LEGAL NEWS 19.11.2008

HC notice to L-G, building department
19 Nov 2008, 0732 hrs IST, TNN
NEW DELHI: The Delhi High Court has issued notices to Lt governor and secretary of land and building department on a petition seeking contempt proceedings against them. The petition alleges that the two have failed to pay compensation to farmers whose land was acquired by the Delhi government two decades ago for airport expansion. Justice SN Dhingra has issued notice on the plea of Dayanand, an aggrieved land owner, who stated that the authorities had not paid him the compensation for the plot despite an earlier directive by the court. In 2005, the court had directed that the land acquisition collector complete the entire process of giving compensation to the farmers, whose land was acquired in Deoli village in the Capital, within six months. Advocate Surat Singh, appearing for the petitioner, contended that despite the court’s order, the farmers have not been given compensation for their acquired plots. “Land acquisition commissioner kept on assuring that farmers’ case will be heard and appropriate order will be passed. Despite repeated visits by the farmers, the officer kept on adjourning the matter,” Singh submitted. The court on hearing the contentions issued notices and asked the officials to file their response within eight weeks. The preliminary notification for the land acquisition was issued in 1980. The land was acquired five years later. Despite the court’s order, villagers were deprived of any compensation even as land price has spiralled.

Rizwan case: Calcutta HC asks three cops to surrender
19 Nov 2008, 0327 hrs IST, TNN
KOLKATA: The Calcutta High Court on Tuesday cancelled the interim bail granted to the three police officers accused in the Rizwanur Rahman death case.
The officers Ajoy Kumar, Sukanti Chakraborty and Krishnendu Das who got interim bail from the city sessions court on October 1 were given three days to surrender before the 14th metropolitan magistrate’s court. Rizwanur’s mother, Kishwar Jahan, had moved the court, challenging the city sessions court’s October 1 order.
The three officers are now likely to appeal before the Supreme Court against the decision. The next hearing in the case at the 14th metropolitan magistrate’s court is scheduled for Thursday.
“Interim bail was granted even before the case diary was submitted before the court. There was no time-limit given in the interim bail. This is unprecedented,” said Kalyan Banerjee, counsel for the Rahman family. Banerjee and the CBI counsel had appealed against the bail plea, claiming the three being police officers could intimidate witnesses and tamper with evidence. The three have been chargesheeted along with industrialist Ashok Todi, his brother Pradip, cousin Anil Saraogi and social worker S M Mohiuddin alias Pappu by CBI.
The three officers had surrendered before the 14th metropolitan magistrate’s court on September 30, but were remanded in judicial custody. The trio had to spend the night behind bars at the Presidency jail before they were granted interim bail by the city sessions court. Since then, the three have been appearing before the designated CBI court.
The Todi brothers and Saraogi have moved the SC seeking a stay order on the arrest warrant issued against them. Pappu is in jail custody.
The body of Rizwanur Rahman, a computer graphics designer, was found on rail tracks on September 21, 2007, days after his marriage with Priyanka Todi, daughter of Ashok Todi. The Todis had sought help from the then DC (HQ) Gyanwant Singh to break the marriage. Singh referred the matter to Kumar.
The CBI investigation revealed that Kumar, the then DC (detective department), Sukanti Chakraborty (the then ACP of anti-rowdy cell) and sub-inspector Krishnendu Das had worked in tandem to separate the couple. On September 22, the CBI submitted its chargesheet before the chief metropolitan magistrate’s court.

Municipal commissioner can’t declare NGOs eligibility: HC
19 Nov 2008, 0003 hrs IST, Clara Lewis, TNN
MUMBAI: It is a small but significant dent in the powers of the municipal commissioner and his local satrap, the assistant municipal commissioner. A division bench of the Bombay high court last month ruled that neither official has the authority to scrutinise or declare as eligible or ineligible a non-governmental organisation (NGO) seeking nomination to the local ward council. All nominations received must be placed before the ward committee (corporators), and the committee will decide on the eligibility, the court ruled. The BMC has 16 ward committees and nomination of NGOs has already been done for 10 wards. The tenure is five years. NGOs have no voting powers, but they can influence spending by highlighting the work that needs to be done in a particular ward. Corporators have been quick to react to the judgment. Rajendra Lad, Maharashtra Navnirman Sena (MNS) corporator from Kurla, has demanded that all the nominations be scrapped and the process be carried out anew. “We have referred the issue of scrapping the nominations to the legal department,” said Mridula Joshi, municipal secretary in charge of the ward committees. The committees were set up in 2000 as part of a decentralisation exercise initiated by the state government. The committee has financial powers of up to Rs 5 crore. A maximum of three NGOs can be nominated to a ward committee. “Nomination of NGOs has become politicised and is seen as a means to accommodate the ones with political affiliations. If an NGO is apolitical, it is difficult to be nominated despite the good work done in the ward,” said a member of a Bandra-based NGO. The problem arose in the L-ward (Kurla), where two NGOs ___Gaurishankar Kreeda Mandal and Athak Seva Sangh, that were deemed eligible by the local ward officer, were not elected to the ward committee. However, the Sena-dominated ward committee allegedly elected those that were deemed ineligible. The matter was taken to court by the `eligible’ NGOs. A division bench comprising Justices F Rebello and A Kumbhakoni, however, held that under the Maharashtra Municipal Corporations, Municipal Councils and Nagar Panchayats Rules 2000, there was no provision for scrutinising the nominations received by the corporation. “In the absence of statutory provisions, it is not at all open either for the assistant commissioner or the municipal commissioner to carry out the scrutiny to find out which NGOs are eligible and which are not. The conclusions drawn have no value in law and cannot be considered for any purpose whatsoever,” reads the judgment. The judgment states that all nominations received by the corporation must be placed before the wards committee. “It is for the wards committee to take an appropriate decision including the eligibility of the nominations,” the court has ruled.

HC slams cops for filing NC in harassment case
19 Nov 2008, 0129 hrs IST, Shibu Thomas, TNN
MUMBAI: The Bombay high court on Tuesday directed the Mumbai police to explain why it had failed to register an FIR in a five-year-old sexual harassment case filed by a college professor. Hearing an application filed in the case, a division bench of Justice Bilal Nazki and Justice J H Bhatia came down hard on the police for registering a non-cognisable (NC) complaint in the case instead of an FIR. The judges said a plain reading of the professors complaintin January 2003 revealed that prima facie, an offence of outraging the modesty of a woman under Section 354 of the Indian Penal Code was made out. The court directed the public prosecutor to file a report in the case within a week. The court was hearing an application by Waheed Ansari, a former shikhsan sevak (teaching assistant) at Khairul Islam Higher Education Societys Maharashtra College at Mumbai Central, against whom the allegations of sexual harassment were levelled. Ansari was appointed to the college in 2002 and served for a year before his services were terminated for misconduct. An assistant professor of the college for 11 years, she had levelled harassment charges against Ansari. Following several rounds of litigation, Ansari recently filed a fresh petition in the high court seeking to quash the proceedings before the president of the one-man committee, which looks into cases of shikshan sevaks. Ansari contended that the college management had failed to produce the original copy of the complaint of the lady professor. Assistant government pleader Pradeep Patil told the court that Ansari should agitate his grievances before the committee. While going through the documents, the court noticed that despite the seriousness of the allegations, the Nagpada police had registered just an NC.

Cabbie killer’ on death row acquitted by HC
19 Nov 2008, 0732 hrs IST, Dipak Kumar Dash, TNN
GURGAON: In a rare reversal of verdict which is a setback for Haryana Police, Punjab and Haryana High Court has acquitted a man sentenced to death by a sessions court for brutally killing a cab driver after hiring him from the Gurgaon bus terminus. Devender Kumar, an ayurvedic practitioner, had been sentenced to hang till death by a Gurgaon court in May this year. Kumar, who became notorious as cabbie killer was acquitted by a bench of Justice K S Garewal and Justice Jitendra Chauhan on October 24 on the ground the police had failed to establish the chain of circumstances to link Kumar to the crime. The Gurgaon Police had claimed the doctor was involved in the murder of 21 cab drivers. Earlier, the Gurgaon court had remarked that Devender Kumar had been acquitted in two other cases “due to lack of penetration in the investigation and poor standards of investigation.” In its order, the HC said, “The conviction and sentence passed upon the above-mentioned person under section 364, 302/120B and 201 IPC is set aside and it is ordered that he be acquitted forthwith and set at liberty on the receipt of this order.” However, since there are other cases pending against the accused in different courts in Delhi and Haryana, Kumar remains behind the bar in Bhondsi Jail in Gurgaon. According to the defence, the HC bench accepted their appeal and set aside the claims of the prosecution that the brother and nephew of the deceased, Naresh Ramniwas and Sanju had seen Kumar with the cabbie for the last time near the Gurgaon bus terminus when he had allegedly hired the taxi. It also set aside prosecution claims of Kumar concealing the deceased’s dress and driving licence. “The prosecution had claimed that the accused had taken off the driver’s clothes before throwing the body into Hazra canal in UP. But the bench was not convinced about the police stance on the chain of events,” the defence said. According to Gurgaon police, Kumar, an ayurvedic doctor from Aligarh in UP, had hired the deceased’s cab a Tata Sumo from the Gurgaon bus terminus on February 3, 2002. The cabbie went missing after that. Then his brother, Ram Niwas, lodged a missing person’s complaint with the city police station on February 5 giving description of the passenger. On February 11, 2002, Ram Niwas lodged a case of abduction and murder against an unknown person. The police had claimed that Kumar had strangled Naresh and and dumped the body in the Hazra canal, before taking away his cab. He had allegedly done this with three accomplices Kishan, Fateh and Vedbir. The police had also claimed Kumar was the kingpin of a killer gang active in UP, Gurgaon, Delhi and Jaipur and was allegedly involved in 21 such cases. After his successive arrest and `confession’ before police, he was chragesheeted. The prosecution had claimed before the lower court that Kumar had confessed to his involvement in all the 21 cases in his disclosure statement. Based on the circumstantial evidence produced by the prosecution (recovery of the deceased’s dress, driving licence and bank passbook) and the accounts of Ramniwas and Sanju, Gurgaon additional sessions judge had convicted him saying, “The life of the convict can certainly be saved but in this situation saving life of the convict may be at the cost of a number of other innocent public persons.” After the acquittal by HC in the case, Kumar said, “I have been acquitted in 15 cases. I know it will take me another three-four years to get a clean chit. But I want to prove myself innocent and how I have been a victim of a large conspiracy in which police are also a party.” He further said that he has already written to the chief justices of Supreme Court and high courts and National Human Rights Commission to initiate action against the judicial officer who convicted him and the police for `framing’ false charges.

HC to hear PILs on bandhs
18 Nov 2008, 2350 hrs IST, TNN
Bangalore : The Karnataka High Court under special orders will hear on Wednesday a batch of PILs seeking regulatory mechanism for bandhs and rallies in Bangalore. These petitions, filed in the aftermath of various rallies and processions in the city in which public life was affected during the past four years, will be heard by a division bench headed by Justice S R Bannurmath. City advocate A V Amaranathan, senior citizen B Krishna Bhat, litterateur K Marulasiddappa and Shudra Shrinivasa and others filed PILs highlighting the travails of citizens of Bangalore during such events. On an earlier occasion, the court directed major national and state political parties like the Congress, Bharatiya Janata Party, Communist parties, JD(S) and others to file their statements. So far, only JD(U) filed a response, agreeing to some kind of regulatory mechanism. The petitioners cited problems faced by residents during the Daridranarayana Rally held by former Prime Minister H D Deve Gowda, Congress leader Siddaramaiah’s rally, the pro-Saddam rally and Hindu Samajotsav rallies. Govt stand Vatsala Vatsa, the then principal secretary (home), had filed a statement on behalf of the government with regard to regulating bandhs and rallies. “Rallies and protests are democratic forms of resistance and protest. But, at the same time, the rights of citizens who do not participate in such rallies have to be borne in mind. Therefore, to strike a balance between the right to protest and maintenance of public order, reasonable restrictions are required to be imposed on the routes of processions and rallies or on the venues of protest or meetings. Some places can be earmarked permanently for such rallies and protests like in Delhi and other places. “It would not infringe the fundamental rights of any citizen if permission is granted imposing reasonable restrictions. Rallies, if any, may be permitted only during off-peak hours and holidays. As the apex court has already ruled that holders of rallies and hartals have to pay for any public damage, a statutory amount may be fixed to be deposited as security by such organizers, specially where chances of breach of peace are more. The court may, by a judicial pronouncement, as has been done in the case of Cubbon Park, ban holding of rallies, protests, dharnas in places which affect largely the lives of common people and may make it mandatory to hold public meeting only in the places suggested to save people from inconvenience,” the home secretary had suggested in her common affidavit in respect of all PILs.

BMW accident: Utsav Bhasin approaches HC for bail
Date: 2008-11-19
New Delhi:
The Delhi High Court today sought a response from the city police on a bail plea filed by Utsav Bhasin, a Haryana industrialist’s teenaged son who is in custody for allegedly mowing down a motorcyclist with a BMW car. Justice Veena Birbal issued notice to the police and asked them to file their response by November 25. Bahsin (19), approached the High Court after the lower court refused to grant him bail and dismissed his petition on November 6. “The accused may have been 19 years of age having no previous criminal records but the same were not sufficient to override the gravity of offence alleged against him. It is not a fit case to grant bail at this stage as allegations are grave,” the lower court had said. Bhasin, who hit two men on a motorcycle around 2.30 am with his BMW car on September 11 near Moolchand flyover in South Delhi, had surrendered on September 27 after the Delhi High Court refused to grant him the anticipatory bail. Anuj Singh, a BPO employee, who received spinal injuries succumbed to them on the next day of the incident while another victim Mrigank Shrivastava, a journalist, remained hospitalised for a few days. A stringent penal provision of 304 (culpable homicide not amounting to murder) among others of the IPC was invoked against Bhasin.

SC to ex-judges: Keep dignity intact
18 Nov 2008, 0000 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: Retired judges of High Courts and the Supreme Court, rehabilitated with post-retirement assignments by governments, got a terse message from the Supreme Court on Tuesday: “Keep your dignity intact and quit immediately if slighted by the ruling class after a change of regime.” Reflecting on the recent clamour for post-retirement employment as chairperson of various commissions in the state and central level, a Bench comprising Justices B N Agrawal and G S Singhvi said in anguish that this had led to politicisation of important posts, even that of Lokayuktas. It gave the example of Justice K Venkataswami, without taking his name, and recalled how he had immediately resigned as chairperson of the commission inquiring into Tehelka expose on defence deals after a controversy over his holding another post — chairperson of Authority for Advance Rulings (Customs and Central Excise) — was raised in Parliament by Congress. “When a judge is involved in a serious assignment, he should just resign and go out gracefully when the writing is on the wall,” said the Bench, which commented adversely on the apparent lack of grace in Justice Mohd Ashgar Khan, a retired judge of Allahabad HC, for trying to hold on to the post of UP state chief information commissioner despite the governor suspending him for misconduct and sending a reference to the apex court for an inquiry. It virtually reversed an Allahabad HC order staying the governor’s order suspending Justice Khan and transferred his writ petition to the Supreme Court after senior advocate Harish Salve and UP additional advocate general Shail Kumar Dwivedi argued that it was improper on the part of the former CIC to have approached the HC at a time when a reference was pending in SC. When senior advocate Mukul Rohtagi tried to justify the course of action taken by Justice Khan, the Bench said it was surprised by the anxiety shown by the the retired judge to stick on to the post. “Maintain grace of a judicial officer. Why are you so anxious,” the Bench asked. “Propriety demands that he should have moved the Supreme Court when a reference was pending against him there,” the Bench said. Its anguish was palpable as it observed, “It is unfortunate that such important posts have become political appointments.”

Divisive politics a threat: CJI
NEW DELHI, Nov. 18: Conflicts and differences based on caste, religion, gender, class and regionalism are threatening to undo the very foundations on which our constitutional order has been built, Chief Justice of India Mr KG Balakrishnan said here today. In an unusually scathing speech on the country’s current political and law and order situation, the CJI said: “It is quite distressing to note that differences based on caste, religion, gender, class and regionalism continue to be the root cause behind organised and often institutionalised violence.” Addressing a conference on “National Value Crisis and Redressal” here, Justice Mr Balakrishnan said that divisiveness ~ communal, regional and otherwise ~ threatened to blow apart the existing order of the Indian society. Coming down heavily on senseless violence and disruption of life in different parts of the country, the CJI said: “Agitations are resorted to on the flimsiest of reasons and public order is threatened even in circumstances where an inclusive dialogue is the best solution.” He emphasised that differences in should be resolved by means of dialogue. n SNS

Regressive politics contrary to Constitution: CJI
19 Nov 2008, 0146 hrs IST, ET Bureau
NEW DELHI: With mindless violence unleashed by Raj Thackeray’s MNS against north Indians fresh in the mind, Chief Justice of India K G Balakrishnan on Tuesday condemned regressive politics as the biggest threat to the Constitution of India. Voicing his concern at the belligerent posture struck by political parties over divisive issues, Mr Balakrishnan told a conference here that the regressive brand of politics was contrary to principles that “our Constitution stands for.” “There have been several instances of senseless violence in recent times to polarise the nation for the flimsiest of reasons,” he said addressing a conference on National Value Crisis and Redressal. “In a pluralistic society, there are bound to be differences, but with maturity of democracy these differences should be resolved amicably,” he advised. Attacks by MNS activists on north Indians based in Mumbai and other key towns of Maharashtra had led to massive outrage from Opposition parties like JD(U) and BSP, as well as from UPA allies like SP, RJD and LJP. LJP president and Union minister for steel and mines Ram Vilas Paswan even went to the extent of demanding imposition of President’s rule in Maharashtra to stop victimisation of migrants from UP and Bihar. Subsequent advisories to the Maharashtra government seeking an end to MNS’ terror did little to salvage the situation. Things got uglier when an armed Bihar youth Rahul Raj, who had tried to hijack a BEST bus in Mumbai, was shot dead by Mumbai police. Though Maharashtra home minister defended the police action with a ‘bullet for a bullet’ statement, Bihar political leaders were up in arms against the ‘unprovoked shooting’ of Rahul Raj. At a cabinet meeting, both Mr Lalu Prasad and Mr Paswan demanded a judicial probe into the police action against Rahul Raj, even as Prime Minister Manmohan Singh expressed his helplessness in persuading the Maharashtra government to accept the same. At the conference on Tuesday, CJI Balakrishnan expressed concern over degradation of moral values in the judiciary. “There have been allegations against higher judiciary in recent days. It has raised question on who would watch the watchdog,” he said adding that “our national values are deeply eroding at this time.”

Court concerned over spurt in writ petitions filed by panchayat chiefs
Mohamed Imranullah S.
High Court asks Municipal Secretary to convene meeting of local body heads
MADURAI: The Madras High Court has expressed concern over the increasing number of writ petitions being filed by panchayat presidents seeking its intervention even for solving petty problems faced by them while administering local bodies.
Disposing of one such writ petition filed before the Madurai Bench, Justice G. Rajasuria on Monday asked the Government Advocate to convey the court’s anxiety to the Municipal Administration Secretary and the District Collectors concerned.
The Judge suggested that the Secretary call for a meeting of panchayat presidents and instruct them to solve local problems with the assistance of officials such as Block Development Officers and Tahsildars before moving the High Court.
“The people have to come to panchayat presidents seeking redress of their grievances. In that way, they are a court unto themselves. How can one court move another court, that, too, complaining of very basic problems,” he asked the petitioner’s counsel.
Turning to Government Advocate Mr. Justice Rajasuria said: “I am at a loss to understand where we are heading. I have seen at least 10 writ petitions of this nature. See to it that these kinds of cases don’t come to the court.”
In the present petition, S. Arivukkodi, president of Peruvalappur panchayat in Lalgudi taluk of Tiruchi district, had alleged that a few villagers had damaged the fence put up by the local body around a government land spread over 0.36 hectare. A criminal complaint was lodged against the perpetrators but the Siruganur police did not initiate any action, she said, seeking a direction to government officials to initiate appropriate action to protect the public property.
Taking cognisance of the issue, the Judge directed the Tiruchi Collector to interfere in the matter and resolve the problem by issuing necessary directions to his subordinates. He made it clear that the exercise should be completed in two months.

HC declines to interfere with govt order
Express News Service
First Published : 18 Nov 2008 02:01:00 AM IST
Last Updated : 18 Nov 2008 01:44:28 PM IST
KOCHI: A Division Bench of the Kerala High Court on Monday declined to interfere with the order passed by the government, allegedly with unholy haste, reinstating seven Secretariat employees who had been convicted in a criminal case.
The seven assistants had been dismissed from service following their conviction by the trial court for attacking deputy secretary C Vijayakumari Amma for attending duty defying the call for general strike by the Left unions in 2001 to protest against the globalisation.
During the pendency of the appeal against the conviction and sentence, the LDF Government reinstated them in service.Challenging the reinstatement, Vijayakumari Amma filed a public interest writ petition. When the petition was pending, the Sessions Court, Thiruvananthapuram, allowed the appeals and acquitted the accused employees.
The Bench consisting of Chief Justice H L Dattu and Justice A K Basheer declined to entertain the public interest writ petition in service matters and said there was no reason to interfere. Whatever defect was there in the order of reinstatement was rectified by subsequent events (acquittal by sessions court), the court said.

Rs 5,600 cr scam in ambulance services?
18 Nov 2008, 0331 hrs IST, TNN
NEW DELHI: Health minister Anbumani Ramadoss’s ambitious project — to start 108 ambulance services in various cities across India in collaboration with Satyam Computer’s Emergency Management Research Institute (EMRI) — has run into trouble with a PIL in the Supreme Court alleging that it smelled a gigantic scam to the tune of Rs 5,600 crore. The PIL by two NGOs — Ambulance Access Foundation India (AAFI) and Transparency in Contracts (TIC) — claimed that EMRI had signed memorandum of understanding (MoU) with 10 states to provide ambulance and emergency response services without any call of tender. It said the funds for the operation of ambulance services and emergency response services, to be operationalised by EMRI, would be provided by the states from the central grants it receive under National Rural Health Mission (NRHM). A Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam entertained the petition on Monday and issued notices to the Union health ministry and Andhra Pradesh, Gujarat, Madhya Pradesh, Tamil Nadu, Rajasthan, Uttarakhand, Goa, Assam, Haryana, Punjab, Karnataka and Maharashtra, asking them to respond to the charges levelled by the PIL filed through advocate Siddharth Chowdhury. However, the Bench directed deletion of the name of former President A P J Abdul Kalam, who is chairman emeritus of EMRI, and other persons in the management saying the organisation could respond to the charges rather than individuals. Arguing for the PIL petitioners, senior advocate Rajeev Dhawan said, “EMRI is all set to withdraw an estimated amount of Rs 3,800 crore from public funds and get control and possession of approximately 500 acres of prime government land in state capitals and leading cities valued at Rs 1,800 crore.” He added, “The misuse of public money and siphoning off of prime government land is made possible due to lack of transparency in the process and is possibly one of the biggest scams in post-independent India as the process of award of contracts to operate ambulances and emergency response services had been effected without following the due process for award of contracts.” The PIL sought a thorough probe into the manner of awarding contracts to EMRI through non-transparent MoUs. It also wanted the court to direct the states to take back the ambulances from EMRI and run them on their own and award exemplary damages against the errant firm.

SUBVERSE A case worth losing
18 Nov 2008, 0000 hrs IST, Shalini Singh
Telecom minister A Raja is at a loss to convince the media, the opposition and telecom stakeholders why he sold spectrum, a scarce national resource, at a fraction of its value to private companies, causing a staggering Rs 51,000 crore loss to the exchequer. Even if his arguments are valid, there is no law or power that restricted him from seeking an open, transparent auction in 2008 at a time when investors were queuing up for licences and spectrum in India. Now, close to the end of his term, he is valiantly offering to resign, which hardly helps the situation. There are many allegations against the minister apart from favouring a 2001 price of Rs 1,651 crore for pan-India spectrum. He also used a first-come-first-served (FCFS) norm to give away spectrum to select companies in January. Barely 10 months later, some new licensees struck lucrative equity deals at seven times this price without a single penny being invested in infrastructure. The minister’s modus operandi was worryingly simple. A few companies with unknown credentials and a few realtors with no telecom background filed for telecom licences/spectrum after he took office in May 2007. Suddenly, on September 25, 2007, he said the window for applications would close on October 1. This ensured that no global firms could apply. Clearly, three days are not enough to find a partner, get FIPB clearance, or bring in paid-up capital. Later, the minister made September 25, once the date of announcement of cut-off, the actual cut-off. This helped him to arbitrarily hand-pick nine out of the 46 companies that had applied for 575 licences. No explanation was given for these decisions. The pressures of coalition politics kept the prime minister and finance minister at bay. Then, on January 10 this year, with just a few hours’ notice, Raja allocated 120 licences for roughly Rs 9,000 crore. The FCFS rule ensured that telecom companies had to engage in fist fights to secure a priority position in the spectrum queue. The minister took refuge in a 2003 cabinet decision by the NDA government and a single paragraph from Telecom Regulatory Authority of India’s (TRAI) 178-page recommendations of 2007 in defending himself. Raja says these documents favour FCFS while his critics, including TRAI, point to a clear vote for auctions in the same documents. Later TRAI’s guidelines on mergers and acquisitions were suitably amended. While pretending to ban windfall gains for new licensees, a strategic opening for acquisitions was left open. This allowed new licensees to profit by wooing those very foreign companies that were strategically denied entry as a result of the arbitrary September 25 cut-off date. Money that rightfully belongs to the exchequer went into the pockets of rich industrialists. Countless letters to the PM appealing for accountability and redress have gone unanswered. The PM has done nothing to restrain the minister in the past, so is unlikely to do so now. Rather, the compulsions of coalition politics may even force the PM to publicly defend him. A PIL against the minister’s alleged wrongdoings has been admitted in the Delhi high court. Will any of this correct what has been lost is anybody’s guess. The courts hearing the PIL will need to dig out the real issues from the heap of obfuscating material that the telecom ministry might provide, including parading the decisions taken as high policy. For one, can the minister take shelter in NTP ’99, a cabinet decision of a previous government, or a lone passing mention in TRAI’s recommendations? How was a competitive bidding process for new entrants in telecom subverted between 2003 and 2007? Who are the beneficiaries? Why were there no transparent auctions when 575 applications were received? Had auctions taken place on January 10, when the stock markets were at their peak, the premiums now realised by a couple of upstart firms would have flowed into the government’s coffers. For the courts, it’s an opportunity for a landmark judgment to deliver both law and justice by adjudicating, without favour or political pressure. This is a fight for the rights of consumers versus the might of government and large business. If the government is serious about its commitment to protect citizens’ rights, it can only win by losing this case.

Reforming Public Interest Litigation
Tuesday, November 18, 2008
Recent months have seen substantial debate on the Supreme Court’s emerging attitude towards reforming public interest litigation (PIL), especially in light of Justice Katju’s controversial remarks. In an article in today’s Indian Express, I reflect upon this development in light of the Supreme Court’s rejection of a PIL petition on Friday, requesting it to order political parties to file tax returns. In particular, I argue that while the stress upon monetary penalties for frivolous PILs is a good thing, true reformation can only come through doctrinal developments that make the distinction between concerns of frivolous petition and concerns of appropriate representation. Certainly further distinctions may need to be made, which I have been unable to deal with in my article. For instance, Justice Katju clearly treated Common Cause as a frivolous PIL petition and it was thrown out, as I mention, because the court said that the sought relief was beyond its authority. But Justice Sema’s judgment makes for an interesting read, and perhaps it could be worth exploring distinctions in when PILs are to be rejected within the broad categories of those based on the subject-matter of the suit (broad umbrella – frivolous) and those based on the petitioner (broad umbrella – appropriate representation). Look forward to comments.
Posted by Madhav Khosla at 8:45 AM


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