Daily Legal News 19.09.2008

PM justifies anti-terror law as global trend
NEW DELHI: With the government facing the heat over rising terror attacks, there is a buzz in political circles over the possibility of a minister of state for internal security being appointed in the home ministry to boost the government’s anti-terror credentials as shifting Shivraj Patil might be politically unviable as it would amount to accepting failure to combat terrorism. The reports of the new MOS post remained unconfirmed. The PM has said that his government’s move to add muscle to the “substantive anti-terror law” was in line with the “global consensus on the fight against terrorism”. Though he chose to point to an international context, a UN resolution had, in fact, urged member nations to consider anti-terror laws was adopted by United Nations (UN) soon after 9/11. The change in position was quite dramatic as UPA had rolled back Pota, legislated by NDA through a joint session of Parliament, with considerable emphasis. In doing so, Congress had bought into the argument that anti-terror laws are inherently draconian — in Pota’s case anti-Muslim— and are of limited utility. To now seek to be part of a “global consensus” indicates an acceptance that terrorism was at the political centrestage. With BJP’s broadside over the Centre refusing to bring a Pota-like law while also preventing a terrorism-affected state like Gujarat its own version hitting home after the Delhi blasts, the Congress leadership has revised its doctrinaire opposition to special laws. The party’s line that Pota did not prevent the Parliament attack has been wearing thin in the face of repeated serial bombings. The PM said that the ongoing debate has to do with procedural aspects of investigations and prosecution of terrorism-related offences and that this was under consideration with the aim of identifying provisions which could be made to strengthen the hands of law enforcement agencies. Keeping in mind the political sensitivities attached, he said that this would be done while addressing “apprehensions” that led to the repeal of Tada and Pota. The PM’s backing for a new legislation came as Congress officially backed the proposals of administrative reforms commission chairperson Veerappa Moily that tough anti-terror provisions could be inserted into the National Security Act. The proposal has been attacked by BJP on the grounds that NSA deals with preventive detention and is not a punitive law. Nor do the proposals cover admitting confessions as evidence — a key tool in establishing the conspiracy angle of terrorist crimes. While stating that the government had acted to tighten various laws like the Prevention of Money Laundering Act, the PM said there was also a suggestion for central agency to investigate and prosecute all terrorist incidents. This need not be a federal investigative agency but can assist the states and could call on greater expertise with regard to terrorism. He stressed the need for cooperation between states as “there is a common strand running through each major terror incident”. In what can be seen to be a related change in political positioning, the PM also took a hard line on Pakistan arguing that “the role of Pakistan-based terrorist groups cannot be minimized”. Even though he accepted that involvement of local elements in recent blasts had added a new dimension to the terror threat, he said, ‘‘We have reports that certain Pakistan-based terrorist outfits are constantly seeking to set up new terrorist modules.” The direct references to Pakistan may well mean the burial of the joint mechanism on terrorism that the PM and former Pakistan president Pervez Musharraf had agreed on when they met in Havana in 2006. His controversial remarks on Pakistan being a “victim of terrorism” now seem a distant memory as his assertion that terrorist bullets will not prevent him from visiting that country. The PM also echoed his national security advisor M K Narayanan in acknowledging that though attacks had been thwarted, “as recent blasts in Jaipur, Bangalore, Ahmedabad, Surat and Delhi indicate, there are still vast gaps in intelligence. These need to be overcome”. In his briefings to the Cabinet, the NSA has pointed to the fuzzy and imprecise inputs provided by intelligence agencies and the poor state of Centre-state coordination. Singh said that there would be greater reliance on technology in preventing and acting against terrorists like the use of CCTVs in crowded public spaces. Keen to counter the charge that India had become more vulnerable under his watch, the PM said, “Let me say with the fullest emphasis, that there is no question of government being soft on terrorism.” He also pointed out that along with terrorism, Left wing extremism had become a significant threat with Maoists able to make use of a pool of disaffected persons in backward areas.
18 Sep 2008, 0244 hrs IST,TNN

Sacking Govt. easier than removing judges in India
The letter written by the Chief Justice of India (CJI) to the Prime Minister seeking his intervention in initiating impeachment proceedings against asitting judge of Calcutta High Court, has triggered a debate again regarding corruption in higher judiciary and its impunity. We have seen removal of governments and Prime Ministers so many times, butremoval of High Court and Supreme Court judges has not been so far heardafter the Constitution of India came into force in 1950.Independent India has, however, witnessed one impeachment, when Justice Shiv Prasad Sinha of Allahabad High Court was removed by the then GovernorGeneral of India, C Rajagopalachari in 1949 on the recommendation of theFederal Court. The Chief Justice has given detailed information about Justice Sen’s misconduct when he was appointed receiver by Justice AN Roy in Steel Authority of India versus Shipping Corporation of India case in 1993. The three-Judge panel comprising Madras High Court Chief Justice AP Shah, MP High Court Chief Justice AK Patnaik and Rajasthan High Court Chief Justice RM Lodha inquired into the charges leveled against Justice Sen and foundthem true. The panel submitted its report in February, 2008। On March 16, theCollegiums of the apex court comprising of Chief Justice BN Agarwal andJustice Asok Bhan asked Justice Sen either to resign or to opt for voluntaryretirement।However, with Justice Sen deciding not to comply with either of the twooptions, the Chief Justice was forced to resort to this unprecedented move।The move is unprecedented, because neither there is any provision in theconstitution about such recommendation nor before this, any Chief Justicehas taken such ‘extreme step’.In fact Article 124(4) of Indian Constitution provides for removal of HighCourt and Supreme Court Judges.The Article says: “A judge of Supreme Court shall not be removed from hisoffice except by an order of the President passed after an address by eachHouse of Parliament supported by a majority of the total number ofmembership of that House and by a majority of not less than two-thirds ofthe members of that House present and voting has been presented to thePresident in the same session for such removal on the ground of provedmisbehaviour or incapacity.”There is no separate provision for removal of High Court judges and Article217(1)(b) provides for this and says, “A judge may be removed from hisoffice by the President in the manner provided in clause(4) of Article 124for the removal of a judge of the Supreme Court.”The processes of removal of High Court and Supreme Court judges are thesame. The above Article of the Constitution provides for impeachment,whereas; Judges (Inquiry) Act, 1968 determines the process of impeachment.According to this Act, the impeachment of a judge can be done only byParliament and impeachment can be initiated after a motion addressed to thePresident of India is signed by at least 100 members of the Lok sabha or 50members of Rajya Sabha.Such is the process and such is the impunity. Such Judicial impunity hasbeen conferred on Judiciary for the sake of its independence.The above provision is similar to the rule prevailing in England, since theAct of Settlement, 1701, to the effect that though judges of the superiorcourts are appointed by the Crown, they do not hold office during hispleasure, but hold their office on good behaviour and the Crown may removethem based on a joint address from both the Houses of Parliament.Any way the credit must be given to Chief Justice, who could take suchextra-ordinary step, because after all, extra-ordinary situation demandsextra-ordinary steps.But unfortunately, the government was sitting over it as it was written twomonths ago and could only be known to public through media.Before any debate on this issue, it should be clearly borne in mind thatabove cumbersome procedure of impeachment and other judicial impunities havebeen enshrined in the Constitution for making Judiciary independent.*Independence of Judiciary*The independence is guaranteed in our Constitution and the concept has beenborrowed from the US Constitution. Article III of US Constitution guaranteesIndependence and Supremacy of Judiciary in the US.Independence of Judiciary is the tenet of democracy and therefore, evenRussian Constitution of 1993 (Chapter-7 Section 120-122) also guaranteesindependence of Judiciary in the country.In fact section 124 of the Russian Constitution says, “Judges shall possesimmunity and criminal proceedings may not be brought against a Judge exceptas provided for by federal law.”In India, this independence and limited Judicial Supremacy are enshrined inthe Constitution and are expressed in the methods of appointment of judges;the process of impeachment; and the power of judicial review.Now, if all these provisions of the Constitution are analysed, inference caneasily be drawn that the problems lay here themselves and so do solutions.*The Appointment Rules*Articles 124 and 217 provide for appointment of Judges of Supreme Court andHigh Court respectively. They clearly stipulate that the appointments haveto be made by the President in consultation with the Chief Justice.The word ‘consultation’ has been always a matter of dissent and controversy.In fact, when AN Ray was appointed as Chief Justice after superseding threesenior Judges namely Hegde, Grover and Shelat, there was uproar in Judicialcommunity including the Bar council of the apex court.They argued that judges have been superseded owing to their judgement inKeshavanand case (AIR 1973 Supreme Court) which went against the government.Gradually the direction of Executive in matters of appointment of judgesstarted diminishing. In 1993, a land mark judgment came from Supreme Courtin ‘Advocates on record versus Union of India’ case.The apex court ruled that the recommendations for appointment of Judges inHigh Court and Supreme Court will be made by collegiums of three Judges andshall be in a way binding on the government.After a ‘presidential reference’, the number in the collegiums was increasedfrom three to five.This judgment was a landmark because it took virtually all discretionarypowers of the Executive in matters of appointment of judges in higherjudiciary. Thus, the word ‘consultation’ became ‘concurrence’.Some people in legal domain argue that it was a dangerous development andwas against the principles of the Constitution itself. How can a person or agroup of persons appoint themselves which goes against the ideas enshrinedin Article 311?They opine that there must be a transparent and justifiable procedure forsuch appointments. There are instances where persons from one family arebecoming Judges for two to three generations.The judicial community of higher Judiciary is becoming an elite club of few’privileged families’. Candidly, it is not what ‘independence’ meant for.*The Impeachment*The process of impeachment as discussed in the article above, clearlyindicates that it is a cumbersome process. No wonder then, not a singlejudge could be removed in India since 1949.It may be recalled that in 1991, the impeachment proceedings for removal ofJustice V Ramaswami fell flat on its face after members of the Congressparty decided to abstain from voting.The process of impeachment is laid down in Judges (Inquiry) Act, 1968 whichsays that even if the motion is accepted, the presiding officer of the Househas to constitute a three judge committee to further inquire into thematter.The process suggests that the motion will be put to voting once again afterthe submission of the report by the Judges’ Committee. However, unlike inthe case of a no confidence motion against a government, which requires asimple majority to survive, the impeachment motion against a judge requiresa two-third majority.That is why, it is truly said that it is easier to decide the fate of 100billion people by way of forming and toppling Governments in India thanremoving a Judge in the country.It is also but strange that the country which has seen many a ministers andbureaucrats being convicted on charges of corruption does not have a singleincidence of a judge being impeached.The ‘Transparency International’ in its report of 2007 has counted judiciaryas the third most corrupt institutions in India, an inference totally incontrary to the common perception that instances of corruption in higherjudiciary are not unheard of.The former CJI Y K Sabarwal himself is in the eyes of storm for hisjudgement pronounced in the ‘Delhi Sealing Case’, which allegedly benefitedhis son. When a report in this regard appeared in one Newspaper, a suo mottocontempt proceeding was initiated and the concerned reporter was sought tobe punished.The Contempt of Court Act, 1971, which itself is not yet codified, isanother tool which sometimes is used to gauge the voice of dissent.In another infamous case, the vigilance department of UP Police exposedmisappropriation of funds worth Rs 23 crore from the GPF account of ClassIII and IV employees of Ghaziabad Civil Court.One of the accused arrested in this connection, made startling revelationthat he has parted the money both in cash and kind, with one sitting Judgeof SC, ten Judges of HC and 23 Judges of lower courts.The investigation is not proceeding as Police cannot interrogate judgeswithout the consent of SC, though such protections are not given in Judges(Inquiry) Act. The matter is still pending with the apex court and the CJIhas to convince the nation, whether there is equality before the law or not.Not to forget the matter of the two Haryana High Court Judges whose nameshave figured in a case in which a law officer from Haryana has alleged tohave sent Rs 15 lakh to them. The Matter has been referred to CBI by theapex court.The list is long and result is dismally naught. And while one may agree thatit is easy preaching than done, the question being asked by common citizenis that who will judge the judges?*The Remedies*. The provisions of RTI should be made applicable to all components offunctioning of Judiciary. Accordingly, suitable amendments in RTI Act, 2005can be made॥ The procedure of selection of Judges should be made more transparentand justifiable. Panel of judges can be made well in advance beforerecommendation and be known to public by way of websites or media॥ Idea of setting up of a National Judicial Commission can also be madeinto reality, after all if you are required to go for a test for becoming aclerk, why does selection of judges not require any test. An all India testmight also be conducted to select judges of higher judiciary॥ The Government is sitting over the Judges (inquiry) bill, 2006 for morethan two years, therefore it should be passed, but before that necessaryamendments are required, because the concept of ‘brother judges’ doinginquiry has proved ineffective if not futile॥ The contempt of Court Act, 1971 should be suitably amended, becausehealthy criticism of any institution is generally beneficial for the systemitself in the long run. The Judiciary should prepare itself for listening toits criticism and bring about change by itself, a change though painful buthelpful.*-The opinion expressed in this article are of the writer and not those ofiGovernment*
Posted by Parivartan at 10:42 PM
Wednesday, September 17, 2008

Kerala HC puts brakes on illegal parking
The Kerala High Court directed the state government to enforce rules prohibiting parking of motor vehicles on national and state highways and said steps should be taken to construct bus bays on the roadsides across the state within one year. A Division Bench comprising Mr Justice C N Ramachandran Nair and Mr Justice Harun al-Rasheed also directed the PWD and local authorities to paint speed breakers with zebra markings and provide sign boards within one year. The court issued the directions while hearing a motor accident claim appeal wherein a pillion rider on a motorcycle was killed after the bike hit a lorry parked on the roadside.The court directed the government to instruct the police and motor vehicles department to seize and remove vehicles parked on national and state highways, and on other important roads and release them only after collecting heavy fines. The drivers should be prosecuted. The government should also direct the authorities to ensure that goods vehicles, particularly container lorries were operated with proper indicator lights and reflectors.The court observed that a large number of accidents took place on account of parking of stage carriers on roads for taking and releasing passengers. This should be prohibited and bus bays constructed.To ensure that the directions were complied with, the court directed the registry to post the case every month for the government to give periodic reports. UNI

Allahabad HC changes suspension grounds for employees
The Allahabad High Court ruled that if any employee was suspended on ground of pendency of a criminal charge after his acquittal in the case, the said suspension would automatically come to an end and as an effect the suspension would be deemed to be non-existent.A two-judge bench, comprising Justices V M Sahai and S P Mehrotra said the of an appeal against the order of acquittal by state will not create any hurdle in the way to reinstate the employee ‘since the rule is confined only to the stage of trial and not to appellate stage.’ Allowing the writ petition of one Ram Khelawan Singh, the Court also directed the respondent to give all service benefit to the petitioner, including arrears of salary.As per facts, the petitioner while working as divisional manager, Bijjnore in UP Forest Corporation was arrested on July 13, 2001 on the charge of taking illegal gratification of Rs 5,000 for which an FIR was also lodged against him under the Prevention of Corruption Act. After this, the state government passed his suspension orders for on July 2, 2001 under Rule 4(3) of UP government servant (discipline and appeal) rules 1999.Later, the petitioner was acquitted by the trial court during the criminal trial on September 16, 2003. UNI

Allahabad HC directs filing of affidavit in Spurious Medicine case
In a matter of manufacturing and sale of illegal/spurious drugs and medicines, the Allahabad High Court today directed the state officials, including Uttar Pradesh Director General of Police (DGP) and Principal Secretary (Home) to file detailed counter affidavits with in three weeks.Besides the DGP and the Principal Secretary (Home), the Court directed the UP Director General (Medicine and Health) and the drug controller to file the detailed counter affidavits, mentioning the number of raids that have been conducted in the past one year and the number of persons arrested.The order was passed by a two Judges Bench, comprising Justice Amar Saran and Justice S C Nigam on a writ petition filed by one Brahmaji, resident of Bihar against whom an FIR has been lodged at Padrauna police station, district Kushinagar for dealing in spurious or sub-standard drugs and medicines and had collected a huge stockpile of such medicines in Padrauna town.The petitioner had moved to the Court, challenging FIR lodged against him and to stay his arrest in the matter.The Court refused to stay his arrest and fixed October 13, 2008 for further hearing. Meantime, the Court ordered the arrest of the petitioner.UNI

Centre tells Madras HC in Rajiv Gandhi assassination case, Nalini abides by its decision
The Centre informed the Madras High Court that Ms Nalini, life convict in the Rajiv Gandhi assassination case, had neither challenged any decision taken by the Union Government, nor sought relief from it.A writ petition filed by Nalini, besides Robert Payas and S Jayakumar, came for final hearing, before Justice S Nagamuthu.Additional Solicitor General for South India, M Ravindran said, ‘No action of the Central Government is challenged. Also no relief has been sought from the Centre.’ Reiterating that he had received written instructions from the Centre, Mr Ravindran said the question of filing any detailed response on behalf of the Union government did not arise, as none of its decisions had been called into question in the present case.Tamil Nadu Advocate General G Masilamani said the State was within its limit to specify conditions for extending remissions.Reiterating that convicts were not seeking remissions with vested interests in mind, he said, the question of their challenging the validity of conditions des not arise, as the state government was entitled to follow certain self-imposed restrictions.Mr Masilamani said unless the state government action was shockingly unconscionable, the courts could not entertain such pleas.S Duraisamy, appearing for Nalini said, the advisory committee, which rejected her case was not properly constituted and the probation officer’s recommendation to release Nalini with conditions had been rejected without reason.NGR Prasad, representing Jayakumar and Robert Payas, said since the victim was a former Prime Minister, it had blinded the vision of the authorities concerned.The Janata Party(JP) President Subramanian Swamy, in his petition, has strongly opposed Nalini’s premature release on the ground that since her mercy petition was accepted by the state government and Governor S S Barnala commuted the capital punishment to life-sentence, she was not entitled for another mercy.Dr Swamy would continue his arguments tomorrow.UNI

HC to hear Uphaar case on day-to-day basis
New Delhi: The Delhi High Court on Thursday said it would hear the Uphaar cinema fire tragedy appeal on a day-to-day basis from Monday.
Justice Ravinder Bhat will take up the case, in which real estate tycoons Sushil and Gopal Ansals have been sent to two years of rigorous imprisonment.
The Ansal brothers are lodged in the Tihar jail here after the apex court cancelled their bail.
The defence has begun the argument for Sushil Ansal.
The apex court, in its Sep 10 order cancelling the bail of the Ansal brothers and four others, asked the Delhi High Court Chief Justice to form an “appropriate” Bench for the appeal proceedings.
Thursday, 18 September , 2008, 18:39

Centre fails to take a stand in HC on homosexuality law
New Delhi, Sep 18 (PTI) The Centre has failed to sort out the differences between the Home and Health ministries over decriminalisation of homosexuality among consenting adults and sought more time today from the Delhi High Court to take a decision on the issue.Additional Solicitors General P P Malhotra, appearing for the government, told the court that the matter is under consideration and the cabinet will soon take a decision on the issue in view of the differences among the ministries.A bench comprising Chief Justice A P Shah and Justice S Muralidhar, however, refused to adjourn the matter saying that the government can file its response during the pendency of the case.”Let the cabinet take the decision. We are not going to pass the order today,” the bench said.The Centre in its reply had taken a contradictory stand with Ministry of Home Affairs favouring the retention of the penal provision for homosexual acts while the Health Ministry was against the enforcement of Section 377 in cases involving consenting adults.”Indian society strongly disapproves of homosexuality and 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.”Deletion of the Section can open the flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts,” it had said.The Ministry of Health, on the other hand, has not favoured 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 practises go unnoticed,” said an affidavit filed by National Aids Control Organisation (NACO), which comes under the Ministry of Health. PTI

HC reserves order on PIL against Raj Thackeray
RANCHI: The Jharkhand High Court reserved its order on Thursday on a PIL filed against Maharastra Navnirman Sena (MNS) president Raj Thakeray accusing him of making provocative statements against Hindi-speaking people.
After completing the hearing on the PIL, filed by Jamshedpur-based advocate Hameed Raza, Justice Amereshwar Sahay reserved the direction on the petition.
Alleging that Thackeray had hurt the sentiments of ‘Biharis’ by passing adverse remarks against the Hindi-speaking people and challenging them to perform ‘chaath puja’ in Mumbai, the petitioner prayed for an appropriate action against him.
The petitioner had filed a complaint case in the Jamshedpur civil court against Thackeray in May. The court had issued an arrest warrant against the MNF leader for failing to turn up before it following issuance of a notice to him.
Later, Thackeray’s counsel approached Jharkhand High Court and pleaded for transfer of the case to the High Court. Taking up the case, the High Court had put a stay on the lower court’s warrant of arrest and started hearing the petition.
Thursday, September 18, 2008 18:28 IST

HC reserves order on PIL against Raj Thackeray
RANCHI: The Jharkhand High Court reserved its order on Thursday on a PIL filed against Maharastra Navnirman Sena (MNS) president Raj Thakeray accusing him of making provocative statements against Hindi-speaking people.
After completing the hearing on the PIL, filed by Jamshedpur-based advocate Hameed Raza, Justice Amereshwar Sahay reserved the direction on the petition.
Alleging that Thackeray had hurt the sentiments of ‘Biharis’ by passing adverse remarks against the Hindi-speaking people and challenging them to perform ‘chaath puja’ in Mumbai, the petitioner prayed for an appropriate action against him.
The petitioner had filed a complaint case in the Jamshedpur civil court against Thackeray in May. The court had issued an arrest warrant against the MNF leader for failing to turn up before it following issuance of a notice to him.
Later, Thackeray’s counsel approached Jharkhand High Court and pleaded for transfer of the case to the High Court. Taking up the case, the High Court had put a stay on the lower court’s warrant of arrest and started hearing the petition.
Thursday, September 18, 2008 18:28 IST

Allahabad HC suspends Session Judge
Allahabad, Sept 18: : The Allahabad High Court on Thursday issued a show cause notice to an additional district judge for having granted bail to two persons in the BJP MLA Krishnanand Rai murder case despite a Supreme Court stay on the trial proceedings. Justice Vinod Prasad issued the show cause to ADJ Shaileshwar Nath Singh of a fast track court in Ghazipur and asked why his termination not be recommended to the administrative committee of the High Court. The order came on a bail cancellation application moved by the CBI, which had alleged that bail was granted to Rakesh Pandey and Ramu Mallah, both of them associates of Mukhtar Ansari who is an Independent MLA and prime accused in the murder case on July 8, despite the apex court’s stay on proceedings of the case in the Ghazipur court. The court directed Singh to appear on the next date of hearing on September 29. Rai was gunned down along with seven others on November 29, 2006 in Ghazipur. Ansari, along with his brother and Samajwadi Party MP Afzal Ansari and several associates including Pandey and Mallah were named in the FIR. The case was later handed over to the CBI following a High Court order. Bureau Report

Prasad’s statement not abusive : Bombay HC
MUMBAI: The Bombay High Court on Thursday said that there was nothing abusive in the “controversial” statement of Joint Commissioner of Police (Law and Order) K L Prasad. Prasad was quoted as saying that “Mumbai does not belong to anybody’s father” in apparent reaction to MNS threat not to allow screening of films starring anyone from the Bachchan family. The Court disposed off the PIL filed by advocate V P Patil, which had sought disciplinary action against Prasad for his remark. Patil withdrew the petition after Chief Justice Swatanter Kumar asked him, “What is abusive in this?”
Abuse is a well-defined term and these remarks do not fit into it, the Court observed. The Court, however, allowed Patil to approach the Maharashtra Government authorities to address this issue.
Thursday, September 18, 2008 16:11 IST

HIV-positive goes to SC; Centre, NACO get notices
New Delhi, September 18 The MNS’s whipping up of sentiments against non-Marathis seems to be spreading its tentacles. An HIV-positive person, in hope of getting Anti Retroviral Treatment (ART) from a leading hospital in Mumbai, was recently given a cold shoulder and was refused treatment on the ground that it was available only to a Marathi. The patient who is counting his days has now approached the Supreme Court.
Drawing the attention of a three-judge bench headed by Chief Justice K G Balakrishnan, senior advocate Colin Gonsalves on Thursday sought an immediate intervention from the court, which sought response from the Centre and the National Aids Control Organisation (NACO). Issuing notices in this regard to the Health Ministry and NACO, the three-member bench posted the matter for further directions to September 29.
The senior counsel appearing for the patient, a native of Bihar, told the court that the state did not have the requisite drug and line of treatment for such patients. Coming to know of this, the HIV-infected person, whose name has been withheld, moved to Mumbai. But the city’s JJ Hospital refused to treat him on the ground that he was not a Maharashtrian, the court was informed.
The apex court is already seized of a PIL filed by an NGO — Voluntary Health Organisation — seeking direction to make available ART facility to all. Gonsalves, who’s the counsel for the NGO, brought the court’s attention to the present case and pointed how despite court’s directions, such discrimination is being followed, causing hardships to patients.
Express news service
Posted: Sep 19, 2008 at 0103 hrs IST

SC stays arrest of BIS Chahal till Sept 29
Chandigarh, September 18 Providing a reprieve to former media adviser of Captain Amarinder Singh, B I S Chahal, the Supreme Court stayed his arrest in any fresh case till September 29. The orders have been passed on the special leave petition (SLP) filed by Chahal.
In the SLP, Chahal had challenged the orders of the Punjab and Haryana High Court wherein the three-day prior notice, which was issued to Chahal earlier, was recalled by the High Court.
Chahal had raised the same demand from the Supreme Court apprehending false implication at the hands of Punjab Police.
Earlier, the High Court had directed the Punjab Government to issue three-day prior notice to Chahal before arresting him in any fresh case.
Express News Service Posted: Sep 19, 2008 at 0021 hrs IST

Krishnanand Rai murder: Judge lands in a soup for defying SC
http://timesofindia.indiatimes.com/India/Krishnanand_Rai_murder_Judge_lands_in_a_soup_for_defying_SC/articleshow/3500252.cms ALLAHABAD: Granting bail to two suspects in the high-profile Krishnanand Rai murder has landed Ghazipur additional district judge Shailendra Nath Singh in trouble. The Allahabad High Court on Thursday asked Singh to come to the court and explain why he should not be sacked. Justice Vinod Prasad ordered the judge to appear on September 29 after the CBI sought cancellation of the bail he granted to Ramu Mallah and Rakesh Pandey, who are co-accused in the murder case along with don-turned politician Mukhtar Ansari’s brother Afzal Ansari. CBI said Singh let them out on bail even after the Supreme Court stayed proceedings in the case. Tnn
19 Sep 2008, 0000 hrs IST,TNN

Delhi High Court S. Ravindra Bhat Bans Jayant and Rajat Agarwala’s Scrabulous In India Too
Jayant and Rajat Agarwala created a Facebook application called Scrabulous. The application was built around Hasbro game, Scrabble. Hasbro sued the Agarwalas to have the application removed. They removed it and relaunched it as a game called Wordscraper. The Agarwalas only removed the game from the U.S. market. But now the Delhi High Court judge S. Ravindra Bhat ruled that Hasbro can retain their trademark name.
The word Scrabulous cannot be used in any form, including links and source code. So basically the Agarwalas can keep Scrabulous running in India, but only as a different name. Spicy IP India suggests that the brothers rename it to Fabulous.
In March 2008 when Scrabulous was still growing in Facebook, the two brothers were making $25,000 per month. Facebook attempted to play a neutral position regarding the matter, but ended up complying with the decision to have Scrabulous taken down.
Amit Chowdhry Thursday September 18, 2008

PIL for Nano
Calcutta, Sept. 18: A PIL was today filed in Calcutta High Court demanding its intervention to ensure the Tatas stayed in Singur.
“The court should ask the Bengal government to take measures so that the Tatas do not abandon the Nano project or shift it to any other state,” Srirupa Mitra Chowdhury said in her petition filed on behalf of a Delhi-based NGO.
The petition said if Bengal lost out on the project, it would be detrimental to development of industry and job generation in the state.
Supriya also asked the court to direct the state government to take steps to ensure a “conducive atmosphere” for Tata Motors.
The case will come up for hearing on September 19.
Friday , September 19 , 2008

Blare your horn, pay Rs 2000: Rs 100 fine set to turn history
Mumbai, September 18 The penalty for excessive honking is set to be increased to Rs 2,000 for every offence. According to an affidavit filed by the State government before the Bombay High Court in response to a PIL filed by city-based NGO Awaaz Foundation on the issue of noise pollution, the State Transport Department is planning to increase the fine for honking in silence zones from the current Rs 100 to Rs 2000.
The proposal to increase the fine was discussed at a meeting held by Chief Secretary Johny Joseph to review the measures taken by various civic authorities and the police for reducing noise pollution. According to the minutes of the meeting, the fine for a first-time offender would be Rs 1,000 while for others it would be Rs 2000. The decision would require an amendment to the Motor Vehicles Act and a proposal has been sent to the Central government, the affidavit said.
According to the affidavit, the State government will allocate responsibilities to different government departments regarding the various aspects of noise pollution.
The affidavit states that various agencies like MMRDA and MSRDC would be given the responsibility of curbing noise from numerous infrastructure projects and traffic is to be regulated by the traffic police and the RTO. There are also plans to carry out noise mapping, which is to be done by various agencies.
The affidavit further states that since 2004, the traffic police have collected fines of Rs 26,80,700 for honking and registered 37,259 cases. Joseph directed during the meeting that the Home Department provide adequate number of decibel metres to the police.
As for fire crackers and loud-speakers, the police department has been directed to take action suo-motu, the affidavit says. The government will soon come out with the Bombay Prohibition and Regulation of Fireworks Rules, 2008, which has provisions for dealing with noise pollution due to firecrackers.
A Division bench of Chief Justice Swatanter Kumar and Justice A P Deshpande has now adjourned the hearing till November 28.
Express News Service
Posted online: Sep 19, 2008 at 0253 hrs

You better don’t dare to blare
If the state gets its way, then honk at your own peril. According to an affidavit filed in Bombay high court, the government is planning to increase the fine for honking from the current Rs100 to Rs2,000.
The affidavit is in response to a PIL, filed by the city-based Awaaz Foundation, regarding non-implementation of noise pollution reduction measures. As per the affidavit, the proposal to increase the fine for excessive use of car horns was discussed in a meeting held by state chief secretary Johny Joseph to review the measures taken by various civic authorities and the police for reducing noise pollution.
The transport department has proposed to fix the fine for a first-time offender at Rs1,000, and Rs2,000 for a repeat offence. This would need an amendment to the Motor Vehicles Act, and a proposal has been sent to the Centre, the affidavit said. It added that since 2004, the traffic police have collected Rs26.8 lakh in fine for honking and registered 37,259 cases. Joseph has directed the home department to provide adequate number of decibel meters to the police.
Citizens can also get some respite during the upcoming Navratri and Diwali festivals. The affidavit stated that the police department had been directed to take suo motu action in the event of firecrackers and loudspeakers violating pollution norms.
As per noise rules, loudspeakers cannot be used after 10 pm, and firecrackers exceeding 125 decibels are banned.
The government would soon be coming out with Bombay Prohibition and Regulation of Fireworks Rules, 2008, which have provisions for dealing with noise pollution due to fire-crackers. The PIL will now be heard on November 28.
Anshika Misra
Friday, September 19, 2008 03:41 IST

HC reserves order on PIL against Raj Thackeray
RANCHI: The Jharkhand High Court reserved its order on Thursday on a PIL filed against Maharastra Navnirman Sena (MNS) president Raj Thakeray accusing him of making provocative statements against Hindi-speaking people.
After completing the hearing on the PIL, filed by Jamshedpur-based advocate Hameed Raza, Justice Amereshwar Sahay reserved the direction on the petition.
Alleging that Thackeray had hurt the sentiments of ‘Biharis’ by passing adverse remarks against the Hindi-speaking people and challenging them to perform ‘chaath puja’ in Mumbai, the petitioner prayed for an appropriate action against him.
The petitioner had filed a complaint case in the Jamshedpur civil court against Thackeray in May. The court had issued an arrest warrant against the MNF leader for failing to turn up before it following issuance of a notice to him.
Later, Thackeray’s counsel approached Jharkhand High Court and pleaded for transfer of the case to the High Court. Taking up the case, the High Court had put a stay on the lower court’s warrant of arrest and started hearing the petition.
Thursday, September 18, 2008 18:28 IST

Commutation of death sentence for Nalini vitiated by illegality: Swamy
She cannot apply for premature release under Section 433 A Cr.PC
CHENNAI: Strongly opposing the plea for the premature release of Nalini, a life convict in the Rajiv Gandhi assassination case, Janata Party leader Subramanian Swamy on Thursday said the commutation of the death sentence on her was vitiated by illegality.
In his submissions before Justice S. Nagamuthu, Dr. Swamy said the Centre should have either adopted the Tamil Nadu government’s argument or answered some of the issues arising in the petition filed by Nalini.
The Centre on Wednesday submitted that it was not filing any counter to Nalini’s petition seeking premature release. On Thursday, it said it was adopting the State government’s argument.
In his written arguments, Dr.Swamy said Nalini had filed a mercy plea before the President, but she did not disclose its outcome in the present writ petition. But, according to her, after Congress leader Sonia Gandhi publicly stated that she had no objection to the petitioner’s death sentence being commuted to life imprisonment, she (Nalini) preferred an application to the Governor for clemency. This public statement was material evidence in the writ petition and hence the Centre should have filed a counter affidavit, and documented the statement and the reasons for the same. Failure to do so remained a mystery.
“Misconceived prayer”
Dr. Swamy argued that the prayer in Nalini’s writ petition seeking a direction to the respondents to order her premature release was misconceived. She could not apply for premature release from prison under Section 433 A of the Criminal Procedure Code. That provision would apply only if the original commutation of death sentence to life imprisonment had been made under Section 433 Cr.PC.
Discretion rests with government
Quoting a Supreme Court order, Dr. Swamy said unless an order of commutation under sub-section (b) of Section 433 Cr.PC was issued, life imprisonment meant imprisonment for life. Nalini could not claim as a fundamental right that the appropriate government should set her free after she served a 14-year imprisonment. The discretion whether to release her or not rested with the appropriate government even if an order was issued under Section 433 (b) Cr.PC.
In a review of the Swami Shraddhanand case, the Supreme Court reaffirmed the settled case law i.e., that a commuted sentence of life imprisonment meant imprisonment for the physical life of the convict unless the order of commutation of the death penalty specifically stated otherwise.
Rarest of rare cases
The Rajiv Gandhi assassination case was the rarest of rare cases and deserving of capital punishment that the Supreme Court upheld and reconfirmed on the review petitions filed by the convicts, including Nalini.
The apex court’s observations while upholding the death sentence were relevant in deciding the present writ petition.
Friday, Sep 19, 2008
Special Correspondent


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