petitioner had submitted that he is running a bar and restaurant which is licensed by the authorities and it is his desire to provide employment to women as hostesses to provide better facilities to customers which are comparable to international standards.Another petition filed by Roopa and others, who lost their jobs after the police closed down dance bars, had also challenged these provisions.The city police had shut down dance bars invoking the provisions of the Excise Act.

Justice Soumitra Sen case: Some puzzling questions
While writing on the Soumitra Sen case, I was puzzled by the propriety of the CJI writing to the Prime Minister on the issue. The CJI’s request to the PM to initiate the process of removal of Justice Sen based on the in-house Committee report appears to raise certain jurisdictional issues. Under the Judges Inquiry Act 1968, only Parliament through Speaker or the Chairman of Rajya Sabha (or both) can set up a committee of three persons to inquire into the conduct of a Judge, and the committee’s report is binding on Parliament. If this committee finds the Judge innocent, then Parliament cannot proceed further. Therefore, can the CJI or the in-house committee usurp the role of this statutory committee? What if this committee finds the Judge innocent or finds the charges against him not serious enough to warrant his removal? In the V.Ramaswami case too there was an inhouse committee, but this committee did not find prima facie evidence against the Judge, as the probe was already going on when the committee completed its work. Seervai, however, found this improper, as in his view, charges were prima facie true, as the Judge did not reply to the charges. But Seervai found Ramaswami’s decision not to subject himself to the jurisdiction of the inhouse committee as legally correct, as the committee had no legal basis. The present inhouse committee of the Supreme Court draws its legitimacy from the Ravichandran Iyer judgment. But this judgment is only applicable to cases which warranted disciplinary action other than removal from office, which it conceded only Parliament is empowered. In Sen’s case, the inhouse committee wanted him to resign, and when he refused, it recommended his removal, a conclusion which the CJI has endorsed in his letter to the PM. Therefore, did the inhouse committee and the CJI exceed the mandate of Ravichandran Iyer judgment of the Supreme Court? Rather than recommend his removal, the inhouse committee could have made its findings and the report public, even if its conclusion points out that the charges against the Judge are so serious that there is no appropriate punishment in the in-house procedure. The CJI, then, would have had no occasion to request the PM to initiate the process of removal, as the report of the inhouse committee, already in the public domain, would have well forced Parliament to take notice of the issue and initiate action.The inhouse committee report and the CJI’s letter, in my view, have led to certain incongruities. By making their position known, the CJI, and the members of the inhouse committee, and the SC collegium which heard Sen have all made themselves ineligible for inclusion in the Inquiry Committee to be constituted by the Speaker or the Chairman. The Inquiry Committee’s composition is clear: two of the three members have to be from Judiciary, one from the Supreme Court, the other from the High Courts, and the third an eminent Jurist (usually the former Judge). In the face of public recommendation from the inhouse committee, the collegium and the CJI, will two of the three members of this committee be able to examine the charges against Sen objectively? In other words, will the inhouse committee inspire the confidence of Justice Sen about its impartiality?
Posted by V.Venkatesan at 1:30 PM
Wednesday, September 24, 2008

POTA a failed law, says Rahul Gandhi
Arrest of 2 students an ‘isolated incide…Red alert in Goa, security tightened at …Key terror suspect Abu Basher brought to…
Jalandhar September 24: With Opposition BJP targeting the UPA government for allegedly being soft on terrorism, Congress leader Rahul Gandhi said that the country needed a tough anti-terror law but not a ‘failed’ statute like POTA.
“There should be a strong law to deal with terror. A powerful law, not a failed law. POTA is a failed law,” the 38-year-old scion of the Nehru-Gandhi family said after a three-day visit to Punjab.
“When POTA was in operation, Parliament was attacked. We almost lost our MPs, Home Minister and the Prime Minister. When it was in operation, Kandahar took place,” the Congress general secretary said, adding ‘fighting terrorism requires political will’.
In the wake of the serial blasts in Delhi, Ahmedabad, Bangalore and Jaipur, the Opposition BJP has been demanding reviving of the stringent POTA, that was scrapped by the UPA government.
Posted: Sep 24, 2008 at 1337 hrs IST

Daily Legal News 24.09.2008

Madras HC rules in favour of Nalini
The Tamil Nadu government today told the Madras High Court that it was the sole authority of the state to consider premature release of a prisoner under General Amnesty Scheme.Arguing before Justice S Nagamuthu, hearing the petition filed by Nalini convicted in the Rajiv Gandhi assassination case seeking an early release, Advocate General G Masilamani submitted no one has the right to seek premature release unless the state decides to remit their sentence.”It is an executive power of the state whether to remit the sentence or not,” he said.He also submitted that the government is entitled to bring in certain classification for considering prisoners for premature release. It is open to the state whether to consult the Centre or not while granting remission to a prisoner who has been convicted under any Central act, he said. On Nalini’s counsel S Doraisamy’s contention that thegovernment had considered only ADGP (Prisons) recommendation while rejecting Nalini’s plea, Masilamani submitted that the government had taken the decision to reject Nalini’s plea only on the advice of the Advisory Board. However, he agreed with Doraisamy’s contention that only three members of the Board were present while taking a decision against Nalini’s plea, as against the stipulated seven. Nalini had moved the High Court seeking premature release early this year, after being in jail for the last 17 years. (Agencies)The death sentence awarded to her was commuted to life following an appeal by Congress president Sonia Gandhi on humanitarian grounds that Nalini had given birth to a girl in the jail. Priyanka Vadra had also met Nalini, lodged in the high-security Vellore prison, a few months ago.
9/24/2008 8:59:20 AM

Tapasi: Verdict on 1 November
CHANDERNAGORE, Sept. 23: The magistrate of Chandernagore First Fast Track Court deferred the judgement of the Tapasi Malik murder case, which was scheduled to be delivered today. It will now be pronounced on 1 November this year, said Mr Amar Kanti Acharya, additional district and session judge of the court said. Earlier, two accused in this case ~ former CPI-M Singur zonal committee secretary, Suhrid Dutta and his associate Debu Malik ~ were produced before the court amid tight security. Thousands, including supporters from both the CPI-M and the Trinamul Congress, gathered in the court premises to hear the judgement. At 2 p.m. today when Mr Acharya, announced in a packed court room that the judgement would be delivered on 1 November. Later both the accused were taken to Chandernagore sub-divisional correctional home under tight police protection. Trinamul Congress workers later took out a rally in the court compound demanding capital punishment for both the accused for the murder of Tapasi, an 18-year-old member of Singur Krishi Jomi Raksha Committee, who was charred to death inside the fenced-off area of the Tata Motors small car project at Singur on 18 December 2006, allegedly by five men. Citing lack of readability, the magistrate has instructed the CBI advocate and defence lawyers to submit before the court some case related papers that had earlier been submitted. Mr Partha Tapaswi, CBI advocate said: “We will submit the papers within 26 September”. Defence lawyers Mr Arindam Bhattacharjee and Mr Kishor Mondal, who were also present during court proceeding today, said they would submit the documents before the court within Friday.Earlier, the state government had ordered a CBI probe into the Tapasi Malik murder case in December 2006. Sleuths belonging to the CBI, later arrested Malik on 24 June 2007 in connection with the murder and were taken to Delhi for a polygraph test. Later Malik reportedly told CBI that Dutta had masterminded the murder. Dutta, an influential CPI-M leader from Singur who is also a CPI-M Hooghly district committee member, was arrested on 28 June 2007. The investigating agency had told the court that Tapasi was murdered for participating in the organised farmers’ movement at Singur. Chargesheet in connection with the case was filed before Chandernagore court on 15 September last year.
Statesman News Service

Khairlanji: Judgement Out..but something left!
Though the final judgement is out but the shadow of personal prejudices with respect to the Judgement in Khairlanji case is followes the Judicial system in India.
Wildly criticised, CASTE ANGLE TO the case is deeply and silently burried down with the final verdict, this will create a hUGE DEMOCRATIC DEFICEIT in the Indian society . The people of India should take congnigance of this and sensitise the systems to eradicate the Caste virus. Denying existance of such Virus will only help to prolifer the deadly inhuman desease.

Blockade outside CM’s further relaxed after HC intervention
IMPHAL, Sep 23: The ban on night time movement of civilian traffic on the eastern side of the NH-39 passing in front of the chief minister’s bungalow has been lifted from this evening even though the ban remained on the southern side of the road divided by the median on the road from state guest house to traffic island in front of Imphal post office. The High Court’s intervention has led to the opening of the road on the eastern side of the NH-39 section divided by the road median starting from the main gate of the 1st battalion Manipur Rifles gate up to the traffic island located in front of the Imphal post office for civil vehicular movement.The director of state transport has no authority to regulate traffic over the national highway portion. It is for the highway administration to regulate traffic over the national highways, said the ruling of the Gauhati High Court Imphal bench today while staying the order of the director of the transport regarding the prohibition.The court stayed the order of the transport department regulating the traffic over the eastern portion of the NH-39 section divided by the road median by the order of the transport department in a hearing to Writ Petition, PIL filed by advocate Khaidem Mani.According to advocate Mani, he had filed the PIL in the court considering the grievances faced by the general people due to the prohibition which has been in effect from the day of the blast inside the CM’s bungalow on September 1.The state principal secretary home, the director general of police and senior superintendent of police Imphal west were the respondents of the PIL.The PIL challenged the legality of the order passed through press release issued by the senior SP, Imphal west which regulated the traffic along the portion of the NH-39 purportedly for strengthening the security in and around the CM’s bungalow and VIP areas by prohibiting movement of civil vehicles on September 2.In the hearing, the state advocate general also frankly conceded before the court that the said order regulating traffic over the national highway was issued by the senior SP, Imphal west without jurisdiction and since it was issued without jurisdiction, the same is not sustainable in the eye of the law and it can be treated as non-est in the eyes of law. The said portion of the highway where the chief minister’s bungalow and VIP areas are located remained prohibited for civil vehicular movement from 6 pm till 7 am every day even though the western side of the median was opened.An order of the state transport department on September 20 had imposed the prohibition along the southern side of the road from traffic island in front of the Raj Bhavan to Palace Gate passing on the northern side of the chief minister’s bungalow.The order was issued partially modifying the earlier order of total prohibition of civil vehicular traffic on the section of the NH-39 from Moirangkhom to Raj Bhavan and road from Raj Bhavan to Palace Gate issued by the SP, Imphal west effective from the day after the blast, and was replaced by another order of the state transport department on September 19.With the stay on the order, the prohibition on the entry to the road has also lifted from this evening. But the restriction on civil vehicular traffic on the southern side of the road from state guest house to traffic island in front of the Imphal post office still remain.
The Imphal Free Press

Do not table part Nanavati panel report, pleads PIL; HC says no
Ahmedabad, September 23 Petitioner had sought quashing of part report, saying the panel should have filed a complete report
A division bench of the Gujarat High Court on Tuesday dismissed a joint Public Interest Litigation (PIL) seeking direction to quash the part report of the Nanavati Commission.
The bench comprising Chief Justice K S Radhkrishnan and Justice M S Shah observed that Section 3 of the Commissions of Inquiry Act did not prevent the Commission from preparing a part report, nor did it say whether a part report could not be filed in the state Assembly.
The PIL was filed by the Citizens for Justice and Peace and the Peoples Union for Civil Liberties and had also sought directions ordering the government not to table the part report in the Assembly during the Monsoon session starting September 25.
Representing the petitioners, advocate M M Tirmizi contended that the Commission was set up to probe the Godhra and the post-Godhra riots and hence could not split the inquiry into two parts. He pleaded that it should be a composite report of the complete inquiry.
He said the first part of the report dealt with the Godhra incident and did not reflect
on the role of the Chief Minister, other ministers and governmental officials in the ensuing riots.
“So, a composite report should be submitted to the state government and tabled in the Assembly after complete inquiry of the Godhra and post-Godhra incidents,” he added.
Referring to two Supreme Court judgements, Tirmizi further said: “It is an exercise by the state government for placing the part report of the inquiry of Godhra and the post-Godhra incidents.”
He added that the prejudicial role of the state government had been exposed following the Supreme Court order of a re-trial of the Best Bakery and the Bilkis Bano cases outside Gujarat. The apex court had also directed the state government to appoint another public prosecutor in the two cases on the suggestions of the victims, he said. He also referred to affidavits filed by former Additional Director General of Police R B Sreekumar about the role of the state in the post-Godhra riots.
He said the terms of reference appointing the Commission to look into the Godhra and post-Godhra incidents be looked in toto. Tabling one part of the report and making it public was detrimental to the public interest and amounted to splitting the terms of reference into two, he added.
As such, the state government should be restrained from placing it in the House on September 25, he said.
Express News Service
Posted online: Sep 24, 2008 at 0226 hrs

BMW case: Court seeks police response
NEW DELHI: Even as it set the ball rolling to hear Sanjeev Nanda’s appeal against his conviction in the BMW case, the Delhi High Court on Tuesday expressed its reluctance to suspend his sentence of five years of rigorous imprisonment. Nanda was handed the punishment for running over six persons with his BMW car, which HC said was a ‘‘serious’’ offence. Justice Kailash Gambhir, however, issued notice to Delhi Police and sought its response by October 3 on Nanda’s petition challenging his conviction and quantum of sentence. Senior advocate Mukul Rohatgi, appearing for Nanda, contended that the trial court had wrongly convicted him due to publicity in the media and he shouldn’t have been given more than two years of imprisonment. ‘‘The court relied on Alistair Pereira case where the accused was given three years of imprisonment for mowing down people sleeping on the pavement. On the other hand, in this case the accident happened because of the victim’s fault as they were standing in the middle of the road in the wee hours but Nanda was given five years of imprisonment,’’ Rohatgi said. ‘‘Nanda’s offence stands on a lower footing as compared to Pereira and he should not be given more than two years of imprisonment,’’ he argued. But HC didn’t appear to be entirely convinced with the contention and wondered, ‘‘Do you want to say that the car accident is not a serious offence. People standing on the road were run over by the car.’’ Seeking bail, 30-year-old Nanda contended in his petition that the trial court had accepted the testimony of controversial prosecution eye-witness Sunil Kulkarni which was not reliable as he was in Mumbai and not in Delhi at the time of the accident. Alleging that the police had delayed the recording of Kulkarni’s statement, the petition said that the court ignored the testimonies of the other defence witnesses. Nanda, who was sentenced to five years of imprisonment on September 05 by the trial court, said that the fact that he had paid a compensation of Rs 65 lakh each to the victim’s family was also ignored by the court. (toireporter@timesgroup.com)
24 Sep 2008, 0332 hrs IST,TNN

High Court extends gag order on govt, final verdict on Sept 26
Kolkata, September 23 The Calcutta High Court said it will pass its final order on September 26 on the Tata Motors plea for not allowing the state government to disclose contents of the agreement on setting up its small car plant. It also extended the interim gag order till September 30.
On September 12, Tata Motors had moved a plea urging for secrecy of the agreement. Justice Dipankar Dutta had passed an order staying the disclosure of the agreement for two weeks, which will expire on September 26.
Advocate Samaraditya Pal, counsel for the Tata Motors submitted that West Bengal Industrial Development Corporation (WBIDC) had published a part of the agreement in their website on September 12, following a direction issued by the chief information commissioner (CIC). Pal termed the disclosure as “illegal”.
On Tuesday, Pal moved a plea saying that Tata Motors should have been given an opportunity to place its objections before the CIC before any order was passed on the disclosure of the agreement.
Counsel for Leader of the Opposition Partha Chatterjee, meanwhile, argued that once the agreement was read out on August 27 in a meeting of the standing committee, the people have a right to know the details of the project.
Express News Service
Posted online: Sep 24, 2008 at 0127 hrs

SC orders CBI probe into PF scam involving judges
NEW DELHI: The Supreme Court on Tuesday ordered a CBI probe into multi-crore Uttar Pradesh Provident Fund scam allegedly involving higher judiciary. A bench comprising Justice Arijit Pasayat, Justice V S Sirpurkar and Justice G S Singhvi directed the investigation agency to file a status report in three months. The court, however, did not pass any specific order at this juncture relating to the substance of allegations against sitting judges whose names have figured in the scam. Names of 26 members of judiciary, including an apex court judge, seven Allahabad high court judges, six retired high court judges and 12 judges from subordinate judiciary in Uttar Pradesh, have allegedly cropped up in the scam. The court said that 3 months time have been given to CBI to give its report but it will not stop the agency from going ahead with the filing of a final report before the stipulated period. “The court before which the final report or chargesheet will be filed will deal according to the law,” said the bench adding that the status report will also give details on how many persons from outside the Ghaziabad treasury were involved. In an elaborate order, the bench said that CBI will appoint an investigating officer, who will be incharge of the probe and it would be open to him to indicate to the Uttar Pradesh government about the officers/officials whose assistance would be required for comprehensive investigation. “The state government will place officials at the disposal of CBI so that effective investigation can be carried out,” the bench said taking into the consideration the plea of CBI. Solicitor-General G E Vahanvati appearing for CBI said that the premier investigation agency was not equipped with sufficient manpower. So, the state government should provide requisite manpower and infrastructure facilities in such a probe, said Vahanvati. To allay fears that documents may be tampered with, the court said that the investigating officer would take appropriate steps for preservation of original records of the investigation and subsequent proceedings. Further, the investigating officer will take charge of documents already in possession of the state police and reports of the probe conducted till now. All documents relating to the case will be microfilmed and deposited before the apex court, the copies of which will be handed over to the CBI and the Uttar Pradesh government, the Bench said. It said several other issues relating to the scandal will be dealt at an appropriate time. “Let us start of the process and at any point other suggestions could be considered,” the Bench said during the hearing. The state government has also given its consent to transfer the probe to the central investigating agency. Earlier, the Ghaziabad SP, who was probing the case, had expressed difficulty in carrying out the investigations into Rs 23 crore scam. The Ghaziabad Bar Association and the Indian chapter of the Transparency International had sought independent probe into the scandal saying that it would not be possible for the state police to carry out the investigation in a case allegedly involving judicial officials. Senior advocates Anil Divan and Shanti Bhushan, appearing for the Association and Transparency International respectively had submitted that retired judicial officers are not protected by any decision of this court which relates to serving judicial officers. Earlier, the scam was probed by the UP police on the direction of the Allahabad High Court. The state police had got prepared a questionnaire and got it cleared from the Chief Justice of India to go ahead with the investigation. Later, the lawyers association sought an independent probe by the CBI and the matter snowballed into a major controversy after Transparency International filed a writ petition and sought the recusal of the CJI from hearing the matter on the ground that he, in his administrative side, had already dealt with the case.

24 Sep, 2008, 0343 hrs IST, ET Bureau

SC wants law to protect owners from squatters
NEW DELHI: This Supreme Court move will bring cheers to those who have lost their house or land to squatters. On Tuesday, the court said it wanted a change in the law that gives ownership rights to the one who has usurped a property by squatting by taking advantage of the fact that the owners were have had little time to inquire about their property. Terming the ousting of real owners from their property by squatters as a serious human rights violation, a Bench comprising Justices Dalveer Bhandari and H S Bedi has requested the Centre to take a fresh look and suitably amend the land laws that recognise “adverse possession” as a means to acquire title over a property by ousting the real owners. The apex court was at loss to understand how the law could place a premium on dishonesty by legitimising possession of a trespasser and compelling the real owner to lose his title simply because the owner has not taken back his house or land within a stipulated time. “There is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession,” said the Bench rushing a copy of its judgment to the law ministry and legislative department for appropriate steps in accordance with law. The case that prompted the court to do so related to a real owner losing out his title to a squatter. The Bench — despite the existing law — restored the property to the real owner, saying the trespasser had miserably failed to establish his title over it and said it was a pity that law recognised “adverse possession” as a means to take over property from a non-alert owner. Writing the judgment for the Bench, Justice Bhandari said: “The law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate…The law as it exists is extremely harsh for the true owners and a windfall for a dishonest person who had illegally taken possession of the property of the true owner.” The concern of the court was that law, which is meant to do justice, could not be seen to benefit a person “who in a clandestine manner takes possession of the property of the owner in contravention of the law.” Though right to property has been deleted from the list of fundamental rights and has been reduced to the status of a mere legal right, the apex court termed it as an important human right. “The right to property is now considered to be not only a constitutional right or statutory right but also a human right,” the Bench said, while observing that claim of adverse possession had to be dealt with keeping in mind this important right.
24 Sep 2008, 0243 hrs IST, Dhananjay Mahapatra,TNN

Don’t name sexual assault victims in judgements: SC
New Delhi (PTI): Judgements relating to sexual offences should not reveal the names of the victims, the Supreme Court has said.
Though penal provision did not restrict naming the victims in the judgements of the Supreme Court and High Courts, a Bench comprising Justices Arijit Pasayat and M K Sharma suggested that courts should refrain from naming them in order to protect them from social victimisation.
“True it is, the restriction, does not relate to printing or publication of a judgement by High Court or Supreme Court.
“But keeping in view social object of preventing social victimisation or ostracism of the victim of a sexual offence for which section 228-A has been enacted, it would be appropriate that in the judgements, be it of this court, High Court or lower court, the name of the victim should not be indicated,” the Bench said and chose to describe her as only “victim” in the judgement.
The apex court was dealing with a case of sexual assault in which it arrived at the conclusion that the victim was not raped but her modesty was outraged by the accused.
While deciding not to identify the victim, the Bench referred to section 228-A of IPC, which makes disclosure of identity of victim of certain offences punishable.
It said printing or publishing name of any matter which may make known the identity of any person against whom an offence under IPC Sections 376 (rape), 376-A (intercourse by a man with his wife during separation) or 376-B (intercourse by public servant with woman in his custody) is alleged or found to have been committed can be punished.
It would also apply to cases under IPC sections 376-C (intercourse by Superintendent of Jail, Remand Home etc) or 376-D (intercourse by any member of management or staff of a hospital with any woman in that hospital), the court said.
Tuesday, September 23, 2008

HC order: Forest dept prepares to fell trees
Shimla, September 23 Three teams formed; trained manpower to help complete operation by end of the week
A day after High Court granted permission to fell 60-odd trees, which have been rendered dangerous, the state Government today prepared a strategy to cut down the trees.
The state’s Forest Corporation, which will be an agency to cut down the trees, has formed three teams and decided to take the help of trained manpower to complete the operation by the end of the week.
Additional Chief Secretary (Forest) Avay Shukla, who held a meeting with senior forest officials following the High Court order, told the forest officials to mark the trees that the High Court had allowed to be felled on the basis of photographs provided.
Ashwani Sharma Posted: Sep 24, 2008 at 0006 hrs IST

ITC moves HC against smoking ban
New Delhi (PTI): Indian Tobaco Company (ITC) Ltd, on Tuesday approached the Delhi High Court challenging the Centre’s notification banning smoking in private offices and other establishments from October two.
Under the curbs, those caught smoking in public places and other private organisations will be fined Rs 200 which may increase to Rs 1,000.
So far, smoking is banned only in public places and in private offices an area has been allotted as smoking zone for the cigarette smokers.
Besides ITC, two others petitioners including Indian Hotels Association have also moved separate plea challenging the May 2008 notification issued by the Union Health Ministry.
Earlier this month, Union Health Minister Anbumani Ramadoss has said that the ban from the day coinciding with Mahatma Gandhi’s birth anniversary would also cover hotels, restaurants and offices.
Besides this, the minister said the Government has also issued notifications to make pictorial warnings compulsory on all tobacco products from December one.
To begin with, the pictorial warnings would be those cleared by the Group of Ministers and would cover 40 per cent of tobacco product packets, but after about one year, more pictures can be brought in, he had said.
The Government is also making the fight against tobacco an integral part of the school health programme.
“According to a WHO study, around 14.1 per cent of school going children are using some or other form of tobacco, which is very worrisome,” Ramadoss has said.
The Government had notified pictorial warnings to be carried on tobacco products last month after clearance by the Group of Ministers.
Tuesday, September 23, 2008

Calcutta HC to pass final order on Tata Motors petition on Sep 26
The Calcutta High Court today said it would pass its final order on September 26 on the Tata Motors plea for not allowing West Bengal government to disclose contents of its agreement on setting up its small car plant while extending the interim gag order till September 30.
Justice Dipankar Dutta, after conclusion of hearing in the case, said he would deliver the judgement on Tata Motors’ prayer for an injunction on the state principal information officer’s directive to the state government to disclose the contents of the agreement.
Appearing for Tata Motors, counsel S Pal submitted that parts of the document were official secrets and should not be made public.
Concluding the arguments, Kalyan Banerjee for petitioner Trinamool Congress leader Partha Chatterjee, who had applied to the SPIO for contents of the deal, said the agreement could not be treated as a state secret as the land at Singur was acquired for public purpose.
Justice Dutta had on September 12 passed an interim stay for two weeks on operation of the order of the SPIO on September 8 that asked West Bengal Industrial Development Corporation, a nodal government agency of the state for the project, to make public the full text of the document.
Tata Motors, whose small car project is in limbo, has moved the Calcutta High Court and obtained the interim gag order on the West Bengal government.
A tripartite agreement was signed on March nine, 2007 among Tata Motors, West Bengal government and WBIDC, the nodal agency of the state for the project.
Press Trust Of India / Kolkata September 23, 2008, 18:17 IST

HC grants 4 months time to CBI complete probe
Kochi (PTI): Kerala High Court on Tuesday granted four months time to CBI to complete investigation of the SNC Lavalin case.
A Division Bench comprising Chief Justice H L Dattu and Justice A K Basheer said that some efforts have been taken by the CBI to complete the investigation.
Bench said that ‘we have some doubts regarding the progress made by the CBI but on perusal of the case diary volume six and seven, it is clear that progress has been made in the investigation after March 18, 2008.
Even though the CBI had asked for six months time, the court granted four months from today to complete the investigation and file the final report.
The CBI had produced the case diary and files relating to the SNC Lavalin case in sealed covers, before the High Court yesterday.
The case relates to alleged irreregularties in the award of contract for modernising and renovation of Pallivasal, Shengulam and Panniyar Hydel projects during the term of previous UDF and LDF governments.
Tuesday, September 23, 2008

HC gives student special status
AHMEDABAD: He is a student of Class XII who need not attend any academic sessions. Yet, he will be considered a regular student and will also be allowed to appear for his board exam. This special status was granted to a student of St Xavier’s School, Simardeep Singh Bhatia, by Gujarat High Court on Monday. HC was hearing a case dealing with Simardeep’s rustication. The student was suspended by school over disciplinary issues, after which he approached HC. Court ultimately came to the conclusion that since his presence was harmful for his classmates and demoralising for teachers too, school can decline his presence in classroom but can allow him to take internal school examinations. HC had earlier directed district education officer to initiate an inquiry into allegations and counter-allegations between student and school authorities. Last week, DEO office submitted a report recommending that the student should be allowed to attend classes in school, because he was not heard by school authorities before suspension. Based on this report, Simardeep moved High Court again demanding that he be enrolled in school again. However, school authorities approached court too challenging DEO’s report claiming that inquiry officer had not investigated the issue properly. When respective advocates argued for and against the issue on Monday, Justice Jayant Patel observed that education inspector who had been entrusted with investigation had only narrated the incidents, instead of finding truth. While ruling that student’s presence in school can be declined , court also directed school authorities as well as education officer to ensure that Simardeep’s form for board exam doesn’t get rejected for lack of attendance. Thus, Simardeep is now free not to attend any class, yet continue to be a regular student.
23 Sep 2008, 0504 hrs IST,TNN

HC stays resumption of Gopichand’s land
HYDERABAD: Justice N V Ramana of the Andhra Pradesh High Court on Monday imposed a stay on all the proceedings launched by revenue authorities who were moving forward for taking over certain portion of the five acre land allotted to badminton player Pullela Gopichand at Gachibowli. The player questioned the rationale behind the order of the revenue authorities to take back two-and-half-acres of land from him on the grounds of non-utilisation . Gopichand questioned it asking as to how the government would decide the requirements of this academy which was being set up in accordance with the stipulations of the Badminton World Federation. Justice Ramana gave the government time till Monday to respond on this issue.
23 Sep 2008, 0433 hrs IST,TNN

Lodge FIR in Asaram violence case: HC to cops
AHMEDABAD: Gujarat High Court on Monday directed Gandhinagar police to lodge an FIR on the basis of complaints of 22 residents of Motera in connection with the violence that took place on July 18 this year. The disciples of Asaram Bapu had allegedly beaten up the residents as well as mediapersons on the day. Acting on a petition filed by a non-governmental organisation Jan Sangharsh Manch for formation of a Special Investigation Team to probe the incident, a division Bench, comprising Chief Justice K S Radhakrishnan and Justice M S Shah, asked the district superintendent of police to look into the complaints. Despite earlier order by the HC to register their complaints, Adalaj police station officials named them as witnesses to the incident. The violence erupted during a bandh call given in protest against the mysterious deaths of two kids in Asaram’s ashram at Motera. The NGO has also sought directions from the court to the government to compensate those who were injured during the violence. The petition alleged that situation escalated not only due to police inaction, but they refused to lodge complaints against the ‘sadhaks’. A public interest litigation is also being heard by the HC demanding CBI probe in the incident of kids’ deaths and that the state government hand over investigation to CID (Crime). Moreover, one-member inquiry commission of Justice D K Trivedi will also probe the violence.
23 Sep 2008, 0505 hrs IST,TNN

HC comes to rescue of abandoned mother
HYDERABAD: Shocked by the incident of a Nizamabad resident abandoning his 85-yearold mother by packing her in a gunny bag and throwing it in thorny bushes, Justice T Meena Kumari of the AP High Court has directed the district authorities to immediately rescue her. Justice Meena Kumari, who is also the executive chairperson of the Andhra Pradesh State Legal Services Authority, gave this directive to the officials of the AP High Court and Nizamabad district legal services authority after the incident had been brought to her notice. One of the options entrusted to them is to admit the old woman in a state home. Upon their perusal, certain details about the woman came to the fore. Her name is Mallamma. She is 85 and belongs to Perkit village of Armur mandal. She has a son and a daughter who are also living in the same village. When the police questionned the son, Dantulayya, he began pleading innocence with them. “My mother has a habit of begging and it has been more than one month since she left the house and even I am searching for her,” was his reply. The mother, meanwhile, was apparently rescued by local residents and is recovering at a Armur hospital with both her daughter and daughter-in-law assisting her actively. “We will issue notices to the son under section 24 of the Act, but will go slow on actually enforcing the law,” D Subrahmanyam, secretary , AP High Court Legal Services Authority, told ‘TOI’ .
23 Sep 2008, 0435 hrs IST,TNN

“Spare presiding officers, let tribunal rule on defection”
Presiding officers should not be under judicial scrutiny: Somnath

For all amendments, the scourge of defection continues
Blanket exemption of splits, mergers defeats purpose of law: Hooda
CHANDIGARH: Lok Sabha Speaker Somnath Chatterjee on Tuesday said the jurisdiction and authority to deal with “defection” as provided in the Tenth Schedule of the Constitution “need not continue to be exercised by the presiding officers.”
The “power should be conferred on some other authority like a special tribunal comprised of people well versed in law or on an authority like the Election Commission.”
Mr. Chatterjee was speaking at a symposium on the “Anti-Defection Law — Need for Review,” organised as part of the 73rd conference of presiding officers of legislative bodies here.
The judiciary had taken up cases challenging the decisions of the presiding officers under the Tenth Schedule and this jurisdiction was upheld by the Supreme Court. However, “to my mind, the exercise of power and jurisdiction by the presiding officer of any House should not be subjected to such scrutiny, which considerably affects the status and the position of the presiding officers…. With all respect to the judiciary, whose jurisdiction cannot be denied, it will be fit and proper and indeed desirable that the presiding officers do not continue to be under such judicial scrutiny which in many cases has given rise to avoidable tension between the two constitutional authorities.”
Mr. Chatterjee urged the presiding officers to consider the matter seriously so that suitable recommendations might be made by the conference to change the provisions of the Constitution whereby the presiding officers would be relieved of “an unwelcome jurisdiction.”
Mr. Chatterjee said the operation of the anti-defection law, 1985, over the years, indicated many grey areas in the Act. Breaking away with the support of one-third of the members of the parent party appeared easy and defections could not be checked, especially in smaller parties.
The Constitution was amended in 2003 through the Constitution (91st) Amendment Act to rectify what seemed lacunae.
However, the amendments omitted the provision relating to splits from the Tenth Schedule, and also provided that a member, disqualified under it, be disqualified for being appointed minister or for holding a remunerative political post during the period commencing from the date of his disqualification till the expiry of the term of his office or until he was elected again. Thus, the new law provided that a “split” would no longer be a defence.
However, Mr. Chatterjee said, the situation still remained largely destructive as defections motivated by power and opportunism continued to be one of the debilitating features of the Indian political system. He called for a concerted effort to see that political defections were totally banned or at least were not rewarded.
Grave challenge
Lok Sabha Deputy Speaker Charanjit Singh Atwal said political defections “betrayed the mandate of the electorate and posed a grave challenge to parliamentary polity.”
Wednesday, Sep 24, 2008
Special Correspondent

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