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)


2 Responses

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