Daily Legal News 24-25.10.2008

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

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


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

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

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

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

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

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

HC seeks info on fire safety measures in high rises

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

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


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

Katara murder case: Vikas Yadav files appeal in HC

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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


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