LEGAL NEWS 09.11.2008

CJI pleas for more courts in country
8 Nov 2008, 2108 hrs IST, PTI
KOCHI: Making a strong plea for more courts in the country to reduce pendency of cases, Chief Justice of India K G Balakrishnan said a proposal has been sent to Prime Minister Manmohan Singh in this effect. At least 100 CBI courts should be set up in the country, including three in Kerala, Justice Balakrishnan said in his inaugural address at the 53rd anniversary celebrations of the Kerala High Court here on Saturday evening. To reduce pendency of cases, there is an urgent need to have more courts, he said. In Mumbai there are 20 additional courts, while Delhi has 10. There should be at least five additional courts in each district, he said. Pointing out that there are 4000 cases pending in Thrissur family court, he said the minimum number of cases in family courts should be only 400. Urging people to avoid unnecessary litigations, the CJI said there are more than 3.5 crore cases pending in different courts in the country. As many as 48,000 cases are pending in Supreme Court alone. During the function, the CJI declared Cheriyanad in Alapuzha district as ‘litigation controlled village’. Earlier, Justice Balakrishnan stressed the need to provide chambers to advocates in the court complex as it would improve the efficiency of the legal system.

Advocates chambers will improve efficiency: CJI
Kochi (PTI): With over 500 chambers to come up for High Court lawyers in Kerala, Chief Justice of India K G Balakrishnan today hoped that it will raise their efficiency and improve the legal system
“Lawyers would be able to utilise their leisure time for preparing their cases in these chambers and this will improve the legal system also,” the CJI said in his inaugural address at a function to mark the commencement of construction work of the High Court advocates chamber complex here.
Noting that the Kerala High Court enjoys a high reputation, CJI said, “Kerala should have chambers for advocates. Only here there were no chambers for advocates.”
The new complex to be constructed within 18 months adjacent to the new High Court building will house a total of 520 chambers.
Kerala High Court Chief Justice H L Dattu was also present at the function.

CJI stresses need for better facilities for advocates
Stressing the need to provide better facilities to advocates, Chief Justice of India K G Balakrishnan said this would improve the efficiency of the legal system and also help the general public.Inaugurating the commencement of the construction work for an advocates Chamber Complex in the High Court here, Mr Balakrishnan said Kerala was the only state in the country which did not provide separate chambers for advocates.Even district courts in places like New Delhi and Madurai had chambers for advocates, he said.Alluding to the controversy over the land earmarked in the High Court for putting up advocates chambers here, he said all controversies should be forgotten and the project should be carried forward.The Chief Justice said a proposal by lawyers in New Delhi for a 10 acre area to construct additional chambers was pending before the Prime Minister.Noting that chambers were constructed out of government funds, the Chief Justice said advocates had to pay only a nominal rent.Kerala Chief Justice H L Dattu delivered a special address on the occasion. Judges A K Basheer and J B Koshy, Advocate General C P Sudhakara Prasad and Advocates Association President P Jacob Varghese were also present at the function.The 520-chamber complex is expected to be completed within 18 months. UNI

MU principals fail to join new assignments
9 Nov 2008, 0600 hrs IST, TNN
PATNA: The recent transfer of about 15 principals of different constituent colleges of Magadh University (MU) has created a piquant situation for the university. Despite notification of the transfer orders issued on October 20, none of the principals have joined their new assignments so far. The colleges, which re-opened on Thursday after a month long puja vacation, are still agog with the talk of principals’ transfer. In fact, serious teaching is yet to begin in all the colleges concerned. Aggrieved by the transfer orders, several senior most principals of the colleges moved the Patna High Court and got a temporary relief. These principals had filed a writ petition in the Patna HC challenging the validity of the amended Bihar Universities Act under which they were transferred from their respective colleges. The writ petition has been pending in the court for final disposal, sources said, adding these transfers are the largest ever exercise undertaken by any university in the state. Besides, the amended Act has failed to specify whether the five-year tenure should be counted from the date of amendment in the Act or with retrospective effect, sources said. The amended Act does not specify application of retrospective date in term of principals’ transfer, sources said. That apart, the Chadha Committee report submitted to the UGC has put colleges under two different categories — postgraduate colleges and undergraduate colleges. Thus, transfer of any principal could be made keeping this fact in mind, the report said. Justifying these transfers, MU VC B N Pandey told TOI that these transfers were made to achieve an all-round development of the colleges concerned. The university wants to utilise services of these principals to improve the academic ambience in other colleges of the university, he said.

Gangrape: Family to move HC seeking cancellation of bail given to accused
Express News Service
Posted: Nov 09, 2008 at 0008 hrs IST
Panchkula, November 08 After moving High Court demanding a CBI inquiry into the gangrape of a 17-year-old schoolgirl, the victim’s family is now contemplating to file another petition against the bail given to one of the accused Aman Ahuja recently.
The family has alleged that Ahuja, a resident of Sector 10, was a main accused in the case and was involved in getting the pornographic CD of the victim made.
But the police deliberately went ahead omitting his name from the FIR, a family member said.
On the other hand, the police said that all efforts are being made to trace the accused. SHO of Sector-14 police station, Inspector Surjit Kumar said: “After sketches of the accused were made, we have visited different schools loking for some clue regarding the accused. We are investigating the case in details.”
One of the victim’s relative said: “Aman Ahuja was not only involved in the rape, but also blackmailed and tortured the victim. Despite the victim telling the police about his involvement, they have deliberately omitted his name from the FIR. It is shocking to see Ahuja roaming about in the court complex while our daughter is running from pillar to post seeking justice. No one is helping us.
Sept 16: Vicitm gangraped and tortured throughout the night by five persons, including a girl called Chhavi
Sept 17: The victim left at Sector 4 by the accused at 5 am. She goes to her school, Chaman Lal DAV School, Sector 11 but is not allowed to participate in an event. Also receives threat calls from one of the accused, Jitesh
Sept 18: Family of the victim lodges an FIR under Sections 363, 366A, 376, 377, 342, 323, 34, 506 of the IPC
Sept 22: Aman Ahuja, a resident of Sector 10, arrested, taken on one-day remand and sent in judicial custody
Sept 26: Jitesh, resident of Sector 4, arrested, taken into five-day police remand. Police fail to crack the case and the accused sent to judicial custody
Oct 5: Chaman Lal of DAV School, Sector 11, refuses to take the victim and asks her to not come
Oct 6: The school takes a U-turn
Oct 7: Family claims that they are receiving threat calls and ask for police protection. No security provided.
Nov 1: Aman Ahuja gets bail
Nov 3: Rape victim visits DGP office but fails to meet him
Nov 4: The victim is made to wait outside the DSP (Headquater) office for more than two hours.
The DSP leaves without meeting the victim and her mother.
Another accused in the case — Tanu — who was called for questioning, is set free with the police taking a U-turn
Nov 5: Bail application of Jitesh dismissed
Nov 6: Kushal Kushul, the Swift owner involved in the case, applies for anticipatory bail, which will be heard on November 10

CIC asks HC for info on judicial exam candidates
8 Nov 2008, 2331 hrs IST, Abhinav Garg, TNN
NEW DELHI: In a ruling which may set a precedent for examinations conducted by Delhi High Court, the Central Information Commission has allowed an RTI plea of a candidate seeking personal information of successful candidates. Chief information commissioner Wajahat Habibullah on Friday asked HC to furnish information sought by an RTI applicant, Rashmi Bansal where she demanded to know not just marks and names of those who cleared Delhi Higher Judicial Service Examination (DHJS) 2006, but also “the addresses of those selected for interview” and “names/designations of their parents/guardians.” When Bansal first approached HC last year and asked for details of DHJS, her RTI plea was declined by then PIO A K Mahajan under Delhi High Court RTI rules. Mahajan rejected the plea invoking confidentiality clause. However, in her first appeal within HC, the appellate authority allowed revelation of number of total candidates who were successful. This prompted Bansal to move CIC in final appeal and re-iterate her request for complete information. Before CIC, high court officials contended they had furnished whatever information was asked for by the RTI applicant, pointing out that subsequently results of the exam were declared and uploaded on its website as also on HC notice board. It was also brought to the attention of CIC that since 2007, candidates who have appeared are routinely provided with marks they have obtained in preliminary, written and interview stages of the DHJS examinations to bring in greater transparency. Earlier, it wasn’t possible for a candidate to know his marks as results typically declared a candidate pass or fail. It changed after another CIC ruling on declaration of marks spurred the Chief Justice to create a three judges committee which, after deliberations, concluded that there was no confidentiality clause in revealing marks obtained by a candidate. But CIC was clear that all the information that has been sought including names and addresses of candidates should be provided to Bansal under the RTI Act. It also advised HC to initiate disciplinary action against its PIO including “penal action” if he failed to comply with orders to furnish information, as was alleged by Bansal here.

Karnataka HC seeks report on death of elephants
Shocked over the death of a large number of elephants, Karnataka High Court asked the state government to submit a report on the death of nine elephants under mysterious circumstances in the last one week in parts of southern Karnataka.A bench headed by the Chief Justice, expressed shock over the deaths and on suo motu ordered the state government to submit a report within a week.It also took the Forest department to task for its failure to protect wildlife, resulting in the death of elephants in such large numbers in just one week, near Nanjanagudu and other areas around Mysore.The Bench asked the state government for details to be included in the report on the protection of wildlife in consultation with experts from neighbouring states.A report said at least 24 elephants had died in the last six months.UNI

Kerala HC: Petition admitted seeking bail cancellation of SIMI activists
The Kerala High Court admitted a petition seeking to cancel the bail of two accused, Samer and Abdul Hakkim, in a case relating to SIMI activists meeting at Panayikulam, Aluva.According to the prosecution, three CDs were seized from Samer’s house containing the speeches of an accused in the Parliament attack case. Investigation was also on about the inter-state connections of the accused. Under these circumstances, the prosecution sought cancellation of the bail granted to the accused by a lower court.UNI

Delhi HC reserves order on decriminalisation of gay sex (gay/lesbian)
The Delhi High Court reserved its order on a petition filed by gay rights activist, Naaz Foundation, seeking abolition of section 377(unusual sex) of the IPC as it violates their Fundamental Rights.A bench comprising Chief Justice A P Shah and Justice S Murlidhar after conclusion of lengthy arguments from all the parties concerned reserved its verdict. The arguments were going on in the court on day to day basis for the last several weeks. Anand Grover, lawyer for Naaz Foundation said Section 377, IPC, was enacted in 1860 under the British Raj in line with the anti-sodomy laws in England at that time, but now with the changing times the law needs to be abolished.The Centre is fighting to retain Section 377. Additional Solicitor General P P Malhotra has objected to the removal of the section 377.He said it would increase the probability of spreading the HIV disease.‘Unusual sex should not be encouraged in our country as we have a long history of having traditional vales which will be eroded,’ Mr Malhotra said.‘The West is looking towards India to emulate traditional vales to keep the family culture going and we are trying to emulate the West which will be disastrous,’ he said.To play with the works of nature will not benefit the society in any way, Mr Malhotra said.He cited an article using pieces of a religious text as part of the argument to keep the law.Mr Malhotra said Gay sex is prohibited since ancient times and to decriminalise it will play havoc in the society.The bench asked for more scientific proof to back up the Centre’s claim that gay sex was harmful to health and to society.The health ministry has a different version–it says that the HIV patients do not come forward for treatment as they fear to be prosecuted.UNI

Press conferences hamper probe: HC to cops
8 Nov 2008, 1300 hrs IST, Abhinav Garg, TNN
NEW DELHI: The practice among top cops to address a press conference after every major crime came in for severe criticism from the Delhi High Court on Friday which questioned the current method of police-press information sharing. Citing sensational murder cases like that of Aarushi and Saumya Vishwanathan as instances, a division bench comprising Chief Justice A P Shah and Justice S Muralidhar decried this habit of press conferences by policemen, saying it hampered probe and affected rights of the accused. HC also issued notices to Delhi Police, the Union government and a news magazine for publishing a “confession” of an accused in the blast case, something which prompted HC’s observations on press conferences. “Is there any policy? What is the basis for such press conferences, we wish to know? They are not limited to imparting information but often go much beyond that. It is a very serious matter,” an agitated bench observed when informed that a news magazine had published a “confession” of one of those arrested by Delhi Police in connection with latest blasts on the very day of his arrest. Lawyers for the accused complained before HC that this needed to be probed as access was given to the reporter even before family members or lawyers of the accused could meet him. “These press conferences are held to disclose so called leads which turn out to be false later… this hampers the probe and rights of the accused,” an anguished bench remarked, concerned over cops sharing information with media relating to investigations into cases. When counsel for Delhi Police Mukta Gupta urged HC to issue a guideline on police press interaction in such cases, an irked bench shot back, “Why should courts tell you what to do? You are an investigating agency. Don’t you know how to preserve evidence?” the bench remarked, pointing towards the recent cases of Aarushi and TV journalist Saumya Vishwanathan, “These are glaring incidents and it has become common.” The Union government also admitted that there is a need to bring a change in the system saying “it hurts one’s own foot.” Additional Solicitor General Gopal Subramaniun agreed there is a need to draw a line between what information needs to be revealed in public interest and what is not supposed to be shared with the media. “People want to know as soon as possible what happened and often police officers, in order to dispel any rumour mongering, allow media access straight to the accused. However, a line has to be drawn between public interest and rights of accused which certainly cannot be prejudiced,” Subramanium said adding that people also need to know what is going on in a case. HC was hearing a petition filed by an NGO, Act Now for Harmony and Democracy, seeking a judicial inquiry doubting the police version on the September 19 encounter in which one of its officials was also killed. ‘No’ to judicial probe into Jamia shootout Delhi High Court on Friday refused to order a judicial inquiry into the Jamia Nagar police encounter in which two suspected terrorists allegedly involved in the Delhi serial blasts were killed. A bench comprising Chief Justice A P Shah and Justice S Muralidhar refused to express any opinion as the National Human Rights Commission is already examining the case and its (court’s) interference may amount to carrying out a parallel inquiry. The NGO argued that “facts and circumstances caste serious doubts on the version of police officials.” Advocate Prashant Bhushan appearing for the NGO argued that “Even the NHRC guidelines say that a judicial inquiry be conducted in cases of encounter.” He also put on record rejection of his RTI plea by Delhi Police where he had sought a copy of FIR and post mortem reports of all those who died, including inspector M C Sharma. Police denied it on the ground that Bhushan had no connection to the accused and release of information will hamper the probe.

Solve woes or be dissolved, says HC,+says+HC&artid=4f1218G/QKY=&SectionID=1ZkF/jmWuSA=&MainSectionID=fyV9T2jIa4A=&SectionName=X7s7i%7CxOZ5Y=&SEO=
Express News Service
First Published : 08 Nov 2008 03:17:00 AM IST
Last Updated : 08 Nov 2008 11:27:13 AM IST
KOCHI: In what could be a warning to bodies in the state that err in discharging their duties, the Kerala High Court on Friday opined orally that the Corporation of Cochin would have to be ordered to be dissolved for its maladministration.
The opinion was expressed by Justice Siri Jagan apparently alluding to the total chaos in the matter of removal and disposal of solid waste and the maintenance of roads. The court was considering a writ petition filed by Shameena Majeed of Pottakuzhi challenging the indiscreet dumping of waste by the Corporation on the sides of Pottakkuzhi- Pachalam Road and vacant properties near the petitioner’s house, ‘Virus.’ The court had on Thursday expressed the very same opinion while admitting a writ petition which highlighted the pathetic condition of city roads and had directed the PWD authorities, Cochin Corporation and the GCDA to provide the particulars of the roads under their control and the list of the roads requiring urgent repairs.
The court has directed to post both these petitions together though they are on different subjects.
On October 17, while considering Shameena’s petition, the court had directed Cochin Corporation to file an affidavit stating the steps taken by it for the collection and disposal of garbage in the city. However, the Corporation has been feigning ignorance about the dumping of waste in the vacant lots stating that the workers engaged in collection and disposal of waste were responsible for it. But Shameena’s counsel said the Corporation continued to dump waste in the property even after the court was seized of the matter.
The court said the administration of the Corporation was apparently in inefficient hands. Proper removal and disposal of waste was its bounden duty. It has failed in this. It has not been able to control and properly guide its workers.
Section 64(1)(A) empowers the Government to dissolve the Corporation council ‘where the Government are of the opinion that a municipality consistently defaults in performing the duties imposed on it by law or in carrying out the orders or directions issued in accordance with the law by the Government or exceeds or abuses its powers.,+says+HC&artid=4f1218G/QKY=&SectionID=1ZkF/jmWuSA=&MainSectionID=fyV9T2jIa4A=&SectionName=X7s7i%7CxOZ5Y=&SEO=

HC upholds order on recovering panchami lands
Express News Service
First Published : 08 Nov 2008 05:20:00 AM IST
Last Updated : 08 Nov 2008 10:07:35 AM IST
CHENNAI: The Madras High Court has upheld the action of the State government in taking back the panchami lands assigned to dalits, but later sold to builders.
The government was empowered to resume those panchami lands allotted to dalits as a conditional assignment, if the condition pertaining to re-sale was violated, Justice K Chandru observed on Friday.
The judge was dismissing a batch of writ petitions from VGP Prem Nagar Minvariya Kudiyiruppor Sangam, VGP Housing Private Limited, represented by its CMD VG Santhosham, and others seeking to restrain the Coimbatore district administration from resuming back vast lands owned and possessed by the members of the petitioner societies in VGP Prem Nagar, Vivekananda Nagar and Kumaran Nagar in Keeranatham village and in Malumachampatti village in Coimbatore.
The judge noted that in all these cases, admittedly, the survey numbers referred to by the petitioners pertained to the lands allotted to the members of the Scheduled Caste community under the panchami land scheme with conditions.
After forming a society and obtaining the opinion of a local government pleader, the petitioners purchased the lands, made lay-outs for construction of houses. If the lands were taken back at this stage, they would be put to grave hardship. The Sub-Collector had stated that since 30 years had gone from the dates of conditional allotments, there was no need for no objection certificate from governmental authorities, petitioners said.
The judge observed that the government was empowered to take back the lands, if there was any violation of the conditions, and re-assign the same to the dalits. The arguments of the petitioners that they were innocent purchasers, could not be sustained, the judge said and dismissed the petitions.

HC dismisses Balaji’s plea, Kyunki goes off STAR
Express News Service
Posted: Nov 08, 2008 at 0419 hrs IST
Mumbai, November 7 Mega soap Kyunki Saas Bhi Kabhi Bahu Thi, whose last episode was aired on Thursday night, failed to get any relief from the Bombay High Court after a vacation bench dismissed the appeal filed by its producer Balaji Telefilms.
The appeal had sought to stay the termination notice served by television channel Star TV, that airs the serial. Balaji, headed by Ekta Kapoor, filed the appeal after a single judge bench of the High Court rejected its petition on November 3.
On Friday a division bench comprising of Justice J P Deodhar and Justice S J Kathawala also denied relief to the production house. Balaji Telefilms had contended that the agreement between the two parties provided that the show will run at least upto March 2009. They also argued that the channel did not fulfill their obligation of promoting the serial through advertising.
However, senior counsel Ravi Kadam, appearing for the channel, contended that they have advertised adequately and that the contract was a terminable one.
He argued that the programme had ‘outlived its life’ and it had to be taken off the air because the channel was losing viewers and the TRPs had slipped. Star’s lawyer Ravi Kadam contended, that the agreement provided that the serial could be stopped if its TRP fell by 20 per cent vis-à-vis the TRPs in June 2008.
Balaji’s lawyer Janak Dwarkadas said that it was a ‘flagship’ programme for both his client as well as Star. He also mentioned that the serial was popular even in Afghanistan. “It made Star what it is today,” he said. However, Kadam argued that the serial was not being taken off air because of any malice and contended that fall in the TRPs were hurting Star’s advertising revenue. He further argued that the serial had fallen out of the top 10 serial rankings and was lying at the 15th place in October. With the dismissal of the appeal Balaji will either have to move the SC or wait for arbitration proceedings. The agreement provides for appointment of a arbitration panel in case any dispute.

HC isues notice to SEBI !
Posted on : 02 September 2007 by CA.Saibaburao Nanduri
NEW DELHI: The Delhi High Court today issued notice to stock market regulator SEBI on a petition seeking quashing of its circular mandating all investors to sign an agreement with brokers before investing in capital markets. An advocate M L Sharma had challenged SEBI’s circular issued on August 26, 2004, prohibiting investors to deal in any stock exchange in any trading segment without having client registration. Sharma had sought quashing of the circular that made it mandatory for signing written contract for client registration in BSE, NSE and other stock exchanges for shares trading. Contending that SEBI had no jurisdiction to issue such a direction, he said such circular is not a part of any law, bye-law or rules of the market regulator. Without having such client registration, no investor can buy and sell securities in any stock exchange segment and cannot hold any securities in their demat account, he said. Sharma further contended that an investor was bound to sign a new agreement when he changed his broker. The circular has been made out for benefit of brokers and against the interest of the investors as it gives power of attorney to the brokers who can take decisions on behalf of their clients which is objectionable, Sharma said. However, SEBI’s counsel said this arrangement was made in the interest of investors with a purpose to check fraud and scam in the stock markets. The High Court had earlier directed the petitioner to place a copy of the client registration agreement
Tags : Source : icai – economitimes.indiatimes

Legislature vs judiciary
The Indian constitution is clear that the proceedings in parliament are not subject to judicial scrutiny. It clearly lays down immunities, powers and privileges of members of legislature. The supreme court had endorsed the constitutional position. Parliamentary precedents exist on expulsion
Ashok Kumar Pankaj Rohtak
Parliament and the supreme court of India are poised for a confrontation over the issue of expulsion of 11 members of parliament (MPs) involved in cash-for-question scam. The legal-constitutional question pertains to the exclusive jurisdiction of parliament over its authority to define its privileges and manner to protect and maintain it. The phenomenon of the legislature versus the judiciary is not new to Indian democracy. Indira Gandhi made a series of attempts through 24th, 25th and 42nd constitutional amendments to establish supremacy of parliament over the judiciary. She even tried to demoralise the highest judiciary by appointing a junior judge as the chief justice superseding senior judges. The matter could be settled with the enunciation of the ‘basic feature doctrine’ in the Keshavananda Bharati case of 1973. The kernel of this judgement is that the Indian constitution has certain basic features, which hold a transcendental position and which cannot be altered by either parliament or supreme court. This judgement was able to establish supremacy of the constitution but only with respect to its ‘basic features’.
The other vibrant and dynamic democracies of the world have also gone through the process of confrontation between the legislature and the judiciary. However, they have settled it in the process of constitutional development. Britain, a classic case of a parliamentary system, easily established legislative supremacy. Parliament is not only supreme vis-à-vis other organs of government but it is supreme vis-à-vis constitution as well. In the British model, the legislative supremacy is also established
by the fact that the constitution is unwri-tten and the one chamber of the legislature—house of lords—acts as the highest judiciary of the land. The federal constitution of the United States is organised on the principle of supremacy of the constitution. Its supreme court, therefore, enjoys absolute and extensive power of judicial review. No law of the land is beyond judicial scrutiny.
But the case of Indian constitution is typical because of the adoption of parliamentary and federal features simultaneously. Parliamentary form of government hints at legislative supremacy. But the federal nature of the constitution makes it imperative that the highest judiciary is able to exercise the power of judicial review. The roots of the present problem also lie in the design of the Indian constitution.
On December 12, 2005, eleven MPs, ten from the lok sabha and one from the rajya sabha belonging to mainstream political parties (six from the Bharatiya Janata Party (BJP), three from the Bahujan Samaj Party(BSP), and one each from the Congress and the Rashtriya Janata Dal) were shown in a sting operation on a private TV channel (Aaj Tak) being paid for raising a question in parliament.
Parliament responded quickly by expelling all the eleven MPs who figured in the sting operation. The lok sabha constituted a special (enquiry) committee and the rajya sabha referred the matter to the ethics committee of the house. On the report of the special committee of the lok sabha and ethics committee of the rajya sabha, both the houses expelled the tainted members and terminated their membership by a motion of each house. The motion was passed on the last day of the winter session, December 23, 2005, amidst a walkout by the BJP, the main opposition party in the lok sabha. The BJP already in trouble because of leadership crisis, factional fighting, ideological vacillation, and its vitiating relations with the Rashtriya Swayamsevak Sangh was deeply disturbed. Six out of eleven MPs belonged to the BJP and two of them were ministers in the erstwhile BJP-led national democratic government at the centre.
One expelled member from the BSP, Raja Ram Pal challenged the decision of the lok sabha speaker in the supreme court on two grounds: procedural and legal. His expulsion resolution was not carried on the report of the privileged committee of the lok sabha. His expulsions was not based on any of the grounds of disqualification specifically mentioned in Article 102 of the constitution and section 8 of the representation of the people’s act 1951. The supreme court served a notice to the lok sabha speaker on January 16, 2006. The court also referred the matter to a constitutional bench of five judges.
The lok sabha speaker, Somnath Chatterjee called an all-party meeting on January 20, 2006. It was unanimously decided in the meeting that it was the privilege of the house to take disciplinary action against its own member. The expulsion from the house was very much within that disciplinary action. It was further held that the speaker of the lok sabha was the sole custodian of the rights and privileges of the house and, hence, not answerable to the judiciary for his role in that capacity. The BJP in the meeting favored that the speaker should not appear personally before the court but should send his representative to present his views before the highest court. Chatterjee later on briefed the media, ‘Even if I go there, that can not lead to the honourable court to assume or to exercise the power in respect of those matters exclusively conferred on parliament.’ He also clarified that ‘the constitution was clear on the jurisdictions of the pillars of democracy’ and suggested, ‘Let us keep within our lakshman rekha.’
The supreme court seems in a mood to interpret the powers, privileges and immunities of parliament that remain un-codified so far. On the other hand, parliament insists that it being the sole custodian of its rights and privileges; it is within its custodian rights to define its privileges and immunities.
The whole episode has certainly triggered a new kind of situation that has serious implications of which two are legal-constitutional.
First pertains to immunities to the legislature from judicial intervention in its proceedings. Second relates to defining powers and privileges of the legislature and its members. Is parliament the sole interpreter of its powers and privileges? Or, is this power of parliament subject to judicial scrutiny?
Articles 105 and 122 of the Indian constitution clearly restrict the judiciary from intervention in the business of the legislature. Article 122 (1) states, ‘The validity of any proceedings in parliament shall not be called in question on the ground of any alleged irregularity of procedure.’ Article 122 (2) explains, ‘No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.’
Article 105 (2) gives judicial immunities to the conduct and behaviour of any member of parliament: ‘No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee therefore, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.’ Article 194 (2) grants the same immunities to the members of the state legislative assemblies.
The second issue pertains to the powers and privileges of the legislature and its members. Article 105 explains the powers and privileges of parliament and its members; and article 194 replicates the same provision for the legislative assembly and its members. Article 105 (1) gives freedom of speech in parliament and article 105 (2) gives immunity to freedom of speech and freedom to vote in the house and its committee from judicial proceedings. But other rights and privileges of the house and its members are left un-codified. Article 105 (3) reads ‘In other respects, the powers, privileges and immunities of each House, shall be such as may from time to time be defined by Parliament by law, and, until, so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution Forty-fourth Amendment Act 1978.’ Before this amendment, it was provided that powers, privileges, and immunities of parliament and its member shall be those of the house of commons as it was before the commencement of the Indian constitution.
The root of the present controversy lies in the above two issues and related provisions of the constitution. The BSP MP has challenged in the supreme court the power of the house to terminate his membership on the grounds other than that provided in article 102 and section 8 of the representation of the people’s act 1951. The lok sabha insists that its disciplinary jurisdiction over its member has constitutional immunities from judicial intervention as explained in the articles 105 (2) and 122 of the Indian constitution.
Judicial precedents on the issue of parliamentary privileges and judicial immunities to proceedings of the legislature suggest divided opinion.
In PV Narasimha Rao v. State (1998) the supreme court took the position as per Article 105 (2): ‘The bribe-taker MPs who have voted in Parliament against the no-confidence motion are entitled to protection of Article 105(2) and are not answerable in a Court of Law for alleged conspiracy and agreement.’ However, ‘The bribe-takers could be proceeded against by Parliament itself.’ This judgement clearly established that parliament is the sole arbitrator of its business and proceedings and the judiciary cannot come in this matter. This judgement has not been superseded by another judgement reversing the position.
The judicial interpretation of powers and privileges of the legislature and its member has not been consistent.
In a special reference no. (1) 1964, the supreme court observed that the legislature in India unlike the house of commons does not enjoy the power to regulate its own constitution. Hence, the Indian legislature (Article 105 [3] and Article 194 [3]) does not have the same powers and privileges as enjoyed by the house of commons.
On the basis of the above judgement, the Punjab and Haryana high court in a judgement (1977) decided that article 194 (3) does not give the legislative assembly the power to expel its member. The court observed that the power of the house of commons to expel its member arises from its privilege to regulate its own constitution. Since, it is not available to Indian legislature; the latter is not privileged to expel its member. The Madras and Madhya Pradesh high courts took the opposite position and argued that the Indian legislature was empowered to expel its member as a part of its disciplinary jurisdiction.
Parliamentary precedents in India indicate that the legislature has exercised the power to expel its members time and again. On September 25, 1951, the lok sabha expelled its member GP Mudgal from the house for raising a question after being paid for the service rendered. On November 24, 1977, Indira Gandhi was expelled from the lok sabha for obstructing, intimidating and falsely implicating certain officials who were collecting information for answering in the previous lok sabha. Her membership was restored on December 19, 1978 by a resolution of the house that rescinded its earlier motion expelling her from the house. The rajya sabha expelled Subramaniam Swamy from the house on November 15, 1975. There are also examples of expulsion from the state legislative assemblies in Maharashtra, Haryana, Madhya Pradesh and Tamil Nadu.
Even the procedural issue raised by Raja Ram Pal has parliamentary precedents. HG Mudgal was expelled from the lok sabha in 1951 on the report of the special committee of the house. When certain members raised the question of procedure, the then lok sabha Speaker Malvankar clarified: ‘Even though there is a committee of Privilege constituted under the rules, yet it is within the power of the House to constitute other special committees if there are any special circumstances and inquiries to be made…Moreover, it is a moot question to consider whether any such conduct as alleged is really in a sense a breach of privilege of the House or something different. A member may behave in a manner in which the House would not like him to behave yet it may be argued that it is not a breach of privilege.’ Quoting British precedent on which the privileges of the lok sabha MPs are based, he illustrated: ‘In all such circumstances, the practice in the House of Commons has been to constitute a special committee and the procedure of making a motion is procedure that is usually adopted in the House of Commons even though there is a Committee of Privileges.’ The house of commons had expelled members through the special committee.
To reiterate, the Indian Constitution (Article 105 [2] and Article 122) is clear that the proceedings in parliament are not subject to judicial scrutiny. The supreme court in PV Narasimha Rao v. State had endorsed the constitutional position.
Parliamentary precedents on the issue of expulsion are established. Indian parliament had already expelled a member in 1951 through special committee. The house of commons had set the precedent of expulsion through special committee. Since privileges of the Indian parliament and its members (Article 105 [3]), until so defined, are those of the house of commons; it is very much the privilege of parliament to expel its member.
However, it would be better if parliament sits to codify the powers, privileges and immunities of the legislature and its members. The constitution review committee headed by the former chief justice of India, MN Venkatachaliah, has recommended codification of powers, privileges and immunities of each house of parliament and its member. The supreme court may play a constructive role in this task.
The author is lecturer, political science

Biman Bose denies making derogatory comments against judiciary
Kolkata (PTI): CPI(M) leader Biman Bose, facing contempt charges, has denied having passed derogatory comments against the judiciary on the Calcutta High Court order on March 14 police firing at Nandigram last year.
“I have high regard for the judiciary and judges, but the comments attributed to me (in the media) are baseless and politically motivated,” Bose, the CPI(M) state Committee Secretary and politburo member, said in an affidavit filed in the High Court on Thursday.
He claimed in the affidavit that he had made ‘constructive criticism’ of the court order that described the police firing as unconstitutional and illegal.
Bose, along with CITU state President Shyamal Chakraborty and CPI(M) Central Committee member Benoy Konar, have been charged with contempt of court and asked to file affidavits.
Chakraborty and Konar have also filed affidavits as directed by the court.
They were facing contempt charges by a division bench after the High Court Bar Association, Bar Library Club, BJP leader Rahul Sinha and Idris Ali of Congress moved criminal contempt proceedings against the three CPI(M) leaders for allegedly passing derogatory comments against the judiciary at a rally on November 17 last year.

Haryana HC orders Huda plot allotment inquiry be completed in 2 months
Taking cognizance of the serious allegations about allotment of the residential plots meant for the industrial workers to some officers by Haryana Urban Development Authority (HUDA) at Panipat, the Punjab and Haryana High Court directed that the vigilance inquiry into seventeen specific individuals listed as respondents in a PIL be completed within two months.In case this was not done within the prescribed period, the concerned investigating officer would remain present in the court at the next hearing fixed for January 20, 2009 so that appropriate orders for action against him were passed, the division bench of Chief Justice Tirath Singh Thakur and Justice Jasbir Singh directed during the resumed hearing on the PIL filed against the allotments in question by Panipat-based trade union leader P P Kapur. At the same time, the high court also disapproved the stand taken by HUDA that any person employed in an industry is to be treated as an industrial worker irrespective of his or her designation or nomenclature and that senior executives, managers or supervisors were also to be treated as industrial workers.‘We are prima facie of the view that only these persons employed in the industry, who came within the definition of workmen under the industrial disputes act would be entitled to allotment of plot as industrial worker’, the bench observed.The counsel for HUDA submitted that a vigilance inquiry into the case had been ordered by the state government in 2005 but it was delayed as it involved 1000 plots to a large number of allotees. The investigation which saw a change of seven investigation officers is being conducted now by DSP Sajjan Kumar of the vigilance bureau, it was further submitted.The bench has also ordered the Haryana government to ensure that summons to be issued by the Registrar of the high court for three people namely Pankaj Gupta, senior export executive of Gupta Textiles, K S Yadav of Ballarpur Industries and V S Venkatratnam senior manager, National Fertilizers, all Panipat-based individuals, were served to enable their presence in the court at the time of next hearing. They are among the beneficiaries of residential plots scheme meant for industrial workers. UNI

PIL in HC questions policy for spectrum allocation
8 Nov 2008, 0338 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: After a concerned Prime Minister Manmohan Singh inquired about it and the Left Front made nasty noises, a PIL has raised several questions on the telecom ministry’s “first come first serve” policy for allotment of 2G spectrum licence, allegedly at a huge loss to the exchequer. This non-transparent policy stifled competitive bidding and allowed people with no telecom experience to book spectrum and sell it to bigger players for huge money, alleged the PIL filed by Arvind Gupta. The PIL, seeking quashing of the present allotment procedure, is scheduled to be heard by the HC next week. Telecom minister A Raja may have dared inquiry against him on allocation of spectrum licence to Swan Telecom and Unitech, which sold their stake to foreign players at huge premium kicking up a controversy, but the PIL focussed on the arbitrariness involved in the “first come first serve” criteria. Gupta cited a parallel. He had successfully challenged in the HC Doordarshan’s identical “first come first serve” policy allotment of time slots on satellite channels. The HC, in its September 21, 1993 verdict, had held, “The basis of first come first serve for allotment of time slots on satellite channels is arbitrary. It is unreasonable, unjust and unfair.” Gupta said it was strange that the government decided to employ an allotment procedure that had been declared illegal by the HC leading to arbitrary allotment of spectrum licences without accountability and transparency. “The proximity of real estate developers to the corridors of department of telecom has enabled even real estate developers to overnight turn into telecom entrepreneurs. Indian real estate developers and infrastructure promoters have also become Indian telecom players,” he alleged. “The telecom ministry’s deliberate inaction in adopting recommendation of the finance ministry, PMO and Trai policy has benefited private parties at the expense of public exchequer,” the petitioner said. Without providing a level playing field for all players, the government by adopting “first come first serve” policy had acted like a fair price shop and allotted telecom licences on rates fixed long ago causing a huge loss of revenue, Gupta alleged.

Supreme Court Deplores Divisive Political Climate
New Delhi: Nov. 6, 2008
The Supreme Court of India on Thursday while admitting a Public Interest Litigation (PIL) on the ongoing Maharashtra-Bihar politics of regionalism spearheaded by the Maharashtra Navnirman Sena (MNS) hothead Raj Thackeray, said that it was distressing to talk about Indians and north Indians when all the citizens were Indians.”We are all Indians so what is this about north Indians and other Indians?” Supreme Court Justices G. S. Singhvi and B. N. Agrawal said during the filing of the PIL by one Sanjiv Kumar Singh who said that he took the extreme measure of moving the court after the Maharashtra government, despite several pleas, refused to reign in Thackeray who had unleashed a reign of terror against people from Bihar, Jharkhand, Uttar Pradesh and other north Indians.Meanwhile, in a related development, an activist group in Patna on Thursday filed a criminal complaint against Bhartiya Janata Party (BJP) leaders Sushil Kumar Modi and PHED Minister Ashwini Kumar Choubey for acting in haste in connection with the cremation of Patna youth Rahul Raj who was shot dead by police in Mumbai after he pulled out a gun demanding to meet with Maharashtra police commissioner.Besides Modi and Choubey, other defendants in the the lawsuit include Bal, Raj, and Uddhav Thackeray, and Maharashtra Home Minister R. R. Patil.The case would be undertaken by the Chief Judicial Magistrate on November 14

Press Release for regional expansion of CRISP
Posted by legalfighter on November 8, 2008
Children Rights Initiative for Shared Parenting (CRISP) is an NGO formed in Bangalore to create awareness in the society about the paramount importance of a child’s welfare in a child custody case between erring parents primarily, along with other areas of welfare of children in the broader sense of the physical well being and mental and emotional stability and to promote social and spiritual welfare and education. It is just impossible for a single parent to fulfill the rising demands of children so both the natural parents have to mandatorily co – operate in raising their children in spite of their separation as spouses and individual differences. CRISP is announcing the launch of its new chapters in Delhi, Lucknow and Nagpur and Hyderabad in the first round. Our mission is to open local chapters in all metro cities and tier II cities around the country.
Of late the social institution of marriage in India seems to be crumbling as is evident from the increasing number of divorces especially in urban India. Recent studies have shown 2 out of 5 marriages end in divorces in Mumbai and 10 divorces are filed on an average in a day in Delhi as shown in various media reports. The immediate consequence of such a fallacy reflects on the upbringing of the child from the wedlock. Since children become the objects and objectives of the ego war between erring parents and a tool for bargain, the custody battle becomes a heinous poison which strangulates innocent childhood in the precincts of a litigating corridor.
Today on November 14, 2008 CRISP is happy to launch its local chapter in . CRISP believes this day being an auspicious one as celebrated in India as Children’s Day on account of birthday of our beloved Pandit Jawaharlal Nehru, is an ideal day for launching a new CRISP chapter. For Nehruji was a fantastic father as is evident from his letters to his daughter reading which she became one of the most prominent prime ministers in Indian History being known as Iron Lady. He has personified the well known saying, “One father is better than 100 teachers” and emphasized the presence of a father in a child’s upbringing and training to become a good human being.
Our aims and objectives are based on research findings worldwide which indicate that children do best when both parents are actively involved in their lives, even after separation or divorce. We believe that conflict between parents will get reduced and the mental and emotional health of children will improve, when divorcing parents can be assured of equal and meaningful contact with their children. As the same is corroborated by reliable statistics from all over the world show that children brought up in a fatherless society, by depriving children from their fathers, are
· 5 times more likely to commit suicide
· 32 times more likely to run away from home.
· 20 times more likely to have behavioral disorders
· 14 times more likely to commit rape.
· 9 times more likely to drop out of high school.
· 10 times more likely to abuse chemical substances (become drug addicts)
· 9 times more likely to end up in a state-operated institution
· 20 times more likely to end up in prison.
· 3 million teenage girls have sexually transmitted diseases
· At least 1 out of 4 teenagers (between 14years to 19years) suffers from sexually transmitted diseases.
It is important for all citizens of the nation to wake up to stop a future social catastrophe as it has happened in western countries. We have to learn from the social experiments in America and Europe and stop repeating the mistakes western countries did in last 30 years. What happened in the 70s in the Western society is being replicated in India in the current age. Today, billions of dollars are spent in those countries to tackle the behavioral problems. In fact, this is a major issue in most election campaigns in those countries as billions are spent on it. If a child is denied care of father as at present and if India becomes a fatherless society, then it will simply create more criminals, rapists and drug addicts in next 15 years (as shown in the statistics above). The entire social fabric and culture will be in ruins and the damage will be irreversible. So, CRISP members want to stop this social catastrophe and save the future generations from narrow mindsets.
CRISP was born on Jun 14 2008 on the pretext of Father’s Day. As is mostly seen in child custody cases mothers are generally favored over fathers and the child is deprived of the father’s love which creates an unnatural imbalance in the child’s life and in many cases, because of the undue sentimental balance towards women, tangible evidences are ignored leading to grave injustice to men. In order to curb the same and ensure proper child growth, 50 fathers joined hands in Bangalore to form CRISP and in four months CRISP is happy to have expanded to 500 members including women who realize the importance of both parents in a child’s upbringing. There are many NRIs who have benefitted from the counseling they received from CRISP members.
As per the brilliant work done by R.A. Gardner Parental Alienation Syndrome has been identified as a serious psychological disorder who has defined it as,
“The parental alienation syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent”
(Excerpted from: Gardner, R.A. (1998). The Parental Alienation Syndrome, Second Edition, Cresskill, NJ: Creative Therapeutics, Inc.)
Basically, this means that through verbal and non verbal thoughts, actions and mannerisms, a child is emotionally abused (brainwashed) into thinking the other parent is the enemy. This ranges from bad mouthing the other parent in front of the children, to withholding visits, to pre-arranging the activities for the children while visiting with the other parent. More details can be found at
This has been the study of CRISP that members suffering from custodial concerns of their children fear their children developing Parental Alienation Syndrome. In the best interests of the children who are the future of the society and the country CRISP urges the society and the government to understand the problems of children facing litigating parents and work for their welfare.
CRISP is working with eminent social workers on filing a Public Interest Litigation (PIL) in the Honorable Supreme Court. This will PIL will be focused on the prayer to the Honorable Supreme Court to issue universal guidelines applicable all over India to determine the parameters of child welfare and issue guidelines for deciding best interest of children. The PIL is in its advanced stage and will be filed soon.
In addition to the above contentions CRISP is going to present an online petition to the Honorable Chief Justice of India, some of the salient points of the petition, which are also the demands of CRISP from the Government, are:
1. Give due consideration to the presence of a father in a child’s upbringing not only as a name but also as the natural guardian and also give fathers a fair chance to win custody cases.
2. India should also be a signatory to the International Hague Convention for honoring foreign court judgments in India.
3. Define Parental Abduction as a heinous crime and prescribe strict punishment for it by describing it as a cognizable, non – bailable and non – compoundable offense.
4. Orientation programs for judges of family courts to be conducted by psychologists to make them understand child related issues in a scientific and methodical manner.
5. Child custody issues to be disposed off within 6 months of the date of application, or at least visitation be granted to the non – custodian parent (fathers generally) in two hearings or three months whichever is earlier from the date of application and the granted visitation be of such nature so that it can build a sustainable parent – child relationship between the child (ren) and the non – custodian parent.
6. Child interviews should be conducted for complex cases only after the child has been allowed to spend nearly equal and quality time with both the parents and such interviews be limited to adolescents only and then too the interview be viewed as a guiding evidence only and not a primary one and to avoid brainwashing of children’s mind. Ascertaining the choice of children to select a parent is a cruelty of highest order.
7. The Supreme Court needs to emphasize on the need for a separate child welfare ministry separating it from the current clubbed scenario of Women and Child Development Ministry.
8. The courts also need to sensitize themselves to the fact that grandparents have more love for their grandchildren and they should not be deprived of that. Also grandparents have additional time and dedication to impart values to the children out of natural affection instead of expecting the servants who obviously spend maximum time with the children to teach morals.
9. No importance should be given to the individual rights of a parent in a child custody matter. The court who is the ultimate guardian of the child welfare. Any the change of circumstances needs to regularly reflect in the timely orders passed by the court as custody orders by its very nature cannot be a final order.
10. Guardianship courts should be opened specifically for custody matters. So that custody matters are not mixed up with marital problems and appoint counselors and psychologists to conduct regular welfare checks on the growth and upbringing of the children and send reports to the courts.
Lastly as a parting note CRISP would be interested to suggest the following model for shared parenting:
Model 1: In case of matters where both the parents are fit to take care of the children and residing in the same city, the child can stay with one parent during the weekdays i.e. from Monday to Friday and with the other parent during the weekends from Saturday morning to Sunday evening so that the child will get accustomed to both the households.
Model 2: In case of parents not residing in the same city, the child can be given on merits, taking into account the interest of the child, to the mothers and all school vacations, festivals, family occasions, birthdays, etc. the child can spend quality time on a 50 – 50 basis with both parents.
Model 3: In case the child is of tender age, the child may be with mother under normal circumstances under generous visitation rights to the father sufficient to build a sustainable father – child relationship with unlimited access.
With the above models, compulsory counseling has to take place to parents to educate them about the ill – effects of forced single parenthood. Any habitual willful disobedience of the custody orders be viewed seriously and should automatically result in transfer of primary custody of the child from the custodian parent to the non – custodian parent. The situation needs to be monitored by the court. Also disqualification of any parent should be evidence based and not allegation based and the courts need to be gender neutral and promote shared parenting in the best interest of the child.

Thanks and RegardsCRISP Team

Christian body in Orissa moves court for change of judge
8 Nov 2008, 2144 hrs IST, IANS
BHUBANESWAR: A Christian body has moved the Orissa High Court seeking to change the judge heading the judicial commission appointed by the government to probe into communal violence in the state, a lawyer said on Saturday. The Orissa government appointed SC Mohapatra, a retired judge of the Orissa High Court, this September to the one-man judicial commission that will probe into the killing of a Hindu leader August 23 and into the communal violence that followed. The Utkal Christian Council represented through its secretary Jyotsna Rani Patro filed a writ application in the Orissa High court Friday describing the appointment of Justice Mohapatra as illegal, the council’s lawyer Prasanna Kumar Nanda said. “Mohapatra, a former Lok Pal (vigilance body member), cannot be appointed to head the commission because he is not eligible as per law,” Nanda said. “As per section 5 of the Lokpal Act on ceasing to hold office the Lokpal or Lokayukta shall be ineligible for further appointment under the state government,” he said. “The council in its petition has requested the court to declare the appointment of Justice Mohapatra as illegal. The council has also said that the court may appoint any person or direct the government to appoint some other person,” he said. Kandhamal district, some 200 km from the state capital Bhubaneswar, witnessed communal violence after the killing of Swami Laxmanananda Saraswati and his aides at the Jalespata Ashram Aug 23. At least 38 persons were killed and over 23,000 Christians were forced to flee their homes. While some have returned, more than 10,000 are still living in government-run relief camps in the district. The murder of 40-year-old Dhanu Pradhani, an activist of the Rashtriya Swayamsevak Sangh (RSS) by suspected Maoists on Nov 5 has now rekindled tension in the region.

Delhi high court all set to rule on same-sex activity petition
Its verdict will be the first delivered by an Indian court on a 19th century law that treats homosexual activity as a criminal offence
Malathi Nayak
New Delhi: The Delhi high court on Friday moved a step closer to passing verdict on a seven-year-old petition that seeks to keep homosexuality out of the ambit of a law that makes “unnatural” sex a criminal offence.
A bench headed by the chief justice of the Delhi high court, A.P. Shah, completed hearing arguments in the case and reserved its judgment, on Friday. It asked the petitioners and the respondents to file transcripts of their oral arguments by 17 November.
Its verdict will be the first delivered by an Indian court on a 19th century law that treats homosexual activity as a criminal offence. Since the 1980s, courts in countries such as the UK, Australia, South Africa and the US have struck down similar laws that made same-sex activity a crime.
The petition was filed by New Delhi-based non-profit group Naz Foundation in 2001, seeking a reading down of section 377 of the Indian Penal Code (IPC) of 1860 that criminalizes “private consensual sex between adults” of the same sex.
Section 377 of the IPC, 1860, says an individual who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal” shall be imprisoned for life or for a term exceeding 10 years and be liable to pay a fine.
Since section 377 is also applicable to cases of child sexual abuse and sexual activity without mutual consent, the petitioners have asked the court to redraw the law to the extent that it decriminalizes same-sex activity.
Naz Foundation has been working on issues related to HIV, AIDS and sexual health since 1994. Its main argument was that efforts to curb the spread of HIV and AIDS are impeded by the law, as it pushes homosexual activity, one of the main causes of the spread of HIV and AIDS, underground.
Voices Against 377, another non-profit group fighting for gay rights, was also made a respondent after it sought the court’s permission to intervene in this case in support of Naz Foundation.
During the course of the proceedings, the Union health ministry and the ministry of home affairs, which are respondents to the petition, were divided, with the health ministry’s affidavit supporting the petitioners and the home ministry opposing decriminalization of same-sex activity.
The National AIDS Control Organisation that functions under the health ministry, told the court through an affidavit filed in July 2006 that section 377 of the IPC “can adversely contribute to pushing the infection (HIV/AIDS) underground”, besides making “risky sexual practices go unnoticed and unaddressed”.
On its part, the Union government, represented by additional solicitor general P.P. Malhotra, had rebutted Naz Foundation’s argument that section 377 is violative of homosexuals’ right to privacy by contending that the right could be curtailed in the interest of public morality and decency. Malhotra argued that while section 377 has rarely been used to prosecute people for same-sex activity, it acts as a deterrent to homosexual conduct, which he said was a cause for the spread of HIV and AIDS in the country. In October he had told the court, “Allowing MSM (men having sex with men) is nothing but spreading AIDS.”
“It was right for those in the LGBT (lesbian, gay, bisexual and transgender) rights movement to have reposed faith in the judiciary instead of asking the political class for change,” said New Delhi-based gay rights activist and lawyer Aditya Bondyopadhyay.
“The reaction of the court so far has been positive, non-prejudiced and scientific while the government has taken an unscientific, moralistic and homophobic view,” added Bondyopadhyay.

Delhi High Court
Posted by DigitalGroup Saturday, November 8, 2008 at 9:02 AM
Delhi High Court on Friday refused to pass any order on a plea seeking judicial inquiry into Jamia Nagar police encounter in which two suspected terrorists allegedly involved in Delhi serial blasts were killed.A bench comprising Chief Justice A P Shah and Justice S Muralidhar refused to express any opinion as the National Human Rights Commission is looking into the matter and its (court’s) interference may amount to carrying out a parallel inquiry.”We are not inclined to express opinion as far as prayer one (for judicial inquiry) is concerned. A far as other prayers (pertaining to leak of the confessional statement) are concerned we issue notice,” the Bench said.The bench issued notice to the Centre, Delhi Police and a news magazine for a leak on the alleged confessional statement made by the accused of serial bomb blasts to media.The bench passed the order on a petition filed by an NGO, Act Now for Harmony and Democracy, seeking a judicial inquiry doubting the police version on the September 19 encounter in which one of its officials was also killed.”There are facts and circumstances which caste doubts on the version of police officials. Even the NHRC guidelines say that a judicial inquiry be conducted in cases of encounter,” said advocate Prashant Bhushan who appeared for the NGO.Advocate Mukta Gupta appearing for the police opposed the plea seeking a judicial inquiry saying that the NHRC is seized of the matter.Opposing the police contention, the petitioner said the NHRC’s direction is not binding on the government, therefore, the court should interfere in the matter.The court, however, was not convinced and refused to pass any order at this stage. “We find it difficult to accept the plea. NHRC report can be the basis of further action. It (court’s interference) would amount to carrying out parallel inquiry,” the bench said.”We are not rejecting your prayer at this stage and we are asking the police to file it’s response on other prayers,” the Bench said asking the NGO to approach NHRC when the police contended that a complaint has already been filed before the Commission which had issued notice to it.”You approach the NHRC. It is a statutory body,” the court said.The police counsel, who was joined by top officers from the anti-terrorist Special Cell and the South District, informed the court that the preliminary report pertaining to the encounter has already been filed before the Commission and a detailed report would be filed soon.The police refuted all allegations made by the NGO pertaining to the veracity of the encounter and accused it of filing false information before the court.Raising doubts over the police version, which said that those killed were terrorists involved in September 13 serial blasts, the petitioner contended that there were many discrepancies in its stand which needed to be clarified.”A number of questions have been raised over the veracity of the said encounter by responsible and independent sections of the society and the media. This has raised serious doubts regarding the genuineness of it leading to a situation that certainly warrants an independent judicial probe,” the NGO said in its petition.The NGO pointed out that a fact-finding team after visiting the encounter site found that the contention of the police that two persons escaped from the site was not right as there was no escape route.”If the Special Cell knew that they were terrorists then why was M C Sharma not wearing a bullet proof vest if the Special Cell was going to apprehend dreaded terrorists,” the petition says.”The police would not have entered the premises without bullet proof vests if they were convinced that the persons living in the flat were terrorists,” the petition says, while quoting the findings of the team.The NGO also sought action against police officials who revealed the information pertaining to investigations into the case to a m agazine.”Delhi Police is leaking information which was obtained by them in the course of their interrogation into the case to the media and the manner in which the media publishes such information, apart from being defamatory in nature, also affects the fundamental right of the accused to a fair trial,” the petition said.


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