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


One Response

    CRUSHING SEASON 2008-2009.
    OF S.L.P. (C) Nos.25361-25363 of 2007.

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