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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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