Daily Legal News 24-25.10.2008

Plea for stepping up security outside temples
Express News Service Posted: Oct 24, 2008 at 0339 hrs IST
Ludhiana, October 23 : Dinesh Goel, a resident of BRS Nagar, filed a writ petition in Punjab and Haryana High Court, in which he has made a case for deploying police security outside the temples of BRS Nagar.
The court has directed the deputy commissioner, Ludhiana, to look into the matter. Goel meanwhile said that BRS Nagar was having three temples such as Durga Mata Mandir, Prachin Sitla Mandir and Shri Luxmi Naryana Mandir.
Goel said after the incidents of bomb blasts, police security near temples was a must. He also stated in his writ that no bicycle should be allowed to be parked within 100m radius of temple.

New Delhi, Oct. 24 (KCU)- It is almost certain that Kannada language will be accorded classical status before the Lok Sabha polls but definitely not by Rajyothsava day on Nov. 1 as is being expected, according to sources.
The issue was due for hearing in the Court and the Government cannot come out with a decision on any matter pending judgement from the Court, it was learnt.
According to Union Minister for Culture Ambika Soni, who spoke to the press here on Tuesday, the report of language experts has been sent to the Home Ministry. If the decision taken was favourable, the final approval would be given at the Union Cabinet meeting, she explained.
The Committee of Language Experts constituted by the Union Government had recommended granting of classical status for Kannada and Telugu languages. To prevent that, only a big political conspiracy should happen. However, no party would gain anything by conceding to such an act.
A Public Interest Litigation (PIL) reportedly filed by one R. Gandhi, a Tamil zealot questioning the credentials of the language experts and seeking an alternative committee, was learnt to have been lying before the Tamil Nadu High Court pending hearing.
Not much progress had been seen after the PIL was filed during the first week of August. Based on the PIL, the Court had served notices on the Union Government and the replies too had been reportedly received. No further hearing had taken place, according to sources.
Wooing the voters by offering ‘gifts’ on the brink of holding an election is an usual gimmick of any political party and the UPA too is not far from that. The Lok Sabha polls have to be conducted before May 31 next. So in the next three or four months, classical status would be accorded to Kannada and Telugu thus claiming a political mileage.
The experts’ committee had in fact given the final recommendation to offer the classical status for the two languages about three months ago. Just because a PIL was pending hearing, the recommendations were not made public. Agrahara Krishnamurthy, Secretary, Cultural Academy had reportedly submitted the recommendation report to the Culture Ministry a fortnight ago. The Academy holds the total administrative responsibility of the experts’ committee, it has been said.
Improper historical records cause for the delay
Mysore, Oct. 24 (HT&DV)- Lack of records pertaining to the history of Kannada literature is the reason for the delay in according classical status to Kannada, observed Kannada and Culture Department Director Manu Baligar.
He was speaking after releasing Volume-4, Part-3 of the book ‘Kannada Sahitya Charithre’ at a function at Kuvempu Institute of Kannada Studies (KIKS) at Manasagangotri on Tuesday.
Classical status is accorded considering the growth of literature and language. Improper documentation of history of Kannada literature and language had caused delay in according the status, he said.
No book had been written till 13th century recording the history of Kannada literature and language, he added.
Under the classical status already accorded to Tamil language, Rs. 350 crore had been released to Tamil Nadu Government. This has helped the Government to take up schemes for the development of Tamil language. This has also helped in establishing Tamil study chairs in all the Universities of the world for the growth of the language.
More importance is being given in the country for recording character rather than history. Indians lag behind other countries in recording history, he added.
It is the need of the hour in the country to preserve the history, he opined. The book on the History of Kannada literature is written on the ideals of historeans, writer and critic.
Prof. C.P. Krishna Kumar, retired Professor of Mysore University, said the attitude of neglecting tradition was growing. Tradition is greater than history. History changed with time but tradition becomes contemporary, he opined.
Acting Vice-Chancellor Prof. T.C. Shivashankaramurthy, Prof. Ambalike Hiriyanna of KIKS, Editor of the volume Prof. Ramegowda and Sub-Editor Dr. Akkamahadevi were present.


Dismissed Godhra cops get relief from High Court
Express News Service Posted: Oct 24, 2008 at 0202 hrs IST
Ahmedabad, October 23 : HC admits petition challenging their dismissal for negligence
Justice K S Jhaveri of the Gujarat High Court has admitted a petition challenging the dismissal of five police personnel on charges of negligence of duty as members of the mobile police squad of the Sabarmati Express on February 27, 2002.
The five policemen are Jabir Shaikh, Kishor Pattani, Kishor Devani, Rasikbhai Rajabhai and Gulabsinh Devusinh.

SC permits use of loudspeaker in Mumbai during ‘Chatt’ puja
New Delhi, October 24 (PTI) The Supreme Court today permitted the use of loudspeaker and sound-system for crowd management and performance of rituals during the ‘Chatt’ festival at all beaches, including the one at Juhu, in Mumbai.The apex court said that the sound system can be used by the organiser of Chatt puja for the crowd management and performance of rituals till 10 pm.The petition was filed by an organisation, Bihari Front, against the decision of the Maharashtra government to ban the use of sound system at Juhu beach during the Chatt festival. PTI

Bringing judiciary under RTI ?
THE VITAL ‘Wealth-declaration, conduct-code by judges’ issue raised through Right To Information (RTI) petitions has made the Union cabinet give its nod to include them in the forthcoming ‘Judges Enquiry Bill 2008’ which aims at empowering the common man. It now gives every Indian citizen the power to file complaints against judges of higher courts before a high-powered National Judicial Council.Supporters of this landmark judgment must ensure that the Bill does not lapse like many good Bills earlier. It would also be wise if the National Judicial Council could include retired judges of Supreme Court acting as member-nominees of president, prime minister, Opposition Leader, chief justice of India and Bar association with central vigilance commissioner as ex-officio member. The serving judges are already overburdened with work.Atul Patankar

HC asks govt to inform on steps taken for flood-hit
24 Oct 2008, 0246 hrs IST, TNN

PATNA: Patna High Court on Thursday directed the state government to state on affidavit the measures taken for providing safe drinking water, health care, shelter and ex-gratia to the people affected by floods in the Kosi region. The order was passed by a division bench comprising Chief Justice R M Lodha and Justice K K Mandal during hearing of PIL of Akash Akanksha, an NGO, which claimed that the measures taken by the state government to provide relief in the Kosi region were inadequate. The court also asked the petitioner’s counsel to state on affidavit the details of the relief not provided to people, village and panchayat-wise on the basis of the petitioner’s claim that relief being provided to the affected people was inadequate. If the relief provided to the people is inadequate, then it is upto what level, the court asked the petitioner’s counsel? The petitioner’s counsel, Shakeel Ahmad Khan, submitted there was no significant work done to provide flood relief which was largely inadequate. In its counter-affidavit, the government submitted that at the relief camps dotting the flood-affected districts in the Kosi region, the people were being provided shelter, food, sanitation and education facilities. There are maternity huts at the relief camps where schools are also being run. Telephone links are also available. That apart, every affected family has been given Rs 2,250 for purchasing clothes and utensils. They were also given a quintal of foodgrains. Advocate general P K Shahi and additional advocate general N K Sinha made submissions on the basis of the state government’s counter-affidavit. Tnn

Soldier dismissed for being HIV+ seeks HC’s help
24 Oct 2008, 0314 hrs IST, TNN
CHENNAI: In the Indian Army’s scheme of things, what is the best way to deal with a soldier who tests positive for HIV? Dismissal from service!
M Madheswaran was a sepoy and a boxer, for nearly 10 years. He participated in five to eight featherweight and lightweight category combats every year. It all ended in 1999, when Madheswaran tested positive for HIV. The military establishment lost no time in declaring him unfit for service and sent him home. The boxer-soldier has now approached the Madras high court, questioning his discharge from service. Justice K Suguna has ordered notices to the top brass of the Army. In his petition, Madheswaran said the authorities said the infection was “not attributable to military service.” The ruling has denied the soldier all employment and pension benefits. Madheswaran said that he fought both soldier – and civilian-boxers, who were never subjected to HIV-screening. Reiterating that he never had any illicit relationships, Madheswaran said that several times had been treated for wounds with stitches, followed by injections. He said he might have contracted HIV from fellow boxer(s), as the HIV virus can get into one’s blood through small cuts and sores in and around the mouth and nose. He said his claim for disability pension was also denied citing that the disease was “due to the individual’s own negligence and not related to military service.”

HC seeks info on fire safety measures in high rises

24 Oct 2008, 0222 hrs IST, TNN
LUCKNOW: The high court on Thursday expressed serious concern against the dilly-dallying of the state government and fire department in ensuring fire safety measures in high rises and multiplexes in the entire state. The bench of Justice Pradeep Kant and Justice Ved Pal directed the government to lay before it the standards made to ensure safety of people from fire. The bench also asked the government why it did not ensure compliance of the previous orders which provided fire safety for buildings made after or before the implementation of the Fire Act, 2005. The orders were passed on the PIL of Gomtinagar Jan Kalyan Mahasamiti. The court fixed the hearing of the PIL in the last week of November. Earlier in compliance of the court order, principal secretary (housing) Sri Krishna, principal secretary (home) Fateh Bahadur, and deputy director (technical) fire services were present in the court. Counter affidavit: A division bench of the high court comprising Justice Pradeep Kant and Justice Ved Pal on Thursday directed the state government to file counter affidavit in three weeks on compliance of the Juvenile Justice Act, 2000 in the state. A PIL filed by one Ambresh Srivastava further sought full week working of the boards and maintenance of the homes and its inmates.

HC relief for state in green zone case
24 Oct 2008, 0032 hrs IST, TNN
MUMBAI: The Bombay high court on Wednesday said that the state government is competent enough to change a green zone to an industrial zone.
A public interest litigation (PIL) filed by Shetkari Sangarsh Samiti from Pezari village in Alibaug had questioned the proposal, citing CRZ violation and other environmental issues. Earlier, the court had directed the state government not to take possession of 2500 acres of land at Shahapur village in Alibaug for its proposed energy generation project till further orders. The state government is acquiring the land for Maharashtra Energy Generation Limited, a subsidiary of Anil Ambani’s Reliance Energy Limited, which is proposing to set up a 4000 MW natural gas and coal-based plant. The land happens to be in G II zone. On Wednesday, the petitioners said that the state government has no power for conversion of land use from green zone II to industrial zone. Assistant government pleader Pradip Patil, however, said the Maharashtra Regional and Town Planning Act permitted the state to change the zoning. In this case, the state government had issued a notification in August in the official gazette, inviting objections and suggestions, informed Patil. “The court accepted the contentions and stated that the earlier order, restraining the state from taking possession of land will continue. The state can, however, go ahead with the acquisition proceedings,” Patil said. The case has been adjourned till November 26. The court had earlier stated that it will not interfere in the process of land-acquisition by state authorities.


HC transfers Nimbalkar case to CBI, says probe is faulty
Calling the probe conducted by Navi Mumbai crime branch “faulty” and one-sided, the Bombay High Court on Thursday transferred the investigation of Pawanraje Nimbalkar murder case to Central Bureau of Investigation.
Nimbalkar, a Congress leader from Osmanabad, was shot dead on June 3, 2003, at Kalmaboli in Navi Mumbai, while travelling down the Pune-Mumbai expressway. His driver too was killed.
His wife Anandibai Nimbalkar had filed petition before the High Court, seeking CBI probe and alleging that NCP leader Padmasinh Patil a former state minister — had hand in Pawanraje’s murder.
Division bench of Justices SB Mhase and VK Tahilramani have said in the judgement that the probe carried out by Navi Mumbai crime branch has hit a “deadlock” and does not inspire confidence.
Police did not look into the theory that Vicky Malhotra, a Chhota Rajan aide who was in Thane jail during this period, might be involved in the murder, judges said.
Narco-analysis of Tanaji Patil, arrested accused, had revealed Malhotra’s name
Judges had, during the hearing, sought the record of Malhotra’s movement out of the jail. Malhotra had been taken to Mumbai around June 3 in connection with a court remand.
Judges have also recorded that police did not trace the miscalls on Nimbalkar’s cell-phone on the day of the murder.
Judges have said that in a matter regarding a person who has connections with the administration, it is in public interest that CBI probes the case.
Press Trust Of India
Mumbai, October 23, 2008

Katara murder case: Vikas Yadav files appeal in HC

New Delhi, Oct 23 (PTI) Killer of Nitish Katara, Vikas Yadav today filed an appeal before the Delhi High Court challenging a city court’s conviction order against him, a move that comes a day after the Supreme Court rejected his plea to shift the matter to Allahabad High Court.Filing the petition through his lawyer, G K Bharati, Yadav contended that the trial court had wrongly held him guilty for the murder of Katara, son of an IAS officer, despite the fact that there was no direct evidence against him.Alleging that the trial judge had ignored certain facts in the case, Vikas said the court relied upon the deposition of Ajay Katara despite the fact that he was an interested witness in case.Vikas in his appeal also stated that the crime-related articles, including the wrist watch and the recovered murder weapon, were planted by the prosecution. The appeal is likely to be listed for hearing shortly.Meanwhile, Vishal Yadav, co-convict in the case had already filed his appeal, which is coming up for hearing in November before the High Court.In June this year, Vikas, son of Uttar Pradesh politician D P Yadav, and Vishal were sentenced to life imprisonment for killing Katara, an MBA graduate, as they were against their sister Bharti’s intimacy with him.The duo had kidnapped Katara on the night of February 16, 2002 from a marriage party in Ghaziabad and killed him. PTI

HC order to flush out prisoners unable to pay bail bonds
Express News Service Posted: Oct 23, 2008 at 0236 hrs IST
Mumbai, October 22 : In a significant relief for thousands of undertrials languishing in jails due to their incapacity to pay their bail bonds, the Bombay High Court has held that the authorities should strictly go by laws under the Criminal Procedure Code wherein such persons can be declared indigent (poor or needy).
The order came on a bail application moved by an undertrial Shivaji Gavade Patil whose bail was rejected.
However, during the hearing of the application the issue regarding prisoners who were granted bail in bailable offences but could not furnish the bail bond was raised.
A division bench of Justice F I Rebello and Justice Ashutosh Kumbhakoni has now decided to monitor the situation for a year and has directed all the sessions judges in the state as well as Goa and Daman and Diu to call for periodical records from the Magistrates and jail superintendents to apprise them of the situation.

State has right to turn green zone industrial: HC
Express News Service Posted: Oct 23, 2008 at 0231 hrs IST
Mumbai, October 22 : The Bombay High Court on Wednesday observed that the state Government is competent to change a zone from Green to Industrial.
The court was hearing a public interest litigation filed by Shetkari Sangarsh Samiti from Pezari village in Alibaug. The state government is acquiring 2500 acre of land in Shahapur village for Maharashtra Energy Generation Limited (MEGL), a subsidiary of Anil Ambani’s Reliance Energy Limited which is proposing a 4000 MW natural gas and coal based plant there.
The locals had strongly opposed the proposal citing CRZ violation and other environmental issues.
The court had earlier directed the state government not to take possession of the 2500 acre land till further orders. Today the petitioners contended that the state government has no power for conversion of land use from green zone II to industrial zone. The land happens to be in G II zone.

HC asks for CDs of reality show in obscenity case
25 Oct 2008, 0501 hrs IST, TNN
MUMBAI: It’s a reality show of the legal kind that makers of `Bigg Boss II’ are facing. The Bombay high court on Friday directed the programme’s producers to provide the CDs of the show to the police to assist in investigations into allegations of obscenity. However, offering some relief, the HC permitted the show’s producers to continue with the telecast till November 21. The matter landed in the HC after the show’s producers Endemol approached it with a plea that a criminal complaint lodged with the police against them be quashed. The police are investigating a complaint filed by Mumbai Youth Congress president Sunil Ahire, alleging that the show’s contents include obscene and abusive scenes. The petition filed by the producers states the show is not obscene and alleged that competitors of the channel, which airs it, were behind the “hype over obscenity”. It observed how it was “no coincidence” that Ahire is a Congressman like Sanjay Nirupam who was eliminated from the show after the first week. Justice V K Tahilramani directed the producers and director of the show to co-operate with the police in their investigations and adjourned the matter for further hearing to mid-November.

Epic struggle: Apex court upholds HC order in 21-year-old brutality case
Express News Service Posted: Oct 25, 2008 at 0417 hrs IST
Ahmedabad, October 24 : Accused IG (prison) to pay Rs 8 lakh compensation to victim Prafull Thakkar
Twenty-one years after an act of police brutality cost him his right eye, Congress leader Prafull Thakkar stands vindicated once again, this time before the Supreme Court.
A Division Bench of the apex court on Friday dismissed an ad-interim appeal filed against an order of the Gujarat High Court where it had decreed that the Gujarat Government and Rajan Priyadarshi, an Additional Director General of Police (ADGP), involved in the attack on Thakkar, pay Rs 8 lakh as compensation to him. Priyadarshi is currently posted as IG (Prisons).

POTA review panel case: HC issues notices to respondents
Express News Service Posted: Oct 25, 2008 at 0429 hrs IST
Ahmedabad, October 24 : The Gujarat High Court on Friday issued notices to the respondents, including accused of the Sabarmati Express carnage, in a case seeking quashing of the recommendations made by the Central POTA Review Committee.
A Division Bench comprising justices D A Mehta and Mrs Abhilasha Kumari issued the notices, which are returnable on November 13. This comes a day after a bench comprising justices Rekhaben Doshit and K M Thakkar declined to
hear the case with the latter saying “not before me” and directed that it be referred to another bench.
Friday’s order came on a petition filed by Sardar Maganji Vaghela, a relative of one of the victims of the train tragedy. Vaghela has contended that the report of the POTA review committee is not consistent with the evidences collected by the investigating agencies, so its findings should not be made binding on the court and the investing agencies.

Centre, Gujarat court HC ire for not releasing SSA grants
Express News Service Posted: Oct 25, 2008 at 0428 hrs IST
Ahmedabad, October 24 : Issues showcause notices on petition filed by Mandal Naya Gujarat Sewa Mandal
The Gujarat High Court on Friday issued show-cause notices to the Ministry of Human Resource Development, the Primary Education Department of the Gujarat Government and the municipal school board of the Ahmedabad Municipal Corporation (AMC).
Justice Jayant Patel has asked the three parties to show as to why the petition filed by Naya Gujarat Sewa Mandal through its chairman Habibkhan Pathan for release of grant under the Sarva Shiksha Abhiyan (SSA) should not be admitted. They have been asked to file their replies by November 17.

HC gives clean chit to Rajnish Rai in exam case
Express News Service Posted: Oct 25, 2008 at 0415 hrs IST
Ahmedabad, October 24 : Court quashes GU decision to declare him failed in LLB papers, allows him to appear in two semester exams simultaneously
The Gujarat High Court on Friday observed that the Gujarat University’s inquiry into the allegations that IPS officer Rajnish Rai had used unfair means in an LLB examination was in total disregard of the principles of natural justice and fair play. The court quashed the decision of the GU’s Examination Reforms Committee that had declared him fail in all the subjects of second semester examination for the first year.
Justice Jayant Patel, in his order, also directed the university to declare the results of the officer by November 14.

HC clears cop and he tops another law exam
25 Oct 2008, 0307 hrs IST, Saeed Khan, TNN
AHMEDABAD: Rajnish Rai, who was accused of cheating in a law exam by Gujarat University, has topped in a course of patent laws in a Hyderabad-based university. The IPS officer has secured first rank and is the only student to get distinction with 70.4 per cent, among 409 students during the academic year 2007-08 in the Nalsar University of Law in a one-year post-graduate diploma in patent law. The cop had actually enrolled for the year 2006-07, and his examination was scheduled during April 2007. Rai could not take the examination as he was involved in the investigation of the fake encounter of Sohrabuddin Sheikh. Just four days before he had to appear in the examination, three IPS officers, including the high-profile DG Vanzara, were arrested by him. “I was busy with the investigation and therefore I had to seek extension,” Rai said. Rai is interested in the subject of patent laws and his papers have been published in reputed law journals. “Why should I resort to cheating in a Gujarat University examination, when I can excel in India’s premier institute like Nalsar University?” he said. Rai said he is a relieved man now. “The stigma has been wiped out. The case against Gujarat University was not a normal battle for me. Ultimately, the court has also upheld my contention that I am innocent. My stand has been vindicated,” he said adding, “God is there.” But, the officer refused to comment on whether he saw any conspiracy in fixing him in the copying case. He said that he is prepared for a longer battle, as those against him would go for further litigation. Rai is now awaiting results of the examination, in which he was accused of cheating. On asked whether he expects to top the university here like he has topped the Nalsar University, he said, “I wish that I at least pass this exam first. I am happy that the court has declared me a clean person.”

HC orders removal of encroachments
25 Oct 2008, 0242 hrs IST, TNN


PATNA: Patna High Court on Friday issued a directive to the state government to take immediate steps for removal of encroachments on the drains near

Nalanda Medical Medical College and Hospital in Agamkuan which caused waterlogging on the hospital campus. A division bench comprising Chief Justice R M Lodha and Justice K K Mandal issued the directive while hearing the PIL of Ajay Kumar and others stating that a large number of people, including patients, doctors, nurses and students of NMCH, were facing great inconvenience due to waterlogging on the hospital campus during the monsoon season. The petitioners’ counsel M P Gupta submitted that on September 20, 2007, the executive officer of Patna city circle of Patna Municipal Corporation had written a letter to Patna city SDO to depute a magistrate with police force for removal of encroachments by shops on the drains near NMCH. But it’s been over a year and no steps had been taken in this regard, the petitioner’s counsel added.

HC refuses stay on CPRC findings
25 Oct 2008, 0022 hrs IST, TNN
AHMEDABAD: Gujarat high court on Friday refused to grant a stay on the findings of Central Pota Review Committee (CPRC), and allowed it to be a party in the case challenging CPRC’s recommendations. One Sardarji Maganji Waghela, whose son was killed in the Godhra carnage on February 27, 2002, had filed this petition through advocate Vijay Patel in March this year. On request from the advocate, a division bench of Justice J R Vora and Justice M R Shah removed CPRC as a respondent. The proceeding was adjourned following a petition in Supreme Court on issue of validity of the committee’s constitution. Recently, apex court ruled that CPRC findings are binding on concerned lower courts, thereby ordering withdrawal of Pota charges from Godhra carnage accused. This led the petitioner to request the court to stay implementation of CPRC findings. But, a division bench of Justice D A Mehta and Justice Abhilasha Kumari rejected the plea and stated that the issue would be heard at the next hearing scheduled on November 13. Meanwhile, the court issued fresh notices to 11 respondents, who are accused in the Godhra carnage case, since they were not served the notices earlier.

20-yr ordeal over, MHA worker gets relief from HC
Krishnadas Rajagopal Posted: Oct 25, 2008 at 2356 hrs IST
New Delhi, October 24 : It cost R K Gupta 20 nail-biting years and his career to prove his employer, the Union Home Affairs Ministry, wrong in branding his wife’s job as a receptionist at the Egyptian Embassy a “breach of national security”. Thanks to a recent intervention from the Delhi High Court, the 53-year-old Assistant with the MHA is waiting for a promotion as Section Officer, says his lawyer Raman Oberoi.
Gupta’s troubles started in March 1980 when his wife was selected as a receptionist with the Embassy of the Arab Republic of Egypt here. It is mandatory that a staffer should apply to the “Ministry/Department concerned for permission before wife or dependant intends to take up employment with a foreign mission in India or with any foreign organisation”.
Though Gupta applied to the Home Ministry about his wife’s appointment he did not receive any reply for the next eight years. He was in for a surprise when in 1988, the Intelligence Bureau took an objection to his wife working with a foreign mission and sent him a communication on May 16, 1989 to “direct” his wife to leave her job. But Gupta’s wife refused to quit.
The ministry again chose not to act for another four years, until on March 5, 1993, it filed a chargesheet against Gupta for “disobeying the directions of the Government of India”. Back to sleep again, the ministry “woke up” on May 2, 2000 to find Gupta guilty and promptly dismissed him.
Gupta went on to fight the ministry before the Central Administrative Tribunal for another eight years, at the end of which the Tribunal ordered the Government to reinstate him in February this year.
The decision saw the ministry rushing to the High Court for reprieve. The court, in a recent order, dismissed the ministry’s allegations.
Justice Lokur observed, “If Gupta was guilty of not taking prior permission, action should have been taken by the Ministry in March/April, 1980 itself or immediately thereafter. There is absolutely no justification for them to wake up after eight years and then seek to stress upon a condition which is today no longer applicable.”
Dismissing the ministry’s challenge, Justice Lokur concluded that “having kept silent for eight years, if not 13 years in all, the ministry has given tacit consent to Gupta’s wife working as a receptionist in a foreign mission in New Delhi.”

CJI: Minority protections key to International Peace & Stabilityhttp://www.indlawnews.com/Newsdisplay.aspx?58e6bcb2-6f7c-46c1-889c-0853667e862a
Shifting emphasis from self determination to the quality of protections for minorities within the framework of national laws was suggested by Chief Justice of India K G Balakrishnan.It’s ‘in the interest of promoting international peace and stability,’ Justice Balakrishnan observed while delivering the V K Krishna Menon Memorial Lecture 2008.The event marking the 34th death anniversary of independent India’s first High Commissioner to London– subsequently Defence Minister– was addressed among others by former Punjab and Haryana Chief Justice Vijender Jain.Justice Jain spoke about Indian espousal of non-alignment– coined by Menon for ‘countries not aligned to the right or left’– as a pursuit against injustice in world affairs.Justice Balakrishnan’s address centred on The Right Of National Minorities To Seek Self-Determination Under International Law, a topic he said he saw as a ‘pertinent issue’ in the field of public international law.The CJI recalled Menon’s defence of Indian stand on Kashmir in the United Nations Security Council and ‘foundational role in shaping’ independent India’s foreign policy.‘One can proceed with the assumption,’ Justice Balakrishnan said, ‘that national minorities do not have an absolute right of self-determination in keeping with the view that they cannot be identified with the word peoples as used in the UN Charter.’ This, he said, was exemplified by Indian declaration in respect of Article 1 of the International Covenant on Civil and Political Rights.It ‘affirmed that the right to external self-determination applied only to the people under foreign domination and not to sovereign independent states or to a section of the people or nation.’ Justice Balakrishna drew the distinction between a ‘whole population’ exercising the right of self-determination in cases of historical disruptions such as colonial rule and national minorities doing so in cases of ‘continuing oppression.’ He also pointed to the problems in ‘ascertaining the will of a minority to secede from an independent State’– as not all of its members may favour such a move.‘The identification of a minority’s will may itself be based on objective criteria such as language, ethnicity, race, religion and cultural practices or on subjective criteria which involves an expression of the will to secede such as a referendum, a popular movement or demands made by political parties representing a national minority.‘The recognition of a legal right of self-determination becomes problematic because not all members of a minority community identified on the basis of objective criteria may be in favour of exercising such a right.’ He said the existence of oppression or unrepresentative government ‘obviously needs to be proved’ with reference to a high threshold.India, for instance, ‘is a prominent practitioner of the philosophy of legal pluralism by way of allowing Muslim, Christian, Parsi and Jewish communities to adhere to their respective personal law regimes.’ He cited the co-existence of parallel personal law regimes in Israel where separate systems co-exist for Orthodox Jews and Arabs besides the secular law on matters such as marriage, divorce and inheritance.

SC no to PIL seeking deletion of caste name from voters’ list
New Delhi (PTI): The Supreme Court on Friday declined to entertain a PIL seeking a direction to the Election Commission to delete the name of voters’ caste from the electoral list.
A Bench headed by Chief Justice K G Balakrishnan said it cannot pass any such direction after hearing the submission of Valu Gandhi, a Gandhian, who contended that giving identification of caste in the electoral list will promote caste driven politics.
The septuagenarian from Tamil Nadu, who appeared in person and made his submission in Tamil, said all the recent conflicts including the communal clash in Orissa are the results of the deep-rooted caste system in the country.
Justice P Sathasivam, who was the part of the Bench along with the CJI and Justice Aftab Alam, responded in Tamil to Valu’s submission and expressed the limitation of the apex court in the matter.
When Valu was told that by the Bench that no direction could be passed on his PIL, he left the court room quietly.

SC reserves verdict on HC Judge Justice S Ashok Kumar confirmation
The Supreme Court reserved its verdict on a petition filed by former Union Law Minister Shanti Bhushan challenging the decision of Chief Justice of India (CJI) K G Balakrishnan confirming Justice S Ashok Kumar as permanent judge of the Madras High Court without taking the apex court collegium into confidence.The Supreme Court judges collegium comprises of the CJI and two senior most judges of the court.The Union Government in its statement made on oath submitted in the Supreme Court said that since 1999 many CJI’s have violated the apex court’s own judgement while recommending a person for appointment as a judge in the High Court. The CJI would form his opinion on the basis of his consultation with the collegium.According to the Union Government’s affidavit around 350 such appointments have been made since 1999. The recommendations of the CJI on the basis of his opinion formed after consulting the members of the collegium is binding.A bench headed by Justice Arijit Pasayat reserved the judgement after hearing the arguments of all the parties in the case.According to the petitioner, the name of Justice Ashok Kumar for confirmation as High Court judge had earlier been rejected twice.UNI

Supreme Court on Withdrawal Cases Under POTA
Ghost of a Law
Friday, October 24, 2008
Background The case came up before the Supreme Court as Criminal Appeals. The appellants are categorised generally into two; relatives of the victims of the unfortunate incidents at Godhra and Akshardham temple carnages, and those who are accused under POTA. The Act provides for the setting up of Review Committees (RC) to look into the abuses of the legislation. If the RC, on review, finds that a charge made against an accused prima facie is unsubstantiated, it can recommend withdrawal of the case under section 60 of the Act. This provision was challenged before the HC of Madras earlier as the power of RC is an interference by the executive in the judicial power and that the direction by the RC to withdraw proseccution is an interefence with the right of the state to prosecute an offence. The HC upheld the validity of the provision highlighting that RC’s recommendation has to go through section 321, Cr.PC procedure for withdrawal of cases and judicial scrutiny therefore is ensured that it will not amount to meddling with judicial power. SC had later affirmed the HC’s decision in appeal.In the present case the relatives of the victims are arguing that section 2(3) of the POTA Repeal Act, shall be held unconstitutional as it interferes with judicial power. The claim of the accused under POTA is that section 2(3) shall not be made subject to section 321 Cr.PC.
This appeal arise from the order of the HC of Gujarat upholding the constitutional validity of section 2 (3) of the repeal Act. HC held that section 2(3) is in pari materia with section 60 (4) to (7), the constitutional validiy of which has been upheld already. As also section 2 (3) shall be subjected to section 321 Cr. PC for the same reason of the same language used in both sections and previous SC decision.
Question of Law and Issues
i) Whether sub-section (3) & (5) of section 2 of the Repealing Act are unconstitutional and therefore invalid; and (ii) Having regard to section 2(3) of the Repealing Act, when the Review Committee records an opinion that there is no prima facie case for proceeding against the accused under POTA, whether the proceedings shall be deemed to have been withdrawn against such accused or whether it is necessary for the Public Prosecutor to file an application seeking consent of the court for withdrawal from prosecution under Section 321 of the Code.
On Constitutional Validity: The court upheld the constitutional validity of the provision. There are two judgments in the case. One by CJI and the other by Justice Dalveer Bhandari, concurring but offering different rationale. CJI finds that there should be different appreciation of a ‘live and current’ legislation and one that is being ‘wound up’ ie. a repeal enactment, while determing their constitutional validity.Following referral points were set by the CJI to determine the constitutional validity”(a) Parliament has the exclusive competence to legislate on terrorism and terrorist and disruptive activities which threaten the security, integrity and sovereignty of the country, as they fall under Entry 1 of List I of the Seventh Schedule to the Constitution. Alternatively, they would fall under the residuary power conferred on Parliament under Article 248 read with Entry 97 of List I of Seventh Schedule (vide Kartar Singh v. State of Punjab – 1994 (3) SCC 569).
(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been a clear transgression of the constitutional principles. (Vide State of Jammu & Kashmir vs. Triloki Nath Kosha – 1974 (1) SCC 19)(c) A law made by the Parliament can be struck downby courts on two grounds and two grounds alone : (1)lack of legislative competence; and (2) violation offundamental rights guaranteed under Part-III of theConstitution or any other constitutional provision. Thereis no third ground. (Vide State of Andhra Pradesh vs.Mcdowell & Co. – 1996 (3) SCC 709).
(d)The power and competence of Parliament to makelaws in regard to the subjects covered by the legislativefields committed to it, carries with it the power to repeallaws on those subjects. The power of the Parliament torepeal a law is co-extensive with the power to enact sucha law. (See Justice G.P. Singh’s Principles of StatutoryInterpretation – 11th Edition, Page 633).
(e)The Legislature may prescribe special procedure tomeet special situations and to meet special objectives solong as they are not arbitrary or discriminatory. [KathiRaning Rawat v. The State of Saurashtra – 1952 SCR 435and In Re : The Special Courts Bill, 1978 – 1979 (1) SCC380].
(f) If any Central Act is repealed, without making anyprovision for savings, the provisions contained in section6 of General Clauses Act, 1897 will apply. But where the repealing Act itself contains specific provisions in regard to savings, the express or special provision in the Repealing Act will apply. Section 6 of General Clauses Act makes it clear that it will not apply, when a different intention appears in the Repealing Statute. Where the provision relating to savings is excluded, the repeal will have the effect of complete obliteration of the statute. (vide State of Orissa v. M.A.Tullock & Co. – 1964 (4) SCR 461, Nar Bahadur Bhandari v. State of Sikkim – 1998 (5) SCC 39 and Southern Petrochemicals Industries Co. Ltd. v. Electricity Inspector – 2007 (5) SCC 447).”
The power of the parliament while enacting repeal legislation and the effect of it is summarised by the CJI. It is said that the parliament have plenary power to repeal any statute and it will be inapplicable for all future purposes, and can wipe out rights accrued and pending proceedings under the Act, if saving clause is specifically excluded. The logic flows from this is that, when parliament have the outright power to repeal an Act without any saving, obliterating all pending proceedings, it very well have the competency to enact a repeal legislation that can put stop to proceeding abruptly, in this case, on the recommendation of the RC. Therefore, the determination of the issue is done as given below:
“Natural consequence of repeal, as noticed above, is complete obliteration including pending proceedings. Continuation of a pending proceeding is possible only on account of the deeming fiction created by the savings clause in the Repealing Act which provides for continuation of the proceedings as if the Principal Act had not been repealed. Therefore any provision in the Repealing Act for having a pending proceeding, with any further provision for termination of such pending proceedings, is a provision relating to `winding up’ matters connected with the Repealed Act. By no stretch of imagination such a provision can be termed as interference with judicial power, even assuming that such a provision in a live unrepealed statute may be considered as interference with judicial power.”On Subjecting Section 2 (3) to Section 321 Cr. PC: The legislative intent on the application of section 2(3) is clear to the effect that there is no requirement of subjecting this section to section 321 Cr.PC. The logic offered is that, if section 321 requirement is made applicable, the effect of deemed withdrawal provided in secction 2 (3) will be rendered nugatory. That for the court, will amount to rewriting of the provision.On Lack of Judicial Supervision on Withdrwal of Cases: The contention by the realtives of the victims that there will be no judicial supervision for withdrawal of cases, is negatived the court. The existnece of writ jurisction and appellatte jurisdiction under Article 136 for the court will address the issue.Court makes a distinction between the scheme of the POTA section 60 with section 2 of the repeal Act to overrule the HC judgment which has made section 2(3) subject to section 321 Cr. PC. The reasoning of the HC was that the SC in a earlier case had determined that withdrawal of complaints under section 60 shall be as per the requirement of the section 321. Section 60 and 2 are pari materia. Therefore section 2(3) is suject to section 321.The Final Decision in Court’s Own Words; “[w]e therefore hold that once the Review Committee on review under section 2(3) of the Repealing Act, expresses the opinion that there is no prima facie case for proceeding against the accused, in cases in which cognizance has been taken by the Court, such cases shall be deemed to have been withdrawn. The only role of the Public Prosecutor in the matter is to bring to the notice of the court, the direction of the Review Committee. The court on satisfying itself as to whether such an opinion was rendered, will have to record that the case stands withdrawn by virtue of section 2(3) of the Repealing Act. The court will not examine the correctness or propriety of the opinion nor exercise any supervisory jurisdiction in regard to such a opinion of the Review Committee. But we make it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the Court where the proceedings were pending, will continue with the case as if there had been no such opinion.”
Posted by Jasmine Joseph at 2:37 PM

Indian nun recounts rape ordeal
NEW DELHI – A nun who was allegedly raped during recent anti-Christian violence in eastern India demanded a federal probe Friday, and accused local police of shielding her attackers.
The nun was reportedly assaulted by a rioting mob on August 25, days after the murder of a Hindu priest sparked attacks by Hindu extremists on the Christian community in coastal Orissa state.
More than half-a-dozen people have been arrested over the incident.
But Mina Barwa told reporters in New Delhi that she had little faith in local police.
Barwa, 29, said she was dragged to a burned-out Christian home where two men held her down and a third raped her. She was then beaten with sticks and paraded semi-naked in the streets as mobs threatened to gang rape her.
“They pulled out my sari and one of them stepped on my right hand and another on my left hand and then a third person raped me,” said Barwa, who covered her face with a scarf while speaking.
She was then paraded in the streets, along with a priest.
“They had already torn away my blouse and undergarments,” she said. “And they went on beating me with hands on my cheeks and head and with sticks on my back.”
At least 35 people died in weeks of anti-Christian attacks in Orissa and nearly 50,000 fled their homes. Many of them remain in state-run shelters.
Pope Benedict XVI strongly condemned the violence.
This week, India’s Supreme Court rejected a plea by a Catholic bishop for a federal investigation into the alleged rape, saying the matter should be probed by the Orissa police.
Religious clashes erupt periodically in India where only 2.3 percent of the more than 1.1 billion population are practising Christians.
Hardline Hindu groups accuse missionaries of bribing poor tribes people and low-caste Hindus to convert to Christianity by offering free education and health care.

Teacher tribunal on table
http://www.telegraphindia.com/1081024/jsp/frontpage/story_10013286.jsp CHARU SUDAN KASTURI
New Delhi, Oct. 23: Teachers in private schools and colleges with grievances against their institutions may soon be able to seek government intervention through a controversial job dispute redress mechanism proposed by the Centre.
The human resource development ministry has drafted plans for a national teachers’ tribunal that for the first time will see government intervention in employment concerns of private sector teachers, The Telegraph has learnt. The proposed tribunal will cover unaided private institutions.
The decision to set up a teachers’ tribunal was taken after the ministry received a slew of complaints from private sector teachers — at school and college levels — of severe exploitation, ministry sources said.
The private sector employs over two-thirds of India’s teachers at the school and higher education levels.
“As a majority of India’s teachers are today in the private sector, we in the government felt it is essential that we address their concerns. A central grievance redress mechanism is crucial,” a government official said.
The ministry has set up a committee headed by higher education secretary R.P. Agrawal to finalise the blueprint for the project that officials admit is likely to meet opposition from private educational institutions.
“We expect the plan to be opposed by sections of the private education sector. But the government has a responsibility towards the country’s teachers,” a ministry official said.
The initial concept of the tribunal envisages a body that teachers can approach for all concerns related to their employers. The tribunal, sources said, may be given the power to issue a notice to the employer.
The body may be loosely modelled on the Central Administrative Tribunal (CAT) for central government employees and a bill will have to be moved to facilitate its birth.
Concerns raised by teachers have ranged from a hire-and-fire policy adopted by an institution to the management’s refusal to allow employees to form a union, the official said.
Independent studies have also shown that private schools in several parts of rural India typically pay one-third the salaries that government schools in the same areas pay.
In Delhi, teachers from a number of private schools have over the past three years gone on strike protesting against alleged violation of labour rights.
The private sector contributes around 80 per cent of schools, including pre-schools, in India.
India has 17,625 colleges in all. Of these, only 5,386 (30 per cent) are aided financially by local, state or central governments.
The move to set up a national teachers’ tribunal comes amid growing opposition from college and university teachers across the country over a delay in promised salary hikes.
The announcement of Assembly polls in five states has forced the ministry to delay the raise as the hike could be seen as a form of allurement by the Election Commission.
Although the salary hikes are valid only for varsities run by the government — Centre or state — and for institutions aided by the government, many private universities follow the recommendations of the central pay panel.
Officials denied any link between the delay in pay hikes and the plan for the tribunal, but hinted they were under pressure to start interventions in employment concerns by the approaching Lok Sabha polls.
“We want to finalise the project over the next couple of months after which we can seek Cabinet clearance and implement it,” a source said.


Daily Legal News 23.10.2008

Govt to HC: Dismiss Railways writ petition on coach factory
Express News Service
Posted: Oct 23, 2008 at 0341 hrs IST
Lucknow, October 22 The state government submitted an application to the Allahabad High Court on Wednesday asking it to dismiss a writ petition filed by the Union Railway Ministry in connection with the government’s decision to take back land meant for the construction of a coach factory in Rae Bareli.
The government submitted that following its decision to return the land, the petition now stands “infructuous”.The ministry, on the other hand, opposed the application on the ground that the new order is different from the previous one, as it talks about providing the land on lease.
In the previous order, land was registered in the ministry’s name as an outright purchase.
The Lucknow Bench of the High Court comprising Justices Pradeep Kant and Ved Pal asked the ministry to submit a rejoinder as a reply to the counter-affidavit filed by the state. The next hearing will be held on November 11.
Dr Ashok Nigam, Additional Solicitor General and also the counsel of the ministry, said: “The counter-affidavit by the state government came around 4 pm on Tuesday. It hardly gave us time to prepare a reply. We have thus asked for more time to submit our rejoinder.”
If necessary, we may amend the petition to challenge the fresh order of the state government, he added.

Supreme Court judgement disappoints Cuttack archbishop
National,Religion, Wed, 22 Oct 2008 IANS
Bhubaneswar, Oct 22 (IANS) Raphael Cheenath, the Archbishop of Cuttack – Bhubaneswar Wednesday said he was disappointed with the judgement of the Supreme Court on the petition he filed seeking a Central Bureau of Investigation (CBI) probe into the nun rape case.
‘I am disappointed. I was expecting more from the Supreme Court,’ Cheenath told media persons after hearing the news that the apex court has declined his plea.
Cheenath said he will go through the judgement and will discuss it with the people of his community before giving any further statement on the matter.
Kandhamal district has seen large-scale communal violence, mostly attacks on Christians and their places of worship, after the Aug 23 killing of Vishwa Hindu Parishad (VHP) leader Swami Laxmanananda and four of his aides.

Though Maoist rebels have claimed responsibility for the killings, radical Hindu groups hold Christians responsible for the crime.

At least 36 people have died in the violence that has left more than 20,000 people homeless.

Cheenath had filed a petition in the apex court seeking compensation to rebuild the churches demolished in the sectarian violence and seeking a probe by CBI into the alleged rape of a nun in the district.

Gujarat HC notice to Union finance ministry
23 Oct 2008, 0255 hrs IST, TNN
AHMEDABAD: Gujarat High Court last week issued notice to Union finance ministry and sought explanation about appointment of independent directors in 12 nationalised banks. High court acted on a public interest litigation filed by Senior Citizens’ Service Trust challenging the appointments claiming that these appointments were political, whereas the provision states that the persons appointed on these posts should have expertise in various fields. Praful Desai, executive secretary of this litigant group, has claimed in his PIL that as per Section 9(3)(A) of Banking Companies (Requisition and Transfer of Undertaking) Act, independent directors, who are also known as ‘non-official directors’ in bank parlance, should possess special knowledge or practical experience in fields such as agriculture or banking or economics or law or small scale industries. Their appointments are usually made to represent the interest of depositors. However, in 2007 the Union government appointed 37 independent directors, “of whom 33 are known for their allegiance to the Congress party — some are politicians, who have either lost election or loyalists to whom party wishes to dole favour,” the petitioner has claimed. The petitioner group sought information from the finance ministry under the RTI Act, which said that the list of 60 potential directors, who are chartered accountants, company secretaries, lawyers, economists etc. was not placed by the Banking Department before the cabinet appointment committee, which selected the 37 persons. Claiming that these appointments were in violation of the statutory provision and framed guidelines, the Trust filed this PIL. High court has fixed November 19 for further hearing in this case.

Cong tries to raise issue of SC order on Godhra
New Delhi (PTI): Congress members on Thursday tried to raise in Rajya Sabha the issue of Supreme Court ruling that charges under POTA could not be brought against Godhra train carnage accused, but were not allowed to do so.
As soon as the House met for the day, Praveen Rashtrapal (Cong) raised the ruling of the Apex Court earlier this week.
He was, however, countered by BJP members particularly those from Gujarat.
As both sides traded charges and counter-charges, Chairman Hamid Ansari pleaded for the Question Hour to be taken up.
Order was soon restored in the House and the listed agenda was taken up.
The Apex Court had held that the findings of the state POTA Review Committee to drop charges against the train carnage accused under the repealed anti-terror law would be binding on the government and the designated court.

HCS pass marks reduced for SC candidates
Express News Service Posted: Oct 23, 2008 at 0314 hrs IST
Chandigarh, October 22 : The Haryana Chief Minister, Bhupinder Singh Hooda today announced five per cent decrease in the minimum pass marks required by SC candidates for recruitment to the posts of HCS (executive and judicial branches). candidates from this category would now be declared pass even if they get 45 per cent marks, five per cent less than the earlier minimum pass marks. He also announced increase in the amount of financial assistance being given to advocates belonging to the Scheduled Castes (SCs) for purchasing library books from Rs one lakh to Rs 1.5 lakh
Hooda, who was here to attend a seminar on ‘Uplift of lawyers from weaker sections’, organised by the Dr Ambedkar SC/ST Association of Advocates here today, said the state Government was committed to the uplift of the weaker sections of society.
Terming Congress and the people of scheduled castes and backward classes as complementary to each other, he said that whenever people of these communities got annoyed with the party, it had lost power and whenever Congress lost power, a number of atrocities were committed on the people of these communities.
Hooda said he was highly sensitive to the problems of poor people of the society because he belongs to a family which always fought against social injustice. Giving details of the steps taken by his government for the uplift of the poor, he said that a seven-time increase in the budget meant for the development of SCs had been effected. HPCC president Phool Chand Mullana. Babu Ram Dahiya, president, Dr Ambedkar, SC/ST Association of Advocates, gave a memento to the Chief Minister. Former Chief Justice of Punjab and Haryana HC, Vijender Jain, was also present.

SC declines CBI probe into nun’s rape case
23 Oct 2008, 0101 hrs IST, Dhananjay Mahapatra , TNN
NEW DELHI: The Supreme Court on Wednesday refused to order a CBI probe into the nun’s rape case and asked as to why the victim was not participating in the test identification parade of the accused to nail

the culprit despite having stated that she can identify the perpetrators. “If you do not cooperate with the police in investigating the case and finding out the truth, there is little this court can do,” the court told Archbishop Raphael Cheenath, who was virtually pleading on her behalf to say the victim had no faith in the state police. Except for refusing CBI probe into the rape case, the SC gave a slew of directions to the Naveen Patnaik government, all aimed at bringing back normalcy in the riot-hit areas and giving protection to the Christian community, which expressed apprehension of being targeted again during the coming Christmas festivities. Brushing aside the Centre’s reservations, a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal ordered all the additional central paramiliatary forces, which were rushed to the state when rioting was at its peak, to remain stationed there till December-end. It also asked the state government to immediately pay compensation to the victims, give sufficient protection to all relief and rehabilitation workers, including those from Christian NGOs, working to provide succor to victims in relief camps in Kandhmal district and adjoining areas. On the contentious issue of Rs 3 crore demanded by petitioner and Archbishop Raphael Cheenath for rebuilding churches demolished and damaged by mobs, the apex court was at a loss to understand how grants could be given for rebuilding damaged orphanages, hospitals and schools run by the community, but not for the reconstruction of churches. Appearing for the state, senior advocate K K Venugopal said the Naveen Patnaik government was following a central guideline framed for the 1984 anti-Sikh riots when grants were given to charitable organisations run by the Sikh community but not for building damaged gurdwaras. However, he said the state was ready to contribute if the court so directs. The Bench asked the state government to generously consider providing grants for reconstruction of churches and encouraging inter-community meetings to bring back peace and normalcy in the riot-hit areas so that communal harmony prevails. The nun’s rape case was the focus of the proceedings that went on for more than two hours before the Chief Justice’s Bench. When the court wondered as to why the nun was not cooperating with the police in the investigation, senior advocate Colin Gonsalves, appearing for the petitioner, pooh-poohed the state’s claim of a fair investigation. He said the nun had alleged that after the rape she was in protection of policemen who did not do anything when a mob dragged her out, stripped her and paraded her in the entire village. No policeman has been punished for derelection in duty, he alleged. Venugopal pointed out that these allegations were not part of the original complaint. Gonsalves said this attitude of not trusting a rape victim had pained her immensely and she now felt that there was no point in pursuing the matter as the sinners would be punished in their next birth.

SC caught Centre’s doublespeak on POTA
23 Oct 2008, 0442 hrs IST, Dhananjay Mahapatra , TNN
NEW DELHI: The Supreme Court has caught the UPA government’s double speak on the binding nature of the recommendations given by POTA Review Committees on designated trial courts. The Centre may have rejoiced at the vindication of its stand in Tuesday’s Supreme Court ruling that the committee’s recommendation for dropping POTA charges against all accused in Godhra train burning case was binding on the designated trial court, but it said something different before the Gujarat High Court in the same case. In paragraph 19 of the judgment authored by Chief Justice K G Balakrishnan, writing for himself and Justice R V Raveendran, the judges said: “In so far as Union of India is concerned, we find that there is a slight shift from the stand taken before the high court.” In the high court, the Centre had argued that the power of the review committee was subject to section 321 of the Criminal Procedure Code, under which it was for the public prosecutor alone to withdraw charges against an accused with the permission of the concerned government. Justice Balakrishnan said the Centre’s stand was accepted by the HC, which said: “We are inclined to agree with the additional solicitor general that the impugned provision should be read in conjunction with the code and the same do not, in any manner, encraoch upon the judicial power of the state and that the opinion formed by the review committee on the prima facie nature of the case under POTA has to be given due weightage by the special court and accepted unless there are exceptional reasons for not doing so.” Without challenging the HC decision in the Supreme Court as was done by the Godhra case accused, the Centre shifted its stand and in principle supported the stand of the POTA accused that once the review committee recommended dropping of anti-terror law charges, it amounted to deemed withdrawal. The trial court was bound by it and the public prosecutor had no role, it had said.

Grant bail only for good reason: SC tells courts
23 Oct, 2008, 0251 hrs IST,Sanjay K Singh, ET Bureau
NEW DELHI: The Supreme Court has said that the bail granted to the accused is liable to be set aside if the adequate reasons for granting it are not laid out by the court. A bench comprising Justice Arijit Pasayat and Justice C K Thakker said: “While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence.” The bench said that it is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail. These are: The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. Second, reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. Third, prima facie satisfaction of the court in support of the charge. Justice Pasayat writing the verdict on behalf of the bench said, “though a conclusive finding in regard to the points urged by the parties is not expected of the court considering the bail application, yet giving reasons is different from discussing merits or demerits.” The court cancelling the bail of an accused said that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated, observed court. The apex court said that the accused released on bail shall surrender to custody forthwith. The Lucknow bench of the Allahabad high court had granted bail to an accused facing trial for an alleged murder and Section 120 B of the Indian Penal Code.

“Give weaker sections fair representation in judiciary”
Legal Correspondent
NEW DELHI: The parliamentary committee on Law and Justice has expressed concern at inadequate representation of the Scheduled Castes, the Scheduled Tribes, the Other Backward Classes and women in the High Courts and the Supreme Court.
Because of inadequate representation “the judiciary is unable to comprehend the social flavour of the legislation passed by Parliament and the State legislatures. Further, when the executive and the legislature, under the constitutional provisions, are required to provide adequate representation to these weaker sections, there is no reason why the higher judiciary should also not come within that ambit to address the issue of social justice and equity,” the panel said in its 28th report submitted to Parliament on Wednesday.
The committee, headed by E.M. Sudarsana Natchiappan (Congress), recommended to the government that it ensure adequate representation of the weaker sections in the Supreme Court and High Courts. “More so, when the number of judges is increased in the Supreme Court this social justice and equity should be ensured.”
Regional benches
The committee reiterated its earlier recommendations that the Constitution be amended to make a provision for establishment of regional Benches of the Supreme Court in the west, northeast and south for easy accessibility of justice to the poor and needy. As an experimental measure, a Bench could be set up in Chennai.
Litigants in the southern States, Tamil Nadu in particular, had to incur a large expenditure on approaching the Supreme Court “on account of the distance and cost involved in the process.” Therefore a Bench should be established in Tamil Nadu to meet the needs and expectations of the innumerable litigants in the southern region.”
The panel urged the government to increase the strength of judges in the Supreme Court from 25 to 30, excluding the Chief Justice. The draft Bill in this regard could be adopted without any change, it said. Increasing judges strength would pave the way for clearance of over 46,000 cases pending in the Supreme Court, enabling the litigant public to have easy access to justice.
The committee wanted the retirement age of judges of High Courts raised from 62 to 65 and of the Supreme Court from 65 to 68.
The government should take every conceivable measure to reduce pendency not only in the Supreme Court but also in the High Courts and subordinate courts so that delays in dispensation of justice could be reduced, the panel said.

Make appointments to higher judiciary transparent: panel
Maneesh Chhibber Posted: Oct 23, 2008 at 2323 hrs IST
New Delhi, October 22 : The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice has reiterated the need to make appointments to higher judiciary “transparent” so as to ensure that only deserving candidates make it to the Bench.
Interacting with the media after the 28th report of the committee was tabled in both Houses of Parliament on Wednesday, panel chairman E M Sudarsana Natchiappan, a Congress MP in the Rajya Sabha, said the present system of appointment of high court and Supreme Court judges through the collegium system had failed.
“Why is the entire process shrouded in mystery? There is need to have transparency in the appointment process. At each stage, starting with the process of screening of candidates, the material should be placed on the website of the Supreme Court so that the public is able to monitor the selection process. This will also lead to more accountability,” Natchiappan said.
He said the committee was in favour of reverting to the pre-1993 system of selection of judges, when the executive played an important role in the process. The power of appointing judges was taken over by the Indian judiciary through a judgment made in 1993.

HC to ICICI Bank: Face the music for making unsolicited calls for making unsolicited calls
22 Oct 2008, 2213 hrs IST, Abhinav Garg, TNN
New Delhi: A furious Delhi High Court (HC) on Wednesday blasted ICICI Bank for making unsolicited calls despite a court ordered ban and said it shoul d now “face the music” in contempt proceedings going on before State Consumer Commission. Refusing to stay the proceedings, as sought by the bank in its petition, a division bench comprising Justice Vikramjeet Sen and Justice S L Bhayana trashed the banks’ claims that it was obeying courts directive. “You think you are above the law? Everyday we receive calls at all times of the day from ICICI for loans, credit cards…now you face the music,” the HC bench exclaimed when the counsel for the bank argued that the complainant in the case, advocate Nivedita Sharma, had no evidence to back up her claims of the bank still making pesky calls to customers. The HC was hearing an application filed by the bank seeking the HC’s intervention and a stay on the contempt petition filed by Sharma before the State Commission, in which she complained that she had been receiving calls from the bank despite a direction from the commission to stop harassing consumers and even after TRAI (telecom regulator) created a `Do Not Call Registry’ where consumers can register themselves to avoid receiving calls. In her contempt plea, the lawyer complained that despite all these measures, the bank still made unsolicited calls to her and other customers. On her complaint, the commission in December 2006 had imposed an exemplary cost of Rs 50 lakh on service provider Airtel and Cellular Operators Of India for their failure to control the pesky calls made by the telemarketers and banks. The Commission had also imposed Rs 25 lakh penalty, to be jointly paid by the ICICI Bank and American Express Bank, for making repeated calls to the mobile users. This order was subsequently modified by HC, which lessened the fine amount but asked the companies to abide by commission orders and TRAI guidelines. On Wednesday HC refused to expunge any remarks made by the commission in its verdict, as sought by the petitioners. In its order, the State Commission had agreed with Sharma’s characterisation of the bank, service provider and TRAI as the “unholy trinity” responsible for flooding a customer with pesky calls. Speaking to TOI, Sharma maintained that she stood by her allegations and would pursue the contempt proceedings against the bank to its logical conclusion before the commission.

Angry HC fines Gutkha firm for wanting to hire ‘retired judges with contacts’
Krishnadas Rajagopal Posted: Oct 23, 2008 at 0109 hrs IST
New Delhi, October 22 : The DS Group, a business “conglomerate” which also sells gutkha, was left with a bad taste in the mouth Wednesday after the Delhi High Court slapped a fine of Rs 1 lakh for putting out an employment advertisement inviting “retired judges with contacts in the judiciary” as its “Head – Legal”.
The advertisement, which appeared in the Power Jobs column of Hindustan Times and on job website naukri.com on September 4, 2007, said the company — DS Group — required as “Head – Legal” a candidate whose profile “must be LLB, LLM or a retired judge with contacts in the judiciary”. The firm insisted that only those candidates with at least 12 to 15 years experience in the legal field should contact them at their Noida office.
The material was first spotted by a Delhi High Court lawyer Sunita Tiwari. “I was shocked to find the advertisement in Hindustan Times. It took me an entire day to believe that they were actually inviting retired judges as their employees,” said Tiwari who initiated action against the DS Group.

The next day, Tiwari went to court against the “business house” she described as “a multi-crore company with popular brands like Catch Spring Water, Catch Flavoured Water, PassPass, Rajnigandha, Baba Zarda, Tulsi gutkha, etc”.

SC rejects Yadav’s plea for Katara appeal hearing in Allahabad HC
22 Oct 2008, 2229 hrs IST, TNN
NEW DELHI: Vikas Yadav’s attempts to seek transfer of his appeal challenging his conviction and life sentence in the Nitish Katara murder case outside Delhi to avoid adverse publicity drew a blank in the SC on Wednesday. A passioned plea that he was caught in the `media glare’ and became a victim of trial by media had little impact on a Bench comprising Justices Dalveer Bhandari and H S Bedi, which dismissed his petition seeking transfer of the hearing on his appeal to the Allahabad HC or any other HC. One of the grounds pleaded by the accused, who is convicted for masterminding the murder of Katara for his alleged affair with his sister Bharati, was that the incident took place in Ghaziabad and that he was tried there before the apex court on Neelam Katara’s plea transferred it to Delhi. Though the trial was transferred to Delhi, the original jurisdiction of the Allahabad HC could not have been taken away as the murder had taken place in UP and the appeal against the trial court verdict should be taken up in the HC there and not in Delhi, his counsel senior advocate Ashok Desai argued. With the apex court refusing to entertain his petition, the appeal would now be heard in the Delhi HC. Vikas Yadav was convicted by a Delhi court on May 28 this year, nearly six years after the apex court had on August 23, 2002, transferred the trial from Ghaziabad.

HC directs MCD to close down illegal dhabas
23 Oct 2008, 0044 hrs IST, TNN
NEW DELHI: Taking a strong step against unlicensed roadside eateries, the Delhi High Court has directed MCD to close down all illegal dhabas within a month. Asking the civic agency to crack the whip against all dhabas in the Capital, which do not possess a license, the High Court said, “It is directed that all dhabas on that road and for that matter throughout Delhi, running without licence, must be treated equally and all dhabas which are without license, being run in the municipal area, must be closed down forthwith.” HC added, “The action of closure of these dhabas be taken within 30 days from October 16, 2008 and an affidavit in this respect be filed in the court, alongwith the names of all responsible officials of each area, who are liable to take the necessary action.” HC wondered why it needed to come up with a direction and pulled up MCD for failing to act on its own. “At first instance, no dhaba should be allowed to run without a licence. There is no reason why these unauthorised dhabas, hawkers, road encroachers should keep encroaching on public land, endangering public health by greasing palms of the concerned officials,” the court observed, adding, “If officials have little care about the health of the public and about the encroachment of public land, none of these dhabas, hawkers would come up at the first instance.” The court took a serious view of the MCD’s decision to only close six illegal dhabas instead of closure of all illegal dhabas in Mandoli area of east Delhi in compliance with the court’s July order. The court order came on a petition, filed by a dhaba owner, alleging that MCD had adopted a `pick-and-chose’ policy while closing the dhabas, running without licence in the area. He alleged that six dhabas, including his eating joint, were closed by the MCD on the ground that they have been serving non-vegetarian food, whereas other dhabas were left untouched on the ground that vegetarian food was served in them. Rejecting this argument of MCD, HC noted, “No distinction can be made out on the ground that one dhaba is serving vegetarian food and the other is serving non-vegetarian food. The distinction can be drawn between licensed and unlicensed ones.”

HC rejects Pappu Yadav’s bail plea
22 Oct 2008, 2129 hrs IST, PTI
PATNA: Controversial RJD MP Rajesh Ranjan alias Pappu Yadav failed to get reprieve from the Patna High Court, which today dismissed his bail petition in CPI(M) legislator Ajit Sarkar murder case. A division bench, comprising Justice Shiva Kirti Singh and Justice Dharnidhar Jha, rejected the bail petition filed by Pappu Yadav, convicted in the case by the trial court on February 14 this year. The bench refused to entertain the plea of Yadav’s counsel N P Singh, who sought bail for the Lok Sabha member from Madhepura on the basis of medical reports that recommended urgent hospitalisation of him for morbid obesity and hypertension. Yadav’s counsel contended that the diseases the MP was suffering from could be treated only at the All India Institute of Medical Sciences in New Delhi. Strongly disputing the defence counsel’s claim, CBI advocate Vipin Kumar Sinha submitted that a bench of the High Court had on July 9 rejected Yadav’s earlier bail petition after going through all the medical reports. The bench then disposed of the prayer observing that proper medical attention should be paid to the convict if any such advise is made by the jail doctors. CPI(M) leader Ajit Sarkar, the then MLA from Purnia, and two others had been shot dead allegedly at Yadav’s bidding on July 14, 1998. Apart from Yadav, the special CBI court at Patna had awarded life term to Rajan Tiwari, underworld don-turned-politician and former Govindganj MLA.

HC pulls up CoD IGP
DNA Correspondent
Wednesday, October 22, 2008 21:06 IST
BANGALORE: The Karnataka High Court on Wednesday pulled up the IGP Corps of Detectives Kishor Chandra and investigating officer Singad for not obeying its order in the vinivIc Srinivasa Shastry case.
Responding to the summons, Chandra and Singad appeared before the single bench headed by Justice Hulavadi G Ramesh.
After the submission of petitioners’ advocate Shankarappa, the court directed the officers to file a statement before the court, for not complying with its order.
The court had earlier ordered that Shastry be taken to the CoD office every alternative day. This was to help the police to sort out the technical problems with regard to the compact disc. It was suspected the CD contains details of the depositors. The officers did not comply with order, the petitioners counsel alleged.
Shastry was lodged in the Parappana Agrahara Central Jail
Meanwhile, the court ordered the government pleader to clarify that whether this case falls within the jurisdiction of special court established under the Karnataka Protection of Interest of Depositors in the Financial Establishments Act 2004.
The court adjourned the matter to November 3.

HIV test kits not sub-standard, Centre tells HC
New Delhi, Oct 22 (PTI) The Centre today refuted all allegations against supplying sub-standard HIV test kits to various medical centres in the country.In an affidavit filed by National AIDS Control Organisation (NACO) on behalf of health ministry in the Delhi High Court, the government said that such allegations made by Dr Kunal Shah, a US resident and member of World Bank, is baseless.”There is no evidence to support the vague, incorrect and wrong allegations regarding the substandard kits. On the other hand, there is evidence to show that the kits are not substandard,” the affidavit said.The government’s response came on a PIL filed by Dr Shah, through his counsel R Venketraman, seeking probe into an alleged racket of supplying sub-standard HIV test kits to medical centres.The Court, earlier, had admitted his petition and had issued notice to the Centre and NACO.Claiming that he himself visited various hospitals and blood banks in March 2007, the petitioner had stated that he found use of sub-standard HIV kits for detection of the disease.There is “use of spurious HIV kits in some hospitals and blood banks in India endangering transmission of the AIDS virus to unsuspecting patients,” Shah said referring to the World bank report.He had stated that in January this year, the Bank has released a comprehensive report alleging that there is wide spread corruption going on and sought direction to the NACO Director to refer the HIV test kits in question to any other competent laboratory to find their efficacy. PTI

Delhi blasts accused approach HC against police custody
New Delhi, Oct 22 (PTI) The Delhi High Court today sought a response from the Centre and Delhi Police on a plea filed by family members of suspected terrorists, allegedly involved in last month’s serial bomb blasts in the city, seeking to quash a trial court’s order sending them to police custody till October 27.Advocate Prashant Bhushan, appearing for the family members of the accused contended that an accused can be detained for a maximum period of 15 days but the lower court erred by extending their police custody beyond the period.Justice Kailash Gambhir, after hearing his contention, issued notice to the Centre and the police and posted the hearing for October 30.The petitioner challenged the trail court’s order of October 16 by which five suspected terrorists Mohammed Saif, Zeeshan Ahmad, Mohammed Shakeel, Zia-ur-Rehman and Saquib Nissar were remanded to 12 days’ fresh police custody.”Investigating agency is required to collect evidence and find out the truth of different dimension in the matter. Fair investigation is the mandate of law. Keeping in view the dynamics of the case and factual matrix, police custody remand is absolutely necessary,” Chief Metropolitan Magistrate Sanjeev Jain had said while passing the order.Out of these alleged terrorists, family members of Zeeshan and Shakeel approached the High Court seeking to quash the trial court’s order.Zeeshan, 23, and Shakeel, 24, were arrested by the Delhi Police on September 19 under suspicion of involvement in serial bomb blasts and were twice remanded to police custody till October 16. Their police remand were further granted till October 27. PTI

Allahabad HC asks Centre And UP govt. to take measure to check pollution in Ganga
The Allahabad High Court has asked the Uttar Pradesh and Union Governments to take special measures to deal with the pollution menace in the Ganga. The Court, in its order, has said it will be open to the Centre to consider setting up sewage treatment plant at Allahabad and Varanasi, a project earlier submitted by Japan International Cooperation Agency (JICA).The Counsel for the Central government submitted in the court that appropriate instructions will be obtained and necessary action taken in this regard. The order was passed by the High Court bench of Justices Ashok Bhushan and Arun Tandon on a writ petition filed by Hari Chaitanya Brahmchari Ji Maharaj of Allahabad. The court has asked the state’s Chief Standing Counsel M C Chaturvedi to file an affidavit with regard to the steps taken by the state in respect of decreasing depth of river Ganga due to silt and accumulation and sand. The court will hear the case further on November 16. UNI


Supreme Court verdict is a moral victory’
Oct 2008, 0044 hrs IST, Sachin Sharma, TNN
GODHRA: On Tuesday, Supreme Court’s verdict came as music to the ears of the relatives of most accused in Sabarmati train carnage. The last positive development that gave some respite to them was the judgement by Supreme Court ordering the formation of a Special Investigation Team (SIT) in March 2008. Those involved in the legal struggle say that apex court’s judgement would enhance their faith in judiciary and boost the morale of those seeking justice. Said Syed Umarji, whose father Maulvi Hussain Umarji has been named as one of the prime conspirators in the case says, “The judgement is welcome and has made many like me happy. It has buoyed the confidence of many like me involved in legal struggle. We just hope that some day, action will be taken against erring officers about whom, we have complained time and again.” Advocate AA Hasan, who has been giving legal help to several accused, said that while the legal battle is still on, the judgment was a moral victory. He added that a petition challenging the Pota Review Committee’s report repealing the Act from the case was still pending before Gujarat High Court. Shoaib Jujara, whose father Inayat Jujara is an accused in the case, said that while he was happy with the judgment, the fact that his father – a government employee – is spending time in prison always plays at the back of his mind. “Supreme Court and the SIT are the ones we can rely upon to get justice. We have lost trust in the state government,” Jujara said.

Punjab & Haryana HC summons vigilance SP in funds embezzlement case
The Punjab and Haryana High Court directed the SP, Vigilance concerned to appear before it on October 30, along with the file pertaining to the investigation of alleged embezzlement of public funds meant for city development works at Mansa under the Integrated Development of small and medium towns scheme of the government.The order was passed by a division bench comprising Chief Justice Tirath Singh Thakur and Justice Jasbir Singh. The matter has been raised through a PIL by Shiv Charan Dass and Amrit Pal alleging large scale embezzlement of these funds.The PIL has sought a thorough probe into it arguing a connivance between the officials and others involved in the project.UNI

Case on rich ministers
Ranchi, Oct. 21: Jharkhand High Court has asked the state government to reply to a PIL that seeks a CBI probe into disproportionate assets of several top politicians, at least six of whom are now ministers in the Shibu Soren government.
Filed by one Durga Oraon, the PIL cites extensive data to allege that many of these ministers had amassed huge amount of wealth in a very short span of time.
Among those named in the PIL were ministers Hari Narayan Rai (urban development), Anosh Ekka (rural development), Dulal Bhuiyan (revenue), Kamlesh Singh (water resources), Bhanu Pratap Sahi (health), Bandhu Tirkey (human resources development) and former minister Chandra Prakash Choudhary.
Oraon has also filed a separate petition against former chief minister Madhu Koda and power broker Binod Sinha alleging they too possessed assets more than their known sources of income.
The court was however not convinced about the claims and directed advocate general P.K.Prasad to file a reply on the point of maintainability of the petition.
The next hearing is on November 26.
Oraon’s counsel Ritu Kumar alleged that Rai had amassed huge amounts of wealth and property after coming to power and had purchased property worth crores in his short span as a minister in the Jharkhand government.
When he filed his nomination papers (for contesting elections), Kumar alleged, Rai wasn’t an income tax payee and did not have a PAN card. But after becoming a minister, Rai amassed property worth about Rs 39 crore.
Kumar also cited a Supreme Court decision by virtue of which a PIL on disproportionate assets of a former chief minister of Uttar Pradesh was entertained.
The advocate-general, on the other hand, tried to argue that the petitioner could approach the court of the Lokayukta for investigating ministers’ assets.
Oraon has also accused Anosh Ekka of having purchased land in and around the capital in the name of relatives in violation of the Chotanagpur Tenency Act. As for Sahi and Tirkey, they have been included in his PIL for the several criminal cases pending against them.

Property Law : Alterations in buildings subject to validity of MPD 2021: SC
Posted on : 21 October 2008 by Y.Prakash
The Supreme Court has said that any alteration in the building plans by property owners, claiming relief under the latest amendments, will be subject to the outcome of a matter related to the validity of the Master Plan for Delhi 2021.The apex court said though the monitoring committee appointed by it can examine the affidavits of the property owners, the latter will be carrying out the changes at their own risk as the very validity of the MPD-2021 is being considered by the court.A Bench headed by Justice Arijit Pasayat made the remarks during the brief hearing of an application moved by an NGO, Delhi Pradesh Council, which complained that the DDA had on 12th August issued a notification carrying out 37 amendments despite the very validity of the Master Plan being under the court’s scrutiny.Senior advocate Ranjit Kumar, who is assisting the court as amicus curiae in the matter, pointed out that the civic authorities were giving provisional certificate for regularisation of the property in 1,500 unauthorised colonies in the capital and it should be clarified that they have to be made subject to the final outcome of the petition pending in the court.The Bench said issuing of provisional certificates would definitely be subject to the outcome of its verdict.The court was told that the unauthorised colonies cannot be regularised until the civic authorities provides basic amenities and infrastructural facilities.The Bench posted the matter for hearing on 3rd and 4th December.Kumar had complained that one of the controversial amendments made by the DDA to the MPD related to granting permission for carrying out commercial activities in the ground floor and basements of properties in the Capital.He complained that the amendments would not only aggravate the chaos in the Capital but were also a blatant defiance of the series of directions passed by the apex court which is examining the constitutional and legal validity of the MPD.It was also alleged that during the past few days the MCD had halted the sealing drive in the Capital.The high-powered panel appointed by the apex court on 9th July to find out the feasibility of decongesting the city has also expressed concern over the phenomenal growth in population without any corresponding development of infrastructure to meet the requirements of the MPD-2021.It has also reportedly made suggestions for de-congesting the Capital.

Criminal Law : NHRC issues draft recommendations on the issue of Detention
Posted on : 17 October 2008 by Y.Prakash
Several key draft recommendations on the issue of Detention emerged out of the two-day international Workshop on ”’Detention’ organized by the National Human Rights Commission, which concluded in New Delhi today.The issue of detention in prison in police custody, preventive detention in juvenile justice homes and mental health care were discussed in four technical session of the Workshop.Several prominent national and international experts, legal luminaries and senior police officers from different parts of the country participated in the Workshop. Prominent among them included senior advocate Supreme Court of India Mr. Soli J. Sorabjee, Ms Baroness Vivien Stern, Honorary President, Penal Reforms International, U.K.The Workshop organized to mark 15th year of NHRC also coincided with the dignity and justice for detainees week from 6th to 12th October, 2008, designated by the Office of the High Commissioner to pay special attention to the conditions of detainees in prisons, police custody and other places.It also marked the yearlong campaign to celebrate the 60th anniversary of Universal Declaration of Human Rights.********ISSUES AND RECOMMENDATIONS MADE AT THE NHRC’s WORKSHOP ON DETENTION HELD IN NEW DELHI ON 11-12 OCTOBER 2008DETENTION IN PRISONS AND POLICE CUSTODY:1. It is important to understand that a person in custody is under the care of State and it is responsibility of State to ensure his or her basic human rights. It should not be confused as advocacy for rights of criminals and terrorists.2. Many a time, misleading arguments are advanced that ‘humiliation’ of detenus is permissible and that it does not amount to ‘torture’ while the fact is that it is a violation of human dignity and amounts to inhuman, degrading treatment or punishment.3. Convention against Torture seeks to prohibit torture, among other places, in custody. Though India has signed it, it has not yet ratified it till date. NHRC has been impressing upon the Government to immediately ratify the Convention. The Government must take immediate steps in this regard. It is also suggested that the same could be done through an Amendment to Indian Penal Code. However, India does have institutions and instruments in place to prevent torture in custody and monitor the violation.4. India may have a low rate of just 32 persons being in jail per every 100,000 population but a high percentage among them is that of under trials languishing in jails. To over come the situation speedy trial should be provided and to ensure it following measures were recommended:a) Establishment of more courts and filling the vacant posts in judiciary.b) Expedite the process of recording the evidence of the police officers and medical practitioners who are witnesses in certain cases as transferable nature of their services compounds any delays in this regard. In addition, separate prisons for under trials and convicts could also be considered.5. With respect to the recent amendment to the Cr P C inserting Section 436-A providing for the release of a person in custody, in case he has been in custody for more than half the period of the sentence he would have undergone in case found guilty, should be released on personal bond, it was recommended that an action plan needs to be worked out for the compliance of the formality of moving an application before the court on the behalf of the under trial. The impact of the amendment is still not to the desired level. Concerted efforts must be taken by all authorities in this regard.6. An Undertrial in custody or who is not on bail can contest an election but does not have the right to vote. The provision of right to vote should be ensured to the under trials. It will have a positive impact on bringing out changes in the attitudes of the undertrials and the people. It will:a) Impart a sense of dignity amongst under trials.b) The undertrials will thus be considered a part of the society.c) Open prisons for the participation of civil society. 7. Appreciating the role of Supreme Court in granting compensation to the people whose fundamental rights are violated it was recommended that the practice of granting compensation or compensatory justice should also be expanded in cases of human rights violation. 8. Referring to prison reforms it was expressed that though a lot has been already done to improve the quality of physical environment in prisons, what remains to be done is the therapeutic change in prison administration and treatment towards prisoners. There is a need to pay special attention to orientation and training of guards, jailors and increase number of training institutions.9. Concerns were expressed on the rights of children in the age group 0 to 6 years living in prisons with their mothers. Though they are provided care up to the age of six, there is no provision for their education or health care after attaining the age of six. It was in this connection that a recommendation was made for adopting suitable policies for ensuring the protection of rights of such children and implementation of Supreme Court judgment in R.D. Upadhyay vs. State of Andhra Pradesh.10. It was suggested that mere sensitization of police or prison officials is not the solution. The prisoners are equally under the stress and therefore sensitization programmes should also focus on prisoners as the target group. 11. It was recommended that the agency responsible for maintaining public order and prisons should be molded in consonance with Human Rights Principles. It should always be remembered that it is not only the judiciary or NHRC who are responsible for protection of human rights but all agencies have to play their role in this regard. 12. In case of deaths in custody, as per the present practice, the Police Administration is required to send the report, within 24 hours of its occurrence, to NHRC and in accordance to the Amendment made to Cr P C an inquiry by a judicial magistrate is made. There is suggestion to involve forensic experts in process. It was in this connection that a recommendation was made to involve the services of forensic laboratories as with their expertise and scientific manner of investigation they can assist in providing accurate and reliable evidence. 13. It was also suggested that the penalty inflicted on a delinquent police officials responsible for torture should be in proportion to the degree of torture by such officer rather than a mere reprimand or transfer. 14. The separation of investigation wing from other law and order wing, as decided in the case of Prakash Singh, was also recommended.15. Minimum standards of service to be laid down enable prison authority to ensure necessary medical care and other services in prisons from human rights perspective.PREVENTIVE DETENTION16. The difference between “preventive” and “punitive” detention must be clearly understood. Preventive detention is aimed at preventing the possibility of an activity by a person which may be detrimental to public order or national security. Preventive detention is an anathema to rule of law but is a ‘necessary evil’. There is need to sensitize the authority that it should be resorted to as an exception in rare cases..17. Preventive detention is not to substitute the normal procedure established by law.18. Certain safeguards are provided under law to the detenue under preventive detention are: These include detailed recording of facts leading to satisfaction of authority, conveys the grounds to the detenue, representation to State or Central Govt. or to advisory board. These should be strictly followed and all authorities should be sensitized to these. 19. Preventive detention cannot be for unlimited period. There is a need to ponder to reduce maximum period of detention to two to six months and also have mechanism of periodic review.20. In view of the facts that smuggling, narcotic drugs trade etc are being organized while exercising powers under the laws like COFEPOSA may be necessary but there should be need to proceed against the main culprits who organize these activities.21. Preventive detention laws need to keep a balance between human right of liberty and security of the nation or maintenance of public order.22. In case the detenue is found unlawfully detained, there need to have provision for interim relief/ compensation. There is a need to sensitize people about various personal liberties. 23. A number of persons are taken away and detained in the name of interrogation. Such detention is not at police lock up or jais. This practice has to be discouraged.DETENTION IN JJ HOMES24. There is need to distinguish children who need care and protection from those in conflict with law.25. The directions to have institutions at district level seems very widespread without taking into consideration the availability of judges etc to constitute the board. The need is first to focus on existing institutions.26. There is need to deploy trained and educated personnel to ensure rehabilitation of children.27. Law prescribes that decide the cases related to juveniles should be decided within stipulated period of 4 months but that is not the reality and the juveniles languish in custody for years without getting justice.28. Prompt action should be taken against staff against whom allegations of abuse have been proven. They should be transferred immediately when such instances come to light and there is prima facie evidence to substantiate it. .29. Not to use lingua of criminal justice system in case of juvenile.Mental Health care:30. There is a huge gap in manpower. Psychiatrists are mostly concentrated in urban areas and that too in four or five metros. In the rural areas, the situation is a cause for serious concern. The same holds true for clinical psychologists, psychiatric nurses and community social worker working in this area. 31. NHRC has taken up the issue with MCI to increase the seats and NIMHANS has also worked out strategy to train the manpower, that needs to be accelerated.32. World over, on an average 32% of all prisoners suffered from mental illness. If one includes substance abuse, the figure goes beyond 60%. Hence there is a need for focused attention on mental health. There is a need for early identification of mental illness among prisoners and for taking consequent steps.33. There is little documentation of the problems of psychiatrically ill prisoners, problem of escorts for referrals/ discharge, inadequate follow up and after care while in prison, disappear from psychiatric ttreatment after discharge from prison etc.34. Little formal training of prison staff in mental health35. Need to move from custodial care to community care. Integrate mental health care through District Mental health care programme.36. Diet to be fixed based on `calorie’ rather than monetary terms to offset inflation.37. NHRC to continue with monitoring of mental hospitals, community care and also pursue with related Ministries.38. Mental health care audit of all institutions of child care to be taken up by NHR

High-risk’ prisoner takes verdict with wooden face
Utkarsh Anand
Posted: Oct 22, 2008 at 0017 hrs IST
Treated as a high-risk prisoner throughout the trial because of his violent activities, Sanjay Dass behaved rather differently in the court today. He had no emotion on his face as ASJ Babu Lal pronounced the death sentence.
The judge told the 22-year-old native of Madhubani (Bihar) that his capital punishment would be subject to a confirmation by the High Court. “You can file an appeal against my order within 30 days from today,” ASJ Lal said, as Dass stood wooden and merely nodded his head.
Put in the bracket of “high-risk” prisoners by jail officials, he was taken to the court under special arrangements along with other such accused persons. Dass had displayed violent behaviour in the past when he threw water bottle on policemen. He had also intimated witnesses during the hearings, prompting the court to warn him and direct the policemen escorting him to take extra caution.
The court, considering his erratic behavioural syndrome, had also ordered a medical check-up to assess his mental health.
When the court had formally framed charges of murder, attempt to murder and rape against him in March last year, Dass, who is married and has a child, had refused to accept the charges and claimed trial. But within a year, he brought a twist by insisting that he wanted to plead guilty and confess his crime. He moved an application before the judge in this regard and requested for a quick end to the trial.
Noting that it was too late for him to confess as the trial had already started, the judge, though, dismissed his plea. Dass then moved another application stating he had no hopes of getting justice — he wanted it to be transferred to another court.
The district judge, however, found no ground to entertain his application and dismissed the plea.
“What I saw of Dass today was never witnessed before,” a policeman, who had accompanied him to court, told Newsline. “He used to brag about his crime and was treated as a high-risk accused. May be, he had a gut feeling about his punishment that kept him so quiet even after hearing the death penalty.”

RNRL agrees to Govt becoming a party in RIL gas case
Rahul Wadke
Mumbai, Oct. 21 The division bench of the Bombay High Court on Tuesday allowed Government of India to be a party to the ongoing dispute between RIL and RNRL over sharing of natural gas from KG basin fields.
RNRL, which had earlier opposed the move, changed its stand and has not objected to the Government becoming a party at the current stage of the case.
Counsel for RNRL, Mr Mukul Rohatgi, said that if the government is not heard at the High Court stage and if the matter reaches the Supreme Court, the highest court could take a view that the government should have been heard at High Court level. In that case the court might refer the matter back to the High Court. Therefore, to save time, the company (RNRL) has agreed to the government plea for becoming a party to the case, he said.
Counsel for RIL, Mr Harish Salve, said the bench should give the government the opportuntity to put forth its case. Otherwise in the Supreme Court the government could say that it was not heard properly in the lower court.
The Government counsel, Mr T.S. Doabia, said that the only issue the government is worried about is the price at which the gas is to be sold and its approval. It is not concerned with the MoU between RIL and RNRL, he said.
The government in its petition field in April 2008 wanted vacation of the interim order of May 3, 2007 that restrained RIL from creating any third party rights and use or supply of gas committed to RNRL.
The Government said that it is a major stakeholder under the Production Sharing Contract (PSC) for RIL’s K-G basin gas. The PSC is between the Government and RIL. A private dispute between the RIL and RNRL cannot threaten the interests of the Government.
Mr Justice J N Patel, who is hearing the case, said the bench has accepted the ‘chamber summons’ (a procedure of approaching the court) of the Government through the Union Ministry of Petroleum and Natural Gas. The government must file an affidavit and the officer concerned must be present in the court.

India – Primacy of executive,a dangerous move
Anil Divan
Oct 22, 2008
Anil Divan Let the Bar and civil society give a clear response to the Law Minister that under no circumstances can the old system of primacy of the executive in judicial appointments be restored. On September 23, 2008, the Supreme Court appointed the CBI to investigate the Ghaziabad Provident Fund Scam case . The Court’s hands were forced because appearing for the Ghaziabad Bar Association, it was pointed out by the author that the Uttar Pradesh police and the government themselves desired a CBI investigation. The response of the executive was direct and strident. Union Law Minister H.R. Bharadwaj, in an interview to the Hindustan Times ( September 25, 2008) is reported to have said: “The quality of some of the judges selected over the years was questionable” —“the system of selection by a Committee of judges (collegium) had failed” — “In a bid to maintain its supremacy, the judiciary tried to rewrite the law through a Supreme Court judgment in 1993 which gave them the powers for appointments and transfers. Merit has been ignored while give and take has thrived in the collegium system.” . . . “I feel now is the right time to have a re-look at the collegium system which has failed…”“There was a time when the judiciary was above suspicion and people had great respect for it. The same cannot be said today, serious allegations of corruption against judges are in the public domain. It needs to be corrected.”But most alarming and disturbing was the solution offered by him. “A committee of judges could recommend names, which should be finalised after discussions between the CJI and the President. The decision of the President should be final on the advice of the Union Cabinet.”The views of the Law Minister are naïve and disingenuous. The Central government is always consulted before appointments to the High Courts and the Supreme Court. It has the infrastructure and the capacity to gather information, which may not be available to the collegium. It has the Intelligence Bureau, the police and other sources of information. Did it not equally fail when undesirable appointments were made? Did it record in writing its dissent? The Law Minister’s attack is slanted in favour of the executive. It is an attempt to restore a ‘failed’ discredited mechanism — universally condemned. The effort is to restore the primacy of the executive. Our Supreme Court has earned an enviable reputation by enlarging human rights jurisprudence for disadvantaged groups. It has been a bulwark against excesses of the executive and the legislature (except during a short period of the Internal Emergency) and a pillar supporting the rule of law and our democratic freedoms. Its contributions in protecting journalistic freedom against legislative privileges, to electoral reforms and its rulings against arbitrary dismissal of State governments, censorship and gender discrimination are outstanding. It stands tall among constitutional courts in new democracies. Historical background In our constitutional history, there have been tensions between the executive and the judiciary. When judicial review invalidated progressive land reform legislation in the early 1950s, constitutional amendments were fashioned to nullify the decisions. The judiciary was under criticism by the legislature and the executive as being too conservative in its approach. There was no attack on its honesty, integrity and probity. After the judgment in the Kesavananda Bharati Case delivered on April 24, 1973, a powerful executive struck back. On the retirement of Chief Justice Sikri on April 25, 1973, A.N. Ray was made Chief Justice of India superseding three seniormost judges namely Justice Shelat, Justice Hegde and Justice Grover who promptly resigned. The executive said it wanted “forward-looking” judges.The Bar stood firmly behind the superseded judges. The supersession was condemned as subversive of the independence of the judiciary. Protest meetings were held all over India. Chief Justice Hidayatullah’s immortal phrase is worth recalling. He said — “One will have judges ‘looking forward’ rather than ‘forward-looking’.” The Internal Emergency The government resorted to mass transfers of independent High Court judges who stood up during the Emergency. Constitutional amendments were rushed through while all major Opposition leaders were preventively detained without trial. The powers of the Supreme Court and the High Courts were drastically reduced and judicial review was sought to be ousted almost completely. In the general election of 1977, the Indira Gandhi government lost power and the Janata Party formed the government under the Prime Ministership of Morarji Desai. Shanti Bhushan who had succeeded in the election petition disqualifying Indira Gandhi became Law Minister and fashioned the 44th amendment by which the powers of the higher judiciary, including judicial review, were restored. However, in 1980, the Janata government fell and Indira Gandhi was voted back to power. Again attempts were made to exercise powers of transfer against High Court judges. This was widely perceived as a threat to the independence of the judiciary and it was in this background that the Supreme Court overruled the earlier decisions and negatived the primacy of the Union executive in appointments to the High Courts and the Supreme Court, as well as transfers of High Court judges.The final word was ruled to be with the Chief Justice of India — not his individual views — but views of senior judges after a plurality of consultations constituting the collegium. Many of the active players in these decisions both on the Bench and the Bar regard that decision as a mistake made in asserting and giving primacy to the Chief Justice of India and the collegiums. The better view is that those two judgments were the correct prescription for the malady then prevailing and were essential in the circumstances and context to assure the independence of the judiciary. However, things have radically changed. This is the era of weak coalitions. The Central executive has never been weaker. The threat to the judiciary is not from outside but is internal.Crisis in the higher judiciary The Ghaziabad Provident Fund Scam was followed by Rs.15 lakh in cash being sent by a law officer to a sitting judge of the Punjab and Haryana High Court now allegedly meant for another woman judge. Justice Soumitra Sen, a serving judge of the Calcutta High Court has been identified by the Chief Justice of India as fit for impeachment. A few years ago, Justice Shamit Mukherjee of the Delhi High Court was accidentally discovered to be indulging in dubious transactions when phones of certain other officials were under surveillance by the police.The reputation of the higher judiciary is at a low ebb. To quote from the author’s article “Judging the judges” ( December 5, 2002), “Unless vigorous in-house action is taken by the judiciary to repair the damage, public opinion will call for legislative intervention by Parliament. A legislative mechanism unless properly framed may be subversive of judicial independence … Every adversity is an opportunity”.There is well-intentioned and legitimate criticism of the collegium system as now functioning. The present system of appointment requires radical restructuring — but the reform must be in the right direction. Reviving a failed system is a recipe for disaster. The final word in appointments to the higher judiciary can never be safely entrusted to fractious coalition governments — weak on governance, soft on terrorism and high on corruption. Each coalition partner will demand its quotas on the High Bench as well as the High Courts — on occasions threatening withdrawal of support. An increasing politicisation of the judges indebted to political factions is not a result “devoutly to be wished.” In our dissatisfaction with the present system, let the family silver not be stolen by the executive. Let the Bar and civil society give a clear response to the Law Minister that under no circumstances can the old system of primacy of the executive be restored. The way forward is a transparent, accountable and open merit system, but that is another call. Anil Divan http://spoonfeedin.blogspot.com/2008/10/india-primacy-of-executivea-dangerous.html

SC rejects Vikas Yadav petition in Katara murder case
Press Trust of India
Posted: Oct 22, 2008 at 1240 hrs IST
New Delhi, October 22: The Supreme Court dismissed a petition filed by Vikas Yadav, convicted for murdering Nitish Katara, seeking transfer of the appeal proceedings outside Delhi. A bench of Justices Dalveer Bhandari and H S Bedi found no merit in the plea.
Vikas Yadav had pleaded that the appeal against his conviction in the Nitish Katara murder case should be heard either by the Allahabad High Court or any other High Court in the country barring the Delhi High Court.
He claimed that his appeal proceedings would not be held in a fair manner in the Delhi High Court due to the “media glare”. Nitish (24), a business executive, was killed by Vikas and Vishal Yadav on the intervening night of February 16-17, 2002.

Families of Godhra accused welcome SC ruling, but say they will believe it only when their dear ones walk free
Anupam Chakravartty
Posted: Oct 22, 2008 at 0443 hrs IST
Godhra October 21 Lingering suspicion clouds hope
At ground zero, Godhra, it was time for some wary relief tinged with lingering suspicion on Tuesday, after the Supreme Court upheld the POTA Review Committee’s recommendation to lift the stringent Act from those accused in the 2002 train burning incident.
Newsline caught up with two of the families coping with their loved ones being locked up under POTA, for the last six years.
For Mohammed Abdul Sattar Majmu, 70, the news that his blind son, Ishaq Mohammed Majmu is likely to get off POTA’s stringent provisions, is like an unfulfilled election promise.
“Journalists from all over had trooped into my house, discussing our plight. My son is a blind man. How could he have been guilty? Yet, has anything happened that will spare him?” asked Abdul Sattar in his two room tenement in Godhra town.
Between the frequent power-cuts, the septuagenarian rued over the failure of the state to protect his 35-year-old son who was blind since birth. “I won’t believe in any judgments till my son walks free. It seems all the courts are owned by the Gujarat government,” said Sattar, who lost his wife, Kulsum Biwi, on December 7, 2002.
According to Sattar, his wife would weep every night till the day she died of a heart attack thinking about Ishaq, her blind unmarried son, who was picked up by a ‘dabba’ or a police van from their shop in April 2002 on allegations that he was one of the perpetrators who burnt the S-6 coach of the Sabarmati Express in February 2002.
Ishaq’s younger brother, Shabbir, said that over the past seven years since his arrest, the family has been able to meet Ishaq just thrice. “From my scrap business I can manage just Rs 60-80 a day and it takes Rs 200 to go to Ahmedabad,” says Shabbir, adding that his brother met the family twice on police parole, when some neighbours and friends pitched in with Rs 10,000. “The four policemen, who come with him, also need to be fed. Else they make haste and don’t let Ishaq free even for the allotted time,” added Shabbir, one of the four brothers of Ishaq. His other family members are laari-owners.
On the other hand, Abdul Sattar recalls the night when the police picked up Ishaq from the shop. “When we went to the police inspector at the Godhra Town Police Station with the doctor’s certificate saying that he is blind, they realised that they cannot book him for killing anyone. Next thing we knew was, he was booked for inciting the mob,” said Sattar.
Signal Faliya, where the incident occurred, is about three kilometres from Abdul Sattar’s house. Sattar, who is himself partially blind, said: “We didn’t even let him go to the chowkdi alone, and these policemen say that Ishaq walked all the way to Signal Faliya and shouted slogans from the railway tracks .”
Elsewhere, at Ruhul Amin Hathila’s residence at Chabildas nee Chali, his wife, Najma, could not help beaming over an old photograph of her husband, who had prepared about 50 bail applications of those who have been arrested right after the train carnage by the Godhra police. “We have been married for the last 16 years, but for the last seven years it became unbearable when I had to re-assure the children and his old mother that he will soon be released,” says Najma.
For the two children, Razzaq and Zeenab, studying in the Zakir Hussain High School, the daily routine has remained unchanged. “Rezzaq would ask me many questions everyday, while Zeenab was too young to understand what was going on. All I did was to keep saying that he was innocent and will be released soon,” said Najma.
“He was sleeping when around 11 PM in April they came and picked him up. The police officers kept turning us away,” said Najma, who lost her father-in-law, Haji Hussain Hathila, a former Godhra Railway Station employee, while Ruhul was lodged in jail.

Godhra accused won’t be tried under Pota: SC
22 Oct 2008, 0314 hrs IST, TNN
NEW DELHI: All 131 accused in the Godhra train burning case, in which 59 kar sevaks were burnt alive in 2002 sparking communal riots across Gujarat, will not face trial under anti-terror law Pota, as the Modi government had charged them, but under provisions of the IPC. This is the fallout of a judgment given by the SC on Tuesday. It directed the designated Pota courts to drop terror charges against all accused in the train burning case on the basis of the May 16, 2005 findings of the Central Pota Review Committee ignoring the Narendra Modi government’s reservations against it. A Bench comprising Chief Justice K G Balakrishnan and Justices R V Raveendran and Dalveer Bhandari said once a Central Pota Review Committee finds no prima facie evidence against a person charged under the anti-terror law, then the inevitable fallout was withdrawal of the terror charges and for this, the consent of the public prosecutor or the state government was not necessary. The consequences that follow the three-judge Bench judgment add a further twist to the already complicated Godhra train burning case. First, it was the Justice U C Banerjee Commission appointed by the railway ministry headed by Lalu Prasad that in its interim report said there was no conspiracy to burn the train and that it was an accident. The report was stayed by the Gujarat HC and later the constitution of the commission was quashed. An appeal against the HC order is pending in the SC. Secondly, the Central Pota Review Committee headed by retired Allahabad HC judge, Justice S C Jain, on May 16, 2005 had stated that the incident was not pre-planned, but a spontaneous reaction. It had said that even if the attack on the train was a conspiracy, “it does not fall under the definition of a terror attack”. Thirdly, the recent report of the Justice G T Nanavati Commission clearly categorized it as a conspiracy and a pre-planned attack. The apex court did not go into the over-stretched aspects of the Godhra train burning case and confined itself to the Pota Review Committee’s decision and the primacy it should get while dealing with cross appeals filed by the relatives of those who died in the train fire and others by accused. Though Tuesday’s judgment from the apex court emanated from the Godhra train burning case, it would be applicable to all states where Pota Review Committees have given opinion in the past. The SC said: “Once the review panel expresses the opinion that there is no prima facie case for proceeding against the accused, in cases in which cognisance has been taken by the court, such cases shall be deemed to have been withdrawn.”

Govt backs petitions in HC against findings of POTA review committee
Express News Service Posted: Oct 22, 2008 at 0444 hrs IST
Gandhinagar, October 21 : We had always opposed the formation of this panel, says state home minister
Gujarat Minister of State for Home Amit Shah has said that the state Government has always opposed the setting up of the Central POTA Review Committee. He said the government also backs the petitions filed in the High Court by aggrieved parties challenging the merits of the Committee’s findings that offences against those accused in the Godhra train carnage cannot be made under the anti-terror law.
The minister was reacting to the Supreme Court verdict that had held that a trial under POTA cannot proceed once the Review Committee gives the finding that the offences cannot be made out under POTA.
Shah told Newsline that the state government opposed the Central POTA Review Committee, as it was set up by administrative orders, and not under any law. The merits of the Committee’s recommendations can be challenged in the High Court, he said.

Urgent Need To Reform Judiciary
Not very long ago, a TV journalist, who conducted a sting operation in an Ahmedabad court, had got warrants issued against the then President of India, the then Chief Justice of India and many others by paying ‘bribes’ to court officials. This happened in late 2007, and then a bench headed by Chief Justice KG Balakrishnan was of the opinion that highlighting and publicizing such ‘isolated’ cases would bring the entire judiciary into disrepute. Corruption is prevalent in India from top to bottom, but now we are coming across so many cases of corruption in the judiciary too, that the common citizens are losing their faith on the judicial system.
There are four pillars of a democracy- the legislature, executive, judiciary and the fourth estate. The judiciary in our democracy has been sinking in the morass of inefficiency, corruption and delays. The Global Corruption Report 2007 says that corruption in judiciary is undermining judicial system, denying citizens access to justice and the basic human right to a fair and impartial trial, sometimes even to a trial at all. Petty bribery and political influence in the judiciary erodes social cohesion. One system for the rich and another for the poor, fractures communities.
The prevalence of corruption in the judiciary is not a secret anymore. Various judges have raised concerns about the same; some have even tried a guess. According to Justice SP Bharucha, former Chief Justice of India, around 20 per cent of the judges are corrupt. Another judge, Justice Michael Saldanha of the Karnataka High Court said the percentage is 33 per cent. Justice Saldanha also said that the public perception about corruption in the judiciary is much more important than its actual incidence. A series of scandals in the higher judiciary had recently hit headlines.
Nevertheless, the initiatives taken by the Chief Justice and the Supreme Court send a very positive message. Some former judges of the SC have said that the impeachment process is so ‘highly politicized’ and ineffective, that Calcutta High Court judge Soumitra Sen needn’t worry.
The fact remains that there is no proper mechanism to judge our judges. In the proposed impeachment of Justice Soumitra Sen of Calcutta High Court, Justice Sen was accused of having been involved in financial misappropriation, before he was appointed as a judge. The proposal is nothing new, but then there has been no single impeachment till date in our country. The only exception was the case of Justice V Ramaswami, who faced impeachment in 1991, an attempt that failed due to the absence of a political consensus. It is expected that history will not be repeated. If it is repeated, it would be a shame upon the Indian judiciary and its accountability.
The impeachment process is very lengthy or you can say that a judge can hardly be impeached. There can be no First Information Report (FIR) against the judges or a criminal investigation initiated, without prior approval of the Chief Justice of India.
Their immunity is reinforced by the fact that the procedure isn’t just cumbersome, but also susceptible to political influence.
There is an urgent requirement to reform our judiciary, before we loose all our trust on judicial system and move towards anarchy. The reform has to begin, with the higher judiciary and from this very point we have to go further to other reforms.
The judiciary in the country is of pivotal significance. The main duty of judiciary is to safeguard the Constitution and ensure governance in accordance with the laws. Preamble of our Constitution reads, “…to constitute India into a sovereign, socialist, secular, democratic republic and to secure all its citizens: Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all: fraternity; assuring the dignity of the individual and the unity and integrity of the nation.”
Rishabh Srivastava

Why not death? HC to rape-murder convict
22 Oct 2008, 0316 hrs IST, Vishal Sharma, TNN
CHANDIGARH: Resorting to an unprecedented interpretation of criminal law to ensure “true justice” in the rape-murder of a six-year-old girl, whose body too was subjected to conscience-jolting treatment, the Punjab and Haryana High Court on Tuesday asked a man, convicted for life for the heinous crime, why his life sentence should not be enhanced to death. Ibrahim was sentenced to life under sections 302 and 376 of IPC for rape and murder of Sharanpreet Kaur, an Amritsar farmer’s daughter. In 2001, her body was found lying in a sugarcane field with some cloth and pieces of sugarcane in her mouth. The post-mortem of six-year-old girl, who was raped and murdered by Ibrahimin 2001, revealed that a 10 cm-long piece of sugarcane was found thrust through her vagina into the lower abdominal cavity. There were suggestions that the body was violated after death too. Stunned to anguished silence for a moment at the sheer depravity of the convict and gravity of the crime, a division bench of justices Uma Nath Singh and Daya Chaudhary lost no time in issuing a notice to the convict asking him why his sentence should not be converted to death. Asserting that technicalities of law should not allow the convict to escape the “strictest of punishment”, the judges, in a rare and suo motu initiative, went on to examine the provisions of section 377 of CrPC and came out with the widest possible interpretation of court’s powers to enhance the sentence in cases marked by extreme brutality. Referring to a Supreme Court judgment in Sahab Singh vs State of Haryana of 1990, the judges emphasized that “the high court can exercise powers of revision of sentence suo motu under section 397 read with section 401 CrPC for enhancement of sentence. Also, according to section 386 (c) CrPC, the court can alter the nature or extent of sentence by enhancing or reducing it”. Importantly, even as the government of Punjab had not filed an appeal to enhance the life sentence handed to Ibrahim, additional advocate general Gurvin H Singh of the state touched an emotional chord as she pleaded for theharshest penalty to the life convict. She asserted that given the degree of revulsion the convict’s conduct had evoked and the circumstances and manner in which he committed the crime by shattering the faith of victim’s parents reposed in him, he deserved no mercy and the case fell in “rarest of rare cases”.

Stay on Bhamashah to continue; decision after polls: HC
22 Oct 2008, 0333 hrs IST, Abhinav Sharma, TNN
JAIPUR: The division bench of Rajasthan High Court on Tuesday refused to pass any final order on the PIL challenging the Bhamashah Naari Shashaktikaran Yojana. It also abstained from passing any further orders on the stay vacation application of the state government taking into consideration the ban imposed by the chief election commissioner (CEC) on the said scheme in the wake of forthcoming Assembly polls. The court, however, rendered its earlier stay order inoperative till the elections are over and since CEC has banned the whole of the scheme now. The court had earlier banned a circular dated July 7, 2008 issued under the scheme providing for giving an incentive to the government employees who were associated with the scheme. The bench comprising justice R C Gandhi and justice M N Bhandari observed that in the light of the order of the CEC, there is hardly any scope for this PIL to survive any more, but after being pressed by senior advocate Marudhar Mridul that the petitioner has a good case, the court left it open for the petitioner to deal with all the issues if he wants to do so only after the Assembly elections. The bench was of the view that none of the parties to the litigation must get an advantage from the court’s order. Additional advocate general Bharat Vyas, however, stressed that the petitioner is a politically motivated person and a lot many PILs filed by him have been dismissed by the court. The government has defended the scheme after it was called upon to explain the reasons why the scheme may not be declared unconstitutional. A PIL had challenged the scheme on the ground that it is an attempt to influence the voters. Earlier, the court had extended the stay order dated September 26. Under the scheme, the state government had decided to pay Rs 1,500 each to the poor women of various sectors including BPL, SC, ST etc by opening an account in their name and had identified 50 lakh such families. The court has continued the stay on the circular dated July 7, 2008 by which the Bhamashah scheme was floated till October 21 when the matter will be taken up again. It was alleged by senior advocate Marudhar Mridul appearing on behalf of the petitioner that the said scheme is a mode to gain undue advantage in the upcoming Assembly election by the ruling party. He stressed that no doubt any ruling party is free to frame welfare policies but it cannot be at the same time allowed to bribe the voters to cast their votes in their favour by paying money for no reason by opening bank accounts in the name of females of 50 lakh families of the state. Mridul alleged that the order issued by the chief minister uses the word “Yudhstar” (war footings) for the implementation of the scheme which itself proves the ill-intentions to reach out to the voters from the office of CM with a vicious plan to bribe the poor voters.” The state government filed a detailed reply running in 271 pages in respond to the writ petition and justified the scheme. Additional advocate general (AAG) Bharat Vyas argued that the Bhamashah scheme is a welfare scheme and will empower 50 lakh families in the rural areas of the state. Appearing on behalf of the state government, advocate general N M Lodha told the court that the Bhamashah scheme was a part of the Budget speech of the chief minister. The estimated expenditure for the budget is Rs 850 crore and the state legislature has given its assent for the demand for grants having provision for the finances for the implementation of the scheme that authorized the state executive to withdraw from the consolidated fund of the state to meet the expenditures for the implementation of the scheme. Vyas also argued before the bench that the scheme has already been implemented and therefore, there is hardly anything left to be challenged before the court. “None of the political party had ever moved an amendment to the demand for grant for this scheme in the legislature. Therefore, it was legislative intent and purely a welfare scheme to be brought in the domain of a scheme of RBI for financial empowerment of villagers,” said Vyas “The Centre, in February 2008, has announced implementation of Rashtriya Swasthya Bima Yojana (RSBY) in only eight districts of the state for BPL families. The state government considering the fact that all BPL, SC, ST, marginal farmers’ families should have the benefit of health, insurance, announced implementation of the Bhamashah scheme in the remaining 20 districts of the state with an aim to allow banking facilities at 15,000 points in various village and taluka levels of the state within 3-4 km of their residence and further in order to strengthen the scheme a initiative of Rs 1,500 was allowed to be deposited in the name of the woman candidate of the family in whose name the account is opened by the male counterparts,” clarified Vyas.

HC to SGPGI: Explain detention
22 Oct 2008, 0157 hrs IST, TNN
LUCKNOW: Taking suo motu cognizance of TOI’s report Justice Pradeep Kant and Justice Ved Pal of the Allahabad High Court’s Lucknow bench on Tuesday sought an explanation from Sanjay Gandhi Post-graduate Institute of Medical Sciences officials about the confinement of Salma (18). The girl has been in the institute’s confinement for more than a year for non-payment of hospital dues. The additional advocate general JN Mathur, who is also the counsel for the SGPGIMS, sought a day’s time. The bench said that TOI’s report ‘Girl in Confinement in SGPGI for 1 year’ be taken as a public interest litigation (PIL) and the case be put up for hearing on Wednesday. The case was taken up after a local lawyer Adarsh Mehrotra raised the issue in the high court. He said that there is no law where in a patient can be held captive by a hospital in case of non-payment of bill. On Tuesday, the SGPGIMS authorities announced that the girl would be discharged and all her dues would be waived off by the executive council. Speaking to reporters, director, SGPGIMS, Dr AK Mahapatra said that Salma would be sent to Varanasi with the help of district magistrate, Lucknow. The director added that they have intimated district magistrate, Varanasi, about the issue. Although the girl and her mother had on Monday told TOI that they belonged to Varanasi, Dr Mahapatra claimed that the girl does not know her exact address and they believe that the girl might be a resident of Ghazipur. Therefore, he said, they would also be informing DM, Ghazipur, about the issue. Dr Nirmal Gupta of the cardiovascular thoracic surgery department who operated upon Salma in September, 2007, was also present during the press conference. Dr Gupta showed media persons a letter which he claimed was written by one Raja Ansari from Ghazipur jail. He said Ansari had ”requested” him to take care of the girl and that he would deposit all the dues once he is released from jail. Meanwhile, the department of medical education, sought a report on the issue from the SGPGIMS authorities. Secretary, medical education, Harbhajan Singh said that they have asked the SGPGIMS director to send a report immediately. Chief medical superintendent (CMS) Dr AK Bhatt said that they would be sending the report as soon as possible. Salma was brought to SGPGIMS with blocked heart valves on September 2007. She was operated upon by Dr Gupta, a senior faculty with the CVTS department. But because her family could not deposit the treatment charges, the institute authorities did not discharge her. Ever since Salma was in the institute.

Primary teachers protest against HC verdict
Statesman News Service SILIGURI, Oct.21: Activists of the North Bengal unit of Primary Teachers’ Trainee Students (PTTS) today sat in a dharna before the Siliguri District Primary School Council office in Siliguri at 10:00 a.m to protest against the Kokata High court verdict.On 1 October, 2008 Kolkata high court ruled that the nearly 75, 000 certificates obtained since 1995 by those who have completed the one-year course offered by the 142 primary teachers’ training institutes (PTTI) in the state, without National Council of Teachers’ Education (NCTE) recognition, were invalid.About 200 members of the North Bengal unit of the PTTS as well as intellectuals from various fields took part in the two-hour-long dharna, which was organised as part of a statewide agitation to protest against the high court ruling. Mr Avijit Sarkar, a senior PTTS leader informed that similar dharnas were held in front of all district primary school council offices in the state from 10:00 a.m to 12:00 p.m to put pressure on the state government to solve the issue by appealing to the high court to revoke the order, following which the future of the 1, 42, 000 students, who have passed out of the 142 PTTIs since 1995, had become bleak.The agitators in Siliguri hanged in effigy the state school education minister Mr Partha Dey before the council office at 12:00 p.m.

Coach factory: Railways likely to file another petition in HC
Express News Service
Posted: Oct 22, 2008 at 0155 hrs IST
Lucknow, October 21 The Railway Ministry is likely to file a petition in the Allahabad High Court, questioning the Uttar Pradesh government’s decision to provide land for the proposed rail coach factory on lease for 90 years.
The ministry believes that the lease will unnecessarily delay the project. Hence, it wants the land on outright purchase.
Following cancellation of land allotment by the state government on October 12, the Railway Ministry had filed a writ petition in the Lucknow Bench of Allahabad High Court against the government action. The court had ordered status quo and fixed the next hearing for October 22.
On October 18, the state Government had decided to return the land to Railways, but on lease. According to the ministry, it was another hurdle in executing the project, because finalising the terms and conditions of the lease could turn out to be a tricky business.
Explaining the need to file another petition, a railway official said: “Now, the situation is different from when we had filed the earlier petition. The government is returning the land, but with a new condition. We want an outright purchase. Lease will involve completion of new formalities, which will make various deadlines for the project irrelevant.”

SC, HC judges were present when cash-in-bag was delivered’
Express news service Posted: Oct 22, 2008 at 2346 hrs IST

Chandigarh, October 21 : In a new twist to the cash-in-bag case, advocate Anupam Gupta, who is also the senior standing counsel for the UT Administration, said today that there were two other judges — one from the Supreme Court and the other from the High Court — at the Sector 11 residence of Justice Nirmaljit Kaur where a packet containing Rs 15 lakh was delivered on August 13.
Gupta claimed that former Haryana additional advocate general Sanjeev Bansal, an accused in the case, was in touch with the same SC judge’s son from August 14-16, when the FIR in the case was registered. As many as five calls and an SMS were exchanged between Bansal and the judge’s son, he said.
“I am convinced that the packet was mistakenly delivered at the HC judge’s residence in Sector 11, but why has the presence of the two other judges been concealed,” asked Gupta. He alleged that a senior HC judge present there had made a “sustained, conscious and wilful” effort to obstruct and influence the investigation.
“This senior judge even made a call to the SHO concerned. Records show this judge went towards the northern sectors in Chandigarh and made a call to Bansal,” he claimed.

HC allows govt to implead in RNRL-RIL case
Corporate BureauPosted: Oct 22, 2008 at 2338 hrs ISTUpdated: Oct 22, 2008 at 2338 hrs IST
The Bombay High Court on Tuesday allowed the central government to implead itself in the Mukesh Ambani-led Reliance Industries Limited (RIL) and Anil Ambani-led Reliance Natural Resources Limited (RNRL) case on gas supply after RIL and RNRL said they had no problem with the government being a party in the matter. The division bench of justices JN Patel and KK Tated are at present hearing the RIL-RNRL case over the gas supply agreement signed between the two Ambani brothers at the time of the demerger of the Reliance Group.
The court asked government lawyer TS Doabia to file an affidavit in the court on Wednesday informing that they will implead in the case. It may be noted that earlier the law ministry and the attorney general, who saw the government as an ‘affected party’ from the Bombay High Court stay on sale of gas from RIL’s eastern offshore D6 block, had advised the government to be a party to the case. On Tuesday in the courtroom, both the parties (RNRL and RIL) agreed to the government being a party to the case.
RIL counsel Salve said that it is in the interest of both the parties to settle the matter at the earliest and avoid the possibility of government approaching the higher court. The court told Doabia that the government has the final right on the gas block. It can even change the contractor (In this case, RIL is the contractor) or revoke in case the dispute is not settled. However, due to the ongoing dispute between the Ambani brothers, the court had earlier stayed the production of gas from the KG basin.
Earlier, the government had requested the court for lifting injunction on D6 gas sales.
RIL will not be able to start gas production unless the stay on gas sales is lifted as the fuel cannot be stored. Output from D6 holds key to bridging the gas deficit in the country. D6 will almost double the nation’s gas availability of 91 mmscmd and will help meet half of the deficit.
While RIL and RNRL are squabbling over the price of gas, the government counsel had earlier endorsed RIL’s stand that price must have government’s approval. The court will pass the formal order impleading the government as the third party to the case on Wednesday.

CJI should retire ineffective judges of SC and HCs
The move by the CJI to retire lazy, indolent, ineffective and corrupt judges of lower courts is undoubtedly laudable, but he needs to set his own house in order. He should devise a mechanism for retiring such judges of the higher judiciary also..
CJ: Satbir Singh Bedi ,
ACCORDING TO a news item in the Times of India dated September 16, 2008, after plugging loopholes in the selection process of judges to the higher judiciary to block entry of ’black sheep’, Chief Justice of India (CJI)KG Balakrishnan has dropped a bombshell by rolling out a mechanism to weed out corrupt, lazy and ineffective lower court judges. The underlying message in the CJI’s October 14 letter to all chief justices of high courts (HC) is loud and clear — say goodbye to ’indolent, infirm and those with doubtful reputation and utility’ by compulsorily retiring them even if they have put in more than 30 years of service. The number of years one has put in was not a consideration to take a lenient view against those showing deviant behaviour, the CJI said and asked HC chief justices to evaluate the performance of judges in the lower courts once they reached 50 years. While the action of the CJI is indeed laudable, it may be mentioned that there are corrupt, lazy and ineffectives judge of HCs and SC also. CJI should devise a mechanism for retiring such corrupt, lazy and ineffective judges of the higher judiciary also. How would CJI ensure that he says goodbye to ’indelent, infirm and those with doubtful reputation and utility’ by compulsorily retiring judges of the HCs and SC also? At present, they cannot be removedThe scanner will continue to remain focussed on them till they retire at the age of 60. At any point of time after attaining 50, a judicial officer found unsuitable should be eased out by prematurely retiring him, the CJI said and assured the HCs that the ousted judges would receive no sympathetic treatment from the courts as premature retirement cast no stigma on the affected person. “If implemented in right earnest, such provision will keep deviant behaviour in check, besides getting rid of those who are found to be indolent, ineffective or with doubtful integrity,” CJI Balakrishnan said. While the action of CJI is laudable, CJI should bring his own house ie the SC as also the HCs, in order. He must ensure that the judges of the SC and of the HCs who are found to be indolent, ineffective or with doubtful integrity should be get rid of. At present, the SC of India comprises the Chief Justice and not more than 25 other judges appointed by the President of India.
SC judges retire upon attaining the age of 65 years. In order to be appointed as a judge of the SC, a person must be a citizen of India and must have been, for at least five years, a judge of a HC or of two or more such courts in succession, or an advocate of a HC or of two or more such courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist.
Provisions exist for the appointment of a judge of a HC as an ad-hoc judge of the SC and for retired judges of the SC or HCs to sit and act as judges of that court.The Constitution seeks to ensure the independence of SC judges in various ways. A judge of the SC cannot be removed from office except by an order of the President passed after an address in each House of the Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of members present and voting, and presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. A person who has been a judge of the SC is debarred from practicing in any court of law or before any other authority in IndiaNow, in these days of coalition government at the Centre, it may not be possible to muster a strength of two thirds of members present and voting to ensure removal of a SC judge. So, the CJI to make the SC and HCs effective and free from corruption and laziness, must devise some new ways for removing corrupt, indolent, ineffective judges of the SC and HCs. The government also needs to look into the matter.

Corruption among judges: CJI considering two more cases
New Delhi, Oct 21 In addition to the recent case of misconduct involving a Calcutta High Court judge, two other matters related to corruption among judges have come up before the Chief Justice of India.
According to the Supreme Court of India three cases of corruption have so far been considered by the present Chief Justice of India. In two cases, out of these, an inquiry is still pending and the third case has been referred to the government, the Rajya Sabha was informed today.
Law and Justice Minister H R Bhardwaj, in a written reply, told the House that the CJI has not said that there is no corruption at all in judiciary.
He said the government is taking steps to set up a National Judicial Council to deal with complaints against judges of the Supreme Court and High Courts.
At present, complaints received against the judges of the Supreme Court and the High Courts are dealt with as per an “in-house” procedure, the minister said in another reply.
Chief Justice of India K G Balakrishnan had recently recommended removal of Calcutta HC judge Soumitra Sen on charges of “misconduct.” The CJI’s suggestion for action against Justice Sen, who continues to be in office without any work being allotted to him, was sent in August to the Prime Minister Office which, in turn, sent it to the Law Ministry for advice.
In an internal inquiry held by the CJI on the matter, Justice Sen was found to have indulged in a financial misconduct prior to his appointment as a judge.
He allegedly received Rs 32 lakh as court-appointed receiver in a lawsuit between the Steel Authority of India Ltd and Shipping Corporation of India and deposited the amount in his personal account. He allegedly retained the money even after being elevated to the High Court in 2003.(Agencies)
Published: Tuesday, October 21, 2008

Above the law
The Supreme Court granting immunity to Judges from accountability to criminal law goes against fundamental rules of law.
PRIME Minister Manmohan Singh obviously feels deeply about corruption in government and especially in the judiciary. He spoke on it publicly twice within five months; on both occasions, in the presence of the Chief Justice of India (CJI), Justice K.G. Balakrishnan. On April 19, he said: “Corruption is another challenge that we face both in the government and the judiciary.”
On September 11, he went to the root of the problem – a process of appointment that ensures that no dodgy character escapes its scrutiny and becomes a Judge. The Prime Minister said “the time has come for introspection to ensure that judicial appointments at all levels” live up to “exacting standards”.
He was speaking in a specific context that is known to all. The country has been treated to judicial scandals in recent years that it could well have done without. As many as four Chief Justices of India have incurred censures from leading and responsible members of the Bar to the point that demands were made for their impeachment on the strength of evidence that did disclose a prima facie case for inquiry – K.N. Singh, A.S. Anand, M.M. Punchhi and Y.K. Sabharwal (K.N. Singh’s lapses became known after he retired). This is an unprecedented situation, as unprecedented, indeed, as the Central Vigilance Commission examining the charges against Y.K. Sabharwal and then forwarding the complaints from the Campaign for Judicial Accountability to the Law Ministry for “necessary action”. This was confirmed by “a senior Law Ministry official”, Hindustan Times reported (June 9).Ironically, the Supreme Court ruled in the case of a former Chief Justice of the Madras High Court, Justice K. Veeraswami, that “no criminal case shall be registered under Section 154, Criminal Procedure Code [Cr.P.C], against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the [Prevention of Corruption] Act, the case shall not be registered.”
Consent for FIR
Thus, it is not consultation that is enjoined, with “due regard” to the CJI’s opinion, but his consent that is mandatorily stipulated. Since even a first information report (FIR) cannot be filed under Section 154, no police investigation can commence unless and until the CJI gives his consent, which will not and cannot be immediate.
The danger of loss of evidence is obvious. In no other democracy governed by the rule of law does such a rule exist. In India, it has not been laid down by a law enacted by Parliament, but by a narrow majority (3-2) of the Bench that heard the case. It was laid down consciously, avowedly in the act of law-making, by tortuous reasoning and assumptions as unfounded as they are unflattering to our democracy and constitutional system, especially to the President of India, as will be pointed out in detail presently.
This judgment was delivered on July 25, 1991, before any of the distinguished Judges became CJI. Its consequences have been baleful. It flagrantly violated a fundamental of the rule of law, namely, “the universal subjection of all classes to one law administered by the ordinary courts”.
Where, for good reason recognised in all countries, some protection was deemed necessary, it was for the Head of State alone. The framers of the Constitution provided it in explicit words. Article 361(2) and (3) say: “No criminal proceedings whatsoever shall be instituted or continued against the President or the Governor in any Court during his term of office” and “no process for the arrest or imprisonment of the President or the Governor of a State shall issue from any Court during his term of office.”
An attempt was made during the Emergency to amend Article 361 so as to extend the immunity to the Prime Minister as well (the Constitution’s 41st Amendment Bill No.16 of 1975). It was dropped. Extension of the immunity, in howsoever a qualified process, by judicial interpretation is impermissible.
The ruling acquired sanctity and instilled smugness and complacency in CJIs. Hours after his appointment as CJI was announced, Y.K. Sabharwal proclaimed that the Supreme Court’s “in-house mechanism”, comprising five of the most senior Judges, which handles all complaints and allegations against the Judges was “doing fine”.
He indicated that he would oppose any other mechanism proposed by the government to deal with such issues (Hindustan Times; October 19, 2005). He amplified, on the same day: “I don’t think the National Judicial Commission is necessary. The present system of internal checks and balances is working very well. It should be permitted to work for some more time” (The Times of India; October 19, 2005).
That smugness and complacency persist despite the public disquiet to which the Prime Minister alluded on September 11: “Perceptions are formed about efficiency, fairness, honesty and integrity and about competence and compassion. These perceptions cannot be willed. They are shaped by experience, by hearsay, and by public debate and discourse. But there is no doubt that the personal record and reputation of those who sit in judgment does shape our view of the judicial system.”
Those perceptions have been shaped by the three judicial scandals that have been the subject of “public debate and discourse”. Manmohan Singh spoke pointedly in that immediate context. A month earlier, Justice Balakrishnan had sought his “intervention to initiate the impeachment process” against Justice Soumitra Sen of the Calcutta High Court for “misconduct”. He had allegedly “appropriated” Rs.32 lakh.
As a practising lawyer he had been appointed Court Receiver in a case in 1993 and received the money in that capacity, which, it is alleged, he deposited in his personal account and retained it even after he became Judge in December 2003. He parted with it only after the High Court ordered him to do so in April 2006.
Last year, a Division Bench of the Court expunged the strictures passed against Justice Sen by a single Judge who had held him guilty of misappropriation. Justice Sen was facing proceedings in that very High Court of which he was appointed Judge in December 2003.
Justice Balakrishnan carries no conviction when he shifts the blame on the Intelligence Bureau (I.B.). This was not a secret or furtive affair. Chief Justices have always solicited, in private, opinion from trusted members of the Bar. “The process of appointment includes an inquiry by I.B. to verify the candidate’s antecedents. It is possible [sic.] that when he was appointed, there was no criminal case or complaint against him” (Hindustan Times; September 14, 2008). The CJI appointed a Committee of Judges to inquire into the matter. His letter to the Prime Minister followed its report.
Cash-by-courier scandal
The cash-by-courier scandal in the Punjab High Court came to light on August 13 when Rs.15 lakh in cash was delivered by mistake to the house of Justice Nirmaljit Kaur by an assistant of the former Additional Advocate General Sanjeev Bansal. She instantly called the Chandigarh Police and handed the money over.
The next day, an identical amount, was delivered at Justice Nirmal Yadav’s house. Once again, the CJI appointed the “in-house” three-Judge committee. But while the inquiry was still on, the Central Bureau of Investigation (CBI) sought his permission to examine those involved in the scam, including the two Judges. The CJI accorded his consent (The Indian Express, September 10).
On September 29, a three-Judge committee, set up by the CJI, recorded statements by Justice Nirmaljit Kaur and others (The Indian Express, September 30). This was the “in-house” mechanism at work. But for the Supreme Court’s ruling in the Veeraswami case, the police could, and doubtless would, have registered the case on August 13 and proceeded with its investigation. The Delhi hotelier, who allegedly sent the money for a property deal, one Ravinder Singh Bhasin, managed to abscond.
The Ghaziabad case
It is in the Ghaziabad case that the baleful consequences of the Supreme Court’s ruling have appeared in so revoltingly bold a relief that one hopes public pressure will mount for its reversal, if not by the court, by legislation. It does not provide a good example of efficient, earnest and expeditious eradication of corruption though it is the grossest of the three scandals.
The Allahabad High Court remarked: “The scam unearthed in the Judgeship of Ghaziabad puts all scams in the shade and it is also the first involving the judiciary.” Some might differ on the second proposition.
Involved were a whopping Rs.23 crore, withdrawn fraudulently from Provident Fund accounts from the Ghaziabad District Treasury of Class III and Class IV employees of the Ghaziabad District Court by forging their signatures. The money so withdrawn was used to provide gifts to 34 “judicial officers”.
They include a sitting Judge of the Supreme Court and a sitting Judge of the Allahabad High Court. Reportedly, they comprise altogether eight Judges from the Allahabad High Court, one each in Uttarakhand and Calcutta High Courts, and 23 lower court Judges (The Times of India, September 17).
The scam was detected on January 21, by Rama Jain, Vigilance Officer of the District Court, who reported the matter to the High Court.
The linchpin was the administrative officer, known as nazir, Ashutosh Asthana, who used to prepare notes on the basis of which the District Judge would sanction the payments. Nine successive District Judges gave the sanction. Six of them were elevated to the High Court, one in 2005 another in 2006. Asthana made a full confession before a Magistrate under Section 164 of the Cr.P.C., which is admissible as evidence in court.
On the High Court’s orders, an FIR was registered seven months ago on February 15. Sixty employees were arrested. Asthana revealed that the money so drawn was used for payment of various household articles such as house construction material, air conditioners, mobile phones, refrigerators and furniture.
These articles were supplied to a large number of sitting and retired judicial officers, including some who were High Court Judges and one Supreme Court Judge. One Judge, who had elevated tastes, was given “on three or four occasions costly Scotch bottles”. Asthana produced documents showing the purchases and their transport to the residences of many of these Judges.
Yet, while the role of Class III and Class IV employees was investigated by the police, the apparent role of the judicial officers was not. As far back as in June, the Senior Superintendent of Police (SSP), Ghaziabad, wrote to the CJI seeking his permission to interrogate the judicial officers who were allegedly involved in the scam.
This could not by the wildest stretch of imagination be described as a case of harassment of Judges who would need protection under the Veeraswami ruling. A prima facie case existed, as disclosed by Asthana’s confession and the documents. Permission should have been given straightaway. Indeed, the CJI should have taken suo motu notice of the extensive press reportage and sanctioned police investigation. What followed was distressing.
Apparently on the orders of the CJI, the Registrar of the Supreme Court wrote to the SSP not only to submit in writing the questions he proposed to ask the Judges, but also reveal the evidence he had against them. The SSP complied. But, he was not granted an opportunity of any oral interrogation. Have you ever heard of such fetters on police investigations in any democracy? Or a scam of this magnitude? This raises a question which must be answered. Is the CJI not accountable for “administrative” orders? Surely a writ would lie to quash them on proper grounds. They are made in his capacity as Judge. All, Ministers, civil servants, and Judges, are accountable to the law.
The Bar Association of Ghaziabad, by a resolution, asked for an investigation by the CBI. Its president and the chairperson of a non-governmental organisation (NGO) moved the High Court for this relief, which was refused by a judgement of March 19, which, however, gave certain directions to the police.
They moved the Supreme Court on May 6. It came up for hearing on July 7 when notice was issued to the Solicitor-General and it was stated that the next hearing would be held on July 14 in the chambers of the Chief Justice. On July 11, meanwhile, Transparency International moved the Court in a petition filed in the public interest seeking a CBI probe with “no fetters” on it.
The Supreme Court gave the Uttar Pradesh government time until October 22 to decide whether it wanted a CBI probe or not. It readily agreed. A State’s consent is essential to a CBI probe, but the Court has ruled that the consent is not necessary if the court itself ordered a CBI probe. (State of West Bengal vs Sampat Lal (1985) 1 SCC 317).
It was in June that the SSP of Ghaziabad requested CJI Balakrishnan for his consent to interrogate the Judges. Had the CJI consented, interrogations, raids, searches and seizures would have been carried out. Of what avail is a consent three months later? Belatedly on September 23, Justices Arijit Pasayat, V.S. Sirpurkar and G.S. Singhvi directed the CBI to conduct the probe. The CJI, indeed the Court itself, has not set an example of earnest, expeditious effort to combat corruption in the judiciary.
Process of appointment
It is a sorry episode altogether and it raises two related questions. What is one to say of a process of appointment of High Court and Supreme Court Judges, which enabled the persons suspected of involvement in the three scandals to become Judges of their High Courts – in Calcutta, Allahabad and Chandigarh, despite reasonable suspicion? The other concerns the Veeraswami ruling. Bad appointments are linked to bad practices.
There is another linkage. The Supreme Court’s ruling on October 6, 1993, on the appointment of Judges to High Courts and the Supreme Court, subverted the existing settled law and practice of 43 years and made itself virtually the appointing authority (Supreme Court Advocates on Record vs Union of India (1993) 4 SCC 441). In a detailed critique in Volume III of his classic Constitutional Law of India (1996) the late H.M. Seervai opined that the judgments delivered by the majority “bristle with almost every fault which can be committed in a judgement”. He held the ruling to be “null and void” (pages 2,936, 2,937 and 2,964).
The Judges had not followed the mandatory provisions of Article 145 (4) and (5) of the Constitution. The ruling in the Veeraswami case on July 25, 1991, is also a case of what Lord Simonds called “a naked usurpation of the legislative function under thin guise of interpretation” (Major and St. Mellors Rural District Councils Newport Corporation (1951) 2 All. E.R. 838; (1952) A.C. 189 at 191).
Lord Diplock, a confirmed judicial activist, pointed out in 1980 that “it endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes, which experience of their operation has shown to have had consequence that members of the court, before whom the matter comes, consider to be injurious to the public interest” (Duport Steels Ltd vs Sirs (1980) 1 WLR 142 at 157).
Robert Stevens, a scholar among barristers, opines that “Judges choosing judges is the anti-thesis of democracy”. (The English Judges, Their Role in the Changing Constitution; Hart Publishing; page 144). That is the very system the Supreme Court has established. This erudite work is of particular relevance to us in India, faced as we have been for nearly two decades with unconstitutional judicial usurpation of power, legislative and executive, to the menace of democratic governance. Stevens traces the chequered course of such a trend in the United Kingdom and its effective check. “History is littered with examples of judicial hubris ending in judicial terms” (page 149).
In 1993, the Supreme Court appointed its Chief as head of a collegium of two other Judges – whose numbers it fixed only to increase them to four in another judgment only five years later on October 28, 1998 (Special Reference No.1 of 1998 (1993) 7 SCC 739) as the appointing authority for Judges of the Supreme Court and of the High Courts.
It flouted the constitutional provisions and B.R. Ambedkar’s authoritative exposition in the Constituent Assembly on May 24, 1949 (Constituent Assembly Debates Volume viii, page 258). The collegium has no place in the Constitution, only in the Court’s ipse dixit.
In Veeraswami’s case, the Court created immunity for Judges from accountability to criminal law, which violates the fundamentals of the rule of law. Both rulings are clear cases of usurpation of power, both are unknown in any other country and both are not only unsupported by legal erudition or authority, but rest entirely on subjective assertiveness that is what drives Judges to excesses. It is amazing that the country has submitted to this. There is, of course, a reason for it.
Let us analyse the Veeraswami ruling in detail. The facts were all too clear and they are set out with admirable brevity by Justice K. Jagannatha Shetty, a member of the Bench with Justices B.C. Ray, L.M. Sharma, M.N. Venkatachaliah and J.S. Verma. (K. Veeraswami vs Union of India (1991) 3 SCC 655).
Veeraswami joined the Madras Bar in 1941. He became Government Pleader in 1959, High Court Judge in 1960 and Chief Justice in 1969. The CBI filed an FIR and registered a case against him on February 24, 1976, in a Court in New Delhi.
He was alleged to be in possession of assets that were far disproportionate to his known sources of income and thereby committed offences under Section 5(1) (e) and (2) of Prevention of Corruption Act, 1947. On February 28, 1976, a copy of the FIR was filed before the Sessions Court in Madras. On learning of these developments Justice Veeraswami proceeded on leave on March 9, 1976. He retired on April 8, 1976, on attaining the age of superannuation.
A charge-sheet was filed on December 15, 1977. It alleged that after assuming the office of Chief Justice, Justice Veeraswami “gradually commenced accumulation of disproportionate assets” and that for the period between May 1, 1969 to February 24, 1976 he was in possession of funds and property disproportionate by Rs.6,41,416.36 to the known sources of income over the same period. (Thirty years ago, that was a lot). The Sessions Judge issued process for Justice Veeraswami’s appearance. He moved the High Court to quash the proceedings. A full Bench of the Court dismissed his petition whereupon he appealed to the Supreme Court.
Justice Veeraswami raised two points – one concerned the ingredients of the offence and the validity of the charge-sheet. The Court rejected it. The other was whether a Judge is a “public servant” as defined by the Act and if so, which was the authority competent to sanction his prosecution.
Justice J.S. Verma was a solitary dissent on this point. He held that a Judge was not “a public servant” but a “Constitutional functionary” outside the purview of the Act. Impeachment was the only remedy. He conceded that “Parliament being the sole arbiter” was competent to make a law for trial and punishment of Judges charged with corruption (page 751).
All the other four Judges held to the contrary and rightly so. Section 21 of the Indian Penal Code includes “every judge” within the definition of “public servant”. Section 2 of the Prevention of Corruption Act 1947 defined him as one so defined by that Code. In 1964, Section 21 was amended to cover all who discharged adjudicatory functions by law. Section 2(c) (iv) of the Prevention of Corruption Act, 1998, covers “any judge” empowered by law to discharge “any adjudicatory functions” within the definition of public servant.
The Court had ruled in A.R. Antulay’s case that if “by the time the Court is called upon to take cognizance of the offence committed by him as a public servant, he has ceased to be public servant, no sanction would be necessary for taking cognizance of the offence against him” [(1984) 2 SCC 183].
All the four Judges who discussed this point agreed that since the charge-sheet was filed after Veeraswami’s retirement, no sanction was required. (Justice Sharma did not discuss this.) It being the incontestable position that no sanction was required, there was surely no need to discuss who the sanctioning authority was in this case. It was pure obiter.
All that the Court had to do was to decide whether a Judge is a “public servant” covered by the Prevention of Corruption Act – and no more.
The obiter on the sanctioning authority was unnecessary; the further directions as to the CJI’s permission before filing the FIR were clearly beyond the Court’s powers, why were they issued?

Madras HC issues notice to Periyar university
The Madras High Court has issued notice, returnable by a week, on a writ petition challenging an order of Periyar University, Salem, that MSc (software engineering) was not equal to BE (computer science and engineering). Admitting the writ petition, Justice P Jyothimani also permitted private notice.In his petition, M Arun Shourie of Annanagar, Krishnagiri submitted that he completed the five-year integrated MSc (software engineering) from Annai Madhammal Sheela Engineering College in Namakkal district and was awarded a degree by the Faculty of Engineering and Technology of Periyar University. The course was approved by the All India Council of Technical Education (AICTE), the Tamil Nadu government and the University.Since childhood, he had aspired to join the Army. When he applied for a technical graduate course, the Adjutant General, also cited as a respondent, rejected his application, stating qualifying requirement not matched. According to the armed forces, MSc (software engineering) was not an engineering degree and could not be equated with BE or BTech. On his representation, the university, in letter dated October 7, said MSc was not equal to BE course. The communication was illegal and in violation of the Constitution, he said. In response to his request, the AICTE said the five-year course did not come under its purview.The petitioner alleged that the university was not only insensitive to the issues of students but also responsible for offering the course through engineering colleges in violation of the AICTE Act. Since he was driven from pillar to post for the past 21 months without any proper sign of relief, he was forced to file the writ petition, the petitioner said.UNI


PIL filed to remove mobile phone towers in Tamil Nadu
The Madras High Court has issued notices to the state and central governments on a Public Interest Litigation (PIL) petition, seeking to remove all cell/mobile phone towers atop residential buildings, and to permit such towers only in vacant sites.The First Bench comprising Chief Justice A K Ganguly and Justice F M Ibrahim Kalifulla, passing the orders yesterday, directed the state and central governments to reply within three weeks.In his petition, social worker Traffic Ramasamy said cell towers were being put up indiscriminately in the absence of any rules and regulation to streamline, control and supervise them.The petitioner submitted that these towers affected the structural stability of building in congested residential and commercial areas, and added that in the event of accidents they would cause human casualties.‘These towers radiated electromagnetic waves that posed serious health hazards to people,’ he contended.The petitioner wanted the court to direct the authorities to formulate rules for regulating erection of cell towers. They should be directed to permit such towers only in vacant lands, after taking into consideration proper structural standards and the radiation specifications of the World Health Organisation (WHO).UNIThe Madras High Court has issued notices to the state and central governments on a Public Interest Litigation (PIL) petition, seeking to remove all cell/mobile phone towers atop residential buildings, and to permit such towers only in vacant sites.The First Bench comprising Chief Justice A K Ganguly and Justice F M Ibrahim Kalifulla, passing the orders yesterday, directed the state and central governments to reply within three weeks.In his petition, social worker Traffic Ramasamy said cell towers were being put up indiscriminately in the absence of any rules and regulation to streamline, control and supervise them.The petitioner submitted that these towers affected the structural stability of building in congested residential and commercial areas, and added that in the event of accidents they would cause human casualties.‘These towers radiated electromagnetic waves that posed serious health hazards to people,’ he contended.The petitioner wanted the court to direct the authorities to formulate rules for regulating erection of cell towers. They should be directed to permit such towers only in vacant lands, after taking into consideration proper structural standards and the radiation specifications of the World Health Organisation (WHO).UNI

Hashish packet makes its way to court
CHANDIGARH: Hearing on a public interest litigation (PIL), highlighting the “nexus” between police officials and drug mafia, took a dramatic turn on Monday when the petitioner produced a pouch of hashish before a stunned division bench and alleged that the drug was as readily available in the city. In a Bollywoodesque sequence of events, Hemant Goswami of Burning Brain Society, told the surprised division bench, headed by chief justice TS Thakur, that his troupe of volunteers scouted the city for drugs and they procured hashish from Dadumajra. The social activist, working as a consultant with WHO, said various other parts of city were narcotics hotspots too. Ruing official apathy and dereliction of duty on the part of cops, Goswami accused the UT administration of failing to file a “complete reply” in such a sensitive matter. He alleged that he had received “hundreds of threat calls” owing to his campaign against the drug mafia. “Police officials seem indifferent, where should I go?” the social activist hit the nail on the head. The shocked court and audience were in for more jolts when UT’s counsel Anupam Gupta rather candidly admitted that there “indeed, is a nexus, but the administration is trying to stem the rot”. Gupta said he had got a confessional statement of a “principal drug peddler” in which various police officials have been named. “All officers named in the statemnent are placed under suspension and action is being contemplated to bring narcotics trade to an end,” Gupta asserted, seeking time to file additional affidavit. Moved by the turn of events, the chief justice posted the matter to November 14 for further hearing, thereby giving time to UT counsel. The HC had on July 25 issued a notice to the home ministry, Narcotics Control Bureau, CBI, UT Administration and Chandigarh Police on Goswami’s plea alleging nexus between police and drug mafia. Goswami had alleged that many senior enforcement officials and cops were not taking action against drug peddlers even in those cases wherein specific information was provided to them.
21 Oct 2008, 0136 hrs IST, TNN http://timesofindia.indiatimes.com/Cities/Hashish_in_Chandigarh_court/articleshow/3621154.cms

SC refuses to entertain PIL on Article 370
New Delhi, Oct 20: The Supreme Court on Monday declined to entertain a PIL seeking a direction to the President to declare Article 370 of the Constitution as non-operational in Jammu and Kashmir. “It is not possible for this court to give such a direction. What Jammu and Kashmir requires is for the state assembly to think. It is for the elected government of the state to decide,” a Bench headed by Chief Justice K G Balakrishnan. The Bench disagreed with the submission that the President may by public notification, under Article 373, declare that Article 370 ceases to be operative. “The President exercises the power at the advise of the council of ministers,” the Bench observed and said “it is a Constitutional provision and no direction can be given”. The PIL filed by Satya Prakash Anand has also made Prime Minister as party and had contended that the Executive can take action in this regard. Executive function can be exercised by President but the court cannot say anything on it,” the Bench said dismissing the PIL which said that Article 370 was a temporary provision. “It is for the Centre to consider this,” the Bench said. Bureau Report

Nagpur, 20TH October, 2008.
Taking the serious cognizance of continued farmers suicides and failure of various packages announced for the crisis ridden Vidarbha Farmers, the Division Bench of Bombay High Court at Nagpur expressed great concern about the matter & approach of the State Govt. in tackling the issue and asked to furnish every details of the farmers loan waiver scheme involving Rs. 71,000 Crores announced by Central Government and its benefit to the poor farmers in crisis ridden farmers in six districts of Vidarbha region and further also asked to furnish copy of report submitted by Dr. Narendra Jadhav Committee on package schemes and its implementation within four weeks.
Division Bench headed by Justice Dilip Sinha and Justice A.P. Bhangale at Nagpur Bench of Bombay High Court while hearing the Public Interest Litigation filed by Vidarbha Jan Andolan Samiti, President, Shri Kishore Tiwari, today expressed its great concern on the entire crisis and recorded that there was much hue & cry about the mismanagement of the various packages, hence the respondent State has appointed a one man Committee consisting of Dr. Narendra Jadhav – The Vice Chancellor, Pune University, Pune to verify that the packages are properly executed and to suggest the remedial measures for better implementation of the packages. The petitioner – Sh. Kishore Tiwari himself appeared before the Commission and extended his co-operation by submitting various suggestions and data. The Commission has submitted his report to the respondent State on 17.07.08, but according to the petitioner – Sh. Kishore Tiwari no action is initiated pursuant to said report and for proper assistance to the Hon’ble Court in the instant matter the presence of above report on record is also necessary. Hence ordered the respondent State and Union Government to furnish the copy of the said report.
During the course of today hearing, it is pointed out by the Counsel for Petitioner Adv. Sh. Firdos Mirza that –
1) That Hon’ble Court was pleased to entertain the instant petition in the larger public interest considering the reports regarding suicides committed by the cotton growing farmers in the western Vidarbha and the agrarian crisis. Pursuant to the cognizance taken by this Hon’ble Court, from time to time the respondents have declared various packages and placed their details before this Hon’ble Court, still the pace of suicides is unaffected.
2) That in earlier petition before the Hon’ble Divisional Bench of this Hon’ble Court at Bombay the respondent State has submitted that the principal amount to be rescheduled in respect of the loan outstanding against the farmers is of Rs.203 crores and the interest to be written off is Rs.61 crores. Later on by filing affidavit dated 3.9.07 the respondent State submitted that towards interest waiver it has paid Rs.825 crores from P.M. packages and Rs.240 crores from State package and the total overdue as on 30.6.06 was Rs.1407 crores.
3) That recently the Central Government has announced the complete loan waiver amounting to Rs.71000 crores. As mentioned above already Rs.1065 crores were paid by the Government to the Banks towards interest waiver out of the total amount of Rs.1407 crores, hence now the new quantum of the amount disbursed towards loan waivers of the farmers raises questions about its authenticity in the background of the fact that the amount is coming from the pocket of the tax payer.
4) That in compliance with the High Court Order dated 11.07.06, 7.8.06 and 6.8.07 as made a Web site operational pertaining to the relief packages, measures and programs formulated by the State for the benefit of the farmers specially the suicide affected area. The petitioner went through the contents of this Web site, but could not found the details of the beneficiaries and the exact amount paid to each Bank, hence the application has been filed for necessary directions to the respondent for placing the record and details of the loan weavers before this Hon’ble Court.
5) That there was much hue & cry about the mismanagement of the various packages, hence the respondent State has appointed a one man Committee consisting of Dr. Narendra Jadhav – The Vice Chancellor, Pune University, Pune to verify that the packages are properly executed and to suggest the remedial measures for better implementation of the packages. The petitioner himself appeared before the Commission and extended his co-operation by submitting various suggestions and data. The suggestions made by Petitioner – Sh. Kishore Tiwari before the said committee were very much appreciated by the said Dr. Narendra Jadhav Commission which recommended Food Security to 4,42,000 farmers family in extreme distress and recommended State to supply 25 Kgs foodgrains at subsidies rate at par with BPL and also recommended Cashless Health Card to 92,321 families in which serious illness problem have been found by the survey conducted by State Govt. The Petitioner pointed out that even though the commission has submitted his report to the respondent State on 17.07.08, but no action is initiated pursuant to said report. So for proper assistance to this Hon’ble Court in the instant matter, the presence of above report on record is also necessary. Hence Court Order its submission within four weeks.
It may be recalled that the said Public Interest Litigation (PIL) was filed by Petitioner Sh. Kishore Tiwari in the year 2005. Earlier by its Order dated 13th June 2006, due to negligent & casual approach of the State & its bureaucrats to comply with the earlier orders passed by the High-Court, the Division Bench of High Court had imposed cost of Rs. 1,000/- each to be recovered from the Chief Secretary & 12 Other Top I.A.S. Bureaucrats officials of the rank of Principal Secretary, Secretaries, Divisional Commissioners and Director General of Police to be paid within 2 weeks, otherwise the reply – affidavit would not be considered the order of imposition of cost of Rs.1000/- each was modified after the prayer made by the Advocate General of Maharashtra State, who had to rush Nagpur for pleading before the Court in this Writ Petition.
The Public Interest Litigation ¨Criminal Writ Petition was filed by Shri Kishore Tiwari with the wide prayers in the interest of Cotton Cultivating Farmers community at large. The prayers are as under that –
i) the Hon’ble High Court to take cognizance of the plight of poor Farmers who were compelled to commit suicide due to wrongful policies of the State,
ii) to order necessary probe / enquiry in the role of State Officers in promoting B.T. Cotton which resulted in the failure of crop,
iii) to direct investigation through C.B.I., Vigilance Commission, C.I.D. or any other independent agency in the matter of sale of bogus and duplicate B.T. Cotton seeds by the companies and involvement of the officials of the State in inducing the poor farmers for cultivating the B.T. Cotton,
iv) to order prosecution of the guilty officials for the offences punishable under Section 306, 409, 420 & 120 (B) of Indian Penal Code and their overacts causing series of suicides of farmers,
v) to direct the State to compensate the families of the farmers who have compelled to commit suicide by the negligence of the State by providing Rs. 5,00,000/- each without any disparity or choose & pick policy,
vi) to direct the State to take immediate measures for granting financial assistance to the Cotton Growing Farmers & to take further steps to protect the farmers from the coercive recovery at the hands of banks & private money lenders,
vii) to direct the State to place Action Taken Report on the recommendations of various Committees,
viii) to direct the State to take appropriate action against the B.T. Cotton Seeds companies for compensating the poor farmers died untimely &
ix) other reliefs which High Court may find suitable in the facts and circumstances.
The petition will be taken up for further hearing after 4 weeks at the Nagpur Bench of Bombay High Court. Advocate Firdos Mirza & Advocate Vinod Tiwari appeared for the petitioner and State was represented by Additional Govt. Pleader and APP Smt. Bharati Dangre, whereas Central Government was represented by Adv. Sh. Shyam Ahirkar.
Kindly arrange to release this important news in your esteemed daily.
Thanking you,
Yours faithfully,
Santosh Netam,
Media Incharge
Vidarbha Jan Andolan Samiti

SC: Judiciary can only implement law, can’t legislate it
Courts can only implement the law enacted by the legislator and cannot legislate it, the Supreme Court has held.A bench comprising Justices Arijit Pasayat, P Sathasivam and Aftab Alam while holding that an assessing authority is bound to impose the penalty as per the statutory provision of law and has no authority to impose a lesser penalty then what is prescribed under the law noted, ‘ While interpreting a provision the court only interprets the law and cannot legislate it.If a provision of law is misused and subjected to the abuse of process of law, it is for the legislator to amend, modify or repeal it, if deemed necessary. Legislative casus omissus(omission made by a law maker) can not be supplied by judicial interpretative process.’ The apex court while allowing a batch of petition filed by the Union Government and others also noted, ‘The question is not what may be supposed and has been intended but what has been said.Statutes should be construed not as theorems of Euclid but words must be construed with some imagination of the purpose, which lies behind them.’ The Supreme Court has also held that under section 11 A C of the Central Excise Act 1944 inserted by Finance Act 1966 mens rea(criminal intention) need not to be an essential ingredient.The apex court concluded by saying that object behind enactment of section 271(1)(e) read with explanation indicate that the said section has been enacted to provide for a remedy for the loss of revenue. The penalty under that provision is a civil liability and wilful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of the prosecution under section 276 C of the Income Tax Act.UNI

Homosexuality not a disease: Delhi HC
Press Trust of IndiaNew Delhi, Oct 20: The Delhi HC today observed that traits of homosexuality could not be said to be a disease and objected to the Centre’s contention that it was ailment which, if legalised, would bring “devastation”.”Show us one report which says that it is a disease. A WHO paper says that it is not a disease but you are describing it as a disease. It is an accepted fact that it is a main vehicle that causes (the AIDS) disease but it is not a disease itself,” a division Bench headed by Chief Justice Mr AP Shah said.The Court made the observation when the Additional Solicitor General, Mr PP Malhotra, appearing for the Centre, contended that homosexuality was a disease which was responsible for the spread of AIDS in the country. “AIDS is already spreading in the country and if gay sex is legalised then people on the streets would start indulging in such practices saying that the High Court has approved of it,” Mr Malhotra said.The Bench, also comprising Justice Mr S Muralidhar, however, took strong exception to the government’s contention, saying the matter (pertaining to legalising gay sex) was under consideration and the Centre should refrain from making such submissions.The Court was hearing a bunch of petitions filed by gay rights activists seeking decriminalisation of gay sex among consenting adults.

Primary teachers to protest HC move
Statesman News ServiceSILIGURI, Oct. 20: Members of the North Bengal unit of Primary Teachers’ Trainee Students (PTTS) will sit in a dharna before the Siliguri District Primary School Council office in Siliguri at 10:00 a.m. tomorrow to protest against the 1 October Kolkata High Court verdict that the nearly 75, 000 certificates obtained since 1995 by those who have completed the one-year course offered by the 142 primary teachers’ training institutes (PTTI) in the state, without National Council of Teachers’ Education (NCTE) recognition, were invalid.Informing this, Mr Avijit Sarkar, a senior PTTS leader said that about 200 members of the North Bengal unit of the PTTS as well as intellectuals from various fields would take part in the two-hour-long dharna, which would be organised as part of a statewide agitation to protest against the high court ruling. He said similar dharnas would be held in front of all district primary school council offices in the state from 10:00 a.m. to 12:00 p.m. to put pressure on the state government to solve the issue by appealing to the High Court to revoke the order, following which the future of the 1,42,000 students, who have passed out of the 142 PTTIs since 1995, had become bleak.Along with the protesters before the other council offices in the state, the agitators in Siliguri would hang an effigy of the state school education minister Mr Partha Dey before the council office at 12:00 p.m. tomorrow.

HC asks CBI, CVC to probe Shiradi Ghat repair works
21 Oct 2008, 0127 hrs IST, TNN
BANGALORE: Taking a serious view of the apathy of governments on issues concerning public importance, the Karnataka High Court on Monday directed the Central Bureau of Investigation (CBI) and Central Vigilance Committee (CVC) to investigate the shoddy road repair works in Shiradi Ghat. The works, worth Rs 34 crore, were carried out in the ghat section of NH-48, which connects Bangalore and Mangalore. The division bench headed by Chief Justice P D Dinakaran has also asked the authorities to call for fresh tenders within 30 days, and complete the work within three months thereafter. While disposing of two PILs highlighting the poor condition of Shiradi Ghat, the bench said: “The CBI and CVC, after getting technical support from IISc, Bangalore, shall investigate and report into the issue of violations of guidelines, failure to regulate traffic and lapses in execution of work.” The bench also directed action against erring officers at the department level, saying criminal cases be booked against the erring officers and contractors, after the report is submitted to the central government and the central vigilance commissioner. Interestingly, both counsels for state and central governments did not oppose the plea for a CBI inquiry. “Everything has gone wrong in this Rs 34-cr project. It is shocking that a substantial amount has been disbursed. Even after these repairs, unfortunately, the road is in a bad and damaged condition,” the bench observed. The counsel for Centre said lorries laden with 30-50 tonne of iron ore are allowed to ply on these roads, which is twice and above the capacity of the road.

Primary teachers to protest HC move
Statesman News ServiceSILIGURI, Oct. 20: Members of the North Bengal unit of Primary Teachers’ Trainee Students (PTTS) will sit in a dharna before the Siliguri District Primary School Council office in Siliguri at 10:00 a.m. tomorrow to protest against the 1 October Kolkata High Court verdict that the nearly 75, 000 certificates obtained since 1995 by those who have completed the one-year course offered by the 142 primary teachers’ training institutes (PTTI) in the state, without National Council of Teachers’ Education (NCTE) recognition, were invalid.Informing this, Mr Avijit Sarkar, a senior PTTS leader said that about 200 members of the North Bengal unit of the PTTS as well as intellectuals from various fields would take part in the two-hour-long dharna, which would be organised as part of a statewide agitation to protest against the high court ruling. He said similar dharnas would be held in front of all district primary school council offices in the state from 10:00 a.m. to 12:00 p.m. to put pressure on the state government to solve the issue by appealing to the High Court to revoke the order, following which the future of the 1,42,000 students, who have passed out of the 142 PTTIs since 1995, had become bleak.Along with the protesters before the other council offices in the state, the agitators in Siliguri would hang an effigy of the state school education minister Mr Partha Dey before the council office at 12:00 p.m. tomorrow.

HC admits plea against judges’ seaside homes
Mayura Janwalkar
Tuesday, October 21, 2008 02:54 IST
The Bombay High Court on Monday admitted a petition challenging the construction of a 12-floor sea-facing residential tower for high court judges and IAS officers near Rocky Hill in Walkeshwar.
A petition filed by residents of two housing societies adjoining the Rocky Hill Complex has alleged grave irregularities and violations on part of the state government and the Brihanmumbai Municipal Corporation (BMC) in allowing the construction of the judges’ quarters. The petitioners have sought an explanation as to why the World Bank (WB) funds are being used for the Rs145.18 crore project.
Advocate for the petitioners Pradeep Havnur pointed out to the court that any project over Rs5 crore needed a sanction from the MOEF. Moreover, he said the quarters being constructed in a Coastal Regulation Zone (CRZ) was not approved by the heritage committee either.
The state government, however, informed the court that as per a government notification of 2006, construction projects of over 20,000 sq metre needed the ministry’s sanction and the 12-floor-tower measuring 18,000 sq metre was well within the permissible limits.
Although the state did not stay the construction, it has stated that the construction on the plot will be subjected to final orders in the petition and posted it for further directions on November 24. j_mayura@dnaindia.net

HC stays SHRC order
Jammu: The High Court today stayed the order of the State Human Rights Commission seeking registration of a murder case against four police officers including an SHO allegedly involved in the custodial killing of a detainee. The Commission had recommended registration of a murder case against then SHO Rajouri, Showkat Ali Malik and three other police officers, Gian Singh, Muhammad Razzaq and Tasaquq Husain, allegedly involved in killing one Showkat Ali son of Haji Muhammad Latief Mugal of Chaprian, Rajouri, in custody. Justice Virender Singh after hearing advocate, MA Goni, issued notice to the respondents and in the meanwhile the operation of impugned order dated July 9, 2008 passed by the acting chairperson, J&K State Human Rights Commission Srinagar, shall remain stayed. (JNF)

Punjab and Haryana HC to decide 2 lakh cases in Lok adalats
Tuesday, 21 October 2008
CHANDIGARH: Punjab and Haryana High Court will decide two lakh cases by organising Mega Lok Adalats at various towns of Punjab Haryana and Chandigarh under “Samadhan-2008” programme on December 20 and 21.
This was stated by District Session Judge Fatehdeep Singh while addressing a function organised to commemorate “World Mental Health Day” in nearby village Dameli this afternoon.He disclosed that special Lok Adalats would be organised at all sub divisional headquarters on these days to decide pending and new cases.He said that this compaign was being initiated to clear pendency of the cases.
He inspired the people to take advantage of these Lok Adalats.He disclosed that District Kapurthla Legal Srvices Authority had decided 12948 cases in 535 such Lok Adalats and 2535 persons had been provided free legal services.He further disclosed that 209 seminars had been organised to educate the people.Additional Civil Judge Senior Division Phagwara Harish Anand,Phagwara SDM Amarjit Pal,DSP Harkamalpreet Singh Khakh,Judicial Magistrate Kanwal Varinder,Assistant District Attorney Jagjit Kaur Walia,Senior Medical officer Phagwara Dr Rajiv Gupta besides other prominants also attended the function.

HC direction to police on cracker sales
Chennai, Oct 20:With “Deepavali” just a week away, Madras High Court today directed the City Police Commissioner to follow the rule and regulations under the Explosives Act 1884 while granting temporary licence for the sale and storage of fireworks and crackers.
A Division Bench, comprising Chief Justice A K Ganguly and Justice F M Ibrahim Kalifulla, gave the direction while disposing of a petition filed by social worker K R Ramaswamy alias “Traffic” Ramaswamy.
“The Court specially makes the Commissioner of Police responsible to ensure that all the safety measures are scrupulously followed and there should be no laxity in this regard,” the Bench said.
The petitioner had prayed for a direction to the authorities concerned to reconsider granting of licences for storing and selling crackers in thickly populated areas here.
The petitioner had submitted that the shops, selling crackers and fireworks, were not following any safety norms. ” There is no proper maintenance of exit point and the requisite distance between the shops is also not maintained,” he contended. – Agencies
Published: Monday, October 20, 2008

HC quashes proceedings against editor
Jammu: The High Court today quashed the proceedings initiated by the court of Chief Judicial Magistrate, Srinagar, on a complaint against the editor of Frontline, N Ram, for hurting religious sentiments. The compliant said the petitioner had committed an offence u/s 153 RPC by publishing a feature which had hurt the religious sentiments of Muslim community resulting in wide spread riots in different parts of Srinagar city on October 30, 2001. (JNF)

Show Indu Anto case records: HC
Court tells state government to produce the records including chargesheet and case diary
Posted On Tuesday, October 21, 2008
The Bombay High Court on Monday directed the state government to produce the records including the chargesheet filed in the case and the case diary, in the Indu Anto case trial, which is presently pending in the Sewri sessions court. The court directive came on a petition filed by C L Anto, Indu’s father. Anto, a former central government employee has filed a petition in the HC to expedite the hearing of his complaint filed in the Girgaon Magistrate’s court. Indu, a student of Sophia College, was found dead in a college hostel on August 4, 1998. The trial is still pending.The division bench of Justice S B Mhase and Justice Amjad Sayed also directed Anto to submit a final list of witness and a list of documents that he wants to examine. Anto who was present in court on Monday said that he wants to examine at least 12 more witnesses in the magistrate’s court. Hearing the submissions made by Anto, the court remarked that, “the magistrate’s court will not issue summons to any witness and you will have to remain present in the court for every hearing now onwards.”The court further observed that hearing of a private complaint (a complaint filed directly in the magistrate’s court) in the magistrate’s court and the trial cannot be heard simultaneously. After going through the case records, the HC will pass an order on Tuesday. C L Anto had filed a private complaint in the Girgaon magistrate’s court in 2003 after the police concluded the case ‘as a suicide case’. Anto has alleged that his daughter was murdered after she was ragged by senior students of the Sophia college.A magistrate’s court had on October 17 issued summons to four top-cop, including former police commissioner (CP) Ronald Mendonca in this case.

Bhardwaj wants primacy of CJI in judicial appointments
New Delhi, Oct 20: Favouring that judges should appoint judges, Law Minister H R Bhardwaj has said that he stood for the primacy of the Chief Justice of India and the Chief Justices of High Courts in such matters. “I am for restoration of primacy of the Chief Justice of India in the Supreme Court and the Chief Justice of High Courts in the High Courts,” Bhardwaj said. “There is no provision in the Constitution to bring in other people,” the minister told PTI. Referring to suggestions from members of judiciary on having more heads than one in decision making, the minister clarified “I said, that is in your judicial side. I cannot discuss the judicial side. I said my Attorney General shall argue before you, you decide.””If the CJI says he does not agree that this is a proper appointment how can you appoint such a person,” the minister said.The parliamentary standing committee on law and justice had recently called for transparency in judicial appointments and suggested a relook at the in-house system of the judiciary to appoint judges through a collegium (a panel of judges).A top Law and Justice department official today told media that no decision on “collegium-related aspects of the House panel’s suggestions” has yet been taken. The ministry is still considering the panel’s suggestions. In 1993, Chief Justice of India J S Verma had laid down the law on the role of collegium in judicial appointments. In the pre-1993 situation, judges were appointed by the President on the CJI’s recommendations. Bureau Report

Findings of most judicial panels gathering dust
20 Oct 2008, 0137 hrs IST, Dhananjay Mahapatra, TNN
Samajwadi Party leader Amar Singh and Trinamool Congress chief Mamata Banerjee have reached a consensus — the Batla House encounter was fake. Despite being so sure, Singh and Banerjee want a judicial probe. This means the probe be headed by either a retired or a sitting judge of the Delhi high court or the Supreme Court. To conduct impartial probe, Parliament enacted the Commissions of Inquiry Act in 1956. It is difficult to say whether the Act met the law framers’ aspirations in the last five decades, but it has definitely fulfilled the penchant of politicians to call for a judicial probe into everything that goes wrong under the sun. Hundreds of inquiry commissions, headed by retired and sitting judges of the SC and HCs, have been set up since 1956 to probe riots, corruption, emergency, communal riots, assassinations and Babri Masjid demolition. Judicial inquiry commissions have always been useful for the ruling party. It helps to diffuse the heated atmosphere as the affected eagerly participate in the proceedings to present their grievances. Importantly, it delays unravelling of the trigger for the incident and, mostly, fails to unveil the culprits. When the recommendations come after a long time, it is for the government’s sweet will whether or not to accept them. Despite the known fate of inquiry commissions, what makes politicians demand a judicial probe every now and then? Is the intrinsic faith of the public in judiciary the catalyst? But, people are increasingly getting disillusioned. They are witness to the recent political drama over conflicting reports of Justices G T Nanavati and U C Banerjee on Godhra train burning incident. They are aware of many a judicial commission on riots. Justice Ranganath Mishra Commission found no one responsible for the anti-Sikh riots when it was public knowledge that three local political stalwarts were the prime instigators. Justice B N Srikrishna Commission gave a stinging report on the 1992 Mumbai riots. It was not implemented till the Supreme Court forced the government’s hands. And if a government intends to delay unravelling the truth behind an incident, it can learn from Justice Liberhan Commission, which was set up in early 1993 to probe the circumstances that led to demolition of Babri Masjid on December 6, 1992. After more than 15 years, it is yet to submit its report. People are well aware that riots are part of a bigger conspiracy hatched by local-level politicians who fan the anger between communities and keep it simmering till triggered by an incident. Bipan Chandra, in his ‘Communalism in Modern India’, says that a clear relation between communal riots and politics was established for the first time in 1946, when the Muslim League gave its direct action call on August 16, 1946. Right-wing politicians joined the stage, set more than 62 years ago, and proved to be quick learners, for many a judicial commission has accused them of fanning localised riots into a bigger canvass. One of the first judicial commissions probing riots was headed by Justice D P Madan, who inquired into communal disturbances at Bhiwandi, Jalgaon and Mahad in May 1970 when nearly 200 people lost their lives. In his report more than 30 years ago, he had said: “The basic cause of all communal disturbances is the communal atmosphere pervading the country and the communal tension built up between communities. This communal atmosphere provides a ready-tilled soil for communal minded people to sow seeds of communal hatred and nurture them until the bitter harvest of communal riots is reaped.” There is a lesson for Singh, Banerjee and all politicians in Justice Madan’s report. Instead of demanding a judicial probe, they would do well to work for the uplift of Muslims and not drive any wedge between communities.

UPDATE 2-Balaji says Star terminates show, seeks legal recourse
Mon Oct 20, 2008 4:18pm IST
MUMBAI, Oct 20 (Reuters) – Television content provider Balaji Telefilms Ltd (BLTE.BO: Quote, Profile, Research) said it was seeking legal remedies after SGL Entertainment Ltd, a Star group unit terminated sourcing and telecasting a popular television show from Nov. 10.
‘Kyunki Saas Bhi Kabhi Bahu Thi,’ once one of India’s top-rated shows, is produced by Balaji and the termination is in breach of contractual obligation owed by the Star group to Balaji, the content maker said in a statement to the BSE.
Shares in Balaji fell as much as 13.3 percent to 94.20 rupees after the news and recovered slightly to trade 11.42 percent down at 96.20 rupees at the close of trade in a firm Mumbai market.
Star was paying a premium for ‘Kyunki’ due to its popularity and to prevent Balaji from providing other broadcasters with shows at the same time slot, two analysts said. But as newer shows stole ratings, the premium lost relevance, they said.
According to TAM Media Research, ‘Balika Vadhu’, a drama on a child bride, and Star’s ‘Bidayi’ topped the ratings charts, while Kyunki didn’t feature among the top five shows in the Hindi general entertainment genre.
Analysts say that while they were expecting the show to be cancelled, the announcement came 2-3 months earlier than expected, signalling more losses for Balaji.
“For 2-3 months, there will be a decline in revenue of Balaji,” said an analyst from a Mumbai brokerage who declined to be named. “It’s definitely a negative for Balaji.”
The 8-year-old series ‘Kyunki’ gained popularity as an early Hindi soap with the central character of a daughter-in-law, ‘Tulsi’, played by Smriti Irani and has crossed 1,500 episodes, according to Balaji’s website.
In August this year, Star and Balaji said they will cancel their joint venture agreement to launch regional language channels and the Indian broadcaster will sell its 25.99 percent stake in Balaji.
The founders of Balaji are entitled to purchase the stake on their own or through a third party for 190 rupees a share.
Star, whose flagship general entertainment channel Star Plus, is the top-rated channel, faces close competition from new entrant Colors, a joint venture between Viacom Inc (VIA.N: Quote, Profile, Research) and the Network18 group, TAM data showed.
Its other rivals include New Delhi Television’s (NDTV.BO: Quote, Profile, Research)’s NDTV Imagine and general entertainment channels owned by Zee Entertainment (ZEE.BO: Quote, Profile, Research), Sony Entertainment and Sahara.
Officials at Star declined to comment, saying the matter was now sub-judice before the Mumbai courts. (Reporting by Jasudha Kirpalani, Editing by Ramya Venugopal)

Bill to amend Workmen’s Compensation Act introduced in LS
New Delhi (PTI): A bill to provide compensation to workers covered by the Employees’ State Insurance Act in case of industrial accidents and occupational diseases was introduced in the Lok Sabha on Monday.
The bill to amend the Workmen’s Compensation Act, 1923 to make it gender-neutral and more worker-friendly was introduced by Union Labour Minister Oscar Fernandes.
The Workmen’s Compensation (Amendment) Bill, 2008 provides for the substitution of the word ‘workman’ with ’employee’ to ensure that the Act is applicable to all classes of employees and make the expression gender-neutral.
The prevailing 1923 Act is not applicable to employees covered by the Employees’ State Insurance Act, 1948.
Keeping in mind the changing trend in the wage level of employees, the bill proposes to have an enabling provision to revise the wage ceiling from time to time by the Centre.
The bill also have provisions to enhance the funeral expenses of the deceased employee from Rs 2,500 to Rs 3,000.
It also aims to omit restrictive clauses in Schedule II of the Act to make it more worker-friendly.
The Second National Commission on Labour set up in 2002 had made recommendations for amending the Workmen’s Compensation Act, 1923.

Now, north Delhi faces power tariff hike
21 Oct 2008, 0249 hrs IST, TNN
NEW DELHI: After south and east Delhi, now residents of north Delhi are expected to have a hike in power tariff. The appeal filed by discom NDPL against the tariff order of Delhi Regulatory Electricity Commission (DERC) will be heard in the Apellate Tribunal of Electricity on Tuesday. Senior officials said that any verdict in favour of discoms could mean increase in tariff for residents of north and northwest Delhi. According to sources, unlike BSES which had appealed against the entire order, NDPL’s petition is restricted to revenue constraints and denial of capitalization where it has sought more revenue relief from the tribunal. The verdict of the panel will decide the revized tariff costs for NDPL consumers. Recently, BSES had a similar hearing where power tariff of east, west and central Delhi was also facing an interim hike but the hearing has been adjourned for the time being. Sources said that it was likely that NDPL hearing in the tribunal could be deferred looking at the recent episode when BSES’s hearing was postponed till November. “NDPL’s petition in the tribunal is basically contesting the unrealistic revenue projections made by DERC in the multi-year tariff order. If a verdict is granted in their favour, it could lead to a tariff hike mounting to Rs 2/unit. DERC has to make certain restrictions in their order to avoid tariff hike with the Assembly elections being so close. Also, discoms since then have been crying hoarse that their costs have been unfairly cut,” said a source. NDPL officials on their part said that their petition was based on unreasonable projections by the Commission. “We divided our petition in two parts. A few days ago, we had a hearing with DERC on a review petition submitted to them. The public hearing has been adjourned to November 24. Apart from that, we have also appealed against the DERC tariff order in the tribunal and the hearing is scheduled for Tuesday,” said a senior NDPL official.


BJP commerce wing to file PIL against power cut
Coimbatore, Oct 19: The industrial and commerce wing of Tamil Nadu BJP has decided to file a PIL against the ‘unequal distribution of power and power shortage’ in the State for the last one year.
Expressing solidarity with the industries, which have planned one-day stoppage of production on Oct 22, State Party observer, S R Seghar in a statement said that the Electricity Board was using a different yardstick in the distribution of power to different places across the State.
This fact has been admitted by the power minister, Arcot N Veeraswamy in his statement last evening, Seghar claimed.
Stating that the second largest consumer of electricity in the State–1400 MW was Coimbatore, he said that instead of scheduled power cut or load shedding of six and half hours, Coimbatore was facing power cuts for more than eight to 10 hours daily. – Agencies
Published: Sunday, October 19, 2008

College chops down trees to make building visible
http://timesofindia.indiatimes.com/Nagpur/College_chops_down_trees_to_make_building_visible/articleshow/3616755.cms NAGPUR: Even as the Nagpur bench of Bombay High Court is hearing a public interest litigation (PIL) on large-scale felling of trees in Ambewadi (Mah

arajbagh), at the agriculture college, another case of illicit felling of huge trees inside a college in Nandanvan has come to light. In utter disregard to rules and Nagpur’s green city tag, the Women’s College for Arts and Commerce, Nandanvan, fell huge trees inside its premises recently. Shockingly, principal of the college, N R Dixit, says the trees were cut because college building and board were not visible to the people from outside. Interestingly, Dixit told TOI that permission was taken before felling the trees. However, N S Shrikhande, tree officer and garden superintendent, Nagpur Municipal Corporation (NMC), doesn’t remember giving any such permission to the college. “We chopped four to five trees. Not only our college building and board, the building of neighbouring Gayatri Convent was also not visible due to these trees. Our premises looked like a forest. Otherwise also, the existing college building is falling short and we need to expand by having a new building,” Dixit explained. The principal then turned apologetic, “We admit our mistake and it won’t happen in future. In fact, the college is promoting tree plantation and we will plant more trees to compensate for ones we cut.” “It’s really disgusting that an educational institute, which should take lead in creating awareness about environment and climate change, is itself indulging in felling trees. The felled trees were very old and shadowed the entire patch of road in front of the college. Now the patch looks completely barren,” remarked senior citizen Shankarrao Waghmare. N S Shrikhande says, in such cases, action under the Maharashtra Urban Tree Preservation Act, 1975 can be taken. “I’ll order a spot inspection of the college on Monday,” he added. The high court is hearing a PIL filed by city-based environmentalist Seema Shahu on Ambewadi where over 100 small and big trees were chopped down. TOI was the first to expose felling of trees in Ambewadi. Some of the trees cut were scheduled ones like mango, sesame, umbar, and neem. Speaking to TOI, Shahu said, “It is really shameful. I will visit the spot and include this case in my PIL being heard by the high court. The continuous felling of trees in Model Mills will also be taken up.”
20 Oct 2008, 0332 hrs IST, Vijay Pinjarkar, TNN

Court can take action: Legal eagles
KOLKATA: If the government is not willing to stop Gorkhaland activists from replacing government signboards and changing vehicle registration plates

in Darjeeling, Calcutta High Court should step in and take action against the violators. This is what a wide spectrum of legal experts, including former Supreme Court judges, had to say about the recent spate of Gorkhaland protests. State home secretary Asok Mohan Chakrabarti has made it clear that the government will not use force against the agitators. A senior police officer in Darjeeling admitted they were following a policy of non-confrontation. “This is stopping us from taking action against GJM supporters,” the official said. “Replacing registration numbers of vehicles with GL numbers is illegal and the state government must stop this immediately. If the government is ignoring this, Calcutta High Court must order police to take action against the offenders,” said former high court judge D K Basu. Advocate Subrata Mukherjee said changing number plates violated the Motor Vehicles Act. “Offenders can also be charged with conspiracy and waging war against the state,” said Taj Muhammad, deputy director, prosecution directorate. Former CJI Ranganath Mishra felt that the high court should act if the state government was not doing anything to quell the disturbance. “It could be that the state government is apprehensive of law and order problems. But it should still take steps to prevent lawlessness,” he added. According to ex-Supreme Court judge V S Malimath, the protesters need to be handled firmly. “Those defacing government boards are committing an offence and need to be prosecuted. Anyone can file a PIL against the state’s inaction. The court can also ask police to act,” Malimath said. Justice Basu said that the state government’s wait-and-watch strategy cannot be accepted. “Today some are wiping out West Bengal from government boards and replacing it with Gorkhaland. Then, Kamtapur supporters can start writing Kamtapur on government boards in Jalpaiguri. What will the state do then?” he asked. Calling the defacing of government signboards a major offence, Justice Basu said: “The high court can direct the state government to take action against the offenders and ensure the safety of people.” He felt that even legal activists can file a PIL seeking to restore normalcy in the Hills. “All of this is taking place while the Governor is in Darjeeling and this amounts to challenging the authority of the state,” he pointed out. However, Calcutta High Court advocate Subrata Mukherjee felt that defacing government boards is a mode of protest and other groups had done the same thing in the past to highlight their demand for a separate state.
20 Oct 2008, 0406 hrs IST, Debashis Konar, TNN


ESPN Stars Sports v. Global Broadcast News Ltd. and Ors. is the latest case decided by the Delhi High Court following a string of cases dealing with the exception of fair dealing and news channel reporting.
This case seems to a chance to take advantage of the favourable attitude of the Delhi High Court towards broadcasters, especially in light of the earlier decisions of the concerned court in Prasar Bharti v. Sahara TV Network Pvt. Ltd. and Ors. (MANU/DE/3041/2005) and the injunction suit filed by Prasar Bharti against news channels in relation to infringing broadcast by the latter of the Beijing Olympics. An earlier post by Prashant dealt with the dispute involving Prasar Bharti and several news channels over the telecast of the 2008 Beijing Olympics.
The facts of the case are as follows: the Plaintiff, ESPN Stars Sports, sought a permanent injunction against the Defendants, Global Broadcast News Ltd. and Ors., seeking to restrain the Defendant news channels from utilizing the future footage of Plaintiff, in the matches played, and to be played during the India-Australia test matches, 20×20 series and the one day internationals involving Sri Lanka, India and Australia, (all the matches to be played in Australia, during December 26, 2007 to March 8, 2008) without obtaining the Plaintiff’s prior permission or in violation of the Plaintiff’s terms and conditions.
It is pertinent to note that the footage was used and to be used by the news channels in special segments/programmes telecasted by the news channels in relation to these matches. Some examples of these programs being ‘LOC: Love of Cricket’, ‘Sydney Ke Villain’, and ‘Wah Cricket’ (the Bollywood inspired names of these programs are cited here for pure entertainment purposes).
Case History
Just to map the case history, this case was originally decided by Justice Ravindra Bhat in favour of the Defendant news channels. His decision of dismissal of the matter was based on the failure of the Plaintiff Broadcasting Organisation, the exclusive licensee of the concerned broadcast, to implead the owner of the broadcasting right, in violation of the mandate of Section 61 of the Copyright Act. The appeal was based, inter alia, on the ground that the rights of broadcasting organizations are treated as ‘related rights’ under the Copyright Act, not falling within the ambit of a copyright. Therefore, given the special status and nature of these rights, they are exclusively governed by Chapter VIII (Sections 37-39A) of the Copyright Act. Consequently, since no reference is made to applicability of Section 61 to broadcasting rights and infringement actions in Chapter VIII (more specifically in Section 39A of the Act), the latter is not applicable to an action of infringement filed by an exclusive licensee of a broadcasting organization. Hence, the Court of First Instance erred on holding that Section 61 is mandatorily applicable to infringement actions filed by broadcasting organizations in the capacity of an exclusive licensee.

Section 61
In a very interesting judgment, the court overruled the earlier decision of non-maintainability of the suit in light of Section 61.
Section 61 of the Copyright Act reads as follows:
61. Owners of copyright to be party to the proceeding. – (1) In every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be made a defendant and where such owner is made a defendant, he shall have the right to dispute the claim of the exclusive licensee.
(2) Where any civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee is successful, no fresh suit or other proceeding in respect of the same cause of action shall lie at the instance of the owner of the copyright
Thus, as is clear from a plain reading of the text, the provision mandates that in an civil suit of infringement filed by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be made a Defendant. As stated above, Justice Ravindra Bhat dismissed the suit on the ground that the Appellant (Plaintiff) had failed to comply with the mandate of Section 61 of the Copyright Act. He concluded that, “the mandate of Section 61(1) applies in case of claims for infringement of broadcast reproduction rights and the non-impleadment of the owner of copyright is fatal to the maintainability of the suit. Similarly, the non-joinder of owner of the copyright renders the suit liable to be rejected. The proviso to Order 1, Rule 9 Civil Procedure Code enacts that a suit can fail for non-joinder of a necessary party. The failure to implead the owner of copyright in the present case has resulted in keeping out a party whose presence is necessary for a final and complete decision on the question involved in the proceeding. Thus, apart from the suit being not maintainable due to Section 61(1) of the Act, it is also bad for mis-joinder of a necessary party.”
It is pertinent to note that in his reasoning Justice Bhat treated copyright and broadcaster rights to be at par, such that, provisions which govern copyright would also be applicable to broadcasters rights unless specifically excluded.
On appeal, the double bench of the Delhi High Court stated that as per Clause 11 of the Statement of Objects and Reasons of the Copyright Act, the broadcasting reproduction rights were akin to the rights of copyright holder. This terminology in itself showed that the two rights, though akin to each other, operated in exclusive and separate ambits.
The court further strengthened its argument of the separate existence of the two rights on the multiple reasons of:
(a) inclusion of a separate definition of ‘broadcast’ in Section 2(dd) of the Act and not including it within the definition of ‘work’ (defined under Section 2(y)) that would be the subject matter of copyright protection under Section 13 of the Copyright Act;
(b) copyright infringement being dealt with under Section 51 of the Copyright Act, whereas the infringement of Broadcasting Rights being dealt with under Section 37(3) of the Act, independent of any reference to provisions dealing with copyright infringement;
(c) Lastly, that fact that Section 39A referred only to certain specific provisions, applicable to copyright, which were to be adapted, modified and applied to rights of broadcasting organisations. Hence, given the fact that the legislature has enumerated the specific provisions which are to be made applicable to broadcasting organizations, the absence of a non-obstante clause does not take away from the exclusive operation of these provisions, independent and to the exclusion of provisions not mentioned in the concerned section. Thus, since Section 61 is not mentioned in Section 39A, the same is not applicable to infringement suits filed by exclusive licensees of broadcasting rights.
To briefly reiterate, the separation between broadcasting rights and copyright is important because it leads to the conclusion that the latter are ‘special’ in nature and are exclusively governed by Chapter VIII of the Copyright Act and the adapted and modified versions of the sections mentioned in Section 39A. Since Section 61 is not mentioned in Section 39A, the same is not applicable to the exclusive and special domain of broadcasting rights and infringement suits filed by exclusive licensees of broadcasting rights.
However, the most interesting part of the judgment regarding Section 61 relates to the analysis made of the separate parts of the telecast and the various rights held by the Appellants in the telecast. It is pertinent to note that during the telecast of these matches, the Appellant also telecasted several shows like experts in a pre-match analysis, change of innings show and a post match show, wherein cricket experts analysed the match and the result etc. Also, during the match the Appellants organized commentary by cricket experts and legends. The commentary is partnered by telecast of statistics and hawk eye analysis during the match. For example, when a batsman was to start his innings, the Appellants would flash his career statistics or flash statistics reflecting the possible run rate the batting team could reach if it retained a certain run rate. The court held that the Appellants held copyright over the independent insertions and programs telecast. However, in the live match broadcast by the Appellants as exclusive licensees of Cricket Australia, they held broadcasting reproduction rights, independent and exclusive of the copyright held by them in their own additional inputs. It also went on to say that the telecast by the Appellant is distinct from that of the host broadcaster in light of the substantial additional inputs made by the Appellant. Consequently, given the substantially altered nature of the final telecast made by the Appellant, it holds copyright in the same. Therefore, given the fact that the Appellant is the copyright owner of the substantially modified final telecast, it can file a suit against the Respondent. In such a situation, since the Appellant is the copyright owner, the requirement stated in Section 61 does not affect the maintainability of the suit. Moreover, if the Appellant is to be treated as Exclusive Licensee of the Broadcasting Rights given the special nature of these rights and the fact that they operate independent of provisions other than those mentioned in Section 39A of the Copyright Act, Section 61 does not affect the maintainability of the suit.

This decision of the Court also meets the practical concern of the exclusive licensees. Normally, under the exclusive license agreement, a foreign owner of the copyright or ‘broadcasting rights’ relinquishes all rights in the licensed market and often under the agreement allows the exclusive licensee to file infringement suits within the licensed territory. The point being that, after an exclusive licensee is appointed, the concerned market becomes his exclusive domain for exploitation of the licensed intellectual property rights, even to the exclusion of the copyright owner. Hence, subject to the terms of the contract, the owner has little incentive to effectively contest the infringement suit in the concerned country/territory of the exclusive licensee. Thus, casting a burden on the licensee to make the owner a party would often result in an ex-parte decision in relation to the owner and unnecessary delay in the proceedings since the Plaintiff would have to prove that he has made all reasonable attempts to serve notice on the owner such that he can turn up for the hearing.
Fair dealing
Before the Single Judge Bench, the Defendants had raised the defense of fair dealing to the claims of infringement. The Plaintiff opposed the defense stating that the extent of usage of the telecast footage and the fact that the news channels benefited commercially from the same took away from the claim of fair dealing. To support their claims the Plaintiff cited the earlier dicta of the Delhi High Court in Prasar Bharti v. Sahara T.V. Network Pvt. Ltd. and the Broadcast Code published by the British Broadcasting Corporation (BBC) and BSkyB, dated 29.2.2006. These sources basically restrict the broadcast usage by news channels and state clear caps in terms of time that a news item can report specified sporting events, using excerpts from the event. As per the BBC Broadcast Code, the concerned broadcast usage cannot exceed 90 seconds per sport events within the specified events. While, as mentioned above, in the Prasar Bharti case, the Delhi High Court accepted a cap of seven minutes of a broadcast in 24 hours. On the basis of these sources, the Plaintiff argued that the permissible levels of broadcast of such cricket matches by news channels, for the purposes of news, could not be in excess of 30 seconds per bulletin and a total of 2 minutes per day. As opposed to this minimal usage cap, the data submitted by the Plaintiff before the court showed that the aggregate amount of the plaintiff’s footage already used by the Defendant news channels varied from a maximum of approximately 15 hours to a minimum of roughly 9 hours, over a given period of telecast.
It is pertinent to note that the Appellate Court did not give any ruling on the matter of fair dealing or grant any interim relief as the concerned matches and telecast were over. However, as regards the defense of fair dealing the court stated that any unauthorized and prolonged telecast/replay of cricket matches or portion thereof falling beyond the concept of fair dealing and is an infringement of the exclusive rights of broadcasting organisations. They went on to disagree with the earlier judgment of a single judge and stated that the matter should not be dismissed on the mere ground that the cap proposed by the Appellant cannot be made universal. Interestingly the single judge in his obiter had dismissed the injunction application on the ground that the Plaintiff had not shown sufficient materials, barring the aggregate length of the clippings used by defendants in their news programmes and sports reviews, to say that it amounted to unfair dealing. Thus, the Plaintiff had not satisfied the balance of probabilities to be granted an injunction in its favour and not on the ground of the Plaintiff proposing a universal time cap.
Further, the court went on to state that there is no universal time cap or 30 seconds or 7 minutes, and to what extent an infringing telecast is fair dealing depends on the facts and circumstances of each case. To establish the relevant parameters to be used in determining of fair dealing, the court adopted the parameters laid down in Media Works NZ Limited and Anr. v. Sky Television Network Ltd., wherein it was stated that, “fair dealing meant that the extract must be brief, and should be considered in light of the length of the recording. Moreover, the extracts should be used within 24 hours of the concerned event for it to amount to current event and only be used in a programme that reported current events, e.g., not in a review of the player’s career to date.” Using these parameters, in the case the High Court of New Zealand decided the matter in favour of the Broadcasters. The Delhi High Court adopted the test and went on to state that commercial deployment of the Appellant’s footage in excess of 30 seconds per bulletin and a total of 2 minutes per day may negate the plea of fair dealing. Thus, bringing the law back to the post Prasar Bharti dicta. Thus, based on all these arguments the court opined that the Defendant could show controversial incidents and landmark achievements of players, however, in the guise of fair use such events could not be shown to the extent that fair comment transpires into a commercially profitable programme.
The most interesting part of the fair dealing argument kicks in with the connection made by the Respondents between Fair Dealing, Freedom of Speech under Article 19(1)(a) of the Indian Constitution and their right to telecast the snippets from the match. Following the established practice of American courts in this regards, the Delhi High Court held that though news reporting is a fundamental right, repeated and prolonged telecast by the Respondents, especially in the form of a special programme, may amount to commercial exploitation which is not protected under Article 19(1)(a), especially so, when the factum of the programme being aired later in the day is constantly advertised and announced by news channels and such programmes are liberally interposed with commercials. Thus, on these grounds, while not granting the interim relief application in favour of the Appellants, the court concluded that the excessive usage of the Appellant’s telecast commercially by the Respondent negated their plea of fair dealing.
To conclude, though the dicta of the Delhi High Court did not result in an interim application against news channels in this case, as stated by the court itself, its decision and the strict parameters laid down by it are relevant for deciding similar future cases.
Posted by Suchita Saigal at 11:45 AM
Monday, October 20, 2008
They had it coming – By Ghulam Muhammed
Monday, October 20, 2008

The way media has been messing up with the security and integrity of the nation by indulging in routine sensationalism and exaggeration of news and views, somebody had to haul them up on the carpet.
It looked so much appropriate that the judiciary with their highest eminences in presence, realizing that the media is increasingly acquiring the role of prosecutor, defense and the judge, all rolled into one, and thus encroaching on their space, had sent out the first mild rebuke to the fourth pillar of democracy to stick to the legal Lakshman Rekha.
In Mumbai, a workshop was conducted by Maharashtra State Legal Service Authority, at the Bombay High court and was attended by a galaxy of ‘Supreme Court and High Court judges, court reporters, media persons and eminent lawyers.
The media was clearly on the defensive, though from the stable of The Times of India, the most notorious of all, in presenting news as holy gospel, its TIMES NOW presenter, Arnab Goswami, tried to paper over their long record of indiscretion and tried to took credit for the fence-mending now visibly organised to hide their sullied image of treated by people as ‘Police Times’.
Following is the media reporting the event in English newspapers.
Ghulam Muhammed, Mumbai

Arbitration clause need not be explicit, says SC
Even if one party has not signed a formal agreement, there could be a consensus on arbitration by implication, the Supreme Court has ruled in the case, Unnissi (India) Ltd vs PGI, Chandigarh. In this case, the post-graduate institute floated tenders for pulse oxymeters.
The company gave an offer which was accepted by PGI. Equipment was supplied and accepted. Though the company had sent a signed agreement to PGI, the latter had not returned it with its signature. Later, PGI complained about the quality of the equipment and alleged fraud by the company and forfeited the earnest money.
It also asserted that no agreement was executed and there was no arbitration clause. However, the company moved the district judge of Chandigarh for appointment of an arbitrator. The judge found that there was no arbitration clause. On appeal, the Supreme Court ruled that there was an arbitration clause in the tender document itself. Since the document was accepted by PGI, there was an arbitration clause. The Chief Justice of the high court was asked to appoint an arbitrator.
Money deposit as condition to hear suit legal
In a suit for money decree, a party defending the claim may be asked to deposit part of the admitted amount as a condition to hear his petition, the Supreme Court ruled in its judgement, Southern Sales & Services vs Sauermilch Design & Handels GMBH. In this case, the foreign company filed a suit against the Indian firm for recovery of Rs 4 crore.
The latter moved the civil judge in Bangalore who imposed a condition to hear the suit. The Indian firm moved the Karnataka High Court against this order. The high court ruled that the firm should deposit 55 per cent of the undisputed amount before hearing it. In the appeal, the Supreme Court confirmed the high court order, quoting Order 37 of the Civil Procedure Code. It explained that earlier, the code granted hearing without any condition. But after an amendment to the code in 1977, a condition to deposit part of the undisputed amount can be imposed by the civil court.
No re-instatement of seasonal workers
The Supreme Court has set aside the judgement of the Allahabad High Court and the labour court asking the UP Sugar & Cane Development Corporation to reinstate a batch of seasonal workers on a permanent basis. The corporation appealed to the Supreme Court arguing that they were seasonally employed between October and April, the crushing season.
Appointing them in permanent positions was a managerial task, which could not be interfered with by the labour court. The Chini Mill Mazdoor Sangh, which took up the workers’ case, contended that they were employed even during the non-crushing season and therefore they were permanent employees though paid less. The Supreme Court rejected this argument and accepted that of the corporation.
Apex court orders auction of decaying foodgrain
The Supreme Court last week allowed auction of huge amounts of foodgrain which are lying in Ferozepur and under threat of decay. The stocks were caught in a dispute between Satnam Agro Industries and the Punjab State Civil Supplies Corporation Ltd.
The court had earlier given a proposal to the parties to sell the paddy by public auction to be conducted by the court to avoid any further loss and the sale proceeds be deposited in the court and the court shall keep the said amount in a fixed deposit in a nationalised bank to earn interest on the said amount. In view of the broad agreement on this point, the court asked the Chief Judicial Magistrate, Firozpur, to conduct the public auction.
SC dismisses Orissa cable operator’s petition
The Supreme Court last week dismissed the petition of cable operator Ortel Communications Ltd challenging the Orissa High Court’s judgement that ruled against the state government’s policy which allowed only one cable on an electric pole.
The apex court refused to interfere with the high court order that held against the state government’s ‘one pole one cable’ policy. Ortel is a major private player in Orissa providing cable TV, broadband internet and telephony services. The high court in May this year had directed the state government to formulate a policy to ensure equal opportunity to everyone for availing the electric pole facility. The high court had passed the judgement on a petition filed by rival multi-system operator, Variety Entertainment Ltd, a joint venture between ETV and Zee TV. It argued that the policy to allow one operator to use an electric pole for its cable distribution network amounted to creating a monopoly.
BS Reporter / New Delhi October 20, 2008, 0:53 IST

Ban on exit polls: Centre contradicts stance in SC
NEW DELHI: The UPA government’s decision to bring in a law banning exit polls till the conclusion of voting in all constituencies contradicts its strong endorsement of the psephological exercise in the Supreme Court. Favouring exit/opinion polls as instruments facilitating voters to “arrive at a balanced conclusion”, the Centre had in its affidavit stated that it was a “sheer falsehood” if anyone argued that “publication of exit/opinion polls would give misleading signals thereby adversely influencing the exercise of franchise by the voters”. A PIL filed by D K Thakur had in 2004 sought a ban on opinion and exit polls on the ground that they “have a deleterious effect and influence on the electors when they are in the mental process of making up their minds to vote or not to vote for a certain political party or a candidate”. During the pendency of this PIL, then chief election commissioner T S Krishna Murthy wrote to Prime Minister Manmohan Singh on July 5, 2004 seeking immediate legislative action in consonance with the EC’s view — “there should be some restriction on publishing the results of opinion polls and exit polls. Such a restriction would only be in the wider interests of free and fair elections.” Krishna Murthy’s letter to the PM further said: “Regarding the argument about the right to freedom of information sought to be linked to the dissemination of results of opinion and exit polls, it has to be noted that the past experience shows that in many cases, the result of the elections have been vastly different from the results predicted on the basis of exit polls, Thus, the information claimed to be disseminated turned out to be disinformation in many cases.” After evaluating the recommendations for more than a year, the UPA government filed its 9-page detailed response in the Supreme Court on October 13, 2005, discarding the EC’s view by seeking dismissal of the PIL. The Centre had equated news reports and editorials with opinion and exit polls and said: “It needs to be emphasized that with the informative aid provided by opinion/exit polls, the voter is facilitated to arrive at a balanced conclusion as to which of them is credible and reliable for making his informed electoral choice just as he or she will assess the weight to be attached to the editorials and articles projecting different views in several newspapers.” This liberal approach, which contrasts with the present decision taken with the polls staring in a scenario hotted up by price rise, crash in stock markets and bomb blasts, was fortified by the Centre which cited several decisions of the apex court advocating free speech. The affidavit on behalf of the Centre filed by the ministry of law and justice headed by H R Bhardwaj had stated that “there exists no provision in the election laws or has our Constitution provided anywhere in it so as to prohibit the publication of exit/opinion polls on the basis of a reasoning that it unduly influences voter’s mind”. Citing a whole gamut of legal safeguards against misguiding a voter, the Centre had said: “In such an event, there exists no possibility for any elector to be misguided by the disputed exit/opinion polls. Therefore, it would amount to sheer falsehood on the part of the petitioner to aver that the publication of exit/opinion polls would give misleading signals thereby adversely influencing the exercise of franchise by the voters.” While repulsing any attempt to ban exit/opinion polls, the Centre had, however, said that the media publishing such polls should reveal to the public “about the identity of the organisation conducting the poll, indicate the date and/or period when the poll was conducted and publish the political party or other organisation or individual which commissioned and paid for such poll”. The petitioner’s stand that “uncontrolled and unrestricted publication of opinion and exit polls by the print and electronic media go contrary to the very foundation of democracy and are as such illegal and impermissible” was discarded as “untenable” by the Centre, which said “free speech guarantee includes the public’s right to know, the right to receive information and the right of the citizen to disseminate information”.
20 Oct 2008, 0001 hrs IST, Dhananjay Mahapatra, TNN

SC notice to man on bail in rape case
MUMBAI: Following a special leave petition filed by aspiring model and fashion designer Nafisa Khan, the Supreme Court last week issued a notice to Khurshid Siddiqui, asking him why his anticipatory bail should not be cancelled. Khan, who has worked in Bollywood films like `Undertrial’ and `Bombay to Goa’, has alleged that Siddiqui, who is a businessman, had raped her under pretext of marrying her. Notices have been issued to Siddiqui as well the Versova police station which is investigating the case. In July, on Khan’s complaint, the Versova police had registered a case of rape, threatening and assault against Siddiqui, his mother Mohsina and sister Afreen, which were all non-bailable. Siddqui remained absconding for several days until he applied for anticipatory bail which was rejected by the sessions court. However, Siddiqui approached the Bombay high court which granted him bail. The court observed that there was no need for Siddiqui’s custodial interrogation as their relationship was one of consent and now Khan was trying to implicate him because he had refused to marry her. Khan argued that had she knew he was not going to marry her, she would have never given consent for the relationship. “He not only raped and deceived me, but cheated me as well.” Khan then filed a petition in the Supreme Court, challenging his bail. Khan’s lawyer Rizwan Merchant said, “The courts are expected to try and decide cases of sexual crimes against women with utmost sensitivity. If the court finds evidence of the victim truthful, trustworthy and reliable, then convictions can be recorded solely on her testimony and no corroboration is necessary.” The complaint said that Siddiqui Khursheed and Khan met in 2006 at a party at JW Marriott and became close. In 2008, Khan got pregnant and asked Siddiqui to marry her but he refused, saying that she should get the child aborted. Accordingly, Khan underwent an abortion but Siddiqui once again turned down her marriage proposal. The complaint said that Siddiqui, his mother Mohsina and sister Afreen told her to return to her house in Delhi, and if she did not comply, Siddiqui would throw acid on her face.
20 Oct 2008, 0025 hrs IST, S Ahmed Ali, TNN

The urgent need to reform judiciary
Global Corruption Report, 2007 says, corruption in judiciary denies citizens access to justice and basic human right to fair and impartial trial. The time has come when every citizen should raise his voice against corruption and demand justice.

NOT VERY long ago, a TV journalist conducted sting operation in a Ahmedabad court and had got warrants issued against the then President of India, the then Chief Justice of India and many others by paying ’bribes’ to court officials. This happened in late 2007 and then a bench headed by Chief Justice KG Balakrishnan was of the opinion that highlighting and publicising such ’isolated’ cases would bring the entire judiciary into disrepute. Corruption is prevalent in India from top to bottom, but now we are coming across so many cases of corruption in the judiciary too that the common citizens are losing their faith on the judicial system.
There are four pillars of democracy, legislature, executive, judiciary and fourth estate. The judiciary in our democracy has been sinking in the morass of inefficiency, corruption and delays. Global Corruption Report 2007 says that corruption in judiciary is undermining judicial system, denying citizens access to justice and the basic human right to a fair and impartial trial, sometimes even to a trial at all. Petty bribery and political influence in the judiciary erodes social cohesion. One system for the rich and another for the poor fractures communities.
The prevalence of corruption in judiciary is not a secret anymore. Various judges have raised concerns about the same; some have even tried a guess. According to justice SP Bharucha, former Chief Justice of India, around 20 per cent of the judges are corrupt. Another judge, Justice Michael Saldalma of the Karnataka High Court said the percentage is 33 per cent. Justice Saldahna also said that the public perception about corruption in the judiciary is much more important than its actual incidence. A series of scandals in the higher judiciary had recently hit headlines.

Nevertheless, the initiatives taken by the Chief Justice and the Supreme Court send a very positive message. Some former judges of the SC have said that the impeachment process is so ’highly politicised’ and ineffective that Calcutta High Court judge Soumitra Sen needn’t worry.
The fact remains that there is no proper mechanism to judge our judges. In the proposed impeachment of Justice Soumitro Sen of Calcutta High Court, Justice Sen is accused of having been involved in financial misappropriation before he was appointed as a judge. The proposal is nothing new but then there has been no single impeachment till date in our country. The only exception was the case of Justice V Ramaswami, who faced impeachment in 1991, an attempt that failed due to the absence of a political consensus. It is expected that history will not be repeated. If it is repeated, it would be a shame upon the Indian judiciary and its accountability.
The impeachment process is very lengthy or you can say that a judge can hardly be impeached. There can be no F Information Report (FIR) against the judges or a criminal investigation initiated, without prior approval of the Chief Justice of India.

Their immunity is reinforced by the fact that the procedure isn’t just cumbersome, but also susceptible to political influence.
There is an urgent requirement to reform our judiciary, before we loose all our trust on judicial system and move towards anarchy. The reform has to begin, with the higher judiciary and from this very point we have to go further to other reforms.

The judiciary in the country is of pivotal significance. The main duty of judiciary is to safeguard the Constitution and ensure governance in accordance with the laws. Preamble of our Constitution reads, “…to constitute India into a sovereign, socialist, secular, democratic republic and to secure all its citizens: Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all: fraternity; assuring the dignity of the individual and the unity and integrity of the nation.”
CJ: Rishabh Srivastava ,

‘Not providing defence to terror accused violates SC order’
Kanpur (PTI): Not taking up cases of those accused in terror cases would tantamount to violation of Supreme Court’s directives, an eminent lawyer said here on Sunday, condemning the recent “trend” of Bar Associations asking advocates not to defend those facing terror charges.
“Not taking up a case of an accused because the person has been named in some terrorist related activity will be a violation of the apex court’s order,” said Supreme Court lawyer Shahshi Bhushan while participating in a debate on “Terrorism, Human Rights and Advocacy” here.
“India is a democratic country and getting justice is every citizen’s right. If a feeling develops in people that they not getting justice it would further promote terrorism”, Bhushan said.
He said any Bar Association “which does not allow its lawyers to take up such cases should also be condemned.”
Launching a scathing attack on media, he said that it should refrain from blowing up issued out of proportion and asked the police to bring in transparency in its actions.
Questioning the authenticity of the Delhi’s Batala House encounter, he demanded a judicial enquiry into it.
Participating in debate, Ajit Sahi, an editor with Tehelka, said that “our priority should be to bring Muslim and Hindu community closer as it will help end hatred and check terrorism”.
Sunday, October 19, 2008

Judiciary exchanges ideas with media
When the third estate met the fourth, some sparks were expected to fly. At a workshop conducted for reporting of court proceedings at the Bombay High Court on Sunday, eminent members of the judiciary and the media exchanged some ideas.
At the inaugural address of the session, chief justice KG Balakrishnan said that journalism, especially in the field of crime, must not encroach upon people’s right to privacy and give a person the right to a fair trial.
Justice Bilal Nazki of the Bombay HC said as judges they swear to deliver justice not by fear or favour. “Not by favour, I understood, but fear I came to know only after the TV boom,” he said. He attributed the formation of public perception of an accused as guilty to media reports. He said that a judge would fear acquitting an accused who is already declared guilty by millions of people watching TV.
TV journalist Arnab Goswami, however, defended the media and said that news reporting was not about ribbon-cutting ministers anymore. He said that if the media was reminding the investigating agencies or prodding the officers to take action, it was fully justified in doing that.
Justice Arijit Pasayat of Supreme Court said soon the Supreme Court would appoint a Press Relations Officer, so that information becomes easily accessible to reporters.
Mayura Janwalkar
Monday, October 20, 2008 03:31 IST

State of the Nation
Is the judiciary getting too big for its boots? Sculptor Prithpal Singh Ladi certainly thinks so. His latest exhibition, titled “Logic and Illogic” at Gallery Threshold, shows the giant pillar of the judiciary squashing the Ashoka pillar. His other works are just as comically satirical — a world of powerful elephants run by a computer mouse, a man trying to catch a butterfly but failing.
The Shillong-based sculptor’s first solo show in a decade is marked by plucky experimentation. Each sculpture is a compressed narrative with an underlying autobiographical reference. “All my works begin with a personal experience and then go on to paint a larger picture. The works tell the stories of so many others whom we categorise as India’s common man,” explains Ladi. His materials range from stone and steel to bamboo, glass and clay. A special series of jewelled insects comprise large dragonflies in glass, gemstone and metal, their desolation a comment on the scourge of deforestation.
And nothing is politically incorrect for the sculptor. “I don’t care if they arrest me for squashing the Ashoka stambha under the pillar of the judiciary because that’s the state of our country right now,” he says. Brave, indeed.
On till November 12, at Gallery Threshold, F-213 A, Lado Sarai
Suanshu Khurana Posted: Oct 20, 2008 at 0009 hrs IST
Suanshu Khurana Posted: Oct 20, 2008 at 0009 hrs IST

Special Panel recommended to screen complaints against judges
New Delhi, Oct 19 (PTI) A Parliamentary Panel on Law has suggested the establishment of a special committee to screen any complaints of misconduct by judges before it is referred to the yet-to-be set up National Judicial Council for inquiry.The Parliamentary Standing Committee on Law and Justice is of the view that before the case goes to the NJC, it should screened by an Empowered Committee, which should have representation from Parliament, Executive and Bar Council of India.”We have recommended that a ‘Empowered Committee’ be constituted with a Supreme Court judge as the head and a Union Minister, one MP each from Lok Sabha and Rajya Sabha and a representative from the Bar Council as members,” Panel Chairman E M Sudarsana Natchiappan told PTI.This move will bring transparency in the entire functioning of the judiciary and the process of inquiring complaints against the Higher Judiciary.The ‘Empowered Committee’ will screen the complaints against erring judges and if satisfied with the petition filed by the complaintant it will recommend the case to the National Judicial Council for further action.”The committee thinks if some members outside the judiciary are members of the panel, then there will be transparency. The efficacy of the judiciary’s ‘in-house mechanism’ is not known yet,” he said.”This is also done to safeguard the name of the judiciary among the general public. “It (judge) is a very honourable post. Cases relating judges should be dealt with a proper perspective,” he said. PTI

HC reserves order on stray dogs
The Bombay High Court on Friday reserved its judgment in the case debating welfare of stray dogs.
Earlier, justice S Radhakrishnan, DB Bhosale and VK Tahilramani had suggested relocation of stray dogs to dog pounds outside city limits.
In an affidavit submitted, BMC had stated that this will cost Rs198 crore. The affidavit had also stated, “It is questionable whether BMC should spend crores of rupees on feeding stray dogs when we do not do so for poor people in Mumbai who are starving.”
The court was also informed that as per the dog census of October 2007, there are 70,182 stray dogs in Mumbai and 26,900 are pets.
The petitioner In Defence of Animals, an NGO, had submitted that the idea of ‘killing dogs’ for controlling their population is barbaric, and unconstitutional. However, backing the BMC in its strategy, the government on Friday said that under the provisions of the BMC Act, the corporation had a right to eliminate strays.
Mayura Janwalkar
Monday, October 20, 2008 02:17 IST

Bhardwaj refuses comment on gay issue pending in HC
NEW DELHI: Law Minister H R Bhardwaj on Sunday refused to comment on any aspect of a matter related to gay sex pending in the Delhi High Court, before which the Union Home Ministry and the Health Ministry have filed conflicting affidavits on the issue. Asked if the Home Ministry’s stand against decriminalising gay sex among consenting adults would prevail over the Health Ministry’s suggestion to relax the legal provisions under IPC section 377, Bhardwaj said “It’s a subjudice matter, I cannot comment.” Prime Minister Manmohan Singh last week had also asked the two ministries to sort out differences. During the court hearing earlier, the government counsel had said that the Home Ministry was not in favour of tampering with the provisions which prescribes punishment for homosexual acts. The ministry said that the purpose of section 377 was to provide a healthy environment in the society by criminalising unnatural sexual activities which are against the order of nature. On the other hand, the National Aids Control Organisation (NACO), which comes under the Health Ministry, said in its affidavit that it did not favour the enforcement of penal provisions against consenting homosexual adults which declares such acts as an offence punishable upto life imprisonment.Describing the matter of amendment of Legal Services Authorities Act as a ticklish issue, he said the Bar and the Bench should hold discussions for achieving the objectives on the role of bar in the justice delivery system and legal aid.
His remark came in the context of Bar Council of Delhi members and senior advocates seeking a greater role for bar in justice delivery system and legal aid. Earlier, Justice Dalveer Bhandari of Supreme Court talked upon the Bar’s responsibility to improve the quality of education and said granting of affiliation to law colleges by the Bar should be done with care. Another apex court judge, Justice M K Sharma said there was a need to improve the justice delivery system in terms of quantity of justice as there has been a huge arrear of cases in courts. He blame lack of infrastructure to meet the requirements of new legislations which are brought in without setting up adequate facilities to handle the rush of cases under new laws. He pointed to the Negotiable Instruments Act under which almost six lakh cases are pending in Delhi alone. Chief Justice of Delhi High Court, Justice A P Shah, regretted that at times the Bar passes resolutions that lawyers would not represent accused in terror cases or sex-related cases as these resulted in creating obstacles in administration of justice.
Sunday, October 19, 2008 17:04 IST

Govt. to overhaul judges’ appointments
The government has accepted a parliamentary panel’s recommendation to scrap the present procedure for appointments and transfers of Supreme Court and High Court judges. This move is likely to put the government on a direct confrontation course with the judiciary.
The Law Ministry has agreed to review the 15-year-old system after the Parliamentary Standing Committee on Law & Justice recommended doing away with the committee of judges (collegium). Presently, the collegium decides the appointments and transfers of judges.
Interestingly, the recommendations come close on the heels of recent cases of corruption against judges of the top courts in the country.
Law Minister H.R. Bhardwaj told Hindustan Times that the House committee’s recommendation had been accepted, and an action-taken report prepared by the ministry would now be placed before Parliament.
“Collegium system has failed. Its decisions on appointments and transfers lack transparency, and we feel courts are not getting judges on merit. It has become a give-and-take system. The government cannot be a silent spectator on such a serious issue,” Bhardwaj said.
The House committee had said: “Through a Supreme Court judgement in 1993, the judiciary wrested the control of judges’ appointments and transfers. The collegium system has been a disaster and needs to be done away with.”
Bhardwaj said it is the right time to review the important matter.
“There was no problem till 1993 when the judiciary tried to re-write the Article of the Constitution dealing with appointments. They created a new law of collegium which was wrong. In a democracy, the primacy of Parliament cannot be challenged,” he said.
The options available to the government include filing a review petition before the Supreme Court to review its decision or else an amending Article 124 of the Constitution, which deals with judges’ appointments, the minister said.
“The government would go for the widest political consensus on this issue. Our argument is based on the Constituion Review Commission’s report, headed by former Chief Justice of India M.N. Venkatachaliah. We are also studying other suggestions in this matter,” Bhardwaj said.
The Venkatachaliah commission recommended setting-up of a National Judicial Commission for appointment of judges. It proposed that a committee comprising the Chief Justice, two senior judges, a representative of the government and eminent citizens to decide on judges’ appointments.
Appointments and transfers of judges has been a bone of contention between the successive governments and the judiciary.
The judiciary wants to retain its supremacy and is of the firm opinion that the government should simply send the names recommended for appointment to the President for approval. On the other hand, majority view in Parliament is that this system needs to be changed and appointments of judges should be done after consultations between the Chief Justice and the government.
“President of India is the final appointing authority, the collegium wants its recommendation simply to be endorsed, this is not acceptable. The cabinet advice cannot be circumscribed by any recommendation,” Bhardwaj said.
Nagendar Sharma, Hindustan Times
Email Author
New Delhi, October 20, 2008

Media must not encroach upon right to privacy: Chief Justice of India
Mumbai, October 19 : Balakrishnan inaugurated a workshop on Reporting of Court Proceedings by Media and Administration of Justice before addressing the gathering
Stating that freedom of the press means people’s right to know the correct news, Chief Justice Of India K G Balakrishnan on Sunday said that journalism, specially in the field of crime, must not encroach upon people’s right to privacy.
Balakrishnan was addressing a gathering attended by Supreme Court and High Court judges, court reporters, media persons and eminent lawyers after inaugurating a workshop on Reporting of Court Proceedings by Media and Administration of Justice at the Bombay High Court on Sunday.
“Privacy of the person must be protected. Sometimes damaging information is revealed during the investigation. It adversely affects people’s right to a fair trial,” he said.
CJI also criticized the practice of police officers to reveal information to media during the investigation. “It encroaches upon right to privacy,” he added.
CJI Balkrishnan, however, conceded that newspapers can not be as drab as Government gazettes. “A tinge of sensationalism is necessary,” he said. He also stated that they are contemplating ongiving training to journalists on how to report on court cases.
Earlier, Justice Arijit Pasayat of the Supreme Court said in his speech soon the Supreme Court would appoint a Press Relations Officer, so that information becomes easily accessible to reporters.
Also, at the High Court level, “we are exploring the possibility of appointing PROs,” he said.
Chief Justice of Bombay High Court Swatanter Kumar said on this occasion that High Court was contemplating formation of a court bar and media committee, for resolution of contentious issues related to legal reporting.
Speaking on behalf of the media, Editor of Times Now, Arnab Goswami, questioned on why can’t media be judgemental? “World has changed. Why can’t media be judgemental?” he asked while pointing out the issues where the media had stepped in for getting justice.
“It is preposterous to even think that anyone can control media,” he said.
Senior Editor of NDTV, Srinivas Jain stated that “in theory at least, there should be a synergy between the judiciary and media.”
He stressed the need for a psychological ease for the two institutions to work hand in hand and opined that the walls should be breached and there should be more transparency and openness to ideas like allowing camera in courts just like in western countries.
Stating that it is a delicate balancing exercise, former Attorney General of India, Soli Sorabji stated that there should be some regulations to prevent lawyers and police officers from talking to the media during the pendency or investigation of a case.
Justice Bilal Nazki of the Bombay High Court averred that judges are sometimes scared about their credibility due to the pressure from media as people might label the judge as corrupt for giving a wrong judgement.
“We will protect your independence and you protect our independence,” Justice Nazki said.
The one-day workshop touched upon topics such as freedom of media, reporting of sub-judice matters and ‘trial by media’.
Express News Service Posted: Oct 20, 2008 at 0045 hrs IST

Media must not run parallel trials: CJI
Mumbai : Chief Justice of India K G Balakrishnan on Sunday said that serious inroads into a citizen’s private life should be avoided and, while reporting criminal cases, privacy issues must be given due regard. He said freedom of press meant people’s right to know the correct news, but he admitted that newspapers cannot read like an official gazette and must have a tinge of “sensationalism, entertainment and anxiety”. He was speaking at a one-day workshop which sought to explain the nuances of legal reporting to journalists. Held on the Bombay high court premises, it was attended by various judges of the Supreme Court, high courts and eminent lawyers. In a lively discussion where jurists took pains to clarify that the sessions was not for “media bashing”, it became clear that the media was playing a vital role in safeguarding rights but the judiciary was clearly miffed by its attempts to run “parallel court trials”, largely on television. “This is a classic case of tension between two values,” said former attorney general Soli Sorabji. He pointed out that bar councils should put some restraint on lawyers who speak to the press on sub-judice matters as well as on policemen who take press briefings even when an investigation is going on. Fali Nariman said there is no absolute freedom and that the media should be sensitive. He noted that despite criticism, media has done well and Indians must “gamble on liberty (of freedom of press). There is no other option in a participatory democracy”. Advocate general Ravi Kadam asked the media to be “mindful of its significant role and not attempt, even unintentionally, to influence judges.” Bombay HC Chief Justice Swatanter Kumar said pre-trial publicity has to balance press freedom with the right of an accused to a fair trial. The CJI also criticised the police’s tendency to reveal information to the media during the investigation. “It encroaches upon right to privacy,” he said. He noted that there were a lot of “bright young reporters covering courts these days, but they need some training”. “We are thinking of giving training to journalists (on how to report on court cases),” he said. On the electronic media, the CJI and other speakers said lack of editorial control was a worrying aspect. Justice Bilal Nazki said the credibility of a judge is at stake when a trial by media declares a person guilty but the judge gives a differing opinion based on facts. Speaking on behalf of journalists, Arnab Goswami of Times Now said the media was right in being proactive and was often the last resort for a hapless victim. But in a suggestion that needed to be made, Justice S B Sinha of the Supreme Court, in his valedictory address, said that mediapersons could consider undergoing training modules so that their reporting of legal matters became more accurate.
20 Oct 2008, 0021 hrs IST, TNN http://timesofindia.indiatimes.com/Mumbai/Media_must_not_run_parallel_trials_CJI/articleshow/3616198.cms

Crucial CIC hearing on judicial transparency issues tomorrow
New Delhi (PTI): The demand for transparency in judiciary has reached the corridors of Central Information Commission as three separate cases related to holiday expenses by judges, their assets and applicability of RTI while seeking such details, will come up for hearing tomorrow.
The tricky questions, which can have a bearing on public access to issues related to judicial transparency, will be heard separately in a single bench and two full bench hearings of the Commission.
The questions are linked to RTI pleas of Subhash Agrawal who had sought information about the number of issues pertaining to judicial transparency.
In one of his applications, he sought information regarding assets disclosure by sitting judges before the Chief Justice of India and Chief Justices of High Courts.
The full-court meeting of Supreme Court judges in 1997 had made it compulsory for “every judge to make a declaration of all assets in the form of real estate or investments held in their name or their spouse and any other person dependent on them to the Chief Justice.”
Agrawal wanted to know if such a declaration of assets had ever been filed by judges of the Supreme Court before Chief Justice of India and High Court judges before Chief Justices of respective states.
The Chief Public Information Officer of Supreme Court while refusing to provide any details said the information was not with or held by Registry of Supreme Court of India.
In a separate request, Agrawal asked from Department of Personnel and training if judges of Supreme Court and High Courts are covered under the RTI ACT.
Not getting a satisfactory reply, Agrawal pleaded before the CIC to instruct the authorities to provide him accurate information.
Sunday, October 19, 2008Sunday, October 19, 2008

Trinamool mulling legal action against Tata: Mamata
Kolkata, Oct 19 (PTI) Condemning the recent open letter written by Tata chairman Ratan Tata in which he had called upon people of West Bengal to support Buddhadeb Bhattacharjee government’s efforts for industrialisation, Trinamool Congress chief Mamata Banerjee today said her party would take legal action.”Our party is looking at what legal action can be taken against this. I condemn this high handedness. The people of Bengal will give a fitting reply,” Banerjee told reporters when asked to comment about the letter.The open letter, which appeared in some local dailies on Friday, exhorted the people of the state to support the Buddhadeb Bhattacharjee government in building a prosperous state or see it consumed by destructive politics.”When 12 people, including Tapasi Malik, were killed in and around the project site at Singur, Mr Tata had remained silent. What prompted him now to issue the letter?” she asked.Saying that Tata had declined West Bengal Governor Gopalkrishna Gandhi’s invitation to attend a meeting at Raj Bhavan to settle the impasse at Singur, she noted neither the government implemented the agreement reached at the meeting, nor did it disclose its agreement with the Tatas for the small car project at Singur.”The Tatas are giving Rs 450 crore to the Gujarat government at 12 per cent interest, while in West Bengal they were to give Rs 200 crore at 0.1 per cent. Did the government here give the sops to the Tatas without getting anything in return?” the Trinamol chief said. PTI

Mamata threatens legal action against Ratan Tata
KOLKATA: Trinamool Congress chief Mamata Banerjee on Sunday threatened to take legal action against Tata Group chairman Ratan Tata for making “defamatory comments” against her and the farmers’ agitation that led to the Nano car car project being shifted from Singur in West Bengal to Gujarat. “We are considering legal action against him for his comments. He is speaking like a political leader. Let him contest an election from Bengal,” Banerjee told newspersons here. In an advertisement splashed in several newspapers here, Ratan Tata Friday warned the people of West Bengal of the “destructive political environment of confrontation” that he said the Trinamool Congress was espousing. Criticising Banerjee, Tata said: “The confrontative actions by the Trinamool Congress led by Ms. Mamata Banerjee and supported by vested interests and certain political parties… have caused serious disruption to the progress of the Nano plant.” Attacking Tata, Banerjee said he was now determining the political line of the Communist Party of India-Marxist (CPI-M) that leads West Bengal’s ruling Left Front. “On the contrary, the people of the state determine the direction of our politics.
“We are stunned by his comments. He owes a lot to the CPI-M. He got Rs.200 crore (Rs.2 billion) from the CPI-M to set up the plant here. On the other hand, he had to pay Rs.400 crore (Rs.4 billion) to the Gujarat government for the proposed factory at Sanand. So, he is giving certificates to the Bengal government,” she said. “It’s a new form of joint venture – private brokership with government money,” she said sarcastically. A day before her programme to lay siege on the city police headquarters at Lalbazar, Banerjee alleged the CPI-M had hatched a conspiracy to create disturbances by deputing its cadre to infiltrate among the ranks of her supporters Monday. “These people will hold aloft Trinamool flags and then throw stones at the police to provoke them,” she said. Banerjee also took strong exception to the CPI-M youth wing Democratic Youth Federation of India’s threat on Saturday that its activists would be on the road to assist the police if the Trinamool attempted to breach the peace. “Every political party has the democratic right to undertake a political programme. How dare the DYFI say it will be on the roads to take us on? Who are they? Does that mean there is no administration in the state?” she wondered. The siege has been called in protest against the arrest of a party worker for his alleged involvement in violence in the southern part of the city Oct 5. “It seems there is an undeclared emergency in the state,” Banerjee said, warning that the government would be solely responsible if anything untoward happened Monday. “On our part we will be restrained and maintain peace. I urge the administration to do the same,” she added.
19 Oct, 2008, 2011 hrs IST, IANS

EC announces seven-phased assembly polls in J-K

New Delhi, Oct 19 (PTI) Resolving differences within, the Election Commission today announced a seven-phased election in Jammu and Kashmir beginning November 17 till December 24, saying it has taken a “risk” on the issue of participation of political parties in the exercise.Announcing the poll schedule, Chief Election Commissioner N Gopalaswami said that the snow-bound Leh and Kargil regions would go polls in the initial two phases.The polling for the 87-member assembly will be held on November 17, 23, 30, December 7, 13, 17 and 24. Counting of votes will take place on December 28.Against the backdrop of parties and outfits in the Kashmir Valley expressing themselves against polls at this juncture, the CEC said the Commission has taken a “risk”.This was in apparent reference to political parties in Kashmir like the PDP which said no to polls and another mainstream party, National Conference (NC) which gave its nod after having voiced initial reservation.On the issue of lack of consensus among the political parties, he said “first you need to ask if political parties are ready. We are not conducting election in a vacuum. To start with there were one no, one yes and one yes-no. After that one no became one yes. So we have two yes and we have taken a risk”.To another question whether there was a difference of opinion among the three Commission members on holding polls to the assembly with 87 seats, the CEC said “various issues need to be considered. So each one presents his views which he considers the best. There are three Election Commissioners and at least there may be three opinions”. PTI

No extension in water dispute tribunal`s term: Centre to SC
New Delhi, Oct 17: The Centre on Friday told the Supreme Court that it cannot consider extending the term of the Krishna Water Disputes Tribunal (KWDT) adjudicating the inter-state dispute involving Maharashtra, Andhra Pradesh and Karnataka Government. Additional Solicitor General Amarender Saran told a bench of Justices B N Aggrawal and G S Singhvi said the plea for extension of time by Karnataka was only intended to further delay the settlement of the dispute. He submitted that any extension of the tribunal’s term could be made only after adopting the necessary statutory amendment, which the Government did not favour. However, the bench was not impressed with the Centre’s argument and said that on the face of the petition filed by Karnataka it appeared that the tribunal commenced its hearings belatedly two-and-half years after it was constituted due to inadequate infrastructure. “If there is no infrastructure where do you expect the tribunal to function from. Do you want it to function from a vacuum?” the bench queried. But the additional solicitor general stuck to his guns and submitted that enough opportunities were provided to the respective states to put forth their views before the tribunal and as such there was no requirement for extending its tenure. But the bench was not impressed with the argument and directed the Centre to file a detailed counter-affidavit on the issue. Bureau Report

Daily Legal News 18.10.2008

HC quashes PSA against 4 persons

Srinagar, October 18: Jammu and Kashmir High Court Saturday quashed detention order under Public Safety Act against four persons and directed authorities to immediately release them.Justice Hakeen Imitiyaz Hussain after hearing the arguments of both sides observed that the charges labeled against detainees were ‘counterfeit’ and directed for their immediate release, PBI correspondent reported. According to PBI report, the persons whose detention orders were quashed by the court include Bilal Ahmad Naik, Nazir Ahmad Bhat, Imtiyaz Ahmad Dar and Mushtqa Ahmad Mala.The high court gave the order on a petition filed by the detainees through their counsels? T Khawaja, Mir Shafaqat, Bashir Ahmad Tak?challenging their arrest. (PBI)
Posted on 18 Oct 2008 by Webmaster

Govt’s undertaking to HC on rehabilitation
BANGALORE: The state government on Friday gave an undertaking to the High Court of Karnataka that it will release within two weeks Rs 6.25 crore for the rehabilitation of the residents of Vajjal village in Hungund taluk, Bagalkot district.
The village has been submerged in the backwaters of the Chikkasinganutti irrigation project.
After hearing a petition filed by 84 villagers, a division bench headed by Chief Justice P D Dinakaran directed the government to release the money for rehabilitation as early as possible.
The High Court had ordered the government to release the rehabilitation funds way back on August 2, 2006.
The government’s failure to implement the order has resulted in the petitioners moving the court again.
DNA Correspondent
Saturday, October 18, 2008 16:54 IST

HC stays demolition work for Tumkur road
BANGALORE: The High Court of Karnataka on Friday stayed the demolition work in connection with the widening of B H Road in Tumkur.
Justice Adbul Nazeer stayed the demolition work for a period of three months after hearing a petition filed by Renukamba and nine others, who alleged that despite the existence of a bypass road, officials with vested interests had taken up the road widening work.
DNA Correspondent
Saturday, October 18, 2008 16:53 IST

Final HC hearing today on petition against EC
The High Court (HC) will hold today the final hearing on the petition challenging the Election Commission’s (EC) re-demarcation of parliamentary constituencies.The court will also hear the petitions for quashing proceedings against former premier Sheikh Hasina in the Niko and barge-mounted power plant corruption cases. The HC bench of justices Mir Hasmat Ali and Shamim Hasnain on October 13 fixed today for hearing the writ petition that challenged the legality of the EC’s gazette notification finalising fresh demarcation of the constituencies.EC’s counsel Dr Shahdeen Malik yesterday told The Daily Star that it might take two or three days to complete the hearing on the writ petition against the re-demarcation of the constituencies. The EC on October 14 took back from the HC bench of justices Syed Mahmud Hossain and Quamrul Islam Siddiqui its petition for vacating the court order that stayed the re-demarcation of parliamentary constituencies as the writ petition was pending with an HC bench of justices Mir Hasmat Ali and Shamim Hasnain. “If more time is required for disposing the writ petition, the commission will move its petition to another High Court bench for vacating the High Court order that stayed the EC’s re-demarcation of parliamentary constituencies,” he said. Former BNP state minister Abdul Mannan filed the writ petition on August 6 challenging legality of the EC’s gazette notification finalising fresh demarcation of the constituencies. The next day, the HC bench of justices Khademul Islam Chowdhury and Mashuque Hosain Ahmed stayed operation of the notification for three months, and directed the government and the EC to explain within two weeks why the notification should not be declared unconstitutional and illegal. Another HC bench of justices Sheikh Rezowan Ali and Md Rais Uddin deferred until today the hearing on the writ petitions filed by Hasina for quashing the proceedings of Niko and barge-mounted power plant corruption cases against her.The HC on July 7 stayed for two months the proceedings of the cases filed by the Anti-corruption Commission (ACC) against Hasina. The HC also issued separate rulings asking the ACC and the government to explain why the proceedings against Hasina should not be quashed.Following an application on August 27, the HC extended for three months the stay orders and fixed October 14 for hearing of the rulings.Sources said counsels for Jamaat-e-Islami Secretary General Ali Ahsan Mohammad Mojahid might move petition on his behalf before an HC bench today for his bail in the Barapukuria coalmine corruption case.
Staff Correspondent

MSU, ministry join hands to identify loopholes in implementation of social justice
Vadodara, October 18 : For the first time, the Ministry of Social Justice and Empowerment will work with a university to bring about changes in the implementation of social justice.
M S University’s Faculty of Social Work (FSW) is conducting a two-day seminar with the Ministry titled
‘Effective Implementation of Atrocity Act’. The seminar is focusing on identifying the loopholes in the system of social justice.
With paper presentations by police officers, NGOs and Government officials, the ministry will incorporate the findings of the seminar in the implementation process.
Express News Service Posted: Oct 19, 2008 at 0156 hrs IST

Dock officers to file PIL against KoPT
HALDIA, Oct. 18: The Haldia Dock Officers’ Forum is contemplating on filing a Public Interest Litigation (PIL) against the Kolkata Port authorities and the ministry of shipping to prevent imminent closure of the dock. Mr Rama Kanta Burman, secretary of the forum said: “We will wait for 10 more days and if dredgers are not diverted to Haldia, we will file a PIL against the authorities of the Kolkata Port and the Union ministry of shipping.” Coming down heavily on the chairman of the Kolkata Port Trust, Mr Anup Kumar Chanda, Mr Burman said: “He is solely responsible for the crisis. Even after submitting memorandum to the chief minister, Mr Buddhadeb Bhattacherjee, yesterday, Mr Chanda did not go to Delhi to push for diversion of dredgers from the Sethu Samudram ship canal project to Haldia.” “Three months back, when Mr Pranab Mukherjee had sought report on the Haldia dock from Mr Chanda, he had simply ignored the poor navigability at the Auckland channel off Haldia dock in his report,” Mr Burman said. According to reports, as per a five-year dredging contract signed between KoPT and Dredging Corporation of India (DCI) on 1 April, 2002, DCI was to deploy five dredgers ~ DRs V, VI, XII, XIV, and XV ~ for dredging the navigable water in Haldia and another dredgers (DR XVI and XVII) for maximum 120 days per year in case the other dredgers were unable to maintain the depth. But for the last three years, the DCI had not been deploying DR-XV, XVI or XVII since these were deployed at Sethu Samudram.“Because of this, things are worsening since dredging has been stalled. Massive silt deposition is a major problem and if trends continue for two more months, Haldia port would not be able to operate. The Centre needs to take drastic action and speed up the dredging work. Otherwise, the port can’t be saved,” a Haldia dock officials said. Considering the gravity of the situation and the initiative taken by the chief minister, Mr Chanda today came to the Haldia dock complex and convened hours-long meeting with the officials. Sns

UP Govt asked to file counter affidavit on PIL on riots
Allahabad (PTI): The Allahabad High Court on Friday asked the Uttar Pradesh Government to file a counter affidavit on a PIL seeking a CBI inquiry into the communal riots in the state’s eastern districts more than a year ago and adequate compensation to the victims.
The order was passed by a Division Bench comprising Chief Justice H L Gokhle and Justice Vineet Saran which was hearing a PIL filed by a social organisation Awami Council for Democracy and Peace.
The PIL had drawn the court’s attention towards the communal riots that took place in the districts of Gorakhpur, Kushi Nagar, Sant Kabir Nagar, Siddharth Nagar, Deoria and Maharajganj during January-February, 2007.
The court has fixed Nov 7 as the next date of hearing in the case.
Friday, October 17, 2008

‘Neglected’ DU law faculty seeks more UGC funds

NEW DELHI: The “most neglected faculty” of Delhi University is now crying for its due. The faculty of law in DU has sent a proposal to the University Grants Commission (UGC) demanding special funds for its upgradation plans while stating that the university has “neglected” the faculty in all these years. The faculty has been planning to start new courses at the postgraduate level in human rights, gender justice, cyber law, law in biotechnology. According to the proposal submitted to the UGC earlier this month, the library in the faculty where even judges and lawyers come down to read, also needs a major revamp for which special funds are required from UGC as the university hasn’t provided any funds to the faculty so far. According to S N Singh, dean, faculty of law, with no special funds released to it by the university, these plans haven’t yet come through. “The university has never taken the faculty of law seriously. We have not got any grant for the past 40 years despite writing to the university several times. We cannot start any new courses unless we get enough funds. So we have informed UGC about our requirements,” said Singh. The proposal of the faculty submitted for the release of funds under the 11th Five Year Plan, states that the faculty has over 4000 students and the alumni are also placed at high positions in the country and abroad. “But the university is not bothered. Two of our centres in the faculty have been running without a proper building. It was only after I filed a PIL that the university allocated lands for these centres on an order from HC. But nothing has come up on the lands even now,” Singh said. However, the university authorities say the funds would have been released to the faculty of law only when the university had received them from the UGC. “The faculty should have written to me before writing to the UGC,” said DU vice-chancellor, Deepak Pental. While refusing to comment on whether the law faculty had been neglected, Pental remarked that everyone was free to say anything. neha.pushkarna@timesgroup.com
19 Oct 2008, 0035 hrs IST, Neha Pushkarna, TNN

2 illegal police chowkies demolished
http://timesofindia.indiatimes.com/Mumbai/2_illegal_police_chowkies_demolished/articleshow/3613558.cms MUMBAI: Two illegal police chowkies, one in Kalina and another in Jogeshwari (E), were demolished on Saturday.
“Pursuant to the high court’s orders, we undertook the demolition of illegal chowkies in our area with the help of the BMC,” said deputy commissioner of police Nisar Tamboli. Hearing a PIL, the court had in September asked the city police to complete the demolition of around 100 unauthorised chowkies within six months. Last year, in an affidavit, joint commissioner of police Hemant Karkare had admitted that of the 388 police chowkies in the city, 269 did not have any permission from the BMC. The petition had claimed that the chowkies were set up illegally on footpaths, or were obstructing roads, and had mostly been sponsored by private parties, including builders.
19 Oct 2008, 0037 hrs IST, TNN

Towards gay rights as a social movement
In about 80 countries including India, homosexuality is illegal. Now, with a PIL being heard in Delhi High Court to decriminalize homosexuality, a debate has been set going for the gay rights in India.

In Pakistan too homosexuality is a criminal offence but in the areas dominated by Pathans, keeping boy lovers by elderly people is quite common. Also, a report on an Indo-Pak gay marriage is going around on the internet these days.

In the western world, many countries have the gay rights and gay marriages are being accepted socially. Still, in these countries people with different sexual preferences have got united in the form of social movements for special rights as a sexual minority.

Let’s know the history of the social movement for rights of the people with the same sex preferences from the information on the internet summerised as follows.

Immediately after the Second World War, a number of homosexual rights groups came into being or were revived across the Western world. These groups usually preferred the term homophile to “homosexual”, emphasising love over sex. Later on this turned into a social movement.
Lesbian, Gay, Bisexual and Transgender (LGBT) social movements share related goals of social acceptance of homosexuality, bisexuality and transgenderism. People have a long history of campaigning for what is generally called LGBT rights.
LGBTs have been challenging the dominant constructions of masculinity and femininity, homophobia, and the primacy of the gendered heterosexual nuclear family (heteronormativity). Their political goals include the struggles for changing laws and policies in order to gain new rights, benefits, and protections from harm.

In arguing that sexual orientation and gender identity are innate and cannot be consciously changed, attempts to change gay, lesbian and bisexual people into heterosexuals are generally opposed by the LGBT community.
© 2008 mynews.in
(Dr. Lalit Kishore)
Publication Date 18/10/2008 11:37:04 PM(IST)

Court tells govt to clarify stand on med PG seats
http://www.cainindia.org/news/5_2008/court_tells_govt_to_clarify_stand_on_med_pg_seats.html The vacation bench of the Bombay high court on Tuesday asked the state government if it was willing to withdraw its circular of April 4 announcing closure of 242 seats in the post-graduate (PG) medical courses.
People’s Health Organisation, an NGO, in a PIL had directed the court’s attention to the decreasing number of seats. The state government had accepted that there was a decrease, but it was taking corrective measures. However, it was waiting for the nod of the Medical Council of India (MCI). MCI said it was reviewing the courses.
The state said it sought MCI’s permission to approve of the PG medical courses recognised only by the Maharashtra Medical Council (MMC). Petitioners’s counsel Sanjay Jain said if MMC-reconised courses were reopened, 242 seats would be created. The court said if the government did not arrive at a decision, it would pass its orders irrespective of the government’s stand.
May, 28th 2008

Ambanis may yet go to court
Mumbai: Reliance Industries Ltd (RIL) chairman, Mukesh Ambani’s lawyer on Saturday virtually ruled out the possibility of an out-of-court settlement with younger brother Anil Ambani in the ongoing legal dispute over gas supply.
RNRL to place portions of MoU before HC
Objecting to Anil’s lawyer Ram Jethmalani using “sharp words” against Mukesh, his lawyer Harish Salve said: “If you are going to call my client a fraud, a cheat, then the matter can never be sorted out.”
Ambanis told to seek third party’s help
RIL and Anil’s Reliance Natural Resources Ltd (RNRL) are locked in a legal dispute in the Bombay High Court over terms of the Gas Supply Master Agreement whereby RIL is to supply gas to RNRL for the latter’s power plants. During an earlier hearing, Jethmalani had alleged that Mukesh “became dishonest” after the gas and crude oil prices shot up in the international market. He had also alleged that the petroleum ministry was favouring RIL.
Anil files Rs 10,000 cr defamation suit against Mukesh
Earlier, Justice JN Patel and Justice KK Tated had suggested that the two brothers mutually sort out the dispute. Anil had said that he was ready to meet Mukesh but the latter was not willing. Salve said that Mukesh was hurt at being labelled a cheat, forger and fraud by Anil’s lawyers. Ruling out a compromise, Salve said that he would argue the matter in court on Monday.
Anil files defamation suit against Mukesh
On Saturday, Anil’s lawyers concluded their arguments with his counsel Mukul Rohatgi suggesting that as an interim solution to the dispute, RIL should pay RNRL the difference between the price at which it will sell gas to other buyers and the price set by RNRL ($2.34).
Anil Ambani fires another salvo against Mukesh
Alleging that RIL made a “one-sided” contract Rohatgi blamed RIL for the three-year delay in starting RNRL’s plant in Dadri, Uttar Pradesh. He added that RNRL is not averse to supplying gas to the state-run NTPC.
“If RIL gives us (RNRL) 28 MMSCMD of gas immediately, we would give 12 MMSCMD of gas to NTPC at USD 2.34 per million British Thermal Units (BTU) till our own power plant in UP is ready,” Rohatgi said.
Gas production by RIL is slated to start next year but RNRL will take about three years to put up its power plant in UP. RNRL wants gas for 17 years and the current GSMA does not assure this, it says. Therefore, the HC suggested to RNRL that if the court were to accept RNRL’s case, it can order that the contract period of 17 years would start only after RNRL’s power plant is up and running. “Please don’t do that,” Rohatgi said adding that better option would be to allow RNRL to take gas immediately (once gas production starts), and to trade it.
More India business stories
RIL had agreed to supply gas to NTPC at the same rate, but that contract too is caught up in legal dispute. Rohatgi said that RNRL was opposed to postponement of supply because gas production would be at its peak in the initial three years. “We can’t trust RIL,” he added.
Under license from http://www.3dsyndication.com/
Anshika Mishra / DNA MONEY Sunday, 19 October , 2008, 09:22

116-yr-old high court building loses sheen
CHENNAI: Many heritage structures in Tamil Nadu may have survived due to the timely intervention of courts, but the 116-year-old Indo-Saracenic building which houses the Madras high court itself is fast losing its sheen due to continued abuse and neglect. The DGP office complex and Queen Mary’s College buildings on the Marina, the Bharath Insurance Company building on Mount Road and Gokhale Hall in George Town — all these buildings escaped the sledgehammer only because the high court stepped in. While giving them a fresh lease of life, the court did not fail to reiterate the need to preserve structures of historical and heritage value and to evolve effective and uniform conservation laws in the state. But who will prevent the court’s 19th century building from being outraged at will? This is the question riling conservationists. Since the court complex lies within 500 metre from the high tide zone, new construction or modification of the structure shall be subject to the regulatory provisions of the Coastal Regulation Zone (CRZ). Stately corridors sealed on all sides; drilled and hammered walls; withering tiles and stained glass panes; and “anaconda-like” air condition ducts running through imperious court halls have completely disfigured the structure built in 1892. “Court authorities seem to have issued a death warrant for corridors in the building,” a senior member of the Bar said, pointing out that almost all the corridors have now been blocked and converted into aluminium-panelled ‘section offices’. The regal quadrangle, with a towering dome raising above a lounge, is a tale in itself. The stained glass that once decorated the dome is not there anymore, and one end of the corridor has been sealed to give extra space for a ‘section’. The ground floor below the quadrangle used to be a majestic junction of sorts. The once airy and bright area is now a gloomy passage avoided by judges and other dignitaries. The chambers of at least four judges have been illegally and unaesthetically extended to cover the second-floor corridors. “They have put up permanent walls and sealed the arch-like structure,” a court officer said. Indiscriminate wiring and digging work all along the walls, and even on the terrace, has been causing bigger damage. So much so that, a senior judge had to vacate his court hall recently as water started leaking from the ceiling of the original hall. “Only prolonged neglect could have caused such a damage,” conceded an official of the Public Works Department, which is maintaining the building. Original tiles and stained glass imported from England are now being replaced with cheap bathroom tiles or glass of inferior quality. A PWD official, conceding that they had neither qualification nor experience in handling heritage structures, says: “As and when complaints arise, we fix them.” Do they follow any guidelines while doing civil works in a heritage structure? “No,” says he, adding, “we fulfil the requirements specified by the Lordships”. The court had a vision to constitute a committee — Environment and Heritage Protection Committee. “But this committee lacks the wherewithal, will and, of course, skill, to deal with a heritage building of this magnitude,” says an advocate, who was briefly involved in the conservation efforts. While advocates blame it on the reluctance of the judiciary to empower an outside expert to implement his agenda, a court official said the government was unwilling to allocate sufficient funds to take up largescale renovation works on the premises.
19 Oct 2008, 0513 hrs IST, A Subramani, TNN

Let Reliance pay us difference in gas price, RNRL tells court
http://www.thehindubusinessline.com/2008/10/19/stories/2008101951250100.htm Anil Ambani company offers interim solution.
Legal wrangle
RNRL alleges that had RIL signed a ‘firm gas sale agreement’ in January 2006, it could have had the Dadri power plant running by 2009
RIL had argued that RNRL did not have any operational gas based power plant to use gas from RIL’s KG basin
Mumbai, Oct. 18 The Anil Ambani Group company Reliance Natural Resources Ltd (RNRL) has asked Reliance Industries Ltd to pay RNRL the difference between the price at which RIL will sell gas to other buyers and $2.34 per mmbtu (million British thermal unit), the rate at which RNRL is seeking supply of gas.
The suggestion was made by RNRL counsel Mr Mukul Rohatgi as an interim solution to the ongoing dispute between RIL and RNRL on supply of gas. Mr Rohatgi told the Division Bench of the Bombay High Court that it may ask RIL to pay to RNRL the difference in price for three years.
Mr Rohatgi said that had RIL signed a ‘firm gas sale agreement’ with RNRL in January 2006, the company could have had the 8000-MW power plant in Dadri, Uttar Pradesh up by 2009. Therefore RIL should be directed to sign a proper agreement with the company.
Alternatively, RNRL should be allowed to trade in gas for three years (by then the Dadri power plant would be completed) to compensate the loss it suffered due to the delay and litigation.
The suggestion was made in response to the RIL argument that RNRL does not have any operational gas based power plant to use gas from RIL’s KG basin.
Gas from the KG basin field is expected to flow by the first quarter of 2009.
Mr Rohatgi said that current gas supply agreement with RIL was not bankable. Therefore, the court should direct RIL for arriving at an agreement with RNRL which could be used to raise funds, he said.
Since it is eligible for 28 mmscmd of natural gas under the demerger scheme it should be allowed to trade the gas for three years as an interim solution, Mr Rohatgi said.
He said that if RIL starts supplying gas without delay, RNRL can also supply 12 mmscmd (million standard cubic metres per day) of gas at the rate of $2.34 per mmbtu to NTPC till its power plant comes up in Uttar Pradesh.
RNRL’s senior counsel Mr Ram Jethmalani on Thursday had also proposed the same to the court that the company was willing to sell gas at $2.34 per mmbtu to NTPC. The company could still make a profit after selling the gas at that rate, he had said.
On Friday, RNRL passed a board resolution saying that it was ready to supply gas to NTPC.
Mr Rohatgi said that RIL in order to thwart any attempt to have a bankable gas supply agreements, crucial terms in the agreement have been given multiple definitions creating ambiguity. RNRL wants the gas for 17 years but the current gas supply agreement does not assure them of the supply, he said.
The Division Bench suggested to RNRL that if court were to accept RNRL’s case, it can order that the contract period of 17 years would start only after the Dadri plant is ready.
“Please don’t do that,” Mr Rohatgi said adding that a better option would be to allow RNRL to take gas immediately.
The argument will continue on October 20.
Rahul Wadke

Babus spar, HC judges ‘homeless’
New Delhi, October 18 : UD ministry says no spare bungalow, Delhi govt says no land. So who will house the judges?
The Urban Development Ministry and the Delhi Government has had a series of collisions of late over Commonwealth Games and infrastructure projects. And the latest bone of contention is providing residential accommodation for Delhi High Court judges. While the ministry says its responsibility is limited to providing accommodation to only Supreme Court judges, the Delhi government has passed the issue forward due to “lack of bungalows and land”.
According to the High Court Judges Rules, 1956 (as on January 1, 2007), a High Court judge is entitled to several benefits, including an official residence, throughout the term of office and an additional month and furnishings for the house up to a limit of Rs 1.5 lakh. For the HC Chief Justice, the ceiling on furnishing is up to Rs 2 lakh. The benefits also include free water upto 3,600 kilolitres and power of up to 10,000 units anually.
Esha Roy Posted: Oct 19, 2008 at 0341 hrs IST

HC directs United India Insurance Company to give compensation
To parents of a three-year-old Sri Lankan refugee, who was killed in an accident
They originally claimed Rs.15,20,000
Civil appeal dismissed
MADURAI: The Madras High Court has directed United India Insurance Company to pay Rs.1.62 lakh to the parents of a three-year-old Sri Lankan refugee who was crushed to death under the wheels of a private bus near their camp at Thailaiyuthu in Tirunelveli district on May 30, 2002.
Dismissing a civil appeal filed by the public sector insurance company in the Madurai Bench, Justice M. Venugopal said that the amount awarded by a Motor Accident Claims Tribunal in 2003 was prudent, fair and equitable. The judgement, reserved here, was delivered at the principal seat of the High Court in Chennai.
The parents had originally claimed Rs.15,20,000 and subsequently restricted the amount to Rs.5 lakh.
It was contended that they had three girl children and the deceased was their only male child.
There was no chance of begetting any more children as one of them had undergone family planning operation.
On the other hand, the insurance company claimed that in the cases of young children of tender age, in view of uncertainties around, neither their income at the time of death nor the prospects of the future increase in income or chances of advancement of their career were capable of proper determination on estimated basis.
However, Mr. Justice Venugopal stated that the Supreme Court in National Insurance Company vs. Pittala Ramu (2007) had held that such issues could not be approached strictly in terms of commerce or calculations.
It needed to be decided on the touchstone of mental agony of the parents.
The Judge also recalled that the apex court in National Insurance Company vs. Muneer (2003) had observed that notional income could be assumed in both cases where persons concerned were not actually earning or had not reached the age of earning.
In this case, parents of a four-year-old accident victim was granted Rs.1.5 lakh.
Staff Reporter

HC allows NRIs to play in squash tournament
http://timesofindia.indiatimes.com/Delhi/HC_allows_NRIs_to_play_in_squash_tournament/articleshow/3613298.cms NEW DELHI: In a step which might inject a greater level of competition in Indian Squash, the Delhi High Court has thrown open the doors for foreign players of Indian origin to compete in the national championship. It has also directed the government to review why there is no uniform sports policy followed by the national sports federations “in the best interest of sports in the country.” Allowing a plea filed by the father of 16-year-old squash player Karm Kumar, Justice G S Sistani recently knocked off the rule of Squash Rackets Federation of India which prohibited persons of Indian origin from participating in the national championship. “The question thus arises whether individual sport federations, in the absence of any uniform sports policy, can be allowed to “pick and choose” potential players for competitive sports? The answer is an emphatic `No’,” the high court ruled, saying this way a sport can be made more competitive and performance of the country can be improved. HC took a dim view of arguments presented by the squash federation that unrestricted entry of foreign players would mean they, with superior training, would sweep all championships leaving local players stranded. “The contention that this rule has been made to protect interests of native Indian players against foreign nationals who have a relative upper hand, doesn’t impress me. If Indian players can’t compete against foreign nationals, they can’t be expected to perform any better in the international arena,” reasoned Justice Sistani, while quashing the rule. The judge also took note that the “trend of foreign nationals representing India in national and international sports is not new.” In his petition, Rahul Kumar, father of Karm K who represented India at the junior level in squash championships abroad challenged his prohibition from participating in selection trials for the Asian Junior Championship this year. The reason for denying permission to Karm was cited as his holding a British passport by virtue of his father being born there. However, Karm himself was born and raised in the Capital. Terming the rule discriminatory, Kumar, through his counsel Roma Bhagat, pointed out that it is because of such attitudes prevailing in Indian sports that India performs poorly in events like the Olympics, Asian Games and Commonwealth Games. Arguing that the rule violated his son’s constitutional rights, Kumar cited the case of Prakash Amritraj, a US citizen, who represents India in tennis. On its part, the squash federation maintained such a rule was necessary to prevent migration of talented squash players from India to greener pastures abroad. It maintained that players below the age of 16 years generally followed the sport as a hobby, leaving the country for greener pastures abroad once they were trained.
19 Oct 2008, 0058 hrs IST, Abhinav Garg, TNN

Mirwaiz’s wife can stay for now: HC
Sheeba Masoodi, the US-born wife of All Parties Hurriyat Conference chairman Mirwaiz Umar Farooq, was asked by the state Foreign Registration Office on October 4 to leave Kashmir in 10 days. The reason: her five-year visa has expired.
But the Jammu and Kashmir High Court has stayed the notice, which was issued as the visa for Sheeba, an American citizen, had not been extended.
Sheeba, who married Mirwaiz six years ago, moved the court with the plea that her parents were Indian Kashmiri citizens. Besides, she argued, a girl married to a subject of Kashmir is automatically entitled to become a citizen of the state.
The High Court asked the government on Friday to file its objections in 15 days.
Meanwhile, Sheeba’s applications for visa extension and dual citizenship are pending before the external affairs and home ministries.
Family sources of Mirwaiz consider the notice to be a new way of harassing the Kashmiri leadership. “this issue has never come up after their marriage in 2002. Now all of a sudden, a notice has been served on her,” the sources said, linking it to the stand Mirwaiz had taken especially after the Amarnath land row.
However, a senior state government official told Hindustan Times, “Law has taken its course. Her visa has expired. Since it has not been extended, a notice has been served. What’s wrong with that?”
He said, “This is a legal issue and should be seen in that light only. She had a five-year visa, which has expired. The matter is as simple as that.”
Arun Joshi, Hindustan Times
Email Author
Jammu, October 19, 2008

HC nod for police probe against hotelier
http://timesofindia.indiatimes.com/Mumbai/HC_nod_for_police_probe_against_hotelier/articleshow/3613506.cms MUMBAI: The Bombay high court on Saturday gave the go-ahead to the police to investigate allegations levelled against one of Mumbai’s top hoteliers by his wife. Shammi Nagpal, the complainant, had claimed that her husband had thrown her out of her home at Altamount Road. A division bench of Justices F I Rebello and Ashutosh Kumbhakoni also asked the police to look into the conduct of a senior inspector of the Gamdevi police, who had been accused by Shammi of failing to take any action on her complaints. Shammi had been married to Sudhir Nagpal, director of Piem Hotels Ltd, which partly owns Hotel Taj President at Cuffe Parade, for 21 years. She alleged that around March 18, while she was on a foreign trip, her house at Olympus Apartments, Altamount Road, provided by Indian Hotels Company Ltd. (IHCL) as director’s accommodation was broken into and her possessions removed. She had named her husband as well as officials of IHCL in her complaint. She said that personal possessions worth over Rs 35.70 lakh were removed illegally from the house. According to advocate Satish Maneshinde, counsel for Shammi, a complaint had been lodged at the Gamdevi police station for criminal offences under the Indian Penal Code, dealing with theft (380), misappropriation of property (403), criminal breach of trust (406), wrongful restraint (341) and house trespass (451). Sudhir had claimed that he had surrendered possession of the flat as IHCL had terminated the lease agreement.
19 Oct 2008, 0022 hrs IST, TNN

SC refuses to entertain PIL on uniform civil code
New Delhi, Oct 17: The Supreme Court on Friday refused to entertain a PIL seeking a direction to Parliament to enact legislation on uniform civil code. “There is no power with us to give such a direction”, a Bench headed by Chief Justice K G Balakrishnan said. “This court has earlier also said that such a direction cannot be given to Parliament,” the Bench said adding that “it is the prerogative of Parliament to enact a legislation”. The PIL by Satya Pal said that there was a need for a uniform civil code in the country and submitted that he was approaching the apex court as Parliament has not taken any steps in this direction for the last 55 years. However, the Bench said it will not give any direction to Parliament to make a legislation as such powers were non-existent. When the petitioner said that the Prime Minister can be asked to take steps, the Bench said this was also not possible. The petitioner later withdrew the plea just when the Bench said it would dismiss it. Bureau Report

Bombay HC: PIL for holding Lok Sabha, Assembly elections jointly
The Aurangabad bench of Bombay High Court has served notices to the state election commissions, Central Election Commission, Chief Election Commissioner and principal secretary (general administration, Maharashtra) to hold the ensuing Lok Sabha (LS) and Assembly elections jointly, as sought by a PIL. The Bench, comprising Justices N V Dabholkar and N D Deshpande, was yesterday responding to a PIL filed by one Suhas Yelikar, stating that the LS elections will be held in April 2009, while Assembly elections are to be conducted in October 2009.As per section 15 (2) of Representation of People Act, the chief election officer can conduct LS and Assembly elections jointly, saving around Rs 300 crore, the petition said.Mr Yelikar had earlier submitted a memorandum to the authority concerned on the issue. However, there was no response following which he filed the PIL.He also stated that the additional work of government employees will also be reduced with the joint election. Mr Yelikar’s lawyer Anil Golegaonkar brought to the notice of the court that the LS and Assembly elections in Maharashtra, AP, Karnataka, Sikkim and Assam were held jointly in 1999 and this had saved Rs 1,000 crore of the Government.The respondents will have to file a reply by November 24.UNI

Collegium clears elevation of three High Court Chief Justices
New Delhi: The Supreme Court collegium has cleared the elevation of the Chief Justices of the Madras, Patna and Kerala High Courts — Justices A.K. Ganguly, R.M. Lodha and H.L. Dattu — as apex court judges.
The total strength in the apex court is 26 and at present there are four vacancies.
The collegium of five seniormost judges including Chief Justice of India K.G. Balakrishnan on Wednesday finalised the names for three posts. There has been no representation for a woman after the retirement of Justice Ruma Pal in June 2006. This time also there is no recommendation for appointing a woman judge.
Sources say the collegium recommendations were being sent to the Law Ministry and from there these would be sent to Prime Minister Manmohan Singh. From him the files will go to President Pratibha Patil and the appointments are expected within a fortnight. Justice Ganguly (61), hailing from West Bengal, will have a tenure of little over three years as Supreme Court judge. He was appointed permanent judge of the Calcutta High Court on January, 10, 1994. He was transferred to the Patna High Court on April, 4, 1994 and back to the Calcutta High Court on August 1, 2000. He was shifted as judge of the Orissa High Court on April 21, 2006, and became its acting Chief Justice on January 28, 2007 and Chief Justice on March 2. He was transferred as Chief Justice of the Madras High Court on May 19, 2008.
Justice Rajendra Mal Lodha (59), who hails from Rajasthan, will have a tenure of about six years. He became judge of the Rajasthan High Court in Jodhpur on January 31, 1994 and was transferred to the Bombay High Court, where he assumed office on February 16, 1994. He was re-transferred to the Rajasthan High Court on February 2, 2007. He became Chief Justice of the Patna High Court on May 13, 2008.
Justice Dattu (58), from Karnataka, will have a tenure of about seven years. He was appointed judge of the Karnataka High Court on December 18, 1995. He became Chief Justice of the Chhattisgarh High Court on February 12, 2007 and was shifted to the Kerala High Court as Chief Justice on May 18, 2007.
Saturday, Oct 18, 2008
J. Venkatesan

Farmers claiming ancestral right on Nano land to move Gujarat High Court
Ahmedabad, October 17 : Villagers of Chharodi say British govt had taken land on 90-year lease from their forefathers
After having failed to get any concrete assurance from the state government, farmers agitating against the transfer of 1,100 acres of land in Chharodi village to the Tata Motors have decided to move the Gujarat High Court.
They will challenge the government’s decision on the ground that the land in question did not belong to the Government and had been wrongly appropriated by the latter through mutations in the land records.
Express News Service Posted: Oct 18, 2008 at 0206 hrs IST

India: archbishop appeals to high court
India’s high court has scheduled a hearing next week on a petition from Archbishop Raphael Cheenath, who has sought “urgent relief” for the victims of anti-Christian violence in the state of Orissa, saying that local officials have failed to control Hindu mobs. In a related development, police in Bangalore said that a fire in a Catholic church was caused by accident, but Archbishop Bernard Moras insisted the fire was deliberately set by Hindu radicals.
October 17, 2008

SC concerned over rampant forging of caste certificates
http://timesofindia.indiatimes.com/India/SC_concerned_over_rampant_forging_of_caste_certificates/articleshow/3610626.cms NEW DELHI: The unending extension of reservation benefits, envisaged to last only 10 years by the framers of the Constitution, and continuous expansion of the number of communities that could avail it has had an unusual fall out – many a general candidate forging caste certificates. The number of forged caste certificate cases reaching the SC made a worried Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam speak out openly about the problem in general rather than focus on the individual case – a Maharashtra general category candidate seeking scheduled caste status relying on a 1945 document signed by his grandfather. “The business of forging caste certificates has become rampant, especially in Maharashtra. People are resorting to litigation relying on documents of yesteryears even when their fathers had never claimed to have belonged to a community recognized as scheduled caste,” the Bench said on Friday. Appearing for petitioner Yashwant, counsel Shivaji Jadhav pleaded that his client’s grandfather had described himself as a Mahadeo Koli, a community included in the scheduled caste list, hence he should not be categorised under the general category.
18 Oct 2008, 0227 hrs IST, Dhananjay Mahapatra, TNN

SC seeks Orissa reply in nun rape case
NEW DELHI, Oct. 17: The Supreme Court today granted time to the Orissa government to file a counter-affidavit to the petition seeking a CBI investigation into the alleged rape of a nun in Kandhamal. The directions came about on a plea made by the senior counsel Mr KK Venugopal, on behalf of the Orissa government, that the state should be permitted to file the counter-affidavit. A two-judge bench of Chief Justice Mr KG Balakrishnan and Justice Mr P Sathasivam granted time till 21 October to the Orissa government to file a counter affidavit to the petition seeking the CBI probe into the alleged rape of a nun in Kandhamal district which was rocked by violence following the murder of Swami Laxmanananda Saraswati and four others on 23 August. Mr Venugopal also submitted before the apex court that the petitioner seeking the CBI probe should be directed to place on record some reliable and concrete evidence to substantiate his allegations. Archbishop of Cuttack Raphael Cheenath, who earlier filed a petition seeking directions to the authorities to provide adequate security to tribal Christians in Kandhamal district of the state, has alleged the involvement of the Bajrang Dal in the rape of the nun, who was also subjected to public humiliation as she was allegedly paraded naked in public.
Legal Correspondent

SC notice to TN on lifer’s remission
NEW DELHI, Oct. 17: The Supreme Court today issued notice to the Tamil Nadu government on a petition filed by PR Ravichandran, a convict serving life term in the Rajiv Gandhi assassination case, who is seeking his release from jail on the grounds that he has already served 14 years. A two-judge bench of Chief Justice K G Balakrishnan and Justice P Sathasivam issued the notice after hearing counsel for PR Ravichandran, who contended before the court that the Tamil Nadu government was not taking a decision on his release though a large number of other convicts serving life terms have been released on completion of their 14 years in jail. The counsel also contended that the petitioner’s case for release is not being considered because of reasons other than those related to the law ~ for instance due to ongoing tensions between the LTTE and the Union government, he alleged. Ravichandran’s death sentence, given by the trial court and confirmed by the Madras High Court, was commuted to life imprisonment in 1995 by the apex court. Rajiv Gandhi was killed by a woman human suicide bomber belonging to LTTE on 21 May 1991, at Sriperumbudur near Chennai.
Legal Correspondent

‘Neither SC nor PM, can direct House to enact uniform code’
http://timesofindia.indiatimes.com/India/Neither_SC_nor_PM_can_direct_House_to_enact_uniform_code/articleshow/3610532.cms NEW DELHI: Those who were hoping for judicial activism to goad the government into enacting a uniform civil code (UCC) would be disappointed by SC’s stand that it could not direct Parliament to pass such a law. In the last two decades, the SC may have stressed time and again the importance of enacting UCC as advised by the Constitution but on Friday, it refused to move beyond its stated stand. Between Shah Bano case judgment in 1985 and John Valamattom verdict in 2003, the SC had thrice stressed the need to enact UCC, saying it would help forge national integration and remove dissimilarities. Making the government’s inaction on this score a ground, a PIL filed by Pooja stated that the time had come for the SC to direct the Centre and the PM to initiate legislative steps in this regard. Appearing for the PIL petitioner, S P Anand said it was a settled principle of law that whenever the government failed to act on the desired line, the court should give a mandamus – a concrete direction under its constitutional powers. “Neither the SC nor the PM can do anything in this matter. We cannot direct Parliament to enact a law. Such a prayer is not justiciable,” said a Bench.
18 Oct 2008, 0108 hrs IST, TNN

HC quashes TN govt order
Chennai, Oct 17: Madras High Court today quashed a Tamil Nadu government order, refusing to renew the licences issued to video theatre owners in the state.
Allowing the petitions filed by two video theatre owners of Dharmapuri and Punnam districts, challenging the government order dated August 18, 1998, Justice K Chandru said when the legislature in its wisdom thought it fit to provide alternate form of entertainment through video theatres, it was not open to the executive to refuse renewal of licence.
“In as much as the petitioners are regular licence holders under the provision of Tamil Nadu Exhibition of Films on TV Screen through video cassette and cable TV network regularisation Act, 1984. Hence their right guaranteed under Article 19(1)(G) of the Constitution cannnot be taken away by arbitrary exercise of power by the state government,” the Judge said.
The petitioners had submitted that they were given licences to run video theatres under the provision of Tamil Nadu Exhibition of Films on TV Screen through video cassette and cable TV network regularisation Act, 1984.
But the government refused to renew their licences following a meeting of theatre owners, cinema producers and directors held on July 3, 1998 under the then Chief Minister. The meeting decided not to grant new licences and renew existing licences.
“Once the legislature makes a general enactment and frame rules, it is for the appropriate licencing authority to consider applications in accordance with rules and the government cannot stop them from renewing licences on a general policy basis,” the petitioners contended – Agencies
Published: Saturday, October 18, 2008

Petition on stray dogs: HC reserves judgement
Mumbai, October 17 : The Bombay High Court has reserved its judgement on the issue of rehabilitating stray dogs in Mumbai.
Petitioner, In Defence of Animals, in their written submissions had earlier said that the idea of ‘killing dogs’ advocated for controlling their population is barbaric, inhuman and unconstitutional. According to them, BMC has in the past adopted this strategy and failed.
“From 1939 to 1999, the corporation has put to sleep 25 lakh dogs and in spite of that they have failed,” the petition had said.
The NGO submits that through out the world countries which have opted for sterilization of dogs have been successful in controlling their population. Senior counsel Aspi Chinoy, who appeared for NGO Welfare of Stray Dogs (which is carrying out the sterilization process), submitted that the population of the dogs never went down but the rabies death had come down by one-third. He argued that it is not right to say that the city is at the mercy of rabid dogs.
Express News Service Posted: Oct 18, 2008 at 0345 hrs IST

DAILY LEGAL NEWS 17/16.10.2008

PIL seeks more security arrangements for people working at night
In the wake of the murder of television journalist Soumya Vishwanathan, a petitioner has approached the Delhi High Court seeking better security for people working late nights in the capital and adjoining areas.Sanjiv Kumar, advocate, has filed a petition in the High Court stating that due to lack of adequate security in the capital, Soumya had to lose her life. There are several other incidents in which people have lost their lives due to inadequate security arrangements.Mr Kumar, in his petition, said if Delhi Police does not gear up its security network, there will be more such incidents in future.Citing the recent bomb blasts in the Capital and other incidents, the petitioner said all this has happened due to the inefficiency of Delhi police.There are thousands of workers, who commute late at night and return home in the wee hours. The police should device some mechanism to ensure their safety round the clock, the petitioner said.The petition will come up for hearing next week. UNI

PIL for holding Lok Sabha, Assembly elections jointly
Aurangabad: The Aurangabad bench of Bombay High Court comprising Justice N V Dabholkar and Justice N D Deshpande issued directives to serve notices on election commissions of the Centre and State, chief election commissioner of the country and principal secretary (General Administration, Maharashtra) to hold ensuing Lok Sabha (LS) and Assembly elections jointly following a Public Interest Litigation (PIL) by a citizen.
According to the sources, a citizen Suhas Yelikar, had sent a memorandum to the Chief Election Commissioner of India (Delhi) for conducting LS and Assembly Elections jointly.
When he did not get any response, he filed a public interest litigation making State Election Commission, Central Election Commission, chief election commissioner and Principal Secretary (General Administration, Maharashtra).
In the petition, Suhas Yelikar stated that the LS elections will be held in April 2009 while Assembly elections are to be conducted in October-2009; this means there is 5 month and 13 days gap. “As per the section 15 (2) of Representation of People Act the chief election officer can conduct LS and Assembly elections jointly.
“Around Rs 300 crore may be saved if the elections are held jointly. Moreover, the additional work of government employees will be reduced. This money which are collected from people in the form of tax, can be used for the development works,” the petitioner said.
Yelikar said around 1500 farmers committed suicide in Maharashtra and the saved money can also be used for the rehabilitation of deceased farmers”’ families.
Anil Golegaonkar, the lawyer of the petitioner brought to the notices of the court that the LS and Assembly elections in Maharashtra, AP, Karnataka, Sikkim and Assam were held jointly in 1999 and this had saved Rs 1000 crore of the Government.The respondents will have to file reply till November 24.
Publication Date 17/10/2008 9:14:04 AM(IST)
(Mehboob Inamdar)
© 2008 mynews.in

Nano benefits Tatas at the cost of Gujarat: PIL
HC will hear the petitioner after Diwali vacation
AHMEDABAD: A Gandhinagar-based organisation, Rashtriya Kishan Dal, on Wednesday filed a public interest litigation (PIL) petition in the Gujarat high court against Tata Motors’ Nano project in Sanand. The division bench comprising chief justice KS Radhakrishnan and justice Akil Kureshi, however, asked the petitioner, H K Thaker, to file the petition in English. The petition was drafted in Gujarati. The matter will be taken up after Diwali vacation.
Thaker, who is president of the organisation, urged the court to cancel the MoU signed by the state government and Tata Motors for the Nano project. The organisation claims to espouse farmers’ cause. Citing figures, the petitioner claimed that the project would cause loss in crores to farmers and the people of the state. It also highlighted the ‘failure’ of Tata Group’s earlier effort to set up the Nano plant at Singur in West Bengal. The 64-year-old petitioner lambasted the state government for ‘misleading’ the people by claiming that the project would generate big revenue for the state. The petitioner presented some figures to buttress his point and also questioned some steps taken by the state government.
According to the petitioner, the state government has provided land to the Tatas by ‘committing irregularities’ in land transfer and putting pressure on Sanand farmers. The government had also failed to pay compensation to the original owners of the land, he alleged.
In his petition, Thaker has charged the government with misleading the farmers, denying them their due and converting their 1,555 acre property into government land, just to woo the Tatas.
The petitioner claimed that the Tata Motors had started road construction work at the site against the wishes of the farmers and without paying them compensation for 45 acres of land.
The organisation said the deal was not in the interest of the state or its people. Giving its projection, Rashtriya Kishan Dal said the farmers would have to bear a loss of Rs1,089.59 crore – Rs881.61 crore because of non-payment of compensation for 2,245 acres and Rs207.78 crore because of agricultural loss.
The petition also alleges that the state government had suffered revenue loss to the tune of Rs707.56 crore because of the project. It alleges that the government had doled out Rs707.56 crore to the Tatas against the prevalent norm for subsidy to big industrial houses. According to the PIL, the government has given Rs400 crore tax rebate to Tata Motors for the Nano project, and Rs231.45 crore rebate in jantri rates, besides Rs76.11 crore as subsidy.
The petitioner has also questioned the other sops given to Tata Motors such as uninterrupted power supply to the company at the cost of farmers. He also challenged the rate at which land was made available to Tata Motors, in contrast to the rates prevalent in Jamnagar, Kutch and other industrial hubs.
Thaker himself argued in the court. The bench asked him to file the petition in English. It is pertinent to note here that in the high court, a petitioner has to file any petition or document in English or get them translated into English if the original is in any regional language.
Nikunj Soni
Friday, October 17, 2008 02:11 IST

Man files PIL, seeks security for those on graveyard shift
NEW DELHI: Television journalist Soumya Viswanathan’s killing during the wee hours while returning home from office on September 30, has prompted a petitioner to approach the Delhi High Court seeking better security for people working late at night in the Capital and adjoining areas. Filing a PIL which is yet to be admitted, lawyer Sanjiv Kumar Singh argued that number of murder cases has risen in the city due to failure on part of Delhi Police and sought a direction to Centre and the Delhi government to ensure safety of those who work in night-shifts. “In case security is not tightened, especially for those who attend night duties in call centres, BPOs, multinational companies and TV channels, the death toll of innocent persons will increase…,” the PIL says which is likely to be listed for hearing next week. Citing various murder cases, including that of Viswanathan, the lawyer adds: “The number of crimes including brutal murders and bomb blasts are increasing by the day and our police department has not been able to control the situation.” The petitioner also sought a CBI inquiry into Soumya Viswanathan’s murder and has urged HC to give a direction to the government to compensate the family. Pointing to the recent bomb blasts in the city, Singh in his PIL has said: “Police department may be directed to take adequate steps to ensure security for the people.” Incidentally, this isn’t the first time, a PIL on security for women working late night has been filed. Last year a petition had sought directions from the court to prevent crimes by cab drivers against BPO employees. It cited National Commission of Women’s conclusion that the incidents of attacks on women had increased and many incidents were going unreported. Delhi Police had then contended before the court that they were considering suggestions including installation of satellite monitoring instruments in all cabs carrying employees, compilation of a comprehensive database of female employees, drivers and registration of the cabs with a panel comprising senior police officials.
17 Oct 2008, 0005 hrs IST, TNN

Need of self-introspection
“Is there a single day out of 365 in the year, when a family can sit together to watch television without an assault on their basic senses?” asked a Supreme Court bench while directing the Central government to bring regulation to curb vulgarity and violence on television channels. While hearing a Public Interest Litigation (PIL) filed by an NGO, the apex court hounded the Union Government for its dither approach in introducing the bill.
Although the bench agreed on the telecast of certain content, it proposed to censure programmes showing spate of violence considering its ill-impact on young Indians, as TV is now the most powerful instrument in the world to influence people’s mind. At the same time the bench also commented that though the court shouldn’t be the guardian of people on the kind of programme they should watch, it has to be addressed for the sake of our value based social structure.
Earlier this month, a nine-member News Broadcasting Standards Dispute Redressal Authority (NBSDRA) headed by former chief justice J S Verma, was formed by the News Broadcaster Association (NBA) to address issues of content violation by broadcaster and to take appropriate action against them.
Today, in the advent of technology such as the cable television, Direct to Home (DTH) service and growing private networks, people have their own choices from a plethora of programmes to watch for. But in the face of intense competition among television channels, the issue further worsens with contents targeting only a section of people or sensationalising any event, simply to gain more media rating points. Part of TV industry is adopting all possible strategy to pull viewers thereby creating needless mental agony and damage to the social system.
At present time whether it is any 24X7 news channel or daily soap opera, are all full of fake and trash materials that is detrimental not only for kids but even older persons. Many characters in television serials presenting negative shades full of immoral and filthiness certainly leave a bad taste to any typical Indian. The depiction of extramarital relationship or the sensationalization of any murder or suicide case by any news channel is no way means to serve the society.
With technological innovation and the advancement of other electronic media, those are now the voice of masses, there needs to be a strong self-introspection if not regulation in respect to freedom of speech and expression. Again, though sensationalism can’t be termed in general viewing the entire electronic media as there is a lot of serious journalism taking place, still we as individual or organisation need to be self-censored under moral and professional ethics.
New Delhi, Thu, 16 Oct 2008 NI Wire

Boycott call hits work in high court
CHENNAI: Regular work in the Madras high court was thrown out of gear on Thursday, pursuant to a boycott call issued by the Madras High Court Advocates Association (MHAA). Most of the listed cases were simply adjourned to some other dates as counsel for the litigants did not appear in courts. Some courts, however, continued to hear cases during the entire office hours of the court. “First argue the matter in court and save Tamils here, and then talk about the welfare of Tamils in Sri Lanka,” one judge told an advocate who sought an adjournment of his case. Later in the day, advocates led by MHAA president R C Paul Kanagaraj and secretaries M Velmurugan and G Mohana Krishnan took out a campus rally in the court. After a brief dharna in front of the court, a large number of advocates left for the Raj Bhavan in two buses to submit a memorandum to the governor. In the memorandum, submitted at the Raj Bhavan, association president Paul Kanagaraj said India must at once stop all financial and material help to the Sri Lankan government which had unleashed a genocidal attack against the minority Tamils in the island nation. It wanted the government of India to despatch relief materials to the aid of Tamils who were languishing without food and medicine. The memorandum also water stern action against national security advisor M K Narayanan and foreign secretary Shivsankar Menon for having “indulged in anti-Tamil Eelam activities, and given irresponsible statements which wounded the sentiments of the entire Tamil population in the world.” The Tamil Nadu Advocates Association president S Prabakaran too has announced a court boycott on Friday and called for the immediate intervention of the United Nations Organisation to stop atrocities against the Tamils in Sri Lanka. He wanted India to send relief materials to the war-torn northern regions of the island, and said the country must personally distribute it to the affected Tamil families. The TNAA is holding a fast programme in Madurai on Friday. timeschennai@timesgroup.com
17 Oct 2008, 0544 hrs IST, TNN

High Court orders probe against chhagan Bhujbal
A day after he celebrated his 61th birthday, PWD minister and former home minister Chhagan Bhujbal received a jolt from the High court on Thursday. The HC, acting on a petition filed by Ketan Tirodkar, a former scribe, directed an inquiry against Bhujbal and former commissioner of police R S Sharma for allegedly interfering with the investigation in the Sara Sahara case. A division bench of the HC directed the director general of police (DGP) to inquire into the statement made by former assistant commissioner of police Shankar Kamble during the trial in the Sara Sahara case, that there was pressure from Mantralaya for not arresting a certain municipal officer. The HC has asked the DGP to inquire into the entire issue and take necessary action if required, and submit the report.
Posted On Friday, October 17, 2008

Kerala HC prohibits overtaking by buses
Kochi, Friday 17 Oct 2008: Kerala High court yesterday prohibited overtaking by the stage carriages, especially on city roads. Concerned with the increasing road accidents due to overspeeding of buses.
The state Government should consider reduction of road tax, the court observed.
Competition is the main reason for accidents and once overtaking is prohibited, it will reduce unhealthy competition which often leads to accidents, a Division Bench, comprising justices C N Ramachadnran Nair and Harun-Ul Rashid,held.
The court also said that door shutters should be installed to prevent passengers falling off from the buses.
The bench also warned that if the speed limit is exceeded, permit of the bus should be suspended and for repeated offence, the same should be cancelled.
The observations were made in an appeal filed by a deputy director of Local fund Audit, who lost a leg when a private bus ran over her.
The bench directed the chief secretary to discuss the matter with the police and state Transport authorities and finance department on tax reduction and file a statement in this regard within 3 weeks suggesting concrete steps.

State will move SC if Centre refuses funds under ‘APDRP’
BHUBANESWAR, Oct 16: The state government will move the Supreme Court if the Centre refuses to provide funds under the Accelerated Power Development and Reforms Programme (APDRP) on the ground that private power distribution companies were not entitled for such assistance. Talking to reporters here energy minister Mr Suryanarayan Patro said: “The revised terms and conditions of APDRP as communicated to states mentions that the scheme will not be applicable for private distribution companies.” “I have written a letter to Union Power Minister Mr Sushil Kumar Sindhe protesting against such revised terms and conditions… if the Centre does not reconsider its decision, we will move the apex court,” said Mr Patro. Mr Patro pointed out that it was only at the instance of the central government that Orissa had pioneered privatisation of distribution net work. It is pertinent to note that although the distribution network in the state has been privatised, the state government continues to hold 49 per cent share through the state run Grid Corporation. Therefore, the state does have control over the private distribution companies, he added. Mr Patro said that Orissa has already lost substantial incentive under the APDRP programme during the 10th Plan period and the revised terms for the 11th Plan will further deprive the state of funds. But Mr Patro’s contentions seem to be half-baked if not wholly incorrect, said those who are associated with power sector reforms since the nineties. “The state energy minister does not understand the sector at all,” said Mr Arun Dey NCP MLA who was the first to debate power sector reforms in the state Assembly way back in 1992. Mr Dey pointed out that Orissa had failed to utilise Central funds in the sector under what was earlier known as the Minimum Needs Programme ( MNP). The performance was abysmal as reflected in the audit reports. “Now Mr Patro wants to raise a political stunt by accusing the Centre on the APDRP issue without even understanding the basics,” charged Mr Dey. n sns

SC dismisses Ortel’s plea on cable monopoly issue
New Delhi (PTI): The Supreme Court has dismissed the petition of cable operator Ortel Communications Ltd challenging the Orissa High Court’s judgement that ruled against the state government’s policy which allowed only one cable on an electric pole.
A bench headed by Justice Arijit Pasayat refused to interfere with the high court order that held against the state government’s ‘one pole one cable’ policy.
Ortel is a major private player in Orissa which provides cable TV, broadband internet and telephony services. The apex court’s decision is likely to end Ortel’s over seven years virtual monopoly over distributing cable network by using electric poles.
The high court in May this year had directed the state government to formulate a policy which would ensure equal opportunity to everyone for availing the electric pole facility.
While stating that the first come first serve basis was recognised norm and procedure to award such contracts, Ortel in its appeal before the apex court said that it was the first company in setting up cable operations in the state and had streamlined the business after obtaining all permissions way back in 1995.
The high court had passed the judgement on a petition filed by rival multi-system operator (MSO) Variety Entertainment (Pvt) Ltd, a joint venture between ETV and Zee TV, which said that the policy to allow one operator to use an electric pole for its cable distribution network amounted to creating a monopoly for providing network connection to consumers.
Friday, October 17, 2008

HC: Amenities must before allotment
LUCKNOW: In an important order, the high court has ordered housing development agencies, floating various schemes in cities, to ensure that amenities/infrastructural facilities such as roads, water supply, sewage disposal, drainage, electricity supply and others are available in the colony before undertaking the allotment of plots or houses. The authorities may charge money from the allottees but only after they have provided the basic civic amenities, the court said. This order would come as a huge relief to people living in colonies, which are still awaiting basic amenities like electricity, water, roads and so on. Residents of such colonies may now force their developers for immediate basic facilities in the colony.
17 Oct 2008, 0409 hrs IST, TNN

HC rules jail term for alimony defaulters
AHMEDABAD: Bad news for ex-husbands trying to evade paying alimony despite court order. A full bench of Gujarat High Court, in an important judgment, ruled that for default of paying monthly maintenance amount, the ex-husband can be jailed for up to one month. This means, for non-payment for 12 months, he can get maximum imprisonment for an equal number of days or for a term until payment, whichever is sooner. Rama Muru Pariya from Khambhalia in Jamnagar district was jailed for 980 days by the lower court for not paying Rs 35,700 for a period of 49 months to his ex-wife and children. From jail, he requested high court for reduction in punishment, where the magistrate had awarded him 15 days jail term for each month of default. While deciding on his application, a single-judge bench of high court came across contradictory interpretations of a Supreme Court order. Hence, Justice HN Devani requested a larger bench to decide whether maximum of one month punishment can be awarded for repeated default or for each month’s default. The bench, comprising Justices MS Shah, DH Waghela and Akil Kureshi concluded, “It’s open for the magistrate to award sentence up to maximum of one month for each month of default committed by the person as per Section 125(3) of the Criminal Procedure Code (CrPC).” It said the magistrate can entertain separate applications for each month or common application for several months of default and pass appropriate order. However, as per law, the aggrieved ex-wife has to file complaint in this regard within one year of default. In arriving at this decision, the bench has referred to numerous judgments by various high courts, including Rangoon High Court and Lahore High Court, before Partition. It also observed that in Shahada Khatoon’s case, which was a binding one, Supreme Court did not lay down the ratio between default and punishment.
17 Oct 2008, 0257 hrs IST, Saeed Khan, TNN

HC orders DNA test of foetus in Bhandara rape
NAGPUR: The Nagpur bench of the Bombay high court on Thursday directed a 65-year-old man, accused of raping a 20-year-old girl, to bear expenses for a DNA examination of an unborn child of the victim. A single-judge bench of justice R C Chavan directed the government to arrest accused Bhiva Nathu Dharamsare if he fails to voluntarily turn up for a DNA test before October 19. The court also directed the government to conduct a similar test on the accused to check the veracity of his claims of being ‘innocent’. The court however granted anticipatory bail to the accused, who is a former village sarpanch and an ayurvedic doctor in Lakhni, Bhandara district. His similar bail plea was earlier rejected by the Bhandara sessions court. However, the victim girl, who was eights months pregnant, was present in the court along with her father to file a petition against accused today. The victim, her parents, brother and sister, used to work in farms of accused. They have the support of some social organisations along with advocate Shashikant Borkar, for seeking justice. Speaking to TOI, the girl claimed that Dharamsare was an influential man of the village, who used his political clout to suppress poor villagers. “Dharamsare was infamous for sexually exploiting young village girls, but none dared to stand against him. Recently, one of Dharmasare’s minor victims, committed suicide when she too became pregnant and was subsequently ostracized by the villagers,” the victim alleged. Dharamsare had allegedly raped the girl finding her alone in the farm, she alleged. Dharamsare made false promises to the girl and repeatedly raped her till she became pregnant. He also threatened the victim with dire consequences if she revealed anything either to her parents or the villagers. 17 Oct 2008, 0246 hrs IST, Vaibhav Ganjapure, TNN

HC wants to know govt’s locus standi in tussle between RIL and RNRL
MUMBAI: The Bombay High Court on Thursday questioned the government about its locus standi in the legal tussle between Reliance Industries and Reliance Natural Resources over supply of gas from the former’s Krishna Godavari basin to the latter’s proposed power plant at Dadri in Uttar Pradesh. This came after the government sought to be a party to the case. The government counsel will present his case on Friday. Earlier, Mr Jethmalani said that the government has not intervened in the legal fight between RIL and NTPC, a state-owned enterprise, but it sought to intervene in this case. Mr Jethmalani argued that the government has no right to intervene in the contract between RIL and RNRL. The government counsel TS Doabia said that the government has an interest in the case as it had signed a production-sharing contract with RIL. HC has restrained RIL from entering into contract with third parties for sale of gas. But Justice Patel on Thursday pointed out that the stay did not affect the production-sharing contract between the government and RIL. The court has asked if RNRL could sell gas to NTPC at the same terms and conditions decided initially between RIL and NTPC before the demerger of the RIL empire. This was in response to Mr Jethmalani’s submission to the court, seeking order so that RNRL could get 40 million metric standard cubic meters per day (mmscmd) of gas from RIL. If it happens, Mr Jethmalani said, RNRL would provide 12 mmscmd of gas to NTPC as per the RIL-NTPC contract. The contract envisaged that the sale would take place at $2.34 per metric million British thermal unit (mmbtu). Mr Jethmalani also argued that RNRL should be allowed to sell gas to third parties till its own power plant is set up. This is a deviation from the RIL-RNRL agreement which maintains that the latter is entitled to draw gas for its own consumption.
17 Oct, 2008, 0213 hrs IST, ET Bureau

No cognisable offence against Raj, cops tell HC
MUMBAI: In a climbdown, the Mumbai police on Thursday gave a clean chit to Maharashtra Navnirman Sena chief Raj Thackeray for the violent agitation that his party carried out over the issue of Marathi signboards for shops. Interestingly, the affidavit was filed by K L Prasad, joint commissioner of police (law and order), who had got into a war of words with Raj. Prasad, in his affidavit, said that Raj’s letters to shopkeepers to put up prominent Marathi signboards on their shops was forwarded to the law and judiciary department. “After detailed deliberations, the department has come to the conclusion that no cognisable offence is made out (against Raj),” said the affidavit, which was submitted to the division bench of Chief Justice Swatanter Kumar and Justice S A Bobde. The affidavit further stated that the the police had gone over Raj’s role in the violent incidents. “Officers investigating the offences registered against MNS activists were instructed to examine the role of Raj Thackeray. They have reported so far that there is no evidence pointing to the direct involvement of Raj,” added the affidavit. The police informed the court that following the MNS attacks on shopkeepers, it had arrested around 1,504 party workers. Following an application filed by the Federation of Retail Traders Welfare Association against the alleged MNS threats, the high court had restrained Raj from making provocative speeches or issuing intimidating diktats to shopkeepers. The court also directed the MNS chief and his followers not to damage public property or launch violent protests. Meanwhile, Nitin Sardesai, secretary of MNS, in his affidavit, denied that his party or its chief had made any provocative statements or threatened shopkeepers. Sardesai accused the shopkeepers of making “false and imaginary allegations”. He further said. “The letter (signed by Raj) requests the traders and makes them aware of the statutory requirement of putting up sign boards in Marathi language.”
17 Oct 2008, 0006 hrs IST, TNN

Only a court can grant divorce, says HC
MUMBAI: A division bench of the Bombay high court recently dealt with a unique case where an educated couple sought to dissolve their marriage through a mutual agreement entered into by them. Jaishree Gala (31), an architect and Suresh Gala, a chemical engineer, got married on February 2, 2006 but were separated by the second week of June, the same year. They entered into an agreement which said that they had “dissolved their marriage through mutual consent”. However, to satisfy the demands of statutory law, Jaishree and Suresh approached a family court in May 2007 to obtain a divorce decree. They presented a copy of the agreement they had already entered into to dissolve their marriage, before the judge. The family court judge looked at the agreement and said that as the couple had already dissolved their marriage themselves, the same marriage could not be said to be in existence at the time they filed a divorce plea in court. He held in November 2007 that the divorce petition was not maintainable as the marriage “did not subsist”. To settle the issue, the Galas then approached the high court, which had to consider whether their marriage had ended with the execution of a mutual agreement. The couple’s advocates said that both Suresh and Jaishree were “educated and had realised that it was not possible for them to stay together”. After going through various case laws, justices P B Majmudar and R P Sondurbaldota said under the law, “spouses cannot dissolve a marriage on their own by entering into any sort of agreement.” They said that under the Hindu Marriage Act, a marriage can only be dissolved by getting a divorce decree from a court of law. The high court held that the agreement between Suresh and Jaishree to dissolve their marriage was “nothing but a mere piece of paper which had no evidentiary value at all”. Their marriage would be in existence until it was dissolved by a competent court. The judges said that under different circumstances, they would have sent the matter back to family court but on interviewing Jaishree and Suresh they realised that it was not possible “to save the marriage as they have hardly stayed together for a few months,” and had been separated for a considerable period of time. The high court itself dissolved their marriage and passed a divorce decree.
17 Oct 2008, 0028 hrs IST, Kartikeya , TNN

Gays are minority group in the country: HC
New Delhi: The Delhi High Court has taken a strong exception to the Centre’s contention that the court would divide the country if it recognises homosexuals as a minority group.
A Bench headed by Chief Justice A P Shah said that the government is virtually accusing the court of dividing the country which cannot be part of an argument.
“These are not arguments but comments on us. You are saying that we are dividing the nation by saying that they belong to minority group and then you are also saying that we are encouraging such practises,” the Bench said.
The Court’s remarks came when additional solicitor general P P Malhotra contended that if gays were considered as minority in the country, then many such small groups having peculiar characteristics would claim to belong to minority group which would further divide the country.
“Is it a false statement to say that people suffering from leprosy or any other dreaded diseases do not belong to a minority group. If you are not prepared to see it, then we cannot help it. Sexual minority means a group of people having different sexual preferences. Are we dividing the nation by calling them minority,” the Court observed.
The Bench referred to the affidavit filed by the NACO on behalf of Health Ministry which admitted that the gay community is a minority community being harassed for their different sexual preferences.
“Is the recognition of Men Having Sex with Men by the Health Ministry a reality or fiction? If such group exists, then why cannot they be put in a group on the basis of their characteristics,” the Court said.
Thursday, 16 October , 2008, 19:13

HC wants to know why govt is concerned with RIL’s appeal in gas case
MUMBAI: The Bombay High Court on Thursday asked the central government why it wanted to intervene in the appeal filed by Reliance Industries Ltd in its case against Reliance Natural Resources Ltd over gas supply agreement.
“How is the government affected by grounds on which RIL has filed appeal against single judge’s order?” division bench of Justices J N Patel and K K Tated asked government’s lawyer T S Doabia.
The main issue in the case is terms of Gas Supply Master Agreement (GSMA) whereby Mukesh Ambani-led RIL is to supply natural gas from its Krishna Godavari reserves to Anil Ambani’s RNRL. Both parties have filed appeals before division bench, not satisfie d with single judge’s verdict last year.
Government is seeking to intervene in the matter. But Justice Patel today wondered why government did not object when High Court approved the scheme of Reliance demerger. The disputed GSMA was framed as a part of the Reliance demerger scheme, judge noted . The High Court has currently restrained RIL from entering into contract with third parties for sale of gas. But Justice Patel today pointed out that stay did not affect production- sharing contract (PSC) between government and RIL.
The court adjourned the hearing till tomorrow, saying that Doabia will have to satisfy the court as to why government was a necessary party, and how RIL’s appeal prejudices its rights. Earlier, RNRL lawyer Ram Jethmalani said that government has not inte rvened in the case between National Thermal Power Corporation – its own company – and RIL over gas supply agreement, but it sought to intervene in this case. – PTI

HC chief justice survives 7-car pileup
AHMEDABAD: It was 10 am and the usually busy Sola overbridge was blocked! It was a pileup. Seven cars had rammed each other. Caught in the pileup was Chief Justice of Gujarat High Court, KS Radhakrishnan. Fortunately, except for two constables in the CJ’s pilot car no one was grievously injured in the mishap that threw traffic out of gear. The car which led the queue of vehicles up the Sola overbridge suddenly braked, giving no time to the pilot car of chief justice. This sparked a series of collisions. Right behind the pilot car was the CJ’s car which dashed the pilot car as well. The escort car and three other cars behind it too rammed each other. Senior officials from Gujarat High Court as well as Sola police station officials rushed to the spot and the chief justice was immediately shifted to another car. Chief justice was headed for the High Court from his residence at Judges Bungalow area. Accident took place when he had just reached the Sola overbridge, heading towards Gota. “We do not know exactly what caused the first car to brake suddenly. Preliminary investigations revealed that another car had overtaken the first car in great speed. This caused the driver to apply brakes, which in turn caused a chain reaction,” said KG Gohil, inspector of Sola police station. “Since there were no serious injuries no body could be held responsible. Thus we have made a police station diary entry, no complaint has been filed,” added Gohil. The mishap caused much embarrassment to the city traffic cops. “Usually traffic policemen are present in large numbers on this stretch. The accident happened because cops, instead of ensuring smooth flow of traffic were more interested in fining two-wheeler riders and over-loaded chhakda drivers,” said Amit Patel, living in Satellite area who commutes by this route daily.
16 Oct 2008, 0443 hrs IST, TNN

Retire lazy, corrupt judges, CJI tells HCs
NEW DELHI: After plugging loopholes in the selection process of judges to the higher judiciary to block entry of ‘black sheep’, Chief Justice of India K G Balakrishnan has dropped a bombshell by rolling out a mechanism to weed out corrupt, lazy and ineffective lower court judges. The underlying message in the CJI’s October 14 letter to all Chief Justices of HCs is loud and clear — say goodbye to “indolent, infirm and those with doubtful reputation and utility” by compulsorily retiring them even if they have put in more than 30 years of service. The number of years one has put in was not a consideration to take a lenient view against those showing deviant behaviour, the CJI said and asked HC chief justices to evaluate the performance of judges in the lower courts once they reached 50 years. The scanner will continue to remain focussed on them till they retire at the age of 60. At any point of time after attaining 50, a judicial officer found unsuitable should be eased out by prematurely retiring him, the CJI said and assured the HCs that the ousted judges would receive no sympathetic treatment from the courts as premature retirement cast no stigma on the affected person. “If implemented in right earnest, such provision will keep deviant behaviour in check, besides getting rid of those who are found to be indolent, ineffective or with doubtful integrity,” CJI Balakrishnan said.
16 Oct 2008, 0944 hrs IST, TNN

CJI stresses stringent audit of Mid day meal scheme http://www.indlawnews.com/Newsdisplay.aspx?a9086b68-813b-464c-8dd5-100431aae28d
‘Stringent auditing’ of children’s mid-day meal scheme was underscored by India’s Chief Justice K G Balakrishnan.‘The scheme as a whole appears to be delivering favourable results,’ the Chief Justice of India remarked, addressing the 24th Conference of Accountant Generals.But, he stressed that ‘there is a need to ensure stringent auditing at the grassroots level to ensure that vital public resources reach the intended beneficiaries of the same.’ The conference as well as a new office building of the Comptroller and Auditor General of India were inaugurated by President Pratibha Patil who underscored the vale of effective audit.Patil said, ‘one of the biggest challenges is the leakages in delivery systems. These need to be plugged. Sometimes, instead of real achievement on ground, there are paper achievements.‘Such tendencies can be curbed by an effective audit and monitoring system,’ she said, bringing to mind criticism that the country’s ‘supreme’ audit system is not as effective as it should be.For instance, while the CAG’s reports object to government authorities spending errors– non-spending, under-spending, overspending and misspending– it may be decades before it finds out that steps it recommended were not acted upon.Dwelling on CAG auditors role as a watchdog, Justice Balakrishnan said growing non-governmental or public-private involvement in such key sectors as education, health and infrastructure has ‘important implications for auditing agencies.’ The first implication, he said, ‘is that of the need for more rigorous auditing in circumstances where public money is entrusted to private parties.’ ‘While the growth of the spirit of public-service on part of private players is laudable, there is always a concomitant need to check pilferage or inefficient use of funds.‘For example, the mid-day meal scheme for children enrolled in government-run primary schools has extensively relied on the services of private contractors.‘While the scheme as a whole appears to be delivering favourable results, there is a need to ensure stringent auditing at the grassroots level to ensure that vital public resources reach the intended beneficiaries of the same.’ ‘Furthermore, the importance of auditing cannot be understated for the numerous financial and infrastructural ventures that are being undertaken under the Public-Private Partnership (PPP) model.‘The second major implication is that of involving individual citizens and voluntary sector organisations themselves in the auditing process.He suggested that the CAG office may take from village level social audits of spending on public works in the wake of such enactments as the Right to Information or the Rural Employment Guarantee Scheme.For instance, private groups have used the laws to compel the disclosure of ‘muster-rolls’ by local government officials and ensure workers minimum wage payment under the scheme.‘The Office of the CAG can expand its’ involvement in these localised initiatives,’ Justice Balakrishnan pointed out.The Chief Justice also touched on what he called conceptual similarities between the function of auditing and the judicial process and emphasised the independence of both.‘The independence of these institutions as well as the vigilance of ordinary citizens are the pre-conditions for ensuring that the functions of the state reflect efficiency as well as respect for democracy.’ He asked the CAG office to take steps ‘to ensure that ordinary citizens can easily access its’ annual reports.’ UNI

Ministry unsure if Kolkata judge should be impeached
New Delhi, October 16 : Despite recommendation by the Chief Justice of India (CJI) to remove Calcutta High Court judge Soumitra Sen from service, the Union Ministry of Law and Justice is not sure if the case made out against Sen will stand scrutiny. The ministry has decided to seek legal opinion on whether there is adequate ground to form the basis of initiating impeachment proceedings against the judge, who has not been allotted any judicial work for the last one year.
Initially, Law Minister Hans Raj Bhardwaj had categorically said that since the judge’s removal had been sought by the CJI himself, there was little that the Government could do except initiate impeachment proceedings. However, this line of thinking seems to have changed after it was pointed out that there was nothing in the case to suggest any act of commission or omission by Sen as a High Court judge.
“The impeachment process is almost like a court process. We will have to establish that he committed misconduct after his appointment as a judge. However, in this case, Justice Sen’s alleged misconduct relates to his working as a lawyer. This is why we need to be certain that the action, because of which his removal from office has been sought, will stand scrutiny before Parliament,” said a senior officer of the ministry.
Under the Judges Inquiry Act 1968, Parliament through the Speaker of the Lok Sabha or the Chairman of Rajya Sabha can set up a committee of three persons to inquire into the conduct of a judge. The report of this committee is binding on Parliament. “If this committee finds a judge innocent, then Parliament cannot proceed further,” pointed out the officer.
On his part, despite suggestion by the CJI, Sen has refused to put in his papers. His lawyer has asserted that the judge would defend himself before Parliament if need be.
As first reported by The Indian Express, CJI K G Balakrishnan sometime back wrote to the Prime Minister seeking Sen’s removal as he had been found to have indulged in financial misconduct prior to his elevation as High Court judge in December, 2003. Sen, working as court-appointed receiver in a lawsuit between Steel
Authority of India Ltd and Shipping Corporation of India, had deposited Rs 32 lakh received by him on behalf of SAIL in his personal account.
Maneesh Chhibber Posted: Oct 17, 2008 at 2330 hrs IST

Pimp’s arrest under Goondas Act upheld
CHENNAI: The Madras High Court has upheld the proceedings of the City Police Commissioner detaining a 43-year-old man, alleged to be a pimp, under the Goondas Act.
Dismissing a habeas corpus writ petition from Jyothi challenging her husband Mohan’s detention on technical grounds, a division bench comprising Justice Elipe Dharma Rao and Justice S Tamilvanan pointed out that very serious allegations of inducing and forcing innocent women to the flesh trade had been made against the detainee.
MANUAL CLEANING OF MANHOLES: The Madras High Court has reiterated its earlier order stating that no person should be allowed to get inside the drains for clearing blocks in manholes or drainages.
Any violation of this direction would be viewed very seriously, the First Bench comprising Chief Justice A K Ganguly and Justice F M Ibrahim Kalifulla warned while passing further interim orders on a public interest writ petition from A Narayanan of Virugambakkam seeking to ban the practice of manual clearing and to adequately rehabilitate the sanitary workers, on Wednesday.
The bench also directed the Government Pleader to file an affidavit within two weeks, giving details about the death of sanitary workers who died while entering into the manholes and how many were paid compensation.
STATE APEX CO-OP BANK TOLD TO PAY PENSION: The Madras High Court has directed the Tamil Nadu State Apex Co-operative Bank Limited to pay 20 per cent of the last drawn salary as pension to its retired employees from October, 2008.
Express News Service
First Published : 16 Oct 2008 03:22:00 AM IST
Last Updated : 16 Oct 2008 10:52:11 AM IST

KOCHI: The Kerala High Court on Wednesday dismissed a writ petition filed by the officebearers of the Malankara Orthodox Syrian Church praying to direct the Central and state governments to ensure that the Patriarch of Antioch Moron Mar Ignatius Zaka I did not indulge in religious activities in violation of the Foreigners Act, 1946 during his proposed Kerala visit from October 17 to 23.
Dismissing the petition filed by Fr Johns Abraham Konat, priest trustee of the Malankara Orthodox Syrian Church, and George Joseph, secretary, Malankara Association, Justice P N Ravindran said that the grievance highlighted by the petitioners is imaginary and so mere surmise and conjuncture.
The petitioners had not produced any material to show that the Patriarch would indulge in religious activities during his Kerala visit.
The Patriarch is a priest and the spiritual head of the Syrian Orthodox Church, though a faction represented by the petitioners do not recognise him. He has right to participate in religious functions. He has also right to worship. The only restriction is to his indulgence in religious activities/ canvassing the members of other communities to convert them to Christianity, the court said.
Express News Service
First Published : 16 Oct 2008 05:24:00 AM IST
Last Updated : 16 Oct 2008 09:32:36 AM IST

Allahabad HC: Awards of Lok adalats can be challenged
The Allahabad High Court has ruled that though the awards of the Lok Adalats are final, the remedy to recall the order or award passed by it is not barred under the law, if the same was obtained by fraud or misrepresentation. The court ruled that awards made by Lok Adalats within the territorial limits of the High Court are subject to judicial review under article 226/227 of the Constitution of India. Otherwise the aggrieved person would be left remediless.Passing the judgment, the court has held that power to recall its order, which was obtained by fraud or misrepresentation, is inherent in every court, tribunal or statutory functionary.Similarly, the awards made by Lok Adalats established under the act cannot be held to be immune from judicial review, as this court under article 227 of the Constitution has ample power of superintendence over the decisions of all the courts or tribunal throughout its territories.Justice Sabhajeet Yadav, passed this judgment allowing the writ petition filed by Dr Shashi Prateek. The petitioner had challenged the order passed by civil judge(senior division) Mjuzaffar Nagar, on September 3, 2008 whereby he had rejected the application of the petitioner recalling of award dated April 30, 2006, which was allegedly obtained by the respondent by playing fraud with the Court.An objection was raised in the High Court about the maintainability of the writ petition on the ground that three judges bench of the Supreme Court, in the case of P T Thomas, had held that the order passed by Lok Adalats, cannot be called in question either in appeal or revision or even under article 226 of the Constitution of India. The court allowed the writ petition on the said grounds and set aside the impugned order passed by Lok Adalats, Muzaffar Nagar on September 3, 2008, directing to decide the recall application afresh on merit, expeditiously within a period of two months. UNI

HC reserves judgement on ‘illegal’ constructions at Boulevard
Srinagar, Oct 15: The High Court on Wednesday reserved its judgement in the case of controversial constructions on Boulevard Road. The matter had been referred to the third judge after the division bench differed on the demolition of the structures raised on the road over the past few decades.Justice Hakim Imtiyaz Hussain after hearing the hoteliers, the state attorney general and a battery of lawyers representing the aggrieved parties besides the amicus curie, reserved the judgement.The case (a Public Interest Litigation) titled Syed Tahir Geelani versus State had been consigned to the third judge, Hussain after a double bench comprising Justice B A Khan and Justice B A Kirmani in 2007 gave a conflicting judgement on the structures raised on the road over the years.Justice B A Khan had held that the constructions raised within 120 metres from the centre of the road should be demolished for violating the Development Act preceding the 1971 city Master Plan.Justice Kirmani while admitting that the constructions were against the Development Act said people cannot be punished for the wrong actions of the government which had modified the Act and paved way for further constructions. Consequently the case was referred to the third judge for final decision. The Development Act had laid down that no constructions be allowed within a periphery of 120 meters from the centre of the road. However, according to official sources the government in 1978 modified the Act and stated that the constructions can be moved up within 90 metres from the fringe/ parapet of the lake. The amendment was done with the purpose of accommodating a few hoteliers and influential groups, the sources said. The sources added that the adjustment gave rise to a construction boom in the area with every formation out letting its effluents directly in to the lake. It acted a death Knell for the lake, they added.Some conservationists brought the matter to the notice of the Court in 2002. The then Chief justice Patel ordered that no constructions be carried out within a border of 200 metres from the centre of the road. The order is still in enforced operation. The aggrieved parties then moved the court, and the case was entrusted to the double bench.
Rashid Paul

Aarushi case: UP cops justify Talwar arrest
Uttar Pradesh Police tells Supreme Court that Dr Rajesh Talwar was arrested only after taking into account the evidence against him in the Aarushi murder case.The UP Police has filed its reply in the Supreme Court in connection with the PIL which accused UP Police of tarnishing the image of Dr Talwar. The PIL had also sought the court’s intervention to prevent the media from tarnishing the image of Dr Talwar. In its affidavit filed before the SC on Thursday, the UP police says —
· there was no intention to ruin the reputation of Dr Talwar;
· he was arrested after perusing the case diaries. The Police says investigation was conducted as per the Criminal Procedure Code. Aarushi was murdered on May 16, 2008. Talwar was arrested on May 23, 2008. When the CBI took over the case, he was released on bail. A Vaidyanathan
Thursday, October 16, 2008, (New Delhi)

Conservancy workers need safety gear: HC
CHENNAI: The Madras high court has reiterated its ban on employing men to clean sewer lines manually without any protective gear, and has asked the government to give details of manhole deaths that had occurred in the past. Passing further orders on a public interest writ petition on Wednesday, the first bench comprising Chief Justice A K Ganguly and Justice F M Ibrahim Kalifulla said the court was “very much disturbed ” that even after a specific judicial order the practice was still prevalent in Chennai. Referring to media reports, the judges said a similar incident had taken place even after the October 13 order of the court, and that one person had died and two others were injured in the incident. They then gave the government three weeks’ time to give details on how many manhole deaths had occurred in the past and in how many cases compensation was paid to the affected families. The affidavit shall also disclose as to what measures the government intends to take for the rehabilitation of sanitation workers who would lose jobs to mechanical devices. It also asked A Narayanan of Virugambakkam, who had filed the PIL, to compile the list of victims and the compensation-related details in three weeks. “In the mean time, this court reiterates its previous direction that for the purpose of clearing the blocks in the sewerage and drainage lines, no human being should be allowed to get inside the drainage or sewerage lines. If any drain is choked, it is the responsibility of the authorities to get it cleared by employing mechanical devices,” the judges said.
16 Oct 2008, 0701 hrs IST, TNN

PIL seeks quashing of CDP 2015
BANGALORE: A petition has been filed in the High Court of Karnataka seeking the scrapping of Bangalore city’s Comprehensive Development Plan (CDP) 2015.
After hearing the public interest petition filed by C J Singh, a divisional bench headed by Chief Justice P D Dinakaran ordered that the petition be clubbed with another similar case pending before the court.
The petitioner alleged that the CDP has identified as a hi-tech zone a plot of land in Pattandur Agrahara which is actually a lake spread over 12 acres and 39 guntas of land.
The lake has been encroached by private individuals and the tank bed now occupies only about 800 square meters of land. An ancient temple stands on this tank bed. Even this plot is now facing the threat of encroachment, the petitioner said.
The petitioner demanded that the new CDP be scrapped and action be initiated against the land-grabbers.
DNA Correspondent
Thursday, October 16, 2008 13:24 IST

Cabinet to decide today on law
New Delhi, October 15 With sharp differences continuing to persist between the Union ministries of Home Affair (MHA) and Health on the issue of repealing Section 377 of the Indian Penal Code, which bans sexual relations among people of the same gender, the Union Cabinet is expected to take a call on the subject on Thursday. Sources in the MHA said that the ministry has decided to let the Cabinet decide on the issue.
The Delhi High Court is already hearing a PIL challenging the legality of Section 377, with the petitioner asserting that Section 377 was being used to harass homosexuals.
“It was decided to place the issue before the Cabinet so that differences among various ministries can be ironed out. As of now, except for Health Minister Anbumani Ramadoss and, to some extent, Labour Minister Oscar Fernandes, nobody in the Central Government wants the law to be done away with,” said a senior functionary of the Law and Justice Ministry.
A few days ago, Ramadoss had written to Prime Minister Manmohan Singh, highlighting the need to drop Section 377 on the ground that it was impending India’s fight against HIV. On the other hand, the MHA had asked the Delhi High Court not to consider Ramadoss’s views on legalising gay sex among consenting adults. It said Section 377 was the will of Parliament and the people.
Express news service Posted: Oct 16, 2008 at 0045 hrs IST

PIL against Gujarat govt for giving agriculture land for Nano
AHMEDABAD: A Public Interest Litigation was filed on Wednesday challenging the Gujarat government’s decision of giving agriculture land for Tata’s dream car project ‘Nano’ in Sanand taluka. The PIL filed by the Gandhinagar-based Rashtriya Kisan Dal (RKD) contended that land of the Anand Agriculture University (AAU) which was meant for agriculture purpose was converted into industrial land and given for the Nano Car Project by the government is wrong. The PIL also said the farmers who are the original landowners of the agriculture land have not been given adequate compensation by the state government, while the land was allotted for the industrial use. The PIL demanded that the farmers be given adequate compensation. A division Bench of Chief Justice R K Radhakrishnan and Justice Aquil Qureshi, asked the petitioner come back to the court within three days after getting the PIL translated from Gujarati language. The state government has given 1,100 acres of land near Charodi village in Sanand taluka on the outskirts of the city to Tatas for the relocation of their Nano Car Project from Singur in West Bengal. An agreement was signed between the state government and the Tatas last week for setting the small car project in Gujarat. Farmers of Bod, Khoda and Sanand village have said that the land given to Tatas belonged to their forefathers and was acquired on 99 years lease by British Government. They have demanded adequate compensation for the land, the RKD leaders said.
15 Oct 2008, 1552 hrs IST, PTI

ASJ’s length of service defines seniority: SC
NEW DELHI: Addressing the heartburn among over 170 additional sessions judges (ASJs) in Delhi who form an important part of the justice delivery system, the Supreme Court on Wednesday quashed a complicated seniority determination formula and replaced it with a simple “length of service” mechanism. Continuous length of service would alone be the criteria for determining the seniority of the ASJs, the SC said asking the Delhi High Court to draw a fresh seniority list for Delhi Higher Judicial Service (DHJS) officers. The ASJs, who try cases relating to serious crime including murders, have been complaining of arbitrariness in the `Rota Quota’ system determining inter-se seniority between promotee judicial officers and direct recruits from among advocates to DHJS. A Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal said the date of appointment of a promotee or a direct recuirt to the DHJS would alone be the determining factor for seniority of a judicial officer. “The only advancement in the career of a member of a DHJS is elevation to the high court. Therefore, it will not be fair and equitable to give march to a later appointee over a prior appointee of the same year, even if that march is for a few months or even for a few days,” said Justice Sathasivam, writing the judgment for the Bench. It has to be kept in consideration that seniority, even by one day, may materially affect the future prospects and career of a judicial officer in DHJS, he said. “A person appointed even a day earlier may reach a position which the person appointed one day later may not be able to reach due to reasons such as limited number of higher posts or his becoming age barred by the time the next vacancy arises,” the Bench said allowing the petitions filed by judicial officers B S Mathur and others.
16 Oct 2008, 0000 hrs IST, TNN

CJI takes initiative to clinch stables of lower judiciary
Chief Justice of India K G Balakrishnan has appealed to Chief Justices of all high courts to take appropriate steps to weed out judges of subordinate courts who are found ‘indolent, infirm or with doubtful integrity, reputation and utility’.The CJI, in his letter written yesterday, has requested all the Chief Justices to carry out periodical review of the performances of all the judges in subordinate judiciary who are under administrative control of their respective high courts when they attain the age of 50, 55 and 58.According to the letter, such judges should retire from the service as per rule 56(j) of fundamental rules, which empower an appropriate authority to retire any government servant, if in its opinion it is in public interest to do so and the officer has attained the age of 50 years if he had entered the service before the age of 35 years, or has attained the age of 55 years in other cases.Justice Balakrishnan said, ‘The basic objective behind this provision is to retire those who are found to be unfit, incompetent, ineffective or with doubtful integrity. Pre-mature retirement, as you know is not a stigma and no civil consequences will follow such retirement.’ The letter of the CJI also said this periodical review would be in addition to the assessment being carried out at the age of 58 years in terms of the directions of the court in the All India Judges Association case. The service rules could be suitably amended to provide for such assessment. ‘If implemented in right earnest such a provision will keep deviant behaviour in check, besides getting rid of those who are found to be indolent, ineffective or with doubtful integrity,’ the letter said. The Chief Justice also requested the high courts Chief Justices to keep him informed of the decision taken by their high courts in the matter.Prime Minister Manmohan Singh had earlier told the judiciary to go in for ‘self-introspection’ in view of increasing instances of corruption even in the higher echelons of the judiciary.Thirty-six judges including one sitting Supreme Court judge, 11 Allahabad and Uttarakhand High Court Judges and 24 District Court judges are facing investigation in Rs 7 crore Ghaziabad District Court GPF scam while two sitting judges of the Punjab and Haryana High Court are under the CBI scanner in cash-at-judges-door scam.Justice Balakrishnan also wrote to the Prime Minister for impeachment of sitting Calcutta High Court Judge Soumitra Sen, who is facing allegation of misappropriation of Rs 32 lakh when he was a receiver in a dispute between SAIL versus Shipping Corporation of India in 1993.UNI

HC: Can’t rely on religious texts to criminalize gay sex
NEW DELHI: Testing the government’s logic justifying ban on homosexuality, Delhi HC asked it to table evidence that AIDS had spread in countries where homosexuality has been decriminalised. A division bench comprising Chief Justice A P Shah and Justice S Muralidhar also pulled up the Centre for relying on religious texts to justify the prohibition on consensual sex between adults of same sex. “We won’t be first country to decriminalise in case we do. Show us AIDS has spread where homosexuality has been decriminalised. Place some authentic study like one backed by UN,” HC said. The court’s remarks came when the additional solicitor general P P Malhotra cited an article condemning gay sex which was religious in nature and in which racial profiling had been done to arrive at conclusions. “We should not accept religious literature instead of scientific report. In a secualar country how can a government rely on a report which says that certain races contribute more to homosexuality?,” the bench remarked, adding, “These are not scientific reports. This is a propaganda. Your arguments should be based on scientific reports. Show us scientific reports which justify criminalisation of such acts.” Asking the government to place before it the reports of the World Health Organisation on the issue of health hazards arising out of criminalisation of gay sex the bench noted that UN health reports supported what Naco said in its affidavit. “To counter Naco report give us some scientific report,” it added. The National Aids Control Organisation, in its affidavit filed on behalf of Union health ministry, had said that gay sex among consenting adults should be decriminalised. The court observed that if the government goes by the religious text referred by it then all such people (homosexuals) in the country would be put behind the bars. “Then you should put all the 25-30 lakh such people behind the bars. This is just one sided version of a religious body. This is a part of religious doctrine which cannot be relied upon.” Referring to Naco report, the court said that right to health is a fundamental right which cannot be denied to any one and the government has to justify criminalisation of gay sex which may pose health hazards to such people. “There is no doubt that they are high risk group, so you have to prove that allowing gay sex among consenting adults would increase the risk of HIV to an extent to criminalise it,” the court said.
16 Oct 2008, 0231 hrs IST, TNN

HC takes strong exception to demolition of houses by LDA
LUCKNOW: Taking a strong view of the demolition of houses near Kanshi Ram Sanskritik Sthal on Kanpur Road for the Lucknow Development Authority’s housing scheme Part-7 without hearing the affected persons, the High Court on Wednesday took the top government officials to task and ordered the government not to change the nature of the land obtained after demolition. The court ordered the government to make temporary arrangement for shelter of the affected persons, and also directed the additional advocate general JN Mathur to assess the actual damage caused due to demolition of houses in the area. Earlier, the bench of Justice Pradeep Kant and Justice Abhinav Upadhya ordered the top state officials to appear in court. Thereafter principal secretary (housing), LDA VC, district magistrate and senior superintendent of police appeared before the court and sought to defend the state action but the court did not take any heed. In four different petitions, 22 affected persons urged the court’s intervention to stop the LDA and other government agencies from taking over possession of their houses and land in an arbitrary manner. The petitioners said that LDA had given them 30 days time for filing objections against the acquisition but even before expiry of this period, they demolished the houses on October 11 in presence of heavy police force and even did not allow residents to take out their belongings from the rubble. The bench ordered the police to allow the affected persons to collect their belonging from the rubble without any hindrance. The next hearing of the matter would take place on October 17.
16 Oct 2008, 0223 hrs IST, TNN

HC sends ‘Jassi’ case back to trial court
MUMBAI: Pune’s mother-daughter `Jassi’ duo, who allegedly murdered a doctor, has avoided the gallows, for now. The Bombay high court, which had to decide whether to confirm the death sentence awarded to Leena Devasthali (57) and her daughter Deepti (27), on Wednesday sent the case back to the trial court. Ruling that the trial was not fair, a division bench of Justice Bilal Nazki and Justice Ashutosh Kumbhakoni ordered the recall of important witnesses in the case. The HC slammed the trial conducted by the sessions judge, where the Devasthalis had declined the services of a lawyer and cross-examined a few witnesses on their own. “The entire conduct of the sessions judge in recording the oral evidence of the witnesses calmly, quietly and with no interruption/intervention at all, without even a semblance of doubt in our mind, leads us to conclude that the judge recorded the entire oral evidence merely as a silent spectator and/or an umpire and to put it harshly like a tape-recorder,” said the division bench. Even as the mother and daughter appeared relieved, their lawyer Shirish Gupte told TOI outside the court, “We are pleased with the outcome. From day one the defence has been arguing that it was a mistrial as crucial witnesses were not examined properly.” In the HC, the defence pointed out that of the 46 witnesses produced by the prosecution, the Devasthalis had cross-examined only 21 witnesses. The HC questioned the way sessions judge V P Patil conducted the trial saying that it was the duty of the court to participate in the proceedings in order to reach a correct conclusion and ensure that while the guilty is punished, the innocent are acquitted. In the present case, though the trial judge offered legal assistance, the HC remarked that he did not venture out to get to the truth of the theory whipped up by the prosecution. It is most crucial and pertinent to note that the sessions judge did not ask even a single question to any of the witnesses who were not cross-examined by the accused, who have rather tried to be extra-wise, said the judges. The defence’s major contention hinged on the fact that one of the primary eyewitnesses in the case Rahul Bhosale, an employee of the Devasthalis, was not examined. Bhosale’s role in the whole episode was that of an accomplice, Gupte had argued. According to the prosecution, Leena, a lawyer, and Deepti, a cookery expert and writer, had disguised themselves with thick glasses and false dentures like the popular television character Jassi from the serial Jassi Jaisi Koi Nahin. They allegedly kidnapped and murdered 47-year-old Dr Deepak Mahajan in July 2006 by forcibly injecting him with an overdose of sedatives after a failed bid at a Rs 25-lakh ransom. The Devasthalis then allegedly cut his body into pieces, wrapped the parts in plastic bags and scattered them in various spots between Karjat Ghat and Nashik Phata. The doctors head and limbs were never found by the police. The statement given to the police as well as the evidence in court, mentioned that Bhosale had actually helped the Devasthalis to abduct Dr Mahajan and also administer the fatal dose of sedatives. Though Bhosale was listed as a witness, he was never called in to testify. The defence said Bhosale would be called to give his evidence. Besides, some important witness would be recalled so that the defence was able to cross-examine them. The sessions judge would then submit a report to the HC, which will pronounce the final verdict.
15 Oct 2008, 2353 hrs IST, TNN

HC: How did confessions leak?
NEW DELHI: Delhi High Court on Wednesday sought response from the police on how the alleged confessional statements of the three accused arrested in the serial bomb blasts in the city figured in a section of the press. A Bench comprising Chief Justice A P Shah and Justice S Muralidhar directed the government counsel to seek instruction from the Delhi Police on whether a journalist from a magazine was allowed to meet the accused since it published details of the alleged confessional statements made by the accused in custody. “We are not expressing any opinion on the matter. But we would like to know Delhi Police permitted the journalist to meet the accused,” the Bench noted on being informed by the petitioner in the case that while lawyers and relatives of the accused were being barred from meeting them, media was being allowed to interact with them. The court’s query to cops came after an NGO, People’s Union for Democratic Rights, contended that the police are intentionally leaking such information to media which is not even admissible in the court. “A weekly magazine published purported confession. It seems that police took the reporter inside the police station where such statements were made which is not justified. The media is relying on the statements which is not even admissible in the court,” advocate Prashant Bhushan appearing for the NGO contended. He said he would file separate petition seeking action against police officials for leaking information to the media and alleged that despite HC orders, cops didn’t allow the accused to meet their lawyers and relatives more than once. The two judges then clarified that their order meant relatives and lawyers can meet after filing of an application for meeting the accused. Bhushan also alleged that the accused were not allowed to meet their lawyer in a separate room so that they could discuss their case for defence and police personnel were always present during the interaction. The court after hearing his contention asked the police to allow the accused meet their lawyer in a separate room with a guard standing at the door so that they are in sight but out of earshot.
16 Oct 2008, 0034 hrs IST, TNN

HC seeks new plan to help disabled kids in govt schools
NEW DELHI: Concerned over the fate of differently abled children enrolled in MCD and Delhi government schools, Delhi High Court has asked secretary, directorate of education to convene a meeting soon on this issue. In a bid to address the non-availability of specially trained teachers for disabled students and other issues in MCD and NCT government-run schools, a division bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said a committee should be convened to chalk out a plan. The committee, they suggested, should be headed by the secretary of department of education, Delhi government, one officer from MCD and NDMC each, besides two advocates. The bench added that the committee must place before it suggestions to overcome the problems faced by disabled children in the MCD and state government-run schools. The court order came while hearing a PIL filed by Social Jurists, an NGO, through counsel Ashok Aggrawal pointing that the children suffering from blindness, hearing impairment and mental retardation are deprived of their rights to get education which is their fundamental right. Aggrawal submitted that a three-member team had visited various primary schools run by the MCD and the NCT government and the teachers had admitted before the team that they do not know how to teach the handicapped children. “The failure on part of authorities to provide quality education, attention and care to children with disabilities tantamounts to violation of fundamental rights,” the counsel had submitted. Seeking a barrier-free environment in schools, the lawyer submitted that the government should provide specially made toilets and ramps to the students with disabilities. He further argued that handicapped children should be given forthwith special books including reading and writing materials. HC agreed and observed that it was necessary to develop a plan, teaching aides along with specially trained teachers to bring differently abled kids into the mainstream of education.
16 Oct 2008, 0045 hrs IST, TNN

Rajshree to challenge HC order in derivatives case
The legal counsel for Coimbatore-based Rajshree Sugars and Chemicals (RSCL) said the company would appeal against the Madras High Court order, which held that the company’s derivatives contract with Axis Bank is valid.
The company added that it would also challenge the court’s order, asking the bank to seek relief from the Debt Recovery Tribunal (DRT).
Since March this year, Rajshree Sugars and Axis Bank have been fighting a legal battle over foreign exchange derivatives contracts sold by the bank to the company, which resulted in losses for the company. The company had refused to pay to the bank, citing the contract as a wagering deal and, therefore, not tenable.
The Madras High Court yesterday had ruled, saying the derivatives contract is valid, but the bank has to approach DRT to get an order, asking Rajshree Sugars to pay around Rs 46-50 crore to the bank.
Rajshree Sugars’ case against Axis Bank is not an isolated one. Several companies across the country have dragged a handful of private banks, which sold foreign exchange derivatives contracts, to courts.
BS Reporter / Chennai October 16, 2008, 0:44 IST

CJI urged to constitute new Bench for hearing Mullaperiyar case
Apex court hearing a suit filed by Tamil Nadu government
One of the judges is due to retire next month
New Delhi: Even as the case relating to the Mullaperiyar dam has been posted for hearing on November 17, a three-judge Bench of the Supreme Court on Wednesday requested Chief Justice of India K.G. Balakrishnan to constitute a new Bench to take it up.
The court is hearing a suit filed by the Tamil Nadu government for a declaration that the Kerala Irrigation and Water Conservation (Amendment) Act, 2006, applicable to the Mullaperiyar dam, was unconstitutional, null and void and as being beyond the legislative competence of the Kerala Assembly. It wanted interim stay of the operation of the law insofar as it pertained to the dam.
The Kerala law was enacted following a judgment of the apex court, delivered on February 27, 2006, asking Kerala to allow Tamil Nadu to raise the water level from 136 to 142 ft initially after some repairs were carried out and, finally, up to 155 ft.
The law empowered the Kerala’s Dam Safety Authority to arrive at its own findings on the dam safety and direct Tamil Nadu to suspend or restrict the functioning of the dam or even decommission it, and Tamil Nadu was obliged to comply with such directions.
It was the contention of Tamil Nadu that there was no scientific basis for Kerala’s apprehension that if the water level in the dam was raised above 155 ft, it would pose danger to the districts downstream.
The Kerala government justified the enactment of the law and said it was meant to protect the safety of all dams in the State, including the Mullaperiyar dam.
On Wednesday, the matter was listed for the final hearing before a Bench, comprising Justice Arijit Pasayat, Justice C.K. Thakker and Justice D.K. Jain, after Justice Anil Dev Singh, the Supreme Court appointed one-man committee completed recording of evidence in the suit.
Senior counsel V. Krishnamurthy, appearing for Tamil Nadu, explained the sequence of events in this case. Thereafter, senior counsel K. Parasaran explained the scope and the ramifications of the law enacted by Kerala. Senior counsel Harish Salve appeared for Kerala.
It was pointed out that since Mr. Justice Thakker was due to retire next month, it might not be possible to complete the hearing before this Bench. In view of this, the Bench adjourned the matter to November 17, with a request to the CJI to constitute a new Bench for giving directions in the matter on that day.
Thursday, Oct 16, 2008
J. Venkatesan

People should have easy access to CAG annual reports, says CJI
Chief Justice of India (CJI) KG Balakrishnan on Wednesday said the Comptroller and Auditor General of India (CAG) should facilitate the general public easy access to its annual reports. “Reports are not only meant for elected representatives but are also meant to promote a wider dialogue amongst the general public. In this regard, the office of the CAG should take pro-active measures to ensure that ordinary citizens can easily access its annual reports,” the CJI said at the 24th Accountants General Conference.
The performance audit reports are increasingly being cited in deliberations involving the mass media, civil society organisations and academia. “In this sense, the audit reports are not only a means for legislative scrutiny over executive functions, but they also create a wider basis for accountability between citizens and governmental agencies as a whole,” Balakrishnan said.
He said the belief in some section of the people that audit is an extension of the legislative function since the office of the CAG presents its reports in Parliament is a “misnomer”.
The chief justice suggested the CAG could take help of experts in auditing programmes in sectors such as education, public health and infrastructure, where “there is increasing space for the involvement of non-governmental organisations (NGOs) as well as public-private partnerships (PPP). These innovations in the delivery of functions that were traditionally identified with governance have important implications for auditing agencies,” Balakrishnan said.
He said involvement of private parties in handing schemes where public money is invested requires rigorous auditing. “While the growth of the spirit of public service on part of private players is laudable, there is always a concomitant need to check pilferage or inefficient use of funds,” the chief justice said.
Giving an example, he said the mid-day meal scheme in government-run primary schools, which extensively relies on services of private contractors, on the whole appears to be delivering “favourable” results, but there is a need to ensure “stringent” auditing at the grassroot level to ensure that vital public resources reach the intended beneficiaries.
“Furthermore, the importance of auditing cannot be understated for the numerous financial and infrastructural ventures that are being undertaken under the PPP model,” Balakrishnan said.
He also advised CAG to enhance its role in social audits.
Economy BureauPosted: Oct 16, 2008 at 0024 hrs ISTUpdated: Oct 16, 2008 at 0024 hrs IST

TN lawyers want judges list re-circulated among seniors
CHENNAI: The Tamil Nadu Advocates Association (TNAA) has called upon the Chief Justice of India (CJI) to return the list of 14 names recommended for appointment as judges of the court. In a representation addressed to Justice K G Balakrishnan, TNAA president S Prabakaran said the list should be re-circulated among senior judges, whose parent court is the Madras High Court. Names of advocates or service judges eligible for elevation to the high court is identified, analysed, shortlisted and recommended by a collegium comprising three senior judges of a high court. The Madras High Court’s collegium currently consists of Justices A K Ganguly, S J Mukhopadhaya and Prafulla Kumar Misra. Pointing out that neither of the judges in the collegium belongs to TN, nor any of their parent court is Madras High Court, Prabakaran said the list of candidates should be circulated to two senior judges of the parent court for consent. He also requested the CJI to ensure that a fair representation is given to advocates belonging to weaker sections of the society. Referring to the 25-point proforma issued by the CJI last week, Prabakaran said the yardstick should be strictly applied to the present list. Among other things, the proforma seeks to ascertain details such as the number of years of practice, specialisation, efficiency to argue cases independently and the candidate’s political or social leanings. Sources said that all the 14 candidates, who have already been recommended for elevation, have submitted their replies to the proforma given to them. The court is in the process of filling most of the 15 available vacancies. As against the sanctioned vacancies of 60, the high court has a sitting strength of 45 judges at present.
15 Oct 2008, 0443 hrs IST, TNN

Calling Card Legislation affects Indian Americans Calling Abroad
California: Last week the U.S House of Representatives moved to force companies that sell or distribute prepaid calling cards to describe any fees associated with the cards on packaging and in advertising. The legislation declared that the calling card industry is “plagued by fraudulent and deceptive business practices,” and this new legislation is an attempt to combat that. The bill passed with an overwhelming majority. Since Indian Americans make up a large percentage of international callers, this legislation will have a profound effect on them. The legislation came after the Federal Trade Commission (FTC) launched an investigation into the industry. The investigation concluded that card companies only deliver an average of 60% of the minutes promised due to charges that are hidden from the consumer. National Consumers League Executive Director Sally Greenberg stated in testimony to the FTC, “[The calling card industry] is a ‘Wild West’ of sellers and merchants who too often prey upon the most vulnerable consumers by promising minutes they don’t deliver and loading up on hidden or undisclosed charges and fees.”The bill, H.R.3042, was sponsored by Rep. Eliot Engel, D-N.Y. “This is just a good consumer protection bill,” Engel said, prior to the vote. “And it has to be federal because if you have a hodgepodge of states all with different laws, it really doesn’t work. You really need something uniform.” The bill has not yet been passed to the Senate.While the new bill requires calling card companies to disclose their rates and fine print to consumers, it doesn’t place any limits on how bad the rates and terms of a deal can be. A typical example of a calling card cited by the FTC, Africa Sky card’s terms include, “Use of a toll free number from a pay phone will incur a $.99 per call fee. Call time for multiple calls is calculated by rounding the last minute up to the closest multiple of 3 and then adding 1 minute except that if your call lasts less than 1 minute you will be charged only for a minute.”It is estimated that fraudulent calling cards may be costing Indian Americans up to $100,000 every day. More often, the Indian American community is turning to other providers of inexpensive calling services including Rebtel which charges solely on a per minute basis with no other fees or connection charges. “It was precisely because of the rip off schemes we’ve noticed with calling cards that drove us to build a new service that people could trust,” says Rebtel CEO Hjalmar Winbladh.Greenberg, however, doesn’t believe the bill goes far enough. She states, “While [the bill] requires that the disclosure text on the calling card itself, packaging, or other promotional material (iy customer service representatives able to converse in the languages that the cards are advertised in.”

These gaps, says Greenberg, along with lax requirements for businesses to enter the calling card industry, will continue to make it difficult for consumers who use calling cards to ensure they’re getting a fair deal. “The most vulnerable consumers’ military families, immigrants, low-income families rely on these cards and spend their hard-earned money only to see the value of the cards disappear quickly after first use,” says Greenberg. Winbladh sees the legislation as a major step forward in the demise of calling card fraud.. “The Indian American community wants quality and honesty at affordable rates; this is the main reason why we have seen major growth from the community over the past year.”
By siliconindia news bureau
Friday, October 17, 2008

Socialism in the Constitution of India in 1979”
“Birth of Legislation of Scientific Socialism in the Constitution of India in 1979”The Supreme Court of India did not able to define accurately, directly the expression ‘Socialist’, which was inserted in the Preamble by the Constitution (42nd Amendment) Act, 1976, but, it is defined falsely, indirectly by the Supreme Court of India as a blend of Marxism and Gandhism learning heavily towards Gandhism Socialism in connection with the Case: D.S. Nakara V. Union of India (1983), 1 SCC 305, 325, 326.In India, the Parliament of India did not able to frame/incorporate the legislation of ‘Scientific Socialism’ in the Constitution of India during the period from 26.1.1950 to 19.6.1979. The word ‘Socialist’ was inserted in the Preamble of the Constitution of India and one of the Fundamental Duties that is “it shall be the duty of every citizen of India – to develop the scientific temper, humanism and the spirit of inquiry and reform”, was inserted in Article 51A(h) of the Constitution of India by the Constitution (42nd Amendment) Act. 1976 with effect from 3.1.1977 and one of the Directive Principles of State Policy in the Constitution of India that is “the State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people and residing in different areas or engaged in different vocations”, was inserted in Article 38(2) of the Constitution of India by the Constitution (44th Amendment) Act. 1978 with effect from 20-6-1979. Hence, by virtue of the provisions of Articles 38(2) and 51A(h) of the constitution of India, the word ‘Socialist’ in the Preamble of the Constitution of India has been derived/ purported/ sensed /predicted/ planned/ formulated/ conceived as ‘Scientific Socialism’, which based on the foundation of sovereign secular democratic republic; which is the doctrine for upholding and protecting the sovereingty, unity and integrity of India; which is to be explored/ discovered/ invented/ developed/ strived/ achieved/ demarcated/ shaped/ quantified/ minimized inequality in income and endeavour to eliminate inequalities in status, facilities and opportunities amongst individuals by ‘the State’ as well as by every citizen of India in the future since 20.6.1979 onward; which is not followed the principle / doctrine of Marxism philosophy or socialism and Gandhian philosophy or socialism or any other person’s doctrine / philosophy or socialism in the world; which is followed prospectively by the last two duties of the Fundamental Duties of the Constitution of India, that is ‘it shall be the duty of every citizen of India – to safeguard public property and to abjure violence’ and ‘it shall be the duty of every citizen of India – to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement’ respectively; by the exercise / enforcement of Article 38(2) and 51A of the Constitution of India in the governance in India by ‘the State’ and by every citizen respectively.The so-called ‘Scientific Socialism’ which is emblemed/ enshrined in the Constitution of India, does not denote / mean the common word ‘Socialism’. The meaning of the word ‘Socialist’, which is defined / purported as ‘Scientific Socialism’ in the constitution of India, is owned, earned and governed partly by the co-operative societies and civil societies / non-governmental organizations in co-operative sector, and is also owned, earned and governed partly by the individuals, groups, trusts, partnership firms and companies in private sector while the meaning of the common word/international communist doctrinaires’/ philosphers’ word ‘socialist’ is owned, earned and governed solely by ‘the State’ in public sector.On the basis of doctrine of ‘Scientific Socialism’, which is defined / cited in the above, the Thesis entitled as “Theory and Principle in Governance for Creating Full Employment Opportunities to All Job Seekers in a Formulated Norm of Investment & Plan in Public, Co-operative and Private Sectors or Economic Activities for Achieving Scientific Socialism in All the countries of the World”, which was published in the Imphal Free Press Newspaper on the 5th, 7th, 9th, 10th, 11th & 12th April, 2008 along with the related/supplemented article of the Thesis entitled as “The Legalisation of Call Girls, Prostitutes and Brothels is one of the Important Measurers for Achieving Scientific Socialism in All the Countries of the World”, which was also published in the Imphal Free Press Newspaper on the 30th August, September 1 & 2, 2008, can be readily converted into practice for providing full employment facilities and opportunities to all job seekers in all the countries and, also for preparing and attaining humanitarianism and harmonious and peaceful society and civilization in all the countries of the world in the near future.The writer is Director-cum-professor, Research Institute of Co-operative Banking & Financial Studies.
By: Prof. Akham Biradhwaja Singh

Mangalore: Police Not Co-operating With Tribunal: Justice Saldanha http://www.daijiworld.com/news/news_disp.asp?n_id=52425&n_tit=Mangalore%3A+Police+Not+Co-operating+With+Tribunal%3A+Justice+Saldanha+
Mangalore, Oct 17: Justice M F Saldanha, head of the People’s Tribunal, said on Thursday October 16, that police who had suffered injuries during the recent clashes in the district did not support the ongoing enquiry being headed by him.
Addressing the media after a second round of investigation, Justice Saldanha said, ‘I have sent SMSes to the police to appear before the Tribunal for enquiry. But none of them have co-operated. The investigation has taken three weeks of minute and painstaking research. We have interviewed hundreds of citizens in our quest for the truth. We have been working simultaneously on the remaining cases and the findings will be presented under individual heads’.
He said that the attack on the Adoration Monastery was a premeditated, deliberate, assault professionally executed, and further added that the entire operation was monitored and supervised. Justice Saldanha alleged that the attack was not an accident as claimed in the press by the Bajarang Dal chief, but was an integral part of the master plan to attack Christian religious centres.
‘The most serious aspect of the case is that this was a hate crime directed against the most sacred symbols of Christianity—a virtual stab at the heart of the Christian community,’ he said. Later, Saldanha paid a visit to the hospital to speak to Herald D’Souza, resident of Kairangala, who was admitted to the hospital after allegedly being harassed by the Konaje police on Tuesday October 14. PB D’Sa, district president, PUCL, and Suresh Bhat Bakrabail, columnist, were present on the occasion.
Friday, October 17, 2008 8:01:15 AM (IST)

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